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INTRODUCTION TO MEMORANDUM OF LAW
Life-cycle of a “Loan”
October 2010

    The following is an “overview” of the “life-cycle” of the presently orchestrated real estate promissory note and mortgage agreement scam. This “overview,” is not comprehensive and inclusive of all of the facts and situations which may apply to particular cases. Because of the suppression of all of the facts about the banking industry’s biggest swindle in the history of the planet, this “overview” can only expose discovered facts, as such facts, are known to date.

    1.  Without full disclosure of all elements of the “system,” or scam being conducted, and profoundly ignorant of how the “lender” will exploit the possession and manipulation of the promissory note and mortgage agreement issued by the unsuspecting so-called “borrower,” papers are autographed and delivered into the possession of the so-called “lender.”

    2.  The “lender” separates the promissory note and mortgage agreement and deposits each as separate transactions, as cash, in special “transaction accounts” belonging to the “lender.”

    3.  The Federal Reserve authorized “deposit multiplication” scam begins, which increases the total amount of money generated by the deposits by an additional factor of approximately nine (9).

    4.  The “lender” will then, sell the separated promissory note and mortgage agreement to an entity known on Wall Street as an “aggregator,” for transfer into a “pool,” and get paid $200,000.00 plus a commission of approximately 2.5%. (commission amount may vary).

    5.  After “securitization” by government, either/or authorized corporate entities, the Wall Street gurus “tranche,” or slice up the “pool” into Mortgage Backed Securities (MBSs), Collateralized Debt Obligations (CDOs), Collateralized Mortgage Obligations (CMOs), Credit Default Swaps (CDSs), etc. Such instruments are then traded in the stock market and generate millions of dollars.

    6.  The bankers, in firm control of the monetary system and the economy, then engineer recession and recovery cycles which guarantee defaults on some of the “pooled” and “tranched” mortgages.

    7.  The CDSs, (Credit Default Swaps) function as insurance on defaulted mortgages, and the insider traders cash in the CDSs and generate additional millions of dollars as an added windfall of the scam.

    8.  And then, after millions of dollars have been generated from the initial so-called “loan” of $100,000.00, (the mortgage has already been paid off many times over) the banks, and debt collectors institute foreclosure actions against the hapless, and clueless, “borrower,” and do it all over again.

    9.  After comprehension of the foregoing overview of the life-cycle of the presently orchestrated real estate promissory note and mortgage agreement scam, it becomes necessary to come to “grips” with the following facts:

    10. The foregoing facts were never disclosed to the “borrower.”

    11. Those non-disclosures were intentionally orchestrated in order to rob the clueless “borrower.”

    12. The “agreement” that was disclosed to the “borrower” was an intentional act of misrepresentation of the actual truth of the matter.

    13. The “borrower” had no comprehension of the intentionally un-disclosed actual facts of the transaction that would be used to the extreme advantage of the “lender,” and to the extreme disadvantage of the “borrower.”

    14. In other words, the “agreement” was immediately and materially altered by the “lender” without the knowledge or consent of the “borrower.”

    15. “A material alteration of a written contract by a party to it discharges a party who does not authorize or consent to the alteration, because it destroys the identity of the contract, and substitutes a different agreement for that into which he entered.” Mersman v. Werges and another, 112 U.S. 139, 5 S.Ct. 65, 28 L.Ed. 641 (1884). Online:
http://bulk.resource.org/courts.gov/c/US/112/112.US.139.html

    16. The banks are announcing that they have a “handle” on the problems with the essential paperwork to lawfully conduct foreclosure proceedings.

    17. Statements such as, “we are getting new documents properly signed,” so that foreclosures may once again move forward.

    18. “New” documents will NOT “fix” their problems.

    19. The foundational basis of the structure of the government, separation of powers, would have to be “trash-canned,” and many landmark case law decisions would have to be overturned, for such a statement by the banking industry to have any validity whatsoever.

    20. The following MEMORANDUM OF LAW will explain the impossibility of the ability of the banking industry to “save” their criminal mortgage scam.

MEMORANDUM OF LAW

    1.  MERS (Mortgage Electronic Registration System) invariably makes naked conclusory averments of being the "nominee" of mortgage holders with respect to the Assignment of Mortgages either/or “accounts,” without including a CERTIFIED copy of the so-called “nominee agreement.” Such naked claims are blatant misrepresentation – fraud.

    2.  Without valid proof of a proper and correctly executed nominee agreement, MERS cannot establish STANDING to institute foreclosure proceedings.

    3.  There is no proof of any rights transferred by mortgage lenders, (for lack of a better term), giving MERS the lawful authority to “assign” the original autographed promissory note and mortgage agreement. This is the reason the criminal banking “industry” changes the language and words used to reference the promissory note and mortgage agreement to the word “ACCOUNT.”

    4.  The above referenced currently binding opinion of the Supreme Court of the United States, was recently utilized as basic law in Landmark Nat’l Bank v. Kesler, No. 98,489, by the Supreme Court of the State of Kansas, (August 2009).

    5.  Assignment of an ACCOUNT … is LUDICROUS. MEANINGLESS. The NOTE and the mortgage agreement are the “things” that must be ASSIGNED — TOGETHER. An “account” is NOT the NOTE and the mortgage agreement. Was the NOTE assigned? Was the Mortgage Agreement assigned with the NOTE?

    6.  “Assignment” of “accounts” is a red herring, a deliberate attempt to divert attention away from the fact that the banks and debt collectors are trading “accounts” and not the valuable securities themselves.

    7.  Is a picture of a baby … the baby? Call the picture of the baby, “account,” does that make the picture (account) … the baby? An “account” is NOT the note, contract, agreement, etc.

    8.  The claim of assignment of a so-called “account” fails to establish anything other than the announcement of a naked conclusory allegation, and the attempt to misrepresent an “account” as a promissory note and mortgage agreement. FRAUD.

    9.  The sweeping assertion, based upon a naked allegation concerning so-called “assignment,” and the uncertified alleged links in the chain of claimed assignments that must be complete and valid going all the way to the ORIGINAL initial holder of the actually existing OWAPN and OWAMA, is simply not sufficient to allow litigation.

    10. A valid, certified, and unbroken chain of assignments between the ORIGINAL holder and the present holder, and then to the foreclosure claimant must be PROVED. If not demanded the courts will “look the other way.”

    11. All copies of securities must be considered to be Counterfeit, Forged, Photo-shopped, and Fraudulent. A copy of a “thing,” cannot be that “thing.” With respect to the Original Autographed (Wet-ink) Promissory Note (OAWPN), and the Original Autographed (Wet-ink) Mortgage Agreement (OAWMA), only the actual OAWPN and OAWMA have any value.

    12. MERS is notorious for possessing only non-negotiable, electronic copies of mortgages and promissory notes.

    13. Without production of the original, wet-ink autographed mortgage and promissory note, to prove that such instruments actually exist and are in physical possession of the holder (“in possession of the instrument”), or the “non-holder in possession of the instrument who has the rights of a holder,” there is no way to prove the existence of a debt.

    14. Without proof of the existence of a valid OAWPN and OAWMA, there can be no evidence for a claimed injury in fact. NO STANDING, which would entitle anyone to initiate foreclosure proceedings.

    15. MERS amazingly claims to be a “person entitled to enforce” the OAWPN and OAWMA. The Uniform Commercial Code (UCC), section 3-301, establishes the requirements for enforcing a note:

    16. Since MERS is not the original so-called “creditor,” and CANNOT prove possession of the OAWPN and OAWMA, MERS cannot be considered to be the holder.

    17. Since MERS can only produce a copy of the OAWPN and OAWMA, they cannot be considered a “nonholder in possession of the instrument who has the rights of a holder.”

    18. Consequently, MERS can only claim to be “a person not in possession of the instrument who is entitled to enforce the instrument under UCC § 3-309 …”

    19. Therefore, MERS status is governed by UCC § 3-309, “Enforcement of lost, destroyed, or stolen instrument.” which states in pertinent part —

    20. Pursuant to UCC § 3-309, the burden of establishing validity is on the person claiming validity, and MERS, or ANY OTHER foreclosure claimant cannot produce the OAWPN and OAWMA. Therefore – no standing, and particular case jurisdiction cannot be invoked in any court.

    21. Since the OAWPN and the OAWMA were actually SOLD and securitized within a short period of time after being autographed, the unavailability of the actual OAWPN and the OAWMA is the RESULT OF A TRANSFER, UCC § 3-309(a)(2), which means that the entity that SOLD the OAWPN and OAWMA LOST their right to enforce the instrument, and therefore the right to assign enforcement rights to any third party, because loss of possession was the result of a transfer by the person. (UCC § 3-309(a)(2)).

    22. "[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Without standing, a foreclosure claimant’s claim cannot move forward. Indeed, "the [ ] courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of the jurisdictional doctrines." FW/PBS. Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (internal quotation marks omitted); see also Vickers v. Henry County Savings & Loan Ass'n, 827 F.2d 228, 230 (7^th Cir. 1987). Furthermore, the burden is upon the plaintiff to establish standing and the presence of jurisdiction [ ]. NLFC, Inc. v. Devcom Mid-America. Inc., 45 F.3d 231, 237 (7^th Cir. 1995); Grafon v. Hausermann, 602 F.2d 781, 783 (7^th Cir. 1979).

    23. Since the advent of the present ongoing “securitization” of real estate OAWPNs and OAWMAs no foreclosure claimant has been able to establish that a justiciable controversy exists that would invoke the particular case jurisdiction of the courts.

    24. Article III of the United States Constitution vests the federal courts, with jurisdiction to decide only actual cases or controversies. This constitutional concept must also be observed in the state courts. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990); Deakins v. Monaghan, 484 U.S. 193, 199 (1988); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).

    25. A central inquiry for determining whether a case or controversy exists is whether there is a "'substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality."' Lake Carriers' Association v. MacMullan, 406 U.S. 498, 506 (1972) (citation omitted); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). The Supreme Court has noted that standing is perhaps the most important of the case or controversy requirements. See Allen v. Wright, 468 U.S. at 750. The United States Supreme Court has summarized the standing requirement as having three elements:

First, the plaintiff must have suffered an "injury in fact” - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or “hypothetical.”

Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be "fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court."

Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan, 504 U. S. at 560-61 (citations and footnote omitted). "This triad … constitutes the core of Article III's case-or-controversy requirement, and the party invoking federal and state court jurisdiction bears the burden of establishing its existence." See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998) (citations omitted); Kyles v. J. K. Guardian Sec. Serv, Inc., 222 F.3d 289, 293 (7^th Cir. 2000) ("Implicit in that limitation [that there be a case-or-controversy] is the requirement that a party invoking the court's jurisdiction have standing.")

    26. Today, there are virtually no foreclosure claimants capable of satisfying the requirements of Article III standing.

    27. As an initial matter, foreclosure claimants NEVER prove that they sustained an actual injury in fact sufficient to establish Article III standing.

    28. As noted above, a foreclosure claimant’s injury must be "concrete and particularized" and "actual or imminent, not 'conjectural' or 'hypothetical."' Lujan. 504 U.S. at 560; see also Whitmore v. Arkansas, 495 U.S. 149, 155-60 (1990); Illinois v. City of Chicago, 137 F.3d 474, 477 (7^th Cir. 1998) ("[i]njury is an indispensable element of a case or controversy," and"  [t]hat means a palpable harm to a concrete interest."). The plaintiff’s injury must be one that is "peculiar to himself or to a distinct group of which he is a part." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979); see also Schlesinner v. Reservists Comm. To Stop The War, 418 U.S. 208, 218 (1973). The plaintiff must have a "personal stake" in the outcome of the litigation. See United States Parole Comm. v. Geraghty, 445 U.S. 388, 396, 403-04 (1980).

    29. No foreclosure claimant, today, has the capacity to articulate a sufficiently particularized "injury in fact" to satisfy the irreducible requirements of Article III.

    30. Any COPY of an OWAPN and OWAMA can easily be fabricated either/or “photo-shopped.” Without the ORIGINAL AUTOGRAPHED documents, such copies are immediately suspect, and must be considered to be, counterfeit, forged, photo-shopped, and fraudulent.

    31. Foreclosure claimants invariably fail to allege, in even a broad perspective, just exactly the nature of any "harm" suffered in order to substantiate an actual and concrete injury. See, e.g., Warth v. Seldin, 422 U.S. 490, 501 (1975) (absent an express statutory right of action, plaintiff must "allege a distinct and palpable injury to himself”).

    32. Foreclosure claimants invariably fail to prove, with valid evidence, any alleged injury that can be shown as "fairly traceable" to the so-called “debtor” or that the relief requested would likely address the alleged injury. See Lujan, 504 U.S. at 560-61. Unless the so-called debtor CONFESSES to the debt.

    33. Foreclosure claimants invariably fail to allege and prove the ability to produce any evidence to substantiate the existence of any alleged ORIGINAL contract, any action, transaction, duty, omission, or responsibility which would constitute a basis for standing and subsequent invocation of a court’s particular case jurisdiction. See Simmons v. Interstate Commerce Commission, 909 F.2d 186, 189 (7^th Cir. 1990).

    34. In addition to the irreducible requirement of Article III, the standing doctrine has a prudential component. Lujan, 504 U.S. at 560. The prudential component ordinarily prevents plaintiffs from invoking the rights of third parties. See Warth, 422 U.S. at 499 (1975); see also Powers v. Ohio, 499 U.S. 400, 411 (1991) (in addition to alleging injury-in-fact, a litigant seeking to invoke the rights of a third party, must allege a sufficiently close relationship with the third party so that the court is assured that the litigant will be an effective proponent of the cause and "there must exist some hindrance to the third party's ability to protect his or her own interests"); Whitmore v. Arkansas, 495 U.S. at 163-64.

    35. Most foreclosure claimants seek to litigate the rights of an unnamed and unknown holder of an alleged agreement that has not been proved to even exist.

    36. Without any showing of a concrete and particularized injury in fact and any showing of the requisite "close relation" to the actual and present holder of an alleged original agreement, the foreclosure claimant cannot show that it is attempting to protect its own interests. See Powers v. Ohio, 499 U.S. at 411.

    37. To the contrary, most, if not all, foreclosure claimants initiate foreclosure proceedings without any valid proof whatsoever to demonstrate an unbroken and valid certified chain of assignment to the alleged actual and present holder of the alleged original autographed agreement.

    38. The foreclosure claimant entered the Court with

         1.  counterfeit, forged, photo-shopped, and fraudulent COPIES of documents that are in fact counterfeit SECURITIES. Counterfeiting a security is a criminal act, and

         2.  fraudulent and invalid so-called “assignments,” and

         3.  fraudulent affidavits.

    39. A COPY of what purports to be a “signature,” is NOT the signature.

    40. A COPY of a Federal Reserve Note is NOT a Federal Reserve Note.

    41. With respect to a real estate promissory note and mortgage agreement, the naked and conclusory allegation of the existence and actual possession of the ORIGINAL AUTOGRAPHED promissory note and mortgage agreement without certification by sight comparison and verification of the ORIGINAL AUTOGRAPHED promissory note and mortgage agreement in hand, to a purported COPY of what is claimed to be the purported promissory note and mortgage agreement, is fraud on its face.

    42. Until proven to exist by actual production of the ORIGINAL AUTOGRAPHED promissory note and mortgage agreement, the defendant denies the existence of any such instruments, and disputes the STANDING of the foreclosure claimant, in that no such STANDING can be PROVED to exist.

    43. Certified General Ledger(s) must be produced to establish the chain of ownership, custody and actual possession of the alleged ORIGINAL AUTOGRAPHED promissory note and mortgage agreement.

    44. Foreclosure claimant must prove that it has not entered the Court with a counterfeit security.

    45. Foreclosure claimant must prove that its claim to a right to a remedy upon the face of a counterfeit security is a valid claim.

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