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Bret D. Landrith Plaintiff appearing Pro se 9743 Sagamore Rd, Leawood, KS 66206 Cell 913-951-1715 bret@bretlandrith.com
IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS THE BANK OF NEW YORK ) Plaintiff ) Case No. 10CV1749 ) Court No. 2
v. ) ) Jury Trial Demanded JEFFERY ALLAN BASLER, et al ) Defendant )
DEFENDANT’S ANSWER TO PLAINTIFF’S PETITION TO FORECLOSE Defendant, Bret D. Landrith hereby files this Answer to the Plaintiff’s Petition to
Foreclose, accompanying the defendant’s Motion to Set Aside the Sale and Judgment
with its attached Affidavit of No Knowledge And Structural Engineering Defect, and in
support thereof avers as follows:
I. CONTINUING JURISDICTION IN EQUITY
1. The defendant and successor in interest is BRET D. LANDRITH, a citizen of the
State of Kansas and an arm’s length buyer in good faith of the property Under K.S.A. 58-
2204:
“K.S.A. 58-2204: Form of quitclaim deed. Any conveyance of lands, worded in substance as follows: A.B. quitclaims to C.D. (here describe the premises), for the sum of (here insert the consideration), the said conveyance being duly signed and acknowledged by the grantor, shall be deemed to be a good and sufficient conveyance in quitclaim to the grantee, his or her heirs and assigns.”
2. This court sitting in equity has continuing jurisdiction over this matter:
Exhibit 7 LANDRITH KS Answer to Foreclosure
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“However, rules of equity apply to the present case because all actions to foreclose mortgages are equitable in nature. First Nat'l Bank of Olathe v. Clark, 226 Kan. 619, 623, 602 P.2d 1299 (1979). The Kansas Supreme Court has said that "where a court of equity has obtained jurisdiction of a controversy on any ground it will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject matter. [Citation omitted.]" Nelson v. Robinson, 184 Kan. 340, 345, 336 P.2d 415 (1959). Here, the Wetzel Buyers became a "party to the record" through their bid and had the right to be heard on "any order ... affecting their rights." McDonald, 58 Kan. at 462, 49 P. 595. Therefore, the district court retained jurisdiction on any claim asserted by the Wetzel Buyers related to the subject matter of the original proceeding.” First Nat. Bank in Larned v. Wetzel, 219 P.3d 819 at 822-823 (Kan. App., 2009)
3. The real estate, which is the subject of this litigation is lot 330, Leawood Estates, a
subdivision in Leawood, Johnson County, Kansas, according to the recorded plat thereof,
commonly known as 9743 Sagamore Road, Leawood, KS 66206 (the “Property”).
II. STATEMENT OF FACTS COMPRISING A DEFENSE AT LAW TO THE PLAINTIFF’S FORECLOSURE
4. BANK OF AMERICA, NA is the successor in interest, duties and liabilities to
Countrywide Home Loans, Inc. (Countrywide Home) and Countrywide Home Loans
Servicing LP (Countrywide Servicing) which obtained the residential home mortgage
loan on this property and serviced it, then created shell trusts to commit foreclosure fraud
on courts with the plaintiff THE BANK OF NEW YORK acting as trustee but having
knowledge of the fraud.
5. The mortgage underwriting, securitization and foreclosure frauds committed by
Countrywide former chairman and CEO David Sambol, former president and chief
operating officer, Eric P. Sieracki, former executive managing director and CFO and their
auditing firm KPMG were joined by BANK OF AMERICA, NA and the plaintiff THE
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BANK OF NEW YORK and resulted in the defendant’s property rights and interests in
9743 Sagamore Road, Leawood, KS 66206 being subject to an unlawful fraudulent
foreclosure
6. BANK OF AMERICA, NA has publicized misrepresentations to the public, the
Securities and Exchange Commission and the government mortgage guarantee entity
Fannie Mae to further profit from and obstruct justice to prevent discovery of criminal
misconduct engaged in by Countrywide Home Loans, Inc. in conspiracy with the auditing
firm KPMG to securitize the defendant’s property in pooling and servicing agreements
transferred by BANK OF AMERICA, NA to CWALT, Inc. and its trustee THE BANK
OF NEW YORK misrepresenting that the Alternative Loan Trust 2007-OA7 Pooling and
Servicing Agreement (PSA) was sufficient grounds to assign the Mortgage Note and
enforcement and foreclosure rights on the defendant’s property.
7. BANK OF AMERICA, NA through its predecessor in interest Countrywide
Home Loans, Inc. intentionally misrepresented material facts about various individual
loans [including the loans alleged to be secured by the defendant’s property] so that they
would appear to satisfy warranties in the parties’ agreements for insurable and
merchantable title and to make a false claim against Fannie Mae in violation of the False
Claims Act (31 U.S.C. §§ 3729–3733).
8. On information and belief BANK OF AMERICA, NA through its predecessor in
interest Countrywide Home Loans, Inc. transferred interests and ownership of notes
alleged to be secured with the defendant’s property through mortgage via the depositor
CWALT, Inc. but were not recorded with the Johnson County, Kansas registrar of deeds
and the title to the defendant’s home is "clouded" with invalid interests and claims
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making it unmarketable.
9. THE BANK OF NEW YORK, fka THE BANK OF NEW YORK MELLON
became the trustee of a fraudulent trust alleging a secured interest in the plaintiff’s
property that was created by Countrywide former chairman and CEO David Sambol,
former president and chief operating officer, Eric P. Sieracki, former executive managing
director and CFO and their auditing firm KPMG and perpetuated by BANK OF
AMERICA, NA whose participation included causing a false claim to be made against
the US Treasury through obtaining the mortgage loan insurance provided by Fannie Mae
and selling Mortgage Loan servicing rights, knowing that the defendant’s property, the
subject of the false claims against Fannie Mae, was not secured with a valid property
interest and insurable mortgage due to the property rights and mortgage documentation
not being transferred through the defendants’ CWALT, Inc. Alternative Loan Trust 2007-
OA7 fraud instrumentality to THE BANK OF NEW YORK as trustee because of the
fraudulent scheme BANK OF AMERICA, NA, the depositor CWALT, Inc. and THE
BANK OF NEW YORK were engaged in to defraud investor pools in multiple sales,
knowing the “blue ink mortgage note” for the defendant’s property which is required to
prove any right by the plaintiff to the property is unavailable.
10. On information and belief THE BANK OF NEW YORK and BANK OF AMERICA,
NA utilized the certificate holders, CWALT, Inc., and Alternative Loan Trust 2007-OA7
to further the Countrywide Home Loans, Inc. separation of the secured interest from the
purported mortgage note for the purpose of preventing the securities fraud on foreign
derivatives securities holder that believed they had an investment secured by the
defendant’s property and to prevent the number credit default swap bundles utilizing the
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defendant’s property from being disclosed to law enforcement officials responsible
regulating banking and securities.
A. THE PLAINTIFF’S MISGUIDED SHELL GAME
11. The plaintiff THE BANK OF NEW YORK is a trustee and knowing participant in
a fraud originating with BANK OF AMERICA NA’s mortgage underwriting service
“Countrywide and BANK OF AMERICA NA’s mortgage servicing unit BAC.
BAC which was known as Countrywide Home Loans Servicing LP until it changed its
name in 2009.
12. Since the buyout, BANK OF AMERICA NA has engaged in a complex series of
transactions involving moving Countrywide Financial Corp. and the subsidiaries of
Countrywide Financial Corp., as well as the assets of such corporations, to and fro within
the BANK OF AMERICA NA group of companies in an attempt to evade federal and
state regulatory action with respect to mortgage servicing abuses occurring at
Countrywide Home Loans Servicing LP and successor entities."
13. In July 2008, BANK OF AMERICA NA 's subsidiary NB Holding Corp.
completed the acquisition of Countrywide Home Servicing LP so that Countrywide
Home would be a "non-banking" indirect subsidiary of BANK OF AMERICA NA and
therefore evade regulatory oversight of mortgage servicing activities by the United States
Office of the Comptroller of the Currency (the OCC).
14. BANK OF AMERICA NA executives and counsel also believed that such
structure would allow BANK OF AMERICA NA to evade regulatory licensing and
oversight of its unlawful and fraudulent mortgage servicing activities by state regulatory
authorities because Countrywide Home Loans Servicing LP, although not a subsidiary of
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BANK OF AMERICA NA, would still be related to BANK OF AMERICA NA, and
therefore could claim a preemption from state regulation and licensing.
15. BANK OF AMERICA NA principals then stripped Countrywide Financial Corp.
and Countywide Home Loans of all their assets to further defraud claimants and potential
claimants against Countywide entities.
16. In November, 2008, Countrywide Home Loans Inc. transferred all of its assets to
Bank of America Corp., which thereafter transferred such assets to BANK OF
AMERICA NA and formed a unit of BANK OF AMERICA NA called 'Countrywide
Home Loans.' Countrywide Home Loans, a division of BANK OF AMERICA NA
thereafter conducted the business previously conducted by Countrywide Home Loans
Inc.
17. In 2009 Bank of America shed the 'Countrywide' brand name, knowing that in the
minds of consumers and regulators it was associated with Countywide Financial Corp.'s
fraud.
Countrywide Home Loans Servicing LP then became BAC Home Loans Servicing LP,
while Countrywide Home Loans was changed to Bank of America Home Loans.
18. In June 2010, the Federal Trade Commission barred BAC Home Loans and
Countrywide Home Loans from certain practices, including making false or
unsubstantiated representations about loan accounts.
19. In April, 2011, BANK OF AMERICA NA fully realized that its shell game to
evade regulatory oversight was not working when BANK OF AMERICA NA was hit
with a Consent Order from the OCC relating to the mortgage servicing activities of the
non-bank entity BAC Home Loans Servicing LP.
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20. The OCC Consent Order did not differentiate between BANK OF AMERICA NA
and BAC Home Loans Servicing LP and found that BANK OF AMERICA NA serviced
13,500,000 residential mortgage loans.
21. With new financial regulations on the horizon in the form of the Dodd-Frank Wall
Street Reform and Consumer Protection Act, and tougher regulations on mortgage
servicers from the Consumer Financial Protection Bureau, Bank of America merged BAC
Home Loans Servicing LP into BANK OF AMERICA NA.
22. However BANK OF AMERICA NA then realized almost immediately after
moving its mortgage servicing activities to the new shell, than it figured out that it still
would be stuck with the large costs of complying with the already existing OCC Consent
Order, which had ordered that the unlawful and fraudulent mortgage servicing activities
be corrected going forward and that with respect to past unlawful activities such judicial
and non-judicial foreclosures be reversed (such as the foreclosure and sale of the
defendant’s house) where possible and that those injured be compensated.
23. BANK OF AMERICA NA tried to evade the future liability to the defendant for
the unlawful foreclosure of the defendant’s house on 9743 Sagamore Road and other
homes it was unlawfully servicing by selling servicing rights to 400,000 loans for $500
billion.
24. Fannie Mae is the unwitting surety and guarantor as purchaser or financier for the
mortgage servicing rights on the defendant’s 9743 Sagamore Road and was materially
harmed in the FCA false claim by BANK OF AMERICA NA where BANK OF
AMERICA NA did not maintain the original Mortgage Note or deliver it to THE BANK
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OF NEW YORK and CWALT, Inc. and did not exercise diligence in qualifying
purchasers or correctly disclosing risks related to buyers.
B. THE FRAUD ON THE COURT BY THE BANK OF NEW YORK, CWALT, INC., AND
ALTERNATIVE LOAN TRUST 2007-OA7
25. BANK OF AMERICA, NA the successor in interest, duties and liabilities to
BAC, Countrywide Home Loans, Inc. (Countrywide Home) and, Countrywide Home
Loans Servicing LP (Countrywide Servicing) in its previous incarnation as Countrywide
failed to comply with the terms of the securitization Pooling and Servicing Agreement
(“PSA”) for the delivery of the mortgage note to CWALT, Inc., for Alternative Loan
Trust 2007-OA7.
26. Countrywide failed to deliver the mortgage note to the trustee, THE BANK OF
NEW YORK and therefore THE BANK OF NEW YORK knows that Alternative Loan
Trust 2007-OA7 is without the right to enforce the note and without the right to foreclose.
27. THE BANK OF NEW YORK knows that as trustee for Alternative Loan Trust
2007-OA7 and CWALT, Inc. which never got the note from Countrywide or its successor
in interest BANK OF AMERICA, NA, and knows that THE BANK OF NEW YORK
never had standing to bring a foreclosure action against the defendant or his predecessors
in Johnson County District Court.
28. THE BANK OF NEW YORK, acting on the knowledge it was proceeding against
thousands of homes without standing and through frauds on the respective foreclosure
courts negotiated with BANK OF AMERICA, NA to be completely indemnified but now
knows BANK OF AMERICA, NA is insolvent as to its liabilities over the Countrywide
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mortgages and the conduct BANK OF AMERICA, NA continued after taking over
Countrywide.!
29. BANK OF AMERICA, NA the successor in interest, duties and liabilities to
Countrywide Home Loans, Inc. (Countrywide Home) and Countrywide Home Loans
Servicing LP (Countrywide Servicing) in its previous incarnation as Countrywide and the
trustee THE BANK OF NEW YORK misrepresented each transaction purchasing
interests in Alternative Loan Trust 2007-OA7 to investors and later to Fannie Mae, by
creating the impression that the trust had secured the collateral including the defendant’s
home.
30. The trustee THE BANK OF NEW YORK misrepresented from 2008 to 2011 in
each of CWALT, Inc.’s Reg AB annual certifications to each investor of Alternative
Loan Trust 2007-OA7 and Fannie Mae that the mortgage loan documents including the
note on the defendant’s house were safeguarded and secured when THE BANK OF NEW
YORK knew Countrywide had never delivered them or the note on the defendant’s
house.
31. The trustee THE BANK OF NEW YORK further misrepresented to the investors
of Alternative Loan Trust 2007-OA7 and Fannie Mae that the defendant’s home was
assigned to Alternative Loan Trust 2007-OA7 and that the defendant’s original Mortgage
Note, endorsed by signature with “Pay to the order of” instructions and that all
intervening endorsements showing a complete chain of endorsement from the Person
endorsing the Mortgage Note and each endorsement being sufficient to transfer all right,
title and interest of the party endorsing, as noteholder or assignee thereof, in and to the
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defendant’s Mortgage Note when the trustee THE BANK OF NEW YORK was without
the chain of endorsements, having never received the original Mortgage Note.
32. Because the defendant’s initial mortgage loan that was not a MERS Mortgage
Loan, the THE BANK OF NEW YORK as trustee certified the above mortgage file
documents including the original Mortgage Note were in THE BANK OF NEW YORK’s
possession and that THE BANK OF NEW YORK had reviewed the defendant’s
mortgage file documents including the original Mortgage Note and the documents
appeared regular and were present and related to the defendant’s mortgage loan.
33. THE BANK OF NEW YORK made the above materially fraudulent
misrepresentation about the defendant’s Mortgage Note (as it did about all notes in the
trust) in a preliminary certification on the closing date for Alternative Loan Trust 2007-
OA7.
34. THE BANK OF NEW YORK made an additional materially fraudulent
misrepresentation about the defendant’s Mortgage Note (as it did about all notes in the
trust) in the final 2007 certification that all required documents have been received for
Alternative Loan Trust 2007-OA7.
35. THE BANK OF NEW YORK made additional annual materially fraudulent
misrepresentations to investors in Alternative Loan Trust 2007-OA7, Fannie Mae and the
Securities and Exchange Commission (“SEC”) about the defendant’s Mortgage Note (as
it did about all notes in the trust) in the 2008,2009, and 2010 annual certifications with
CWALT, Inc. in THE BANK OF NEW YORK’s delivery to the SEC of Regulation AB
Certifications (asset backed securities pursuant to SEC regulation section 1122(d)(4)(ii))
that the Pool assets ( original Mortgage Notes of Alternative Loan Trust 2007-OA7)and
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related documents are safeguarded by THE BANK OF NEW YORK as required by the
transaction agreements.
36. THE BANK OF NEW YORK and CWALT, Inc. made additional materially
fraudulent misrepresentations to investors in Alternative Loan Trust 2007-OA7 and
Fannie Mae that a grant of a security interest in the mortgage loans including the
Mortgage Loan on the defendant’s house was obtained for the benefit of the certificate
holders- the investors in Alternative Loan Trust 2007-OA7.
37. THE BANK OF NEW YORK and CWALT, Inc. under the PSA ensured the
agreements were grants of a security interest, and CWALT, Inc. filed UCC statements for
the mortgage loans including the defendant’s and represented facts including that all
original executed copies of each Mortgage Note (including the defendant’s) required to
be delivered to the Trustee THE BANK OF NEW YORK have been delivered to the
THE BANK OF NEW YORK.
DEFENSES
38. THE BANK OF NEW YORK is trustee for a straw man the depositor CWALT,
Inc. and its instrumentality Alternative Loan Trust 2007-OA7 when in fact the principal
is BANK OF AMERICA, NA which has been paid in full for the defendant’s property
when its subsidiary sold the “blue ink note” and the rest of the mortgage file to foreign
derivatives securities holder.
39. THE BANK OF NEW YORK as trustee and with knowledge of the fraud and an
agreement to participate in the fraud with is BANK OF AMERICA, NA in exchange for
complete indemnification while continuing to collect its fees for good faith and fair
dealing in the performance of its fiduciary duties lacks clean hands to obtain relief in an
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equity court.
40. THE BANK OF NEW YORK and its nominal principals CWALT, Inc., and
Alternative Loan Trust 2007-OA7 lack standing to foreclose or enforce any note or fee
connected with the defendant’s property.
III. PRAYER
WHEREFORE, the defendant is suffering a continuing injury from a slander to the title
of his property by the representations of the plaintiff and their agents who do not have a
valid mortgage or enforceable note interest in the property and a loss of value from the
property’s unmarketability.
Defendant BRET D. LANDRITH respectfully requests that this Honorable Court
find in his favor and against the Plaintiff, and enter a judgment ordering the Recorder of
Deeds for Johnson County to convey the interests registered by the defendant in the
property located at 9743 Sagamore Road, Leawood, KS 66206 to the Plaintiff and to bar
the defendant’s lien claims, upon presentment of an order stating the same; and granting
such other relief as is necessary and appropriate.
Respectfully submitted,
________________ Bret D. Landrith Plaintiff appearing Pro se
CERTIFICATE OF SERVICE
I certify I have mailed a copy of the above pleading to counsel for the plaintiff THE BANK OF NEW YORK on September 12, 2011.
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South and Associates, PC Brian P. Hazel 6363 College Blvd. Suite 100 Overland Park, KS 66211 Brian.Hazel@southlaw.com
________________ Bret D. Landrith Defendant appearing Pro se
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