MOTION TO VOID JUDGMENT, DISMISS, OR RECUSE JUDGE - cleaned

CIVIL DIVISION – BRANCH 24STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY

OCWEN Loan Servicing, LLC, PlaintiffVs. Case No. _____

________, Plaintiff_________________________________________________________________

MOTION TO VOID JUDGMENT, DISMISS, OR RECUSE JUDGE_________________________________________________________________

Now comes the above named, _____ (“W______”) and moves to either void the illegal

summary judgment of foreclosure made against her on December 17, 2009, dismiss this

case for lack of subject matter jurisdiction with prejudice, or a demand to recuse Judge

Charles Kahn (Judge) from the above entitled matter under 28 USCS Sec. 455(a) which

states: “Any justice, judge, or magistrate judge of the United States shall disqualify himself

in any proceeding in which his impartiality might reasonably be questioned.” And

judge should be disqualified only if a reasonable person, apprised of all the facts and

circumstances, would question the judge's impartiality. Hunt v. Am. Bank & Trust Co.

of Baton Rouge,783 F.2d 1011, 1015 (11th Cir.1986); Potashnick v. Port City Constr. Co.,609

F.2d 1101, 1110-11 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980).

Apparently my written motions, judicial notices etc. are not “on the record” and have no

legal significance in this courtroom, and only those items expressed verbally are “on the

record,” as every motion or other paperwork submitted was totally ignored by the Judge,

unless I specifically brought it up verbally in court. If it was meant to be that way, I’m sure

the law wouldn’t have gone to so much trouble to make sure that everything is in writing.

Therefore, there was apparently nothing on the record on which W_______ could “appeal,”

as none of the material facts, counter-claims, and “findings of facts and conclusions of law”

presented to W_______ following summary judgment dealt with any material facts or any

other substantive evidence or laws. The Judge did not make W_______ aware of this obscure

Motion to Recuse Page 1 of 11 February 7, 2011

http://www.leagle.com/xmlcontentlinks.aspx?gfile=783%20F.2d%201011



procedure of denying or ignoring all written paperwork. In addition, W_______ answered

every motion filed by Ocwen, and most if not all of their false affidavits, within her motions

and with signed and notarized affidavits… all ignored or denied. In addition, Ocwen’s

lawyers sat stone-faced and mute as the Judge did all their work for them.

ABUSE OF DISCRETION1 AND DUE PROCESS, ADMINISTRATIVE PROCEDURES, AND JUDICIAL PROCEDURES VIOLATIONS

Abuse of Discretion: When a court does not apply the correct law or if it rests its decision on a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). http://www.lectlaw.com

1. Judge refused to make Ocwen prove standing, usurped jurisdiction where

law gave none. Ocwen has no standing, Court has no jurisdiction.

It’s a legal requirement that, when challenged, standing and subject matter jurisdiction must

be proven, and that the burden of proof lies on the person bringing the suit. The Judge

ignored that, and refused to make Ocwen prove standing. Proof of standing, by law,

requires the production of the Original Note and Mortgage, with all endorsements and/or

allonges securely attached. This is a bare minimum requirement.

Enforcement of a note always requires that the person seeking to collect show that it is the

holder. A holder is an entity that has acquired the note either as the original payor or

transfer by legal and enforceable endorsement of order paper or physical possession of

bearer paper properly signed and endorsed. These requirements are set out in Article 3 of

the Uniform Commercial Code, which has been adopted in every state. Correspondingly, in

bankruptcy proceedings, state substantive law controls the rights of note and lien holders.

United States v. Butner, 440 U.S. 48, 54-55 (1979). (Federal Bankruptcy Judge Samuel

Bufford's Presentation Paper before the Universal Commercial Code Committee titled

“Where’s The Note, Who’s The Holder: Enforcement Of Promissory Note Secured By Real

Estate”).

1 The standard of review to use is abuse of discretion. Carey v. State, 405 A.2d 293 (Md. Ct. Spec. App. 1979), cert. denied, 445 U.S. 967 (1980).


http://www.lectlaw.com/

Papers filed into Court record:Motion to Dismiss for Subject Matter Jurisdiction, filed 5/26/09 and Amended Motion to Dismiss for Subject Matter Jurisdiction, filed 6/24/09.

In re Kennedy Mortgage Co. 17 B.R.957 (Bankr,D.N.J. 1982), Defendants have a common law right to demand production of the alleged “note” prior to making any payment on a note. “A promissory note is an ‘instrument’ as defined by the Uniform Commercial Code.” N.J.S.A 12A-9-105(1)(g) and 12A-3-104(2)(d)

2. Judge forced burden of proof on wrong party.

The Judge put the burden on W_______ to prove Ocwen did not have standing to bring the

suit, by forcing me to do Discovery on Ocwen. The act of forcing me to conduct Discovery,

if I’m not mistaken, was a courtroom trick to put me under the Court’s jurisdiction. This fact

was brought up repeatedly by W_______ in paperwork and verbally.

I do not consent to the Court’s jurisdiction where Ocwen’s standing has not been

proven.

“Plaintiffs have the burden of establishing standing.” Loren v. Blue Cross & Blue Shield of Michigan, No. 06-2090, 2007 WL 2726704 at *7 (6th Cir. Sept. 20, 2007). “If they cannot do so, their claims must be dismissed for lack of subject matter jurisdiction.” Id. (citing Central States Southeast & Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2nd Cir. 2005).

3. Judge forced Discovery on W_______ to usurp jurisdiction

Judge allowed Ocwen to submit documents of no legal consequence, and not submit

documents which would prove W_______’s counter-claims. No sanctions were ever imposed

on Ocwen for their refusal to properly comply with Discovery for eight months. However,

sanctions were imposed on W_______ for inadvertently missing a court hearing by getting the

dates confused. By failing to give a substantial response to W_______’s Discovery request for

documents, Ocwen admitted W_______’s counter-claims.

Papers filed into Court record:Two requests for validation/verification were sent to Ocwen, one dated 2/20/09 before Complaint filed, the other on 6/26/09.First Request for Production of Documents sent to Ocwen 8/26/09, filed as Exhibit F on 8/26/09.Ocwen had 30 days to respond, pursuant to Wis. Stats. 804.09 (response date: 9/26/09).Ocwen responded 10/14/09, 18 days late.


None of the requested documents were presented. Their “response” consisted of previously filed documents, which did not meet the requirements of the Discovery request, which would have proven W_______’s counterclaims. Nothing submitted proved Ocwen’s ownership of the mortgage and note, and therefore Ocwen did not have standing.Ocwen was given a date, time and place to present original note and mortgage, and failed to show up or make any attempt to arrange another meeting time (See Exhibit F, #17).Motion to Compel Production of Documents, filed 12/17/09. Ignored by Judge, and Summary Judgment against me issued at same hearing with no discussion of Ocwen’s failure to produce documents.Exhibit F: First Request for Production of Documents from Ocwen, filed 12/11/09Exhibit G: Plaintiff’s Response to Defendant’s First Request for Production of Documents from Ocwen, filed 12/11/09Notice of Facts #1, filed 8/26/09Notice of Facts #2, filed 11/11/09

A court "cannot confer jurisdiction where none existed and cannot make a void proceeding valid." People ex rel. Gowdy v Baltimore & Ohio R.R. Co., 385 Ill. 86, 92, 52 N.E.2d 255 (1943).

33 Am. Jur. Proof of Facts 3d 459, II. Elements of Proof, and Sect. 24, states “severe sanctions are warranted for discovery failures” where the following facts and circumstances establish proof of grounds for imposition of discovery sanctions when the responding party has failed to properly respond to a discovery order with:1. Proper service of discovery request2. Responding party’s failure to respond to discovery request3. Failure to appear or designate a witness to testify at deposition4. Failure to serve written response to interrogatories or to request for production of documents or other materials

4. Judge usurped Jurisdiction where none existed.

Ocwen never proved standing. W_______ never knowingly gave jurisdiction to the Court, and

made it clear throughout the eight months that Ocwen had no standing, the Court had no

jurisdiction, and that W_______ did not consent to the proceedings for those reasons…

however the Judge made a judicial decision contrary to all law that he did, in fact, have

jurisdiction, and forced that jurisdiction on W_______, against all objections.

“A void order, which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally,” People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994).

"Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud." (7 Witkin, Cal. Procedure, supra, Judgment, § 286, p. 828.). Section 437, subdivision (d), provides that a court, on noticed motion, may set aside void judgments and orders. Courts also have inherent power to set aside a void judgment. (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.).


5. Judge allowed fraudulent and perjured affidavits and documents from

Ocwen, and totally ignored W_______’s affidavits

Affidavits were signed by Ocwen’s lawyers, who had no personal knowledge and were not

competent fact witnesses. Motions to strike those affidavits were denied. W_______’s

affidavits were not considered at all. Not one competent fact witness was ever in the Court.

Ocwen’s pleadings make no allegation of how, when, where, or under what circumstances,

or by what method or mechanism Ocwen allegedly became an “owner” or “holder” or came

into possession of the alleged Note.”

Papers filed into Court record:Notice of Objection to Challenge Testimony, filed 7/13/09… IGNORED.Affidavit in rebuttal to Ocwen’s Affidavits, filed 9/14/09… DENIED.Affidavit Concerning Possible Fraud, filed 7/13/09… IGNORED.Notice of Objection to Challenge Testimony, and Motion to Strike, filed 9/14/09… DENIED

6. Judge denied addition of necessary parties to suit

W_______ requested necessary parties be added to the lawsuit, so the truth and facts could

be brought forward through witness and documents necessary to prove W_______’s counter-

claims.

Papers filed into Court record:Notice and Motion for Joinder of Necessary Parties (with Brief in support of) filed 10/16/09… DENIED.

7. Judge allowed illegal copies, instead of originals

W_______ demanded proof of standing by way of the ORIGINAL Mortgage and Promissory

Note, including all endorsements required by law. Judge allowed a copy, with no

endorsements, and upon that fraudulent “evidence” gave summary judgment to

Ocwen.


In addition, the copy of the promissory note was signed “In Blank”, signed over to anyone

apparently who had a copy of said promissory note, of which there is no way to know WHO

has copies. In addition, said promissory note was “signed” with scribbled and unreadable

initials.

Note also that on the date W_______ filed the Temporary Restraining Order (2/2/09), she was

handed the court file to see the documents filed since the Summary Judgment, as she had

requested copies of that information, which she had never received. Upon examination of

the court file, W_______ discovered that:

A) the one piece of “evidence” (fraudulent promissory note), Ocwen had miraculously produced (after eight months) on 12/17/09,B) upon which fraudulent evidence the Court made their summary judgment on 12/17/09 with material facts unresolved,C) which evidence W_______ had specifically asked to be added to the court file as she knew it was fraudulent but was not at that time sure of how to fight it, D) which the Judge had specifically said WOULD be added to the court file as evidence, E) was NOT IN THE COURT FILE.

A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91).

8. Judge allowed illegal “Assignment of Mortgage”

Judge allowed an “Assignment of Mortgage” that was signed by known robo-signer Scott

Anderson and notary Leticia Arias, who had no personal knowledge, and at this point in time,

its unknown if these two individuals even exist. Scott Anderson and Leticia Arias did NOT

sign the Assignment of Mortgage… these are forged signatures (see Exhibit K2). In addition,

it was assigned by MERS “as nominee”, which designation has been rejected as having no

legal authority in courtrooms across the country, and MERS is being investigated by

2 Exhibit K, page 1, taken from page 36 of “Unfair, Deceptive and Unconscionable Acts in Foreclosure Cases, prepared by June M. Clarkson, Theresa B. Edwards and Rene D. Harrod for the Office of the Attorney General, Economic Crimes Division (See document called “Florida-Attorney-General-Fraudclosure-Report-Unfair-Deceptive-and-Unconscionable-Acts-in-Foreclosure-Cases.pdf” on the attached CD, incorporated fully herein).


numerous Federal and State agencies for their part in this fraud, and in the later production

of these fraudulent documents by Lender Processing Services.

LPS is now under a federal criminal investigation by the U.S. attorney's office for the middle

district of Florida for alleged false, fraudulent, and forged assignments of mortgages, deeds

of trusts, and deeds to secure debt used by the “foreclosure mill” law firms3and their

servicer clients in an attempt to establish standing and authority to foreclose and recreate

chains-of-titles to mortgages and promissory notes that have been intentionally and

admittedly lost and/or destroyed to conceal the fact that the real and lawful owner of such

promissory notes.

8. Judge ignored request for trial by jury and proceeded to illegal Summary

Judgment

Judge allowed NO trial in between presentation of fraudulent Promissory Note and Summary

Judgment. Judge “read” my 60+ counterclaims and dismissed them all as unimportant, all

of which were dependent on the Discovery documents requested to prove W_______’s

counter-claims, and which Discovery documents were denied. The reading of counter-claims

and denial thereof, took approximately 3 minutes, before Summary Judgment was

pronounced. No material facts were EVER discussed.

Papers filed into Court record:Notice and Demand for Jury Trial, filed 8/26/09, pursuant to Wis. Stat 805.01(02)Judicial Notice – Summary Judgment in Wisconsin, filed 12/17/09

A judgment is void on its face if the trial court exceeded its jurisdiction by granting relief that it had no power to grant. Jurisdiction cannot be conferred on a trial court by the consent of the parties. (Summers v. Superior Court (1959) 53 Cal. 2d 295, 298 [1 Cal. Rptr. 324, 347 P.2d 668]; Roberts v. Roberts (1966) 241 Cal. App. 2d 93, 101 [50 Cal. Rptr. 408].)


PLEASE TAKE NOTICE REGARDING WISCONSIN SUPREME COURT RULINGS REGARDING

SUMMARY JUDGMENT, EVIDENCE AND BURDEN OF PROOF:

The Supreme Court of Wisconsin stated in AccuWeb: “As we noted previously, summary judgment is appropriate only if there are no genuine issues of material fact, and the moving party, having established a prima facie case, is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). Furthermore, summary judgment materials, including pleadings, depositions, answers to interrogatories, and admissions on file are viewed in the light most favorable to the nonmoving party. Rainbow Country Rentals, 286 Wis.2d 170, ¶ 13, 706 N.W.2d 95. Also, the “burden is on the moving party to prove that there are no genuine issues of material fact.” Central Corp. v. Research Prods. Corp., 2004 WI 76, ¶ 19, 272 Wis.2d 561, 681 N.W.2d 178.” AccuWeb, Inc. v. Foley & Lardner, 308 Wis.2d 258, ¶ 21 (2008).

W_______ DOES NOT CONSENT!

As stated repeatedly and clearly throughout all her motions and “on the

record” in the court, because Ocwen does not have standing, and the Court

does not have jurisdiction!

CONCLUSION

This document may be incomplete as I was given all of five days to research and prepare it,

at the same time as having to try to pack an entire household. The listing here of filed

papers is only a small part of my written documentation. When asked if there was anything

I should be doing in that five days, the Judge said, “PACK!” making it clear he intended to

rule against me, ignoring all law and the Constitution he took an oath to protect and defend

against all enemies, foreign and domestic, yet again.

At the absolute bare minimum, Ocwen was required to produce the ORIGINAL Promissory

Note and Mortgage, together with all endorsements directly on those documents, and/or a

securely attached allonge, in order to prove standing. In fact, those documents by law

should have been brought forward immediately when requested, and in fact, should have

been in their possession as holders in due course at the time of filing of the original

Complaint. All DENIED AND IGNORED by Judge! If standing had been proven, THEN


Discovery and trial by jury could move forward. Instead this Court went from fraudulent

documents to summary judgment within a matter of about five minutes, ignoring the

multitude of material facts, not one of which was dealt with.

The judge was polite, patient, did not display irritation, and only a little sarcasm, as he

systematically stripped me of all due process rights. I do not think his impartiality was

based on personal bias or prejudice. I believe he was following “standard procedure” for

foreclosure cases, attempting to efficiently expedite cases out of the court system, and at

the same time maintain the status quo. However, with the clear fact that the entire

mortgage system is based upon fraud ab initio as evidenced in hundreds or thousands of

litigating cases nationwide, and the fact that Ocwen and its lawyers clearly do not have

standing and have committed fraud upon the court, it was and is the Judge’s duty to follow

the law and demand Ocwen prove standing or dismiss the case with prejudice, irregardless

of how foreclosures have been handled in the past. He chose instead to give Ocwen

summary judgment, despite all Federal and State law to the contrary.

"State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law." The Judge has deliberately violated W_______’s personal liberties and/or has wantonly refused to provide due process and equal protection and has behaved in a manner inconsistent with that which is required for full, fair, and impartial hearings.

RELIEF

The United States Constitution3 guarantees an unbiased Judge who will always provide

litigants with full protection of ALL RIGHTS. Therefore, W_______ respectfully demands one

outcome of these three:

3 Article 6 of the United States Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” "The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law." This is applicable to this court by application of Article VI of the United States Constitution and Stone v Powell, 428 US 465, 483 n. 35, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976).


1. Void the illegal summary judgment made on December 17, 2009, which was made

with all material facts still at issue; OR

2. Dismiss this case for lack of subject matter jurisdiction with prejudice; or

3. Judge recuse himself in light of the evidence detailing unethical and/or illegal

conduct, “in which his impartiality might reasonably be questioned,” and “if a

reasonable person, apprised of all the facts and circumstances, would question

the judge's impartiality.”

A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91).

Copies of all relevant documents, including this one, will be sent to a number of Federal and State agencies that are presently looking into the corruption and fraud swirling around the foreclosure industry, with instructions to either start an investigation or to include my information into their existing investigations regarding acts of felony conspiracy (RICO).

“Plaintiffs have the burden of establishing standing.” Loren v. Blue Cross & Blue Shield of Michigan, No. 06-2090, 2007 WL 2726704 at *7 (6th Cir. Sept. 20, 2007). “If they cannot do so, their claims must be dismissed for lack of subject matter jurisdiction.” Id. (citing Central States Southeast & Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2nd Cir. 2005).

This documented signed on the 7th Day of February, 2011, by:

______________________________ Name W_______, Pro SeAddressPhone

Maxim of law:

Fraud vitiates all contracts!

CERTIFICATE OF SERVICE


I hereby certify that a true and correct copy of each of the afore-listed documents was served upon counsel for Ocwen, Blommer Peterman, and counsel for Federal Home Loan Mortgage Corporation, Gray Associates(?), or whomever is in court on February 7, 2009 regarding this matter. Service was by hand.

Signed the 7th day of February, 2011 by:

___________________________ __ W_______
