THE DECONSTRUCTION OF KRIEGEL V.

MERS, GREEN TREE SERVICING, LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION On October 13, 2011, Judge Allen Rubine, MERS Court, Superior Court of the State of Rhode Island, issued a Decision in the case of Kriegel v. MERS, No. PC-2010-7099, 2011 Super. LEXIS 134 (R.I. Super. Oct. 13, 2011). Rhode Island Supreme Court. The Kriegel decision, like the already deconstructed decision of Payette v. MERS, No. PC-2009-5875 (R.I. Super. August 22, 2011), has been received by the foreclosure community with great joy. It has been heralded as a great and thoughtful decision by MERS and its compatriots. The truth of the matter is that the Kriegel decision is flawed beyond comprehension and reclamation. What it truly stands for is the proposition that the MERS Court does not understand at all what MERS is, what is does, what it can do and what it cannot do, all within the framework of the laws of the State of Rhode Island. This document will expose the multiple flaws in Kriegel which can only lead to a conclusion that it cannot and should not be relied upon by other Courts in Rhode Island when faced with a MERS case. The problem, of course, is that Judge Rubine authored both Payette and Kreigel and is unlikely to overturn his own decisions, but notwithstanding that fact, the decision must be deconstructed so it is not used by other Courts in Rhode Island or in other States across the County as precedent. Nothing can be taken from the Kriegel decision by this Court or any other Court because Kriegel is fatally flawed from its very first paragraph under the heading of Fact & Procedural History. At line (1) one, the Court incorrectly wrote that Kriegel "executed a note and mortgage in favor of lender." This was not alleged and this is not what happened. The purported mortgage was executed in favor of MERS in a nominee capacity. It was not executed in favor of Bank United. Line (3) three of this same section, states that Bank United "mortgage, grant, and The Kriegel Case has been appealed to the

convey the mortgagee interest to MERS." This too is false and legally impossible. Bank United could never mortgage property that it did not own. Based upon these two sentences, if taken as true, there was never a valid mortgage on the Kriegel property which would render the rest of the decision needless. Simply put, as in Payette, where the same factual error was made1, the Court proves that it did not understand the original loan transaction. Bank United never assigned the mortgage to MERS because Bank United was never the mortgagee nor was it the owner of the fee in the property. The next sentence offers even more proof that the Kriegel Court ruled in error because it did not understand the loan transaction. As this Court knows from Bucci and from the plethora of other cases and learned treatise regarding MERS, MERS is not a financial institution and it is never a lender.2 The Kriegel Court wrote erroneously wrote that "At the time of the Plaintiffs' execution of the Note and Mortgage the Court finds that MERS is both the lender as nominee of Bank United and the mortgagee, entitled to exercise the statutory power of sale." This would mean that MERS had to be named as the Payee on the Note. This is an utter impossibility and not true based upon the documents in the record. MERS is not a lender and identifying it as a lender in Kriegel exposes the fact that the Court does not understand the MERS paradigm and renders the decision totally impotent. In one paragraph that being the first paragraph, the Kriegel Court made three

massive errors which render the entire decision a virtual nullity. It would be clear error for this Court or any other Court to rubber stamp Kriegel knowing what it knows about MERS and how it actually works.

Counsel for the Movants claimed that in Payette this clearly inaccurate statement was a mere misquote. Now the same misquote appears in Kriegel leading to the inexorable conclusion that it was not a misquote, but a total misunderstanding of the transaction that the litigation is centered around. 2 Law Review Article

The errors continue in paragraph 2 of the Facts & Procedural History Section of the Decision. In paragraph two entitled Facts and Procedural History, the Kriegel Court, which in paragraph (1) one identified MERS as the Lender, states that Bank United was the Lender. One thing is certain and that is there was only one lender in this transaction. This is a fact that the Kriegel Court did not understand from the very beginning of its analysis of this matter. These paradoxal statements render the Kriegel Decision nothing more than a dead and dying albatross. In Section II of the Kriegel Decision, entitled Standard of Review, at paragraph (4) four, the Court once again shoots itself in the foot by stating that the mortgage document, which is signed only by Kriegel and not by any other party, including MERS and Bank United, appoints MERS the nominee for Lender. To be clear, the Kriegel record is devoid of any document whereby MERS is appointed the Nominee of Bank United. This is a conclusion reached by the Court based upon no evidence of any type. In fact, there is no document in any MERS case before the MERS court that shows that there is contract between MERS and any Lender, Servicer or Note Holder. There is no power of attorney before the Court between MERS and any other party. There is nothing to prove that there is a contract that satisfies the Statute of Frauds3 in the record of this case and certainly, it cannot be held that the Borrower can nominate MERS as an agent of another party. In other words, the Borrower cannot create a valid and binding contract between MERS and any other party. In the last paragraph of Section II, the Court again makes a fatal error. It writes that in Payette, Porter and Bucci that, as a matter of law, foreclosure sales conducted by MERS or one of MERS' assignees were valid. Payette has already been addressed in the Deconstruction of Payette and the Bucci Court never opined that MERS or one of its assignees may foreclose. The Bucci Court's decision was far more limited than incorrectly stated by the Kriegel Court. If the
3

Statute of Frauds in RI

Kriegel Court is going to rely on Bucci, it should understand what that Court said and not try to make it into something that it was not. Section A, entitled BANKUNITED'S DESIGNATION of MERS as the MORTGAGEE in the MORTGAGE INSTRUMENT, contains nearly a score of errors. In fact, the very title of the section is an error. Bank United never designated MERS as the Mortgagee in the Mortgage Instrument. Only the borrower, by signing the Mortgage document, could designate MERS as the Mortgagee. Again, it is patently clear that the Kriegel Court did not understand the nature of the Kriegel mortgage transaction from the outset. If it baffling that the Court could refer to the mortgage itself with such resolve and then make statement after statement that is not included in the Mortgage. This is why Kriegel must be ignored as precedent by any and all Courts that consider MERS cases. The very first sentence in paragraph one of this section references certain paragraphs of the instant complaint. (14, 19-21) A review of these allegations reveals that the "Plaintiff did [not] allege that Bank United's designation of MERS as mortgagee was contractually invalid." To be crystal clear, Kriegel never claimed that Bank United designated MERS as anything. In fact, the clear and concise pleadings, when read together with the documents relied upon by the Court; prove beyond a reasonable doubt that Bank United never designated MERS as the Mortgagee. This begs the question, how would Bank United, the Lender and not the owner of the property, designate [mortgage] the property to MERS. This is an absolute legal impossibility. The Kriegel Court went on to write that the Plaintiff claimed that the designation of MERS as mortgagee by Bank United was contractually invalid. That is not at all what was claimed by the Plaintiff in (22-23, 48). In fact, there is no possible way to construe these paragraphs of the complaint to allege what the Court has stated. Kriegel's counsel and this

counsel clearly recognize that there is never a designation of MERS as nominee by the Lender. Paragraph 22 states that RI Law, Title 34, does not recognize a nominee or nominee mortgagee as a valid estate. Paragraph 23 states that MERS is not the lender. Paragraph 48 alleges that a MERS type transaction separates the mortgage from the note. The statement of the Court is clearly erroneous. The first Sentence of Paragraph 2 of Section A, is also untrue. To be clear, there is no allegation that Bank United designated MERS as mortgagee and nominee. There is a statement in the Mortgage that claims that MERS is the nominee and mortgagee, but there is no written proof that Bank United and MERS have any form of contractual or principal agent agreement. There is no written contract between MERS and Bank United in the chain of title or in the Court file. This is a conclusion reached by the Kriegel Court that is not supported by any evidence at all. Certainly, since any contract between MERS and Bank United would be related to conveyances of real estate, it would have to meet the standards as set forth in the Statute of Frauds. Since there is no contract, it is impossible to ascertain where or not the Statute of Frauds is satisfied. It appears that the Court simply guessed at this particularly important issue. Incredibly, the Kriegel Court wrote that "[i]t will not accept 'facts as true which are legally impossible...or which by the record or a document attached to the complaint appear to be unfounded.'" It went on to write that "In the case of conflict between the pleading and the exhibit, the exhibit controls." In Kriegel, the Court actually created its own impossible set of facts. The Kriegel Court is flat out wrong when it concludes that Bank United designated MERS as mortgagee and nominee for Lender. The true impossibility would be for a lender, not a property owner, to grant a mortgage to MERS. This is true beyond a reasonable doubt and for that reason alone, Kriegel must fall. Further, the exhibits to which the Court refers do not

support in any way the conclusions reached by the Court. There is no document and no evidence and no contract whereby Bank United designated MERS as mortgagee and nominee. This is a legal impossibility. This blunder neuters the Kriegel holding!

In actuality, there is no conflict between the pleadings and the exhibit. Simply put, the Court misread and misunderstood the pleadings and read into the exhibit in a manner inconsistent with the common meaning of the words contained therein. In Paragraph (3) of Section A, the Court once again fumbles its words and its conclusion is wide of the mark, when it writes that "It is clear beyond a reasonable doubt that Bank United's designation of MERS as mortgagee is binding as Plaintiff acknowledged by his signature thereon." This statement seems to infer that by signing the mortgage, Kriegel created a contract between MERS and Bank United. This is the legal impossibility that the Court failed to recognize and which, in fact, it adopted as the law. A third party, such as Kriegel, by signing a mortgage, unsigned by any other party, cannot create a contract between other parties. Kriegel could only contract for himself. This very simple point was totally missed by the Court and again, renders the Kriegel decision a very powerful and misleading misstatement of the law. This case cannot be looked upon as any form of legal precedent due to its countless factual errors of fact and the law. 26 and 48 do not make any such contention. Unfortunately, the errors continue to flow like a river to the sea in Paragraph (4) four of Section A. The Court writes that the Plaintiff alleged that Bank United could not designate MERS as the mortgagee because the designation disconnected the note and the mortgage. The Court referenced specific portions of the complaint in regard to this contention. It pointed to 26 and 48 of the complaint. In fact, Paragraph 26 states that "The Assignment fails to state that the Note was assigned. (See FNMA NA v. Emmanuel, 2010 NY Slip Op 50819 -- MERS

assignment was a 'nullity' for failure to assign the note." Paragraph 48 states that "Since MERS was never assigned the Note and, by its' own definition, never accepts payments, an entity such as MERS that separates the mortgagee and the note holder from the deed's inception cannot exist under Rhode Island General Laws." While it is true that the Plaintiff alleged that the note and mortgage are bifurcated when the lender and MERS are not the same party, a fact which is beyond contestation, the Plaintiff never even insinuated that Bank United was prohibited from designating MERS as the Mortgagee. The Plaintiff did not allege this because this was not something that happened or that could legally happen. The Court, in its mind, has misconceived the "MERS Closing." It mistakenly believes that Bank United somehow makes MERS the

mortgagee. This is legally impossible since Bank United has no interest in the real property being mortgaged. All that follows from this flawed premise is a misplaced legal conclusion. As stated earlier, the only party that can "appoint" a mortgagee as mortgagee by way of a mortgage deed in Rhode Island is the mortgagor. (citation) something to support this. Blacks Law, put in Def of Mortgagor and Mortgagee to prove this point. It is important to note that the Court and the Defendants, at paragraph (4) four finally acknowledge that there is a Rhode Island Statute that governs real estate conveyances. This passing reference to the Conveyance Statute is the only one made by the Kriegel Court and it doesn't even recite the entire statute, as if to avoid applying its clear and concise language to the case before it. Further, the Court claims that the Defendants claim that Bucci and Porter stood for the proposition that MERS could assign. Bucci never addressed the issue of assignments because it was a MERS foreclosure so there was not assignment of mortgage even at issue. The Porter case involved a MERS foreclosure so there was no issue before the Court related to a purported MERS assignment. In fact, the word disconnection never even appears in the Porter

Decision. Finally, neither Bucci nor Porter ever argued or alleged that any party other than the Mortgagor could make MERS a mortgagee as the Court has erroneously ruled in Kriegel. At Paragraph (5) of the same section, the Kriegel Court incorrectly writes that "It is clear beyond a reasonable doubt that Plaintiff cannot prevail on its claim." The Court relies on Payette, which most certainly misconstrued and misapplied Bucci and Porter. Neither Bucci nor Porter held that an assignment of the mortgage to MERS, together with the designation of MERS as the nominee of the lender and lender's successors and assigns, does not fatally disconnect the note from the mortgage." A reading of Bucci and Porter will reveal this to be true. In fact, the only reference to the word disconnect appears in Bucci in a quote from In re Huggins, 357 B. R. 180 (Bankr. Mass. 2006) which is based upon Massachusetts Law and which does not translate well to Rhode Island mortgages because of the difference between Massachusetts and Rhode Island Foreclosure Law. What is clear, however, is that even in Huggins and in Bucci, the Courts held that the party that was foreclosing had to have both the note and mortgage at the time of the commencement of the foreclosure action. That was not the case in Porter, Payette or this case. Further, the Kriegel Court wrote that in Huggins...., the Court" specifically held that no disconnection occurs when the borrower and lender agree to assign the mortgage interest to MERS and appoint MERS as the lender's nominee." This is pure fantasy. In Huggins, MERS was the party foreclosing so there was no assignment to rule upon. The Kriegel Court clearly did not read Huggins with a well focused eye. Also, the Bucci and Huggins decisions do not

state anywhere that the borrower and lender agree to assign the mortgage to MERS. The Kriegel Court has again misread what another Court has said. Also, there is no language in Bucci or Huggins that even suggests that a borrower can ever appoint MERS as the lender's

nominee. Only the Lender can appoint MERS as its nominee and there is no evidence in Bucci, Huggins, Porter or Payette that supports this statement by the Kriegel Court. The conclusion of the Court at line (1) of Paragraph (5) five is, therefore, supported by none of the statements that follow it. It must collapse under the weight of its own error laden statements of fact and law. At Paragraph (6) of this same section, the Kriegel Court makes the outrageous claim that there is "'voluminous and well-reasoned authority" of diverse jurisdictions that have found that no disconnection occurs under these circumstances."' It then points to Payette,

which already been picked apart beyond recognition as support for that statement. Payette cited Bassilla et a vs. GMAC Mortgage...., is an unreported case but for its use in Payette and Kriegal. In Flynn, another unreported case, the foreclosing party either had possession of the note or the assignees rights were dependent upon ownership of the note. It is interesting to note that these two cases are cited nowhere else in the County except in Payette and Kriegel. In regard to Merino v. EMC Mortgage Corp, 2010 WL 1039842 (E.D. Va. 2010) that case is based on Virginia law, which is quite dissimilar to Rhode Island Foreclosure and Property Law. Further, it involved a case with Deeds of Trust, not a Mortgage. Further, in Virginia, splitting the Deed from the Note does not render it unenforceable because under their statutes a transfer of the debt automatically carries with it the security without formal assignment or delivery. That is not the state of the law in Rhode Island and runs contrary to the holdings in cases such as Bucci. In regard to Jackson, In regard to Jackson v. MERS, 770 N.W. 2d 487, 503 (Minn. 2009), the Court did not uphold the MERS system, it simply upheld a statute adopted by the State of Minnesota, Minn. Stat. 580.02 and 580.04. The dissent in this case, however, penned

by Justice Page, offers a crystal clear picture as to why MERS and the MERS system should not find favor with the Courts: "Finally, it is apparent with the benefit of hindsight that the ability of lenders to freely and anonymously transfer notes among themselves facilitated, if not created, the financial and banking crisis which our country finds itself. It is not only borrowers but also other lenders who rightfully are interested in who has held a particular promissory note that has become worthless may have an interest in knowing the hands through which that note passed. Under the MERS system, however, the identity of those previous holders is as shielded from the lender's view as the borrower's. As a result, of the court's holding, namely, that mortgage transfers between MERS members need not be recorded before a mortgage can be foreclosed by advertisement, neither borrowers nor lenders will ever be able to hold anyone in the chain of transfers accountable. That is not sound public policy."

Based upon its total misunderstanding of these miniscule cases in the realm of thousands of MERS cases across the Country and the propositions that they allegedly set forth, the Kriegel Court concluded that it was clear beyond a reasonable doubt that Plaintiff would not be entitled to relief under any set of facts relating to the claim that the designations set forth in the mortgage instrument, as accepted and signed by the Plaintiff, run contrary to the position "that such a designation by the Lender of MERS as mortgagee and nominee for Lenders was legally defective." The Kriegel Court limited its search in coming to its salacious conclusion that the Plaintiff had not made out a case under any set of facts. To be clear, the Kriegel Court never understood the facts as proven by its countless misstatements of the case. In this particular section, it again claims the impossible; that MERS was designated the Mortgagee by the Lender and not by the Borrower. That conclusion is a legal impossibility from Coast to Coast. Finally, The Kreigel Court, in the last sentence of this section ends its analysis with a resounding thud by once again claiming the impossible. Bank United could not and did not

designate MERS as the mortgagee and lender's nominee by way of the mortgage document. 4 Bank United did not sign the document, therefore, it creates no contract between Bank United and MERS. The concept that a mortgage can do more than what create a lien on real property to secure a debt is nothing more than legal hocus pocus. Standing The Kreigel Court misconstrues the complaint when it states that the Plaintiff alleges that the assignment is merely invalid. A close review of the complaint reveals that the claim of the Plaintiff is that the assignment is void as a matter of law. (RIGL 34-11-1, et seq.) This is quite different than a claim of invalidity or void ability. (Put Definitions of all three from Black) The Court states, in a rather unclear manner, that MERS acted as assignor to the interests it had. According to the complaint, which according to Rule 12 of the RI Superior Court Rules of Civil Procedure, must be taken as true, the Plaintiff alleged that the mortgage itself was void. The Court never mentions that allegation in its flawed analysis of this case. (Trent case can fit in here) In paragraph (2) two of the Standing Section, the Kriegel Court relies on its already deconstructed decision in Payette. In Payette, the Court, as a mere afterthought, and without any legal support, concluded that mortgagees in Rhode Island could not challenge assignments of their mortgage. In Keiegel, the same Court, relied on Payette and then went on to justify it holding regarding standing by referring to several Rhode Island cases that did not involve real estate. Anyone who reads this knows that real estate occupies a special and unique place in the law. Each and every state has its own laws regarding real property. In a large party, basic common law principles are displaced by statutory constructs enacted by the legislatures of each
4

Define Contract Blacks Law. Put in a RI Case

and every state. The same is true in this case. Rhode Island General Laws 34-11-1, et seq is the Conveyance Statute by which all real estate transactions in the State of Rhode Island are controlled. There are other statutes in Rhode Island that relate to real estate, but even those must all come back and be in compliance with 34-11-1, et. seq. In this case, the Court claims, in regard to a property owner challenging a real estate transaction which arguably was made pursuant to 34-11-1, et seq, and in particular, 34-11-24, that said property owner does not have standing to challenge assignments of mortgage in his chain of title. The Court comes to this conclusion and it never mentions one word about the Statute in its analysis. The Plaintiff in this case is overwhelmed by the concept that his property can be foreclosed on by a party who has no right to foreclose and he has no standing to challenge that foreclosure. That flies in the face of any concept of Due Process on a State and Federal Level. It also flies in the face of 34-11-1,et seq., and of the mortgage contract itself. What the reader must understand is that in Kriegel and in its predecessor cases relating to assignments, no statutory analysis was ever done by the Court. In essence, the Court did not do its work and reached a conclusion that is unsupported by Statute. In fact, the Court by ignoring the Statute, ignored the will of the People of the State of Rhode Island and interposed his own, singular belief, on an entire class of homeowners with mortgages. This simply cannot stand in the United States of America.

The first case cited by the Kriegal Court in support of its holding that "the assignment from MERS to FNMA did not cause injury in fact to the Plaintiff, as the assignment did not change his obligation to timely pay the Mortgage Note or suffer the consequences of foreclosure" is Pontbriand v. Sundlun, 699 A. 2d 856 (R.I. 1997). The Plaintiff finds it remarkable that the Kreigel Court would find that the loss of one's home or real property is not

an injury in fact. The Plaintiff is quite certain that the Pontbriand decision supports his claim that he has standing to allege that the assignment if "void" pursuant to RIGL 34-11-1. The Kreigel Court has concluded that a mortgagor/homeowner does not have the right to invoke the statutory protections of 34-11-1. This is beyond belief and cannot be accepted by rationale people. Further, the Plaintiff believes that the Pontbriand Court supports his claim that he has standing to challenge the assignment from MERS to FNMA as void under RI Statute. The Pontbriand Court wrote that:

"The line is not between a substantial injury and an insubstantial injury. The line is between injury and no injury." Matunuck Beach Hotel, Inc. v. Sheldon, 121 R.I. 386, 396, 399 A.2d 489, 494 (1979) (quoting Davis, Administrative Law of the Seventies 22.02-10 at 507 (1976)). See also Blackstone Valley Chamber of Commerce vs. Public Utilities Commission, 452 A.2d 931, 933 (R.I.1982)." [emphasis added] The Plaintiff in this case, in Porter and Payette all alleged that they had been damaged by the Defendants' violation of Rhode Island Statute, to wit 34-11-1. Each filed an action to quiet title because of wrongful entries on their chain of title. Each alleged that they were going to be foreclosed upon by a party that did not own their mortgage and that did not own their note. Each alleged that the assignments, and all of them were void as a matter of law. Each alleged that if the assignments were not found to be void, then they would be foreclosed upon by a party that did not have legal title to their mortgage. Each claimed that they would lose their property if the Court did not follow the Statute and find the assignments and foreclosures void. Each of them claimed that they would be injured. Each of them claimed that they would lose their homes and real property. Is this not an injury as defined by Pontbriand, a case cited by the Court to support its whimsical conclusion that the Plaintiff would not be injured by a void assignment and wrongful foreclosure? Any Rhode Island homeowner who is foreclosed upon by a party has not

right to foreclose suffers an injury in fact, regardless of whether or not they are behind on their mortgage note payments. The illogical holding of this Court means that even a person who is not behind on his or her mortgage payments has no standing to challenge an assignment of his mortgage which leads to a foreclosure. This is just plain absurd.

To be even more precise, Kreigel states that it is clear beyond a reasonable doubt that injury and the injury to Porter and Payette is very real. The damage is that they lose their

homes and real property to a party that does not have the legal right to foreclose because they do not have the legal right to pursuant to Rhode Island Law. The Court's conclusion that there is no injury because the assignment does not change his obligation to pay his note is pedestrian at best. The obligation to pay the note to the person who is entitled to collect on the note. The obligation this case, Porter and Payette is disputed. None of the people are obligated to pay anyone who is not entitled to payment. Further, the consequence of non-payment may well be foreclosure, but foreclosure by a party that has the right to foreclose. That is what is at issue in this case and all similar cases. It is not merely about money, it is about the loss of one's property to another who has no right to it. How can this be lost on this or any other Court? The ruling that homeowners lose nothing when their homes are taken by others who are strangers to title is bizarre and deplorable to rationale people in a civilized and democratic society.

It also appears that the Kreigal Court reached the wrong conclusion that Plaintiff was trying to raise another person's legal rights. Nothing could be further from the truth and there is not a single allegation in the Complaint standing alone or when read together that could lead to this conclusion. In fact, the Plaintiff agrees that one cannot raise another's rights. In the case at bar, the only rights the Plaintiff seeks to protect are his own and in particular, his right to own his

property and not to have it taken from him by a person or entity that does not have the right to do so. When filtered down to its essence, the claim of loss and injury by the Plaintiff is really quite simple, unmistakable and very real.

At paragraph (4) of the Standing section, the Court again totally mischaracterizes the allegations of the Plaintiff in his complaint. Paragraphs 10-14 of the complaint do not contend that the assignment was contractually prohibited. Further, paragraphs 20 and 36 cannot even be construed in the most liberal manner possible to allege what the Court has said they do. Again, the Kriegel Court never understood the claims made by the Plaintiff. The allegation at

paragraph 48 claimed that MERS cannot even exist under the laws of the State of Rhode Island. Paragraph 48 of the Complaint never made allegations regarding the legality of or illegality of a MERS assignment. Finally, paragraphs 27-31 have nothing to do with a fraud. It is beyond any doubt at all that the Court has totally misread the complaint rendering its decision and reasoning to support it untenable.

Paragraph (5) of the decision is even more perplexing. The Court states that "It is undisputed, and clear as set forth in the complaint, that Plaintiff is not a party to the MERSFNMA Assignment. This statement is beyond comprehension. Not only is the assignment in dispute, it is alleged that the assignment is void as a matter of law. Clearly, the Court simply does not understand the plain, clear and simple averments made by the Plaintiff in the instant complaint. The conclusion reached by the Court in the following sentence of its decision, is clearly based upon its erroneous finding that there was no dispute relative to the MERS to FNMA assignment. That is what the whole case is based upon. The Court cannot disregard everything that the Plaintiff wrote in his complaint and then attach its own skewed meaning to

the words that are written in black and white. The conclusion that the Plaintiff lacks standing under "these documents" makes no sense whatsoever. There is no question that the documents, including the complaint, say what they say, but it is not the documents that control whether or not the Plaintiff was a party to the assignment; it is the Rhode Island Conveyance Statute. The Court has completely ignored the Rhode Island Statute that controls each and every portion of this case and for that reason, its decision is defective.

If furtherance of the argument that the Kriegel Court has determined that RIGL 34-11-1 and 34-11-21, 34-11-22 and 34-11-24 do not control real estate conveyances in Rhode Island, it writes "[A]n assignment5generally requires neither knowledge nor the assent of the obligor, [and] because an assignment cannot change the obligors performance." Am Jur 2d Assignment 2.6 The Court cites Brough v. Foley, 525 A.2d 919 (R.I. 1987). The citation provided by the Court relates to the Superior Court decision. It was appealed and heard by the RI Supreme Court. That decision is reported at Brough v. Foley, 572 A. 2d 63 - (RI: Supreme Court 1990). The Brough decision related to a Plaintiff's standing to challenge the Assignment of Option to purchase real estate. It had nothing to do with an assignment of an interest in real property as governed by RIGL 34-11-1. Further, even though the Brough case deals with simple contract law as it relates to assignments and not to the assignment of mortgages, the Supreme Court in that case stated that "Although we reached a decision adverse to plaintiffs on the issue of standing in Brough v. Foley, 525 A.2d 919 (R.I. 1987), we cannot say that the belief that they had standing was groundless." [emphasis added]. The Kreigel Court took from this case, which clearly left the

This reference is not to assignments of mortgages as affected by Rhode Island General Laws 34-11-1 and 34-1124. 6 This section applied to assignments of

issue of standing wide open, that a Brough Rule had been adopted by the RI Supreme Court. This statement is groundless and gratuitous to say the least. There is no such thing in Rhode Island as the Brough Rule. The Court then went on to cite as authority for the Brough Rule and its conclusion regarding standing, Fryzel v. MERS, 2011 U.S. Dist. LEXIS 95114 (D.R.I. June 10, 2011). There was no holding in Fryzel for the Court to rely upon. What the Court improperly relied upon and misstated as the holding of the Federal District Court was a mere Report and Recommendation that has never been adopted by the Rhode Island Federal District Court. Stating that the RI Federal District Court "held that a property owner lacked standing to challenge assignment of his mortgage to subsequent entity" is unequivocally false and misleading. (In fact, Judge McConnell etc>) In one final misdirected statement, the Court adopts the holding in Livonia (Put stuff in hear from Amicus) At Paragraph (6) of the Standing Section, the Kriegel Court expounds upon how it deems the holding in Brough can translate seamlessly to an assignment case which, beyond question, is governed by the General Laws of the State of Rhode Island. 34-11-1, et seq. The Court is wrong. The Kreigel Court admits that Brough dealt with the assignment of a contract right and that the instant case relates an assignment of an interest in real estate. This admission alone proves that these cases are distinguished from each other. Real Estate conveyances are governed by Statute while contracts, for the most part, are not. The Court goes on to make the incomprehensible statement that "Plaintiff cited no law on the general proposition that the subject matter of an assignment affects a third party's standing to challenge that assignment."

This is preposterous. The complaint and the memorandum of the Plaintiff are heavily laden with clear and concise references to the Rhode Island Conveyance Statute. 34-11-1. It is as if the Court doesn't even know that the Statute exists. To be clear, it does and it is that Statute that provides the Plaintiff with standing to challenge the assignment that allowed a stranger to title to steal his home. All that one needs to do is read 34-11-24 of the Rhode Island General Laws, entitled "Effect of Assignment of Mortgage" to learn that assignments of mortgage are governed thereby. This is the law of the State of Rhode Island and it is by this law that the Kriegel Court is bound. Further, the Court makes another simply astounding statement that is worthy of repeating. The Court wrote that "Plaintiff cited no law relating to the specific facts herein, that the right to exercise the statutory power of sale touches upon the rights of the owner of the secured property and therefore changes the standing analysis." The exercise of the statutory power of sale results in a property owner losing his property. The failure of the Court to realize that losing one's property is an injury in fact is totally intolerable. Once again, 34-11-24, in its last sentence states as follows: "... thereby substituting and appointing the assignee and his or her heirs, executors, administrators and assigns as the attorney or attorneys irrevocable of the mortgagor under and with all the powers in the mortgage deed granted and contained." This very provision of 34-11-24 clearly places the assignee in the same position as the original mortgagee and creates an attorney in fact relationship between the mortgagor and mortgagee relative to the original mortgage to which the mortgagor is a party. It is irrefutable that the mortgagor, by virtue of the terms of the mortgage and the language of the Statute has standing to allege that assignments are void under the statute that allows them in the first place.

Finally, the end of paragraph (6) again addresses Livonia. In so doing, it once again proves that it never understood what the Plaintiff had claimed. The Court states that the borrower "may not assert any ground which may render the assignment voidable." In Kreigil, the allegation was that the assignment was void as a matter of law. Void and voidable are two very distinct concepts and when someone is about to lose their property, a Court should be aware of what was plead and why. This Court clearly did not. This is a case about Void assignments of an interest in real estate, as a matter of law, no voidable contracts that are not governed by specific statutory provisions. At paragraph (7) of the Standing section, the Court goes on to improperly analyze the purpose and intent of RIGL 34-16-4, a long standing statute that is clear and concise on its face. The statute reads as follows:

Rhode Island General Laws > Title 34 > Chapter 34-16 > 34-16-4 - Action brought by person claiming through conveyance, devise, or inheritance Any person or persons claiming title to real estate, or any interest or estate, legal or equitable, in real estate, including any warrantor in any deed or other instrument in the chain of title to the real estate, which title, interest, or estate is based upon, or has come through, a deed, grant, conveyance, devise, or inheritance, purporting to vest in the person or persons or his, her, or their predecessors in title the whole title to such real estate, or any fractional part thereof or any interest or estate therein, may bring a civil action against all persons claiming, or who may claim, and against all persons appearing to have of record any adverse interest therein, to determine the validity of his, her, or their title or estate therein, to remove any cloud thereon, and to affirm and quiet his, her, or their title to the real estate. The action may be brought under the provisions of this section whether the plaintiff may be in or out of possession and whether or not the action might be brought under the provisions of 34-16-1 or under the provisions of any other statute.

The language of this statute is not subject to more than one reasonable interpretation. The claim of the Plaintiff in this case clearly falls within the precise terms of this statute. Nowhere in this statute does it state or even imply that there is some precondition that standing must be proven is some separate action or in some separate forum before the action contemplated therein can be brought. The statute does affirmatively confer standing upon a plaintiff bringing such an action to challenge assignments of mortgage, foreclosure deeds and any other instrument appearing in the chain of title. In addition, the statute clearly contemplates this action being brought in conjunction with other statutorily based actions by person who may or may not have already been foreclosed. To further buttress the position of the Plaintiff, attention must be paid to the fact that once again, the Kreigel Court relied on the "non-decision" of Fryzel justify its conclusion. Absent Fryzel, this Kreigal Court is on an island all by itself relative to this off beam conclusion regarding 34-16-4. Not satisfied that it has justified its standing conclusion in this case, based upon the language of Payette, which was nothing more than a small piece of a polluted pond of errors that comprised that decision, the Kreigel Court further immerses itself, deeper and deeper into shark invested waters that can do nothing than eat the decision alive. One need only look at an actual Court decision instead of rejected reports and recommendations to understand how standing should be viewed in these cases that involve assignments of mortgage and foreclosures by stingers to title. In Culhane v. Aurora, Cite, the Culhane Court, eloquently and humanely wrote as follows: "It is clear beyond a peradventure that Culhane [the borrower/mortgagor] is substantially behind in paying her mortgage and appears unable to remediate her default. This, however, does not render her an outlaw, subject to having her home seized by whatever bank or loan servicer may first lay claim to it. She still has legal rights."

This statement is on all fours with the arguments set forth in Porter, Payette and now in Kreigel. Kreigel is not a stranger to the assignment or the foreclosure deed. They both flow from the mortgage and both relate to his real property. He has standing pursuant to 34-16-4. The Defendants have not proven otherwise, yet the Court has abandoned the RI conveyance statute and opted to follow case law from Michigan where deeds of trust are the main course and not mortgages. The Court has made an error that it must admit and then fix or stand forever with egg on its face. It should also be noted that the Plaintiff does not object to FNMA or any other mortgagee from engaging servicers to perform acts which they lawfully can pursuant to the law of the State of Rhode Island. To be clear, in Rhode Island, per statute, a loan servicer can do the following:

R.I.G.L. 5-79-17 related to mechanic's liens R.I.G.L. 19-9-98 related to providing mortgage payoffs R.I.G.L. 34-26-8 related to release of mortgage/discharge of lien9 R.I.G.L. 34-28-17.1 related to mortgage consultants10 R.I.G.L. 44-5-7(b) related to the payment of property taxes by installments, disclosure to borrowers amounts owed, payoff mortgage note.11 The problem with the Kriegel decision, along with Bucci and its progeny, is that custom seems to have become more important that the law. In Bucci, the Court found that the very rationale, logical, obvious and singular interpretation of the relationship between 34-11-21 and 34-11-22 would lead to an absurd result. The Bucci Court wrote as follows:

7 8 9 10 11

" If this Court were to construe 34-11-21 as the Plaintiffs suggest, it would be an absurd result because named mortgagees and lenders would be precluded from employing servicers to service and collect obligations secured by real estate mortgages. Clearly, the General Assembly envisioned a role for mortgage servicers in the mortgage lending industry. See, e.g., G.L. 1956 34-26-8(a)(4), as amended by P.L. 1995, ch. 95-131, 1 (including mortgage servicer within the definition of "mortgagee" for purposes of 34-26-8). Accordingly, this Court finds that MERS, while not the lender, may invoke the Statutory Power of Sale as the mortgagee." The Bucci Court, along with the Court in Porter, Payette and Kriegel has all failed to read 34-11-21 and 34-11-22 in harmony and as the Legislature intended. *Eaton analysis. Further, the conclusion reached above by the Bucci Court is simply wrong. Reading the statute as written does not impact loan servicers in any way. The role of loan services was most certainly envisioned by the General Assembly and for that reason, the aforesaid statutes were enacted. There can be no question that 34-11-22 does not provide that Loan Servicers may foreclose on their own behalf or on behalf of a mortgagee. In fact, 34-11-22 is so clear that arguing that a mortgagee can contract with another party to give it rights that the General Laws does not give it is absurd. While it is true that 34-26-8 does define a loan servicer at a mortgagee, it is only for purposes of that particular statute. While a mortgagee for the purposes of 34-26-8, a servicer is not a mortgagee for purposes of 34-11-22. (Put Stern case in here) Culhane also fits as does Simmerman which I put in Rutter. The Kriegel Court, by writing that "The rationale of excluding homeowners/debtors from interfering with legitimate commercial transactions between financial institutions is entirely consistent with this Court's determination that the commercial transfer of the Mortgage-to which Plaintiff clearly acquiesced according to the plain and unambiguous language contained in the Mortgage-was entirely lawful" again exemplifies its elemental misunderstanding of MERS and a MERS mortgage transaction. MERS has admitted that it is not a financial institution. This

Court will not find one case wherein MERS has been found to be a lender, a bank, credit union, servicer, bill collector, credit provider, underwriter or any other form of financial institution. This being uncontroverted, the Kriegel Court's statement does not apply to any and all purported MERS assignments. Whatever the Plaintiff agreed to in the instant case makes no difference at all to the Court's ultimately flawed conclusion and litmus test. In Kriegel, since MERS is not a financial institution, the Kreigel analysis does not apply. Put in the math stuff here or there. In Kriegel and its forerunners, the gravamen of the complaint is not about how foreclosure proceeds are divided or applied. The complaint is about whether or not the party foreclosing has the right, statutory or otherwise, to foreclose pursuant to the Statutory Power of Sale. Res Judicata may act as a bar to Lender to pursue any judgment because the Lender, is a party in privity with MERS according to the Mortgage, but it does not insure that the party foreclosing has the legal right to foreclose. That is what is paramount. This Court views this and other similar cases in a vacuum. It sees them as debt cases but that is not what they are. These are cases about the theft of homes by scavengers who cannot prove that they own the mortgage and note before they foreclose on an unsuspecting homeowner. It is time to see it for what it is and not for what MERS and the Banking and Servicing Lobby says it is. (I need a powerful quote here) At paragraph 11 of the Standing Section, the Court once again reveals that it is impotent relative to its understanding of MERS, the MERS mortgage and its relationship to the Lender and Borrower. To be clear, the Plaintiff in Kriegel did not acquiesce to being a party to a statutorily defective mortgage. That is an erroneous conclusion reached by this Court.

The Court, in a statement of pure and irretractible error, states that the "Plaintiff alleges he did not give BankUnited permission to designate MERS as Mortgagee." No such allegation was ever made by the Plaintiff. In fact, such an allegation by this Plaintiff or any Plaintiff in a MERS case would never be contemplated or made. It is incomprehensible that this Court has made this impossible statement over and over again in this case. The Court seeks to support this statement by referring to the Mortgage document itself. This is fatal to the entire Kreigel opinion. The mortgage document is between MERS and Kreigel. MERS, not Bank United is a party to the Mortgage. Bank United is the Lender and the Promissory Note is made payable to Bank United. It is beyond dispute that Bank United never assigned the instant mortgage to MERS. It is beyond dispute that Band United never owned the real property and it could not, therefore, as a matter of law, designate any other party a mortgagee. The only party able to designate MERS the mortgagee and to make MERS the mortgagee was the Plaintiff. This is black letter real estate law. If MERS stepped into the shoes of Bank United, as suggested by the Court, it would be the lender and not the mortgagee. Because it does not understand the MERS mortgage transaction, the Court has created a conundrum of impossibilities that flow from its initial error. The Court claims that the Plaintiff has standing to challenge the legal significance of [this]12initial designation of MERS as mortgagee as he was a party to this transaction by reason of his signature on the Mortgage. Again, the Plaintiff makes it crystal clear that there is no such

designation ever being made by Bank United of MERS as the mortgagee. This is a legal impossibility in every sense. The Court's reference to the Weybosset Hill case is noted, but it has no bearing on the case at bar. In fact, the Plaintiff agrees that an assignee steps into the
12

Referring to the claimed designation of MERS by Bank United

shoes of the assignor. In this case, that leaves FNMA with nothing at the end of the day according to the flawed analysis put forth by this Court. It is true that the Plaintiff alleges that the foreclosure is invalid because Green Tree, a loan servicer, does not have Statutory Power to foreclosure under 34-11-22. The Court is mistaken in its belief that the Plaintiff does not have standing to challenge the foreclosure of his mortgage. In fact, the Court admits that the Plaintiff is a party to the mortgage being foreclosed thus giving him standing. Clearly, the Plaintiff is in privity with the party, whoever it may be, that seeks to foreclose. This issue has nothing to do with the purported servicing agreement between FNMA and Greentree that would satisfy the Statute of Frauds, despite the fact that there is no proof anywhere that such an agreement exists. In other words, the Plaintiff does not care if Greentree is the servicers. What the Plaintiff, however, has properly alleged, is that under Rhode Island Law, a loan servicer cannot foreclose and cannot invoke the statutory power of sale no matter what its contractual agreement with a mortgagee may be. It is beyond belief that the Court has concluded that despite the clear language contained in 34-11-22, that a loan servicer can foreclose in Rhode Island if it is not also the mortgagee. The Court goes not to note that the Plaintiff also alleged that Greentree could not foreclose because it did not possess the promissory note. This alleged fact is uncontroverted. In Rhode Island, to foreclose, the party seeking to foreclose must own both the note and the mortgage. In fact,...... Eaton etc. This Court ruled on this case as it did because it blindly enslaved itself to the erroneous ruling in Bucci, Porter and Payette. The Plaintiff alleged facts, that the Court clearly did not understand, that when taken as true, clearly made out a valid cause of action. It is beyond any reason that this Court could rule that the note and mortgage were not separated at the closing.

The Note went to Bank United and the Mortgage went to MERS as nominee of Bank United. Bank United was never the mortgagee and had nothing to assign to MERS as this Court has claimed over and over again. The Plaintiff claimed that the note was never in the possession of Greentree or FNMA. This is further proof of the claimed disconnection. In Payette, the Court after, finding there was no disconnection, incongruously, ruled that the note became reconnected at some point. In this case, there is no evidence at all relative to the note and its travel. This being the case, it must be taken as true that neither Greentree nor FNMA had the note at the time of the foreclosure. This would be fatal to the foreclosure rendering it VOID. (EATON/ Ibanez/Bev. /Carpenter Longan and even Kiah all support this position.) Green Tree's Authority to Exercise the Statutory Power of Sale In the Complaint, the Plaintiff did allege that Green Tree could not invoke the Statutory Power of Sale. The Plaintiff did allege correctly that (1) Green Tree was not a lender permitted to foreclose under the Mortgage. This is true beyond any doubt at all. Green Tree was not the Lender. It was never the mortgagee. It never held the note and never had any interest in the property. (2) Green Tree was not a "Lender" permitted to foreclose as contemplated by 34-1122 of the Rhode Island General Laws. This is true beyond all doubt. (3) Green Tree did not hold the note. This also is true beyond contestation. If any one of these statements is taken as true, then the Motion to Dismiss should never have been granted. In fact, all of them are true so it is beyond comprehension the Motion to Dismiss was granted. It is true that the Complaint of the Plaintiff alleges that only the "Lender" is permitted to foreclose pursuant to the mortgage. This allegation is made because that is the exact language that appears in the mortgage document. The Court never takes notice that this is true beyond

all reasonable doubt. In fact, it is so important, paragraph 22 of the instant mortgage is set forth in total hereinbelow: "please insert here" Paragraph 2 of Section C makes what seems to be a sensible statement when it writes that "[t]he Court will not accept as true "facts which are legally impossible...or facts which by the record or a document attached to the complaint appear to be unfounded." It goes on to state that "In a case where there is a conflict between the pleading and the exhibit, the exhibit controls." In this case, the Mortgage is not in conflict with the pleadings. In fact, at paragraphs 34-42 of the Complaint, it is clearly stated exactly what paragraph 22 of the mortgage provides. The Court apparently found that there was a conflict between the complaint and the Mortgage when no such conflict existed. The Court also wrote that the Complaint contained alleged facts that were legally impossible. This is sheer nonsense or it is wishful thinking. The operative language of the complaint is set forth in full above. The Mortgage was provided by MERS. MERS was responsible for its content. The Plaintiff must query the Court as follows: WHAT IS LEGALLY IMPOSSIBLE ABOU T THE LANGUAGE CONTAINED IN PARAGRAPH 22?

The Court never even addresses this question. Instead, it proffers its own impossible statement. The Court writes that "Once the lender designates MERS as its nominee13, MERS, and thus any assignee of MERS, also acts as the holder of the debt [emphasis added] secured by the mortgage."

13

There is no proof of any contract between Bank United and MERS. There is certainly no written contract in evidence that would satisfy the Statute of Frauds.

In this paragraph, the Court, despite its alleged knowledge of Bucci, makes a fatal blunder by concluding that MERS, at some point, becomes the holder of the debt secured by the mortgage. Further, the Court makes a fundamental error of law by concluding that a mere nomination of one to act for another as an agent acts as the principal itself. In the underlying decision, designation of MERS as an alleged nominee does not confer them status as a holder in due course, this can only be done in accordance with the UCC not through mere recording of a mortgage. This is impossible! MERS admitted in Bucci and has admitted in countless cases across the County that it "never holds the beneficial title to the mortgage" and that "it never holds the note." The Kreigel Court has once again proven that it does not understand the MERS system at all and that lack of knowledge is fatal to its ultimate decision. Paragraph 3 of the Green Tree section is also heavily laden with errors. The mortgage does state that MERS, solely as nominee of lender, may invoke the statutory power of sale. This flies in the face of paragraph 22 of the very same document. So we are left with a document that actually supports the argument that was made by Counsel in Bucci that pursuant to 34-11-21 and 34-11-22, the Lender and Mortgagee are one in the same. If this were not true, why would the mortgage, in two separate and distinct places, provide that (1) MERS (Mortgagee) may invoke the statutory power of sale and (2) Lender may invoke the statutory power of sale? The only rational explanation is that even the mortgage identifies the Lender and Mortgagee as one in the same. Further, paragraph 22 is much more detailed that the very brief language contained on page 3 of the mortgage. Paragraph 22 sets forth all of the obligations of the Lender in great

detail while no such detail appear on page 3 of the mortgage. It is inconceivable that the Court would simply ignore these clear and concise facts when examining the mortgage and the complaint of the Plaintiff. At best the mortgage document creates a stalemate between just who may foreclose on the property. Pursuant to Rule 12, the Court should have read the document in favor of the Plaintiff and not in a manner which would allow it to rubber stamp Bucci, Porter and Payette. Notwithstanding all of the aforesaid, one thing is certain, neither page 3 of the mortgage no page 13 of the mortgage granted Green Tree, a mere loan servicer, the right to invoke the Statutory Power of Sale. Neither MERS nor the Lender had the right to create standing in a servicer to foreclose that has not been given it by the General Assembly. The holding the Green Tree could invoke the statutory power of sale is pure legal error under Rhode Island Statutory Law. The Court provides no cases to support this flight of fancy because none so exist.

In the following paragraph, the Court suggests that the Plaintiff's reading of RIGL 34-111, et seq. is myopic. The Plaintiff's reading of 34-11-1 is not myopic but broadminded. The Court's reading of 34-11-1 seems to be non-existent. 34-11-22 clearly states who may exercise the statutory power of sale and servicers are not included therein. The very first line of 34-1122 proves that the Kreigel court's decision that a servicer may foreclose is wrong.

"But if default shall be made in the performance or observance of any of the foregoing or other conditions, or if breach shall be made of the covenant for insurance contained in this deed, then it shall be lawful for the mortgagee or his, her or its executors, administrators, successors or assigns to sell, ...." The language of the statute is clear and concise. Nowhere in 34-11-22 does it mention that servicers may foreclose. The Court is simply wrong.

The Court writes that "at the time of the foreclosure, Green Tree exercised all of the rights of FNMA as assignee of the Mortgage and nominee for the lender." To understand the critical error of the Court, one must understand the interplay between the facts and the law. Green Tree was hired by FNMA to service a loan. That makes it a servicer. It did not become a mortgagee or assignee of the mortgage at any time. It never became the holder of the note. The Court is giving Green Tree powers that the General Assembly has never given to servicers and this is well beyond the scope of what this Court may do. Further, the suggestion that FNMA was somehow the nominee is the Lender is incredulous. This Court must take judicial notice of the fact that FNMA, a governmental

agency, is not a member of MERS. This takes this matter outside the realm of the flawed analysis and conclusions of the Porter and Payette decisions. In Payette in particular, this Court found that anyone that held the note became the nominee of the Lender per MERS standard operating procedures. Clearly, Payette did not consider situations such as this were a nonMERS member would be the last assignee of a mortgage. If it had, is may have seen fit to tighten up its decision. To be clear, FNMA14 was not and could not be the nominee of the Lender because it is a governmental agency and not a financial institution such as those considered by this Court in Porter and Payette. In fact, in the very last paragraph of the Kreigel decision, the Court restates what it had written in Porter and Payette, and applies it to FNMA. The statement reads as follows: "Thus, whatever financial entity currently holds the beneficial interest in the note, in this case FNMA as mortgagee and nominee of lender, may enlist a servicer, such as Green Tree, to act as its agent." [emphasis added] In support of this impossible statement, the Court cited to Bucci claiming that the Bucci Court "determined that 34-11-21 did not prohibit [the service company] from invoking the
14

FNMA is.................. and it is not a member of MERS..................... put some shit in here.

statutory power of sale."

No such language appears in the Bucci decision. Bucci did provide

that a Mortgagee could employ servicers to service and collect obligations secured by real estate mortgages but nothing more. [emphasis added] This was language of limitation on servicers. It never said that 34-11-21 prohibited servicers from invoking the statutory power of sale. It said that about MERS and MERS is not a servicer as this Court should be well aware. Further, 34-11-11 does not give "agents of mortgagees" the right to invoke the statutory power of sale. It seems like the Kreigel Court is using smoke and mirrors in an effort to give power to servicers where none clearly exists. Finally, the Court makes a final fatal error when it claims that FNMA holds the beneficial interest of the note. Earlier in its decision at paragraph (5) of the Green Tree section, the Court has already stated that the note is not before the Court. This paradox again renders the Kreigel decision impotent due to the sheer mass of factual errors contained therein. This is very similar to the holding in Payette where the Court found that the note was held by two parties at the same time. It is clear that the MERS system of mortgage deception is so good that it is even able to confuse Superior Court judges to the point where they write decisions that cannot pass judicial muster once deconstructed.