Exhibit 3 Landrith Answer to Bank of New York Mellon

! "!

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ____________________________________________________ BRET D. LANDRITH,

Plaintiff, PLAINTIFF’S ANSWER TO DEFENDANTS’ MOTION

FOR DISMISSAL

- against-

Index No. 653154/2011 ALTERNATIVE LOAN TRUST 2007-OA7 Defendant, and BANK OF NEW YORK MELLON in its capacity as Trustee for ALTERNATIVE LOAN TRUST 2007-OA7,

Nominal Defendant,

____________________________________________________

The plaintiff Bret D. Landrith, appearing pro se, respectfully makes the following

answer to the defendants’ Motion for Dismissal.

STATEMENT OF FACTS

1. The defendant ALTERNATIVE LOAN TRUST 2007-OA7, an unincorporated

trust organized under State of New York law was properly served under CPLR § 308 and

Article 3 - § R318 Designation of Agent for Service by delivery of process and a copy of

the plaintiff’s petition upon ALTERNATIVE LOAN TRUST 2007-OA7’s designated

trustee, the nominal defendant BANK OF NEW YORK MELLON. See Supplemental

FILED: NEW YORK COUNTY CLERK 02/23/2012 INDEX NO. 653154/2011NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/23/2012

Exhibit 3 LANDRITH Answer To BANK OF NEW YORK

! #!

Affidavit In Support Of Motion To Default at pgs. 6-8, 10-11 ( NY Sup. Ct. Doc. # 16);

Affidavit In Support Of Motion To Default exhibit 2 ( NY Sup. Ct. Doc. # 10).

2. The nominal defendant BANK OF NEW YORK MELLON was properly served

under CPLR § 311(1) and CPLR § 318 through the plaintiff’s reliance on BANK OF

NEW YORK MELLON’s own published alternative procedure for service of process by

delivery through United Parcel Service to the corporation and marked attention General

Counsel. See Supplemental Affidavit In Support Of Motion To Default at pgs. 6-10 ( NY

Sup. Ct. Doc. # 16) ; Affidavit In Support Of Motion To Default exhibit 3 ( NY Sup. Ct.

Docs. # 11).

3. The defendants BANK OF NEW YORK MELLON and ALTERNATIVE LOAN

TRUST 2007-OA7 have defaulted under CPLR § 3215(a) in failing to answer or

otherwise respond to the plaintiff’s petition within the thirty days allowed and a motion

for default judgment filed January 12, 2012 is before this court ( NY Sup. Ct. Docs. # 7-

3, 26-28).

4. The defendants BANK OF NEW YORK MELLON and ALTERNATIVE LOAN

TRUST 2007-OA7 after the plaintiff’s filing of Supplemental Affidavit In Support Of

Motion To Default ( NY Sup. Ct. Doc. # 16) refuting (supra) defendant counsel assertion

service of process was defective entered a voluntary appearance without reservation ( NY

Sup. Ct. Docs. # 24) in this court on February 15, 2004 disclaiming in their Memorandum

in Support of Dismissal at pg. 5-6 any further objection to in personam jurisdiction of this

court ( NY Sup. Ct. Doc. # 25) and are properly within the court’s jurisdiction under New

York Statutes Article 3 - § R320 Defendant's Appearance.

5. Neither the defendants’ Affirmation In Support Of Defendants' Motion To Dismiss

! $!

The Complaint ( NY Sup. Ct. Doc. # 24, 34-1 thru 24-11) nor Memorandum in Support

of Dismissal ( NY Sup. Ct. Doc. # 25) meet the requirements of an answer in opposition

to Default Judgment under CPLR § 3215(a) or for relief from default identified by the

plaintiff and served as notice upon the defendants as being required under CPLR § 3211.

See Supplemental Affidavit In Support Of Motion To Default at pgs. 6-10 ( NY Sup. Ct.

Doc. # 16).

6. The affiant or affirmant, Suzanne M. Berger identifies herself as “counsel at the

law firm of Bryan Cave LLP” ( NY Sup. Ct. Doc. # 24, pg. 1), not as a principal or even

employee of either of the defendants BANK OF NEW YORK MELLON or

ALTERNATIVE LOAN TRUST 2007-OA7 who the defendants were on notice of being

required to produce under CPLR § 3211:

“ 20. The plaintiff and defendants, the State of New York and the US Department of Justice commission on mortgage fraud investigation- Unit on Mortgage Origination and Securitization Abuses, chaired by State of New York Attorney General Eric T. Schneiderman [would be aided] by the requirement of New York Statute CPLR 3211 for the defendants BANK OF NEW YORK MELLON and ALTERNATIVE LOAN TRUST 2007-OA7, not simply their counsel to provide affidavits of persons with direct knowledge of the factual basis for a meritorious defense should any exist, a requirement that will greatly shorten discovery time and lessen the burden on the parties and the court in resolving the validity of the plaintiff’s fraud claim, the central pattern and practice modus operandi President Obama tasked the US Department of Justice commission on mortgage fraud investigation led by State of New York Attorney General Eric T. Schneiderman commission with in his State of the Union Speech January 24, 2012. See http://www.huffingtonpost.com/2012/01/24/obama-housing-crisis-unit_n_1229617.html”[Emphasis added]

Supplemental Affidavit In Support Of Motion To Default ¶ 20 at pg. 11 ( NY Sup. Ct.

Doc. # 16).

7. The affiant or affirmant, Suzanne M. Berger in her Affirmation In Support Of

Defendants' Motion To Dismiss The Complaint ( NY Sup. Ct. Doc. # 24, 34-1 thru 24-

! %!

11) does not state or describe any failure of either defendant ALTERNATIVE LOAN

TRUST 2007-OA7 or the nominal defendant BANK OF NEW YORK MELLON to

receive service of process on the date they were served or that through an internal

procedural failure that either defendant failed to receive the required constitutional and

statutory notice of the plaintiff’s complaint and the requirement to appear and defend

against the plaintiff’s claims.

8. The affiant or affirmant, Suzanne M. Berger in Affirmation In Support Of


11) describes no firsthand or material knowledge of a possible basis for refuting the

plaintiff’s allegations, the subject of this law suit, that 1) ALTERNATIVE LOAN

TRUST 2007-OA7 fraudulently misrepresented to the nominal defendant BANK OF

NEW YORK MELLON that the mortgages, promissory notes and authority to enforce

and foreclose including a mortgage, promissory note, the mortgage file and authority

over the plaintiff’s house and land were transferred to the trust, that the trust fully

received the endorsed mortgages and notes at inception or immediately thereafter to

cause BANK OF NEW YORK MELLON to make repeated misrepresentations to the US

Securities and Exchange Commission regarding the securitization and sale to investors of

shares in the trust based on the representation that timely transfers and required

endorsements had been made of the mortgage and promissory notes to ALTERNATIVE

LOAN TRUST 2007-OA7 (see Pltf. Cmplt. ¶¶ 45-63 at pgs. 11-16 ) and that 2)

ALTERNATIVE LOAN TRUST 2007-OA7 fraudulently misrepresented to the nominal

defendant BANK OF NEW YORK MELLON that the trust had the standing to enforce

and foreclose on the mortgages when the defendant trust knew that it had not received the

! &!

mortgages, promissory notes or mortgage files from Bank of America/Countrywide

Mortgage and that nothing was endorsed over to the trust by Bank of

America/Countrywide Mortgage at the time the trust was formed or immediately

thereafter and that ALTERNATIVE LOAN TRUST 2007-OA7 fraudulently

misrepresentations to the nominal defendant BANK OF NEW YORK MELLON its

trustee would lead to BANK OF NEW YORK MELLON communicating the

misrepresentation to courts asserting falsely standing to foreclose where none existed

including causing the foreseeable result from the misrepresentation of receipt of

mortgages notes and authority that would lead to BANK OF NEW YORK MELLON

communicating to the Johnson County Kansas court the fraudulent misrepresentation that

ALTERNATIVE LOAN TRUST 2007-OA7 had standing to foreclose on the plaintiff’s

house and land, lot 330, Leawood Estates (see Pltf. Cmplt. ¶¶ 64-74 at pgs. 16-19 ).

SUZANNE M. BERGER’S AFFIRMATION AND ATTACHMENTS PROVE ALL BUT ONE ELEMENT OF PLAINTIFF’S FRAUD ON THE COURT CLAIM

9. The plaintiff’s Affidavit in Support of Motion to Default NY Sup. Ct. Docs. # 8,

and attachments NY Sup. Ct. Docs. # 13-14 provide evidence that the mortgage notes,

promissory notes, mortgage file were never transferred by Bank of America/Countrywide

Mortgage to the mortgage backed security trusts including ALTERNATIVE LOAN

TRUST 2007-OA7; that they were not endorsed to ALTERNATIVE LOAN TRUST

2007-OA7 at the time of transfer or within the allowable time for securitization under

State of New York law, and that ALTERNATIVE LOAN TRUST 2007-OA7 never

obtained the authority to enforce the notes or foreclose the mortgages yet misrepresented

! '!

to nominal defendant BANK OF NEW YORK MELLON that it had the authority to

foreclose in order to conceal the financial crimes of Countrywide principals. See Motion

for Default, Supporting Affidavits and exhibits NY Sup. Ct. Docs. # 8-23, 26-28.

10. The first element of the four elements to state an independently actionable claim for

fraud on the court on the factors from Leber-Krebs, Inc. v. Capital Records, 779 F.2d 895

(2d Cir. 1985) recognized in Nicholas v. Oren at pg. 17 (In re Nicholas) (Bankr.

E.D.N.Y., 2011) was therefore established with supporting evidence and the affirmant,

Suzanne M. Berger submits the proof evidence for completing In re Nicholas Element

One by documenting the representation to the Kansas court and provides documentary

evidence complimenting the plaintiff’s default exhibits to prove the remaining In re

Nicholas elements in her Affirmation In Support Of Defendants' Motion To Dismiss The

Complaint ( NY Sup. Ct. Doc. # 24, 24-1 thru 24-11):

In re Nicholas Element # 1 The defendant's misrepresentation to the court



11) attaches documents that support the facts of the plaintiff’s complaint that BANK OF

NEW YORK MELLON acting as agent and trustee for ALTERNATIVE LOAN TRUST

2007-OA7 represented to the Johnson County, Kansas court through the large and

respected Kansas real estate law firm South and Associates LLC that ALTERNATIVE

LOAN TRUST 2007-OA7 had standing and authority to foreclose on the house and land,

lot 330, Leawood Estates ( Exhibit 1, NY Sup. Ct. Doc. # 24-2 );

! (!

In re Nicholas Element # 4 The benefit the defendants derived by inducing the erroneous decision

12. Suzanne M. Berger’s exhibits show that that BANK OF NEW YORK MELLON

acting as agent and trustee caused a “sale” of the property resulting from the

representation of standing to enforce that right resulting in BANK OF NEW YORK

MELLON purchasing the house and land, lot 330, Leawood Estates for the $715,000.00

represented by BANK OF NEW YORK MELLON as the amount owed to

ALTERNATIVE LOAN TRUST 2007-OA7 ( Exhibit 2, NY Sup. Ct. Doc. # 24-3 );

13. Suzanne M. Berger’s Exhibit 3, NY Sup. Ct. Doc. # 24-4 shows that BANK OF

NEW YORK MELLON acting as agent and trustee obtained an ex parte order of

foreclosure and judgment in default against Jeffrey A. Basler who had not appeared and

for whom personal service of process at his address “121 W. 48th Street, #606, Kansas

City, MO 64112” known by the defendants BANK OF NEW YORK MELLON and

ALTERNATIVE LOAN TRUST 2007-OA7 ( Exhibit 1, NY Sup. Ct. Doc. # 24-2 at page

1 ¶ 2 ) had not been obtained and that the Johnson County, Kansas judge Hon. Judge

James F. Vano had accepted BANK OF NEW YORK MELLON’s representations about

the standing and authority to foreclose held by ALTERNATIVE LOAN TRUST 2007-

OA7.

In re Nicholas Element # 3 The lack of an opportunity to discover the misrepresentation and either bring it to

the court's attention or bring an appropriate corrective proceeding;

14. Suzanne M. Berger’s Exhibit 5, NY Sup. Ct. Doc. # 24-6 shows that the plaintiff

appeared on August 9, 2011 after the BANK OF NEW YORK MELLON and

! )!

ALTERNATIVE LOAN TRUST 2007-OA7 foreclosure and purchase of all interests

owned by ALTERNATIVE LOAN TRUST 2007-OA7 and that the plaintiff identified

himself as the successor in interest or in the alternative a John Doe defendant named in

the petition for foreclosure (not as an intervenor as the defendants mistakenly repeat the

mistake of the law firm South and Associates LLC ) seeking an extension of time to

answer the foreclosure (unopposed or timely replied to by the BANK OF NEW YORK

MELLON and ALTERNATIVE LOAN TRUST 2007-OA7 ) with an attached copy of

the August 1, 2011 notarized and executed Quit Claim Deed from Basler to the plaintiff.

15. Suzanne M. Berger’s Exhibit 4, NY Sup. Ct. Doc. # 24-5 shows that the plaintiff

answered the default and entered a motion to set aside the default on September 12, 2011

filing a Motion to set Aside Sale and Judgment Under K.S.A. 60-309 and accompanying

attachments including Affidavit of no Actual Knowledge of Foreclosure and Structural

Engineering Defect after the BANK OF NEW YORK MELLON and ALTERNATIVE

LOAN TRUST 2007-OA7 foreclosure and purchase of all interests owned by

ALTERNATIVE LOAN TRUST 2007-OA7 and that the plaintiff identified himself as

the successor in interest or in the alternative a John Doe defendant named in the petition

for foreclosure.

16. Suzanne M. Berger’s Exhibit 6, NY Sup. Ct. Doc. # 24-7 shows that the defendants

BANK OF NEW YORK MELLON and ALTERNATIVE LOAN TRUST 2007-OA7

objected to a hearing on the Journal Entry dispute created by the plaintiff’s objection to

journal entry.

17. Suzanne M. Berger’s Exhibit 7, NY Sup. Ct. Doc. # 24-8 is the objection to the

Journal Entry filed by the plaintiff giving notice to the court that if the judgment is not

! *!

amended, the Fraud on the Court claim would as an independent action need to be raised

in the appropriate jurisdiction, likely a US District court.

18. Suzanne M. Berger’s Exhibit 8, NY Sup. Ct. Doc. # 24-9 is the journal entry

hearing order to appear BANK OF NEW YORK MELLON and ALTERNATIVE LOAN

TRUST 2007-OA7’s counsel objected to.

19. Suzanne M. Berger’s Exhibit 9, NY Sup. Ct. Doc. # 24-10 is the reply

memorandum in support to Landrith’s objection to the Journal Entry filed by the plaintiff

giving notice to the Kansas court that if the judgment is not amended, the Fraud on the

Court claim would upon further research necessarily be in the State of New York court.

In re Nicholas Element # 2 The impact on the motion as a consequence of that misrepresentation

20. Suzanne M. Berger’s Exhibit 10, NY Sup. Ct. Doc. # 24-10 is the court order

granting a motion to strike all filings on November 21, 2011 that is the third and final

reliance by Johnson County, Kansas judge Hon. Judge James F. Vano on the

misrepresentations by BANK OF NEW YORK MELLON acting as agent and trustee for

ALTERNATIVE LOAN TRUST 2007-OA7 represented to the Johnson County, Kansas

court through the large and respected Kansas real estate law firm South and Associates

LLC that ALTERNATIVE LOAN TRUST 2007-OA7 had standing and authority to

foreclose on the house and land, lot 330, Leawood Estates.

! "+!

SUZANNE M. BERGER’S AFFIRMATION AND ATTACHMENTS

PROVE JUDICIAL ESTOPPEL APPLIES TO OBJECTION TO FORUM



11) provides the defendants motion to strike the plaintiff’s pleadings (NY Sup. Ct. Doc. #

22) subjecting the defendants BANK OF NEW YORK MELLON and ALTERNATIVE

LOAN TRUST 2007-OA7 to judicial estoppel preventing assertion of claim preclusion

resulting from a judgment obtained in default (NY Sup. Ct. Doc. # 22 at pg. 1 no personal

service at Basler’s known and correct address) and where the plaintiff’s claims were

prevented from being litigated and subjecting the defendants to judicial estoppel

preventing objection to the New York State Court forum .



11) proves that the Johnson County, Kansas judge Hon. Judge James F. Vano recognized

and made a judgment consistent with strong precedent Barnett v. Mayes, 43 F.2d 521

(10th Cir., 1930).” briefed by the plaintiff in the plaintiff’s duty to apprise the court of

contrary authority, estoping the defendants from now asserting claim or issue preclusion

against the plaintiff:

“Courts have historically found this title challenge actually is appropriate outside of the foreclosure action itself: “In answer, appellant contends "It is almost the universal rule that questions of title cannot be litigated in the ordinary foreclosure suit, and hence that those claiming title adverse or paramount to the mortgagor should not be made parties." 9 Enc. Pl. & Pr. 353. The weight of authority supports this contention. 42 C. J. 55. The reason for this rule is that it introduces a new cause of action into the litigation, contrary to the rules of good pleading. The objection, if sound, is not one which goes to jurisdiction.” [Emphasis added]

! ""!

Barnett v. Mayes, 43 F.2d 521 (10th Cir., 1930).”

Defendant’s [Landrith] Answer To Plaintiff’s Motion To Strike at pg. 8, filed

10/21/2011 in Johnson County, Kansas Court. Answer Exhibit 1



11) proves that the Johnson County, Kansas judge Hon. Judge James F. Vano evaluated

the result that if his court did not take up the fraud on the court claim and instead granted

the defendants ALTERNATIVE LOAN TRUST 2007-OA7 and BANK OF NEW YORK

MELLON’s motion to strike all Landrith’s pleadings, the fraud on the court claim would

necessarily be tried in New York State Court estoping the defendants from now asserting

forum non conveins against the plaintiff:

“FRAUD ON THIS COURT WILL BE ADDRESSED IN NEW YORK SUPREME COURT The real party in interest is a New York State trust entity, Alternative Loan Trust 2007-OA7 and it directly and through its agents including made the frauds detailed in the defendant’s answer. The appropriate trial court in the aftermath of this court’s strike order is the County of New York Supreme Court. It is an electronic court and a convenient forum for the parties.”

Defendant’s [Landrith] Memorandum In Opposition To Plaintiff’s Answer To

Journal Entry Hearing Order at pg. 4 that is Suzanne M. Berger’s Exhibit 9, NY Sup. Ct.

Doc. # 24-10.

24. The failure of the defendants to answer or otherwise respond within 30 days of

service of process, allowing the plaintiff to have to labor on under this forums rules of

civil procedure to prove his entitlement to default by presenting evidence "facts

constituting the claim” or facts in support of the triability of his claims estops the

defendants from now arguing transfer to another forum.

! "#!

FACTS RELATED TO FORUM NON CONVENIENS UNDER CITIGROUP GLOBAL MKTS.,



11) proves that no facts in controversy involve issues in the State of Kansas but instead

exclusively involve conduct of ALTERNATIVE LOAN TRUST 2007-OA7 including

material misrepresentations to BANK OF NEW YORK MELLON on whether the

ALTERNATIVE LOAN TRUST 2007-OA7 received the mortgages, promissory notes,

mortgage files and the authority to enforce notes and foreclose on home mortgages in

New York City.

1. Existence of an adequate alternative forum

26. Non existence of an adequate alternative forum proven in the State of Kansas.

27. The Johnson County, Kansas trial court judge weighed case precedent in the

plaintiff’s Motion to Set Aside the Default and in the plaintiff’s briefs opposing the

journal entry of judgment that foreclosure action was unsuited for determining issues of

title.

28. The defendants raise the issue that the plaintiff was disbarred in the State of

Kansas for federally protected advocacy, the conduct of representing the constitutional

rights of an African American James L. Bolden and his American Indian witness David

M. Price in federal court and this constitutionally recognized property right of being able

to work was taken and is actively interfered with by State of Kansas Judicial Branch

officials, rendering the State of Kansas an inadequate alternative forum.

29. A State of New York Court cannot transfer an action at the urging of the defendants

to deprive the plaintiff of property rights in retaliation for his protected advocacy on

! "$!

behalf of racial civil rights claims of the African American James L. Bolden and his

American Indian witness David M. Price without the trial judge being guilty of the

federal felonies 18 USC § 241 and 18 USC § 242 and the defendants would be liable

jointly and severally with their law firm Bryan Cave LLP and counsel Elizabeth Kukura

and Suzanne M. Berger to the plaintiff for damages under 42 USC § 1981 actionable

through 42 USC § 1983 in the S.D. of NY US District Court and forum shopping won’t

be a defense.

2. The situs of the underlying transactions

30. The situs of the underlying transaction in this case the securitization of trusts

including ALTERNATIVE LOAN TRUST 2007-OA7 as maker of the material

misrepresentations to the US Securities and Exchange Commission through its trustee

BANK OF NEW YORK MELLON occurred in the City of New York in the State of

New York.

31. The situs of the underlying transaction in this case, the material

misrepresentations of standing for foreclosure on notes and mortgages never received

made by to ALTERNATIVE LOAN TRUST 2007-OA7 by BANK OF NEW YORK

MELLON occurred in the City of New York in the State of New York.

32. The residency of the parties ALTERNATIVE LOAN TRUST 2007-OA7 and

BANK OF NEW YORK MELLON in the City of New York in the State of New York.

33. The potential hardship to the defendant is lessened by proceeding with the action

in the City of New York in the State of New York where as already experienced,

attorneys licensed in the State of Kansas or appearing pro hac vice are unable under the

Kansas Rules of Professional Conduct to make affirmative representations on behalf of

! "%!

ALTERNATIVE LOAN TRUST 2007-OA7 and BANK OF NEW YORK MELLON that

have the effect of furthering the fraudulent representation of standing to foreclose and

could not file anything beyond a motion to strike without personally inspecting the blue

ink note and mortgage and interviewing the BANK OF NEW YORK MELLON

employees that witnessed endorsement of the documents transferring authority to enforce

or foreclose to ALTERNATIVE LOAN TRUST 2007-OA7.

3. The location of the documents

34. The location of documents related to and determinative of the issues for the

plaintiff’s claims are exclusively in the City of New York in the State of New York.

4. The location of a majority of the witnesses

35. The location of witness document custodians for ALTERNATIVE LOAN

TRUST 2007-OA7 and BANK OF NEW YORK MELLON are exclusively employees of

BANK OF NEW YORK MELLON and exclusively in the City of New York in the State

of New York.

36. The sole person outside of the State of New York, the Johnson County, Kansas

judge Hon. Judge James F. Vano cannot be a witness because he is a judge and narrowly

limited his rulings, using appropriate discretion after determining issues of title could not

be raised in a foreclosure enforcement action, and published his order within the clearly

established precedent to avoid any need to explain or elaborate on his findings.

5. The burden on New York courts

37. The burden on New York courts is negligible, the defendants having defaulted

and having failed to produce an affidavit from single employee material witness of a

principal, either

! "&!

6. Public policy interest in New York as a forum

38. The US Department of Justice commission on mortgage fraud investigation- Unit

on Mortgage Origination and Securitization Abuses, selected State of New York

Attorney General Eric T. Schneiderman in January of 2012 to chair an investigation into

the securitization fraud regarding mortgage backed securities, State of New York

securitization trusts and wrongful foreclosures described in the plaintiff’s complaint

because of the applicable state law and the misconduct by persons in the State of New

York that led to wrongful foreclosures nationwide.

Plaintiff’s Disbarment For Successful Protected Advocacy on Behalf of Racial Minority Citizen and His Witness to Vindicate Their Federal

Civil Rights Against Race based Discrimination By The Kansas Supreme Court

39. The plaintiff was disbarred in 2005 for bringing the racial discrimination Civil

Rights claims of James L. Bolden, Jr., an African American to federal court1 and for the

pro bono representation of Bolden’s witness David M. Price in an appeal of a parental

rights termination case where the Kansas SRS deprived the natural father of access to

interstate compact against child trafficking documents used to place the American Indian

child in an adoption out of state prior to the termination of parental rights.

40. The plaintiff was also disbarred for raising the Indian Child Welfare Act which

prohibited the taking and placement of the child without notice to the natural father2.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1 The Tenth Circuit Court of Appeals Decision reinvigorated 42 USC Sec. 1981 as a cause of action against government discrimination and real estate takings in Bolden v. City of Topeka. 441 F.3d 1129 (10th Cir. 2006). The decision has been favorably cited by the Sixth Circuit in Coles v. Granville Case No. 05-3342 (6th Cir. May 22, 2006). 2 The Kansas Supreme Court later adopted the plaintiff’s argument that the Indian Child Welfare Act applied to American Indians living off the reservation in its decision on In The Matter Of A.J.S., Kansas Supreme Court Case No. 99,130 (2009).

The Kansas Supreme Court has also adopted the plaintiff’s argument that misrepresentations by a natural mother to conceal the existence of a child from a father could not disqualify a father’s reasonable efforts to parent his child. In The Matter Of The Adoption Of Baby Girl P. Case No. No. 102, 287 at 13-16 (Kan., Oct. 2010).

! "'!

41. The plaintiff now has standing for prospective injunctive relief five years after

disbarment to be considered for reinstatement to the Kansas Bar and is considering

applying for admission in other jurisdictions because of the unlawfulness of the State of

Kansas disbarment under 42 USC §1981 in taking his property right to practice law for

his conduct of advocating on behalf of two protected class citizens.

MEMORANDUM OF LAW IN OPPOSITION

The defendants style their pleading as a “Motion to Dismiss” pursuant to CPLR §

3211. However, the defendants did not answer and defaulted and the plaintiff applied for

a judgment of default under CPLR § 3215(a).

The present motion does not provide a basis to compel acceptance of an untimely

answer under CPLR 3012(d) or show of reasonable excuse for the delay. Similarly, the

defendants’ pleading does not provide the showing required under CPLR 5015(a)(1):

“We note that pursuant to CPLR 3012(d), a defendant who has failed to timely appear in an action may move to compel the plaintiff's acceptance of an untimely answer "upon such terms as may be just and upon a showing of reasonable excuse for [the] delay or default" (CPLR 3012[d]; see New York & Presbyt. Hosp. v Auto One Ins. Co., 28 AD3d 441; Beecher v State Farm Mut. Auto. Ins. Co., 186 AD2d 1012). We find that the showing of reasonable excuse that a defendant must establish to be entitled to serve a late answer under CPLR 3012(d) is the same as that which a defendant must make to be entitled to the vacatur of a default under CPLR 5015(a)(1).”

Stephan B. Gleich & Associates v. Gritsipis at pg. 5 (N.Y. App. Div., 2011).

Since the defendants “Motion to Dismiss” is not a timely answer or response to

any other filing of the plaintiff and the defendants have sought no extension of time, the

plaintiff is entitled to default judgment:

“Though proof of service of the complaint and this motion has been filed, Defendant has failed to answer Plaintiffs complaint or respond to any motion

! "(!

submitted by Plaintiff thereafter. Pursuant to CPLR § 3215(a), when a defendant has failed to appear or plead, the plaintiff may seek a default judgment against it. Defendant has not appeared in this action or answered the complaint. Its time to do so has expired and not been extended by the court. Therefore, Plaintiff is entitled to default judgment, provided it otherwise demonstrates that It has a prima facie cause of action. (Gagen v. Klpany Productions Ltd., 289 A.D.2d 844 [3d Dept 2001]).”

De Lage Landen Fin. Servs., Inc. v. Kozupsky & Lebowitz, LLP, at pgs. 3-4 2012

NY Slip Op 30325 (N.Y. Sup. Ct., 2012).

Standard for Dismissal Under CPLR § 3211

On a motion to dismiss pursuant to CPLR § 3211, the pleading is afforded a

liberal construction. Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 974 (1994).

The Court accepts the facts as alleged in the complaint as true, accords plaintiff the

benefit of every possible favorable inference, and determines only whether the facts as

alleged fit within any cognizable legal theory. Id. at 87-88, 614 N.Y.S.2d at 974.

This court has established the standard for a motion to dismiss pursuant to CPLR

§ 3211 that the defendants ALTERNATIVE LOAN TRUST 2007-OA7 and BANK OF

NEW YORK MELLON have failed to meet:

“Thus, the Court when considering a pre-answer motion to dismiss the plaintiff's complaint pursuant to CPLR §3211 must afford the complaint a liberal construction, accept the facts contained therein as true, accord to the plaintiff the benefit of every possible favorable inference and merely determine whether the facts alleged raise a cognizable legal theory upon which a recovery may occur. Goldfarb v. Schwartz, 26 AD3d 462, 811 NYS2d 414 (2nd Dept. 2006). A dismissal is warranted only if the documentary evidence submitted in support of the motion by the defendants conclusively establishes a defense to the asserted claims as a matter of law. 511 W. 232nd Owners Corp. v. Junnifer Realty Co., 98 NY2d 144, 746 NYS2d 131 (2002). The documentary evidence must be so compelling and conclusive that it resolves all factual issues as a matter of law and definitively disposes of the plaintiff's claim. Mazur Bros. Realty LLC v. State of New York, 59 AD3d 401, 873 NYS2d 326 (2nd Dept. 2009); Weston v. Cornell University, 56 AD3d 1074, 868 NYS2d 364 (3rd Dept. 2008); Berger v. Temple

! ")!

Beth-EL of Great Neck, 303 AD2d 346, 756 NYS2d 94 (2nd Dept. 2003).” [Emphasis added].

Ultimate Precision Metal Prods. Inc. v. GSM LI LLC at pg. 2-3(N.Y. Sup. Ct.,

2011).

POINT I DEFENDANTS’ ARGUMENT THE ACTION SHOULD BE DISMISSED FOR LACK OF STANDING

Clearly the defendants’ assertion that the plaintiff does not have standing to

pursue fraud on the court claims where he is the successor in interest and a defendant

identified in the foreclosure is wholly frivolous. In New York even third parties are

recognized as having standing to seek redress for injury from fraud:

“New York case law contains instances wherein a third party, not directly involved in the fraud, but who suffered injury in consequence thereof, was allowed to recover on a theory of fraud. Kuelling v. Roderick Lean Mfg. Co., 183 N.Y. 78, 75 N.E. 1098 (1905); [123 Misc.2d 585] Kennedy v. F.W. Woolworth Co., 205 App.Div. 648, 200 N.Y.S. 121 (1st Dept.1923); Wechsler, supra; 24 N.Y.Jur., supra at § 200.”

Young v. Robertshaw Controls Co., 474 N.Y.S.2d 886 at 890, 123 Misc.2d 580

(N.Y.Sup., 1983).

The plaintiff’s cause of action for fraud on the court as the target of the fraud and

foreseeable injured successor in interest is recognized under New York and Kansas law

as having four elements:

“In Ticketplanet.com, the court outlined the elements of a claim for fraud on the court, as recognized by the Second Circuit in Leber-Krebs, Inc. v. Capital Records, 779 F.2d 895 (2d Cir. 1985): "(1) the defendant's misrepresentation to the court; (2) the impact on the motion as a consequence of that misrepresentation; (3) the lack of an opportunity to discover the misrepresentation and either bring it to the court's attention or bring an appropriate corrective proceeding; and (4) the benefit the

! "*!

defendants derived by inducing the erroneous decision." Ticketplanet.com, 313 B.R.at 64.”

Nicholas v. Oren at pg. 17 (In re Nicholas) (Bankr. E.D.N.Y., 2011).

The US District Court for New York has recognized a claim for fraud on the court

specifically for the misrepresentation of standing to foreclose:

“This case is analogous to Illinois Cent. R. Co. which ruled, "To offer a document as an affidavit and entice the Court to consider it as such is a fraud on the Court." [Illinois Cent. R. Co. v. R.R. Land, Inc., 1992 WL 38109, 6, E.D. La. (1992).] *** The fraud perpetrated on the court here occurred when petitioner's attorney swore that the petition had been read and that the contents of the petition were true to the deponent's own knowledge”[Emphasis added]

Fed. Home Loan Mortgage Corp. v. Raia, 2010 NY Slip Op 52003 (N.Y. Dist. Ct.,

2010).

The plaintiff’s complaint presents a case of extrinsic fraud, ' i.e., a fraud practiced

in obtaining a judgment such that a party may have been prevented from fully and fairly

litigating the matter'" (Aguirre v Aguirre, 245 AD2d 5, 7 [1997] [quoting Shaw v Shaw,

97 AD2d 403 [1983]; see generally United States v Throckmorton, 98 US 61 [1878]).

Judiciary Law § 487.

There is a strong public policy interest in the largest banks not using trusts created

under State of New York trust law to defraud courts around the nation:

"Fraud on the court ... can be characterized as a scheme to interfere with the judicial machinery performing the task of impartial adjudication ... A finding of fraud on the court is justified only by the most egregious misconduct directed to the court itself, such as ... fabrication of evidence by counsel ..." (Pfizer v. International Rectifier Corp., 538 F.2d 180 (8th Cir. 1976)). An attorney who knowingly presents perjured testimony is practicing a fraud on the tribunal (Norman Lefstein, "The Criminal Defendant who Proposes Perjury: Rethinking the Defense Lawyer's Dilemma," 6 Hofstra L.Rev. 665 (1978)).”

People v. Salquerro, 107 Misc.2d 155, 433 N.Y.S.2d 711 at 712-13 (N.Y.Sup., 1980)

This New York court in a state where the nation’s financial industry is

! #+!

headquartered and lawful honest practices in securities are a substantial public policy

interest has that established precedent where fraud or violation of State of New York

securities law was used to procure foreclosure it will nullify the sale:

“The defendant further asserts that he was the victim of predatory lending in violation of various State and Federal Laws. He asserts in part that he was deceived by the mortgage broker who assured him that the monthly payments would be about $2,000.00. However, he found himself obligated to pay $3,275.00 when his income is only $500.00 per week. In this regard, defendant claims that the mortgage broker failed to make any efforts to ascertain the defendant's ability to repay the loan (see e.g. New York Banking Law § 6-L[2][k]). The plaintiff does not deny these claims. Accordingly, and in view of the issues raised by the defendant, Natividad Rodriguez, regarding whether he was a victim of predatory lending in violation of State and Federal Law, the default Judgement of Foreclosure and Sale with respect to Natividad Rodriguez is vacated. The defendant's answer in the form annexed to the moving papers is deemed served. However, the defense of lack of standing is stricken. The court has previously determined based upon documentary evidence, that the plaintiff has, and had on the day of commencement of this action, standing to bring this action.”

Lasalle Bank Nat'l Ass'n v. Rodriguez, 2011 NY Slip Op 31086 (N.Y. Sup. Ct., 2011).

The court in Indymac Fed. Bank Fsb v. Garcia (N.Y. Sup. Ct., 2011) addressed

specifically the misconduct of fraud in the papers used to provide evidence of standing

for a plaintiff to foreclose:

“Plaintiff submits a "reverified" Affidavit of Charlotte Warwick (hereinafter "Warwick") attesting that the principal amount due on Garcia's loan is $472,326.52. Plaintiff contends that the Warwick affidavit cures the fraudulent Affidavit of Amount Due submitted by Johnson-Seck. However, the Judgment of Foreclosure and aforementioned Stipulation, dated March 24, 2010, where all signed under the assumption that the plaintiff had originally submitted non-fraudulent documentation. So while the fraudulent Affidavit of Amount Due may be a curable defect, the court cannot ignore the fact that the papers supporting the Judgment of Foreclosure and Sale and aforementioned stipulation were fraudulent. In addition, a default judgment obtained through "extrinsic fraud," which is "a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter" does not require the defendant to prove a reasonable excuse for such default. (Bank of New York v. Lagakos, 27 A.D.3d 678 [2 nd Dept 2006] citing Shaw v. Shaw, 97 A.D.2d 403 [2 nd Dept 1983].)

! #"!

Furthermore, the court is concerned by Plaintiff's position that the "events he (Garcia) complains of. . . make no factual difference to the amount he owes on his mortgage." The statement is alarming as it implies that the court should ignore fraud when the fraud may not be directly relevant to the outcome of the particular case. The court requires an Affidavit of Amount Due and that requirement cannot be satisfied by submitting a fraudulent affidavit. (Indymac Bank, FSB v. Bethley, 22 Misc.3d 1119 [Sup. Ct. Kings County 2009] [prior to granting an application for an order of reference, the Court required an affidavit from Ms. Johnson-Seck, describing her employment history for the past three years].) Plaintiff has failed to deny defendant's contention that the Johnson-Seck document was fraudulent. Therefore, the Plaintiff failed to submit "proof of the facts constituting the claim, the default and the amount due by affidavit made by the party" as required by CPLR §3215(f) .” [Emphasis added]

Indymac Fed. Bank Fsb v. Garcia at page 5-6(N.Y. Sup. Ct., 2011).

The petition and affidavit provides a factual basis to meet each of the elements of

the plaintiff’s claim for fraud on the court to obtain the foreclosure or fruit of the fraud

that the defendants now argue deprives the plaintiff of standing, and the defendants did

not answer and instead defaulted, establishing as uncontested each allegation of the

plaintiff’s complaint. A default in answering the complaint constitutes an admission of

the factual allegations therein and the reasonable inferences which may be made

therefrom [Rokina Optical Co.. Inc. v. Camera King. Inc., 63 NY2d 728 (1984)].

Necessarily , the principals of the defendants ALTERNATIVE LOAN TRUST

2007-OA7 and BANK OF NEW YORK MELLON could not come forward and make an

affidavit of material knowledge contradicting the plaintiff’s claims and offering a

meritorious defense as required under CPLR § 3211 because such an affidavit would be

fraudulent and there was no valid foreclosure and under the facts of the complaint and

controlling law in both jurisdictions, a foreclosure obtained through a fraudulent

misrepresentation of the right to foreclose where none was held is void and did not

deprive Jeffery Basler of quitclaiming a valid ownership (Supp. Aff. Exhibit 6

! ##!

Basler Executed Quit Claim to Plaintiff NY Sup. Ct. Doc. # 22) and possessory interest to

the plaintiff under KSA 58-2204.

The defendants and the Kansas court considered how New York would apply

Kansas preclusion law as briefed by the plaintiff [Landrith]:

“The New York court, should it apply State of Kansas claim and issue preclusion law, will not find res judicata applicable to claims and issues raised by the defendant in motions that were stricken by the Johnson County Court: “Furthermore, the doctrine of res judicata is founded on the principle that the party "has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction." Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988). "[T]he doctrine of res judicata is held not to apply to issues raised in the previous case which were not decided by the court or jury. Hence, the doctrine of res judicata does not preclude relitigation of an issue raised by the pleadings in the prior action, but not considered either by stipulation of the parties or otherwise." Jackson Trak Group, 242 Kan. at 691, 751 P.2d 122. Reich had neither litigated nor had the opportunity to litigate her cross-claim when the court entered the foreclosure judgment. The court had not yet considered the claim. Under these circumstances, res judicata should not bar Reich's cross-claim.” Federal Land Bank of Wichita v. Vann, 890 P.2d 1242, 20 Kan.App.2d 635 at 638 (Kan. App., 1995). The New York Court will recognize that it has long and been clearly established under Kansas law that the action against Alternative Loan Trust 2007-OA7 for procuring the foreclosure through fraud will not be precluded by the foreclosure judgment: “In this instance the second action was in tort for damages, based on the assumption that plaintiff had lost his land. This is quite a different claim from that in the first action to quiet title, based on the assumption that he still owned the land. The doctrine of res judicata was clearly inapplicable. Just as clear, it seems to us, was the inapplicability of the doctrine of collateral estoppel. The first action was dismissed on motion; no questions of fact or law were 'actually decided' in that action which would necessarily control the outcome of the second action. If we assume the first action was dismissed because any attack on the 1957 judgment and sale was barred by the statute of limitations (a determination we are not setting aside as premature), that fact would not bar the second action for damages for fraud in procuring the judgment and sale.” [Emphasis added] Weaver v. Frazee, 547 P.2d 1005, 219 Kan. 42 (Kan., 1976). “In order for Curtis Machine to be precluded from raising the valuation issue with BOTA, it must have been able to raise the issue with the district court in the foreclosure action and the district court must have issued a final judgment on the merits. In Board of Osage County Comm'rs v. Schmidt, 12 Kan. App. 2d 812, 758 P.2d 254, rev. denied 243 Kan. 777 (1988), the taxpayers appealed the foreclosure

! #$!

court's refusal to consider their defense of constructive fraud in the valuation and assessment of their property. This court held the taxpayers were required to exhaust their administrative remedies under K.S.A. 1987 Supp. 79-2005 and K.S.A. 1987 Supp. 74-2426, so they could not raise the constructive fraud defense for the first time in the tax foreclosure action. Schmidt, 12 Kan. App.2d at 812-13.” In re Tax Protests & Grievances of Curtis Machine Co., 26 Kan. App.2d 395 at 397-398, 985 P.2d 725 (Kan. App., 1999).” [Emphasis added]

Defendant’s [Landrith] Memorandum In Opposition To Plaintiff’s Answer To

Journal Entry Hearing Order at pgs. 4-5 that is Suzanne M. Berger’s Exhibit 9, NY Sup.

Ct. Doc. # 24-10.

No Collateral Attack

The defendants’ arguments that the plaintiff is seeking a collateral attack on the

judgment for foreclosure obtained through default in the Johnson County District Court

are wholly without merit and frivolous on there face.

An independent claim for Fraud on the Court based on Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238 (1944), is actionable therefore a cognizable claim for

relief:

“6. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), is cited in the Advisory Committee Note to the 1946 amendment of Rule 60(b) as an illustration of the independent action preserved by the rule.”

Switzer v. Coan et al., 261 F.3d 985 at fn 6 (10th Cir., 2001).

An independent claim for Fraud on the Court is not ripe until after the trial court

relied upon the misrepresentation by making a ruling:

“A litigant seeking to establish fraud on the court must prove that the district court relied on fraudulent statements in rendering its decision. See Herring v. United States, 424 F.3d 384, 390 (3d Cir.2005).”

Macarthur v. San Juan County, 495 F.3d 1157at 1161 (10th Cir., 2007).

! #%!

Neither res judicata, nor preclusion from the Law of the Case Doctrine is

applicable to fraud on the court conduct:

“The essence of UBC's claims herein is that Milgo committed fraud upon this court in obtaining the judgment in KC-3380. Because fraud "vitiates whatever it touches," Stegman v. Professional & Business Men's Life Ins. Co., 173 Kan. 744, 751, 252 P.2d 1074 (1953), and because fraud has been alleged herein, we are reluctant to apply res judicata based upon the judgment in KC-3380. "A decision produced by fraud on the court is not in essence a decision at all." Kenner v. Commissioner of Internal Revenue, 387 F.2d 689, 691 (7th Cir. 1968), cert. denied, 393 U.S. 841, 89 S.Ct. 121, 21 L.Ed.2d 112. Federal courts have long recognized fraud on the court as an exception to the doctrine of finality of judgments. See, e.g., Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 244, 64 S.Ct. 997, 1000, 88 L.Ed. 1250 (1943). It would defile the equitable foundations of the doctrine of res judicata to suggest that a fraudulently obtained judgment must be entitled to preclusive effect in the very court where the fraud was perpetrated, and thereby prevent litigation of the fraud issue.” [Emphasis added]

United Business Communications v. Racal-Milgo, Inc., 591 F.Supp. 1172 at 1182-3 (D.

Kan., 1984) .

It is well-established that the doctrine of res judicata does not apply where fraud

may be found. Morris v. Jones, 329 U.S. 545, 550-51 (1947).

“Where fraud is found, the party that used fraud should be deprived of the benefit of the judgment and any inequitable advantage gained. Courts should not forfeit truth for the sake of finality . . . .” [Emphasis added]

Leber-Krebs, Inc. v. Capitol Records, 779 F.2d 895, 901 (2d Cir. 1985) (internal

citation omitted).

Under State of New York law, a judgment obtained in default, without the US

Constitutionally required service of process when a defendants’ residential address is

known is not preclusive (accord Elrac, Inc. v. Booker, 194 Misc.2d 251, 752 N.Y.S.2d

520 (N.Y. Civ. Ct., 2002), Fleet Business Credit, LLC v Michael P Costelloe, Inc., 19

Misc 3d 29 [App Term 2d & 11th Jud Dists 2008] [limited exception prevents preclusive

! #&!

effect for out-of-state defaults where defendant alleges a lack of personal jurisdiction in

the prior action]). To avoid enforcement of a default judgment, a defendant must move to

vacate and offer both a reasonable excuse for its default and a meritorious defense to the

underlying action (CPLR 317), the attempt the plaintiff made in Johnson County, Kansas

but was stricken by ALTERNATIVE LOAN TRUST 2007-OA7 and BANK OF NEW

YORK MELLON’s motion to strike.

Just like in the State of New York, failure to personally serve a defendant where his

address is known is not preclusive under State of Kansas law because it is

unconstitutional violation of Due Process:

County Commissioners, 200 Kan. 74, Syl. pp 5, 6, 434 P.2d 858 (1967), in which the court stated: "The requirements of due process contemplate that, where feasible, notice of legal proceedings be given by means reasonably calculated to inform all parties having legal rights which might be directly and adversely affected thereby." "Where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or § 2 of the Bill of Rights of the Kansas Constitution."”

Federal Nat. Mortg. Ass'n v. Beard, 659 P.2d 232, 8 Kan.App.2d 371 at 235

(Kan. App., 1983).

The plaintiff may not have been recognized in a foreclosure action where the

judge relied on strong authority in the jurisdiction since 1930 that foreclosure

proceedings could not resolve title issues but is the owner of Leawood, Kansas house and

land under the facts of the present complaint where the defendants ALTERNATIVE

LOAN TRUST 2007-OA7 and BANK OF NEW YORK MELLON did not have standing

or an interest or debt to foreclose upon or collect and ended up purchasing merely the

interest ALTERNATIVE LOAN TRUST 2007-OA7 held before the foreclosure-nothing.

! #'!

The plaintiff is the current rightful owner to 9743 Sagamore Road, Leawood, KS

66026:

“2. The defendant Bret D. Landrith answered as the defendant by virtue of a notarized and executed Quit Claim of all interests and duties from Jeffry A. Basler to the Bret D. Landrith (see quit claim attached to defendant Landrith’s August 10, 2011 pro se Entry of Appearance Exhibit 1) and made a Motion to Set Aside Under KSA 60-309 with an accompanying Answer to Foreclosure raising affirmative defenses with supporting detailed specific averments of fact. 3. The plaintiff did not brief and the court did not make a finding that any State of Kansas precedent prevented a property owner through Quit Claim from having Motion to Set Aside Under KSA 60-309 4. The plaintiff did not present evidence that the quitclaim was invalid or that KSA 58-2204 was unconstitutional: “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.”

Defendant’s [Landrith] Objection To Journal Entry at pgs. 1-2. Plaintiff’s Answer

Exhibit 2.

POINT II DEFENDANTS’ ARGUMENT THE ACTION SHOULD BE DISMISSED BASED ON FORUM NON CONVENIENS AS THIS MATTER LACKS A SUBSTANTIAL NEXUS WITH NEW YORK The court is unable to dismiss the plaintiff’s action under CPLR 3211(a) and CPLR

327(a) on the basis of forum non conveniens.

1. JUDICIAL ESTOPPEL AGAINST FORUM NON CONVENIENS

The defendants are estopped from arguing forum non conveniens the plaintiff is

forum shopping by filing in New York where the situs of the tortuous conduct

! #(!

complained of instead of Kansas where the plaintiff appeared and attempted to defend in

Johnson County, Kansas court.

The plaintiff’s complaint alleges that ALTERNATIVE LOAN TRUST 2007-OA7

in New York City fraudulently misrepresented to the nominal defendant BANK OF NEW

YORK MELLON that the mortgages, promissory notes and authority to enforce and

foreclose including a mortgage, promissory note, the mortgage file and authority over

the plaintiff’s house and land were transferred to the trust, that the trust fully received the

endorsed mortgages and notes at inception or immediately thereafter to cause BANK OF

NEW YORK MELLON to make repeated misrepresentations to the US Securities and

Exchange Commission regarding the securitization and sale to investors of shares in the

trust based on the representation that timely transfers and required endorsements had

been made of the mortgage and promissory notes to ALTERNATIVE LOAN TRUST

2007-OA7 (see Pltf. Cmplt. ¶¶ 45-63 at pgs. 11-16 ) and that 2) ALTERNATIVE LOAN

TRUST 2007-OA7 fraudulently misrepresented to the nominal defendant BANK OF

NEW YORK MELLON that the trust had the standing to enforce and foreclose on the

mortgages when the defendant trust knew that it had not received the mortgages,

promissory notes or mortgage files from Bank of America/Countrywide Mortgage and

that nothing was endorsed over to the trust by Bank of America/Countrywide Mortgage

at the time the trust was formed or immediately thereafter and that ALTERNATIVE

LOAN TRUST 2007-OA7 fraudulently misrepresentations to the nominal defendant

BANK OF NEW YORK MELLON its trustee would lead to BANK OF NEW YORK

MELLON communicating the misrepresentation to courts asserting falsely standing to

foreclose where none existed including causing the foreseeable result from the

! #)!

misrepresentation of receipt of mortgages notes and authority that would lead to BANK

OF NEW YORK MELLON communicating to the Johnson County Kansas court the

fraudulent misrepresentation that ALTERNATIVE LOAN TRUST 2007-OA7 had

standing to foreclose on the plaintiff’s house and land, lot 330, Leawood Estates (see Pltf.

Cmplt. ¶¶ 64-74 at pgs. 16-19 ).

The affiant or affirmant, Suzanne M. Berger in her Affirmation In Support Of


11) documents that the plaintiff filed motions to address the fraud on the court (Suzanne

M. Berger’s Exhibit 5, NY Sup. Ct. Doc. # 24-6; Exhibit 4, NY Sup. Ct. Doc. # 24-5

shows that the plaintiff answered the default and entered a motion to set aside the default;

Exhibit 7, NY Sup. Ct. Doc. # 24-8 is the objection to the Journal Entry filed by the

plaintiff; Exhibit 9, NY Sup. Ct. Doc. # 24-10 is the reply memorandum objection to the

Journal Entry) in the Johnson County Kansas court foreclosure action.

Only to have as Suzanne M. Berger has now proven to the court the defendants

BANK OF NEW YORK MELLON and ALTERNATIVE LOAN TRUST 2007-OA7

move to prevent the plaintiff’s motions and evidence from being heard (Suzanne M.

Berger’s Exhibit 6, NY Sup. Ct. Doc. # 24-7 shows that the defendants objected to a

hearing on the Journal Entry dispute, Exhibit 10, NY Sup. Ct. Doc. # 24-10 is the court

order granting the defendants’ motion to strike all filings).

This court in Hartman v. Harris recognized that judicial estoppel prevents parties

from taking inconsistent positions in subsequent proceedings. The plaintiff sought to set

aside the ex parte foreclosure and address the fraud on the court. The affiant or affirmant,

! #*!

Suzanne M. Berger in Affirmation In Support Of Defendants' Motion To Dismiss The

Complaint ( NY Sup. Ct. Doc. # 24, 34-1 thru 24-11)

“It is well settled that the doctrine of judicial estoppel or estoppel against inconsistent positions precludes a party from taking a position in one legal proceeding which is contrary to that which he or she took in a prior proceeding, simply because his or her interests have changed. (Festinger v. Edrich, 32 AD3d 412, citing Ford Motor Credit Co. v. Colonial Funding Corp., 215 AD2d 435; Kimco of NY v. Devon, 163 AD2d 573, and Environmental Concern v. Larchwood Constr. Corp., 101 AD2d 591). "The doctrine rests upon the principle that a litigant should not be permitted ... to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise". (Environmental Concern v. Larchwood Constr. Corp., supra, quoting Note, The Doctrine of Preclusion Against Inconsistent Positions in Judicial Proceedings, 59 Harv. Law Rev. 1132). The doctrine is invoked to estop parties from adopting contrary positions because the judicial system "cannot tolerate this `playing "fast and loose with the courts".' (Id., citing Scarano v. Central Ry Co., 203 F2d 510).”

Hartman v. Harris, 2008 NY Slip Op 31620(U) (N.Y. Sup. Ct. 6/6/2008), 2008

NY Slip Op 31620 (N.Y. Sup. Ct., 2008).

The doctrine of judicial estoppel is not limited to "judgments". The Court in D&L

Holdings, LLC v. RCG Goldman Company, LLC, 287 AD2d 65, stated that while the

doctrine has been said to "preclude a party who assumed a certain position in a prior

proceeding and who secured a judgment in his or her favor from assuming a contrary

position in another action simply because his or her interest have changed", citing Jones

Lang Wootton USA v. LeBouf Lamb, Green & MacRae, 243 AD2d 168, "this rule has,

properly been applied as well to court rulings that are not denominated as `judgments'.

The policy behind the doctrine of judicial estoppel, to wit, to prevent the abuses of the

judicial system when a party obtains relief by maintaining one position, and later, in a

different action, maintains another position, would not be served by limiting its

application to cases where the issue ruled upon was in the context of a "judgment". (Id.)

! $+!

2. TORT CONDUCT OCCURRED IN NYC

No conduct in dispute or for which witnesses may have material knowledge

relevant to the triable issues of fact occurred in the State of Kansas.

The evidentiary documents filed by the affirmant, Suzanne M. Berger in her

Affirmation In Support Of Defendants' Motion To Dismiss The Complaint ( NY Sup. Ct.

Doc. # 24, 34-1 thru 24-11) make each and every allegation of fact in the plaintiff’s

complaint to have taken place in the State of Kansas to be uncontovertably proven.

The evidentiary documents that determine the triable issues of fact are maintained

by the nominal defendant BANK OF NEW YORK MELLON as trustee for the trust

organized under law of the State of New York ALTERNATIVE LOAN TRUST 2007-

OA7.

All witnesses that are document custodians relative to the remaining disputed

conduct in the case are employees of the defendant BANK OF NEW YORK MELLON

residing and working in New York City and New York State.

All potential witness federal and state officials that received statements identified

in the complaint as misrepresentations BANK OF NEW YORK MELLON made at the

instruction of ALTERNATIVE LOAN TRUST 2007-OA7 to securitize assets that were

not in the trust reside and work in New York City and New York State.

All charged conduct under the allegations of ALTERNATIVE LOAN TRUST

2007-OA7 as maker of the material misrepresentations to the US Securities and

Exchange Commission through its trustee BANK OF NEW YORK MELLON and the

material misrepresentations of standing made by to ALTERNATIVE LOAN TRUST

! $"!

2007-OA7 by BANK OF NEW YORK MELLON occurred in the City of New York in

the State of New York.

“Although not every factor is necessarily articulated in every case, collectively, the courts consider and balance the following factors in determining an application for dismissal based on forum non conveniens: existence of an adequate alternative forum; situs of the underlying transaction; residency of the parties; the potential hardship to the defendant; location of documents; the location of a majority of the witnesses; and the burden on New York courts (see Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, supra; World Point Trading PTE v. Credito Italiano, 225 AD2d 153 [1st Dept 1996]; Evdokias v. Oppenheimer, 123 AD2d 598 [2d Dept 1986]). A motion to dismiss on the grounds of forum non conveniens is subject to the discretion of the trial court, and no one factor is controlling (Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, supra; see also Matter of New York City Asbestos Litig. v. Rapid American Corp., 239 AD2d 303 [1st Dept 1997]).”

Citigroup Global Mkts., Inc. v. Metals Holding Corp., 2006 NY Slip Op

51105(U) (N.Y. Sup. Ct. 6/8/2006).

CONCLUSION

Whereas for the above reasons including judicial estoppel and the uncontroverted

documentary evidence before the court, the court should respectfully deny the defendants

motion for dismissal based on standing or forum.

Respectfully submitted, S/ Bret D. Landrith Bret D. Landrith Plaintiff appearing Pro se 9743 Sagamore Rd, Leawood, KS 66206 Cell 913-951-1715 [email protected]

! $#!

CERTIFICATE OF SERVICE

I certify I have sent a true copy of this filing via New York Courts Electronic to the defendants on February 22, 2012 as stated: Elizabeth Kukura Suzanne Berger Bryan Cave LLP. Attorneys for BANK OF NEW YORK MELLON CORPORATION, ALTERNATIVE LOAN TRUST 2007-OA7

Exhibit 3 Landrith Answer to Bank of New York Mellon

Documents

jackson trak

citigroup

existed including

african american

cognizable

journal entry

york mellon

kansas judge