Exhibit 8 Landrith Motion to Set Aside Sale and Judgment Case No 10CV1749

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

IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS THE BANK OF NEW YORK ) ) Case No. 10CV1749 v. ) ) Court Number: 2 JEFFERY ALLAN BASLER, et al )

DEFENDANT’S MOTION TO SET

ASIDE SALE AND JUDGMENT UNDER K.S.A. 60-309

Comes now the defendant, BRET D. LANDRITH as the successor in interest to

JEFFERY ALLAN BASLER, the defendant and makes the following Notice to Set Aside

the Sale and Judgment.

The defendant BRET D. LANDRITH refers the court and parties to his

accompanying Answer asserting a separate an independent basis for continuing

jurisdiction of this court to resolve post sale issues in equity and the defendant

incorporates by reference the evidentiary documents and the attested facts in his Notice

Of Successor In Interest And Motion For Extension Of Time To Answer:

STATEMENT OF FACTS

1. The defendant Bret D. Landrith, a citizen of the State of Kansas is an arm’s length

buyer in good faith of the property on 8-1-2011 that is the subject of this litigation is lot

330, Leawood Estates, a subdivision in Leawood, Johnson County, Kansas, according to

the recorded plat thereof, commonly known as 9743 Sagamore Road, Leawood, KS

Exhibit 8 LANDRITH KS Motion to Set Aside Foreclosure

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66206 (the “Property”). See Attachment 1 Defendant’s Affidavit of Lack of Knowledge

and Structural Engineering Defect.

2. The defendant came to check the Johnson County registration of deeds in person

and determined JEFFERY ALLAN BASLER was the registered owner.

3. The defendant checked the Johnson County civil action database for a foreclosure

action against Basler and did not see it.

4. The defendant was told by JEFFERY ALLAN BASLER who resides in the State

of Missouri that he did not know whether there was a foreclosure or not.

5. The record as best can be deciphered by the defendant from the appearance

docket history does not show service of process with return of service on JEFFERY

ALLAN BASLER other than by publication.

6. The interest foreclosed upon, any purported interest in the property or alleged

right to foreclose held by the trust THE BANK OF NEW YORK is acting as an agent for

was purchased by THE BANK OF NEW YORK.

7. The US District Court for The District of New Jersey in a bankruptcy proceeding

applying materially identical state UCC law with Kansas, determined in a finding of fact

that Countrywide Homeloan, Inc. engaged in a pattern and practice of retaining mortgage

notes and not delivering them to the trusts as represented by THE BANK OF NEW

YORK in court proceedings, and found that at law, the trust lacked the right to foreclose

or to otherwise enforce the note. See Attachment 2 Kemp v. Countrywide Home Loans,

Inc., 440 B.R. 624 (Bankr. N.J. 2010).

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MEMORANDUM OF LAW

A sale and judgment of foreclosure obtained on publication service through

default may be set aside under K.S.A. 60-309 within two years of its issuance. Facts have

come to light providing a basis to question the standing of THE BANK OF NEW YORK

and its right to foreclose and whether any valid interest in the 9743 Sagamore Road is

held by its principal.

Neither the defendant BRET D. LANDRITH nor his predecessor in interest

JEFFERY ALLAN BASLER can be found to have acquiesced in the sale or judgment:

“[O]ur court has recently held that failure to participate in the foreclosure sale or to seek a stay does not constitute acquiescence in the judgment. Citifinancial Mortgage Co. v. Clark, 39 Kan.App.2d 149, 155-57, 177 P.3d 986 (2008).”

Deutsche Bank Nat. Trust Co. v. Rooney, 186 P.3d 820 (Kan. App., 2008).

The address of JEFFERY ALLAN BASLER was easily ascertainable and is how

the defendant BRET D. LANDRITH found him and succeeded in interest as the

purchaser of the 9743 Sagamore Road property:

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K.S.A. 60-309:!

“K.S.A. 60-309 (default judgment based on publication service may be set aside within two years of judgment if party had no actual notice).”

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Bank Western v. Henderson, 255 Kan. 343, 874 P.2d 632 (Kan., 1994). The defendant has a colorable defense to a foreclosure action by THE BANK OF

NEW YORK on behalf of a trust claiming a secured interest and right to foreclose

resulting from a Countrywide Mortgage.

The Kansas Supreme Court has stated that a foreclosure could be repudiated as

fraudulent where the mortgagee does not have any right in the mortgage:

"When plaintiff [assignee] discovered what Haas [assignor] had done, it could choose one of two courses of action: It could repudiate the foreclosure proceedings on the ground of fraud, and itself foreclose the Caskey mortgage; or it could confirm the regularity and validity of the foreclosure proceedings as vesting title in Haas [assignor], and hold him as trustee of the title for plaintiff's benefit." 127 Kan. at 242, 273 P. 477. The first course of action is supported by Mutual Benefit Life Insurance Co. v. Huntington, 57 Kan. 744, 48 P. 19 (1897). Once the mortgage is assigned, the mortgagee/assignor no longer has any right in the mortgage, and any judgment the mortgagee/assignor obtained would have been fraudulent.”

Bank Western v. Henderson, 255 Kan. 343, 874 P.2d 632 (Kan., 1994).

It is clearly established that a lack of standing of an entity purporting to foreclose

on a mortgage for another party lacking a valid assignment of rights under the note

negates subject matter jurisdiction of this court and can be raised at any time:

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!1+%02#2"&3/"4'&5"26-0%#06+7&89-'&:74&$'&;%#,#<!MF-,. App., 2010).

K.S.A. 84-3-301 is materially identical to N.J.S.A. 12A:3-301 found to bar New

York Bank’s right to enforce the note. K.S.A. 84-3-301states:

84-3-301: Person entitled to enforce instrument. "Person entitled to enforce" an instrument means (a) the holder of the instrument, (b) a nonholder in possession of the instrument who has the rights of a holder, or (c) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to K.S.A. 84-3-309 or 84-3-

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418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

There being no independent buyer in good faith prevailing at the sheriff’s sale, the

parties would not be prejudiced in a lawful possessory interest by setting aside the sale

and foreclosure judgment.

Respectfully submitted,

________________ Bret D. Landrith Defendant appearing Pro se

CERTIFICATE OF SERVICE

I certify I have mailed a copy of the above pleading to counsel for the plaintiff THE BANK OF NEW YORK on September 12, 2011.

South and Associates, PC Brian P. Hazel 6363 College Blvd. Suite 100 Overland Park, KS 66211 [email protected]

________________ Bret D. Landrith Defendant appearing Pro se

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IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS THE BANK OF NEW YORK ) ) Case No. 10CV1749 v. ) ) Court Number: 2 JEFFERY ALLAN BASLER, et al )

AFFIDAVIT OF NO ACTUAL KNOWLEDGE OF FORECLSOURE AND OF STRUCTURAL ENGINEERING DEFECT

I, BRET D. LANDRITH, a citizen of the State of Kansas attest to the following

related to the property at 9743 Sagamore Road, in the City of Leawood, Johnson County

Kansas:

I am an arm’s length buyer in good faith of the property which is the subject of

this litigation is lot 330, Leawood Estates, a subdivision in Leawood, Johnson County,

Kansas, according to the recorded plat thereof, commonly known as 9743 Sagamore

Road, Leawood, KS 66206 (the “Property”).

Before offering to buy the property, I went to check the Johnson County

registration of deeds in person and determined JEFFERY ALLAN BASLER was the

registered owner.

I then went home and checked the Johnson County civil action database for a

foreclosure action against the name “Basler” and did not see it, the screen showed only a

few cases, not a foreclosure action and I made a PDF of the screen search result which I

later included as an attachment to my motion for an extension of time to answer the

foreclosure.

I went to the last address of the registered owner JEFFERY ALLAN BASLER

who resided in the Plaza area of the City of Kansas City in the State of Missouri and left

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a message on his door answering intercom that I was interested in purchasing whatever

rights he had in the 9743 Sagamore Road property.

He telephoned me and we exchanged email addresses so I could send him my

offer and a proposed quit claim deed.

Later we arranged to meet where I explained my research to him on who was the

registered owner of the 9743 Sagamore Road property.

JEFFERY ALLAN BASLER stated he had no knowledge on whether there was a

foreclosure action on the 9743 Sagamore Road property.

JEFFERY ALLAN BASLER disclosed he had built the current house at 9743

Sagamore Road in 2006 with the desire to resale it on part of the foundation of an older

existing home he had purchased.

I asked about the shoring on the North all of the basement and about water I saw

through the South East basement window where no sump system appeared to be cast in

the basement floor concrete.

JEFFERY ALLAN BASLER disclosed that the drainage systems excavated for

the property had failed and the buyer’s inspection prior to closing revealed two feet of

standing water in the basement resulting in the sales contract being revoked.

JEFFERY ALLAN BASLER disclosed that a childhood friend of his who had

done much of the construction of the current house had re excavated the South East

corner in an attempt to fix the problem.

I relied on the information about the house including the flooding problem

resulting from the construction of the basement foundation in the South East corner of the

structure, the need to have had the North wall of the basement shored because of use of

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part of the existing concrete basement foundation in the 2006 reconstruction of the house

by his childhood friend, and the lack of any knowledge of a foreclosure action or

judgment given to me by JEFFERY ALLAN BASLER at this meeting to reach an

outright cash purchase price of $6,000.00.

I paid JEFFERY ALLAN BASLER while he executed the Quit Claim Deed to me

on the afternoon of August 1, 2011.

Later that day, I rechecked everything and discovered a foreclosure action was on

the electronic record and sent two emails to JEFFERY ALLAN BASLER seeking return

of the funds but did not obtain them. See Exb. 1.

I returned to the property after a light afternoon rain in August 12, 2011 and took

a picture through the basement window at the South East corner of water standing on the

floor of the basement. See Exb. 2

State of Kansas_ ) ) County of Johnson ) Signed and affirmed before me on Month of September, day of _____2011 by

__________________ Bret D. Landrith Affiant

_________________________________

(Signature of notarial officer)

(Seal, if any)

_________________________________

Title (and Rank)

Monday, September 12, 2011 12:51 PM

Page 1 of 1

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