MD-Motion for Leave to Perpetuate Evidence Final

IN THE CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND

Thomas P. Dore, Mark S. Devan, KristenK. Haskins, Gerard F. Miles Jr., and Shannon Menapace As Substituted Trustees

Plaintiff,

VS.

Todd Wetzelberger et al

Defendants

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CASE NO. 03-C-10-000465

MOTION FOR LEAVE TO PERPETUATE EVIDENCE PER MD RULE 2-404(b)

MOTION FOR LEAVE TO PERPETUATE EVIDENCE PER MD RULE 2-404(b)

COMES NOW, Todd Wetzelberger and Erin Rene Wetzelberger per Md. Rule 2-404(b) and

moves the court to enter an Order granting Defendants leave to Perpetuate Evidence for use in

the event of further proceedings in the Circuit Court per Md. Rules 2-411, and 2-422, and for

good cause as follows:

A. REASONS FOR PERPETUATING EVIDENCE

1. M&T Bank Corporation (MTB) and/or its/their purported agents, principals and assigns,

including but not limited to Plaintiffs, Thomas P. Dore et al., are in exclusive possession and

control of critical documents and information regarding its conduct and claims.

2. This subject matter involves real property in possession and control of Defendants and

the controversy associated with the identity of the bona fide real party in interest claiming the

status as purported creditor.

3. In anticipation of a fraudulent non-judicial foreclosure attempt outside of judicial review,

with no lawful standing to do so, Defendants served pre-complaint discovery requests on MTB

and Dore et al.

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4. The controversy also involves the alleged amount of money purportedly claimed to be

due and owing from Defendants to unknown creditor(s) under the purported “loan”, in truth an

undisclosed investment contract that Defendants were made an unwitting party to, violating the

statute of frauds per Md. Code, Com Law § 2-201. See also Miller v. Ameriquest Mortg. Co. (In

re Laskowski), 384 B.R. 518 (U.S. BK N.D. Indiana SB 2008), prohibiting violation of RESPA

and Qualified Written Request demands (emphasis in bold).

A "qualified written request" ("QWR") is a legal  term of art found in the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601   et seq.  It is "a written correspondence . . . that (i) includes . . . the name and account of the [purported] borrower; and (ii) includes a statement of the reasons for the belief of the [purported] borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the [purported] borrower." 12 U.S.C. § 2605(e)(1)(B).

In addition, § 2605(e) requires that "any servicer of a federally related mortgage loan" which receives a QWR from the borrower or its agent "shall provide a written response acknowledging receipt of the correspondence within 20 days" and shall "make appropriate corrections" to the [purported] borrower's account or "provide the [purported] borrower with a written explanation" within 60 days. 12 U.S.C. § 2605(e)(1)(A), (e)(2).

The Real Estate Settlement Procedures Act ("RESPA") is a federal statute enacted to provide consumers "with greater and more timely information on the nature and costs of the settlement process" and to protect consumers from "unnecessarily high settlement charges caused by certain abusive practices." 12 U.S.C. § 2601(a). Its purpose is "to effect certain changes in the settlement process for residential real estate that will result" in better disclosure of settlement costs to home buyers and sellers, elimination of kickbacks, reduction in amounts escrowed for payment of taxes and insurance, and other reforms. Id., § 2601(b); See Williams v. Countrywide Home Loans, Inc.,   504 F. Supp. 2d 176, 191 (S.D. Tex. 2007) .

The Real Estate Settlement Procedures Act ("RESPA") imposes a duty upon loan servicers to respond to certain [purported] borrower inquiries. The Act provides for individual causes of action and "allows for actual damages, as well as statutory damages upon a showing of a pattern or practice of noncompliance with the duty to respond to borrower inquiries."

Hopkins v. First NLC Fin'l Servs, LLC (In re Hopkins),   372 B.R. 734, 746 (Bankr. E.D. Pa. 2007) (citation omitted).

5. In an attempt to avoid litigation, Defendant has served multiple pre-suit discovery

requests over the past few years, for substantiation, validation, and authentication of the

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purported “debt” claimed to be due and owing. Those requests were never complied with by

MTB and its/their agents, principals or assigns.

6. On or about June 21, 2009, over 6 months before Substituted Trustees Dore et al filed a

fraudulent foreclosure case against the legal estate of TODD G. WETZELBERGER, M&T Bank

received a Qualified Written RESPA Request (QWR) sent via certified mail # 7009 0080 0001

6021 2851 for an audit of Account #0011973187 per Fair Debt Collection Practices Act, 15 USC

1692G Section 908(b) of all official documents that would establish validity of the purported

“debt” and allow a team of analysts to review all official contracts, records, ledger entries, the

original genuine (free from fraud or forgery) promissory note, original, genuine (free from fraud

or forgery) DOT, and book keeping practices pertaining to Acct. # 0011973187. (Def. Exhibit

“Ex.” 1)

7. Per Federal Law, the respondent to a RESPA QWR had 60 business days to fully comply

with the request as mandated.

8. MTB and Dore et al. had a duty to comply with said discovery requests and validation of

purported claim per federal mandates as defined in 15 U.S.C. and 12 U.S.C., per RESPA, TILA,

FDCPA and commercial law as codified in Md. Code, Com. Law.

9. M&T Bank failed/ refused to fully and substantively answer said QWR and to comply

with state and federal law requiring M&T Bank to do so.

10. The information necessary to conduct forensic accounting regarding Acct. #

0011973187, including the Pooling and Servicing Agreement (PSA), verified chain of custody of

the original security(s) (unaltered, genuine, free from fraud or forgery, wet ink signature

promissory note and DOT), that after 1050 days , has not been provided in direct violation of

Federal law.

11. Defendants’ investigation revealed that Todd Wetzelberger’s personal property, the 3

page original genuine (free from fraud or forgery) wet ink signature interest-only period fixed

rate note #0011973187, dated December 22, 2006, is not “owned” or “held” by MTB, but is

currently being traded through the Fidelity Independence Fund, Symbol FDFFX. Inception date

3-25-83, net assets in fund $4.28 Billion.

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12. Per Md. Code, Com. Law § 3-501, Petitioner conditionally accepted the offer of MTB to

illegally foreclose on Defendant’s real property, without a court order of sale, for alleged failure

to pay on the purported “loan”, upon proof of claim.

13. To rebut the presumption that Defendants are deadbeats and to stay in commercial

honor, Defendants tendered legal tender funds with a neutral third party escrow agent in

exchange for the production of Todd Wetzelberger’s personal property, the original genuine

unaltered, un-bifurcated note and deed of trust.

14. Despite the failure of MTB and its/their agents to substantively reply to Defendant’s

notices and demands, and failure to provide proof of claim, MTB and its/their agents attempted

an illegal foreclosure “sale”.

15. Unsubstantiated documentation is impermissible throughout the country per state and

federal rules of evidence. See generally Aurora Loan Servs. LLC v. Carlsen, 2011 WI App 58

(March 24, 2011) in which the Court reasoned and held as follows (emphasis in bold):

P7 Aurora argues that Conner's testimony is sufficient to support the circuit court's finding that Aurora had been assigned the note. Our review of her testimony, however, reveals that Conner lacked the personal knowledge needed to authenticate Exhibit D. See Wis. Stat. § 909.01 (documents must be authenticated to be admissible, and this requirement is satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims"). Relevant here, Conner made general assertions covering several documents. Conner either affirmatively testified or agreed to leading questions with respect to the following:• She works for Aurora.

• She "handle[s] legal files" and she "attend[s] trials."

• "Aurora provided those documents that are in [her] possession."

• She "reviewed the subject file" in preparing for the hearing.

• She declined to agree that she is the "custodian of records for Aurora."

• She "look[s] at documentation ... [does] not physically handle original notes and documents, but [she does] acquire documentation."

• "Aurora [is] the custodian of records for this loan."

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• She is "familiar with records that are prepared in the ordinary course of business."

• She has "authority from Aurora to testify as to the documents, of [Aurora's] records."

As it specifically pertains to Exhibit D, the document purporting to be evidence of the assignment of the note and mortgage from Mortgage Electronic Registration Systems to Aurora, Conner testified:

• Aurora has "possession of Exhibit D."

• Exhibit D is "an assignment of mortgage."

With respect to possession of Exhibit D, Conner did not assert that Exhibit D was an original or that Aurora had possession of the original document. For that matter, Conner did not provide a basis for a finding that any original document she might have previously viewed was what it purported to be. 2

P8 Thus, Conner did no more than identify herself as an Aurora employee who was familiar with some unspecified Aurora documents, who had reviewed some Aurora documents, and who had brought some documents, including Exhibit D, to court. Although Conner was able to say that Exhibit D, on its face, was an assignment, she had no apparent personal knowledge giving her a basis to authenticate that document. See Wis. Stat. § 909.01.P12 In sum, Aurora failed to authenticate Exhibit D, the document purporting to be an assignment of the note. Thus, regardless of other alleged proof problems relating to that note and the Carlsens' alleged default, the circuit court's finding that Aurora was the holder of the note is clearly erroneous—no admissible evidence supports that finding. Aurora failed to prove its case, and it was not entitled to a judgment of foreclosure.

16. The copy of the Deed of Trust (DOT) purportedly recorded among the land records of

Baltimore County MD in Liber 25061, folio 434, re-recorded in Liber 27296, folio 281 violates

the Uniform Trust Code § 406 and Md. Code, Real Property § 5-105, and is void, not voidable,

for fraud.

17. After notice and opportunity to not do so, the willful filing of false affidavits, recording

and re-recording of said void Deed of Trust, and void fraudulent Trustees Deed are acts of filing

false documents into a public office in violation of Md. Code, Crim. Law § 8-606 (b)(1) and Md.

Lawyer Rules of Professional Conduct (MLRPC) 3.1, 3.3 and 3.4, that call for disbarment. See

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Atty. Griev. Comm'n v. Byrd, 408 Md. 449 (2009), followed by In re Byrd, 2011 Bankr. LEXIS

608 (Bankr. D. Md., Feb. 10, 2011).

18. Neither MTB or Dore et al. are in control and possession of any admissible evidence of

default of any purported “loan”, a condition precedent per Md. Rule 14-205(a),(b) to warrant

filing said fraudulent foreclosure complaint in the Circuit Court for Baltimore County.

19. Public record, self authenticating admissible evidence per Md. Evid. Rule 5-902, show

that M&T had notice and opportunity on 4 different occasions to collect legal tender funds to

settle the purported “debt” and to return the Plaintiff’s personal property, the original genuine

(free from fraud or forgery) wet ink signature promissory note and DOT.

20. Defendant M&T failed/refused to collect said funds per Md. Code, Com. Law § 3-603

and to return said personal property to Plaintiff.

21. Defendants, as bailors, entrusted MTB as bailee, to hold Todd Wetzelberger’s personal

property, the original genuine (free from fraud or forgery) wet ink signature promissory note and

DOT for Todd Wetzelberger’s benefit as MTB had a duty of safekeeping.

22. With no express or implied authority from Todd Wetzelberger, MTB, through its agent

Jill M. Smith, V.P. M&T Bank, illegally converted Plaintiff’s personal property from a promise

to pay into a draft/ security subject to Md. Code, Com Law, Article 8.

23. Said illegal conversion is subject to rescission of the negotiation of Todd Wetzelberger’s

personal property, per Md. Code, Com. Law§ 3-306.

24. Conversion of one’s personal property is a crime subject to criminal charges and civil

liability.

25. MTB without express or implied authority sold and/or transferred Plaintiff’s personal

property after said illegal conversion as evidenced by the 2007 10K Annual Report and 424(b)

(5) S-17 Prospectus Supplement filed by M&T Bank with the Securities and Exchange

Commission, that is public record, self authenticating, admissible evidence per Md. Evid. Rule §

5-902, excerpted and links below.

http://www.sec.gov/Archives/edgar/data/36270/000095015207001456/l22721ae10vk.htmhttp://www.sec.gov/Archives/edgar/data/36270/000095015208000579/l29527ce424b5.htm

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p. 90 of 10K- As of December 31, 2006, the latest available investment ratings of all privately issued mortgage-backed securities were A or better, with the exception of 17 securities with an aggregate amortized cost and estimated fair value of $74,646,000 and $76,384,000, respectively.

p.91 of 10K- line item Mortgage-backed securities available for sale (in thousands)    5,774,372 (amortized cost)     5,704,238 (estimated fair value)  

p.93 of 10K- One-to-four family residential mortgage loans held for sale were $1.9   billion at De - cember   31, 2006 and $1.2 billion at December 31, 2005. One-to-four family residential mortgage loans and smaller balance commercial mortgage loans with many repayment characteristics similar to residential mortgage loans that are serviced for others totaled approximately $16.7   billion and $15.6   billion at December   31, 2006 and 2005 , respectively. As of December   31, 2006, approxi - mately $7   million of one-to-four family residential mortgage loans serviced for others had been sold with credit recourse.

p.115,116 of 10K- The Company utilizes commitments to sell residential and commercial real estate loans to hedge the exposure to changes in the fair value of real estate loans held for sale. Such commitments have been designated as fair value hedges. The Company also utilizes commitments to sell real estate loans to offset the exposure to changes in the fair value of certain commitments to originate real estate loans for sale.

p.117 of 10K- Securitizations In December 2005, the Company securitized approximately $126   million, of one-to-four

family residential mortgage loans in a guaranteed mortgage securitization with FNMA. The Company recognized no gain or loss on the transaction as it retained all of the resulting securities. Such securities were classified as investment securities available for sale. The Company expects no material credit-related losses on the retained securities as a result of the guarantees by FNMA.

In prior years, the Company transferred approximately $1.9   billion one-to-four family residential mortgage loans to qualified special purpose trusts in non-recourse securitization transactions. In exchange for the loans, the Company received cash, no more than 88% of the resulting securities, and the servicing rights to the loans. All of the retained securities were classified as investment securities available for sale. The qualified special purpose trusts are not included in the Company’s consolidated financial statements. Because the transactions were non-recourse, the Company’s maximum exposure to loss as a result of its association with the trusts is limited to realizing the carrying value of the retained securities and servicing rights. The combined outstanding principal amount of mortgage-backed securities issued by the qualified special purpose trusts was $732   million at December   31, 2006 and $877 million at December 31, 2005. The principal amount of such securities held by the Company was $627   million and $757   million at December   31, 2006 and 2005, respectively. At December 31, 2006 and 2005, loans of the trusts that were 30 or more days delinquent totaled $14 million and $16 million, respectively. Credit losses, net of recoveries, for the trusts in 2006 and 2005 were insignificant. There were no significant repurchases of delinquent or foreclosed loans from the trusts by the Company in 2006 or 2005.

p. 118, paragraph 19 of 10K- With the exception of marketable securities, certain off-balance sheet financial instruments and one-to-four family residential mortgage loans originated for sale, the Company’s financial instruments are not readily marketable and market prices do not exist.

p.119 of 10K table line items- Commitments to originate real estate loans for sale (in thousands)  $ 3,095     $ 3,095     $ 1,813     $ 1,813   Commitments to sell real estate loans

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    (16,293 )     (16,293 )     (6,274 )     (6,274 )

p.120 of 10K Agreements to resell securities The amounts assigned to agreements to resell securities were based on discounted calculations of projected cash flows. (1099OID-original issue discount, public debt instruments).

p.120 of 10K Commitments to originate real estate loans for sale and commitments to sell real estate loans As described in note 17, the Company enters into various commitments to originate real estate loans for sale and commitments to sell real estate loans. Such commitments are considered to be derivative financial instruments and, therefore, are carried at estimated fair value on the consolidated balance sheet. The estimated fair values of such commitments were generally calculated by reference to quoted market prices for commitments to sell real estate loans to certain government-sponsored enti-ties and other parties.

p.121 of 10K- Residential real estate loans to be sold (in thousands) 679,591 (2006)  351,898 (2005) 

p.122 of 10K- The Company utilizes commitments to sell real estate loans to hedge exposure to changes in the fair value of real estate loans held for sale. Such commitments are considered derivatives in accordance with SFAS No. 133 and along with commitments to originate real estate loans to be held for sale are generally recorded in the consolidated balance sheet at estimated fair market value. However, in estimating that fair value for commitments to originate loans for sale, value ascribable to cash flows that will be realized in connection with loan servicing activities has not been included. Value ascribable to that portion of cash flows is recognized at the time the underlying mortgage loans are sold. Additional information about such derivative financial instruments is included in note 17.

p. S-17 of 424(b)(5) Prospectus Supplement- Prior to 2007, M&T sold substantially all of the Alt-A residential real estate loans that it originated .

    26. Public record business publications substantiate MTB’s public record SEC filings.

http://www.businessweek.com/investor/content/apr2007/pi20070405_121074.htm

Paragraph 2- Investors are worried about regional bank exposure to Alt-A mortgages, given M&T Bank's (MTB; ranked 3 STARS, hold) profit warning on Mar. 30. The bank indicated the market for the Alt-A loans that it packages and securitizes has cooled off, leading to lower prices and lower mark-to-market prices for the loans that aren't sold. M&T Bank says it's contractually liable to buy back nonperforming Alt-A mortgages. The bank also warned that deposit costs would be higher than expected, leading to further net interest margin compression.

27. Due to its international activities and offshore branch(s) outside the jurisdiction of the

UNITED STATES, as evidenced by its 2007 10K Annual Report, MTB must comply with the

reporting requirements of both the Bank Secrecy Act and Title III of the Patriot Act.

p. 114 of 10K- paragraph 16. International ActivitiesThe Company engages in certain international activities consisting largely of collecting Eurodollar deposits, engaging in foreign currency trading, providing credit to support the international activities of domestic companies and holding certain loans to foreign borrowers. Net assets identified with

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international activities amounted to $185,175,000 and $230,021,000 at December 31, 2006 and 2005, respectively. Such assets included $175,528,000 and $216,798,000, respectively, of loans to foreign borrowers. Deposits at M&T Bank’s offshore branch office were $5,429,668,000 and $2,809,532,000 at December 31, 2006 and 2005, respectively. The Company uses such deposits to facilitate customer demand and as an alternative to short-term borrowings when the costs of such deposits seem reasonable.

28. Dore et al, after notice and opportunity that Dore et al was participating in a fraud,

knowingly and willfully filed a fraudulent suit to foreclose on real property against the legal

estate of TODD G. WETZELBERGER on January 13, 2010.

29. M&T Bank and Dore et al, after notice and opportunity, and prior to filing a fraudulent

foreclosure case against the legal estate of TODD G. WETZELBERGER, failed to substantiate,

validate and authenticate the purported “debt” and failed to disclose material facts to Defendants

as conditions precedent before filing said fraudulent suit.

30. The failure of MTB and Dore et al to disclose material facts violated the Md. Lawyers

Rules of Professional Conduct (MLRPC) Rule(s) 3.1., 3.3, and 3.4.

31. Michael Cantrell Esq, after notice and opportunity, and prior to filing a false Motion for

Writ of Possession and fraudulent affidavit purportedly sworn to by Thomas Fitzgibbons, failed

to substantiate, validate and authenticate Cantrell’s claim and failed to disclose material facts to

Plaintiff in violation of MLRPC Rule(s) 3.1, 3.3 and 3.4.

32. The failure of MTB, Dore et al., and Cantrell to disclose material facts, and material

omissions by all of them unduly prejudiced Defendants.

33. In the instant case, Christoper M. Zeis, as purported VP of MTB swore in an affidavit un-

der penalty of perjury that a copy (inadmissible evidence) of the “original” promissory note was

true and correct despite being strangely absent an indorsement.

34. Approximately 18 months prior, the ’08 note with indorsement was also sworn to under

penalty of perjury as a true and correct copy by both Laurie Abramo Asst VP, MTB and Thomas

P. Dore, substituted trustee.

35. On August 11, 2010, in the Circuit Court for Baltimore County, Maryland, Thomas P.

Dore admitted on the record under oath and penalty of perjury that he did not have any per-

sonal knowledge of any facts in the purported “loan agreement”, the subject of this foreclosure

action.

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36. Dore also admitted on the record, under oath in the same hearing on August 11, 2010,

that he was not present at the purported “loan closing” and is not a competent witness to attest to

any purported “facts” in the instant case.

37. Defendants have discovered that on or about October 13, 2010 Judge Alan M. Wilner,

who chairs the Maryland Court of Appeals Special Committee on Rules of Practice and Proce-

dure, wrote in a memo to committee members that "preliminary audits have shown that hundreds

of such bogus affidavits have been filed in Maryland circuit courts. The judges are alarmed at

this development."

38. Judge Wilner also stated in a letter to the court “In the Committee’s view, the use of bo-

gus affidavits to support actions to foreclose…. constitutes an assault on the integrity of the judi-

cial process itself”.

39. MTB has a history of defrauding homeowners. MTB also has a history of defrauding the

Federal Government. Were it not for a whistleblower, the public may have never known about

these facts.

40. MTB was caught in a scheme to defraud the U.S. Government via the HUD 203K pro-

gram. Case details are found in the U.S. District Court- Eastern District of N.Y. Pugach et al v.

M&T Mortgage Case #CV-05-2498. http://www.prnewswire.com/news-releases/m--t-bank-

subject-of-whistle-blower-lawsuit-bank-accused-of-defrauding-government-out-of-millions-

from-forged-mortgages-52712792.html

“The whistle blower suit stems from a case involving more than 50 mortgages owned by M&T on properties in Manhattan and Brooklyn that were fraudulently secured through HUD's 203K program for non-profits. A new admission by M & T's lawyer reveals there are nearly 400 fraudulent mortgages worth a half-billion dollars. Indeed, on Friday night, June 29, 2007, Todd Marcus, the attorney for M & T, admitted in a letter to the court that his client never made him aware of a secretive deal between the bank and HUD, in which HUD agreed to pay off not just these 50 fraudulent mortgages, but an astonishing total of 374 fraudulent mortgages worth some $500 million! Marcus previously represented to the court that M & T had no knowledge of any fraud in the origination of any of these loans. The deal between M & T was reached six years ago, according to a letter dated January 11, 2001. Although his law partner attended the meeting at which the deal was reached, Marcus told the court on Friday that he was not aware of the agreement or even the letter's existence until April of this year!”

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41. The instant case is currently on interlocutory appeal with the Court of Special Appeals of

Maryland.

B. FACTS TO BE ESTABLISHED AND REASONS FOR DISCOVERY

42. Petitioner seeks to establish the following facts:

1) MTB and/or its their agents, principals and assigns are not the real party in in-

terest with standing to file a foreclosure case against Defendants.

2) Defendants’ personal property, the original, genuine, wet ink signature, unal-

tered note and deed of trust (DOT) have been bifurcated (split) rendering the se-

curity instrument void.

3) Defendants’ personal property, the original note and DOT have generated

multiple times the face amount in profits to MTB and/or its/their agents, princi-

pals and assigns.

4) Said profits are due and owing to Defendants per Md. Code, Com. Law § 3-

305.

5) MTB and/or its/their agents principals or assigns are not the source of the first

funds transfer to Defendants and do not meet the definition of “creditor”.

6) The verified chain of custody of Defendants’ personal property (original note

and DOT) has been broken.

7) The purported “original” note offered by Thomas P. Dore into evidence at the

11 August 2010 hearing is NOT the authenticated, unaltered, original, genuine

(free from fraud or forgery) wet ink signature note. It is a counterfeit color copy,

as is often used to create the illusion of an “original” security.

8) Neither Dore et al. or any purported “affiants”, that filed inadmissible hearsay

affidavits in the instant case, have any credibility.

C. PERSONS TO BE EXAMINED AND THE SUBSTANCE OF THE TESTIMONY EX-PECTED

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43. The following is a partial list of known persons to be examined and the substance of testi-

mony expected from each person. Defendants reserve the right to expand upon this list if further

discovery is necessary.

44. Corporate officer of MTB (preferably CFO) with a fiduciary duty to answer for the

company- identification of source of “funds” for the purported “loan”; identification of any

person(s) who took possession of Defendants’ original note and DOT; produce admissible

evidence that a trust was formed for the benefit of MERS as nominee for MTB with Thomas P.

Dore as purported “trustee”.

45. Corporate officer of MTB with a fiduciary duty to answer for the company (preferably

CFO)- how MTB came into possession and control of Defendants’ personal property (original

note and DOT); produce admissible evidence of a verified chain of custody of said original note

and DOT; produce admissible evidence of the rights, duties, obligations, and liability of MTB

under the Pooling and Servicing Agreement (PSA).

46. Substitute Trustees Dore et al., with a fiduciary duty to answer - how Dore et al. came into

possession and control of Defendants’ personal property (purported original note and DOT) that

Dore et al. entered into evidence in the instant case ; produce admissible evidence of a verified

chain of custody of said note and DOT; an accounting of purported substitute trustee as to the

specific account the “funds” alleged to have been given to Defendants were drawn from to

support the Statement of [purported] Debt and Amended Statement of [purported] Debt filed by

substitute trustees in the instant case; an accounting of the transaction deposit account that

Defendants’ personal property (original note) was deposited into as a special deposit to be held

for Defendant upon repayment of the alleged “loan”; produce admissible evidence of the rights,

duties, obligations, and liability of MTB under the Pooling and Servicing Agreement (PSA).

47. Corporate officer of MERS with a fiduciary duty to answer for the company- how MERS

came into possession and control of Defendants’ personal property (original note and DOT) as

purported “beneficiary” and purported “nominee” for MTB; produce admissible evidence of a

verified chain of custody of said note and DOT; produce admissible evidence of the rights,

duties, obligations, and liability of MERS as purported “nominee” of MTB under the Pooling

and Servicing Agreement (PSA).

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48. Corporate officer of Covahey, Boozer, Devan and Dore, P.A., with a fiduciary duty to

answer- how Thomas P. Dore was appointed purported trustee and Dore et al. were appointed

purported “successor trustee”, and to admit or deny that said appointments did not violate the

Uniform Trust Code; what pecuniary interest Dore et al. has in the foreclosure case and

purported “sale” of Defendants’ property as both purported “successor trustee” and “debt

collector” as defined by the FDCPA; what duties, obligations, and liabilities Dore et al. has to

Defendants and the court as attorneys bound by their oath, the MLRPC, specifically Rule(s) 3.3-

candor toward the tribunal, 3.4- fairness to opposing party, 3.7- attorney as witness, and as

officers of the court; what fiduciary duty Dore et al. has to Defendants as the grantors/ settlors/

donors of the DOT and as the holders of the power of appointment under the Power of

Appointment Act of 1951.

49. Christopher M. Zeis, purported “VP” of MTB, purported VP of MERS, and purported VP of

Chase Home Finance LLC,- what admissible evidence and first hand knowledge Mr. Zeis has in

his possession and control, granting him delegation of authority to purportedly authenticate a

copy of Todd Wetzelberger’s personal property (original note) as a “true and correct copy”; what

personal first hand knowledge Mr. Zeis has with regard to the alleged “loan” account and any

amount purportedly due and owing to MTB at the time of the alleged negotiation and conversion

of said note MTB; what rights, duties, obligations, liabilities MTB and MERS had/have under

the PSA.

50. Laurie Abramo, purported Asst. VP of MTB- what admissible evidence and first hand

knowledge Ms. Abramo has in her possession and control, granting her delegation of authority to

purportedly authenticate a copy of Todd Wetzelberger’s personal property (original note) as a

“true and correct copy”; what personal first hand knowledge Ms. Abramo has with regard to the

alleged “loan” account and any amount purportedly due and owing to MTB at the time of the

alleged negotiation and conversion of said note MTB; what rights, duties, obligations, liabilities

MTB and MERS had/have under the PSA.

51. Jill M. Smith, purported Vice President of MTB- what admissible evidence and first

hand knowledge Ms. Smith has in her possession and control, granting her delegation of

authority from Todd Wetzelberger to alter, indorse, convert, and securitize Todd

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Wetzelberger’s personal property, the original genuine (free from fraud or forgery),

unaltered wet ink signature note.

52. Michael T. Cantrell Esq.-what admissible evidence and first hand knowledge Mr.

Cantrell has in his possession and control, granting him delegation of authority from

MTB to file a Motion for Writ of Possession, after Mr. Cantrell was served a Notice and

Demand for Proof of Claim by Defendants, that Mr. Cantrell failed and refused to object

to or answer. Mr. Cantrell opted instead to file the Motion For Writ of Possession with

prior knowledge of the defects in MTB’s purported claim.

53. Todd Marcus, Esq.- what first hand knowledge Mr. Marcus has with regard to the

pattern and practice of MTB misrepresenting facts, defrauding homeowners, and

defrauding the U.S. government.

54. A corporate officer of Phoenix Title, preferably Gary Graham- what admissible

evidence is in the possession and control of Mr. Graham to authenticate the verified chain

of custody of Defendants’ personal property (original note and original DOT).

D. DOCUMENTS OR THINGS TO BE INSPECTED AND PRESERVED

55. In the interest of judicial economy and to not overburden Plaintiffs, Defendants have at-

tempted to limit the documents and things that will be compelled to be produced for inspection,

copying and preservation by a questionable document/ forensic examiner/ fraud expert to a

bare minimum. The following list is reasonably calculated to lead to admissible evidence at trial.

This list is not an exhaustive list and Defendants reserve the right to expand on the list of docu-

ments or things to be inspected as justice requires (for clarity- emphasis in bold and underline).

a) The authenticated original issue, unaltered, genuine (free from fraud or forgery per Md. Code, Com Law § 1-201(18)) wet ink signature, contract sworn to under penalty of perjury by a “C” level company officer, signed be-tween both the alleged “debtor” and MTB, for the alleged debt claimed.

b) The original, unaltered wet ink signature contract, sworn to under penalty of per-jury, that Dore et al. has with MTB as agents to collect the purported “debt”. Purported “oral” contracts not reduced to a written record are not acceptable.

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c) A signed and sworn statement before a notary public under penalty of perjury, by a person having firsthand knowledge of the alleged indebtedness, stating that the reported indebtedness was a lawful indebtedness under all applicable state and federal laws; was not subsequently disputed; and swearing that the purported “debt” is not now, nor ever has been, part of any tax write off scheme nor insur-ance claim.

d) The original genuine (free from fraud of forgery) “wet ink signature” complete credit application, containing all mandated disclosures, that Defendants allegedly signed to secure the purported credit account, including the CUSIP number as-signed to said application.

e) The authenticated, original, unaltered, genuine (free from fraud or forgery) wet ink signature promissory note, purportedly signed by Todd Wetzelberger sworn to under penalty of perjury by a credible witness (document custodian) in posses-sion and control of the verified chain of custody.

f) A signed and sworn statement before a notary public under penalty of perjury by the document custodian, having firsthand knowledge of the purported “indebted-ness”, stating that the original, wet ink signature “credit” application and subse-quent original note was not bifurcated, was not illegally converted, securitized and transferred/sold into a pool of like assets via a Real Estate Mortgage Invest-ment Conduit (REMIC).

g) The original, genuine, unaltered, verified, authenticated independent accounting, sworn to under the penalty of perjury, where MTB incurred a log of an alleged debt and/or evidence that MTB actually loaned “money”, “funds” or “credit”, in-curred any liability, or gave anything of value (consideration) to Defendants.

h) Verified, authenticated statement of each transaction, that is part of the alleged cumulative debt, sworn under penalty of perjury.

i) Original, authenticated cancelled check, front and backside, for the alleged “money” deposited by alleged creditor into the alleged account for the alleged debt.

j) Original, genuine, unaltered, authenticated and verified contract or other instru-ment through which MTB authorized/ assigned/ or transferred to Dore et al. as third-party collection agent, the collection of the alleged “debt”.

k) Provide a true and correct authenticated, verified copy of the instrument by which MTB was authorized as a mixed-ownership government chartered corpo-ration with authority to hypothecate credit of the United States (31 U.S.C. § 9101).

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l) Provide the delegation of authority from the Director of the Office of Manage-ment Budget to MTB and Dore et al. that authorizes MTB or Dore et al. to settle accounts of the United States (Public Law 104-316).

m) Provide an authenticated, certified as true and correct copy, sworn to under penalty of perjury by the CFO of MTB of the Form(s) 1099-OID and 8281 filed with the Internal Revenue Service, evidencing MTB as the “issuer” and source of “funds” of the purported “account(s)”.

n) Provide admissible verified calculation per GAAP (books must balance), sworn to under penalty of perjury by a “C” level executive of MTB of what MTB claims Todd Wetzelberger purportedly owes to MTB;

o) Original, authenticated, verified admissible evidence of the true identity of the original purported bona fide “creditor(s)” who allegedly advanced their “credit” to Todd Wetzelberger;

p) Admissible, verified, substantiated evidence per Maryland and Fed. Evid. Rules, that MTB put any assets at risk, or provided valuable consideration to Todd Wet-zelberger (consideration is a necessary element to a lawful contract).

q) The original, genuine, authenticated, unaltered assignment contract and/or pur-chase and sale agreement, signed by all parties, for any alleged creditor who claims to be a successor creditor with lawful standing to bring a claim at law (not to be confused with a corporate fiction “equity” court).

r) A sworn “Proof of Loss” by a “C” level officer of MTB with personal First-Hand Knowledge. Proof of Election of “Specific Charge-Off Method” or “Nonaccrual-Experience Method” with EVIDENCE OF TAX ACCOUNTING per IRS Pub. 535 Ch.10.

s) A completed and notarized IRS Form 56 providing fiduciary relationship and responsibility, and identifying any unauthorized activity, theft and tax evasion on the purported account, the subject of the instant case;

t) A completed IRS W9 by alleged creditor identifying their Federal ID number;

u) An “Assurance of Due Performance”, by a “C” level corporate officer of MTB with First-Hand Knowledge of the alleged debt, stating that all material facts re-garding the alleged account and the alleged debt were correctly and fully dis-closed to the alleged debtor;

v) Authenticated, verified, evidence that the alleged account, the subject of the in-stant case is in “default”, sworn to by a “C” level executive of MTB with first hand knowledge and credibility.

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w) The original, unaltered, genuine, wet ink signature, authenticated and verified Deed of Trust, with accompanying authenticated chain of custody, purportedly signed by Defendants.

x) An independent CPA Affidavit assuring alleged creditor did not write-off the al-leged “debt” on their corporate taxes, did not collect “bad debt” insurance on the alleged debt, and did not charge-off the alleged debt on any credit bureau report;

y) The whereabouts or location of any/ all competent first hand, credible, fact wit-nesses, including any/ all attorneys, that can be deposed under oath as to the pur-ported “indebtedness” claimed to be due and owing to MTB by Todd Wetzel-berger.

z) Admissible verified evidence that Dore et al. is licensed to collect on behalf of MTB in the STATE OF MD.

aa) Any original, genuine, authenticated, certificated or uncertificated security, front and back, used for the funding of account # 0011973187.

bb) Any and all “Pooling Agreement(s)” related to MTB account # 0011973187 be-tween MTB, and any government sponsored entity, hereinafter (GSE) or any other person as defined in Title 26 U.S.C., Title 12 U.S.C. Title 15 U.S.C. and the SEC Manual of 1934.

cc) Any and all “Deposit Agreement(s)” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

dd) Any and all “Servicing Agreement(s)” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

ee) Any and all “Custodial Agreement(s)” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

ff) Any and all “Master Purchasing Agreement(s)” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

gg) Any and all “Issuer Agreement(s)” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

hh) Any and all “Commitment to Guarantee agreement(s)” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

ii) Any and all “Release of Document agreements” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

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jj) Any and all “Master Agreement for servicer’s Principle and Interest Custodial Account” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

kk) Any and all “Servicers Escrow Custodial Account” regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

ll) Any and all “Release of Interest” agreements between regarding account # 0011973187 between MTB, and any GSE or any other person as defined in ¶ bb.

mm) Any Trustee agreement(s) between MTB and unknown persons as defined in ¶ bb regarding account # 0011973187 or pool accounts with any GSE or unknown persons as defined in ¶ bb.

nn) Any and all original, authenticated, wet ink signature sales contracts, servicing agreements, assignments, allonges, transfers, indemnification agreements, re-course agreements and any third party agreement(s) related to MTB account # 0011973187 from its inception to the current date.

oo) Any and all original, authenticated documentation evidencing any trust relation-ship regarding the lien instrument and any original Note/Security related to MTB account # 0011973187 from its inception to the current date.

pp) Any and all original, authenticated document(s) establishing any bona fide Trustee(s) of record that claim or claimed legal or equitable title to the un-bifur-cated original lien instrument and any Note/Security related to MTB account # 0011973187 from its inception to the current date.

qq) Any and all original, authenticated document(s) establishing any Grantor(s)/Sett-lor(s)/Donor(s) of record for the un-bifurcated original lien instrument and any original Note/Security related to MTB account # 0011973187 from its inception to the current date.

rr) Any and all original document(s) establishing the date of any appointment of any bona fide Trustee(s) of record that claim or claimed any legal or equitable title to the un-bifurcated original lien instrument and any original Note/Security related to MTB account # 0011973187 from its inception to the current date. Please also include any and all assignments or transfers or nominees of any substitute trustee(s).

ss) Any and all original document(s) establishing any bona fide Grantee of record that claim or claimed any legal or equitable title to the un-bifurcated original lien instrument and any original Note/Security related to MTB account # 0011973187 from its inception to the current date.

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tt) Any and all original document(s) establishing any bona fide Beneficiary of record that claim or claimed any legal or equitable title to the un-bifurcated origi-nal lien instrument and any original Note/Security related to MTB account # 0011973187 from its inception to the current date.

uu) Any and all original documentation evidencing the fact that a constructive trust or any other form of trust was NOT formed to give restitution and reimburse-ment to the Plaintiff with regard to MTB account # 0011973187 and Case # 03-C-10-000465, Dore et al. v. Wetzelberger et al. docketed in the Circuit Court for Baltimore County, Maryland.

vv) Any and all original data, information, notations, text, figures and information contained in the servicing and accounting computer systems including, but not limited to Alltel or Fidelity CPI system, or any other similar account servicing software used by MTB, any servicers, or sub-servicers of MTB account # 0011973187 from the inception of this account to the current date.

ww) Any and all original descriptions and legends of all Codes (with a detailed plain English description) used in MTB’s servicing and accounting system so that the examiners, auditors and experts retained to audit and review MTB ac-count # 0011973187 may properly conduct their work.

xx) Any and all original assignments, transfers, allonge(s), or other document(s) evi-dencing a transfer, sale or assignment of account # 0011973187, monetary instru-ment or other document that purportedly secures payment by Todd Wetzelberger to the purported obligation MTB claims to be due and owing on account #0011973187 from the inception of this account to the present date including any such assignments on MERS.

yy) Any and all original records, electronic or otherwise, of assignments of account # 0011973187, monetary instrument or servicing rights to account # 0011973187 including any such assignments on MERS.

zz) Any and all original front and back of each and every canceled check, money or-der, draft, debit or credit notice issued to any/all servicers, including MTB of ac-count # 0011973187 for payment of any purported monthly payment for “princi-pal”, “interest”, other payment, escrow charge, fee or expense on account # 0011973187.

aaa) All escrow analyses conducted on MTB account # 0011973187 from the incep-tion of this account until the current date;

bbb) Any and all original front and back copies of each and every canceled check, draft or debit notice issued for payment of closing costs, fees and expenses listed

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on any and all mandated disclosure statement(s) including, but not limited to, ap-praisal fees, inspection fees, title searches, title insurance fees, credit life insur-ance premiums, hazard insurance premiums, commissions, attorney fees, points, etc. with regard to MTB account # 0011973187.

ccc) Any and all original front and back copies of all payment receipts, checks, money orders, drafts, automatic debits and written evidence of payments made by others for Todd Wetzelberger on MTB account # 0011973187.

ddd) Any and all original front and back copies of checks or payments MTB issued for MTB account # 0011973187.

eee) Any and all original letters, statements and documents sent to Defendants by MTB directly related to MTB account # 0011973187.

fff) Any and all original letters, statements and documents sent to Defendants by agents, principals, assigns, attorneys or representatives of MTB directly related to MTB account # 0011973187.

ggg) Any and all original letters, statements and documents sent to Defendants by previous servicers, sub-servicers or others in MTB account file # 0011973187, in control or possession of MTB or in the control or possession of any affiliate, par-ent company, agent, sub-servicers, servicers, attorney or other representative of MTB.

hhh) Any and all original letters, statements and documents contained in account file # 0011973187 imaged by MTB, any servicers or sub-servicers of account file # 0011973187 from the inception of this account to present date.

iii) Any and all original electronic transfers, assignments, sales of the note/security, lien instrument, or other security instrument or derivative directly related to MTB account # 0011973187.

jjj) Any and all original property inspection reports, appraisals, BPOs and reports done with regard to the real property directly related to MTB account # 0011973187.

kkk) Any and all original invoices for each charge such as inspection fees, BPOs, appraisal fees, attorney fees, insurance, taxes, assessments or any expense, which has been charged to MTB account # 0011973187 from the inception of this ac-count to the present date.

lll) Any and all original checks used to pay invoices for each charge such as inspec-tion fees, BPOs, appraisal fees, attorney fees, insurance, taxes, assessments or

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any expense which has been charged MTB account # 0011973187 from the in-ception of this account to the present date.

mmm) Any and all original agreements, contracts and understandings with vendors that have been paid for any charge on MTB account # 0011973187 from the in-ception of this account to the present date.

nnn) Any and all original account servicing records, payment payoffs, payoff calcu-lations, ARM audits, interest rate adjustments, payment records, transaction his-tories, account histories, accounting records, ledgers, and documents that relate to the accounting of MTB account # 0011973187 from the inception of this ac-count until present date.

ooo) Original documentation of all fees, rebates, refunds, kickbacks, profits, and gains made to or by any person or entity directly involved in MTB account # 0011973187

ppp) Any/all original letters of transmittal regarding MTB account # 0011973187.

qqq) Any/all documents and records concerning or in any way relating to any and all email, fax, telephonic, mail, or in-person communication(s) between any agent, employee, representative, assignee, principal, beneficiary, trustee, servant or third party contractor of MTB and Defendants.

WHEREFORE, for good cause shown that the perpetuation of evidence is proper to

avoid a failure or delay of justice, and Defendants having stated all the elements necessary per

Md. Rule 2-404(b) with specificity and particularity, Defendants move the court to enter an Or-

der granting Defendants leave to Perpetuate Evidence for use in the event of further proceedings

in the Circuit Court per Md. Rules 2-411, and 2-422.

Due to the prior history of failure of Plaintiffs and MTB to comply with pre-complaint

discovery requests, Defendants also move the court to declare what penalties and sanctions will

be assessed that are just and equitable, if Plaintiffs and MTB fail to timely and substantively

comply with said discovery requests.

Dated this ____ day of ________________________ 2012

_____________________________ _____________________________

Todd Wetzelberger Erin Rene Wetzelberger

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CERTIFICATE OF SERVICE

UNDER PENALTY OF PERJURY, I CERTIFY that on this ___ day of _______________ 2012 a copy of the foregoing document was served upon the following parties via U.S.P.S. first class mail.

BRANDON M. KILBERG Attorney of record for Plaintiffs as of date NoticeOf Appeal was filedCOVAHEY, BOOZER, DEVAN, & DORE, P.A.of counsel to Huesman, Jones & Miles, LLC Executive Plaza III, Suite 400Hunt Valley, MD 21031

Michael T. PateAttorney of record for Plaintiffs on appealLaw Office of Michael T. Pate, LLC20 S. Charles Street Suite 702Baltimore, Maryland 21201

____________________________ Todd Wetzelberger

State of _____________________

County of ______________________

BEFORE ME_________________________Notary Public, personally appeared Todd Wetzelberger identified in accordance with Maryland law, and acknowledged the foregoing document to be his/her act. in my presence this day of 2012

______________________Notary Public My commission expires:

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