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CF= Court File; RT=Reporters Transcript

REPLY ARGUMENT

At p. 16 of appellee COMMERCE BANKs Response, COMMERCE BANKs


attorney, VLAD THE IMPALER asserted that the Trust need not allege to be a
holder in due course to foreclose. COMMERCE BANKs attorney VLAD THE
IMPALER argued stating:
As demonstrated above, as holder of the original Note-as defined in
Colorados Uniform Commercial Codethe Trust is entitled to enforce it.
Brumfiel asserts a party that is not a holder in due course must take the
instrument subject to claims and defenses. Id at 21. Such an argument is no
consequence here, as Brumfiel asserted all of her claims and defenses against
the Trust in the judicial Foreclosure Action and in the Federal Action Such
claims and defenses were disposed of after a full and fair opportunity to
litigate those issues.
But JOAN OF ARC did not have a full and fair opportunity to litigate those
issues. In both the judicial foreclosure case (13cv825) and the federal case
(12cv02716) the courts concluded that they lacked subject-matter jurisdiction.
Accordingly, both courts could not reach the merits of JOAN OF ARCs
claims.
Additionally, Judge Pratt in the state court in 13cv825, ruled that defendant
Brumfiel lacked standing to challenge the assignment and the pooling and service
agreement which runs contrary to the established case law in Colorado. (See Goodwin
v. District Court, 779 P.2d 237 (1989) upholding the right of the Goodwins to
challenge the validity of the assignment in the Rule 120 to allow the Real Party in
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Interest defense; See also Alpine Associates, Ind. v. KP&R, Inc., and 802 P.2d 1119
(1990), holding that If, as here, plaintiff's status as a real party in interest depends
upon an assignment from the original real party in interest, [I]t is necessary for the
plaintiff to prove, in addition to the basic elements of its case, its status as an assignee.
.. Generally, this burden is met by proving a full and complete assignment of the
claim from an assignor who was a real party in interest with respect to the claim;
COLORADO ENVIRONMENTAL COALITION et al. VS KEN SALAZAR et
al.(2011 ) No. 09-cv-00085-JLK, holding that non-parties can challenge an agreement
that strips the non-party of a legal claim or cause of action; and C.R.C.P. 105.1
allowing a homeowner the right to challenge the validity of any document that affects
a homeowners property that is filed or recorded and can be considered a spurious
document which does not preclude assignments.
DEEMING A HOLDER A PRIMA FACIE HOLDER IN DUE COURSE
IS A REBUTTABLE PRESUMPTION
In Myrick vs Garcia, 332 Colo. 900,903 (1958) cited by COMMERCE
BANKs attorney VLAD THE IMPALER in appellees Response at p.15, the court
said:
Reading sections 95-1-63 and 95-1-31 together and then comparing them with
C.R.S. '53, 95-1-59, which provides in pertinent part: "Every holder is deemed
prima facie to be a holder in due course; * * *", the plaintiff, being holder of
the note in his possession, was entitled to have it admitted in evidence,
establishing a prima facie right to recover thereon.
It is a matter for the defendants to prove at the trial that plaintiff is not the
owner (holder) of this note if they can do so. Defendants' answer merely had
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the effect of putting that defense in issue and does not prevent plaintiff from
introducing evidence in rebuttal at the proper time. Here the difficulty at the
trial arose because plaintiff attempted, on the presentation of his case in
chief, to put in evidence matters which he need not have proved until
defendants' evidence challenged his prima facie title. This might not have
occurred had the trial proceeded through defendants' evidence.[B,U]
Appellant challenged COMMERCE BANKs prima facie evidence that just
being a note holder as opposed to being a holder in due course was sufficient to
foreclose in her opposition to COMMERCE BANKs Motion for Summary
Judgment which was acknowledge by Judge Pratt in his Order on Summary
Judgment of Feb. 28th, 2014.(CF 2677) when Judge Pratt said:
WHAT EFFECT, IF ANY, DOES A FINDING OF WHETHER
PLAINTIFF IS A HOLDER OR A HOLDER IN DUE COURSE
HAVE UPON BRUMFIEL'S OBLIGATION TO PAY PLAINTIFF
THE AMOUNTS DUE UNDER THE NOTE?
There is no question that Plaintiff is the Holder of the Note which was
endorsed in blank. However, Brumfiel contends that Plaintiff is not a
Holder in Due Course, and therefore holds the note subject to her defenses.
The answer to Judge Pratts question is, It makes all the difference in the
world. The Court in Myrick merely stands for the proposition that Every holder
is presumed prima facie to be a holder in due course.and does not prevent
plaintiff from introducing evidence in rebuttal at the proper time.
In PEOPLE of the State of Colorado vs Interest of C.L.S., a Child,
Concerning T.V., No. 10CA1980. (November 23, 2011) the court held that Once
presumptions are established, they may be rebutted by clear and convincing
evidence. 194105(2) (a), C.R.S.2011.
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At pgs 16 & 17 of COMMERCE BANKs Response, COMMERCE BANK


admits that it is not advancing the claim of the Trust as a holder in due course and
premises its claim of right of interest in the property soley on being a holder of the
note which conflicts with the holding in Deutsche Bank Trust Company Americas
v. Samora, 2013 COA 81, which held in that in order for the Trust to prevail in a
Quiet Title Action it had to be a holder in due course. The Court said in Samora at
p. 24:
47 Because the warranty deed is not void, in order for Samora to defeat
Deutsche Banks claim to quiet title in the Trust, she must show that
Deutsche Bank as trustee is not advancing a claim by the Trust as a holder
in due course of the Note and Deed of Trust.
In admitting that COMMERCE BANK is not advancing the claim of the Trust
as a holder in due course it follows that the Trust would not be able to obtain a
legitimate claim to title to the property through a Quiet Title Action with a right to
foreclose and evict the homeowner. Consequently, a public Trustees Deed should
also not be available unless it could prove that the Trust is a holder in due course.
Nor does the Colorado Uniform Commercial Code support the Trusts
assertion that the Trust is entitled to enforce it by just being a holder of the note.
UCC Section 3--306. Rights of One Not Holder in Due Course states:
Unless he has the rights of a holder in due course any person takes the
instrument subject to
(a) all valid claims to it on the part of any person; and
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b) all defenses of any party which would be available in an action on a


simple contract; and
(c) the defenses of want or failure of consideration, non-performance of
any condition precedent, non-delivery, or delivery for a special purpose
(Section 3--408); and
(d) the defense that he or a person through whom he holds the
instrument acquired it by theft, or that payment or satisfaction to such
holder would be inconsistent with the terms of a restrictive
indorsement. The claim of any third person to the instrument is not
otherwise available as a defense to any party liable thereon unless the third
person himself defends the action for such party.
The decision in Samora, the above UCC Code 3-306, as well as the Supreme
Court of Colorado decision in Myrick cast doubt on COMMERCE BANK and the
Trusts claim that being just a holder is sufficient to foreclose.
A presumption should not be construed as conclusive of the proposition.
The Trust and COMMERCE BANK further stated that there is a distinction
between Samora and this case noting that there was fraud in the case of Samora
when the forgery of the deeds transferring title to the real property from the
borrower to mortgage brokers, which resulted in criminal convictions. The Court
found that Deutsche Bank and the Trust had no knowledge of the Fraud and that
they paid value for the note.
In this case there was also fraud involved which was presented subsequent to
the dismissal and while the case was on appeal thus divesting the trial court from
making any ruling on the fraud. In any case the Trust paid no value for the note

and was cognizant of all the infirmities of the transaction under the close
relationship doctrine.
I. 3-302. HOLDER IN DUE COURSE.
(a) Subject to subsection (c) and Section 3-106(d), "holder in due course"
means the holder of an instrument if:
(1) the instrument when issued or negotiated to the holder does not bear such
apparent evidence of forgery or alteration or is not otherwise so irregular or
incomplete as to call into question its authenticity; and
(2) the holder took the instrument (i) for value, (ii) in good faith, (iii) without
notice that the instrument is overdue or has been dishonored or that there is an
uncured default with respect to payment of another instrument issued as part of
the same series, (iv) without notice that the instrument contains an
unauthorized signature or has been altered, (v) without notice of any claim to
the instrument described in Section 3-306, and (vi) without notice that any
party has a defense or claim in recoupment described in Section 3-305(a).
Appellee COMMERCE BANK and the Trust cannot be defined under the above
section.
COMMERCE BANK did not give separate value for the note and knew of all the
infirmities in the transaction. Everything that appellee COMMERCE BANK knew is
imputed to the Trust under the Close Relationship Doctrine where there is such
a significant ongoing interconnected business relationship that the Trustees conduct
is imputable to the Trust. Stotler v. Geibank Indus. Bank, 827 P.2d 608, 611 (Colo.
App. 1992)
In the case management hearing held on December 09, 2013(RT: 34, lns 1117) the court said:

JOAN OF ARC: Oh, yes, I would object to them being originals, unless I had an
expert look at them and verify that.
THE COURT: All right, well, I can't -JOAN OF ARC: I'm not an expert.
THE COURT: And I'm going to give her an opportunity to have them examined if
she wants to have them examined. But the Court will keep them in possession as
the originals -- as what the Bank contends are the originals.
Appellant Brumfiel didnt have the opportunity to have the purported
originals inspected by an expert prior to dismissal because on January 14th, 2014
Judge Pratt granted COMMERCE BANKs motion to dismiss and deemed the
submitted promissory note, assignment, and Deed of Trust as originals.
Appellant Brumfiel filed a motion to have Judge Pratt recuse himself because
of her perceived belief that he was bias and did not keep his promise to allow her
to have an expert review the documents.
On May 23rd, 2014, Judge Pratt issued his Order on Recusal and inspection of
documents. (CF 2823) which allowed JOAN OF ARC to have an expert to inspect
the documents. Upon examination expert John Stuarts concluded that the
documents were all counterfeit.
Under Rule 201Judicial Notice, The court may take judicial notice of facts
not subject to reasonable dispute because they are capable of accurate and ready
determination by resort to resources whose accuracy cannot reasonably be
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questioned. A court may take judicial notice of the contents of court records in
a related proceeding. People v. Sa'ra, 117 P.3d 51 (Colo. App. 2004).
Defendant Brumfiel asks this court to take judicial notice under Rule 201 of a
telephonic transcript of a conversation among VLAD THE IMPALER, Judge
Pratt, and Defendant Brumfiel concerning a Fraud Report. During the
conversation, the parties discussed a Fraud Report which was submitted to the
court concluding that the documents in the court registry were all counterfeit.
Forensic Expert John Stuarts created a report concluding that the documents in
the court registry were all counterfeit. Furthermore, SPS, the Servicing
Company of COMMERCE BANK sent Defendant Brumfiel a letter stating that
the original was in their possession in a secure location in Utah while
COMMERCE BANK had purportedly filed in the court registry in case no.
13cv825. (RT of Aug. 06, 2014)
At p. 3 of the Reporters Transcript, lns 8-11the court said:
THE COURT: This matter is before the Court on a request by the bank to transfer
the loan documents that are purported to be the original loan documents to the
United States Bankruptcy Court, and the Court is aware of JOAN OF ARC's
objection and the reasons set forth therein.
At RT:4, lns 19-24 and RT:5, lns 1-14 states:
THE COURT: I understand your concerns. And the Court notes that in your
objection, you're quoting in paragraph one from a report by a gentleman by the
name of John Stuarts who you represent to be a forensic document examiner. Was
that the gentleman who came out to the Court and looked at the documents?

JOAN OF ARC: Yes. And he did that in the presence with Ms. Kelly, Jane Kelly
[James Kelly]had actually contracted him to do that work.
THE COURT: Uh-huh. And it says you apparently have a report from him. The
report wasn't submitted to the Court, but you're quoting from it, that he is of the
opinion that these documents were somehow manipulated or altered; is that
correct?
JOAN OF ARC: That is correct. I did submit it into the court record on my
motion for stay in the appeal, and it wasnt (indiscernible). And it's the full report, I
believe 23 pages, (indiscernible) pages, something like that, where he believed, and
he's willing to put his reputation of 20 years on the line that all the documents are
fraud,
THE COURT: Hang on a second here. I'm pulling up that file again. Okay. Here
is Exhibit A.
JOAN OF ARC: Furthermore, Judge Pratt, I just wanted to let you know I have
not submitted (indiscernible) but there's been a recent development that we'll be
submitting to you as well. That I got a letter from FTR [SPS] the servicer, stating
they have the original in Utah. So we've got two separate originals out there
At RT:7, lns 3-10 it states:
THE COURT: The Court is concerned based on the allegations here, that at this
point this Court is in possession of what was represented to the Court to be the
original documents. And there does appear to be a representation to this Court of a
crime being committed.
JOAN OF ARC: Correct.
At RT:8, lns 3-19 states:
THE COURT: And thus the Court has some concerns about releasing these
documents to anyone, other than the District Attorney's office or the Arapahoe
County Sheriff's
THE COURT: Well, the issue here is not whether or not the Court's order in this
case, 13 CV 825, is sound or not, that issue is currently before the Colorado Court
of Appeals, and this Court has absolutely no jurisdiction at this point.
MR. HANLON: Correct.
THE COURT: The appeal of that case has transferred jurisdiction to the Court of
Appeals, so I can't do anything with regard to that at this point.
My concern though is that based on this report and the statements in JOAN OF
ARC's letter, or her motion -- I guess it's her objection to the removal of the original
documents, that I have -- that there is some concerns. And chain of custody for a
criminal matter does not involve turning documents over to a third party for transfer
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to anybody. And it wouldn't be this Court's -- I can't order law enforcement to do, or
not to do anything, other than to, with regard to any investigation they want to
undertake under the circumstances presented here.
Judge Pratt was concerned that a crime was committed by COMMERCE BANK,
who possibly filed counterfeit documents into the court in order to steal JOAN OF
ARCs home.
Neither the Trustee nor Trust paid value for the note. In the Assignment of the
Deed of Trust and Promissory Note (CF 1514, state that COMMERCE BANK as
Trustee for the above Trust paid TEN DOLLARS and therefore disproportionate
to the value of the property.
As Scotus said regarding a Colorado Assignment in BAKER v. WOOD et
al., No. 162. 157 U.S. 212 (1895). .. [T]he amount paid may be so
disproportionate to the real value of the security purchased that the claim to have
paid value will be treated as a pretense and ...upon the question of notice and
good faith..
Appellant Brumfiel produced sufficient evidence to overcome the presumption
that a holder of the note is prima facie of being a holder in due course contrary to
appellee COMMERCE BANKs assertion that the Trust need not be a holder in
due course to foreclose.
THE ABOVE TRUST IS A REAL ESTATE
INVESTMENT CONDUIT (REMIC)

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The economic collapse of 2008 was precipitated by lenders like First Franklin
mortgage that engaged in a massive fraud on investors of these mortgage pools by
selling subprime mortgages that were doomed to fail. As cited in Appellants
Opening Brief, investors filed lawsuits against the originating lenders like First
Franklin and their sponsors. (CF1878, 1879, Answer 32, 33) One such suit is
AMBAC ASSUR Corp v First Franklin Fin. Corp. and Merrill Lynch Mortgage
Trust 2013 NY Slip Op 51180(U) Judge Schweitzer concluded that allegations of
First Franklin fraud were sufficient to deny the motion to dismiss and said:
"Despite its repeated pronouncements about its sound lending practices, First
Franklin was a prolific originator of risky, higher-yielding loans that put
volume ahead of all else, including in particular the quality of the loans that
were being originated. [A] recent complaint. details the underwriting
practices at First Franklin as told by former First Franklin underwriters, one
of whom described the lending practices at First Franklin as "basically
criminal." This conduct by First Franklin, one of the nation's largest
mortgage originators . contributed to the collapse of the real estate market,
and resulted in hardship for millions of Americans. The court can think of
no more egregious example of public fraud.
Appellee COMMERCE BANK fraudulently used the opportunity to mitigate
the damage done to its mortgage pool committed by First Franklin on the investors
who were suing the sponsor for its fraud which left the Trust under collateralized.
The trustee pursued a course to fraudulently scoop up orphan loans held by
vulnerable homeowners who were not able to defend themselves.
As a REMIC, the above Trust is governed under IRS Tax Code Section 860G
(a) (3)(A) ( i ) which state:
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A mortgage loan is not a qualified mortgage unless it is transferred to the


REMIC Trust on the startup day in exchange for regular or residual interests
in the REMIC.
Appellee COMMERCE BANK has never disputed that the closing date of the
Trust was January 26th, 2007. (See Defendant Brumfiels Answer, 35, CF 1880)
In this case, they fraudulently assigned the promissory note on October 4th,
2011, 4 years after the closing date, and after First Franklin ceased operations.(See
CF 1514 and CF 1910, 1911 respectively)
The Trust is also governed under IRS Tax Code Section 860F (1) which states:
To file as a REMIC, and in order to avoid one hundred percent (100%)
taxation by the IRS an MBS REMIC could not engage in any prohibited
action.
To avoid the 100% contributions tax, contributions to REMICs must be made on
the startup day. However, cash contributions avoid this tax if they are given three
months after the startup day, involve a clean-up call or qualified liquidation, are made
as a guarantee, or are contributed by a residual interest holder to a qualified reserve
fund. PEASLEE, JAMES M. & DAVID Z. NIRENBERG. FEDERAL INCOME TAXATION
OF SECURITIZATION TRANSACTIONS AND RELATED TOPICS P. 501

Additionally, states may tax REMICs under state tax laws. SILVERSTEIN,
GARY J. REMICS, TAX MANAGEMENT: FASITS AND OTHER MORTGAGEBACKED SECURITIES. Tax Management Inc.: Securities Law Series (2007): A-

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48. Many states have adopted whole or partial tax exemptions for entities that
qualify as REMICs under federal law. PEASLEE & NIRENBERG, p. 13.
APPELLANT BRUMFIEL HAS ALWAYS BEEN THE
REAL PARTY IN INTEREST
The truth is that prior to the bankruptcy filing on December 30 th, 2011, JOAN
OF ARC had no Causes of Action because the action was not Ripe until the
court issued an Order Authorizing Sale which occurred after the bankruptcy
discharge on April 24th, 2012 as explained in Appellants Opening Brief when the
court issued an Order of Sale.
CONSTITUTIONALITY OF THE RULE 105
In the Federal case 12CV02716 Defendant Brumfiel challenged the
constitutionality of the Rule 120 which was initiated by COMMERCE BANK as
Trustee of the above Trust as part of a broad conspiracy to deprive homeowners
like JOAN OF ARC of property without due process in a proceeding that violated
section 1 of the 14th Amendment.
Appellant Brumfiel asks this court to take judicial notice of the court records in
case no. 12cv02716 of the May 6th 2013 hearing of Judge Martinez (ECF 117, RT:
41, lns 22-25 and p.42, lns 1-16, respectively), when the court said to
COMMERCE BANKs attorney:
THE COURT: Well, if we were operating in a procedural setting pre2006 where in order to prevail at a Rule 120 hearing the holder in due
course would have to come in with an original deed of trust and an original
promissory note, or a verified assignment document, I would agree with
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you, because then the real party in interest and who is the true holder of the
note would not have been an issue.
But what this lawsuit raises in my mind is we have a totally changed
landscape post-2006, and there's a very real issue as to who is actually the
owner of this property. If it turns out that U.S. Bank, your clients are not
the owners right now, JOAN OF ARC is the owner, but if it turns out that
your clients are in fact the actual holders of the deed of trust and note, then
I agree your clients have been victimized by JOAN OF ARC,***
The Rule 120 which was procedurally defective under section 1 of the 14th
amendment which was as explained in Appellants opening brief because it was
not a full and fair hearing with no right to appeal pursuant to Lindsey vs Normet 405 U.S. 56 at p.78 (1972) when the Court said:
This Court has recognized that, if a full and fair trial on the merits is provided, the
Due Process Clause of the Fourteenth Amendment does not require a State to
provide appellate review. (Cite)
When Lawrence E. Castle aka Larry Castle, Robert Hopp (who declared
bankruptcy), and the Castle Law Group LLC drafted HB06-1387 to amend
38-38-101 et seq., (which was sponsored by the Public Trustee Association)
which virtually eliminated the burden of proof the lender needed to show to
foreclose. HB06-1387 further made the Rule 120 even more unconstitutional
which then affected the Rule 105 when 38-38-101 et seq was amended to
include the provision 41(3) which states:
The provisions of this act shall apply to the foreclosure of any deed of trust or
other lien with respect to which a notice of election and demand or lis pendens
is recorded in the office of the clerk and recorder of the county where the
property or a portion of the property is located on or after the applicable
effective date of this act.
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Thus began the conspiracy to deprive homeowners of due process and equal
protection touching both judicial and non-judicial foreclosures.
Appellant request that this court take judicial notice of Judge Martinez Order in
12CV02716 which granted JOAN OF ARC her TRO and Preliminary Injunction
against the Rule 120 [ECF 94] when the judge said at pgs. 13, 14:
3. The Public Interest:
A party seeking a preliminary injunction must show the issuance of the
injunction would not be adverse to the public interest. Heideman, 348 F.3d at
1188.
Here, again, this factor weighs strongly in favor of Plaintiff. The Amended
Complaint is detailed in its allegations, and brings into question the role of
state action and the interface between public and private players in the
foreclosure process. (ECF No. 45.) Indeed, the Court considers these issues to
be of significant public interest. The question of whether Colo. Rev. Stat. 3838-101a state statute which impacts many thousands of Colorado residents
given the role of Rule 120 in foreclosure proceedingsis unconstitutional on
due process grounds is manifestly a matter that would be in the public interest
to determine after careful and deliberate consideration. Thus, the factor weighs
heavily in Plaintiffs favor and the Court finds that she has satisfied this prong
of the test for the purposes of temporary injunctive relief.
THE RULINGS MADE BY JUDGE PRATT WERE PREJUDICIAL
TO DEFENDANT BRUMFIEL IN THIS CASE
The rulings of Judge Pratt were prejudicial to defendant Brumfiels case
beginning with the application of the Civil Access Pilot Program (CAPP) which was
clearly inapplicable because COMMERCE BANK is a financial institution soley
seeking the collection of a debt for another and therefore excluded from
participation in the CAPP procedure. Appellant was further prejudiced by the
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Judges ruling that defendant Brumfiel could not challenges the assignment, or the
Pooling and Service Agreement merely because defendant was a non-party to those
instruments. That is not the case law in Colorado. Defendant Brumfiel was
prejudiced when Judge Pratt assumed that MERS lack of authority to assign did not
prejudice defendant when it clearly had the effect of stripping defendant Brumfiel
of a legal claim or cause of action. COLORADO ENVIRONMENTAL
COALITION et al. VS KEN SALAZAR et al.(2011 ), No. 09-cv-00085-JLK, t at p.
7.
Lawrence E. Castle and Aronowitz & Mecklenburg, as well as several other
foreclosure attorneys have been indicted by the Colorado Attorney General for bill
padding. Others yet unnamed will no doubt follow and will someday include the
very lenders they had represented.
The Colorado judicial system has been compromised by the foreclosure
attorneys and the lenders who they serve. This court has the opportunity to correct
what has been broken for far too long.
CONCLUSION
For the reasons set forth in this Appellants Reply Brief as well as Appellants
Opening Brief this court should find for Appellant and instruct the lower court on
the correct criteria in addressing the issues raised on this appeal.
Respectfully Submitted,

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__________________,
JOAN OF ARC

Dated:________________, 2014

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