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Conclusion pg 26
Certificate of Service ..pg 27-28
Appendix Exhibits A-F
1
Table of Authorities
____ (2015)
Ct.
236 (1907)
(Mo.App.2002)
2
Statutes:
15 U.S. Code 1635
RSMo. 469.906.1
RSMo. 534.030
RSMo. 534.050
RSMo. 534.160
Rules:
Rule 74.06(b)(4)
Rule 55.27(g)(3)
Rule 74.06(b)(2)
Rule 55.15
3
Jurisdictional Statement
This case is on appeal from a judgement entered by Judge Stephen
Bouchard in the 23rd Circuit Court of Jefferson County Missouri (L.F. I 62-
63) and Judge Jeffery Coleman (L.F. II 143) of the same. Judgement
respondent). The trial court rejected appellants request for jury trial on the
trial court granted a trial de novo (L.F. I 9) and found in favor of the
respondent. Appellants requested new trial on March 6th 2015 (L.F. I 9) and
were denied.
accordance with rule 74.01(a), this court dismissed the appeal without
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74.01(a) on September 29th 2015 (L.F. II 143) which was signed by Judge
Jeffery Coleman on February 5th 2016 (L.F. II 143). A new appeal was filed
does it involve the construction of revenue laws or title to any state office.
Stat. 477.050.
5
Statement of Facts
A. Nature of Case
the trustees deed (L.F.I 28). However, the trustee and respondent knew or
should have known that the original note and deed of trust had been made
Code 1635a-f sent by appellant on February 14th 2012, more than 1 year
unlawful detainer in favor of the respondent (L.F. II 143) based upon the
The appellants have 2 points on appeal. First, the trial court lacked
mailing, the circuit court no longer had any subject matter on which to
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make rulings as the deed and note were made void by the federal rescission
assignment which was invalid as the assignor listed on the document was an
entity that had been out of business for 5 years at the time of the assignment.
The trustee and respondent were made aware of this fact before the trustees
sale occurred and not only continued with the sale, but did not inform the
to appellants all bond thus far paid to the court, reimburse appellants for all
legal fees, and any other relief this court deems just.
7
B. Procedural History
In November of 2011, appellant began application process to receive
informed appellants that they must be behind at least 60 days to qualify for
find or keep the documentation that they had requested. At the same time,
respondents refused to name the holder and owner of the note and deed and
claimed they did not know who the actual holder of the note and deed of
trust was.
1635(a) as appellants had not received the proper notices required under
the QWR nor the debt validation showed any evidence of the loan
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modifications, proper notification on the new loan modifications, nor any
chain of title showing HSBC as the actually holder of the note and deed of
trust. On February 25th 2012, appellants were contacted by HSBC and told
that a permanent modification was being processed and that payment could
2012, notice of acceleration of note was sent to appellant along with denial
regarding the notice of rescission, even though they received the notice and
were aware that they had only 20 days to respond by filing suit in federal
court.
Leighs, Laws, and Fritzlen (known hence forth as trustee), on June 4th 2013
announcing that they were the successor trustee and demanding payment in
full. On July 7th 2013, Dale Wiley, attorney for the appellant sent a letter
requesting debt validation and denying the existence of any debt. The
trustee replied with a copy of the note and deed of trust now containing
endorsements from not one but two entities that had not been in business for
5 years.
August 7th 2013 (Appendix: Exhibit D) elaborating just some of the issues
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and frauds that should have prevented the trustees sale. However, the
trustees sale went forward on August 12th 2013 (L.F. I 28) and a
subsequent trustees deed was issued on September 9th 2013 (L.F. I 28).
did not receive any such notice. Trustee also claims to have posted a notice
Paul Morad (L.F. II 121) as proof thereof. However, upon reading of the
affidavit, one sees that Paul Morad posted said affidavit at 7619 Folk Ave.
St. Louis, MO. 63143 (L.F. II 121). As such, the appellants were not
On January 19th, 2014, trustee filed suit for unlawful detainer (L.F. I
behalf of appellant. On the same day, Dale Wiley filed a motion to request
a jury trial on the unlawful detainer motion (L.F. 4-5) pursuant to RSMo
534.160. The motion for jury trial was denied, which is a violation of
action. On March 19th 2014 trustee filed a motion for summary judgement
10
2013, Dale Wiley filed DEFENDANT'S RESPONSE TO PLAINTIFF'S
On May 23rd 2014, Mr. Wiley, attorney of record for the appellant,
filed a motion for a trial de novo (L.F. I 65). The court granted the motion
11
Trustee then filed PLAINTIFF'S REPLY TO DEFENDANT'S
On March 6th 2015, Mr. Wiley filed a motion for new trial with the
139). Court did not respond to motion and so it was not granted.
On June 16th 2015, Mr. Wiley filed a notice of appeal with this court
(L.F. II 140-141). This appeals court dismissed the case without prejudice
September 28, 2015 (L.F. I 10). On September 29, 2015 respondent wrote a
judgement against the appellant and filed it with the court. On February 5th
12
On March 26th 2016, Mr. Wiley filed a notice of appeal on the
judgement above (L.F. I 11). On August 1st 2016, Mr. Wiley informed the
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Points Relied Upon
Exhibit A) was mailed, the note and deed of trust became void. Any
void. The only recourse the respondent had available after the
notice of rescission was sent pursuant to 15 U.S. Code 1635 was the
the notice of rescission. Failure to file any such suit within the
The note and deed of trust have been void since the mailing of the
notice of rescission on February 14th 2012 and as such the trial court
____ (2015)
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J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009)
S. Ct.
236 (1907)
Rule 74.06(b)(4)
Rule 55.27(g)(3)
15
Points Relied Upon
II
The assignment was fraudulent due to the fact that the assignor
is extrinsic fraud.
Rule 74.06(b)(2)
16
Rule 55.15
(Mo.App.2002)
RSMo. 469.906.1
17
Argument
I
The trial court erred in making any judgements as they lacked subject
was mailed, the note and deed of trust became void. Any judgement
made based upon void documents is a nullity and is itself void. The
only recourse the respondent had available after the notice of rescission
was sent pursuant to 15 U.S. Code 1635 was the ability to file suit in
Failure to file any such suit within the appropriate time frame leaves
the respondent with no legal recourse. The note and deed of trust have
been void since the mailing of the notice of rescission on February 14th
2012 and as such the trial court lacked subject matter jurisdiction as
there was NO subject matter upon which the court could rule.
The trial court erred in 3 ways. First, even though the 2009 en
275 S.W.3d 249 (Mo. banc 2009) granted all circuit courts plenary
jurisdiction, that jurisdiction does not extend to cases that are strictly
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strictly the jurisdiction of the federal courts. Thus, the trial court
decided. Basso v. Utah Power & Light Co. 495 F 2d 906, 910.
documents that were void based on the federal statutes (15 U.S. Code
itself also void and without force of law the judgement itself is a
Third, the trial court erred by not properly ascertaining the facts
Joyce vs. U.S., 474 F2d 215, the court ruled that There is no
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valid. It is clear and well established law that a void order can be
Makes clear that the court should dismiss any case where the court
when it clearly appears that the court lacks jurisdiction, the court has
jurisdiction, this court should set aside and vacate the trial courts
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Standards of Review
21
Argument
II
The trial court erred in granting summary judgement of
22
Pursuant to RSMo. 469.906.1, the trustee is required to act as
trustee is also an officer of the court, the trustee has a duty to inform
the court when it receives knowledge that extrinsic fraud has been
S.W.3d at 169 n.7 (quoting State ex rel. Lowry, 178 S.W.3d at 637).
In this case, the trustee was informed of the extrinsic fraud committed
Recorder of Deeds.
The trustee was sent a letter by Mr. Wiley (Exhibit C). Points
The trustee had knowledge of this fraud before the foreclosure sale
occurred and therefore had a duty to inform the court of such fraud.
Vaughan v. United Fire & Cas. Co., 90 S.W.3d 220, 225 (Mo.App.
the court of the fraud being committed, the trustee did not investigate
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any of the issues brought to their attention, and the trustee did not
stop the sell from occurring, both the trustee and the respondent were
"It must relate to the manner in which the judgment was obtained."
As the fraud in this case was collateral to the merits of the non-
fraud "is collateral to the merits of the cause[.]" Essig v. Essig, 921
24
Standard of Review
(Mo.App.
25
Conclusion
even upon appeal. Once raised, subject matter must be proven upon the
record. Since the trial court lacked subject matter jurisdiction as outlined
above, the judgements of the trial court are void and thus should be vacated.
The appellants have also shown that the respondents, along with the trustee
in this case, have committed extrinsic fraud against the appellants and the
trial court. If appellants are successful on any point, appellants request this
return to appellants all bond thus far paid to the court, reimburse appellants
for all legal fees, and any other relief this court deems just.
Respectfully Submitted,
Kimberly Bolin
Acting pro se
5019 Meadow Dr.
Imperial, MO. 63052
636-226-8173
Tazzer4000@unseen.is
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CERTIFICATE UNDER RULE 84.06(c)
I, Kimberly Bolin, hereby certify that I am acting pro se and that the
The undersigned further certifies that the pdf file submitted by email of
_____________________________
Kimberly Bolin
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CERTIFICATE OF SERVICE
I, Kimberly Bolin, hereby certify that I am acting pro se and that on the 14th day
of November, 2016, I caused one copy of the aforesaid Brief of Appellant and a copy of
the disk for the brief to be served upon counsel for the Respondents by depositing the
same upon counsel for the Respondents by depositing the same in the United States mail,
postage prepaid, addressed as follows:
STE 900
X
Kimberly Bolin
acting pro se
______________________________
Kimberly Bolin, acting pro se
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