IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF OHIO

____________________________________)

David D. Hartley, Jr., ) Case No. 3:11-mc-00012-DAK)

Debtor. ) )

David D. Hartley, Jr., ) )

Plaintiff. ) Daniel L. McGookey (Reg. No. 0015771)) Richard Barry Hardy III (Reg. No. 0068067)

vs. ) Lauren McGookey (Reg. No. 0086407) ) McGOOKEY LAW OFFICES, LLC

BAC Home Loans Servicing, L.P., et. al. ) 225 Meigs Street, Sandusky, OH 44870) Phone: 419-502-7223 Fax: 419-502-0044

Defendants. ) Counsel for Plaintiff____________________________________) David D. Hartley, Jr.

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTSHELLIE HILL’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Now comes Plaintiff, David Hartley, Jr. (“Plaintiff”), by and through Counsel, and

hereby submits his Memorandum in Opposition to Defendant Shellie Hill’s (“Hill”) Motion to

Dismiss Plaintiff’s Complaint as follows:

MEMORANDUM IN OPPOSITION

I. BACKGROUND FACTS

On May 29, 2003, Plaintiff executed a promissory note (“the Note”) and a mortgage (“the

Mortgage”) in favor of America’s Wholesale Lender (“AWL”), to refinance his residence at 531

E. Main Street, Bellevue, Ohio 44811 (“the Residence”). Mortgage Electronic Registration

Systems, Inc. (“MERS”) was named as nominee of the Mortgage. On December 11, 2009,

Defendant BAC Home Loans Servicing, L.P. (“BAC”) filed a complaint for foreclosure of the

residence in the Huron County Common Pleas Court (“the Foreclosure Complaint”). In the

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Foreclosure Complaint, BAC stated that “it is the holder” of the Note, but it did not allege to be

the owner of Plaintiff’s Note.

There were no endorsements of any kind on the Note, nor were there any allonges

negotiating it to any other party. However, an Assignment of Mortgage (“the Assignment”) was

attached to the Complaint, which purportedly transferred the Mortgage and the Note from MERS

to BAC, even though MERS never had an interest in the Mortgage or Note. The Assignment

was prepared by Lerner, Sampson & Rothfuss (“LSR”), the law firm representing BAC in the

Foreclosure Action. Hill executed the Assignment as “Secretary and Vice President” of MERS,

even though she was actually employed by LSR at the time.

There is very good reason to believe that Hill is a “robo-signer.”1 Robo-signers are

individuals whose sole job responsibility is to sign affidavits, assignments of mortgage, and other

legal documents used in foreclosures en masse so that homeowners can be removed from their

homes by banks as quickly and cheaply as possible.2 Robo-signers may sign thousands of such

documents per month, including affidavits attested to be made of personal knowledge. In fact,

the typical robo-signer simply attests under oath that he or she has personal knowledge of the

statements made, and swears that those statements are true and accurate without even have read

the document. Further, in the rush to generate these documents, robo-signers will generally sign

the document outside the presence of the notary who later notarizes them. The above practices

fail to comport with legal requirements, thereby rendering the documents fraudulent and invalid.3

1 Defendant Hill gave a deposition in the case of The Bank of New York v. Unger, Cuyahoga County Case No. CV 09 711343. In that case, Hill admitted that as an employee of LSR, she regularly signed affidavits used in foreclosure actions on behalf of MERS as Assistant Secretary or Vice President of MERS, when she has never had any communication with MERS and is not employed by MERS. See Dep. Tr. pages ___ attached hereto as “Exhibit A”

2 See New York Times Article of ____, 2010 attached to the Complaint as “Exhibit__”3 This very activity was declared to be illegal by former Ohio Attorney General Richard Cordray in the case of State of Ohio v. GMAC Mortgage and Jeffrey Stephan. A copy of the Complaint filed in that action is attached to the Complaint herein as “Exhibit A”

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Here, the evidence strongly suggests that Hill uniformly and methodically, as part of a

practice and pattern, intended to deceive courts and homeowners by making the following false

or misleading representations:

that she was an officer of MERS, when in reality she was an employee of LSR;

that as an officer of MERS she had the authority to transfer Plaintiff’s mortgage obligation

from the loan originator, AWL, to her employer’s client, BAC, when in actuality the

transaction was in essence BAC transferring the Note to itself;

that the Assignment is a valid, legal document serving to assign the Mortgage, and the

Note, to BAC;

that by virtue of the Assignment, BAC had the right to foreclose as owner and holder of

Plaintiff’s Note and Mortgage. “Exhibit A”, supra.

As demonstrated below, these deceptions give rise to various causes of action by Plaintiff against

Defendant Hill.

Plaintiff filed this Case as an adversary action in the United States Bankruptcy Court

against Defendants for the fraudulent conduct that took place in the foreclosure proceeding.

Presently, Defendant Hill has filed a Motion to Dismiss Plaintiff’s Adversary Complaint. For the

reasons set forth below, this Motion must be denied.

II. LAW AND ARGUMENT

A. SUMMARY

Defendant Hill’s Motion to Dismiss must be denied by this Court for several reasons.

Plaintiff’s claims against Defendant Hill are based on the fact that Defendant fraudulently signed

an Assignment of Mortgage that was created by BAC’s attorneys to evidence a transfer of the

Note and Mortgage to BAC. Such an Assignment certainly is material to the transaction, since it

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is clearly meant to lead the reader that BAC’s attorneys had the authority to assign the Note and

Mortgage, to BAC. By signing this document, Defendant Hill was attempting to establish that

her employer’s client, BAC was entitled to bring the original foreclosure action against Plaintiff.

Thus, the assignment affected and caused damage to Plaintiff.

Defendant Hill argues that Plaintiff has failed to state a claim upon which relief can be

granted. However, Plaintiff properly asserted four claims against Defendant Hill. Plaintiff

properly alleged a claim of fraud, as Plaintiff asserted that there was reliance, privity, and injury

from Defendant Hill’s actions. Plaintiff also properly asserted his RICO claim, as Plaintiff

alleged a RICO enterprise and/or pattern of corrupt activity. Plaintiff further properly asserted a

claim of conspiracy, as Plaintiff alleged an independent unlawful act by Defendant Hill. Finally,

Plaintiff properly alleged punitive damages against Defendant Hill for her egregious conduct.

Thus, Plaintiff has clearly set forth factual allegations supporting numerous claims against the

Defendant which are all actionable, and justifying relief.

B. THE MOTION TO DISMISS STANDARD

Under Fed. R. Civ. Pro. 12(b)(6), dismissal is proper if a complaint fails to state a claim

on which relief can be granted. The Federal Rules require only “a short and plain statement of

the claim showing that the pleader is entitled to relief,” and allegations must be “simple, concise,

and direct.” Fed. R. Civ. P. 8(a)(2) & (d)(1). The goal of this Rule is provide the defendant with

“fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

The statement of the claim in the complaint simply must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’ Ashcroft v. Iqbal, 129

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S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “The plausibility standard is not

akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). In other words, a complaint should

not be dismissed under 12(b)(6) if it contains “either direct or inferential allegations respecting

all the material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny

Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988).

When ruling on a Rule 12(b)(6) motion to dismiss, the court must construe the complaint

liberally in a light most favorable to the non-moving party. Bloch v. Ribar, 156 F.3d 673, 677

(6th Cir. 1998). Further, the court may not grant a Rule 12(b)(6) motion based on a disbelief of a

complaint's factual allegations. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir.1993). Rather

all factual allegations must be considered true. “In reviewing a defendant’s motion to dismiss

this court must take all factual allegations of the complaint as true and must draw all reasonable

inferences in favor of the plaintiff. Byrd v. Faber (1991), 57 Ohio St.3d 56.

Finally, courts cannot consider matters outside the complaint in determining such

motions. As provided in Civ.R. 12(B), in reviewing such a motion, this Court can only consider

the “four corners of the complaint.” Capital One Bank v. Rodgers, 2010-Ohio-4421 (5th Dist. Ct.

App.)

C. THE ASSIGNMENT PRESENTED BY DEFENDANT BAC IS MATERIAL TO PLAINTIFF BECAUSE DEFENDANT BAC MUST PROVE THAT IT IS BOTH THE OWNER OF PLAINTIFF’S NOTE AND MORTGAGE IN ORDER TO FORECLOSE, AND DEFENDANT HAS NOT PROVEN THAT IT IS THE OWNER OF EITHER PLAINTIFF’S NOTE OR MORTGAGE.

Defendant argues that the Assignment presented by Defendant BAC in the original

foreclosure action has no legal effect on Plaintiff because an Assignment is merely incident to

the debt it secures. In other words, Defendant Hill alleges that Mortgages follow the Notes they

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secure, thus Defendant BAC was entitled to enforce the Mortgage by virtue of being the holder

of the Note. Defendant Hill is wrong in her assessment, because in order to foreclose, a party

must prove not only that it is the holder of a note, but that it owns both the Note and the

Mortgage in order to foreclose on a property.

Here, Defendant BAC never even alleged in it’s Complaint that it was the owner of

Plaintiff’s Note or Mortgage, rather it only claimed to be the holder of Plaintiff’s Note. In Wells

Fargo Bank, N.A. v. Jordan, 2009-Ohio-1092, (Ct. App. 8th Dist., dec. March 9, 2009), the

Cuyahoga County Court of Appeals stated:

Several judges have held that a complaint must be dismissed if the plaintiff cannot prove that it owned the note and mortgage on the date the complaint was filed. E.g., In re Foreclosure Cases, (N.D. Ohio 2007), Case Nos. 1:07CV2282, et seq., (Boyko, J.); In re Foreclosure Cases (S.D. Ohio 2007), 521 F. Supp.2d 650, (Rose, J.). Thus, if plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.” Id. at Par. 19-23 (emphasis added).

Further, Ohio law holds that “[a]n action on a note and an action to foreclose a mortgage are two

different beasts.” Gevedon v. Hotopp, Montgomery App. No. 20673, 2005-Ohio-4597, ¶28. See,

also, Third Fed. Savs. Bank v. Cox, Cuyahoga App. No. 93950, 2010-Ohio-4133; Fifth Third

Bank v. Hopkins, 177 Ohio App.3d 114, 2008-Ohio-2959, 894 N.E.2d 65. Thus, Defendant

BAC was required to prove that it was both the holder AND owner of Plaintiff’s Note AND

Mortgage. Defendant BAC did not do so.

Defendant BAC attempted to establish ownership over Plaintiff’s Mortgage by

submitting an Assignment of Mortgage, signed by Defendant Hill, on behalf of MERS.

However, Defendant Hill was also an employee of the firm representing BAC when she signed

as an agent of MERS. This is clearly troublesome.

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In In re Foreclosure Cases, (N.D. Ohio 2007), Case Nos. 1:07CV2282, et seq., (Boyko,

J.), the original foreclosing parties the attached Notes and Mortgages identifying the mortgagee

and promisee as the original lending institution — one other than the named Plaintiffs. Further,

the exhibits attached to the Complaints made no reference to the named Plaintiffs in the recorded

chains of title/interest. The trial Court requested clarification by requiring each Plaintiff to

submit a copy of the Assignment of the Note and Mortgage, executed as of the date of the

Foreclosure Complaint. The Assignments, in every instance, expressed a present intent to

convey all rights, title and interest in the Mortgage and the accompanying Note to the Plaintiffs

named in the caption of the Foreclosure Complaint upon receipt of sufficient consideration on

the date the Assignment was signed and notarized. Further, the Assignment documents were all

prepared by counsel for the named Plaintiffs. The court stated:

…this Court is obligated to carefully scrutinize all filings and pleadings in foreclosure actions, since the unique nature of real property requires contracts and transactions concerning real property to be in writing. R.C. § 1335.04. Ohio law holds that when a mortgage is assigned, moreover, the assignment is subject to the recording requirements of R.C. § 5301.25. Creager v. Anderson (1934), 16 Ohio Law Abs. 400 (interpreting the former statute, G.C. § 8543). “Thus, with regards to real property, before an entity assigned an interest in that property would be entitled to receive a distribution from the sale of the property, their interest therein must have been recorded in accordance with Ohio law.” In re Ochmanek, 266 B.R. 114, 120 (Bkrtcy.N.D. Ohio 2000) (citing Pinney v. Merchants’ National Bank of Defiance, 71 Ohio St. 173, 177 (1904).

Here, Defendant BAC presented the Assignment of Mortgage signed by Defendant Hill that

purportedly transferred the Mortgage from MERS to BAC. However, MERS was not entitled to

assign the Mortgage. Secondly, this Assignment was not recorded, which is a requirement to

enforcement under the Ohio Revised Code. Lastly, Defendant Hill worked for BAC’s law firm

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and prepared and signed this Assignment on behalf of MERS. As discussed in In re Foreclosure

Cases, the Court must address these discrepancies before allowing Defendant BAC to foreclose

on Plaintiff’s property. Otherwise, Plaintiff is jeopardy of having the proper holder and owner

could come forward and assert it’s right to Plaintiff’s note. In U.S. Bank, N.A. v. Richards, 2010

– Ohio – 3981 (Ohio App. 9th Dist., decided: 8/25/10) and HSBC Bank, USA v. Thompson, 2010

– Ohio – 4158 (Ohio App. 2nd Dist., decided 9/3/10) the Courts reiterated this concern, as the

Court stated that the Plaintiff should not be put at risk of being subjected to claims from multiple

parties on the same instrument.

Given the conflicting evidence of this matter, it is necessary that this Court declare

whether BAC is the owner and holder of the Note and is entitled to enforce it. Should this Court

determine that BAC cannot prove that it is the owner and holder of the Note, then the Court

should issue appropriate orders, including cancellation of the Mortgage. Thus, the assignment is

material to Plaintiff.

D. THE ASSIGNMENT OF MORTGAGE WAS NOT PROPERLY EXECUTED

Defendant Hill contends that the Assignment of Mortgage was executed properly. However,

this is not the case. Defendant Hill executed the Assignment as “Secretary and Vice President” of

MERS, even though she was actually employed by LSR at the time. If Defendant operates in

both capacities, there is a conflict of interest and a breach of a fiduciary duty. Further, this

document is invalid because Defendant Hill signed this Assignment outside the presence of a

notary.

1. The Assignment of Mortgage Is Not Valid Because Defendant Hill Breached Her Fiduciary Duty to MERS, as Nominee of AWL, and BAC.

Defendant Hill executed an Assignment of Mortgage that purportedly transferred the

Mortgage and the Note from MERS to BAC. She signed this assignment in her capacity as a

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“Secretary and Vice President” of MERS. However, Defendant Hill also worked as an employee

of LSR (Defendant BAC’s law firm) at the time she executed the assignment. Thus, she acted as

Secretary and Vice President of MERS and as essentially an employee of BAC, by way of

BAC’s counsel, at the same time. Thus, Defendant Hill was acting as an agent for both MERS

and BAC, and by doing so breaches her fiduciary duty to both principals. Defendant Hill’s

actions are a blatant conflict of interest, it makes the assignment of mortgage void, and thus, it

renders the affidavit worthless.

Under O.R.C. 2744.01(B) states, “’Employee’ means an officer, agent, employee, or

servant, whether or not compensated or full-time or part-time, who is authorized to act and is

acting within the scope of the officer’s, agent’s, employee’s, or servant’s employment for a

political subdivision. * * *.” (Emphasis added.) An agency relationship requires a fiduciary

relationship between the agent and the principal. Berge v. Columbus Community Cable Access

(1999), 136 Ohio App.3d 281. A fiduciary relationship is defined as one “in which special

confidence and trust is reposed in the integrity and fidelity of another and there is a resulting

position of superiority or influence, acquired by virtue of this special trust.” Landskroner v.

Landskroner, 154 Ohio App.3d 471, 2003-Ohio-4945, at ¶32, quoting Ed Schory & Sons, Inc. v.

Soc. Natl. Bank (1996), 75 Ohio St.3d 433, 442.

In Onewest Bank, F.S.B. v Drayton, Docket No. 2010 NY Slip Op 20429 (October 21,

2010), the plaintiff filed a foreclosure action based on a note executed to Cambridge, that listed

MERS as a nominee. The Court required proof of the grant of authority from the original

mortgagee, CAMBRIDGE HOME CAPITAL, LLC (CAMBRIDGE), to its nominee,

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), to assign the

subject mortgage and note on March 16, 2009 to INDYMAC FEDERAL BANK, FSB

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(INDYMAC). INDYMAC subsequently assigned the subject mortgage and note to its successor,

ONEWEST, on May 14, 2009.

Next, the court noted that Ms. Johnson-Seck claims to be: a Vice President of MERS in

the March 16, 2009 MERS to INDYMAC assignment; a Vice President of INDYMAC in the

May 14, 2009 INDYMAC to ONEWEST assignment; and, a Vice President of ONEWEST in

her June 30, 2009-affidavit of merit. Ms. Johnson-Seck must explain to the Court, in her

affidavit: her employment history for the past three years; and, why a conflict of interest does not

exist in the instant action with her acting as a Vice President of assignor MERS, a Vice President

of assignee/assignor INDYMAC, and a Vice President of assignee/plaintiff ONEWEST. Because

of this, Ms. Johnson-Seck must explain: why she was a Vice President of both assignor MERS

and assignee DEUTSCHE BANK in a second case before me, Deutsche Bank v Maraj, 18 Misc

3d 1123 (A) (Sup Ct, Kings County 2008); why she was a Vice President of both assignor MERS

and assignee INDYMAC in a third case before me, Indymac Bank, FSB, v Bethley, 22 Misc 3d

1119 (A) (Sup Ct, Kings County 2009); and, why she executed an affidavit of merit as a Vice

President of DEUTSCHE BANK in a fourth case before me, Deutsche Bank v Harris (Sup Ct,

Kings County, Feb. 5, 2008, Index No. 35549/07).

“…it is clear that MERS's relationship with its member lenders is that of agent with principal. This is a fiduciary relationship, resulting from the manifestation of consent by one person to another, allowing the other to act on his behalf, subject to his control and consent. The principal is the one for whom action is to be taken, and the agent is the one who acts. It has been held that the agent, who has a fiduciary relationship with the principal, "is a party who acts on behalf of the principal with the latter's express, implied, or apparent authority." (Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [2d Dept 1992]). "Agents are bound at all times to exercise the utmost good faith toward their principals. They must act in accordance with the highest and truest principles of morality." (Elco Shoe Mfrs. v Sisk, 260 NY 100, 103 [1932]). (See Sokoloff v Harriman Estates Development Corp., 96 NY 409

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[2001]); Wechsler v Bowman, 285 NY 284 [1941]; Lamdin v Broadway Surface Advertising Corp., 272 NY 133 [1936]). An agent "is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties." (Lamdin, at 136).

Therefore, in the instant action, MERS, as nominee for CAMBRIDGE, is an agent of CAMBRIDGE for limited purposes. It can only have those powers given to it and authorized by its principal, CAMBRIDGE. Plaintiff ONEWEST has not submitted any documents demonstrating how CAMBRIDGE authorized MERS, as nominee for CAMBRIDGE, to assign the subject DRAYTON mortgage and note to INDYMAC, which subsequently assigned the subject mortgage and note to plaintiff ONEWEST.

Recently, in Bank of New York v Alderazi, 28 Misc 3d at 379-380, my learned colleague, Kings County Supreme Court Justice Wayne Saitta explained that: A party who claims to be the agent of another bears the burden of proving the agency relationship by a preponderance of the evidence (Lippincott v East River Mill & Lumber Co., 79 Misc 559 [1913]) [*15] and "[t]he declarations of an alleged agent may not be shown for the purpose of proving the fact of agency." (Lexow & Jenkins, P.C. v Hertz Commercial Leasing Corp., 122 AD2d 25 [2d Dept 1986]; see also Siegel v Kentucky Fried Chicken of Long Is. 108 AD2d 218 [2d Dept 1985]; Moore v Leaseway Transp/ Corp., 65 AD2d 697 [1st Dept 1978].) "[T]he acts of a person assuming to be the representative of another are not competent to prove the agency in the absence of evidence tending to show the principal's knowledge of such acts or assent to them." (Lexow & Jenkins, P.C. v Hertz Commercial Leasing Corp., 122 AD2d at 26, quoting 2 NY Jur 2d, Agency and Independent Contractors § 26). Plaintiff has submitted no evidence to demonstrate that the original lender, the mortgagee America's Wholesale Lender, authorized MERS to assign the secured debt to plaintiff.

Therefore, in the instant action, plaintiff ONEWEST failed to demonstrate how MERS, as nominee for CAMBRIDGE, had authority from CAMBRIDGE to assign the DRAYTON mortgage to INDYMAC. The Court grants plaintiff ONEWEST leave to renew its motion for an order of reference, if plaintiff ONEWEST can demonstrate how MERS had authority from CAMBRIDGE to assign the DRAYTON mortgage and note to INDYMAC.

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Then, plaintiff ONEWEST must address the tangled employment situation of "robo-signer" Erica A. Johnson-Seck. She admitted in her July 9, 2010 deposition in the Machado case that she never provided me with affidavits of her employment for the prior three years and an explanation of why she wore so-many corporate hats in Maraj and Bethley. Further, in Deutsche Bank v Harris, Ms. Johnson-Seck executed an affidavit of merit as Vice President of Deutsche Bank. If plaintiff renews its motion for an order of reference, the Court must get to the bottom of Ms. Johnson-Seck's employment status and her "robo-signing." The Court reminds plaintiff ONEWEST's counsel that Ms. Johnson-Seck, at p. 161 of the Machado deposition, volunteered, at lines 4 - 5 to "gladly show up in his court and provide him everything he wants."

ORDERED, that leave is granted to plaintiff, ONEWEST BANK, F.S.B., to renew, within sixty (60) days of this decision and order, its motion for an order of reference for the premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), provided that plaintiff, ONEWEST BANK, F.S.B., submits to the Court:

(1) proof of the grant of authority from the original mortgagee, CAMBRIDGE CAPITAL, LLC, to its nominee, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., to assign the subject mortgage and note to INDYMAC FEDERAL BANK, FSB; and

(2) an affidavit by Erica A. Johnson-Seck, Vice President of plaintiff ONEWEST BANK, F.S.B., explaining: her employment history for the past three years; why a conflict of interest does not exist in how she acted as a Vice President of assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Vice President of assignee/assignor INDYMAC FEDERAL BANK, FSB, and a Vice President of assignee/plaintiff ONEWEST BANK, F.S.B. in this action; why she was a Vice President of both assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and assignee DEUTSCHE BANK in Deutsche Bank v Maraj, 18 Misc 3d 1123 (A) (Sup Ct, Kings County 2008); why she was a Vice President of both assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and assignee INDYMAC BANK, FSB in Indymac Bank, FSB, v Bethley, 22 Misc 3d 1119 (A) (Sup Ct, Kings County 2009); and, why she executed an affidavit of merit as a Vice President of DEUTSCHE BANK in Deutsche Bank v Harris (Sup Ct, Kings County, Feb. 5, 2008, Index No. 35549/07); and

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(3) counsel for plaintiff ONEWEST BANK, F.S.B. must comply with the new Court filing requirement, announced by Chief Judge [*17] Jonathan Lippman on October 20, 2010, by submitting an affirmation, using the new standard Court form, pursuant to CPLR Rule 2106 and under the penalties of perjury, that counsel for plaintiff ONEWEST BANK, F.S.B. has personally reviewed plaintiff ONEWEST BANK, F.S.B.'s documents and records in the instant action and counsel for plaintiff ONEWEST BANK, F.S.B. confirms the factual accuracy of plaintiff ONEWEST BANK, F.S.B.'s court filings and the accuracy of the notarizations in plaintiff ONEWEST BANK, F.S.B.'s documents.

The facts of this case are very similar to Onewest Bank. Because Defendant Hill acted on

behalf of both MERS and BAC (as BAC’s counsel) when executing the Assignment of

Mortgage, Defendant asks the Court to strike Defendant Hill’s Assignment of Mortgage.

2. The Assignment of Mortgage Is Not Valid Because Defendant Hill Signed the Assignment of Mortgage Outside the Presence of a Notary.

This argument is troublesome because as it can be signed outside the presence of a notary, but must attest that they signed it in front of the notary.

E. PLAINTIFF HAS PROPERLY STATED CLAIMS FOR RELIEF AGAINST DEFENDANT HILL.

Defendant has not properly met their burden of proving that Plaintiff failed to state a

claim for which relief can be granted. Plaintiff properly alleged claims in all four counts against

Defendant, and Defendant Motions to Dismiss should be denied in its totality.

1. Plaintiff Has Properly Alleged Fraud Against Defendant Hill.

Under Rule 9(b) of the Federal Rules of Civil Procedure, to allege “fraud or mistake, a

party must state with particularity the circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person's mind may be alleged generally.” In order to state

a claim for fraud, a party must plead: “(a) a representation or, where there is a duty to disclose,

concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely with

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knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or

false that knowledge may be inferred, (d) with the intent of misleading another into relying upon

it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury

proximately caused by the reliance.'" Jarvis v. Stone, 2008-Ohio-3313, (Ct. App 9th Dist), at

¶10, quoting Cohen v. Lamko Inc. (1984), 10 Ohio.St.3d 167, 169.

Here, Defendant Hill argues that Plaintiff failed to allege falsity, there was no privity, and

Plaintiff was no harmed by the assignment. This is not the case.

Plaintiff made it clear that Defendant Hill committed fraud by knowingly submitting an

assignment that was material to the foreclosure of Plaintiff’s home. Further, Plaintiff stated that

Defendant Hill made representations with respect to this foreclosure action which were material

to the proceeding, were made with knowledge of falsity or utter disregard for whether they were

true or false, with the intent to mislead the Court and Plaintiff and the Court and Plaintiff

justifiably relied on said false representations. Thus, Plaintiff properly stated the circumstances

constituting fraud by Defendant Hill. Therefore, Plaintiff appropriately alleged fraud under Rule

9(b).

2. Plaintiff Adequately Stated a Claim Under Ohio’s Corrupt Acitivities Act, Rev. Code § 2923.32.

R.C. § 2923.32 (“Ohio RICO”) provides that, “No person employed by, or associated

with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the

enterprise through a pattern of corrupt activity or the collection of an unlawful debt.” R.C. §

2923.32(A)(1). R.C. § 2923.31(C) defines “enterprise” as: “any individual, sole proprietorship,

partnership, limited partnership, corporation, trust, union, government agency, or other legal

entity, or any organization, association, or group of persons associated in fact although not a

legal entity.”

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Further, to state a valid Ohio RICO claim, a plaintiff must plead the following elements

with specificity: (1) [the] conduct of the defendant involves the commission of two or more

specifically prohibited state or federal criminal offenses, (2) that the prohibited criminal conduct

of the defendant constitutes a pattern of corrupt activity, and (3) that the defendant has

participated in the affairs of an enterprise or has acquired and maintained an interest in or control

of an enterprise. Kondrat v. Morris, 692 N.E.2d 246, 253 (Ohio Ct. App. 1997).

Defendant argues that Plaintiff’s Complaint does not make any allegation that she

committed a particular criminal offense at all. This is not the case. In State v. Theisler, 11th Dist.

No. 2005-T-0106, 2007-Ohio-213, the Eleventh Appellate District examined whether, under

R.C. 2923.32, the defendant could be convicted of acts constituting a criminal enterprise. The

defendant was a partner (with two other medical doctors) in a pain management clinic; though a

medical doctor, he was not licensed to practice medicine or dispense prescription medications in

Ohio. Id. at ¶ 2. The defendant was permitted by his partners to dispense prescriptions signed by

a partner in blank. Id. at ¶ 4.

The defendant was indicted and convicted on counts of engaging in a pattern of corrupt

activity, drug trafficking, illegal processing of drug documents, and practicing medicine or

surgery without a license. Id. at ¶ 6. Relevant to this case, the defendant argued that his

conviction for engaging in a pattern of corrupt activity was not supported by sufficient evidence.

Specifically, the defendant contended that there was no evidence to establish an enterprise

separate from the clinic. Id. at ¶ 25.

Finding sufficient evidence to establish a criminal enterprise, the court concluded that at a

minimum, the defendant was an employee of the clinic and, therefore, was “participating in the

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affairs of an ‘enterprise’” under the Statute. Id. at ¶ 40. So finding, the court noted: “The

corporate owner/employee, a natural person, is distinct from the corporation itself, a legally

different entity with different rights and responsibilities due to its different legal status. And we

can find nothing in the statute that requires more “separateness” than that.'" Id. at ¶ 37, quoting

Cedric Kushner Promotions, Ltd. v. King (2001), 533 U.S. 158, 163.

Further, in King, the United States Supreme Court held that an individual as president and

sole shareholder of a closely held corporation, was a person distinct from his company. The court

reasoned: “[L]inguistically speaking, the employee and the corporation are different ‘persons,’

even where the employee is the corporation's sole owner. After all, incorporation's basic purpose

is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different

from those of the natural individuals who created it, who own it, or whom it employs.” Id.

Plaintiff properly identified that Defendant Hill violated the rights of homeowners,

abused the legal system, and has committed fraud on the Plaintiff and the Court. Other courts

have identified such wrongdoing as well. In a case involving GMAC, as well as BofA, a Maine

Court recently found that the use of a robo-signer in a foreclosure action constituted a “high

volume and careless approach” toward the judicial system. That Court disregarded the robo

signer’s affidavit, and ordered sanctions against GMAC. See Federal National Mortgage

Association v. Bradbury, Bridgton, Maine District Court Docket No. BRI-RE-09-65.

Even more recently, the Ohio Attorney General filed an Action on behalf of the Citizens

of Ohio in the Lucas County, Common Pleas Court seeking injunctive relief and damages on

account of these same practices. Further, BofA belatedly acknowledged that its regular use of

robo-signers constituted an abuse of the legal system and a violation of the rights of

homeowners, by halting foreclosures in all 50 states.

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Because Defendant Hill is an alleged robo-signer used by BAC, the two of them worked

as an enterprise to wrongfully executes affidavits, assignments and other legal documents

necessary to process foreclosures as quickly and efficiently as possible for a number of different

companies. Thus, Defendant’s Motion to Dismiss must be denied on this Count.

3. Plaintiff Properly Alleged Civil Conspiracy.

A civil conspiracy under Ohio law consists of a “malicious combination of two or more

persons to injure another in person or property, in a way not competent for one alone, resulting in

actual damages.” Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419, 650 N.E.2d

863 (1995). “Liability attaches for a civil conspiracy when a plaintiff can prove that two or more

defendants agreed to injure another by unlawful action and committed an overt act in furtherance

of the conspiracy.” Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 541 (6th

Cir.2002). A civil conspiracy requires an agreement between two or more persons and a

concerted action to accomplish a criminal or unlawful purpose or to accomplish a lawful purpose

by criminal or unlawful means. United Rentals, Inc. v. Keizer, 355 F.3d 399 (6th Cir.2004). The

principal element of a conspiracy is agreement among the parties. Hampton v. Hanrahan, 600

F.2d 600, 620-21 (7th Cir.1979).

Scanlon v. Stofer, supra, the Ohio Eighth District Court of Appeals stated:“the elements which comprise a claim of civil conspiracy involve:1) a malicious combination;2) two or more persons;3) injury to person or property;4) existence of an unlawful act independent [*42] from theactual conspiracy.”

Here, Plaintiff has clearly stated a claim of civil conspiracy meeting all of the above

elements. She has stated the existence of a malicious combination of two or more persons (BAC

and Hill), injury to the person or property (depriving Plaintiff of the Residence, and the existence

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of an unlawful act independent of the conspiracy (defrauding the Court and Plaintiff by use of a

false and fraudulent Affidavit, and failing to speak up when it had a duty to do so). Thus,

Defendants’ Motions on this ground must be denied.

4. `Plaintiff Properly Alleged Punitive Damages Under Ohio Law.

Count Seven sets forth a claim against BAC and Hill for punitive damages.

Defendants argue that there is no action for damages, let alone punitive damages. However,

Plantiff has properly alleged wrongful conduct by Defendant Hill.

Plaintiff clearly recognizes this principle in her Complaint by stating: “BAC and Hill

undertook and committed the foregoing actions with the knowledge that there was a substantial

probability that their actions would, and the actions in fact did, cause serious and substantial

harm to the Plaintiff. BAC and Hill’s actions were willful, wanton, and malicious.” Complaint,

Par. 45-46.

Therefore, Plaintiff is clearly basing her claim for punitive damages on the wrongful

conduct described in detail in the preceding portion of the Complaint. Defendants’ Motions in

this regard must be denied.

III. CONCLUSION

For the foregoing reasons, Defendants’ Motions to Dismiss should be denied.

/s/ Daniel L. McGookeyDaniel L. McGookey (Reg. No. 0015771)Richard Barry Hardy III (Reg. No. 0068067)McGOOKEY LAW OFFICES, LLCCounsel for DefendantRhonda McLaughlin

CERTIFICATE OF SERVICE

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I hereby certify that a true and correct copy of the foregoing Plaintiff’s Memorandum inOpposition to Shellie Hill’s (“Hill”) Motions to Dismiss was served upon all counsel of record by CM/ECF notification on _______, 2011.

/s/ Daniel L. McGookeyDaniel L. McGookey (Reg. No. 0015771)McGOOKEY LAW OFFICES, LLC

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