Judge Karlin

10-07027 Martinez et al v. Mortgage Electronic Registration Systems (Doc. # 94)

Martinez et al v. Mortgage Electronic Registration Systems, 10-07027 (Bankr. D. Kan. Apr. 20, 2011) Doc. # 94

PDFClick here for the pdf document.

SIGNED this 20 day of April, 2011.


In re: )

DAVID MICHAEL MARTINEZ and ) Case No. 09-40886

Debtors. )
Plaintiffs, )

v. ) Adv. No. 10-7027

Defendants. )


1Although Countrywide Home Loans, Inc. has changed its name to BAC Home Loans Servicing, LP, the parties
continue to refer to it as Countrywide, so the Court will also.

Case 10-07027 Doc# 94 Filed 04/20/11 Page 1 of 19



The Court is faced with a "Morton's fork:" grant Plaintiff’s Motion for Reconsideration orto Alter or Amend Judgment3 when the facts upon which the motion is almost entirely based could,
should, and in fact were known by the movant well before this adversary proceeding was filed, or
deny the motion on that ground, resulting in rewarding the creditors in this case for, purposelyor not,
omitting relevant information when they filed their summary judgment papers. Because the Court
finds that even with the facts Plaintiff asserts for the first time, the outcome would have been the
same, the motion will be denied.

Plaintiff, Michelle Martinez, now known as Graham (“Debtor,” “Plaintiff” or “Graham),4
brought this adversary proceeding on May 5, 2010 only against Defendant Mortgage Electronic
Registration Systems, Inc. (“MERS”). She sought an order finding that since Graham owed no
money to MERS, that MERS could not enforce the mortgage executed in MERS’ name. The
Complaint basically incorporated the April 30, 2010 decision of the Kansas Court of Appeals, which
held that MERS could not enforce the mortgage because it did not hold the underlying note.5

2This expression means a choice between two equally unpleasant alternatives. John Morton, Lord Chancellor
of England in 1487, devised a tax policy which assumed that the rich could afford to contribute and the poor were
concealing wealth. He reasoned that if the subject lived in luxury, and it appeared he had thus spent considerable money
on himself, he obviously had sufficient income to spare for the king. Alternatively, if the subject lived frugally, and
showed no sign of being wealthy, Morton asserted he must have substantial savings and could therefore afford to give
it to the king. These arguments were the two prongs of the fork and regardless whether the subject was rich or poor, he
had no defense to paying taxes. See Kohorst v. Van Wert Cnty. Hosp., 2010 WL 4883784, 5 (N.D. Ohio 2010) and
Moore v. Czerniak,574 F.3d 1092, 1166 (9th Cir. 2009), rev’d on other grounds Premo v. Moore, 131 S. Ct. 733 (2011).

3Doc. 67.

4The other plaintiff/co-debtor is deceased. See Doc. 122 (main case), Suggestion of Death, filed September 9,

544 Kan. App. 2d 547 (2010).

Case 10-07027 Doc# 94 Filed 04/20/11 Page 2 of 19

Plaintiff and Countrywide Home Loans, Inc. (“Countrywide”) then jointly sought to allow
Countrywide to intervene, both claiming that “Countrywide Home Loans, Inc. has an interest in the
property and transaction that is the subject of the Adversary Complaint against Mortgage
Electronic Registration Systems, and should be allowed to intervene as a party defendant therein.”6
Joinder was allowed.

After full discovery was allowed for all parties, they joined in an agreed Pretrial Order;7 it
controls this case. At the conclusion of all discovery, Plaintiff’s theory was that Countrywide was
merely an unsecured creditor (not that it was not a creditor at all), having lost its interest in the
mortgage that was intended to secure the promissory note when Plaintiff executed the mortgage to
MERS, as nominee for Countrywide, and not to Countrywide, directly. 8 Most of Plaintiff’s theories
revolve around her contention that MERS lacked standing to bring a foreclosure action because
Plaintiff owes no debt to MERS, and that Countrywide cannot foreclose the mortgage because it has
no interest in it. MERS and Countrywide suggested the Court needed to determine “whether MERS
and Countrywide held a valid and enforceable lien interest in the property as the mortgagee in the
Mortgage and the holder of the note,” and whether they were entitled to relief from stay under 11

U.S.C. § 362(d)(2).
On February 11, 2011, after full briefing, the Court entered a Memorandum Opinion and
Order that denied Plaintiff’s motion for summary judgment, granted Countrywide and MERS’

6Doc. 12 filed June 18, 2010 (emphasis added).


Doc. 37.

8Also see Debtors’ Objection to Claim in main case, Doc. 106. The only basis asserted was that because the
mortgage was split off, Countrywide’s claim was now unsecured based on the recent decision of the Kansas Court of


Case 10-07027 Doc# 94 Filed 04/20/11 Page 3 of 19

motions for summaryjudgment, and overruled Plaintiff’s objection to the Proof of Claim. The Court
found that the note held by Countrywide was secured by the mortgage, and that Countrywide was
thus entitled to foreclose that mortgage on Plaintiff’s home (or former home, since she had moved).

On February 24, 2011, Plaintiff timely filed a motion for reconsideration, contending that
the Court should set aside its decision and re-open discovery.9 She contended the Court had made
two erroneous findings: 1) that Countrywide was the holder of the note; and 2) that the Court of
Appeals’ decision was not res judicata on the issue of whether MERS was an agent of
Countrywide. 10 The basis for this request is her claim that Countrywide and MERS misled the Court
by failing to explain that Countrywide had sold its beneficial interest in the note to a third party,
Fannie Mae, prior to bankruptcy, and that Fannie Mae “probably” has “securitized the debt and sold
it to others as a mortgage-backed security.”11 She contends this “new” evidence requires the Court
to withdraw its decision so she can conduct the discovery she would have conducted had she known
the truth.

To support her contention that MERS and Countrywide “glossed over the very important,
genuine, material facts that the loan was sold by Countrywide to another entity and that Countrywide
is not the beneficial owner of the loan,” Plaintiff cites to an affidavit dated July 23, 2007 (the
Deloney affidavit) that was used by MERS (and by Plaintiff, herself) in the underlying state court
foreclosure proceeding. That affidavit clearly noted that Countrywide was now the servicer of the

9 See Doc. 84, p. 15, Plaintiff’s reply brief, stating the Court “must withdraw its memorandum decision, and
should further allow discovery to be reopened so that all of the facts in this case can be obtained . . .”

10Doc. 67, p. 2.

11Id. at p. 5.


Case 10-07027 Doc# 94 Filed 04/20/11 Page 4 of 19

loan, having sold its beneficial interest in the note to Fannie Mae.”12 In fact, when Plaintiff sought
summary judgment in the state court proceeding, she specifically included as a material fact “50.
Fannie Mae is the investor on the Loan,” relying on the Deloney affidavit.13 The state court judge
included this fact in his decision entered February 25, 2008.14

Accordingly, when Plaintiff filed this Motion for Reconsideration claiming that she did not
know (or appreciate) this information, the fact of the matter is that she had known for well over three
years of Fannie Mae’s involvement in this loan, and Countrywide’s status of holder and servicer of
the note and mortgage. The Court presumes that although Plaintiff’s counsel knew these facts, he
was unaware until after the Court decision that others in the local legal community were raising
additional issues in the face of similar facts. Therefore, he did not raise these until after receipt of
the unfavorable decision.15

12Doc. 46-7, affidavit of Diane Deloney, and specifically ¶7, saying Countrywide is the servicer, and ¶33, saying
Fannie Mae is the investor on the loan, which affidavit was submitted by Countrywide in the midst of over 100 pages
of pleadings and exhibits filed in support of its summary judgment motion in this Court.

13Plaintiff is represented by the same counsel as she was in the state court foreclosure proceeding and appeal.

14See Doc 43, p. 8 Exhibit 4 to Plaintiff’s summary judgment motion.

15The Court is certainly not critical of this choice. These are issues on which there has been considerable heat,
but little light, for at least a year, mostly in the Motion for Relief from Stay practice. These issues have been discussed,
in varying form, on probably every stay relief docket for well over a year, as some Chapter 7 trustees have taken up this
cause. Skilled lawyers have elected to raise these issues, and equally skilled lawyers have elected not to raise them. But
it is clear that the existence of these arguments was known, and if Plaintiff’s lawyer had wished to pursue them, he
certainly had enough facts (from the 2007 Delaney affidavit, alone) to pursue discovery on those issues. Similar facts,
and legal theories, for example, were at issue in In re Tucker, 441 B.R. 638 (Bankr. W.D. Mo. 2010). That case was
noted in the Pretrial Order, at Doc. 37, and Plaintiff’s initial motion for summary judgment (Doc. 39, p.14) analyzed that
case. The Tucker decision, which detailed the theory(ies) that Plaintiff apparently now wishes she had raised, to-wit
whether downstream purchaser(s) of note from original Lender and Fannie Mae, Aurora Loan Services, LLC, and all
subsequent assignees were MERS members such that there was no gap in the chain of title, was thus well known to
Plaintiff at the time she moved for summary judgment. She elected not to raise those theories, and it is too late to do so


Case 10-07027 Doc# 94 Filed 04/20/11 Page 5 of 19

Countrywide’s cross-motion for summary judgment and other pleadings, in retrospect, were
misleading mostly by omission, but occasionally by commission. For example, it stated
unequivocally that it “is [present tense] the secured lender under a purchase money mortgage on the
subject residence.”16 Countrywide’s final reply brief argued that one of the reasons it is entitled to
relief is because it “holds a purchase money security interest,”17 and because “Countrywide has an
actionable purchase money mortgage . . .” 18 Countrywide’s continual use of the present tense did,
in fact, lead this Court to understand that Countrywide was the present beneficial owner of the note,
just like it was on the date it loaned the money.

MERS contributed to this confusion, albeit in only one and maybe two instances, when it
added an additional material fact (no. 2) upon which it contended (and Plaintiff agreed) there was
no genuine issue: “Upon information and belief, the Note remains payable to the order of
Countrywide,”19 notwithstanding the fact that Countrywide had apparently sold its interest in that
note to Fannie Mae years earlier and was required to endorse the note in blank (making it essentially
payable to any party holding the note). The Court certainly construed this statement to mean that
there had been no change in Countrywide’s status since the inception of the transaction.20

Additional facts will be discussed below, when necessary.

16Doc. 45, pp. 1-2.

17Doc. 55, p. 4.

18Id. at p. 5.

19Doc. 48, p. 4, ¶2.

20The other instance is the Hultman affidavit, upon which this fact was based, which indicates that a “true and
correct copy of the Note is attached hereto as Exhibit A.” See Doc. 48-1, ¶3 dated Dec 22, 2010 . In this Court’s recent
experience, the lender-turned-servicer in Fannie Mae transactions typically endorses the note in blank and retains the
original as agent for the beneficial owner. The Court could find no such endorsement on the copy attached to the
Hultman affidavit.


Case 10-07027 Doc# 94 Filed 04/20/11 Page 6 of 19

Rule 9023 of the Federal Rules of Bankruptcy Procedure incorporates Rule 59 of the Federal
Rules of Civil Procedure, and allows for alteration or amendment of judgments on the grounds for
relief set forth in Rule 60(b) of the Federal Rules of Civil Procedure, as incorporated in Bankruptcy
Rule 9024.21 Grounds for relief include mistake, inadvertence, surprise, excusable neglect, fraud or
newly discovered evidence. A motion to reconsider that is filed within fourteen days of the entry
of judgment is treated as a motion to alter or amend.22

The legal standard for granting a motion for reconsideration is narrow. “A motion for
reconsideration should be granted only to correct manifest errors of law or to present newly
discovered evidence.”23 “Such motions are not appropriate if the movant only wants the Court to
revisit issues already addressed or to hear new arguments or supporting facts that could have been
presented originally.”24

In the Court’s Memorandum Opinion and Order denying Plaintiff’s Motion for Summary
Judgment, granting Countrywide and MERS’ Motion for Summary Judgment, and overruling

21 See In re Colley, 814 F.2d 1008, 1010 (5th Cir. 1987).

22See In re American Freight System, Inc., 168 B.R. 245, 246 (D. Kan. 1994). The deadline for filing a motion
to alter or amend was recently changed from 10 days to 14 days in connection with the revisions of the Federal Rules
of Civil Procedure, which revised deadlines to multiples of 7 rather than 10 days.

23 Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, n.5 (10th Cir. 2000) (internal quotations omitted).

24 Zhou v. Pittsburg State Univ., 252 F. Supp. 2d 1194, 1199 (D. Kan. 2003) (citing Van Skiver v. U.S., 952 F.2d
1241, 1243 (10th Cir. 1991); Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (holding it was not
an abuse of discretion, on a motion to reconsider, to decline to consider new evidence presented for the first time); Fox

v. Noram Energy Corp., 198 F.3d 257 (10th Cir. 1999) (holding that court did not abuse its discretion in denying motion
to reconsider because “[a]s to the new information presented in support of the motion [to reconsider], the plaintiffs have
not explained why this information was not presented in their initial response to the summary judgment motion.”).

Case 10-07027 Doc# 94 Filed 04/20/11 Page 7 of 19

Plaintiff’s Objection to Proof of Claim of Countrywide, the Court made the following specific
1) The decision of the Kansas Court of Appeals in Mortgage Electronic Registration
Systems, Inc. v. Graham,25 was not res judicata on the issue of whether MERS was

an agent of Countrywide at all times relevant to this case;
2) MERS held the mortgage on the real property as an agent of Countrywide;
3) The note and mortgage were not irrevocably split when Plaintiff signed a note in

favor of Countrywide and executed the mortgage in favor or MERS, and thus the
note remained secured by the mortgage;
4) Countrywide held a claim secured by the mortgage held by its agent MERS;
5) Countrywide and MERS were not required to bring a foreclosure proceeding as a
compulsory counterclaim in this adversary proceeding under Fed. R. Civ. P. 13; and
6) Countrywide was entitled to relief from the automatic stay to bring a foreclosure
proceeding in state court.
Plaintiff now seeks reconsideration of two of the Court’s holdings concerning the res judicata effect
of the Kansas Court of Appeals decision and the holding that Countrywide is entitled to relief from
stay to foreclose the mortgage. 26 She does so by, for the first time in these proceedings, arguing that
Countrywide is not the beneficial owner of the note, because it sold its interest in the note to Fannie
Mae, it is now merely a servicer,27 and thus it has no standing to bring a foreclosure action.

2544 Kan. App. 2d 547.

26Plaintiff has not specifically sought reconsideration of the holdings that (1) MERS held the mortgage on
Plaintiff’s property as an agent of Countrywide (other than through its argument about the res judicata effect of the state
court decision), (2) the original note and mortgage were not irrevocably split, or (3) that Countrywide and MERS were
not required to bring a foreclosure proceeding as a compulsory counterclaim.

27These are just a few of the places in the reconsideration papers filed by Plaintiff where she admits or asserts
that Countrywide is the servicer: Doc. 67 at pp. 4, 6, 10 (twice), 12, and 13.


Case 10-07027 Doc# 94 Filed 04/20/11 Page 8 of 19

As a preliminary matter, the Court agrees with Plaintiff that the appropriate time to raise

these “new facts” was in her own summary judgment motion and in her responses to the creditors’

summary judgment motions.28 Plaintiff’s counsel readily concedes that he knew or should have

known (and should have further inquired during discovery), that Countrywide had sold its beneficial

interest in the note to Fannie Mae years earlier.29 He explains he “did not do the discovery that

probably should have been done,” 30 because he believed his res judicata argument was correct, and

that winning that argument was all needed to do to prevail.31

At the same time, Plaintiff is correct in arguing that both Countrywide and MERS selected

language in their pleadings that allowed the Court to believe that there had been no change in

Countrywide's status as both holder and owner of the note, as evidenced by the findings of fact.

Having said that, the Court finds that ultimately, as discussed below, the belated arguments and facts


These theories and facts should also have been included in the Pretrial Order.

29See Plaintiff’s Reply to Defendants’ Responses to Plaintiff’s Motion to Reconsider or to Alter or Amend
Judgment, Doc. 84 at p.11, where he states: “Plaintiff's counsel will readily concede that he should have been more
diligent in the discovery process in order to obtain these documents” and that he “should have been directing these
questions to MERS and Countrywide before the close of discovery and not as part of a motion to reconsider.”

30 Id. Plaintiff’s counsel also readily admits that in addition to the discovery he was allowed during both the
contested matter in the main case and the Adversary Proceeding in the bankruptcy court, “[e]xtensive discovery had been
completed in the state court case.” Doc. 134 at p. 18. See also “MERS and Countrywide, as well as Martinez and
Graham, took full advantage of the discovery process in the state court case . . .” Id. He notes (on p. 18 of his Motion
to Reconsider, Doc. 67) that he deposed Gloria Craig, the manager of the loss mitigation and bankruptcy unit of the law
firm of McCalla Raymer, which represented Countrywide during the Graham/Martinez 2005 bankruptcy. Accordingly,
this is not a situation where a quick summary judgment motion deprived a party of the ability to discover as much as was
needed to support whatever theories the party wished to advance. In addition, Plaintiff (in Doc. 84) now argues that
although MERS revealed the existence of numerous core documents in its Rule 26(a) disclosure that might have jogged
his memory about what he already knew about the ownership of the note (including the “MERS Milestones for MIN
100015700011338262, MERS Governing Documents, consisting of the BAC Home Loans Servicing Amended, the
MERS Membership Agreement, as amended, the MERS Rules of Membership, MERS Terms and Conditions, and the
MERS procedures manual”), it had some obligation to also turn over those documents without a request for production.
He never suggests he made such a request, and Rule 26(a)(1)(A) does not require turnover of the disclosed documents.
It only requires a description by category and location of such documents, which MERS apparently provided.

31Doc. 84. This is why alternative arguments are allowed.


Case 10-07027 Doc# 94 Filed 04/20/11 Page 9 of 19

raised by Plaintiff should not, and thus will not, alter the outcome,32 notwithstanding the Court’s
disappointment with how Defendants chose to brief the case.

Plaintiff has failed to show that the Court erred in holding that Countrywide is
a holder entitled to enforce the note and mortgage.
Plaintiff’s first argument is that Countrywide is merely a servicer for Fannie Mae, and thus
lost its status as a secured creditor after it sold its beneficial interest in the note to Fannie Mae.
Therefore, according to Plaintiff, Countrywide does not have a sufficient interest in the note to
enforce it against Plaintiff on its own behalf. In addition, Plaintiff now asserts that Countrywide has
not produced any evidence that Fannie Mae, or anyone else holding the beneficial interest in the note,
has authorized Countrywide to act on its behalf in seeking relief from stay or foreclosure, although
she did not elect to raise this theory earlier.

32The Court is aware that other cases presenting similar issues are currently pending before this Court, and that
the attorneys in those cases may raise additional arguments on the issues presented in this case. In fact, the Court is
advised that as this opinion was being finalized, plaintiffs in another case against a different defendant (Heath v. US
Bank, NA, AP No. 11-7017) filed a motion to consolidate this case with that case “for purpose of determining legal
issue.” See Doc. 7, filed April 15, 2011 in the Heath case, only. Likewise, Plaintiff now suggests, on reconsideration,
that this Court join this case with In re Campoverde, Case No. 10-41685, where the case trustee was making similar
arguments to those Plaintiff now belatedly raises. At a recent hearing, the movant who sought a Motion for Relief in the
Campoverde case has indicated it intends to withdraw that motion. Even if that was a live motion, it would not be
appropriate at this stage of the proceedings to delay this decision because Plaintiff’s counsel has recently become
educated that new arguments exists that might have led to discovery that might today prove fruitful (but may
not—counsel admits he is guessing at this point). In addition, in the Heath case, the answer was filed only days ago, and
discovery will not be concluded for at least five months.

The Court will obviously be willing, as it is in any situation, to revisit these issues based on different facts or
new arguments raised in those cases. The Court is required, however, to decide this case between these parties, and
based on the facts and arguments timely raised by the parties in this case, alone. It declines to delay ruling merely
because some issues may overlap with other cases.


Case 10-07027 Doc# 94 Filed 04/20/11 Page 10 of 19

Despite the fact the history of the note was not overtly disclosed33 by any party prior to
issuance of the decision, the Court nonetheless finds that its prior decision finding Countrywide is
entitled to relief from the automatic stay was nevertheless correct based on the undisputed material
facts properly presented to the Court. This finding is corroborated by the admissions contained in
Plaintiff’s reconsideration papers.

The law of the state of Kansas applies to the issues in this case. The promissory note is a
negotiable instrument,34 and as such it is subject to Article 3 of the Kansas Uniform Commercial
Code (“UCC”).35 Under the UCC, an instrument may be enforced by “(a) the holder of the
instrument, (b) a nonholder in possession of the instrument who has the rights of a holder, or (c) a
person not in possession of the instrument who is entitled to enforce the instrument pursuant to

K.S.A. 84-3-309 or 84-3-418(b).”36 Further, a person is “entitled to enforce the instrument even if
the person is not the owner of the instrument or is in wrongful possession of the instrument.”37
“Holder means a person who is in possession of . . . an instrument . . . issued or indorsed to the
person or the person’s order or to bearer or in blank.”38 “[A] person who is a holder remains a holder
33Plaintiff argues that if the Court had only focused on two lines on one page out of over 80 pages of exhibits
attached to her summary judgment motion (Doc.39), it would have known these facts when issuing its decision. She
makes this argument while overlooking that she, herself, did not find these facts noteworthy enough to even mention in
her Pretrial Order contentions, her summary judgment motion or her reply [noting that Fannie Mae was now the owner
and Countrywide the servicer]. This Court suggests a better approach would have been for Plaintiff to have made this
clear in her own undisputed facts, or to deny the accuracy of statements to the contrary contained in Defendants’ facts,
if those facts were truly material. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir.1995) (citing United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”))

34K.S.A. 83-3-104 (Supp. 2010).

35K.S.A. 84-1-101 et seq.

36K.S.A. 84-3-301 (1996).



38K.S.A. 84-1-201 (Supp 2010).


Case 10-07027 Doc# 94 Filed 04/20/11 Page 11 of 19

although that person has made an assignment of a beneficial interest therein.” 39 “Consequently, the

payee in possession of a note is the holder and may bring suit on the note even though the payee had

already assigned the note as ‘the holder of an instrument whether or not he is the owner may . . .

enforce payment in his own name.’”40

The rights of a holder of a note to enforce that note, despite the note being sold, is further

explained by one commentator on the UCC:

No distinction is drawn by the Code in terms of whether the “holder” is the
holder for his or her own use and benefit or whether the holder holds as a fiduciary
for another. Thus, the fact that a holder is not the owner who is entitled to keep the
proceeds for his or her own personal use does not affect the holder’s right as holder
to sue on the instrument. A holder may sue in his or her own name alone although
holding the paper as a fiduciary for another, and there is no obligation to join such
other party as a co-plaintiff. This is true even though the holder does not have any
express authorization from the beneficial owner of the paper to bring suit.41

Based upon these clear provisions of the UCC, Countrywide is entitled to enforce the note against

Plaintiff upon a showing that (1) the note is made payable to Countrywide or is endorsed in blank

and (2) Countrywide remains in possession of the note. The fact that it may no longer be the

beneficial owner of the note is immaterial regarding its ability to enforce the note.42

In its numbered facts about which it contended there was no material issue of fact, MERS

stated in its summary judgment motion that “the Note remains payable to Countrywide and

391 Anderson U.C.C. § 1-201:259 (3d. ed. 2010).

40Id. (quoting Edwards v. Mesch, 763 P.2d 1169 (N.M. 1988)).

41Id. at § 3-301:7 (internal citations omitted).

42See In re Hwang, 396 B.R. 757, 766 (Bankr. C. D. Cal. 2008), overruled on other grounds 438 B.R. 661 (C.

D. Cal. 2010) (holding that party who was still in possession of original mortgage note made payable to that party was
entitled to enforce the mortgage note in its capacity as “holder” despite the fact the beneficial interest in the note had been
sold to a third party). Interestingly, the District Court, in reversing two other holdings of the bankruptcy court, held that
a financial institution in possession of the note is a real party in interest under Fed. R. Civ. P. 17(a)(1), with standing to
move for relief from stay, and also that the beneficial owner is not an indispensable party to the stay relief proceeding
pursuant to Fed. R. Civ. P. 19(a)(1)(B).

Case 10-07027 Doc# 94 Filed 04/20/11 Page 12 of 19

Countrywide is in possession of the original Note.” 43 This statement of fact was supported by the
affidavit of William C. Hultman, Treasurer of MERS, and Plaintiff unequivocally agreed that this
statement of fact was “[u]ncontroverted,” with no qualifications or exceptions. Plaintiff is bound
by that admission, notwithstanding her belated wishes that she had not admitted it, that she had
challenged the capacity of the affiant to make the statement, and that she had opted to do more
discovery that might have revealed additional information about these facts.

A motion for reconsideration is not the time to contest facts that were previously admitted
because an adverse result was obtained,44 however, let alone a time to ask a court to reopen discovery
so evidence previously deemed unimportant enough to pursue through discovery can now be sought.
Based upon the facts Plaintiff unequivocally admitted after a full opportunity to conduct whatever
discovery she wanted in two different courts, the Court still finds that Countrywide currently is in
possession of the original note, which “remains payable to Countrywide.” Plaintiff does not try to
controvert that finding with her “new” evidence. Therefore, Countrywide has the authority under
the UCC to enforce the note notwithstanding that it has sold the beneficial interest in the note to
Fannie Mae. This is true regardless whether or not Fannie Mae has expressly authorized
Countrywide to enforce the note.45

43See Doc. 48 at p.4.

44Although Plaintiff obtained some information from the internet, after summary judgment had been entered,
that again informed her of Fannie Mae’s interest in the note, Plaintiff still has produced no evidence to refute the fact
that Countrywide holds the original note. Plaintiff does cite to rules regarding the sale of notes to Fannie Mae that
require the note to be endorsed upon any sale. However, as Defendants note, the rules that Plaintiff cites instead require
the note to be endorsed in blank upon any sale to Fannie Mae and retained by the servicer (in this case Countrywide).
So even assuming Countrywide has complied with Fannie Mae requirements, the note would still be in its possession
and would be endorsed in blank—again making it a holder in possession of the note entitled under the UCC to enforce
it against Plaintiff.

45The Court does recognize that Countrywide could transfer possession of the original note to another entity at
some point following entry of this order. The Court’s finding that Countrywide is today the holder of the note may
therefore not be controlling in a future proceeding to actually foreclose on the mortgage if Countrywide no longer
possesses the original note.


Case 10-07027 Doc# 94 Filed 04/20/11 Page 13 of 19

Therefore, the only potential defense that Plaintiff could raise at this point is that
Countrywide, although a creditor entitled to enforce the note, is not entitled to also enforce the
mortgage. 46 But Plaintiff has unequivocally admitted that pursuant to the MERS agreement, MERS
is obligated “to take instructions from the note holder . . . .”47 Because the Court has already
held—and Plaintiff doesn’t seriously argue otherwise—that Countrywide is the holder of the note
(as opposed to the beneficial owner thereof), MERS is still obligated to take instructions from

This point was raised in the original briefing. Plaintiff admitted48 the following statement
of fact submitted by MERS as its fact No. 13:

Pursuant to section 3 of the MERS Terms and Conditions MERS agrees that it will take

instructions from the note holder and in the absence of contrary instructions from the note

holder, MERS shall comply with instructions from the servicer shown on the MERS®

System, in accordance with the Rules and Procedures of MERS.49
Plaintiff has also admitted that Countrywide serves as the servicer, and provides no basis to suggest
(other than conjecture that if allowed additional discovery, she might find some different facts) that
MERS would be acting ultra vires to assign the mortgage to Countrywide to allow it to proceed to
foreclose in state court.

46 See 11 U.S.C. § 101(10) (defining a creditor as an entity that has a claim against the debtor) and 11 U.S.C.
§ 101(5)(A) (defining a claim as a “right to payment”). See also 2 Collier on Bankruptcy ¶ 101.10 (Alan N. Resnick &
Henry J. Somers eds., 16th ed.) (stating that “in contrast to prior law under Section 1 of the Act, a creditor is no longer
required to own the claim) (emphasis in original).

47 See Memorandum in Support of MERS’ Cross-Motion for Summary Judgment, Doc. 48 at p. 8, ¶13.

48Plaintiff admitted the fact in her response to summary judgment, Doc. 51, p. 6.

49This was supported by the Hultman affidavit, which attached a portion of the MERS Terms and Conditions
at ¶3 (Doc 48-1, p.18), and the same language is also contained in MERS Rules of Membership, Rule 2, Sec 6 attached
to Hultman affidavit at Doc 48-1, p.24) (“MERS shall at all times comply with the instructions of the holder of mortgage
loan promissory notes. In the absence of contrary instructions from the beneficial owner, MERS and Mortgage
Electronic Registration Systems. Inc. may rely on instructions from the servicer shown on the MERS® System in
accordance with these Rules and the Procedures . . . ”) (emphasis added). Plaintiff also attached these rules as Exhibit
8 to its Motion to Reconsider, Doc. 75.


Case 10-07027 Doc# 94 Filed 04/20/11 Page 14 of 19

Plaintiff also seems to suggest that in these instructions the term “note holder” must mean
the same as “beneficial owner.” She then concludes from that assumption that because she has
recently remembered that Countrywide is not the beneficial owner, the fact that Countrywide is
“only” the note holder does not give Countrywide the right to enforce the note and foreclose the
mortgage. But she attached MERS rules in her reconsideration papers, and in other paragraphs of
those rules, including in Rule 8, it specifically states that “the beneficial owner” of such mortgage
loan or its servicer shall determine whether foreclosure proceedings shall be conducted.” So not
only does the MERS agreement Plaintiff relies on to seek reconsideration specifically differentiate
between the note holder and the beneficial owner (and give powers to the note holder), but it also
gives rights to the servicer (a position Plaintiff frequently admits Countrywide holds in her
reconsideration papers).50

Because the MERS agreement allows either the holder or beneficial owner (who Plaintiff
now suggests is Fannie Mae or “possibly” others) or the servicer (which Plaintiff agrees is a position
that Countrywide also occupies) to determine whether to file foreclosure, the fact Plaintiff did not
earlier remember Fannie Mae’s involvement does not change the outcome of this dispute, nor
provide a basis for reopening discovery.

Admittedly, the Court did previously hold that MERS holds the mortgage as an agent for
Countrywide, who in turn was authorized to enforce the note secured by the mortgage. Based on the
information Plaintiff belatedly points to, as contained in the 2007 Deloneyaffidavit which was a part
of the voluminous record before this Court, the Court does revise its finding that MERS holds the
mortgage as agent for Countrywide. Instead, based on information Plaintiff has now provided, as

50See n.29, supra.


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corroborated by the reply of MERS, MERS holds the mortgage as an agent, but pursuant to the
contract, can take instructions from either the note holder or the servicer—and Countrywide is both.
Accordingly, Countrywide can direct MERS to assign the note to it, which will enable Countrywide
to enforce the mortgage. These rights provide sufficient bases for this Court to grant relief from stay
to Countrywide to allow it to pursue foreclosure in state court, just as it held in its original decision.51

Plaintiff has failed to establish that the Court erred in holding that the Kansas
Court of Appeals’ decision in Mortgage Electronic Registration Systems, Inc. v.
Graham,52 was not res judicata on the issue of whether MERS was an agent of
Countrywide at all times relevant to this case.
The second issue raised by Plaintiff in her motion for reconsideration is that the Court erred
in holding that the Graham decision was not res judicata as to the issue of whether MERS was an
agent of Countrywide. In Graham, the Kansas Court of Appeals dismissed the appeal from the state
court foreclosure judgment on the basis that there was insufficient evidence in the record to establish
that MERS was acting as an agent for Countrywide, and because there was no evidence that MERS
had suffered an injury caused by Plaintiff failing to pay the note. This Court held, in its prior
decision, that Countrywide and MERS did not have a full and fair opportunity to litigate the standing
issue under the unique procedural setting of that case. The Court recognized that the issue
concerning whether MERS was an agent of Countrywide was addressed at the trial court level, but
that issue was never contested, as even Plaintiff insisted that MERS was an agent of Countrywide.

51Matter of Vitreous Steel Products Co., 911 F.2d 1223, 1234 (7th Cir. 1990) (holding that questions of the
validity of liens are not generally at issue in a 11 U.S.C. § 362 relief from stay hearings, but only whether there is a
colorable claim of a lien on property of the estate) (citing Matter of Quality Elec. Ctrs., 57 B.R. 288 (Bankr. N.M.

5244 Kan. App. 2d 547.


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It was not until the Kansas Court of Appeals raised the issue, post-Landmark National Bank v.
Kesler,53 that Plaintiff raised the agency issue.

Whether Graham intended to wait until the appellate level to raise this, or not, the point is
MERS had no reason or incentive to present exhaustive evidence about its agency relationship,
because Martinez needed that fact to be true (and admitted it was true) to win on her claim against
Countrywide for misrepresentation. If a defendant admits, for example, that she signed a promissory
note, is the creditor then required to put a witness on the stand who saw her sign the promissory note
to prove that she signed the promissory note? Of course not, and no litigant would do so, and no
busy trial court would be happy to endure testimony about a stipulated fact.

Had Martinez disputed the agency relationship, and MERS thus needed to prove it and did
not, then it would have had a fair opportunity to litigate. But when Martinez admitted, if not
insisted, the agency relationship, and MERS knew it had met its burden on this issue, it is simply not
fair to MERS to hold that it failed to prove with additional or better evidence what was already an
undisputed fact.

Plaintiff’s motion for reconsideration essentially rehashes the same arguments she previously
made, and which this Court thoroughly considered, but rejected. The Court finds that Plaintiff has
not raised any additional facts or arguments that would cause the Court to decide this issue
differently today. The Court again finds that the Graham decision does not prohibit this Court from
finding that MERS has now presented sufficient evidence that it was acting as an agent in holding
the mortgage in this case. Therefore, the Court denies the motion for reconsideration on this basis,
as well.

53289 Kan. 528 (2009).


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For the reasons set forth above, the Court generally denies the Plaintiff’s Motion to
Reconsider or to Alter or Amend Judgment. 54 In its prior decision, the Court did not need to, and
thus admittedly did not, drill down to the fact that Countrywide is the holder of the note and the
servicer under the parties’ agreements, rather than the beneficial owner, because it was not raised
by any party as a material fact in dispute. Instead, the Court admittedly followed the path laid by
Plaintiff, then extended by Defendants, suggesting Countrywide remained both the owner and holder
of the note.

The Court agrees that especially Countrywide, but to a lesser extent, MERS, allowed the
Court to believe that Countrywide still owned the note. The Court does not decide whether they
intended to mislead the Court, or were merely capitalizing on a situation where opposing counsel
either did not appreciate certain potential issues, or elected not to raise them. The bottom line is that
although the Court misunderstood Countrywide’s ownership status, now that it is fully informed, the
basic decision must stand for the reasons set forth above.

At some point, litigation must come to an end. 55 That is why courts set discovery deadlines,
require final pretrial orders that govern the remaining course of the proceeding, and issue decisions.
Plaintiff’s Motion to Reconsider basically asks this Court to allow a “do-over,” because the theories
she elected to pursue lost, and she wants a second bite at the apple so she can try theories she either

54The decision never states that Countrywide is the beneficial owner of the note, but the Court did assume that
was the case. The parties essentially stipulate now that it is not, but that it is instead merely the holder of the note and
also acts as the servicer. The Court thus revises its opinion to clarify, to the extent it needs to be clarified, that
Countrywide is not the beneficial owner of the note in question, but is merely the holder of the original note and the
servicer. In addition, the Court revises its finding that MERS holds the mortgage as agent for Countrywide. Instead,
based on information Plaintiff has now provided, as corroborated by the reply of MERS, MERS holds the mortgage as
an agent, but pursuant to the MERS contract with its members, can take instructions from either the note holder or the
servicer—and Countrywide (as a MERS member, which Plaintiff, again, admitted) is both.

55 Cf., Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275 (10th Cir. 2010).


Case 10-07027 Doc# 94 Filed 04/20/11 Page 18 of 19

knew about and elected not to pursue, or simply did not know to pursue. This the Court cannot
IT IS, THEREFORE, BY THE COURT ORDERED that Plaintiff’s Motion to Reconsider
or to Alter or Amend Judgment56 is generally denied, except as noted in footnote 51.


Doc. 67.


Case 10-07027 Doc# 94 Filed 04/20/11 Page 19 of 19


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