This ledger was uncovered by a homeowner in DC while she did a discovery on Ocwen in her Deutsche Bank foreclosure.
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In re: Chapter 7 case
ANITA HEATHER KERNACS Case No. 09-00783
Debtor Hon. S. Martin Teel Jr.
United States Bankruptcy Judge
- OCWEN LOAN SERVICING LLC.
- DEUTSCHE BANK NATIONAL TRUST;
- MORGAN STANLEY ABS CAPITAL 1 Inc.
Trust 2007-NC2 Mortgage Pass-through
Certificates, Series 2007-NC2.
DEBTOR`S OPPOSITION TO RESPONDENT`S OPPOSITION TO REOPEN AND MOTION FOR FINDING OF CONTEMPT AND IMPOSITION OF SANCTIONS
Comes now Anita Kernacs, Debtor, Pro Se, hereby submits this Memorandum in Opposition to Respondents Motion in Opposition to Debtor Motion to reopen and Motion for finding of Contempt and Imposition of Sanctions, filed May 8, 2017.
The Respondent alleged and filed a Judicial Foreclosure stating that Debtor is in default on a Promissory Note, dated October 25, 2006, in the amount of $369,000 (the “Note”) and secured by a Deed of Trust on the Collateral and filed an in personam Judicial Foreclosure and the Judicial Foreclosure caused the previously discharged Debt to be re-adjudicated in the amount of $369,000.00.
The following facts are undisputed;
a). that the lien-holder has In Rem rights.
b). that the Mortgage-Debt in the amount of $369,000.00 is discharged.
The Debtor alleges that the Respondents needed to facilitate the Judicial Foreclosure, and created and Perfected a Title and to garner Standing, then the Respondents Recorded the following documents, about (5)five years post Discharge;
1). Document No 2015010557 Deutsche Bank Trust Assignment 02/04/15 book 1730 page 0015,
2). Document No 2015023044 Appointment Substitution Trustee 03/13/2015 book 1730 page 0015 and
3). Document No 2016089609 Lis Pendens 09/01/2016 book 1730 page 2019
Categorically, the Debtor contends that the Recordings violated the Discharge order according to 11 U.S.C code 362 et seq, because the Recordings were more than five years too late.
The respondents did not file an In Rem action, naming a property description and noticing all interested parties to claim, instead the Respondent filed an in personam Judicial Foreclosure, causing service of process on Anita H Kernacs the Debtor, the in personam Judicial Foreclosure eventually caused a re-adjudication of previously discharged Debt.
The Respondents Complaint for Judicial foreclosure did not contain the word In Rem in all of its body, and on line 5 of the Respondents Judicial Foreclosure Complaint; “Upon information and belief the Court has Personal Jurisdiction over Anita H Kernacs.” the Respondents brought the wrong case. The Debtor first cited the Jurisdictional issue in a Motion to Dismiss, but Respondents convincingly stated that the underlying Debt was not discharged, the Motion was denied.
In an In Rem action there is no need to sell the property to satisfy a Judicial Foreclosure action pursuant to D.C. Code § 42-815.01., Right to cure residential mortgage foreclosure default. If Deutsche Bank had brought an In Rem action, there would be no defendant, no Default, no Default amounts, no Note or Deed of Trust. Likewise in an in Rem action, there is no need for the Recording of Instruments like the Substitution of Trustee, Corporate assignments of Deeds of Trust to demonstrate Standing.
The Respondents represented to the civil court, in many instances that the Debt was not discharged, many times until the Honourable Judge Brian F. Holeman repeated, in his Order of April 12, 2017, that “It is further undisputed that the Loan was not discharged by the 2009 bankruptcy proceedings” the Judges` statement mirrors that of the Respondents during the pendency of the civil case.
The Respondents now come to the bankruptcy court admitting that the Debt is discharged and seeking to uphold its “In rem rights via Judicial Foreclosure” having filed an in Personam lawsuit and obtained a money Judgement of $369,000.00 concerning a Debt previously discharged by this Court.
For the Above reasons the Debtors` Motion to re-open should not be denied.
Judicial Foreclosure action pursuant to D.C. Code § 42-815.01
Right to cure residential mortgage foreclosure default.
The Respondents, Deutsche Bank initiated a Judicial Foreclosure on November 2, 2015, in the D.C. Superior Court. See Deutsche Bank National Trust Company, as Trustee v. Kernacs, Case No. 2015 CA 008446 R(RP) (D.C. Sup. Ct.) (“Foreclosure Action”). § 42–815.01.
At the very bottom of the first page and on each page of the whole complaint the words “This is an attempt to collect a debt and any information obtained may be used for that purpose” are printed on the bottom, below a line.
The Case is styled to name a Defendant, Anita Kernacs, the Debtor whose name is on the Note and on the Deed of trust.
The Case recited a Payment Default in the amount of $369,000.00, alien and the Respondents represented that they are the beneficiary of an Original Note allegedly signed by the Debtor.
The Respondents received the relief sought in their Judicial Foreclosure Case;
“WHEREFORE, Plaintiffs prays this Honorable Court to grant the following relief;
a) That this court find that the Borrower(s) is/are in Default of the Deed of Trust and/or Note as applicable;
b) That the Court enumerates all amounts due to Plaintiffs pursuant to said Note and Deed of Trust.”
“RESPONDENT STATED AN ERROR IN “RELEVANT BACKGROUND”
Doc 98 page 3
The Respondent stated an important “error” in their Motion at doc 98 page 3 in the second paragraph; “On November 2, 2015, Deutsche Bank initiated a judicial foreclosure action pursuant to D.C. Code § 42-816 in the D.C. Superior Court. See Deutsche Bank National Trust Company, as Trustee v. Kernacs, Case No. 2015 CA 008446 R(RP) (D.C. Sup. Ct.) (“Foreclosure Action”).”
What is correct is that the Respondents filed the action under D.C. Code § 42-815.01 and not D.C. Code § 42-816 there are important differences in the “error”. D.C. Code § 42-815.01 allows the debtor to cure and is a traditional Judicial foreclosure involving a default, a Note and Deed of Trust, adversely D.C. Code § 42-816; Sale of property — Deficiency judgement; limitations thereon; relief in the suit to enforce vendor’s lien. The Respondents error suited it better, but the Fact is that Deutsch Bank filed a Judicial Foreclosure under § 42–815.01 in the D.C Superior Court.
The Respondent has a history of causing logistical errors twisting important facts, acting in bad faith, and being oppressive, the case in point was the manner in which the Respondents controlled the narrative, in the Civil Case, that the loan was not discharged “It is further undisputed that the Loan was not discharged by the 2009 bankruptcy proceedings” similarly writing 816 instead of 815.01 the Respondents intended the actions that violated the discharge injunction.
PERFECTING A TITLE
The primary reasons that the Debtor is asking the Court to Reopen and impose Sanctions is because Deutsche Bank Recorded Instruments to Perfect a lien holder’s In Rem rights, Tardy, more than five years, after the Discharge, the Debtor reads the discharge rules and believes that a lien holder has a time limit to perfect its lien, then Deutsche Bank obtained a money Judgement on a previously discharged debt utilising the very documents, Recorded tardy.
To be clear, the Debtor is not addressing the In Rem rights of a lienholder, but the Debtor is contesting the late Recordings of a lien holder, the late recordings violate 11 U.S. Code § 362 – et.sq.
The Debtor is asking the Honourable Court to re-open this case because, a) the Respondents filed certain papers in the Public Record five years after the Discharge Injunction, b) the Respondents attempted to collect a debt subject to a discharge and c) the Respondents used collection measures which the Debtor alleges are prohibited under the discharge injunction and d) Deutsche Bank, the Respondents obtained a Money Judgement on a Debt previously discharged by this Court.
The Instruments the Respondents Recorded were all Recorded about five years after the injunction, all of the instruments were Recorded to perfect a lien, all of the instruments were Recorded to create a lien and to confer Standing which the Lien Holder did not perfect.
The Instruments recorded acts to perfect a title, create a title and to confer standing concerning alien underlined by a Debt of $369,000.00 which is subject to Section 524(a)(2) of the Bankruptcy Code, (a) A discharge in a case under this title— (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the Debtor, whether or not discharge of such debt is waived.
The Honorable Judge Brian F Holeman said it best in his ruling, see Respondents` Exhibit A on page 1 Procedural History;
“On November 2, 2015, Plaintiff filed the Complaint for Judicial Foreclosure. Plaintiff seeks a judicial foreclosure of real property owned by Defendant and located at 4101 Albemarle Street, NW, #317, Washington, DC 20016 (the “Property”). (Compl. at ¶ 1.) Plaintiff alleges that Defendant is in default on a promissory note, dated October 25, 2006, in the amount of $369,000 (the “Note”) and secured by a Deed of Trust on the Property. (Id. at ¶¶ 7-25.) On December 3, 2015.” From this filing, the Respondents received a money judgement concerning Debt previously discharged.
Additionally, The respondents hired third party companies to enter upon the property to conduct regular door knocks, entered the Debtors home and attempted to enter upon the Debtors home, did skip trace on Debtors phone with visual surveillance, spoke to Debtors neighbours, acted to harass and intimidate wilfully in violation of the Discharge.
Whereas the Chapter 7 bankruptcy discharge extinguishes a lienholder’s in personam rights against a Debtor, the lienholder’s in rem right in the property serving as collateral for the lien will normally be unaffected despite the discharge, but in this case the Respondents began to Perfect the Title and Perfect the Lien, five years after the Discharge.
The record does not show that the debtor questions a lien-holders In Rem rights after the discharge, the Record shows the Debtor is alleging that the respondents are Perfecting a Title five years after the Discharge.
The Respondents stated in their Motion in opposition to reopening, Doc 98 page 7 that; “Coupled with its possession of the original blank-indorsed Note, Deutsche Bank was properly adjudged by the D.C. Superior Court to be entitled to enforce its secured in rem interest in the Property via judicial foreclosure.”
Here the Respondents admit that they presided over a Judicial Foreclosure which resulted in the re-adjudication of a pre-discharged Debt. The Respondent’s motions the Court to forget that the 11 U.S. Code § 362 et seq, furthermore the respondents motions the Court to allow it “to enforce its secured In Rem interest in the Property via judicial foreclosure”. The Debtor could not find a legal condition to fit the request, In Rem rights and Judicial Foreclosure are totally different to each other.
The Respondents Motion should be denied.
The Debtor is asking the Court to reopen the Case and to permit a Motion for finding of Contempt and Imposition of sanctions, based on the willingness of the Respondents to disregard Bankruptcy Laws, because knowingly going forward with collection activity, personally harassing/stalking Debtor, knowing or having reason to know that the debt is discharged, and getting re- adjudication of the underlying Debt is reason by itself, to reopen the case and award all just amounts. Additionally, the Respondents Perfected and Recorded In Rem rights five years after the Discharge.
Respectfully submitted under the penalty of perjury,
_________________ (Seal) ____________
Anita H Kernacs Date:
4101 Albemarle Street NW #317
Washington DC 20016
CERTIFICATE OF SERVICE
S.Mohsin Reza ESQ,
Troutman and Sanders LLP
Carlos Andres Uria, Esq.
Troutman Sanders LLP
Richard E. Hagerty
Troutman and Sanders LLP