Comes now debtor Lisa Brumfiels opposition to the movants motion to lift the automatic stay on the grounds

that the movant (U. S. Bank) has no standing in this case. This issues brought forth by the debtors objections to the movants motion to lift the Automatic Stay focuses on the right of MERS to assign the property to U.S. Bank, but also on whether any rights of MERS to act as an agent of First Franklin ended upon the demise of First Franklin as a corporate entity. STATEMENT OF FACTS Lisa Kay Brumfiel signed a promissory note and Deed of Trust dated on 11/14/2006, and recorded November 26th, 2006 at Reception No. B6166228 in the records of the County of Arapahoe, Colorado with First Franklin a division of National City Bank. The Trust Deed states in part that "MERS" is Mortgage Electronic Registration Systems, Inc. Mers is a separate corporation that is acting solely as a nominee for Lender, and Lender"s successors and assigns, MERS is the beneficiary under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, tel. (888) 679-MERS. Merrill Lynch purchased First Franklin in 09/2006. On March 5th, 2008 Andrew Pollack CEO of First Franklin, notified the employees by email that the company would be closing operations, and by 2009 First Franklin was closed when Bank of America acquired Merrill Lynch. On 10/01/2010 BAC Home Loans Servicing, LP, a Bank of America company took over servicing of the loan and on 07/1/ 2011 Bank of America, N.A. proclaimed the rights to service this loan. Sometime in 2011 MERS acting as agent for First Franklin assigned the mortgage and note to U.S. Bank.

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On 08/03/2011 Castle Stawiarski, LLC. began foreclosure proceedings by sending a Fair Debt Collection notice to Lisa Brumfiel prompted by the default in mortgage payments. NED papers were filed on 09/09/2011. On 10/28/2011 Lisa Brumfiel received notice of a Rule 120 hearing set for 10/21/2011. On 10/15/2011 Lisa Brumfiel filed an answer to the Rule 120 hearing. The Rule 120 hearing was reset for January 3rd, 2011. Lisa Brumfiel filed for Bankruptcy prior to the January 3rd Rule 120 hearing, so no order for sale has yet been rendered. The chain of title follows this timeline: This mortgage was created in November of 2006 with First Franklin, with MERS as nominee. In December 2006, First Franklin was sold to Merrill Lynch through mortgage loan asset-backed certificates, series 2007-FFI. Merril Lynch than sold its interests to Lasalle Bank, N.A., who sold their interest to Bank of America in April of 2007. Finally Bank of America sold their interest to U.S. Bank, N.A., who is attempting to foreclose on Lisa Brumfiel through the Attorney firm Castle Stawiarski, LLC. LAW AND ARGUMENT On February 10 , 2011, the Honorable Robert E. Grossman , bankruptcy Judge in New York, issued the following 37 page opinion in In Re FERREL L. AGARD case number 810-77338, which involved First Franklin, MERS and U.S. Bank, a lender assigned all rights to the note and mortgage, and who had foreclosed in state court on the debtor who soon after filed for bankruptcy protection under chapter 7. U.S. Bank moved to lift the Automatic Stay and the debtor filed an objection claiming that U.S. Bank had no standing because MERS (the movant for U.S. Bank) did not have the authority to assign the mortgage and note from First Financial to U.S. Bank. At p. 2 of the opinion the court said:
th

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The Debtor argues that the only interest U.S. Bank holds in the underlying mortgage was received by way of an assignment from the Mortgage Electronic Registration System a/k/a MERS, as a nominee for the original lender. The Debtors argument raises a fundamental question as to whether MERS had the legal authority to assign a valid and enforceable interest in the subject mortgage. Because U.S. Banks rights can be no greater than the rights as transferred by its assignor MERS the Debtor argues that the Movant, acting on behalf of U.S. Bank, has failed to establish that it holds an enforceable right against the Property.1 The Movants initial response to the Debtors opposition was that MERSs authority to assign the mortgage to U.S. Bank is derived from the mortgage itself which allegedly grants to MERS its status as both nominee of the mortgagee and mortgagee of record. The Movant later supplemented its papers taking the position that U.S. Bank is a creditor with standing to seek relief from stay by virtue of a judgment of foreclosure and sale entered in its favor by the state court prior to the filing of the bankruptcy. The Movant argues that the judgment of foreclosure is a final adjudication as to U.S. Banks status as a secured creditor and therefore the Rooker-Feldman doctrine prohibits this Court from looking behind the judgment and questioning whether U.S. Bank has proper standing before this Court by virtue of a valid assignment of the mortgage from MERS. At p. 3 the court said: For the reasons that follow, the Debtors objection to the Motion is overruled and the Motion is granted. The Debtors objection is overruled by application of either the Rooker-Feldman doctrine, or res judicata. Under those doctrines, this Court must accept the state court judgment of foreclosure as evidence of U.S. Banks status as a creditor secured by the Property. Such status is sufficient to establish the Movants standing to seek relief from the automatic stay. The Motion is granted on the merits because the Movant has shown, and the Debtor has not disputed, sufficient basis to lift the stay under Section 362(d). Although the Court is constrained in this case to give full force and effect to the state court judgment of foreclosure, there are numerous other cases before this Court which present identical issues with respect to MERS and in which there have been no prior dispositive state court decisions. This Court has deferred rulings on dozens of other motions for relief from stay pending the resolution of the issue of whether an entity which acquires its interests in a mortgage by
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way of assignment from MERS, as nominee, is a valid secured creditor with standing to seek relief from the automatic stay. It is for this reason that the Courts decision in this matter will address the issue of whether the Movant has established standing in this case notwithstanding the existence of the foreclosure judgment. At p. 4 of the opinion the court said that The Court recognizes that an adverse ruling regarding MERSs authority to assign Mortgages or act on behalf of its member/lenders could have a significant impact on MERS and upon the lenders which do business with MERS throughout the United States, The issues raised in that case are identical to the issues raised in this case which include the same parties---First Franklin, MERS, and U.S. Bank, with three exceptions, there is no intervening state foreclosure judgment for which this court is required to honor under the ROOKER-FELDMAN DOCTRINE or the doctrine of RES JUDICATA , the debtors are different and the debtor brings forth the issue of when the agency relationship ends upon the corporate demise of the principal. Nor would these doctrines have any force and effect from a Rule 120 hearing (a non-judicial foreclosure) which has no preclusive effect and is not a final judgment. This court is asked to consider the opinion of Judge Grossman, who in a well reasoned opinion, and in spite of MERS submission of the documents regarding the membership agreements and the mortgage documents in that case with language identical in this case, concluding that absent a specific power of attorney from the original lender (First Franklin) MERS, as a nominee had no right to assign the mortgage nor the note to U.S. Bank. As Judge Grossman at p. 18 stated : Because of the broad applicability of the issues raised in this case the Court believes that it is appropriate to set forth its analysis on the issue of whether the Movant, absent the Judgment of Foreclosure, would have standing to bring the instant motion. Specifically MERSs role in the ownership and transfer of real property notes and mortgages is at issue in dozens of cases
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before this Court. As a result, the Court has deferred ruling on motions for relief from stay where the movants standing may be affected by MERSs participation in the transfer of the real property notes and mortgages. In the instant case, the issues were resolved under the Rooker-Feldman doctrine and the application of res judicata. Most, if not all, of the remainder of the MERS cases before the Court cannot be resolved on the same basis. For that reason, and because MERS has intervened in this proceeding arguing that the validity of MERS assignments directly affects its business model and will have a significant impact on the national mortgage industry, this Court will give a reasoned opinion as to the Movants standing to seek relief from the stay and how that standing is affected by the fact that U.S. Bank acquired its rights in the Mortgage by way of assignment from MERS At p. 26-31 the court said in its analysis: The Mortgage First Franklin is the Lender named in the Mortgage. With reference to MERSs role in the transaction, the Mortgage states: MERS is a separate corporation that is acting solely as a nominee for Lender and Lenders successors and assigns. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679 MERS. FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD. (Mortgage at 1 (emphasis added by the Court)). The Mortgage also purports to contain a transfer to MERS of the Borrowers (i.e., the Page 27 of 37 Debtors) rights in the subject Property as follows: BORROWERS TRANSFER TO LENDER OF RIGHTS IN THE PROPERTY [The Borrower] mortgage[s], grant[s] and convey[s] the Property to MERS (solely as nominee for Lender and Lenders successors in interest) and its successors in interest subject to the terms of this Security Instrument. This means that, by signing this Security Instrument, [the Borrower is] giving Lender those rights that are stated in this Security Instrument and also those rights that Applicable Law gives to lenders who hold mortgage on real
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property. [The Borrower is] giving Lender these rights to protect Lender from possible losses that might result if [the Borrower] fail[s] to [comply with certain obligations under the Security Instrument and accompanying Note.] [The Borrower] understand[s] and agree[s] that MERS holds only legal title to the rights granted by [the Borrower] in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lenderss successors and assigns) has the right: (A) to exercise any or all those rights, including, but not limited to, the right to foreclose and sell the Property; and (B)to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.[The Borrower gives] MERS (solely as nominee for Lender and Lenders successors in interest), rights in the Property . . .(Mortgage at 3) (emphasis added). The Assignment of Mortgage references the Mortgage and defines the Assignor as Mers Mortgage Electronic Registration Systems, Inc., 2150 North First Street, San Jose, California 95131, as nominee for First Franklin, a division of National City Bank of IN, 2150 North First Street San Jose, California 95153. (Emphasis added by the Court). The Assignee is U.S. Bank. Premised on the foregoing documentation, MERS argues that it had full authority to validly execute the Assignment of Mortgage to U.S. Bank on February 1, 2008, and that as of the date the foreclosure proceeding was commenced U.S. Bank held both the Note and the Mortgage. However, without more, this Court finds that MERSs nominee status and the rights bestowed upon MERS within the Mortgage itself, are insufficient to empower MERS to effectuate a valid assignment of mortgage. There are several published New York state trial level decisions holding that the status of nominee or mortgagee of record bestowed upon MERS in the mortgage documents, by itself, does not empower MERS to effectuate an assignment of the mortgage. These cases hold that MERS may not validly assign a mortgage based on its nominee status, absent some evidence of specific authority to assign the mortgage. See Bank of New York v. Mulligan, No. 29399/07, 2010 WL 3339452, at *7 (N.Y. Sup. Ct. Aug. 25, 2010); One West Bank, F.S.B. v. Drayton, 910 N.Y.S.2d 857, 871 (N.Y. Sup. Ct. 2010); Bank of New York v. Alderazi, 900 N.Y.S.2d 821, 824 (N.Y. Sup. Ct. 2010) (the party who claims to be the agent of another bears the burden of proving the agency relationship by a preponderance of the evidence); HSBC Bank USA v. Yeasmin, No. 34142/07, 2010 WL 2089273, at *3 (N.Y. Sup. Ct. May 24, 2010); HSBC Bank USA v. Vasquez, No. 37410/07, 2009 WL 2581672, at *3 (N.Y. Sup. Ct. Aug. 21,
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2010); LaSalle Bank N.A. v. Lamy, 824 N.Y.S.2d 769, 2006 WL 2251721, at *2 (N.Y. Sup. Ct. Aug. 7, 2006) (A nominee of the owner of a note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.). See also MERS v. Saunders, 2 A.3d 289, 295 (Me. 2010) (MERSs only right is to record the mortgage. Its designation as the mortgagee of record in the document does not change or expand that right...). But see US Bank, N.A. v. Flynn, 897 N.Y.S.2d 855 (N.Y. Sup. Ct. 2010) (finding that MERSs nominee status and the mortgage documents give MERS authority to assign); Crum v. LaSalle Bank, N.A., No. 2080110, 2009 WL 2986655, at *3 (Ala. Civ. App., Sept. 18, 2009) (finding MERS validly assigned its and the lenders rights to Page 29 of 37 assignee); Blau v. Americas Servicing Company, et al., No. CV-08-773-PHX-MHM, 2009 WL 3174823, at *8 (D. Ariz. Sept. 29, 2009) (finding that assignee of MERS had standing to foreclose). In LaSalle Bank, N.A. v. Bouloute, No. 41583/07, 2010 WL 3359552, at *2 (N.Y. Sup. Aug. 26, 2010), the court analyzed the relationship between MERS and the original lender and concluded that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves. The court stated: MERS . . . recorded the subject mortgage as nominee for FFFC. The word nominee is defined as [a] person designated to act in place of another, usu. in a very limited way or [a] party who holds bare legal title for the benefit of others. (Black's Law Dictionary 1076 [8th ed 2004] ). This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves. (Landmark National Bank v. Kesler, 289 Kan 528, 538 [2009] ). The Supreme Court of Kansas, in Landmark National Bank, 289 Kan at 539, observed that: The legal status of a nominee, then, depends on the context of the relationship of the nominee to its principal. Various courts have interpreted the relationship of MERS and the lender as an agency relationship. See In re Sheridan, 2009 WL631355, at *4 (Bankr. D. Idaho, March 12, 2009) (MERS acts not on its own account. Its capacity is representative.); Mortgage Elec. Registrations Systems, Inc. v. Southwest, 2009 Ark. 152 ---, 301 SW3d 1, 2009 WL 723182 (March 19, 2009) (MERS, by the terms of the deed of trust, and its own stated purposes, was the lender's agent); La Salle Nat. Bank v. Lamy, 12 Misc.3d 1191[A], at *2 [Sup Ct, Suffolk
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County 2006] ) ... (A nominee of the owner of a note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.). LaSalle Bank, N.A. v. Bouloute, No. 41583/07, 2010 WL 3359552, at *2; see also Bank of NewYork v. Alderazi, 900 N.Y.S.2d 821, 823 (N.Y. Sup. Ct. 2010) (nominee is [a] person designated to act in place of another, usually in a very limited way.) (quoting Blacks Law Dictionary)). In LaSalle Bank, N.A. v. Bouloute the court concluded that MERS must have some evidence of authority to assign the mortgage in order for an assignment of a mortgage by MERS to be effective. Evidence of MERSs authority to assign could be by way of a power of attorney or some other document executed by the original lender. See Bouloute, 2010 WL 3359552, at *1; Alderazi, 900 N.Y.S.2d at 823 (To have a proper assignment of a mortgage by an authorized agent, a power of attorney is necessary to demonstrate how the agent is vested with the authority to assign the mortgage.) (quoting HSBC Bank USA, NA v. Yeasmin, 866 N.Y.S.2d 92 (N.Y. Sup. Ct. 2008)). Other than naming MERS as nominee, the Mortgage also provides that the Borrower transfers legal title to the subject property to MERS, as the Lenders nominee, and acknowledges MERSs rights to exercise certain of the Lenders rights under state law. This too, is insufficient to bestow any authority upon MERS to assign the mortgage. In Bank of New York v. Alderazi, the court found [t]he fact that the borrower acknowledged and consented to MERS acting as nominee of the lender has no bearing on what specific powers and authority the lender granted MERS. Alderazi, 900 N.Y.S.2d at 824. Even if it did bestow some authority upon MERS, the court in Alderazi found that the mortgage did not convey the specific right to assign the mortgage. The Court agrees with the reasoning and the analysis in Bouloute and Alderazi, and the other cases cited herein and finds that the Mortgage, by naming MERS a nominee, and/or mortgagee of record did not bestow authority upon MERS to assign the Mortgage. The court further found that The Movants failure to show that U.S. Bank holds the Note should be fatal to the Movants standing. However, even if the Movant could show that U.S. Bank is the holder of the Note, it still would have to establish that it holds the Mortgage in order to prove that it is a secured creditor with standing to bring this Motion before this Court. The Movant urges the Court to adhere to the adage that a mortgage necessarily follows the
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same path as the note for which it stands as collateral. See Wells Fargo Bank, N.A. v. Perry, 875 N.Y.S.2d 853, 856 (N.Y. Sup. Ct. 2009). In simple terms the Movant relies on the argument that a note and mortgage are inseparable. See Carpenter v. Longan, 83 U.S. 271, 274 (1872). AGENCY RELATIONSHIP ENDS BY THE DEATH OF THE PRINCIPAL In PRIME PROPERTIES, INC. v. ESTATE OF RAYMOND H. CURRY, DOCKET NO. A-2221-07T22221-07T2 the New Jersey appellate court said:
"It is an established rule of the common law that the death of the principal

puts an end to the agency when the authority is not coupled with an interest, and no act of agency subsequent thereto is binding on the estate of the principal." Durbrow v. Eppens, 65 N.J.L. 10, 16 (Sup. Ct. 1900). In order for the agency to survive, the coupled interest on the part of the agent must be directly in the subject matter of the agency, and not just an interest in the proceeds which would have arisen if the agency power had been exercised. Sarokhan v. Fair Lawn Mem'l Hosp., Inc., 83 N.J. Super. 127, 136 (App. Div.), certif. denied, 42 N.J. 501 (1964); Smith v. Cynfax Corp., 261 N.J. Super. 378, 383-84 (Law Div. 1992). In In Re Ferrel L. Agard the court said at p. 28: There are several published New York state trial level decisions holding that the status of nominee or mortgagee of record bestowed upon MERS in the mortgage documents, by itself, does not empower MERS to effectuate an assignment of the mortgage. These cases hold that MERS may not validly assign a mortgage based on its nominee status, absent some evidence of specific authority to assign the mortgage. (the party who claims to be the agent of another bears the burden of proving the agency relationship by a preponderance of the evidence); HSBC Bank USA v. Yeasmin, No. 34142/07, 2010 WL 2089273, at *3 (N.Y. Sup. Ct. May 24, 2010); (A nominee of the owner of a note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.). See also MERS v. Saunders, 2 A.3d 289, 295 (Me. 2010) (MERSs only right is to record the mortgage. Its designation as the mortgagee of record in the document does not change or expand that right...)
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In Restatement of the Law Agency Restatement (Third) of Agency Chapter 3. 3.06 Termination Of Actual Authority--In General An agent's actual authority may be terminated by: (2) the principal's death, cessation of existence, or suspension of powers as stated in 3.07(2) and (4); or (3) the principal's loss of capacity, as stated in 3.08(1) Topic 4. Termination Of Agent's Power Title A. Termination Of Actual Authority 3.07 Death, Cessation Of Existence, And Suspension Of Powers (1) The death of an individual agent terminates the agent's actual authority. (2) The death of an individual principal terminates the agent's actual authority. The termination is effective only when the agent has notice of the principal's death. The termination is also effective as against a third party with whom the agent deals when the third party has notice of the principal's death. (3) When an agent that is not an individual ceases to exist or commences a process that will lead to cessation of existence or when its powers are suspended, the agent's actual authority terminates except as provided by law. (4) When a principal that is not an individual ceases to exist or commences a process that will lead to cessation of its existence or when its powers are suspended, the agent's actual authority terminates except as provided by law. 3.08 Loss Of Capacity (1) An individual principal's loss of capacity to do an act terminates the agent's actual authority to do the act. The termination is effective only when the agent has notice that the principal's loss of capacity is permanent or that the principal has been adjudicated to lack capacity. (3) If a principal that is not an individual loses capacity to do an act, its agent's actual authority to do the act is terminated. The concept expressed in the above Restatement on Agency is codified in the Bankruptcy Code. Chapter 13. Revocation By Operation Of Law Sec. 99. By Death Of Principal states:
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The death of the principal terminates the agency, except when the agency is coupled with an interest. This is true though the death is unknown when the contract was attempted to be made. Agency, as we have seen, is a personal relation and is entered into subject to the continued existence of the principal and agent. If the principal dies, the agency is thereby terminated. The estate or the heirs cannot claim a continuance of the agent's services. If, however, the agency is coupled with an interest, as we have seen, it is irrevocable. There death of the principal does not terminate it for the same reasons that protect the agent in an attempted revocation by the principal. [B,U ] On March 05, 2008, Andrew Pollock sent the following email copy attached: From: Pollock, Andrew (First Franklin) To: +GMI (FF-First Franklin) Sent: Wed Mar 05 13:33:51 2008 Subject: A Message to First Franklin Employees A message from Andrew Pollock, President & CEO of First Franklin As announced earlier today, the executive management of Merrill Lynch, First Franklin and NationPoint have decided to close all wholesale and retail loan origination operations. From: Pollock, Andrew (First Franklin) To: +GMI (FF-First Franklin) Sent: Wed Mar 05 13:33:51 2008 Subject: A Message to First Franklin Employees A message from Andrew Pollock, President & CEO of First Franklin As announced earlier today, the executive management of Merrill Lynch, First Franklin and NationPoint have decided to close all wholesale and retail loan origination operations. This decision was reached after the consideration of many options and strategies for our company.

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Unfortunately, today's industry conditions and the lack of investor interest in purchasing the mortgages we have traditionally originated left us with no other choice. The decision means that most First Franklin employees will lose their jobs undoubtedly the most difficult professional decision that I have ever made. The First Franklin organization has a deep 27-year history that did not happen by chance and was built through the dedication and commitment of thousands of loyal employees. As members of First Franklin, we have been through many critical business crossroads, but at the end we have always remained resilient. I wish to express nothing but the utmost sense of pride and gratitude for what you have done in the face of an extremely challenged mortgage marketplace. Some employees working on issues related to prior mortgage originations specifically risk management, legal and loss mitigation will continue in their jobs and do the work necessary related to those issues. These past ten months have been full of uncertainty and challenges. I wish we could have done more to make this time less stressful for everyone. Unfortunately, the answers we hoped for and expectations for a market recovery didn't materialize. I have always considered each and every First Franklin employee to be uniquely resourceful. I have every confidence that whether you are part of the team that will remain or one of those who will leave that you will embrace and thrive at your next opportunity. I thank you for your tireless efforts. I wish you the very best in the years to come. Yours sincerely, Andy CONCLUSION The conclusion in In Re FERREL L. AGARD by Judge Grossman are sufficiently persuasive that this court should consider and deny the movant from lifting the automatic stay. Absent a showing of a specific authorization by First Franklin to MERS of a right to assign and/or the recipient lender a showing of the original note with an endorsement by the original lender, First Franklin, the
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movant should not be allowed to lift the automatic stay without a showing of standing. Even if U.S. Bank as the Movant could show that it is the holder of the Note, it should still have to establish that it holds the Mortgage as well in order to prove that it is a secured creditor with standing to bring this Motion before this Court. Moreover, U.S. Bank must show that MERS had a power of attorney from First Franklin authorizing MERS to assign the property and that said authorization and assignment of the property was executed prior to the demise of First Franklin, otherwise, U.S. Bank has no standing to lift the Automatic Stay Order. It is well established under the common law, and codified in the bankruptcy Code, that the agency relationship between the Principal and agent ends upon the death of the Principal as the agency between First Franklin and MERS collapsed upon the demise of First Franklin as a corporate entity in 2008 leaving MERS without the power to act and no power to assign the property to U.S. Bank. Respectfully submitted, ______________ LISA BRUMFIEL

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