No. 109100 ____________________________________ IN THE COURT OF APPEALS OF THE STATE OF KANSAS ____________________________________ Clarence (C.T.

) Hansen Defendant-Appellant

v.

MetLife Home Loans, A Division of MetLife Bank, N.A. Plaintiff-Appellees ____________________________________ BRIEF OF APPELLANT ____________________________________ APPEAL FROM THE DISTRICT COURT OF DOUGLAS COUNTY, KANSAS DISTRICT JUDGE ROBERT W. FAIRCHILD DISTRICT COURT CASE NO. 2010-CV-122 APPEAL THE CONFIRMATION OF SHERIFF SALE HELD APRIL 5, 2012

Clarence G. Hansen, Pro Se 33605 W. 88th Street De Soto, KS 66018 913-529-9837 No Oral Argument Requested 1

TABLE OF CONTENTS NATURE OF THE CASE ISSUES ON APPEAL STATEMENTS OF MATERIAL FACTS ARGUMENTS AND AUTHORITIES I. ERRORS MADE BY THE COURT A. Failure to Have Property Appraised Prior to Sheriff Sale ............................................................................ 3 3 4 5 5

FAILURE TO TIMELY CONFIRM THE SHERIFF SALE At the outset, Hansen acknowledges that K.S.A. 60-2415 gives the court discretion in determining whether to grant a resale, fix an upset price, or otherwise refuse to confirm the sale. See Federal Land Bank of Wichita v. Cummings, 12 Kan. App. 2d 134, 137, 735 P.2d 1110 (1987). Other more recent appellate caselaw, however, seems to guide the district court's discretion and to clarify the court's options. B. Failure to Hold a Hearing to Determine of Bid is Adequate 3

In Cimarron Feeders v. Bolle, 28 Kan. App. 2d 439, 451, 17 P.3d 957, rev. denied 271 Kan. 1035 (2001), this court indicated that before confirming a sale, the court must hold a hearing and determine, even without an objection, that the bid is adequate. And in the Olathe Bank case, this court held that the district court has three options in a confirmation proceeding: "(1) confirm the sale if the bid is substantially adequate; (2) order resale of the property if the bid is substantially inadequate; (3) give the creditor the option of either giving the debtor credit upon the judgment, interest, taxes, and costs for the value of the property; or reselling." Olathe Bank, 252 Kan. at 357 (citing with apparent approval Cummings, 12 Kan. App. 2d at 138). In Olathe Bank, our Supreme Court also implied that the district court must determine the fairness of the price paid at a foreclosure sale. The court stated: "The price paid for property at a foreclosure sale should reflect the intrinsic value of the property, taking into consideration all the circumstances affecting the underlying worth of the property at the time of the sale and should not be affected by the impact of the foreclosure proceedings on its value. Allowing a mortgagee bank to reduce the purchase price due to the inherent disabilities associated with a foreclosure sale allows the mortgagee the double recovery that K.S.A. 1991 Supp. 602415 was designed to prevent." 252 Kan. 351, Syl. 3. 2

C. MetLife Home Loans Incorrectly Alleges Hansen's Failure to Post a Supersedeas Bond Places Him in Error State v. Downey, 198 Kan. 564, 426 P.2d 55 (1967) Here, Citifinancial simply took no action to stay execution of the judgment, such as posting a supersedeas bond under K.S.A. 60-2103(d). Our appellate courts have held that the mere failure to stay execution of the judgment by filing a supersedeas bond does not constitute acquiescence. 60-2415(b) NATURE OF THE CASE This is an appeal of an Order of a Confirmation of Sheriff Sale signed by the Honorable Robert W. Fairchild, Division I, of the Douglas County District County Court in the State of Kansas. Appellant, Clarence (C.T.) Hansen, Pro Se, is appealing the procedural failures of the Douglas County District Court, in the handling of the Sale of his property from the time it was auctioned off on April 5, 2012, through the date the Order of the Confirmation of Sale of Sale was signed, November 14, 2012. Hansen does have unresolved issues from Appellate Case No. 106846 that will also be addressed to the Court in this Appellant Court Brief. Hansen respectfully requests the Court address these remaining issues, if it is still appropriate to do so.

ISSUES ON APPEAL I. Did the District Court err when it failed to grant the Appellant's request to have an Appraisal done on his piece of real property prior to the sale? II. Did the District Court err when it accepted non-creditor Fannie Mae's bid on the Hansen's property at the Sheriff Sale? III. Did the District Court err, when it signed the Court Order Confirming the Sheriff's Sale, when the Court was aware MetLife Home Loans processed its paperwork in an peculiar, particularly arranged, order that made it impossible for Hansen's to challenge the details of the Sheriff Sale? IV. Did the District Court err, when it signed the Court Order Confirming the Sheriff's Sale, when the Court was aware the Order stated important false facts? V. Did the District Court err by allowing the MetLife Home Loans wait until after September 28, 2012, to apply their judgment as their payment for their bid at the Sheriff Sale? VI. Did the District Court err by allowing MetLife Home Loans continue to exchange Motions on the Confirmation of Sheriff Sale with the Hansen's, denoted DIV II, Hon. Sally Pokorny, days after the Order Confirming the Sheriff Sale had already been signed?

STATEMENT OF MATERIAL FACTS Issue I: Did the District Court err when it failed to grant the Appellant's request to have an Appraisal done on his piece of real property prior to the sale? 1. The District Court signed a Confirmation of Sale without granting the Appellant's request to have an Appraisal done on the full 5 acres of his property, which featured upgrades to the land, and upgraded outbuildings and special improvements. 2. Hansen had clearly requested an appraisal in a hearing held February 15, 2012. The Douglas County District Court, in the transcript for the

hearing, stated why the hearing had been scheduled, page 2, line 11, We are here on remand from the Court of Appeals to determine what the what the bond would be in order to stay judgment, in essence. 3. On page 5, Line 3 of the transcript, Kelly Hansen is explaining why she filed a motion to stay the Sheriff Sale. We would very much like to have an appraisal done on the property. I think when we read the notice of Sheriff's sale, they said no appraisal...

Issue II: Did the District Court err when it accepted non-creditor Fannie Mae's bid on the Hansen's property at the Sheriff Sale?

4. Fannie Mae did not tender their bid in full on the same day of the auction, as is required by Kansas law of a non-creditor. Fannie Mae could not lawfully submit a credit bid in these proceedings. 5. The Kansas Appellate Court confirmed Fannie Mae's name did not appear on the Note, in their September 28th, 2012, Decision on Hansen's Case No. 106846. 6. The ruling confirmed Fannie Mae was substitute plaintiff, while at the same time, the decision confirmed Fannie Mae's name did not appear on the note. Hansen believes the Court made an error that needs to be corrected. In its decision, the Appellate Court stated: The Note and the Mortgage came under MetLife's common holding through a series of nonparallel endorsements or assignments. Both the Note and the Mortgage eventually came to be held by MetLife through a series of separate endorsements or assignments: MetLife was the last entity to endorse the Note. The Note: Sunflower exercised its right of transfer provided for in the Note and endorsed it to Ohio Savings Bank (Ohio Savings) on March 4, 2004 the same day it was signed by C.T. The Note was thereafter twice endorsed (on dates unknown): from Ohio Savings to First Horizon Loan Corporation (First Horizon); and from First Horizon to MetLife. [No endorsement by Fannie Mae six months after Fannie Mae purportedly purchased the Note.] The Mortgage: The central point of contention in this appeal stems from the fact that during the course of the above endorsements of the Note between the various lenders, the original Mortgage remained recorded in the name of MERS up until MERS assigned it to MetLife, solely as nominee for Sunflower Mortgage Co. (Emphasis added.) ... It should be noted that after filing its foreclosure petition, MetLife assigned both the Note and Mortgage to Fannie Mae and moved the district court to substitute

Fannie Mae as the plaintiff as a result. The district court orally granted that motion at the hearing upon finding that the substitution of Fannie Mae as plaintiff did not affect any of the summary judgment arguments concerning MetLife's standing to foreclose. Because the issue was challenged below based on MetLife's standing at the time it filed the petition, Fannie Mae is not further mentioned, although it is technically now the plaintiff/appellee. The Appellate Court failed to address the fact that the Note and Mortgage had not come under Fannie Mae's common holding, because Fannie Mae had not yet endorsed the Note. How can Fannie Mae be substituted as plaintiff if it has not endorsed the Note? Kansas Law requires the Plaintiff owns both the Note and Mortgage before it files its Petition to Foreclose. MetLife did not own the Note when it filed its Petition to

Foreclose, and Fannie Mae did not own the Note when it was substituted as Plaintiff, their endorsements appeared nowhere. Procedurally, the Douglas County, Kansas District Court failed. 7. If Fannie Mae's endorsement did not appear on the Note when the Kansas

Appellate Court viewed it and wrote its September 28, 2011 decision, how can MetLife truthfully claim Fannie Mae purchased Hansen's Note in July, 2010? 8. Fannie Mae can not lawfully be substitute plaintiff or even a party of Each of the three advertisements for the Sheriff

interest to these proceedings.

Sale were all in the name of MetLife Home Loans; the Sheriff Sale was not advertised in the name of Fannie Mae. Issue III Did the District Court err, when it signed the Court Order Confirming the Sheriff's Sale, when the Court was aware MetLife Home Loans processed paperwork in a particularly arranged, yet peculiar, order that made it impossible for Hansen's to challenge the details of the Sheriff Sale?

Issue IV Did the District Court err, when it signed the Court Order Confirming the Sheriff's Sale, when the Court was aware the Order stated important false facts? 1. a hearing to confirm the sheriff sale was held; 2. the hearing to confirm the sheriff sale was held on November 14, 2012, the same day the order was signed by the Honorable Robert W. Fairchild; 3. Bev Weber, Attorney for the Plaintiff was present; 4. Tanya Sue Wilson, Attorney for the U.S. Department of Justice, Counsel for Internal Revenue was present; 5. attorney for Wellsville Bank was present; 6. Defendant's were not present; 7. evidence was presented to the Court;

58-2218: False statement and certificate; penalty. Any officer who knowingly states a material untruth, in either of the certificates herein contemplated, may be indicted, and fined in any sum not exceeding the value of the property conveyed or otherwise affected by the instrument on which such certificate is endorsed. History: G.S. 1868, ch. 22, 16; Oct. 31; R.S. 1923, 67-218.

Issue V Did the District Court err by allowing Fannie Mae, a non-creditor, wait until after the Kansas Appellate Court's Ruling on September 28, 2012, to apply their judgment as their bid at the Sheriff Sale? 1. Fannie Mae opted to wait until until after Hansen's 90 day redemption rights had run to apply their judgment as their bid and move the court to confirm the sale; 2. Fannie Mae's decision to wait until after the Hansen's 90 day redemption rights had run removed Hansen's opportunity to challenge the fact that an appraisal had not been done prior to the Sheriff sale;

3. Fannie Mae opted to wait until after the Kansas Appellate Court returned its decision on the appellants first appeal of the district courts summary judgment decision awarding a judgment of foreclosure in favor of MetLife Home Loans. 4. Fannie Mae waited to apply their judgment until after the Appellate Court returned with their ruling on September 28, 2012. 5. Fannie Mae waited until their judgment was no longer at risk, applied it, and then moved the Court to Confirm the Sale. A Notice of Hearing was not sent. A hearing was not held, although the November 14, 2012, Order states appearances were made at the hearing, thus an appearance hearing was held. 6. Hansen respectfully requests the Appellate Court note, November 14, 2012, the same day the Appellate Court denied the Appellants motion to intervene for the Plaintiff's failure to Confirm the Sheriff's Sale in a timely manner in Appellate Court Case No. 106483, is the very same day the Confirmation of Sale hearing was SAID TO BE HELD, and THE ORDER CONFIRMING THE SHERIFF SALE was signed by Judge Fairchild in the District Court. No Notice of Hearing was mailed. The parties were still exchanging pleadings, and Counsel for Plaintiff, Beverly Weber, submitted a pleading to Hansens' on November 19, 2012, 5 days after the order was signed. According to the Judge's signed Order (which Beverly Weber also signed) Beverly Weber attended the Hearing to Confirm the Sheriff Sale.

7. Hansen's were allowed to stay in the home until after the Appellate Court ruled because Fannie Mae did not want to risk its judgment amount. Issue VI Did the District Court err by allowing the parties to continue to exchange Motions on the Confirmation of Sheriff Sale, the Plaintiff denoting theirs DIV II, Hon. Sally Pokorny" five days after the Order Confirming the Sheriff Sale had already been signed, without notifying the parties? 1. On November 14, 2012, the Douglas County District Court Chief Judge Robert W. Fairchild, signed the ORDER CONFIRMING SHERIFF'S SALE NO DEFICIENCY. 2. In the ORDER CONFIRMING SHERIFF'S SALE NO DEFICIENCY, (dated November 14, 2012) the first paragraph states The Plaintiff appears by and through its counsel. Beverly M. Weber signs the Order, directly underneath the Judge Robert W. Fairchild's signature. 3. On November 14, 2012, the first page shows Court No. 2, but it is crossed through, with a 1 written in beside it. It was filed by initials SB in the Clerk of the Courts Office at 3:37 PM. 4. On November 19, 2012, at 2:47 PM, Beverly M. Weber fax filed RESPONSE TO DEFENDANTS HANSENS' MOTION IN OPPOSITION TO PLAINTIFF'S MOTION TO CONFIRM SALE. Why did counsel for Plaintiff, Beverly M. Weber, continue in the exchange of pleadings on their Motion when they were fully aware the Order to Confirm the Sale had been signed by the Hon. Robert W. Fairchild?

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5. Counsel for Plaintiff, Beverly M. Weber, includes Tanya Sue Wilson, Jane Doe, and John Doe, on THE CERTIFICATE OF MAILING, only on certain pleadings, not all, as she is lawfully required to do. 6. On Counsel for Plaintiff's pleadings, where all parties are listed on THE CERTIFICATE OF MAILING, the Filed Douglas County District Court Date and Time Stamp is initialed by the Clerk of the Court who filed the motion in the upper right hand corner. 7. On Counsel for Plaintiff's pleadings, where only three parties, CT Hansen, Kelly Hansen, and Scott Ryburn, are listed on THE CERTIFICATE OF MAILING, the Filed Douglas County District Court Date and Time Stamp is missing in the upper right hand corner. Issue VII Are the Chief Judge's Duties Simply Too Vast? How can one person be expected to do all the things that the Chief Judge is required to do, effectively? Hansen's main concern is the Chief Judge's duty to Improve the Courts Functioning . The chief judge
must evaluate the courts effectiveness in administering justice and recommend changes. In this light, Hansen can see why, from Judge Fairchild's perspective, the decision to guarantee this case moves along without any hitches albeit unlawfully, would be tempting. Hansen can understand, why MetLife Home Loans did not want the Hansen's to appear at the Hearing for the Confirmation of Sale, request an appraisal, and have an appraisal granted. This would have meant having to begin the process all over again for the Plaintiff. So, sure, why not just fake a hearing for the sake of improving the Court's functioning? It certainly would move things along. But it isn't lawful.

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With so much fraud in the mortgage industry, Hansen wonders about the loss of his property. It is abundantly clear unlawful acts do take place in the Douglas County

Courthouse. At the cost to whom? At the cost to how many?

Issue VIII
Judge Robert W. Fairchild committed perjury when he signed the Order Confirming Order Confirming the Sheriff Sale. Issue IX

Kelly Hansen called Tammy Hogsett on 1/11/2012. Tammy wasn't available so instead Hansen asked for and spoke with Sherry Bernhardt, Administrative Assistant to Judge Fairchild. Bernhardt confirmed for Hansen that the hearing on staying the Sheriff Sale was held on February 15th, 2012, and that the November 14, 2012 hearing to Confirm the Sheriff Sale, where the Order to Confirm the Sheriff Sale was signed, was in fact, never held. Hansen explained her confusion to Bernhardt, because the Order to Confirm the Sheriff Sale stated in its first paragraph three people were present at the hearing, that they were the only parties present, indicating Hansen's were not making it appear as if Hansen's did not care enough about the hearing to attend and ask for the Appraisal they had requested on several occasions (even the Order states an Appraisal was not done and this is against Kansas Appellate Court Case Law). Hansen told Bernhardt she did not receive Notice that a Non-Appearance Hearing or a Notice of Hearing was scheduled in their case. Hansen further explained to Bernhardt The Order also indicated evidence was presented to the Court in the form of proof of publication. Hansen told Bernhardt this is the specific evidence she had requested to see, but the Plaintiff failed to provide. Hansen 12

asked Bernhardt, wouldn't a Judge committing the act of signing an Order stating falsehoods be against Kansas Supreme Court Rules? Ms. Bernhardt stated that Orders were often issued without hearings, that hearings were not mandatory before an Order could be issued, and a confirmation of sheriff sale did not require a hearing. Hansen understands this statement is true regarding some hearings and some Orders. However when one party is challenging a part of the sale, for instance, the fact that no appraisal was done on the property, it is then appropriate to hold a hearing prior to the issuance of an Order. A 14-day Notice of a Hearing is Mandatory, especially when an Order will be issued, and matters regarding the property are still in controversy. Hansen asked Bernhardt, if a hearing isn't required, then why state that one was held in the Order? Ms. Bernhardt responded that the information included in the Order was drawn from the Plaintiff's motion.
Beverly Weber, Counsel for MetLife, who, according to the Order Confirming the Sheriff Sale signed by Judge Robert W. Fairchild on November 14, 2012, was present at said hearing, continued to exchange motions with Hansen on November 19, 2012, on Plaintiff's Motion to Confirm the Sheriff sale.

ARGUMENTS AND AUTHORITIES Are the Equitable Considerations Under K.S.A. 60-2415(b) Solely for the Benefit of the Mortgagor? We reject the district court's apparent belief that the statute's equity powers should be invoked only to protect the mortgagor; clearly the legislature could have so limited the court's equity powers in the statute, but we discern no such language or intent within the statute itself. The legislature is presumed to have expressed its intent through the language of the statutory scheme; when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).

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Although much if not all of the case law cited by Brunsvold to the contrary applies the statute in circumstances where the mortgagor's interest was at stake, this does not mean that the statute is strictly for the benefit of the mortgagor. Brunsvold has cited no authority wherein the appellate courts have exclusively examined the mortgagee's interests and held that these interests were not entitled to protection at confirmation. Moreover, we note that it is inherently in the mortgagor's interest for the sale price to be substantially adequate. We conclude and hold that the equitable powers specified by K.S.A. 60-2415 are not solely to be invoked for the mortgagor, but rather the statute must be construed more broadly to apply to all parties with interests in the confirmation proceeding. In Summary MetLife Home Loans advertised the sale each week for three consecutive weeks prior to the sale, not Fannie Mae. MetLife Home Loans was the last creditor whose name appeared on the Note, as is verified by the Kansas Appellate Court in their published decision on September 28, 2012, Case No. 106846. Fannie Mae was not a creditor in this case, at least not yet, as they had not yet purchased the Hansen's Note. Their bid at the Sheriff Sale expired at the end of the day on April 5, 2012. The Note: Sunflower exercised its right of transfer provided for in the Note and endorsed it to Ohio Savings Bank (Ohio Savings) on March 4, 2004 the same day it was signed by C.T. The Note was thereafter twice endorsed (on dates unknown): from Ohio Savings to First Horizon Loan Corporation (First Horizon); and from First Horizon to MetLife. [No endorsement by Fannie Mae six months after Fannie Mae purportedly purchased the Note.] The SHERIFF'S RETURN stated he certified he received the Order of Sale to sell Hansen's real property, without appraisement; he sold said real estate on April 5, 2012, for the sum of $183,812.19 to the Federal National Mortgage Association (Fannie Mae), being the highest and best bidder therefore. At the bottom of the page it shows the BID AMOUNT $183,812.19.

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Because Hansen believes Fannie Mae was designated the substitute plaintiff by the Appellate Court in error [Fannie Mae had not endorsed the Note on September 28, 2012, the date the Appellate Court made their decision] the RECEIPT / APPLICATION OF JUDGMENT filed on November 9, 2012, is also in error. Because Fannie Mae was not entitled to Judgment, The Douglas County Clerk of the Court could not apply a sum of judgment against Defendant/Appellant Hansen. PRAYER FOR RELIEF The facts the Trier-of-Fact missed are material. The errors the Douglas County District Court made throughout MetLife vs. Hansen, and during its scheduled Sheriff Sale are material. We move the appellate Court to review our case and decide if reasonable minds could differ as to the conclusions drawn from the evidence. It should be noted that after filing its foreclosure petition, MetLife assigned both the Note and Mortgage to Fannie Mae and moved the district court to substitute Fannie Mae as the plaintiff as a result. The district court orally granted that motion at the hearing upon finding that the substitution of Fannie Mae as plaintiff did not affect any of the summary judgment arguments concerning MetLife's standing to foreclose. Because the issue was challenged below based on MetLife's standing at the time it filed the petition, Fannie Mae is not further mentioned, although it is technically now the plaintiff/appellee. Hansen moves the Kansas Appellate Court to vacate the Douglas County District Court's Summary Judgment for the Courts failure to identify Fannie Mae's missing endorsement on the Hansen's Note. Hansen moves the Kansas Appellate Court to award appropriate costs and damages, pursuant to K.S.A. 60-208(a)(2), in excess of $75,000, for Douglas County District Courts procedural failures, and for the unlawful acts committed by those parties in regards to the Order of the Confirmation of Sheriff Sale.

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Respectfully Submitted this 13th day of June, 2012,

___________________________________________ Appellant Clarence G. (CT) Hansen 83 E. 1250th Road Baldwin City, KS 66018

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CERTIFICATE OF SERVICE I CERTIFY that this APPELLATE COURT COPY of the foregoing was federal expressed to the Clerk of the Kansas Appellate Court, to be received by 13, 2013. Phone Number 785-296-2768. I CERTIFY that this CHAMBER COPY of the foregoing was faxed to Sherry Bernhardt, Administrative Assistant to the Honorable Robert W. Fairchild, to fax number 785-838-2455, on June 13, 2013. Phone Number 785-832-5265. I CERTIFY that this ATTORNEY COPY of the foregoing was faxed to R. Scott Ryburn, Attorney with ANDERSON & BYRD, LLP., Counsel for WELLSVILLE BANK, to fax number 785-242-1279, on June 13, 2013. I CERTIFY that an ATTORNEY COPY of the foregoing was faxed to Bev Weber, Attorney with MARTIN, LEIGH, LAWS & FRITZLEN, P.C., Counsel for PLAINTIFF, to fax number 816-221-1044, on June 13, 2013. I CERTIFY that CLERK COPY of the foregoing was faxed to 785-8325174 to the Clerk of the Douglas County District Court on June 13, 2013. Phone Number 785-832-5256. FINALLY, I CERTIFY that this IRS COPY of the foregoing was faxed to 785-295-2853 to Tanya Sue Wilson, Attorney with U.S. DEPARTMENT OF JUSTICE, Counsel for INTERNAL REVENUE SERVICE, June 13, 2013.

Kelly L. Hansen, DEFENDANT 33605 W. 88th Street De Soto, KS 66018 913-529-9837 Phone 866-409-9552 Fax

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