NEIL M.

KRUM, ESQUIRE
IDENTIFICATION NO. 31253 31 Ambler Road Ambler, Pa 19002 (215) 292-3535

Attorney for Defendant, pro se

: : U.S. BANK, N.A. TRUSTEE : FOR BNC MORTGAGE LOAN TRUST, : 2007-1, Plaintiff : : v. : : NEIL KRUM : : :

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, PENNSYLVANIA CIVIL DIVISION No. 09-16774

Defendants Brief in Support of Response to Plaintiffs Motion to Amend Caption Procedural background It is impossible to answer Plaintiffs Motion, without knowing, first of all, 1) who or what is, U.S. BANK, N.A. TRUSTEE FOR BNC MORTGAGE LOAN TRUST, 2007-1; and who or what is, U.S. BANK, N.A. TRUSTEE FOR BNC MORTGAGE LOAN TRUST, 2007-1, Mortgage Pass-Through Certificates, Series 2007-1. Plaintiff has shed little light on these questions, and has only added to the confusion. Plaintiff filed its first Complaint against Defendant on May 12, 2009, No. 09-13851. That Complaint stated: 1. Plaintiff is U.S. BANK, N.A. TRUSTEE FOR BNC MORTGAGE LOAN TRUST, 2007-1 10790 RANCHO BERNARDO RD SAN DIEGO, CA 92127

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The Complaint went on to say that Plaintiff became assignee of Defendants mortgage. (Complaint, para. 3). No other information was given regarding Plaintiff. Without explanation, Plaintiff abandoned their first Complaint, and filed another Complaint against Defendant, on June 5, 2009, No. 0916774. That Complaint stated: 1. Plaintiff is U.S. BANK, N.A. TRUSTEE FOR BNC MORTGAGE LOAN TRUST, 2007-1 10790 RANCHO BERNARDO RD SAN DIEGO, CA 92127 Again, the Complaint went on to say that Plaintiff became assignee of Defendants mortgage. (Complaint, para. 3). And again, no other information was given regarding Plaintiff. For almost three years thereafter, Plaintiff did not attempt to change this information; rather, they repeated the same wording of Plaintiffs name, in numerous documents filed in this case. Only on January 20, 2012, did Plaintiff first refer to a different wording of its name. Plaintiff filed a Praecipe purporting to Correct Scriveners Error and Amend Name of Plaintiff. Plaintiff attempted to direct the Prothonotary as follows: Kindly substitute U.S. BANK, N.A. TRUSTEE FOR BNC MORTGAGE LOAN TRUST, 2007-1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-1 in place of the current Plaintiff, U.S. BANK, N.A. TRUSTEE FOR BNC MORTGAGE LOAN TRUST, 2007-1 Defendant then filed a Praecipe to Strike Plaintiffs Praecipe, as a violation of Pa. R.C.P. 1033. Plaintiff finally filed their Motion to Amend Caption, on or about March 9, 2012. Plaintiffs Motion states: 5. The mortgage is now part of a certain collateralized mortgage trust entitled BNC Mortgage Loan Trust, 2007-1, Mortgage PassThrough Certificates, Series 2007-1, and U.S. Bank acts as its Trustee. No other information has been given about this purported entity. Curiously, Plaintiff states that it is NOT an entity at all: Page 2 of 6

10. ... In fact, Mortgage Loan Trust 2007-1 is the entity, and the rest of the name describes only the certificate issued by the entity. (Plaintiffs Motion to Amend Caption, para. 10).

This statement by Plaintiff begs the questions of how a non-entity could possibly be a Plaintiff; how a certificate could be a Plaintiff; and, based on Plaintiffs statement in paragraph 10, what purpose could be served by altering Plaintiffs name as they propose? Law Plaintiff cites only one case, and that case does not address a Motion to Amend Caption. In Miller, Plaintiffs sought to amend their Complaint to clarify that the claim was for a series of continuing trespasses resulting in personal injuries. Miller v. Stroud Twp., 804 A.2d 749, 754 (Pa. Commw. Ct., 2002). The trial court denied the Motion to Amend, reasoning that the Statute of Limitation had run, and thus it would be impermissible to allow the amendment. Commonwealth Court reversed. They ruled that the lower court erred in determining the Statute of Limitation. Since the Statute of Limitation had not run, the amendment would be allowed. Unlike Miller, the present case does not involve clarification of a claim. It does not involve the correct interpretation of the law on Statutes of Limitation. Instead, the issue is simply whether Plaintiff, three years after commencing suit, can substitute one name for Plaintiff with another name for Plaintiff? As Plaintiff correctly reports, the language Plaintiff cites from Miller was drawn from Burger v. Borough of Ingram, 697 A.2d 1037 (Pa. Cmwlth., 1997). The Burger court affirmed a trial courts denial of leave to amend, in a context much more similar to the present case. The Plaintiff in Burger had been accused of theft and disorderly conduct. The theft accusation was dropped, and Plaintiff was found not guilty of disorderly conduct. She sued two Boroughs, and the retail store involved, for several torts. Later, she sought, and was given, leave to amend her Complaint, to add two individual police officers, and to plead claims under 42 U.S.C. 1983. However, Plaintiff neglected to actually file an Amended Complaint. At the start of the trial, Plaintiff was denied leave to amend. After Plaintiff presented her case, Defendant was granted a non-suit based upon governmental immunity. Plaintiff sought post-trial relief, which was denied. Commonwealth Court affirmed the trial courts rulings. failure to file an Amended Complaint ...in accordance No. 1007..., and to serve an Amended Complaint on the officers, meant that she could not bring them into the Plaintiffs with Pa.R.C.P. two police trial, as new Page 3 of 6

parties-defendants. Her delay of three and a half years had allowed the Statute of Limitation to elapse against those individuals. Burger, at 1041-3. (emphasis added).

Many cases in similar contexts have had the same results. The Prevish case was a suit filed in the name of the estate of a decedent. It should have been filed in the name of the personal representative. Prevish v. Northwest Medical Center Oil City Campus, 692 A.2d 192 (Pa. Super., 1997). Superior Court held that this defect could not be rectified by amendment. The Statute of Limitation had run, and amendment would constitute the introduction of a new party. Prevish at 195, citing 21 Standard Pennsylvania Practice 2d 115:7; Mallick v. Middletown Township, 60 Pa. D. & C.2d 79 (1972). As in the present case, Plaintiff in Prevish, ...by amending the caption of his pleading to correct the name of a party without having obtained either the consent of opposing counsel or leave of the court, had violated Pa.R.C.P. No. 1033. Prevish, at 205. The Court explained that no legal action could exist, without a proper Plaintiff, and a proper Defendant, quoting from two prior cases: It is fundamental that an action at law requires a person or entity which has the right to bring the action, and a person or entity against which the action can be maintained. By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial persons, but they must be entities which the law recognizes as competent. A dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect. This disposes of the further argument that the defect [can be] cured by [an] amendment. There can be no amendment where there is nothing to amend. In any event, an amendment the effect of which is to bring in new parties after the running of the statute of limitations will not be permitted. Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597, 598 (1935) (citations omitted), quoted in Marzella, supra, 256 Pa.Super. at 182, 389 A.2d at 661. As with a dead man, so with an estate lacking a personal representative: an action brought by or against such an estate is void, and a subsequent attempt to "amend" the caption to specify the correct party is in fact the Page 4 of 6

addition of a new party, which addition will not be permitted after the statute of limitations has expired. Marzella, supra. Prevish, at 200-1. Directly applying the law as so stated to the case before them, the Court held: The writ of summons was the only document filed before the limitations period expired, and its caption identifies the estate of the decedent as the plaintiff. Such a writ is, of course, a nullity. Moreover, the writ does not identify the executor of the estate, nor does it inform the defendants that there is, even potentially, an executor (that is, that the decedent died Prevish, at 200-1.

The Court concluded, by noting that: Appellant has cited no case, and we are aware of none, in which the relation back doctrine was applied to ratify, postappointment, the attempted commencement of an action by a personal representative whose existence was in no way suggested by the pleading that he filed. Prevish, at 205. Likewise, in the present case, Plaintiff has cited no case which allowed the substitution of a Plaintiff, three years after a Complaint was filed. Application to this case The present case is like Burger and Prevish. Plaintiff has waited three years to seek to Amend. In Burger, Plaintiff sought to add additional parties, and in Prevish, Plaintiff sought to substitute a legal representative of the estate, for the non-entity which filed the Complaint: an estate without a legal representative. Similarly here, Plaintiff seeks to substitute one Plaintiff for another. Even if Plaintiff were granted leave to Amend, they would need to file an Amended Complaint, and to properly serve it, as stated in Burger, at 1041. And, as in Burger, to allow this would implicate issues of Statutes of Limitation, laches, and due process: since Summary Judgment has already been granted to Plaintiff under their unamended name, to allow substitution of a different Plaintiff would upset this Courts determination of Summary Judgment, as it would have upset the Nonsuit granted in Burger. This Court should deny the much-belated request of Plaintiff to Amend.

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Date

NEIL M. KRUM, ESQUIRE IDENTIFICATION NO. 31253 31 Ambler Road Ambler, Pa 19002 (215) 292-3535

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