Walter T . Keane - I 0333

WALTER T. KT~A E, P.C. 2825 'ottonwood Pkv ., Suite 500

a lt Lnk · City, tah 84121 Telephone: (80 1) 990-4422 Fac imile: (80 J) 606-7533 Email: walter(f_~walterTkcane.com

For Harvey

U LAKE DEPA TM£ r BY pr[.

DE PUTY CLERK

--- ----- ------ ·-------------------------------------------------IN THE THIRD JUDICIAL DISTRICT

SALT LAKE COUNTY, SCOTT MATHESON COUUTHOUSE, STATE OF UTAH

COTT HARVEY, Pla inti ff,

-vs-

G RBETT MORTGAGE, LLC, CrnBANK FSB, INTEGRATED TITLE

SERVICES, MERS, FIRST AMERICAN

TITLE COMPANY, JOHN AND JANE DOES 1- I 0,

Defendants.

Plaintiff complains ns follows:

COMPLAINT

ACTJON FOR QUIET TITLE

Case No:

Judge:

Parties

1. Scott Hmvey is the owner of property located at 14755 Grand Ridgclinc Draper, lJT

84020 ldcnlificd by Tax 1D Number 34-07-33 1-004 ("Property"). The k:gal description ol'the

Prup~rty is attached and marked as Exh ibit "A."

2. G<:~rbett Mortgage, LLC is the beneficiary of a trust deed records against the prorc•ty

("Garbett trust deed").

3. The Clarbctt trust deed and further identified as Document No. 94121 S9, J3ook 914R.

Page 8789-8803.

4. Integra ted Title Services i the trustee of the Garbett trust deed .

5. it ibank. FSB is the beneficiary of a trust deed recorded against the Property ( 'Citi trust

deed.'")

6. T ht:: Citi trust deed was recorded on June 27, 2006, as entry number 976501. book/pag~;:

931 3/6923.

7. First American Title Company is thl: trustee of the Citi trust deed .

R. Mortgage Electronic Regi try Service ("MERS") is the nominee of both trust dc~..:cls .

Facts

9. On info rmation and belief, neither Garbett Mortgage nor Citibank FSB has any interest in

the foregoing notes, trust deeds, or Property.

I 0. MERS has been assigned the trust deeds and is holding them separate from the note .

11. MERS has absolutdy no interest in the note or the property .

12. MERS is a tax evasion broker which has deprived local governments of essen li.a l fund s

by collecting fees otherwise nect::ssary to properly record trust deeds and assignments of the

same.

] . Sail Lake County Recorder, Gary Ott described MERS as potentiall y " the scam f'rom

hdl."

14. Essentially, because the relevant notes were assigned to different parties while the

re levant trust deeds were assigned to MERS, a split of the note and trust deed has occurred and

the re fore the latter is a nullity.

First cause of action - quiet title

15. The foregoing paragraphs arc incorporated into this quiet title cause of action.

16. Pursuant to U tah Codt: Annotated 788-6-1303, plaintiff will record a lis penden · shortly

after obtaining a case number from the court clerk.

17. Because the Garbett trust deed has been split from the note the former is a nullity and

should be stricken from the chain of title.

18 . Because the Citi trust deed has been split from the note the former is a nullity and should

be stricken from the chain oftitl e.

Prayer

Plaintiff prays that the GaJbett trust deed and Citi trust deed be declared nullities by this

Court and in order noting the same recorded with the Salt Lake County recorder's offlce and such

other action a this Court deems just.

DATED thi s J;;l:_ day of __,lf'-+-!...1.{1 ....~.'1 ___ 20 I 0.

bliObEHl.A DE2CY!b.J.IOH

EXHJBil .. v ..

Walter T. Keane, P.C.

~~ BY: Walter T. Keane

varren "-· r~ e1son ~ 1 ~40)

PARR BROWN GEE & LOVELES

185 South State Street, Suite 1300 Salt ake City, Utah 84111-1537 Telephone: (801) 532-7840 Facsimile: (80 1) 532-7750

10 !{I Y I 9 P ·1 t, = I 4

Attorneys tor Defendant First American Title Company

IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

SCOTT HARVEY,

Plainti rt~

vs.

GARB ETT MORTGAGE, LLC, CITIBANK FSR, INTEGRA TED TITLE SERVICES, MERS, FIRST AMERICAN TITLE COMPANY, JOHN AND JANE DOES 1-10,

Defendants.

ANSWER OF FIRST AMERICAN TITLE COMPANY TO COMPLAINT OF

SCOTT HARVEY

Case No. 100907587

Judge Iwasaki

Defendant First American Title Company ("Answering Defendant"), by and through its

counsel of record , hereby answers Plaintiff's Complaint as follows:

FIRST DEFENSE

The Complaint fails to state a claim against the Answering Defendant upon which relief

can be granted.

SECOND DEFENSE

Answering the numbered paragraphs of Plaintiff's Complaint, Answering Defendant

admits, denies, and alleges as follows :

338062.1

thereof denies.

2. For lack of knowledge or infonnation sufficient to fonn a belief as to the truth

thereof, denies.

3. For lack of knowledge or information sufficient to form a belief as to the truth

thereof, denies .

4. For lack of knowledge or infom1ation suflicient to form a belief as to the truth

thereof, denies.

5. For lack of knowledge or infom1ation sufficient to form a belief as to the tmth

thereof, denies.

6. For lack of knowledge or information sufficient to form a belief as to the truth

thereof, denies.

7. Admits.

R. for lack of knowledge or information sufiicient to form a belief as to the truth

thereof~ denies.

9. For lack of knowledge or information sufficient to lurm a belief as to the truth

thereat: denies.

10. For lack of knowledge or information sufficient to form a belief as to the truth

thereof, denies.

11. For lack or knowledge or information sutlicient to form a belief as to the truth

thereof, denies.

12. For lack of knowledge or information sufficient to form a belief as to the truth

thereof, denies .

2 11!!0(;? I

thereof, denies.

14. For lack of knowledge or information sufficient to form a belief as to the truth

thereof, denies.

15 . Answering Paragraph 15, Answering Defendant incorporate their responses to

Paragraphs 1 through 14 as set f01th above.

16. For lack of knowledge or information sufficient to form a belief as to the truth

thereof, denies.

17. For lack of knowledge or information sufficient to form a belief as lo the truth

thereof, denies.

18. For lack of knowledge or information sufllcient to form a belief as to the truth

thereof, denies.

THIRD DEFENSE

Plaintiffs claims arc barred by the doctrines of waiver, estoppel, laches, payment,

subordination, express agreement, and/or release.

FOURTH DEFENSE

Plaintiff's claims are barred to the extent Plaintiffs have failed to join indispcnsible

parties.

FIFTH DEFENSE

Plaintiff's claims are barred by its failure to mitigate damages, if any.

SIXTH DEFENSE

Plaintiffs claims are barred by unclean hands and acquiescence.

3 11lHl6? 1

Plaintiff's claims are barred by their own material breaches of any agreement with the

respective lenders under the trust deeds .

EIGHTH DEFENSE

Plaintiffs claims may be barred by novation and/or release.

WHEREFORE, having fully answered the Complaint, Answering Defendant demands

that the Complaint be dismissed with prejudice as against it, and that it be awarded its costs and

attorneys ' fees, and for such other and further relief as the Court deems appropriate.

Dated this Ji_ day of May, 2010.

PARR DROWN GEE & LOVELESS

nv Oarryt'71~1\JL£Jar--/

4

Darren K. Nelson Attorneys for First American Title Company

Walter T. Keane - 10333 WALTER T. KEANE, P.C. 2825 Cottonwood Pkwy. , Suite 500 Salt Lake City, Utah 84121 Telephone: (801) 990-4422 Facsimile: (801) 606-7533 Emai I: walter@walterTkcanc.com For Harvey

IN TnE Tnmn JvmcJA 1, OTSTRTCT

SALT LAKE COUNTY, SCOTT MATHESON COURTHOUSE, STATE OF UTAH

SCOTT HARVEY, Plaintift

-vs-

GARHETT MORTGAGE, LLC, Cri'IBANK FSB, INTEGRATED TITLE

SERVICES, MERS, FIRST AMERICAN

TTTLR COMPANY, JOHN AND JANE

DOES 1-10,

Defendants.

RULR 41 (a), URCP OJSMISSA L OF

CITIBANK FSB

Case No: 100907587

Judge: Ulenn Iwasaki

Pursuant to Rule 41 (a), URCP, plaintiff dismisses defendant Citihank FSB without

prejudice. While not required by the rule, plaintiff has tendered an order dismissing defendant

Citibank FSB wit~ this Rule 41 (a), URCP, dismissal.

DATEDthis _~ __ dayof :sA,vn ..., 2010.

Walter T. Keane - I 0333 WALTER T. KEANE, P.C. 2825 Cottonwood Pkwy., Suite 500 Salt Lake City, Utah 84121 Telephone: (801) 990-4422 Facsimile: (801) 606-7533 Email: walter@walterTkeane.com For Harvey

IN THE THIRD JUDICIAL DISTRICT SALT LAKE COUNTY, SCOTT MATHESON COURTHOUSE, STATE OF UTAH

SCOTT HARVEY, Plaintitl~

-vs-

GAHHETT MORTGAGE, LLC, CITIBANK FSB, INTRGRATI<:I> TITLI<:

SERVICES, MERS, FIRST AMERICAN

TITLE COMPANY, JOHN AND JANE

DOES 1- 10,

Defendants.

PLAINTIFF'S MOTION AND

MEMORANDUM IN SUPPORT OF

VOLUNTARY DISMISSAL OF FIRST

AMERICAN TITLE COMPANY

Case No: 100907587

Judge: Glenn Iwasaki

Plaintiff seeks to dismiss First American Title Company from this action without

prejudice. Concurrent with the filing of this motion, plaintiff has filed a voluntary dismissal of

Citibank FSB pursuant to Rule 41 , URCP. Considering First American Title Company is a

trustee for a deed naming Citibank FSB as lender, plaintiff seeks to dismiss them both at the

same time. A proposed order has been filed this motion.

WHEREFORE, defendant prays for a dismissal of First American Title Company.

DATED this ...2- day of .::J:,." 2010.

Walter T. Keane, P.C.

~ BY: Walter T. Keane

CERTIFICATE OF SERVICE

I hereby certify that on the __ day ofMm·ch 2010 and , I sent via first-class mail a true and correct copy of the foregoing document to the following:

Ronald G. Russell Darren K. Nelson Pan Brown Gee & Loveless 185 South State St., Suite 800

alt Lake City, Utah 84111-1537

Walter T. Keane - I 0333 WALTER T. KEANE, P.C. 2825 Cottonwood Pkwy., Suite 500 Salt Lake City, Utah 84121 Telephone: (80 1) 990-4422 facsimile: (801) 606-7533 Email: walter@walterTkeane.com For Harve

IN THE THIRD JUDICIAL DISTRICT SALT LAKE COUNTY, SCOTT MATHESON COURTHOUSE, STATE OF UTAH AND

SCOTT HARVEY, Plainti11~

-vs-

GARBETT MORTGAGE, LLC, ET AL.,

Defendants.

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Case No: I 00907587

Judge: Glerm Iwasaki

Harvey brings this motion for summary judgment for the purpose of nullifying a certain

trust deed recorded against his property. The original has submitted a stipulation that it has no

further interest. 1 he trustee has recorded a notice of withdrawal as a trustee. These documents

together with a memorandum of support are incorporated by reference into this motion.

WHEREFORE, Harvey respectfully moves for this Court to enter summary judgment in

its favor and in so doing nullify the trust deed identified in the incorporated memorandum in

support.

DATED this _f-__ day of July 2010.

Walter T. Keane P.C.

BY: Walter T. Keane, attorney for Harvey

Cert!ficate of service

I certify thal I mailed the foregoing document via US mail first-class on (f1- /to to the

following persons and/or entities:

Gary A. Weston (Cou.nseljor Intergrated Title)

Nielsen & Senior Suite 400 5217 S. State St. Salt Lake City, UT 84107

NOTICE

Book- 9836 Pg- 2311-2312 Gary W. Ott Recorder, Salt Lake County, UT INTEGRATED TITLE INS. SERVICES BY: oCASH, DEPUTY- EF 2 P.

OF WITHDRAWAL OF TRUSTEE

INTEGRATED TITLE INSURANCE SERVICES, LLC also known as Integrated Title Services does hereby WlTHDRA WAS TRUSTEE under that certain Deed of Trust dated June 16,2005 and executed by SCOTT AEDAN HARVEY, as Trustor in which Int ugratcd Title Services is named as Trustee and GARBETl' MORTGAGE, LLC as Lender an d MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as Beneficiary and which Deed of Trust was filed for record on June 22,2005, as Entry No. 9412189 in Book 9148 at Page 8789 oftht:: Official Records of the CoW1ty Recorder of Salt Lake County, State of Utah, and wherein said Deed of Trust is described that certain real property situated in Salt Lake County, State of Utah and more particularly described as follows:

SEE EXHIBIT A HERETO ATTACHED AND BY THlS REFERENCE IN CORPORA TED HEREIN.

The lien as created by the Deed of Trust on the hereinabove described trust property shall continue as provided by Section 57-1-21(4), Utah Code Ann., but with the power of sale and other trustee powers under the Deed ofTrust to be exercised only if the Benef1ci ary appoints a qualified successor trustee, under Section 57-1-22, Utah Code Ann.

DATED this 24th day of June 2010.

STATE OF UTAH ) : ss.

COUNTYOFSALTLAKE )

lNTEGRATED TITLE INSUltAN ( 'E SERVICk;S, LLC

Walter T. Keane- 10333 WALTERT. KEANE~ P.C. 2~25 ottonwood Pkwy., Suite 500 Salt Lake City. Utah 84121 Telephone: (80 I) 99()-4422 Facsimile: (80 I) 606-7533 Email: walter@wal terTkeane.com For Harvey

IN nu: THIRJ) JUDICIAL DISTRICT SALT LAKE COUNTY, SCOTT MATIJ"ESON COURTHOUSE, STATE OF UTAH

SCOTT HARVEY, Plaintiff,

•VS·

GARBETT MORTGAGE.. LLC, ET At...,

STfPVLATJON OF GARBETT

MORTGAGE, LLC

Case No: I 00907587

Judge: Glenn lwnsaki

Defendant . -------':--=-------------·--·-·-

Garbett Mortgagc,- LLC stipulates as follows:

1. Gar~tt Mortgage. LLC is listed as the lender on both the deed oftru ·t and note with

plaintiff on or about June 2005 (hereinafter ''Garbett note" and "Garbett trust deed").

2. Tht: Garbett trust deed was recorded on June 22. 2005 at the Salt Lake County rec.ordcr'.

office. entry number 9412 I 89, book 9148, page 8789-8803 nd was recorded agajnst the

property at 14755 S . Granite Ridge Lane. Draper, u·r 84020.

Pag I of3 Sripuhu/(ln r>,(Gar!Hfl tM<.~rtgage LLC r 1 District Court 'a.se No. !0090758.

-- 'I 11 I J '

3. Plaintiffs propert_ is further described by the followin g legal dcscnption:

Lot 4, in Building 40, contained within the CHANDLER POINTE AT SOUTH MOUNTAIN, PHASE 3, a Utah Planned Unit Development, as the same is identified in the Ptat Map recorded in Salt Lake County, Utah as Entry No. 8894000, in Book 2003P, at Page 356 of the official records of the County Recorder of Salt Lake County, Utah, (as said Plat Map may have theretofore been amended and/ or supplemented) and in the Declaration of ~ovenants, Conditions, and Restrictions 0f CHANDLER POINTE AT SOUTH MOUNTAIN, recorded October 31, 2003, in Salt Lake County, Utah aa Entry No. 8874591, in Book 8904, at Page 4164 (as said Declaration may have been amended and/or supplemented) in the Office of the Recorder of Salt Lake County, Utah. Together wit an undivided interest in and to the common areas and facilities m ore particularly described in said Declaration and any amendments andj or Supplements thereto .

Parcel [dentiJica tion No . 34~07 -331-004.

4. GE!Ibett Mortgag · has no further intere t i.n the Garbett note, Garb tt ITIL~l deed undlor

~ubject. property dt!Scribed herein.

5. The undersigned bas full knowledge regarding the foregui11g sratem nts and is ru1

aulhorized agent of Garbeu Mortgage LLC.

6. And nothing further.

DATED this __/_ day of J lao., , 2010.

Garbett Mortgage LLC

BY:M~

Page Z ofJ Stipulation afGarbeu Mortgage Ll.C

J.w Disrricr Court Ca:se No. 100907587

Pa,(!,e 3 of3 Stipulation oj'Garbell Mortgage LLC :r' Oi.srricl Coun Cc1se No. !00907587

Walter T. Keane - 10333 WALTER T. KEANE, P.C. 2825 ottonwood Pkwy ., Suite 500 'alt Lake City, Utah 84121

Telephone: (80 1) 990-4422 Facsimile: (801) 606-7533 Email: walter@walterTkcanc .com For Harvey

i 0 JU1 - 8 A. I 9: 53

IN THE THIRD JUDICIAL DISTRICT

SALT LAKR COUNTY, SCOTT MATHESON COURTHOUSE, STATE OF UTAH

SCOTT HARVEY,

Plaintiff:

-vs-

MEMOHANDIJM IN SIJPPORT ()Ji'

PLAINTIFF'S MOTION FOH. SUMMAH.Y

J UDGMENT

Case No: I 0090758 7 GARnETT MORTGAGE, LLC, ET AL.,

Judge: Glenn Iwasaki Defendants.

In support ofhis motion for summary judgment plaintiff submits the following

memorandum and attachments :

Undisputed Material Facts

1. Garbett Mortgage was named as Lender under a trust deed iclenti fied by record number

9412 l 89, I3ook 9148 and Page 8789 at the Sale Salt Co unty recorder ' · ol'fiL:c . See Exhihir "A, .,

stipulation ofGarbell Mortgage.

2. This trust deed was record d against plaintilrs property. See Exhibit ''A. "

3. Garbett Mo1igage has no interest in the promissory note, trust deed and/or subject

property . See Exhibit ''A. "

4 . The trus tee of the trust was ln tergrated T itle Serv ices. ,)'ce J.:.:xhihir ' '13 . ..

5. However, Intcrgrated Title ervices has ostensibly withdrawn as trustee. See Fxhihil

"B."

I 118 ]).

Argument

A fundamental concept of trust law is:

A trust .is a form of ownership in which the legal titl e to properl y is vested 111 a trustee, who has equitabl e duti es to hold and rna nage it for the benefit of the beneficiari es . Restatement of Trusts. Second , s 2 ( 195 9). It is the refore ax io ma ti c in tru st law that the tru s tee

under a valid trust deed ha exclusive cont ro l of' the trust propc rt ).

subject only to the limitations imposed by Jaw or the trust instrument .. . .

'ontinental Bank c . Trust Co. v ·. vunf1y Cluh Mobilt! E.sta/ t!s , G32 P.L..d 809. 872 (U tah

In this case the original lenders disavowing any interest in the property. The trustee has

withdrawn. Considering the forego ing, it seems strai ghtforward that the trust deed is a nullity as

the owner of the " legal title" has disavowed an y intercsl.

Conclusion

Considerin g the forego ing undi sputed m;.tterial fac ts and rules or law, plui nti IY is cn ti tkd

to judgment as a matter of law in which the trust identified herein is dcclurcd a null ity.

DATED thi s 1-~ day of July 20 I 0.

Walter T. Keane P. C.

BY: Walter T . Keane, attorney for Harvey

Certificate ofservice

I certify that 1 mailed the foregoing document via l.JS mail first-cluss on.y/1-(to following persons and/or entities:

Gary A. Weston (Counse/for !ntergrated Title) Niel en & Senior Suite 400 5217 S. State St. Sa lt Lake City, UT 841 07

YS)t----...

to the

Walter T. Keane - 10333 WALTER T. KEANE, P.C. 2825 Cottonwood Pkwy., uite 500 Salt Lake City, Utah 84121 Tclephon~ : (80 1) 990-4422 Facsimile: (801) 606-7533

mail: walter@walterTkeane.com For Harvey

FILII DISTRICT OURT Third Judicial District

~u~ s 2~10, ay __ ....s:~~.....,!!._:';.~o,.,l~~-:;-;-pu;;;:ty';7'Cgj;le:rkrk-

IN THE THIRD JUDICIAL DISTRICT

SALT LAKE COUNTY, SCOTT MATHESON COURTHOUSE, STATE OF UTAH

SCOTT HARVEY, Plaintitl~

-vs-

GARBETT MORTGAGE, LLC, ET AL.,

Defemlants.

RULE 41, URCP DISMISSAL OF

GARBETT MORT.

Case No: 100907587

Judge: GJem1 Iwasaki

Plaintiff herchy dismisses Garbett Mortgage pursuant to Rule 41, URC'P.

Integrated Title has not filed an answer or otherwise pled with the consent of plaintiti.

DATED thi~_day of August 2010.

Walter T. Keane P. C.

• Pursuant to Utah Code Ann § 78B-6-1315(3) plaintiff requests a very short evidentiary

hearing.

DATED this 1.-1.--- day of July 20 10.

Walter T. Keane P.C.

Certificate ofservice

I certify that I mailed the foregoing document via US mail first-class on 1-{~C> to the

fol lowing persons and/or entities:

Gary A. Weston (Counselfhr Jntergrated Title) Nielsen & Senior Suite 400 5217 S. Stale St. Salt Lake City, UT 84107

Walter T. Keane- 10333

WALTER T. KEANE, P.C. 2825 Cottonwood Pkwy. , Suite 500 Salt Lake City, Utah 84121 Telephone: (80 1) 990-4422 Facsimile: (80 1) 606-7 53 3 Email: wal ter@walterTkcanc.com For Harvey

I TRI f.OuRT Third Jud1c1al 01.:trict

IN THE THffiD JUDICIAL DISTRICT SALT LAKE COUNTY, SCOTT MATHESON COURTHOUSE, STATE OF UTAH

SCOTT HARVEY, Plaintiff,

-vs-

GARBI<~TT MORTGAGE, LLC, ET AL.,

Defendants.

ORDER QUIETING TITLE TO REAL

PROPERTY

Case No: 1009075X7

Judge: Glenn Iwasaki

This matter coming to be heard on plaintiff::; unopposed motion for :summary judgment,

the Cow1 being fully informed and having considered the papers and arguments before the

hereby rules as follows:

1. Plaintiffs motion for sunm1ary judgment is GRANTED.

2. The <.:ourt finds that no opposition ha:s been filed to plaintiffs motion for summary

judgment.

3. All defendants have either been dismissed or failed to appear after effective service.

4. Pursuant to Rule 7, URCP:

a. Garbett Mo1igage was named as Lender tmdcr a trust deed identified by record

number 9412189, Book 9148 and Page 8789 at the Salt Lake County recorder's

office.

b. This trust deed was recorded against plaintiff's property. See Exhibit "A. "

c. Garbett Mortgage has filed a stipulation that it has no interest in the promissory

note, trust deed and/or subject property.

d. The trustee of the trust deed was Intergratcd Title Services.

e. Intergrated Title Services having been served with summons and complaint has

failed to file an answer of or otherwise plead, recorded a withdrawal of its

trusteeship at the Salt Lake County recorder's office and has failed to contest

plaintiff's motion for summary judgment. See Exhibit "B. "

WHEREFORE in consideration of the foregoing, the Garbett mortgage trust deed identified by

record number 9412189, Book 9148 and Page 8789 at the Salt Lake County recorder' s office

which encumbers property legally described in the attached Exhibit "A" is a NULLITY and of

no further force and effect.

DATEDthis 10 dayof_L&~:....._=-.~_. ____ 2010.