IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No.

Toby Fernsler, Pro Se

Plaintiff,v.

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT 2006-14CB); BAYVIEW LOAN SERVICING;KAREN J. RADAKOVICH, ESQ., Reg. No. 11649, in her corporate capacity;KAREN J. RADAKOVICH, ESQ., Reg. No. 11649, in her individual capacity;Frascona, Joiner, Goodman and Greenstein, P.C.; JIM A MARTIN, PUBLIC TRUSTEE OF BOULDER COUNTY; and DOES 1-10 Defendants JURY DEMANDED

VERIFIED COMPLAINTCAUSES OF ACTION

The causes of action brought are:

1)Violation of 42 U.S.C. §1983 of the 14th Amendment (due process and equal protection clauses), 2)

constructive fraud. 3) Actual fraud. 4) Unjust Enrichment. 5) Injunctive Relief under Exparte Young,

6) Violation of the Fair Debt Collection Act. 7) Quiet Title

TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD

HEREIN:

Plaintiffs hereby allege as follows:

JURISDICTION

Jurisdiction of this court arises under 28 U.S.C. §§s 1331 (Federal Question Jurisdiction), 1337(a),

1948, 1949 and 1367(a), 42 U.S.C. §§ 1983, 1988 (civil action for deprivation of rights, §1985(civil

conspiracy to interfere with civil rights, (proceedings in vindication of civil rights) 14TH Amendment

§§s 1, 5, 5th Amendment.

PARTIES

1.Defendant THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT 2006-14CB), aka BONY2006 101 Barclay Street, New York, NY 10286 Karen J. Radakovich, Esq. Reg. No. 11649Frascona, Joiner, Goodman and Greenstein, P.C.4750 Table Mesa Drive, Boulder, CO 80305-5575Phone Number: (303) 494-3000 Fax Number: (303) 494-6309 BAYVIEW LOAN SERVICING, 4425 Ponce De Leon Blvd. 5th Floor, Coral Gables, FL 33146, 1-800-457-5105 BANK OF AMERICA NA, 5401 N Beach St, TX2-977-01-34, Fort Worth, TX 761371-800-854-6885 BOULDER COUNTY PUBLIC TRUSTEE Jim A. Martin , 1790 38th Street, Suite 100 Boulder, CO 80301 303.443.3636 Judge Maria E. Berkenkotter, (NOMINAL DEFENDANT) DISTRICT Court, BOULDER County, Colorado Court Address: 1777 6th street, CO 80302 303-441-3750 BOULDER COUNTY Clerk & Recorder Hillary Hall, (NOMINAL DEFENDANT) 1750 33rd Street, Suite 100 Boulder, CO 80301 303.413.7770

INTRODUCTION

This action arises out of Defendants’ interference with petitioner’s due process and equal protection in

the Rule 120 which was part of a broad and ongoing conspiracy to deprive petitioner of due process in

foreclosure proceedings in order to advance their financial interest. State action exist when the

legislature made and passed Rule 120 (d) which limited what could be determined in the Rule 120

foreclosure to whether the defendant had probably” defaulted on a promissory note and whether the

defendant was subject to the Service Members Relief Act 50 U.S.C. §§3901-4043, with no right to

appeal, no rights for discovery, and no right to counterclaim.

In Amending §38-38-101 et seq through HB06-1387, the legislature did two things. 1. lowered the

standard of proof that a creditor must meet in order to proceed to foreclosure from original

documentary evidence to an unsworn statement; and (2) created an additional burden upon a debtor to

establish evidence of the creditor’s identity which the creditor, itself, is not required to locate. It

allowed copies of the original deed of Trust and Promissory note to be submitted to the court in lieu of

originals, and a Statement of Qualified Holder attesting that the party seeking foreclosure was the Real

Party in Interest without proof. The statement is not an affidavit and is not under penalty of perjury. In

VERIFIED COMPLAINT Page 2

essence it is asking the court to “trust them” on “blind faith”.

Rule 120 hearings do not require plaintiff to prove that it is the Real Party in Interest. Nor does the

court require that the “Trust” prove that it is a “Holder in Due Course” which would qualify it to be the

Real Party in Interest with standing to foreclose as the court in GOODWIN v. DISTRICT COURT, 779

P.2d 837 (1989) had intended.

The passage of HB06-1387 extended the reach of §38-38-101 et seq. to judicial foreclosure making the

Rule 120 procedurally defective.

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE (CWALT

2006-14CB) has initiated 3 other foreclosure cases prior to the last one, Boulder County Case Number

2016CV030755 (Judge Berkenkotter). The first two, 11CV2554 (Judge Bailin) and 12CV2487 (Judge

Bakke), were dismissed because the alleged loan servicer, Bank of America NA, was repeatedly unable

to account for Rule 120 Deferment Payments of $4,339.92 and Loan Modification Trial Payments of

$5,864.46, despite being ordered to do so. Boulder County Case Number 2013CV31045 (Judge Bakke)

was withdrawn.

GENERAL ALLEGATIONS OF FACT

Rule 120 is non-judicial in which an Order Authorizing Sale is not final.

At all times relevant, Plaintiff Toby Fernsler was subjected to a Rule 120.

An Order Authorizing Sale was issued by Judge Maria E. Berkenkotter on October 12th,

2016 on the subject property at 525 South 44th St Boulder CO 80305, which is void ab initio because

the proceedings were conducted in a manner inconsistent with due process in case ,

(2016CV030755) (See Exhibit 1)

The subject property of this foreclosure is “LOT 34, BLOCK 4, THIRD ADDITION TO

MARTIN ACRES, COUNTY OF BOULDER, STATE OF COLORADO more commonly known

as 525 South 44th Street, Boulder CO 80305”

VERIFIED COMPLAINT Page 3

The Order Authorizing Sale makes no speculation as to whether the foreclosing parties were

entitled to foreclose, despite a challenge by defendants that the Trust does not exist, is not "Holder" or a

“Holder in Due Course” (See Exhibit 1 Order Authorizing Sale, Exhibit 2 Avernment of Jurisdiction).

Judge Berkenkotter did not require Bank of New York Mellon to show that they paid value for the note.

In Drafting HB06-1387, legislators extended the reach of §38-38-101 et seq to Judicial

foreclosures (Rule 105) (See Excerpt, HB06-1387, “The Act”, §41 Exhibit 3)

JURISDICTION AND VENUE

The Court has subject matter jurisdiction pursuant to article III, 28 USC 1331.

Article III states that the: "judicial power shall extend to all cases, in law and equity, arising under

this Constitution, the laws of the United States, and Treaties made, or which shall be made under their

Authority."

(See Lindsey vs Normet, 405 U.S. 56, 77 when the court said: “This Court has recognized that,

if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment

does not require a State to provide appellate review.”

Against the back drop of the power of sale foreclosure (non-judicial foreclosure) which is void

ab initio, any eviction should also be void ab initio, and viewed as a malicious abuse of process under

§1983, and by definition a denial of procedural due process.

FIRST CAUSE OF ACTION(42 USC 1983, deprivation of rights under the constitution)

due process-failure of service on rule 120 motion-failures of notification from court-motion for witness granted same day, no notice, objections dismisses without comment-failure to provide jurisdictional hearing as demanded-challenged jurisdiction, was denied jurisdictional hearing Plaintiff repeats and realleges and incorporates by reference all paragraphs for all other causes

of action with the same force and effect as if herein set forth.

VERIFIED COMPLAINT Page 4

42 US 1983 reads:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any Stateor Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the UnitedStates or other person within the jurisdiction thereof to the deprivation of any rights, privileges, orimmunities secured by the Constitution and laws, shall be liable to the party injured in an action at law,Suit in equity, or other proper proceeding for redress, except that in any action brought against ajudicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall notbe granted unless a declaratory decree was violated or declaratory relief was unavailable. For thepurposes of this section, any Act of Congress applicable exclusively to the District of Columbia shallbe considered to be a statute of the District of Columbia.

Section 1 of the 14h Amendment.*** No State shall make or inforce any law which shall abridgethe privileges or immunities of citizens of the United States; nor shall any State deprive any person oflife, liberty, or property, without due process of law; nor deny to any person within its jurisdiction theequal protection of the laws. [B]

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Under “color of state law” defendants knowingly subjected plaintiff to a procedurally defective

Rule 120 under the 14h Amendment.

42 U.S.C. 1983 is such legislation as mentioned in Section 5 of the 14th Amendment giving a

private right of action for damages, and the federal courts original jurisdiction of the cause of action.

Plaintiff is informed and believes and thereon alleges that, at all times herein mentioned, each

of the defendants was the agent and employee of each of the remaining defendants and was at all times

acting within the purpose and scope of such agency and employment and that the acts were done under

color of state law with the aid of a public trustee, an agent of the state as well as legislators, and judges

who are state officials.

At all relevant times herein, Plaintiff had a right under the due process and equal protection

clauses of the state and federal constitutions not to be deprived of his constitutionally protected interest

in his property. U.S.C. Const. Amend. 14;

At all times relevant herein, the defendants were state actors and their conduct was subject to 42

U.S.C. §§’S 1983, 1988. “Private persons, jointly engaged with state officials in the challenged action,

VERIFIED COMPLAINT Page 5

are action ‘under color’ of law for purposes of Section 1983 actions. Dennis v Sparks, 449 U.S. 24, 27-

28 (1980) Lugar v Edmondson Oil Co., Inc., 457 U.S. 922 (1982)

Plaintiff asserts that legislators, judges, public trustees, and sheriffs are state officials for the

purpose of a 1983 claim.

State action exist when there is the ‘overt, significant assistance of state officials,’ like those in

§7. Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 486 (1988)).

State action exists by the use of a state created statute. Lugar, ID., 457 U.S. @ 439-442

In 2006, the Colorado state legislature passed HB06-1387 which amended major portions of the

foreclosure statute 38-38-101 et seq.

Plaintiff Tobiah Fernsler has a fundamental property interest that should not be taken in such

summary proceeding without clear and convincing evidence as required under the 14th Amendment.

Addington v. Texas, 441 U.S. 418 (1979)

In enacting Rule 120 under 120 (d), as well as HB06-1387 which amended §38-38-101 et seq,

Colorado crossed that bright line which forbade states from making laws that abridge citizens of the

United States of the privileges and immunities or in this case of property without due process and equal

protection.

By passage of HB06-1387, the standard of proof, which was required to prove standing, was

eliminated, and the foreclosing attorney and the lenders they served obtained an unfair advantage

which interfered with Plaintiff Tobiah Fernsler’s due process, and can be seen by Judge Berkenkotter

“deeming” BONY2006 as a Real Party in Interest and Holder in Due course in spite of plaintiffs

challenge, without proof, and despite evidence to the contrary. (See Exhibit 1 Order Authorizing

Sale)

In Addington v Texas, 441 U.S. 418 (1979) the court held:

VERIFIED COMPLAINT Page 6

“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to “instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication”.

The Rule 120 non-judicial foreclosure is like no other summary proceeding. It has no right to

appeal, no right to a jury trial, no right to counter-claim, no right to discovery, and the real party in

interest defense has been muted by enactment of HB06-1387 in spite of Goodwin v District Court, 779

P. 2nd 837 (Colo. 1989) which held that “Once the Real Party in Interest defense is raised, the burden of

proof devolves on the party seeking the order of sale to show that he or she is the Real Party in

Interest”.

Colorado FED actions do not have the restrictions that the Rule 120 has. FED actions have a

right to appeal; a right to a jury trial; a right to discovery thus denying a homeowner of the equal

protection of the law when it is available to tenants in FED actions.

A Rule 120 Foreclosure is a summary proceeding administered by a Public Trustee who is an

agent of the state. A judge’s only function is to approve the foreclosure based on two issues: 1. whether

there is a “probable” default; and 2. whether the homeowner is in military service. Any other issues

must be determined in a separate authorized action.

A lender need only show copies of a deed of trust and promissory note and a Statement of

Qualified Holder in essence saying “Trust me”, the lender or the Trust is the Real Party in Interest. It is

not an affidavit or even signed under penalty of perjury.

The Standard of Proof in a Rule 120 is “Reasonable Probability” to take a homeowners’

property.

A “Reasonable Probability standard”, which is lower than a preponderance of the evidence, is

equivalent to a “Probable Cause Standard”, which is so low that it has been held a “Constitutional

Anomaly” (See U.S. v. $49,576.00 U.S. CURRENCY, 116 F.3d 425, when the 9th Circuit at pg. 429

said:

VERIFIED COMPLAINT Page 7

***The Supreme Court in Mathews v. Eldridge, 424 U.S. 319, (1976), held that civil administrative proceedings which result in deprivations of property must provide meaningful due process safeguards. Subsequently, the Court specified that one such safeguard is the imposition of a heightened burden of proof on the government. (Cites)

Finally, we observe that allowing the government to forfeit property based on a mere showing of probable cause is a "constitutional anomaly."*** Burdens of proof are intended in part to "indicate the relative importance attached to the ultimate decision." (Cite) Claimants are threatened with permanent deprivation of their property, from their hard-earned money, to their sole means of transport, to their homes. [B, U]

Depriving a homeowner pursuant to a Rule 120 on what is now the court’s acceptance of a

lenders standing on “Reasonable Probability”” and ‘blind faith”, is no less a “constitutional

anomaly” than the above court observed based on a mere showing of “probable cause”. U.S. VS

JOHNNY VASQUEZ-ALGARIN, No. 15-1941 (10th Circuit, Feb., 2016) citing United States v.

Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995) (“[P]robable cause itself is a doctrine of reasonable

probability and not certainty.”).

Thus by its very nature, the proceedings in a Rule 120 are conducted in a manner

inconsistent with due process.

After the order authorizing sale, the homeowner must be burdened by posting a bond pending

the separate fair action; otherwise the lender will institute eviction proceedings even though the

separate fair action is pending which could reinstate the homeowner to the property.

The issuance by the Public Trustee’s Deed of Trust which wrests the right of title, and the

eviction which removes the homeowner before the separate fair action is a predeprivation, even

temporarily, under the 14th Amendment. Fuentes v. Shevin, 407 U.S. 67, p. 85 (1972)

The Colorado Rule 120 foreclosure proceeding as contoured by the Rule 120 (d) is facially

unconstitutional because it is not a full and fair hearing and there is no right to appeal. Nor does in

contemplate every available defense. Lindsey vs Normet, 405 U.S. 56, 77

The Rule 120 (d) states:

VERIFIED COMPLAINT Page 8

The scope of inquiry at such hearing shall not extend beyond the existence of a default orother circumstances authorizing… and such other issues required by the Service Member CivilRelief Act (SCRA), 50 U.S.C. § 520…Neither the granting nor the denial of a motion under thisRule shall constitute an appealable order or judgment. The granting of any such motion shall bewithout prejudice to the right of any person aggrieved to seek injunctive or other relief in any courtof competent jurisdictio n….[B, I, U] In Lindsey vs Normet, 405 U.S. 56, 77 the court said: “This Court has recognized that, if a full

and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not

require a State to provide appellate review.”

The Rule 120 provides neither a full and fair hearing, nor a right to appellate review. And,

unlike the Fed Action in Lindsey, the Rule 120 precludes many available defenses to the foreclosure as

required for due process under Lindsey,@ 405 U.S. 65, 66, 69; See also Rosenfield v. HSBC Bank,

USA, 681 F.3d 1172, 1206-1208(2012) stating that:

We have no basis to conclude that Rule 120 proceedings contemplate the recognition of a TILArescission defense . Instead, "the Rule 120 hearing is designed to address, in summary fashion, issuesrelated specifically to the existence of a default. " Plymouth Capital Co. v. Dist. Court of Elbert Cnty.,955 P.2d 1014 , 1016 (Colo.1998) (en banc) ..…. ("Rule 120 limits the scope of the…., making itpermissible for the judge to refuse to hear matters outside of that scope….. [A] "Rule 120 hearingis not the proper forum for addressing the various and complex issues that can arise in someforeclosures… It is a "non-judicial foreclosure" hearing, the findings of which are not entitled topreclusive effect. Id. at 1016; see also…120(d).").

Accordingly, the Rule 120 could not hear a RESPA or TILA claim, 1983 claims, other due

process and equal protection claims, or Fraud claims, because, the "Rule 120 hearing is not the

proper forum for addressing the various and complex issues that can arise in some foreclosures,

inasmuch as this would defeat the purpose of the streamlined public trustee foreclosure…" Rosenfield

quoting Plymouth, @ 1017

The Rule 120 proceeding is conducted in a manner inconsistent with due process, and the

court does not have subject-matter jurisdiction over causes of action and defenses other than the

homeowner is not in default and whether the homeowner is subject to the Service Member’s Civil

Relief Act (SCRA 50 U.S.C. §§3901-4043.

VERIFIED COMPLAINT Page 9

By legislative intent, Colorado waived its 11th Amendment sovereignty over any objection to

review by any court of competent jurisdiction to further determinations regarding the Rule 120,

including federal review. See Rule 120 (d)

In Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 373(Rooker-Feldman only

applies, to the extent that state law would give preclusive effect). Colorado law does not give

preclusive effect to the Rule 120 and therefore this court has authority to review the non-final order of

the state court which does not deserve “full faith and credit”. See also In Re Mark Miller vs Deutsch

Bank #11-1232 @ 11, 12; Armstrong v. JPMORGAN CHASE BANK NATIONAL ASSOCIATION,

No. 14-1144(D.C. No. 1:13-CV-02930-RBJ, December 14th, 2015), @ p. 5, fn 3

Plaintiff will file and appropriate motion under Rule 60 (b) (4) at an appropriate time to vacate

the Order Authorizing Sale in the Rule 120, vacate any sale, and require restitution or compensation

from the loss of the property acquired through a void Order of Sale.

SECOND CAUSE OF ACTION( Fraud)

To establish a prima facia case of fraud, a plaintiff must present evidence that the defendantmade a false representation of a material fact; that the party making the representation know itwas false; that the party to whom the representation was made did not know of the falsity; thatthe representation was made with the intent that it be acted upon; and that the representationresulted in damages. Kinsey v. Preeson, 746 P.2d 542, 550 (Colo. 1987) Brody v. Bock, 897 P.2d 769,775-76 (Col. 1995)

Plaintiff repeats and realleges and incorporates by reference all paragraphs for all other causes

of action with the same force and effect as if herein set forth.

Plaintiff believed BONY2006 to possess a right to foreclose as "Owner of the Debt" until this

most recent foreclosure (16CV030755) when new documents were introduced and the distinctions

between "Holder" and "Holder in Due Course" became apparent. Plaintiff has been unable to clarify

what "Owner of the Debt" is intended to denote.

BONY2006 led plaintiff to believe that they were the “owner” of the promissory note by being

VERIFIED COMPLAINT Page 10

a holder of the note and did not disclose that the trust was not a holder in due course.

In court testimony (16CV030755) Bayview Loan Servicing representative Leslie Colazo

testified that Bayview held the Note and Deed of Trust in their archives. When asked for clarification

she stated that Bayview held the Note and not BONY2006. This implies that BONY2006, in whose

name the foreclosure was enacted, was not even the Holder of the Note at the time of foreclosure.

By ignoring this testimony and treating foreclosing parties as Holders in Due Course Judge

Berkenkotter failed to meet even the low standards of a Rule 120 proceeding, which requires the

plaintiff to claim to be Holder of Evidence of Debt.

For the above reasons Judge Berkenkotter's Order Authorizing Sale constitutes a violation of

due process of law, and inflicted real harm upon Toby Fernsler by depriving him of God-given rights

and property.

BONY2006, failed to disclose that it was not holder in due course or Real Party in Interests but

at most interested parties by allegedly that they were holders of the promissory note.

a.Holder in due course defined:A holder in due course must meet five conditions: (1) be a holder; (2) of a negotiable instrument3 whotook it; (3) for value; (4) in good faith; (5) without notice of certain problems with the instrument.6 Id.at § 17-2, 151-52.

Section 4-1-201(b)(20) addresses the definition of a holder:

“Holder” means: (A) The person in possession of a negotiable instrument (See in Clinton Georg andFreestyle Sports Marketing, Inc. v. Metro Fixtures Contractors, Inc. – No. 07SC26 (2008)

1.

2.

3.

4.

5.

6.

VERIFIED COMPLAINT Page 11

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

VERIFIED COMPLAINT Page 12

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

VERIFIED COMPLAINT Page 13

55.

56.

57.Colorado courts are allowed to presume that a “holder of the note” is a “holder in due course” until

the defendant challenges the presumption and the proof is determined at trial of whether the plaintiff is

indeed the owner of the note. See Myrick v. Garcia, 332 P.2d 900 (1958) when the Colorado Supreme

Court held:

Since the adoption of the Negotiable Instruments Act in 1897 this court has held that in an actionon a note where an endorsement is denied by the answer (as *903 here), the mere production ofthe note by the plaintiff is insufficient, that both the execution and endorsement must be proved.Marks v. Munson, 1915, 59 Colo. 440, 149 P. 440. Compare: Gumaer v. Sowers, 1903, 31 Colo.164, 71 P. 1103.

"Every holder is deemed prima facie to be a holder in due course; * * *", the plaintiff, being holder ofthe note in his possession, was entitled to have it admitted in evidence, establishing a prima facie rightto recover thereon.

It is a matter for the defendants to prove at the trial that plaintiff is not the owner (holder) of this note ifthey can do so. Defendants' answer merely had the effect of putting that defense in issue and does notprevent plaintiff from introducing evidence in rebuttal at the proper time. Here the difficulty at the trialarose because plaintiff attempted, on the presentation of his case in chief, to put in evidence matterswhich he need not have proved until defendants' evidence challenged his prima facie title. This mightnot have occurred had the trial proceeded through defendants' evidence.

Defendant Tobiah Fernsler challenged the status of BONY2006 as a holder of the note in due

course. The court in Myrick expressly stated that the defendant had a right to challenge the ownership

status of a plaintiff claiming to be a note holder by showing that the plaintiff was not a holder in due

course even if the plaintiff possessed the note.

Judge Berkenkotter ignored the above Colorado Supreme Court decision to reach her

conclusion without proof that the plaintiffs in that foreclosure (16CV030755) retained a right to

foreclose.

Neither the Colorado Supreme Court in Myrick cited above, or the Colorado Supreme Court in

Clinton Georg and Freestyle Sports Marketing, Inc. v. Metro Fixtures Contractors, Inc. – No.

07SC26 (2008) concluded that mere possession of the negotiable instrument was sufficient to confer

VERIFIED COMPLAINT Page 14

“Holder in due Course” status on a mere holder.

The Supreme Court in GOODWIN v. DISTRICT COURT, 779 P.2d 837 (1989) held that

“Once the Real Party in Interest Defense was raise, the burden was on the party seeking to foreclose

that he or she is the Real Party in Interest”.

Plaintiff did raise the Real Party in Interest defense as well as the Holder in due course defense

at the Hearing on September 19th, 2016.

Judge Berkenkotter willfully blinded herself to the Goodwin ruling and dispensed with the

requirement that BONY2006 show that the Trust was the Real Party in Interest by showing that it was a

holder in due course and thereafter issuing an Order Authorizing Sale.

a.Real Party in Interest as defined by Goodwin, supra at 779 P2d at 844:Colorado Rule of Civil Procedure 17(a) requires that every action "be prosecuted in the name of thereal party in interest." The real party in interest is that party who, by virtue of substantive law, has theright to invoke the aid of the court in order to vindicate the legal interest in question. See 3A J. Moore,Federal Practice ¶ 17.07 (1989); 4 R. Hardaway & S. Hyatt, Colorado Practice, Civil RulesAnnotated, 193-94 (1985). Although the Colorado Rules of Civil Procedure do not expressly designatethe procedure for raising a "real party in interest" defense, we know of no reason to prohibit such adefense from being raised to a Rule 120 motion.1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

VERIFIED COMPLAINT Page 15

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

VERIFIED COMPLAINT Page 16

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

55.

56.

57.

58.

59.

VERIFIED COMPLAINT Page 17

60.

61.

62.

63.

64.As the court in Goodwin said which Judge Berkenkotter was aware of :

Rule 120(a) authorizes "any interested person" to file a motion for an order of sale, and Rule 120(c)permits the debtor to dispute the moving party's entitlement to the order. Implicit in Rule 120 is therequirement that the party seeking an order of sale have a valid interest in the property allegedly subjectto the power of sale. Unless the "real party in interest" defense is considered at a Rule 120 hearing, anyorder for sale might well result in the sale of property in favor of a party who has no legitimate claim tothe property at all. Once a debtor in a Rule 120 proceeding raises the "real party in interest" defense,therefore, the burden should devolve upon the party seeking the order of sale to show that he orshe is indeed the real party in interest. Such an interpretation of Rule 120 is consistent with our priordecision in National Advertising Co. v. Sayers, 144 Colo. 356, 356 P.2d 483 (1960) [B, U]

The court in Goodwin distinguished between a party who is an “interested person” with a

person who is a “Party in Interest” which can easily translate as a mere holder in possession of a

negotiable instrument being an Interested Person” entitled to file a motion for an order of sale, and a

holder in due course which can be considered a “Real Party in Interest” entitled to foreclose.

C.R.C.P. 17 (a) requires that every action "shall” be prosecuted in the name of the real party in

interest."

Since BONY2006 is not the original owner of the note which was MEGASTAR FINANCIAL

CORP., The Trust must show that it is the holder in due course to be the “Real Party in Interest” entitled

to foreclose. (See Deutsche Bank Trust Company Americas vs Samora 2013 COA 81(Colorado,

2013)) holding that:

Here, the trustee is acting for the Trust and advancing a claim on behalf of the Trust. Accordingly, theTrust must satisfy holder in due course status. The parties stipulated that the Trust took the Note andDeed of Trust without actual knowledge of any wrongdoing or fraud. The record indicates that theTrust gave value for the Note and Deed of Trust.

No finding that the Trust paid value for the promissory note was ever made in this case because

Judge Berkenkotter decided to deem the Trust both a holder in due course and therefore the Real

VERIFIED COMPLAINT Page 18

Party in Interest over the defendant’s challenge to both assertions.

By not requiring the proof, Judge Berkenkotter violated her duty to conduct a fair hearing

which was inconsistent with due process in the Rule 120 foreclosure proceeding.

THIRD CAUSE OF ACTION(ACTUAL FRAUD)

Plaintiff repeats and realleges and incorporates by reference all paragraphs for all other causes

of action with the same force and effect as if herein set forth.

In the United States, common law generally identifies nine elements needed to establish fraud:

(1) a representation of fact; (2) its falsity; (3) its materiality; (4) the representer’s knowledge of its

falsity or ignorance of its truth; (5) the representer’s intent that it should be acted upon by the person in

the manner reasonably contemplated; (6) the injured party’s ignorance of its falsity; (7) the injured

party’s reliance on its truth; (8) the injured party’s right to rely thereon; and (9) the injured party’s

consequent and proximate injury. See, e.g., Strategic Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197,

1210 n.3, 2012 U.S. App. LEXIS 1175, at *25 n.3 (9th Cir. 2012) (quoting Staheli v. Kauffman, 122

Ariz. 380, 383, 595 P.2d 172, 175 (1979));

a representation of fact;

On July 6, 2016 attorneys for BONY2016 filed a Rule 120 VERIFIED MOTION FOR ORDER

AUTHORIZING SALE (2016CV030755, Exhibit 4), and attached as exhibits copies of: NOTE

(Exhibit 5), DEED OF TRUST (Exhibit 6), ASSIGNMENT OF DEED OF TRUST dated 2011-07-15

(Exhibit 7), ASSIGNMENT OF DEED OF TRUST dated 2016-02-18 (Exhibit 8), and MAILING LIST

(Exhibit 9).

On 2016-05-06 a NOTICE OF ELECTION AND DEMAND FOR SALE (exhibit 15) was

submitted to the Boulder Countee Trustee, along with NOTE (Exhibit 5), DEED OF TRUST (Exhibit

6), ASSIGNMENT OF DEED OF TRUST dated 2011-07-15 (Exhibit 7), ASSIGNMENT OF DEED

VERIFIED COMPLAINT Page 19

OF TRUST dated 2016-02-18 (Exhibit 8), and MAILING LIST (Exhibit 9).

On 2011-07-20 ASSIGNMENT OF DEED OF TRUST dated 2011-07-15 (Exhibit 7) was

submitted by Bank of America to the Boulder County Clerk and Recorders office, and "Recorded as

Received" as record 03160098. This does not appear in searches on property address or plaintiff name.

The existence of this document was not discovered by plaintiff until it was submitted for court

consideration.

In 2016-02-22 ASSIGNMENT OF DEED OF TRUST dated 2016-02-18 (Exhibit 8) was

submitted by CT LIEN SOLUTIONS to the Boulder County Clerk and Recorder and recorded as

record 0302207.

On July 21, 2016 I, Toby Fernsler, submitted Avernment of Jurisdiction (Exhibit 10) with one

exhibit; Transfer of Debt (Exhibit 11) to case 2016CV030755 as evidence for fraud.

On September 15, 2016 I, Toby Fernsler, submitted as a second exhibit to case 2016CV030755

a correspondence with Bayview as to the holder in due course (Exhibit 12).

In trial for case 2016CV030755 attorney for plaintiff Karen J. Radakovich submitted "Exhibit

G Assignment of Bayview as attorney" (Exhibit 13).

In trial testimony for case 2016CV030755 Leslie Collazo for alleged servicer Bayview Loan

Servicing claimed that Bayview retained the original Note and Deed of Trust in their archives, and that

she had not verified this or knew of their specific location.

In trial testimony for case 2016CV030755 Leslie Collazo for alleged servicer Bayview Loan

Servicing testified that she had not communicated with BONY2006 about this case, nor had contacts or

instructions from them.

In trial for case 2016CV030755 Karen J. Radakovich stated that she had not communicated

with BONY2006 about this case, nor had contacts or instructions from them.

its falsity;

VERIFIED COMPLAINT Page 20

harp v. Idaho Inv. Corp., 95 Idaho 113, 122, 504 P.2d 386, 395 (1972) (reasoning that “oral

representations, written false statements, and material omissions” could all sufficiently constitute a

representation”); see (Schmeusser v. Schmeusser, 559 A.2d 1294, 1297, 1989 Del. LEXIS 165, at *7

(Del. Supr. 1989)

Rule 120 VERIFIED MOTION FOR ORDER AUTHORIZING SALE (2016CV030755, Exhibit 4)

Rule 120 VERIFIED MOTION FOR ORDER AUTHORIZING SALE (2016CV030755,

Exhibit 4) Karen Radokivich states that BONY2006 "is the current owner of such evidence of debt"

and that "The said Deed of Trust conveys a power of sale to the Public Trustee of the County..", without

clarifying that BONY2006 is not Holder in Due Course and has no right to enforce said Deed of Trust.

In the Rule 120 VERIFIED MOTION FOR ORDER AUTHORIZING SALE (2016CV030755,

Exhibit 4) Karen Radokivich states that "The names of the Grantor(s) of the said Deed of Trust, the

current record owner and all persons who appear to have acquired a record interest in the said real

property subsequent to the recording of the said Deed of Trust and prior to the recording of the notice

of election and demand for sale, including all persons believed by Applicant to be personally liable

upon the within indicated evidence of debt secured by the within Deed of Trust, and the address of each

such person as such address is set forth in the recorded written instruments are set forth in the attached

"Exhibit C," which is hereby incorporated herein by this reference."

An examination of MAILING LIST (Exhibit 9), shows that the following persons who appear in the

chain of title have not been listed or contacted: The Bank of New York Mellon FKA The Bank of

New York, as Trustee (CWALT 2006-14CB), MERS, Mortgage Electronic Records Servicing,

MegaStar, Countrywide Bank N.A., Countrywide Home Loans Inc., "Countrywide Home", Bank of

America, Bank of America N.A., and The Bank of New York Mellon FKA The Bank of New York, as

Trustee for the Certificate holders CWALT, Inc., Alternative Loan Trust 2000-14CB(sic) Mortgage

Pass-Through Certificates, Series 2006-14CB.

VERIFIED COMPLAINT Page 21

Instead a number of unrelated persons have been listed, namely Bayview Loan Servicing, Bank of

America c/o Corelogic, and The Bank of New York Mellon FKA The Bank of New York, as Successor

Trustee to JPMorgan Chase Bank, N.A., as Trustee on Behalf of Certificate holders of The CWHEQ

Inc., CWHEQ Revolving Home Equity Loan Trust, Series 2006-D c/o BAC.

Thus Karen Radokivich in the Rule 120 VERIFIED MOTION FOR ORDER AUTHORIZING SALE

(2016CV030755, Exhibit 4) is false.

In the Rule 120 VERIFIED MOTION FOR ORDER AUTHORIZING SALE (2016CV030755,

Exhibit 4) states "COMES NOW the Applicant, by and through its attorneys..". Black's Law 5th Ed.

defines applicant "An applicant, as for letters of administration, is one who is entitled thereto, and who

files a petition asking that letters be granted." defines letters of administration as "Formal document

issued by probate court appointing one an administrator of an estate." and defines Administrator as "A

person appointed by the court to administer (i.e., manage or take charge of) the assets and liabilities of

a decedent (Le., the deceased). Such person may be a male (i.e., administrator) or a female (i.e.,

administratrix). If the person performing these services is named by the decedent's will, he is

designated as the executor, or she the executrix, of the estate.

An instrumentality established by law for performing the acts necessary for transfer of effects left by

deceased to those who succeed to their ownership. Behnke v. Geib, D.C.Md., 169 F. Supp. 647, 650."

Defendants have made a false claim in status as applicant. I, Toby Fernsler aka Tobiah Peter

Fernsler, am a living natural man, speaking here in Propria persona, reserving all rights without

prejudice, and claim the estate of TOBIAH PETER FERNSLER. This estate has never been knowingly

or willingly surrendered or abandoned by said man. NOTE (Exhibit 5)

On the NOTE (Exhibit 5) submitted in case 2016CV030755 and Trustee action 16-27548 on

page 3 there is a stamp signed by AMBER CARDAMORE which appears to transfer ownership from

MegaStar to Countrywide Bank N.A., and then another stamp transferring ownership from

VERIFIED COMPLAINT Page 22

Countrywide Bank N.A. to Countrywide Home Loans Inc. signed by Laurie Mendor, SVP. There are

no dates for these transactions, but it is reasonable to assume they occurred after the March 3, 2006

signing and before the January 2008 collapse of Countrywide. A third endorsement in blank

transferring ownership from Countrywide Home Loans Inc. is signed by Michelo Sjaftendar, SVP.

None of these endorsements are signed by the recipient, and they are not notarized. It is impossible to

confirm the validity of these assignments, and they do not meet the simple conditions needed to

properly endorse a check. Thus there is a failure of consideration on the NOTE (UCC 2-201).

It should be noted that Defendants(s) have not claimed or stated ownership to this NOTE, and

yet are acting as if they are Holder in Due Course with full rights under UCC Article 3.

see Neil Garfield article "Self Serving Fabrications: Watch for "Attorney in Fact" (Exhibit 14)

DEED OF TRUST (Exhibit 6) "DEED OF TRUST" has the handwritten memorandum "Countrywide

Home" and "11781558511" on the top of the first page, and bears the stamp of Boulder County Clerk

dated 04/03/2006. It is not signed, dated or notarized. Thus there is a failure of consideration on the

NOTE (UCC 2-201).

ASSIGNMENT OF DEED OF TRUST dated 2011-07-15 (Exhibit 7)

ASSIGNMENT OF DEED OF TRUST dated 2011-07-15 (Exhibit 7) states:

"For Value Received, the undersigned holder of Deed of Trust (herein "Assignor") whose address is3300 S.W. 34th Avenue, Suite 101 Ocala, FL 34474 does hereby grant, sell, assign transfer and conveyunto THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEEFOR THE CERTlFICATE HOLDER SCWALT, INC., ALTERNATIVE LOAN TRUST :2006-14CBMORTGAGE PASS-THROUGH CERTIFICATES, SERlES 2006-14CB whose address is 101BARCLAY ST - 4W, NEW YORK,NY 10286 all beneficial interest under that certain Deed of Trustdescribed below together with the notes(s) and obligations therein described and the money due and tobecome due thereon with interest and all rights accrued or to accrue under said Deed of Trust."Public records show address 3300 S.W. 34th Avenue, Suite 101 QQla, FL 34474 listed as that ofMERS Inc. The document is signed by Cynthia Santos, Assistant Secretary to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC and notarized by Penny Russo Marchal.

Page 48 of MERS Procedure Manual (Exhibit 16) states:

"Although MERS tracks changes in ownership of the beneficial rights for loans registered on the

VERIFIED COMPLAINT Page 23

MERS® System, MERS cannot transfer the beneficial rights to the debt. The debt can only betransferred by properly endorsing the promissory note to the transferee."

Thus by MERS procedure this assignment is invalid and void.

The existence of this alleged assignment also demonstrates that defendant(s) view the assignee

and assignor as separate entities.

ASSIGNMENT OF DEED OF TRUST dated 2011-07-15 (Exhibit 7) is not signed by the

assignee, assignor, myself or my representative. It is therefore void (UCC 2-201).

ASSIGNMENT OF DEED OF TRUST dated 2011-07-15 (Exhibit 7) states "For Value

Received" but does not state that value, and no other evidence is presented that it was purchased for

value. Therefore I refute the claim that it was purchased for value or that beneficial interests could be

transferred.

ASSIGNMENT OF DEED OF TRUST dated 2011-07-15 (Exhibit 7) was recorded for Bank of

America and signed by MERS, with no indication that anyone with a known interest was involved.

ASSIGNMENT OF DEED OF TRUST dated 2011-07-15 (Exhibit 7) claims a transfer from

MEGASTAR FINANCIAL CORP. and MORTGAGE ELECTRONIC REGISTRATION

SYSTEMS, INC to assignee without consideration of the prior assignment to Countrywide. The failure

to ackowledge or release that prior assignment makes this one void. In addition, MEGASTAR

FINANCIAL CORP. has no interest or right to make such an assignment a second time.

ASSIGNMENT OF DEED OF TRUST dated 2016-02-18 (Exhibit 8)

ASSIGNMENT OF DEED OF TRUST dated 2016-02-18 (Exhibit 8) was recorded for CT

LIEN SOLUTIONS with Boulder County Clerk, CO number 03502207, and signed by ROBERT G.

HALL VICE-PRESIDENT of Bayview Loan Servicing. Neither assignee, assignor, or representative

for party against whom enforcement is sought signed this, making it a void assignment.

Transfer of Debt (Exhibit 11)

VERIFIED COMPLAINT Page 24

Transfer of Debt (Exhibit 11) prepared by Aranowitz and Mecklenburg, LLP states

"THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR

THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-14CB

MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-14CB has since transferred and

assigned the debt to The Bank of New York Mellon FKA The Bank of New York as Trustee (CWALT

2006-14CB)"

and lists a Sales Date of January 22, 2014. This is endorsed solely by Aranowitz and Mecklenburg, LLP

as attorneys for the floreclosing party, with no other documents to verify this "Transfer". The term

"transfer of debt" is not clarified. While this document does not appear in any way to be a valid

assignment, it is notably in conflict with ASSIGNMENT OF DEED OF TRUST dated 2016-02-18

(Exhibit 8), as they appear to claim an identical transfer two years apart. Both of these claims cannot be

true, and as fraud vitiates a contract, this is substantial evidence of failure of consideration and that the

mortgage contract has been rendered void.

In correspondence with Bayview (Exhibit 12), Bayview states that the "You requested

information about the current owner of your loan . The current owner of your loan is: Bank of America

807-29 Bony (CWALT 2006-14CB) 7105 Corporate Drive Plano, TX 75024". This is neither the name

or address of any party who has claimed rights to debt, Deed of Trust or Note. Bayview is clearly

reckless in its statements concerning ownership of the debt they claim to service.

"Exhibit G Assignment of Bayview as attorney" (Exhibit 13)

"Exhibit G Assignment of Bayview as attorney" (Exhibit 13) on the cover page states

"EXECUTED BY: THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, as

Trustee" and "Seller and Purchaser Dated 06/28/2011". This date is prior to any date by any variation

on the name "Bank of New York" claimed in filed documents for acquisition of the loan, debt, Deed of

Trust, or Note. Thus this document is false and void. It also exposes the later assignments as evidence

VERIFIED COMPLAINT Page 25

of fraud.

"Exhibit G Assignment of Bayview as attorney" (Exhibit 13) claims to be executed by " THE

BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, as Trustee" and lists a number

of POOLING AND SERVICING AGREEMENTS, including CWALT-2006CB. Thus they are claiming

to be the second "BANK OF NEW YORK" in the alleged chain of title, who first make claim to

ownership of the NOTE and DEED OF TRUST on January 22, 2014. Exhibit 13 was signed on

October 1, 2012, long before they claim ownership of the loan, debt, Deed of Trust, or Note. No person

can assign rights they do not possess, so this instrument is void and false.

"Exhibit G Assignment of Bayview as attorney" (Exhibit 13) states

"The rights, power, and authority of said attorneys-in-fact and agents granted in this Limited Power of

Attorney will commence and be in full force and effect on the date of execution and such rights,

powers, and authority will remain in full force and effect until the earlier of (x) 11:59 p.m., New York

City time, on the date that is one (1) year from such date and (y) the date, if any, on which Bayview is

no longer an "Approved Sub servicer" under the Settlement Agreement; provided, however, that BNY

Mellon may terminate this Limited Power of Attorney prior to such date by delivering a written notice

of revocation to Bayview, with a copy to the Master Servicer. "

Thus this assignment expired at latest on October 1, 2013, and Bayview had no right to act as servicer

as they have repeatedly claimed in personal communications nor act as attorney-in-fact for foreclosure

16-27548.

its materiality;

“[t]o be material, the false statement does not have to actually contribute to a loss under the

[contract],” instead, it just needs to induce the other party to act. Prudential Ins. Co., 78 N.M. at 104-

05, 428 P.2d at 643-44.

Each and every document previously discussed and submitted for consideration to Boulder

VERIFIED COMPLAINT Page 26

County Clerk and Recorder, Boulder County Trustee and Boulder District Court are material to the

claim of ownership and a right to collect and foreclose under applicable law. They were each submitted

with the intent that myself, the County of Boulder, and its people act as if they were valid.

the representor’s knowledge of its falsity or ignorance of its truth;

The fourth common law fraud element requires the representor to either have knowledge of the

representation’s falsity or else be reckless in his ignorance of its truth. “False representations made

recklessly and without regard for their truth in order to induce action by another are the equivalent of

misrepresentations knowingly and intentionally uttered.” Engalla v. Permanente Med. Grp., Inc., 15

Cal. 4th 951, 974, 938 P.2d 903, 917 (1997) (quoting Yellow Creek Logging Corp. v. Dare, 216 Cal.

App. 2d 50, 55, 30 Cal. Rptr. 629, 632 (Cal. Ct. App. 1963); see Anderson v. Knox, 297 F.2d 702, 720-

21, 1961 U.S. App. LEXIS 3058, at *55-56 (9th Cir. 1961) (reasoning that the “knowledge”

requirement is satisfied if it is shown that the representations were made with reckless disregard for

their truth or falsity); see citing Nielson v. Flashberg, 101 Ariz. 335, 339, 419 P.2d 514, 518 (1966)

(reasoning that a representation purporting to show laden and unladen weight of plaintiff’s truck was

fraudulent when defendant knew the truck had not been weighed).

“Knowledge of falsity can be adequately pleaded by alleging facts that constitute strong circumstantialevidence of conscious misbehavior or recklessness which lead to an inference that the defendants knew of the falsity.” Adelphia Recovery Trust v. Bank of Am., 624 F. Supp. 2d 292, 329, 2009 U.S. Dist. LEXIS 3834, at *109 (S.D.N.Y. 2009) (citing Lerner v. Fleet Bank, F.3d 273, 293, 2006 U.S. App. LEXIS 20326, at *47 (2d Cir. 2006)).

For example, “a definite statement of a material fact made by a party who does not know the statementto be true, and has no reasonable grounds for believing it to be true, will, if false, have the same legal effect as a statement of what the party positively knows to be untrue.” State ex. Rel. Redden v. Disc. Fabrics, Inc., 289 Or. 375, 385, 615 P.2d 1034, 1039 (1980) (quoting Amort v. Tupper, 204 Or. 279, 287, 282 P.2d 660, 663-64 (1955).

Karen Radokivich as attorney for plaintiff in 2016CV030755 stated in trial that she was not in

contact with BONY2016. Thus she is reckless in submitting the above documents, which did not

VERIFIED COMPLAINT Page 27

originate with the foreclosing party, and in not investigating their veracity.

Karen Radokivich as attorney for plaintiff in 2016CV030755 submitted 94. "Exhibit G

Assignment of Bayview as attorney" (Exhibit 13) as evidence that Bayview had a right to act on behalf

of BONY2016 and for witness for Bayview to testify. A brief reading of the document would have

made it clear that it was expired, and had originated prior to any claimed ownership.

In trial testimony for case 2016CV030755 Leslie Collazo for alleged servicer Bayview Loan

Servicing testified that she had not communicated with BONY2006 about this case, nor had contacts or

instructions from them. It is reckless to act on behalf of a party without communicating with them at

all.

77. In trial testimony for case 2016CV030755 Leslie Collazo for alleged servicer Bayview

Loan Servicing claimed that Bayview retained the original Note and Deed of Trust in their archives,

and that she had not verified this or knew of their specific location. This also amounts to a reckless

claim, and places the burden of proof upon a party, myself, who has no power to verify or disprove

such a claim as the documents are not in my possession or reach.

Bank of America acted recklessly in submitting ASSIGNMENT OF DEED OF TRUST dated

2011-07-15 (Exhibit 7) to the Boulder County Clerk and Recorders office. They are owners of MERS

and should be very aware that MERS cannot transfer the beneficial rights to the debt.

Bayview Loan Servicing acted recklessly in filing for foreclosure when they knew they had no

authority to foreclose and that each and every document they submitted was void.

Judge Berkenkotter acted recklessly in accepting disputed evidence and submitting an order

authorizing (expedited) sale without weighing the overwhelming indications of false and fraudulent

evidence.

BOULDER COUNTY PUBLIC TRUSTEE Jim A. Martin acted recklessly in accepting a fourth

foreclosure action without carefully examining the evidence submitted.

VERIFIED COMPLAINT Page 28

BOULDER COUNTY Clerk & Recorder Hillary Hall acted recklessly in accepting without

examination the documents described. While ASSIGNMENT OF DEED OF TRUST dated 2011-07-15

(Exhibit 7) with reservation, it should have been refused and the existence of it places a cloud on

property title.

the representor’s intent that it should be acted upon by the person in the manner reasonably

contemplated;

“[T]he fundamental character of fraud is the communication of a misimpression to induce another to

rely on it.” Estate of Schwarz v. Philip Morris, Inc., 206 Or. App. 20, 39, 135 P.3d 409, 422 (Or. Ct.

App. 2006). “An unperformed promise does not give rise to a presumption that the promisor intended

not to perform when the promise was made.” Bash v. Bell Tel. Co., 411 Pa. Super. 347, 361, 601 A.2d

825, 832 (Pa. Super. Ct. 1992) (quoting Fidurski v. Hammill, 328 Pa. 1, 3, 195 A. 3, 4 (1937)).

However, “[a] defendant who acts with knowledge that a result will follow is considered to intend the

result.” Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 578, 2001 Tex. LEXIS 61, at

*16 (2001); Elizaga v. Kaiser Found. Hospitals, 259 Ore. 542, 548, 487 P.2d 870, 874 (1971).

Attorneys for foreclosing parties submitted their false evidence in support of foreclosure. It was

clearly intended to convince I Toby Fernsler, BOULDER COUNTY Clerk & Recorder Hillary Hall,

BOULDER COUNTY PUBLIC TRUSTEE Jim A. Martin, and BOULDER DISTRICT Judge

Berkenkotter of the validy of their claims.

the injured party’s ignorance of its falsity;

Burris v. Burris, 904 S.W.2d 564, 568, 1995 Mo. App. LEXIS 1398, at *9-10 (Mo. Ct. App. 1995)

(reasoning that a plaintiff ’s knowledge of some of the concealed items would not prevent a finding of

fraud based on the concealment of others).

I, Toby Fernsler, acted in good faith and belief in the validity of claims when making payments

to Countrywide and Bank of America, when negotiating for refinancing, and even when disputing the

VERIFIED COMPLAINT Page 29

first three foreclosures.

BOULDER COUNTY Clerk & Recorder Hillary Hall, BOULDER COUNTY PUBLIC

TRUSTEE Jim A. Martin, and BOULDER DISTRICT Judge Berkenkotter also represent injured

parties, who accepted false documents into record under the assumption of their truthfulness. This

represents fraud upon the people and County of Boulder.

Injured Party’s Actual Reliance on the Truth of the Representation

“Actual reliance occurs when a misrepresentation is ‘an immediate cause of a plaintiff ’s conduct,

which alters his legal relations,’ and when, absent such representation, ‘he would not, in all reasonable

probability, have entered into the contract or other transaction.’” Engalla, 15 Cal. 4th at 976, 938 P.2d

at 919 (quoting Spinks v. Clark, 147 Cal. 439, 444, 82 P. 45, 47 (1905). Markedly, “it is not logically

impossible to prove reliance on an omission.” Mirkin v. Wasserman, 5 Cal. 4th 1082, 1093, 858 P.2d

568, 574 (1993). Indeed, a plaintiff “need only prove that, had the omitted information been disclosed,

one would have been aware of it and behaved differently.” Id.

Countrywide+ represented itself as the Holder in Due Course and True Party in Interest, and I

Toby Fernsler faithfully made payments to them based on their claim and documentation. There was no

cause at that time to doubt their veracity or carefully examine complex legal contracts and law.

Bank of America represented itself as successor to Countrywide+, and I Toby Fernsler

faithfully made payments to them based on their claim and documentation. There was no cause at that

time to doubt their veracity or carefully examine complex legal contracts and law.

BONY2006 represented itself as Holder in Due Course, and I Toby Fernsler faithfully

negotiated with them in the first three foreclosure actions.

Attorneys for BONY2006 and Bayview represented themselves as Holder in Due Course, and

BOULDER COUNTY Clerk & Recorder Hillary Hall, BOULDER COUNTY PUBLIC TRUSTEE Jim

A. Martin, and BOULDER DISTRICT Judge Berkenkotter relied on the truthfulness of these claims.

VERIFIED COMPLAINT Page 30

Injured Party’s Right to Rely on the Representation

The question of whether a party had a right to rely on a defendant’s representation “must be answered

in light of all of the facts of which the plaintiff[] had actual knowledge as well as those which [she]

might have discovered by the exercise of ordinary prudence.” Salisbury v. Chapman Realty, 124 Ill.

App. 3d 1057, 1063, 465 N.E.2d 127, 132 (Ill. App. Ct. 1984) (citing Soules v. General Motors Corp.,

79 Ill. 2d 282, 286-87, 402 N.E.2d 599, 601 (1980)).

I, Toby Fernsler, acted in good faith and belief in the validity of claims when considering the

claims of the servicers, based on complex contract documents and the acceptance of them by applicable

government authorities. It was my belief that the contracts and laws acted both in my interest and the

lender's, and that these documents which are now without consideration and void, were valid

instruments.

the injured party’s consequent and proximate injury.

“It is of the very essence of an action of fraud and deceit that the same shall be accompanied by

damage, and neither damnum absque injuria nor injuria absque damnum by themselves constitute a

good cause of action.” George Hunt, Inc. v. Wash-Bowl, Inc., 348 So. 2d 910, 912, 1977 Fla. App.

LEXIS 15920, at *5 (Fla. Dist. Ct. App. 1977) (quoting Stokes v. Victory Land Co., 99 Fla. 795, 802,

128 So. 408, 410 (1930));a plaintiff is not harmed if she is “in exactly the same situation” before and

after the representation. Rice, 268 Ore. at 128-29, 519 P.2d at 1265

By making installments payments to Countrywide+ and Bank of America based on false claims,

injury has resulted in the form of financial loss. At the same time risk was created by double-jeopardy

towards the True Party in Interest and Holder in Due Course.

Injury was inflicted on the original lender by selling them a void instrument and non-existent

Trust.

Injury has resulted by creating a cloud on title, making it difficult or impossible to sell, insure,

VERIFIED COMPLAINT Page 31

or refinance the property.

Injury was inflicted on the County of Boulder by fraudulently altering land-title records, as well

as disrupting and devaluing community with false accusations and threats.

Injury was inflicted by false claims of default, resulting in a loss in social standing and credit

worthiness.

Injury has resulted on the emotional and psychological well-being of myself, Toby Fernsler, my

family, my friends, family, and my neighbors.

FOURTH CAUSE OF ACTION(UNJUST ENRICHMENT)

The retention of a benefit conferred by another, that is not intended as a gift and is not legallyjustifiable, without offering compensation, in circumstances where compensation is reasonablyexpected.

The elements of a cause of action for unjust enrichment are: the enrichment of the party accused ofunjust enrichment; that such enrichment was at the expense of the party seeking restitution; and thecircumstances were such that in equity and good conscience restitution should be made. An additionalrequirement is that the party accused of unjust enrichment must know of the benefit conferred; toensure that the benefit was not foisted on the recipient and is something for which compensation isreasonably expected.

Plaintiff repeats and realleges and incorporates by reference all paragraphs for all other causes

of action with the same force and effect as if herein set forth.

As the Goodwin court at 779 P. 2, p. 843 said:

Unless the “real party in interest” defense is considered at a Rule 120 hearing, any order for sale mightwell result in the sale of property in favor of a party who has no legitimate claim to the property at all.Once a debtor in a Rule 120 proceeding raises the “real party in interest” defense, therefore, theburden should devolve upon the party seeking the order of sale to show that he or she is indeedthe real party in interest.

The court’s resolution of the Rule 120 motion, therefore, should necessarily encompass a considerationnot only of the evidence offered by the creditor seeking the order of sale but also of any evidenceoffered by the debtor to controvert the moving party’s evidence or to support a legitimate defense to themotion. A court’s refusal to consider such properly offered evidence in resolving the issue ofdefault adversely to the debtor is tantamount to the taking of property in a summary fashionwithout any hearing at all—a deprivation clearly violative of due process of law.

VERIFIED COMPLAINT Page 32

Judge Berkenkotter’s refusal to require BONY2006 to prove that the Trust was the Real Party

in Interest by showing that it was “Holder in due course” was, as the court in Goodwin at 779 P2d at p.

843 said: “tantamount to the taking of property in summary fashion without any hearing at all—a

deprivation clearly violative of due process of law” which shows that her proceedings in the Rule 120

were conducted in a manner inconsistent with due process.

Defendant BOULDER COUNTY PUBLIC TRUSTEE Jim A. Martin, (NOMINAL

DEFENDANT) is the Public Trustee of 1750 33rd Street, Suite 100 Boulder, CO 80301, and is in

charge of the Administration of the foreclosure sales and issuing a Public Trustee Deed by way of a

confirmation deed to any new purchaser. By recklessly accepting four foreclosure actions on the same

property and billing for them they have unjustly sought to enrich themselves and the foreclosing

parties.

Defendant THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS

TRUSTEE (CWALT 2006-14CB) has gained unjust enrichment at the expense of BOULDER

COUNTY and its Clerk & Recorder Hillary Hall, by failing to record all transactions and trades on the

mortgage and pay the associated fees.

Defendant THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS

TRUSTEE (CWALT 2006-14CB), aka BONY2006 by seeking to seize property to which it has no

valid claim.

Defendant Karen J. Radakovich, Esq. working for Frascona, Joiner, Goodman and Greenstein,

P.C. have sought to unjustly enrich themselves by charging excess legal fees, as well as fees for

previous foreclosures not brought by them.

BAYVIEW LOAN SERVICING, knowingly submitted false information, bills, and legal

actions for the purposes of seizing property and assets to which they were not entitled.

BANK OF AMERICA NA knowingly submitted false information, bills, and legal actions for

VERIFIED COMPLAINT Page 33

the purposes of seizing property and assets to which they were not entitled.

Countrywide knowingly submitted false information, bills, and legal actions for the purposes of

seizing property and assets to which they were not entitled.

FIFTH CAUSE OF ACTION(Exparte Young Injunction)

Plaintiff repeats and realleges and incorporates by reference all paragraphs for all other causes

of action with the same force and effect as if herein set forth.

Plaintiff Tobiah Fernsler has alleged that the state foreclosure in the Rule 120 as seen through

120 (d) and in §38-38-101 as amended by HB06-1387 is procedurally defective under the 14th

Amendment section 1, and therefore unconstitutional and entitled to injunctive relief under Ex Parte

Young, 209 U.S. 123, 126 (1908) which states:

The various authorities we have referred to furnish ample justification for the assertion thatindividuals who, as officers [209 U.S. 123, 156] of the state, are clothed with some duty in regardto the enforcement of the laws of the state, and who threaten and are about to commenceproceedings, either of a civil or criminal nature, to enforce against parties affected anunconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court ofequity from such action.[B, U]

Plaintiff alleges that under Ex Parte Young, 209 U.S. 123, 126, 157 ¶ 81 (1908), the Public

Trustee, Jim A. Martin as an official of the state is a proper defendant to enjoin her from proceeding

from a sale of Plaintiff’s property and issuing of a Public Trustee’s Deed which leads to the lender

filing a Fed action which is a predeprivation.

The Public Trustee, who is an agent of the state, has a close connection to the challenged statutes, and

is representative of the state, thus making the State of Colorado a party to this action. (See Exparte

Young 209 U.S. p. 157 ¶ 83)

Judge Elizabeth Berkenkotter, is an agent of the state, has a close connection to the

challenged statutes, and is representative of the state, thus making the State of Colorado a party to this

action. (See Exparte Young 209 U.S. p. 157 ¶ 83)

VERIFIED COMPLAINT Page 34

SIXTH CAUSE OF ACTION(Violation of the Fair Debt Collection Practices Act, aka FDCPA)

Plaintiff repeats and realleges and incorporates by reference all paragraphs for all other causes

of action with the same force and effect as if herein set forth.

Throughout Rule 120 foreclosure 2016CV030755, Bayview has continued to send bills for

mortgage payments and late charges(Exhibit 17), despite the fact that in a Rule 120 foreclosure the

Trustee holds the property in Trust. Payments made to the Servicer or Lender are of no effect to the

default while a foreclosure in occuring, and are precluded by the FDCPA.

Defendant(s) have violated the FDCPA through submission and use of fraudulent

documentation and communications.

SEVENTH CAUSE OF ACTION(Quiet Title)

Plaintiff complains and for causes of action alleges as follows:

Plaintiff repeats and realleges and incorporates by reference all paragraphs for all other causes

of action with the same force and effect as if herein set forth.

Plaintiff TOBY FERNSLER is, and at all times mentioned in this complaint was, a resident of

Boulder County, Colorado.

Defendant BONY2016, and at all times mentioned in this complaint is, a corporate resident of

101 Barclay Street, New York, NY 10286.

Claim of Rightful Ownership: I Toby Fernsler am the rightful owner and trustor of said

property, as described in the Title, and Deeds of Trust (Exhibit 6) and NOTE (Exhibit 5) and recorded

at the Boulder County Clerk and Recorder's Office. He has owned the house since March 2001, made

significant improvements to the property (Exhibit 18-stairwell and windows), is an active and

contributing member of the local community (Exhibit 19-"How to Flood-Proof your Basement"), and

VERIFIED COMPLAINT Page 35

currently resides there with his wife and daughter.

Plaintiff does not know the true names of defendants all persons unknown, claiming any legal

or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to

plaintiff's title or any cloud on plaintiff's title thereto and DOES 1 through 10, inclusive, and therefore

sues them by those fictitious names. The names, capacities and relationships of DOES 1 through 10

will be alleged by amendment to this complaint when they are known.

Plaintiff is informed and believes and on that basis alleges that each of the DOE defendants

claims, or may claim, some interest in the real property described in paragraph 11 of this

complaint.

Plaintiff is the owner of real property located in Boulder County, Colorado and more

specifically described as: “LOT 34, BLOCK 4, THIRD ADDITION TO MARTIN ACRES,

COUNTY OF BOULDER, STATE OF COLORADO more commonly known as 525 South 44th

Street, Boulder CO 80305”.

Numerous deficiencies in the title were noted in a Chain of Title Assessment conducted in 2012

(Exhibit 20), leading investigator to conclude the chain of title was broken.

As noted in the previous section, "Actual Fraud", numerous fraudulent documents exist in the

chain of title, which cloud title and are cause for further discovery and remedy.

DEMAND FOR REMEDY

WHEREFORE, plaintiff TOBY FERNSLER demands judgment against defendants as follows:Wherefore, Plaintiffs pray for judgment against the Defendants and each of them, jointly and

severally, as follows:

VERIFIED COMPLAINT Page 36

120.For a declaration of the rights and duties of the parties, specifically that the foreclosure of

Plaintiffs’ residence was void ab initio because the Colorado Rule 120 proceeding were conducted in

a manner inconsistent with due process and lacked subject-matter jurisdiction as to any cause of action

other than if there was a “probability” of default and whether the homeowner was under the Service

Members Relief Act, 50 U.S.C. §§3901-4043, and that the proceedings were conducted in a manner

inconsistent with due process and plaintiffs were entitled to compensatory damages in the amount of

$ 500,000.

For judgment that plaintiff is the fee simple owner of all right, title, and interest in and to the

described real property under Quiet Title.

For declaration by the court that HB06-1387 which amended §38-38-101 et seq eroded the

Standard of Proof when property rights are involved to an unacceptable level under the due process

clause of the 14th Amendment when it allowed copies of the original deed of trust and a Statement of

Qualified Holder in essence say “Trust me” the Lender or the Trust is entitled to foreclose as the Real

Party in Interest.

A declaration by the court that by enactment of HB06-1387 “The Act” which amended

§38-38-101 et seq. the provisions were applicable to judicial foreclosures per ¶ 41 (3).

For Judgment that BONY2006 is not holders in due course and therefore not the Real Party in

Interest.

To vacate and set aside any foreclosure sale that may occur, and seek restitution or

compensation. (See PT 0583-2015)

For Judgment in the amount of $1, 000,000 for misrepresenting themselves as “owners” of the

note when they were merely a holder of the note not entitled as the Real Party in Interest to foreclose.

For Judgment that the Rule 120 is procedurally defective under the 14th Amendment to the U.S.

VERIFIED COMPLAINT Page 37

Constitution both by 120 (d) and HB06-1387 which amended §38-38-101 et seq and as explained by

Lindsey vs Normet, infra 405 U.S. @ p. 77

For Judgment declaring that BONY2006 acted “under color of law” knowing that the Rule 120

was procedurally and facially unconstitutional.

For Judgment against Karen J. Radakovich, Esq. and against Frascona, Joiner, Goodman and

Greenstein, P.C. for fraud, in an amount equal to $1,000,000 dollars apiece.

For declaration against Judge Berkenkotter admonishing her for denying due process.

Wherefore, Plaintiff demands judgment against all defendants and each of them, jointly and

severally.

For compensatory, special, general and punitive damages submitted against all Defendants.

For reasonable costs of suit, reasonable attorney’s fees if applicable, and such other and further

relief as the Court deems proper.

Relief and sanctions for Rule 120 payments made to Bank of America NA in the amount of

$4,339.92, to be repaid as treble damages in the amount $13,019.76.

Relief and sanctions for Loan Modification Trial payments made to Bank of America NA in the

amount of $5,864.46, to be repaid as treble damages in the amount $17,593.38.

Relief and sanctions for installment payments made to Countrywide and Bank of America NA

in the amount of $115,094.19, to be repaid as treble damages in the amount $345,282.57. As it is

possible there remains a valid holder in due course who will demand some of these payments, this

amount may be held by the court pending a final quiet title on said property.

Defendants will correct and withdraw any erroneous documents filed with the Boulder County

Clerk and Recorder's Office.

Defendants will publish a notice in the same publication(s) foreclosure was published declaring

these foreclosure(s) have been filed in error, dismissed or withdrawn, and Tobiah Peter Fernsler

VERIFIED COMPLAINT Page 38

remains in good standing.

Petitioner/Plaintiff/Applicant will contact all crediting agencies and withdraw any reports

related to these foreclosures and alleged default.

Respectfully submitted,

_________________________TOBY FERNSLER, PRO SE Dated:___________, 2016

1.I am a resident of Boulder County, State of Colorado.

I have personal knowledge of the facts herein in this complaint of the activities set forth in the

foregoing First Amended Verified Complaint and if called on to testify as to these matters

would do so competently.

I verify under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct from my own personal knowledge.

____________________________TOBY FERNSLER, PRO SE

VERIFIED COMPLAINT Page 39