Rinaldi Goes Back to BK Court To Fight For “Real Party” Determination

From my first amended complaint:

“NATURE OF THE PROCEEDINGS AND RELIEF REQUESTED”
1. This is an action brought by the Plaintiffs, Rinaldi and  Rinaldi
(hereinafter Plaintiffs, the Rinaldis or by their individual names, as applicable):
a. Pursuant to Fed. R. Civ. P. 22, applicable in these proceedings pursuant to Fed. R.
Bankr. P. 7022, for a determination of identity and capacity of the entity, if any, entitled to claim
a security interest in the Note issued by “Plaintiffs”
(1) Fed. R. Bankr. P. 7022, provides:
Rule 7022. Interpleader Rule 22(a) F.R.Civ.P. applies in adversary proceedings. This rule supplements—and does not limit—the joinder of parties allowed by Rule 7020.
(2) Fed. R. Civ. P. 22(a) provides:
(a) Grounds.
(1) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple
liability may be joined as defendants and required to interplead. Joinder for interpleader is
proper even though:
(A) the claims of the several claimants, or the titles on which their claims depend, lack a
common origin or are adverse and independent rather than identical; or
(B) the plaintiff denies liability in whole or in part to any or all of the claimants.
b. For appropriate Orders:
(1) Determining the identity and capacity of the entity or entities, if any, entitled to
enforce the payment or performance of any security interest which may have attached to the
Rinaldis’ Homestead on or after June 10, 2005 pursuant to Wis. Stats. sec. 409.203(7).

(2) Determining the validity and enforceability of the rights of any and all entities which
may claim a security interest in the Rinaldis’ Homestead.
(3) Requiring that the proceeds of the sale of the Rinaldis’ Homestead be paid to the
entity or entities entitled to enforce the payments or performance of the lien on the Homestead
(hereinafter, the Collateral.)
2. This is a core proceeding for a Declaratory Judgment with respect to the Homestead:
a. To determine the identity and capacity of the entity or entities entitled to receive the
benefit of a security interest on the real estate constituting the Rinaldis’ Homestead and receive
the proceeds of the sale thereof by:
(1) Declaring whether or not the original Note issued by Roger Rinaldi (Roger Peter
Rinaldi) on June 10, 2005 (the Note) is in the possession of Wells Fargo Bank, N.A., in its
capacity as custodian for HSBC Bank USA, N.A., as Trustee of the Wells Fargo Home Equity
Asset-Backed Securities 2005-2 Trust (WFHET 2005-2) through lawful negotiation, in order to
assure that the Note is not in the possession of an unidentified third party under Wis. Stats. sec.
409.313, who has paid value therefor and would be entitled to enforce the Note under Wis. Stats.
sec. 409.203;
(2) Declaring when and if and whether or not the Mortgage recorded on the Homestead
on June 20, 2005 with the Kenosha County Register of Deeds as Document #1437622 has been
equitably assigned to Wells Fargo Home Equity Asset-Backed Securities 2005-2 Trust (WFHET
2005-2) by which, if any, of the three (3) Assignments of Mortgage produced in connection with
Proof of Claim #6 in Case No. 11-35689;
(3) Declaring that the entity (or entities) which is (are) entitled to the beneficial interest in
the Mortgage is (are) the only entity (or entities) entitled to receive the proceeds of sale of the
Homestead by virtue of the equitable interest in the Mortgage enforceable under Wis. Stats. sec.
409.203, or, in the alternative,
(4) For a determination of the identity and capacity of the entity or entities entitled to
receive the proceeds of sale of the Homestead by virtue of a pre-petition mortgage interest,
perfected of record on June 10, 2005;

(5) For a declaratory judgment pursuant to 28 U.S.C. sec. 157(b)(K) declaring the
validity, enforceability and priority of any equitable lien arising under Wis. Stats. sec. 409.203, to
assure that the Rinaldis are able to provide clear and merchantable title to James and Julie
Anderson in exchange for the payment to be made to the entity or entities determined to be
entitled to receive the payment under Wis. Stats. sec. 409.203(7).
b. For Orders requiring that the proceeds of sale of the Homestead be paid to the entity
or entities entitled to the benefit of a security interest in the Rinaldis’ Homestead which is the
Collateral for such security interest to be identified in these proceedings;
c. For any and all determinations necessary to assure that the proceeds of the proposed
sale of the Homestead are paid to the entity entitled to receive the payments.
d. For a Mandatory Injunction ordering that the Note issued by Rinaldi on
June 10, 2005 be returned to  Rinaldi marked PAID, DISCHARGED or SATISFIED
upon payment of the proceeds of the Section 363 Sale to the entity or entities entitled to the
payment or performance of the Collateral pursuant to Wis. Stats. sec. 409.203, in order to assure
that the Warranty Deed to be granted by the Rinaldis to (buyers) is free and
clear of future claims arising from further negotiation of the June 10, 2005 Note.

and further on in the complaint……

Upon information and belief, the June 10, 2005 Note (Exhibit D) was not negotiated
from Wells Fargo Bank, N.A. to HSBC Bank USA, N.A. as Trustee of the Wells Fargo Home
Equity Asset-Backed Securities 2005-2 Trust, or any other REMIC Trust similarly named before
the Plaintiffs’ filed their first bankruptcy petition in Case No. 11-35689 on October 14, 2011.
40. Upon information and belief, an imaged copy of the UNENDORSED Note bearing
an imaged copy of the signature of Roger Peter Rinaldi was transmitted in imaged format from
Wells Fargo Bank, N.A. to the law firm of Gray & Associates, LLP in New Berlin, Wisconsin for
purposes of having the image printed and filed as an Exhibit in a foreclosure action commenced
in the Kenosha County Circuit Court in the name of HSBC Bank USA, N.A., as Trustee, Wells
Fargo Asset Securities Corporation Home Equity Asset-Backed Securities 2005-2 Certificates,
Series 2005-2 as Plaintiff, as Case No. 09-CV-353.
41. In the alternative, upon information and belief, a hard copy of Exhibit D, the
UNENDORSED Note, was transmitted by mail to the law firm of Gray and Associates, LLP for
the purpose of making copies of the Note to be filed as an Exhibit in a foreclosure action
commenced in the Kenosha County Circuit Court in the name of HSBC Bank USA, N.A., as
Trustee of the Wells Fargo Home Equity Asset-Backed Securities 2005-2 Certificates, Series
2005-2, as Plaintiff, as Case No. 09-CV-353.
42. For purposes of this action, it is necessary to determine the identity and capacity of
the entity in possession of the original Note (with the right to enforce it) because the entity in
possession of the original Note (with the right to enforce it) is the entity entitled to payment of
the proceeds of the sale of the Homestead, because possession of the original Note, whether
UNENDORSED or ENDORSED (with or without authority of the payee) under Wis. Stats. sec.
409.313, is a prerequisite to the attachment of an enforceable interest in the payments or
performance of the lien which may be equitably assigned pursuant to Wis. Stats. sec. 409.203.
43. Under the holding of Dow Family, LLC v. PHH Mortgage Corporation, et al, supra,
the party in possession of the original Note, as named payee thereon, or in possession of the
original Note ENDORSED IN BLANK (or specially endorsed to the party in possession) is
entitled to equitable enforcement of the lien securing payment or performance of the Note.
44. Without a determination of the identity of the entity in possession of the original
Note with the right to enforce it, yet unidentified third parties may have a claim to enforce the
unassigned security interest against the Rinaldis’ Homestead, after it is sold.

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