Laura M. Rys, Esq. (Id. No.

012381993)
7 West Main Street
Mendham, New Jersey 07945
(973) 543-5301
Attorney for Defendants
U.S. BANK NATIONAL ASSOCIATION AS SUPERIOR COURT OF NEW JERSEY
TRUSTEE FOR CSMC MORTGAGE LOAN CHANCERY DIVISION:
TRUST 2006-7
SUSSEX COUNTY
Plaintiff
vs.

DOCKET NO. F-039732-13

Civil Action

JANE VITOLO and ALVARO VITOLO

Defendant(s)

______________________________________________________________________________
BRIEF IN SUPPORT OF DEFENDANTS MOTION FOR RECONSIDERATION OF
THIS COURTS DECEMBER 19, 2014 ORDER
______________________________________________________________________________

Laura M. Rys, Esq.

On The Brief

PRELIMINARY STATEMENT
This motion for reconsideration seeks to have this Court alter its decision and Order
dated December 19, 2014 pertaining to the Plaintiffs Motion to Amend the Complaint to change
the name of the plaintiff from U.S. Bank National Association As Trustee For CSMC Mortgage
Loan Trust 2006-7 to U.S. Bank National Association As Trustee For CSMC Mortgage-Backed
Passed-Through Certificates, Series 2006-7. The Order entered by the Court bears the notation
that the Plaintiffs motion was unopposed. Apart from noting that the motion was unopposed,
the Court did not set forth in its Order, or by a separate statement of reasons, the Courts findings
of fact and conclusions of law in connection with its ruling on the motion.
This motion is necessary because the Defendants timely filed opposition to the Plaintiffs
motion by way of a brief in opposition along with a certification in opposition. The motion was
not unopposed as has been mistakenly reported in the Order. In addition, the Defendants have
come into possession of newly discovered evidence which, when considered by this Court,
would probably alter the Order entered.
Finally, the Plaintiffs motion and the statements contained in the affidavit and certification
submitted in support of its motion have materially altered the factual basis upon which this Court
has rested its prior findings of fact and conclusions of law embodied in its May 28, 2014 rulings.
Such statements and the newly discovered evidence has created the urgent need for the
Defendants to engage in further discovery to meet the new and highly suspect claims of the
Plaintiff which have only now come to light as a result of the Plaintiffs Motion to Amend the
Complaint.

STATEMENT OF FACTS
After 13 months of litigation, the Plaintiff in this case, U.S. Bank National Association
As Trustee For CSMC Mortgage Loan Trust 2006-7, brought an application to amend the
Complaint pursuant to R. 4:9.1 claiming that it needed to clarify its name which had been
improperly pled in the Complaint through the use of a shorthand name for, what it now
claims, is the proper name of the Plaintiff, now stated as U.S. Bank National Association As
Trustee For CSMC Mortgage-Backed Passed-Through Certificates, Series 2006-7.
No discovery served to date by the Defendants has sought discovery of information from
a Plaintiff bearing the name of U.S. Bank National Association As Trustee For CSMC MortgageBacked Passed-Through Certificates, Series 2006-7. See the original Certification of Laura M.
Rys, Esq. submitted with Defendants opposition to the Motion to Amend the Complaint (the
Ryes Certification), at Paragraphs 4 through 8. All discovery responses served by the Plaintiff
have been served in the name of, and on behalf of U.S. Bank National Association As Trustee
For CSMC Mortgage Loan Trust 2006-7. Id. The only documents produced by the Plaintiff in
response to Defendants document discovery requests which contain the name of U.S. Bank
National Association As Trustee For CSMC Mortgage-Backed Passed-Through Certificates,
Series 2006-7 are (1) the July 1, 2006 Pooling and Services Agreement (the PSA) (a copy of
which is attached to the Affidavit of Edward Hyne in support of Plaintiffs Motion to Amend the
Complaint, at Exhibit D), and (2) a Limited Power of Attorney (a copy of which is attached to
the Affidavit of Edward Hyne in support of Plaintiffs Motion to Amend the Complaint, at
Exhibit E), signed on August 20, 2013 by U.S. Bank National Association, appointing Nationstar
Mortgage LLC as its attorney-in-fact for numerous trusts, including at item 146 on the attached
schedule to that document, U.S. Bank National Association As Trustee For CSMC MortgageBacked Passed-Through Certificates, Series 2006-7, the newly named Plaintiff trust.
3

There is nothing in the July 1, 2006 PSA or in that Limited Power of Attorney which
provides any information placing the Vitolo mortgage instruments within either the trusts
referenced in the PSA or the Limited Power of Attorney.
The Plaintiff has attempted in its Motion to Amend the Complaint to tie the Vitolo
Mortgage loan to the newly named Plaintiff trust through a document attached to and identified
in the affidavit of a Nationstar representative, Edward Hyne, as a Loan Schedule.

See

Affidavit of Edward Hyne in support of Plaintiffs Motion to Amend the Complaint, at Exhibit F.
The Affidavit of Mr. Hyne is undated and thus it bears no effective date. Further, that attached
Loan Schedule has no title or identifying name on it and the Affidavit is completely deficient
of any supporting explanation indicating the nature and origin of the document other than that it
has been found to exist in the Nationstar computer system. Most egregiously, this Loan
Schedule was not produced by Plaintiff in response to Defendants discovery requests until
November 4, 2014, the last day allowed under the last case management order for serving
document responses and six days after its Motion to Amend the Complaint was filed. See
Supplemental Certification of Laura M. Rys, Esq., at paragraph 12.
The Loan Schedule does not comply with the mandates of the July 1, 2006 PSA which
expressly identifies and describes within the PSA a Mortgage Loan Schedule I attachment to
the PSA as a schedule to the PSA. Plaintiff has not produced any attachments or exhibits to the
July 1, 2006 PSA or any documents and has not produced any document entitled Mortgage
Loan Schedule I or any documents matching the description for Mortgage Loan Schedule I.
Mr. Hyne boldly asserts in his Affidavit, without explanation or detail, that the Loan Schedule
shows that the subject loan is within the trust established by the July 2006 PSA.

There are no statements in Mr. Hynes Affidavit or the Certification of Counsel submitted
in support of the Motion to Amend the Complaint which state that the new Plaintiff entity, U.S.
Bank National Association As Trustee For CSMC Mortgage-Backed Passed-Through
Certificates, Series 2006-7, had possession of the original Vitolo Mortgage and Note at the time
that the Complaint was filed on October 30, 2013. Nationstar, the loan servicer, appears to be the
producer and holder of the original Mortgage and Note. It has produced no sworn statements that
it had possession of the original Note and Mortgage on October 30, 2013, and it has produced no
affidavits or certifications submitted in support of the Motion to Amend the Complaint
explaining how, when, where, or on whose behalf, Nationstar received and took possession of the
original Note and Mortgage. Nationstar did not execute the Limited Power of Attorney provided
to it from U.S. Bank National Association until May 2014. See Affidavit of Edward Hyne in
support of the Motion to Amend the Complaint, at Exhibit E.
Plaintiffs Motion to Amend the Complaint to add the newly named Plaintiff trust was
filed nearly 6 months after the Court rendered its decision on Defendants Motions to Dismiss and
Motions to Vacate Default. Accompanying the Courts Order of May 28, 2014 is the Courts
Statement of Reasons setting forth the Courts findings of fact and conclusions of law (the
Statement of Reasons). See Certification of Alyson Galusha, Esq., in support of the Motion to
Amend the Complaint, at Exhibit B. In the Statement of Reasons, the Court reviewed the
recorded assignments of the mortgage instrument which showed a chain of title to the then
Plaintiff, U.S. Bank National Association As Trustee For CSMC Mortgage Loan Trust 2006-7.
These recorded assignments occurred prior to the filing of the Complaint on October 30, 2013.
The Court was also presented at oral argument by the Plaintiffs counsel with an original
copy of the Note. See Statement of Reasons at page 32. Based upon such oral representations of

counsel, the Court ruled that U.S. Bank National Association As Trustee For CSMC Mortgage
Loan Trust 2006-7 was the true party in interest to enforce the instrument of indebtedness. See
page 32 of the Statement of Reasons, at page 32. Accordingly, the Statement of Reasons
concluded, with respect to the issue of possession of the original documentation or the proofs
relating to the assignment of the Mortgage, that [h]ere, Plaintiff has provided proof of both.
This Court is satisfied that Plaintiff is the holder of the Note and that Plaintiffs chain of
assignments is valid and sufficient to prove that Plaintiff owned or controlled the Mortgage prior
to the filing of its Complaint. Id. In contrast to the record which was before the Court in May
2014, now the Plaintiff has no record of assignments to the newly named Plaintiff trust, and it
has produced no certifications or affidavits stating that that newly named entity is or was in
possession of the original Mortgage prior to the filing of its Complaint on October 30, 2013.
The Motion to Amend the Complaint, and the supporting certification and affidavit,
provide no explanation as to why, 13 months after the filing of the Complaint, the Plaintiff has
moved to correct its pleadings and why it did not correct the original Plaintiff name in the
first place. There is no explanation as to why this Motion is being brought at this time, over a
year after the litigation has proceeded and after discovery had essentially been completed.
Since the entry of the December 19, 2014 Order granting the Motion to Amend the
Complaint, the Defendants have conducted further investigation as to Plaintiffs assertions in its
Motion to Amend the Complaint that, with respect to CSMC Mortgage-Backed Passed-Through
Certificates, Series 2006-7, [t]here are no other trusts with which this particular trust could be
confused with. However, as provided in the Rys Certification, at paragraphs 14 and 15, the court
has been provided a listing of some 18 trusts with similar names as the newly named Plaintiff
trust.

Most significantly, there is a new document which has been discovered by the
Defendants which they now submit for the Courts review on this Motion. That document is
entitled Limited Power of Attorney (See Supplemental Certification of Laura M. Rys, Esq. at
paragraph 7, with Exhibit F attached thereto) and it is dated August 7, 2012. In this Limited
Power of Attorney document, U.S. Bank National Association has appointed Bank of America,
N.A. as servicer for 549 trusts identified on the attached Schedule A to that document. Among
those trusts identified by U.S. Bank National Association, on page 13 of the Schedule A, are the
original named Plaintiff trust, CSMC Mortgage Loan Trust 2006-7, bearing Investor Number
7006906, and the new named Plaintiff trust, CSMC Mortgage-Backed Passed-Through
Certificates, Series 2006-7 bearing an Investor Number 7022119. This new Limited Power of
Attorney was not produced by the Plaintiff in response to any discovery requests nor was it
produced or attached to any documentation submitted in support of its Motion to Amend. This
document was found by further independent research by the Defendants counsel.

See

Supplemental Certification of Laura M. Rys, Esq. at Paragraph 7. No other document that has
been produced in this case which contains the designation for either of these separate trusts of an
Investor Number. The Investor Number for each of these separately named trusts is a different
Investor Number.
Defendants have not had the opportunity to depose or to seek through discovery the
information bearing upon the veracity of the Plaintiffs statements supporting its Motion to
Amend and have not had the opportunity to discover or question the relationship,
interrelationship, or lack of relationship, between the trust named CSMC Mortgage Loan Trust
2006-7 and the trust named CSMC Mortgage-Backed Trust 2006-7. Until receipt of Plaintiff
November 4, 2014 document production response, Defendants were unaware of the existence of

the document referred to by Mr. Hyne in his affidavit as a Loan Schedule. See Supplemental
Certification of Laura M. Rys, Esq. at Paragraph 12. Thus, the Defendants have been deprived of
the opportunity to question that documents origins, authenticity, and admissibility. This is
critical to Defendants case because, based upon the statements of Mr. Hyne in his Affidavit,
Plaintiff asserts that this is a document which ties the Vitolo Mortgage loan to the July 2006
PSA.
Defendants have not had the opportunity to discover or question the basis of Plaintiffs
statements asserted in support of its Motion to Amend that [t]here are no other trusts with which
this particular trust could be confused with. The Defendants have not had the opportunity to
question through discovery the Plaintiffs statements, made through its counsels Certification
that the newly proposed named Plaintiff trust is the same entity as the original named Plaintiff
trust.
The Motion of the Plaintiff to Amend the Complaint was decided on December 19, 2014.
As required by the court rules, 8 days prior to that motion hearing, the Defendants filed with the
court and served on Plaintiffs counsel a brief in opposition to that motion along with the Ryes
Certification. See Supplemental Certification of Laura M. Rys, Esq. at paragraphs 3 and 4.
Attached to the Supplemental Certification of Laura M. Rys, Esq. at Exhibits B and C1 through
C5, are the Defense counsels transmittal letter and the USPS website tracking confirmations and
receipts which show on December 11, 2014 the Court received Defendants brief and the
certification. Plaintiff filed a Reply brief on December 16, 2014. Id. There was no oral argument
on the motion and the court entered an Order granting the motion as unopposed and without a
statement of reasons setting forth its findings of fact and conclusions of law. Counsel for the

Defendants has subsequently made a written request of the court for such a statement of reasons.
See Supplemental Certification of Laura M. Rys, Esq. at paragraphs 6.
POINT I
PLAINTIFFS MOTION TO AMEND THE COMPLAINT WAS NOT UNOPPOSED AND
THIS COURT SHOULD CONSIDER THE BRIEF AND CERTIFICATIONS
SUBMITTED BY THE DEFENDANTS IN OPPOSITION TO THE PLAINTIFFS
MOTION TO AMEND THE COMPLAINT
This Court has entered an Order dated December 19, 2014 entitled Order Granting
Motion to Amend the Caption and Serve a Corrective Notice of Intention to Foreclose. The
Order simply reflects that the Motion is granted in its entirety. It further provides that the caption
of the Complaint will be changed to the newly named Plaintiff trust, that the Plaintiff will be
permitted to file an Amended Foreclosure Complaint within 20 days of the Order, that a new
Notice of Intention to Foreclose shall be served upon the Defendants, and that the Order is to be
served within 7 days of counsels receipt of the Order. The Order contains no Statement of
Reasons for the findings of fact and conclusions of law upon which the Order has been based and
there is no reference in the Order as to those findings of fact and conclusions of law having been
set forth on the record in open court. Instead, at page 2 of the Order, it indicates that the Motion
was unopposed.
Attached to the Supplemental Certification of Laura M. Rys, Esq. at Exhibits B and C1
through C5, are the Defense counsels transmittal letter and the USPS website tracking
confirmations and receipts which show on December 11, 2014 the Court received Defendants
Brief in opposition to Plaintiffs Motion to Amend the Complaint, along with a Certification of
Laura M. Rys, Esq. submitted also in opposition to Plaintiffs Motion to Amend the Complaint.
This opposition was submitted in compliance with R. 1:6-3(a) which requires that opposing
affidavits and briefs be filed not later than 8 days before the return date of the motion. In fact,
9

the Plaintiff filed a reply brief discussing Defendants opposition brief, which reply brief was
filed on December 15, 2014.
The brief in opposition to the Motion to Amend raised a number of meritorious defenses
to the motion that should have been considered by the Court. This opposition included the fact
that the Plaintiff knew or should have known at the time it filed the Complaint the true name of
the Plaintiff; that the Court has already made dispositive rulings identifying the original named
Plaintiff as the holder of the mortgage instruments and is, therefore, the true party in interest; that
the Plaintiffs Certification and Affidavit in support of the motion were insufficient; and that
there were no proofs submitted that the newly named Plaintiff trust had possession of the Note;
that the assignments of record do not even contain the name of the newly named Plaintiff trust.
The Defendants brief further points out other deficiencies in the Plaintiffs argument in
support of its Motion to Amend the Complaint, including the Plaintiffs failure to present any
proofs that the Vitolo mortgage loan had been transferred into the July 2006 PSA as required by
the terms of the PSA and as required by the Internal Revenue Code. Finally, the Defendants
brief also argues that Plaintiffs assertions of inadvertence justifying the relief sought by its
motion - that the improper pleading was a result of a shorthand naming or a shorthand errorwas not credible and lacked merit.
Because the Defendants opposition presented viable defenses to the motion and
credible opposition to the granting of the Motion to Amend, the Court should have considered
the brief in opposition along with the supporting affidavits.
POINT II
DEFENDANTS MOTION FOR RECONSIDERATION IS APPROPRIATE AND IS
PERMITTED PURSUANT TO R. 4:49-2 AND R. 4:50-1

10

Motions for Reconsideration are permitted under the Court Rules pursuant to R. 4:49-2
which requires that a Motion for Reconsideration seeking to alter or amend a Judgment or Order
shall be served not later than 20 days after service of the Judgment or Order upon all parties by
the party obtaining it. The Courts December 19, 2014 Order granting Plaintiffs Motion to
Amend the Complaint was received by Plaintiffs counsel on December 29, 2014. See
Supplemental Certification of Laura M. Rys, Esq. at paragraph 5, with attached Exhibit D. That
correspondence indicates that the December 19th Order was received by Plaintiffs counsel on
December 29, 2014 and was federal expressed to counsel for the Defendants. The order was
received on the following day, December 30, 2014. See Supplemental Certification of Laura M.
Rys, Esq. at Paragraph 5. Accordingly, the Motion for Reconsideration has been submitted to
this Court within the 20 day period as provided by R. 4:49-2.
In addition, R. 4:50-1 provides that on motion, with briefs, the Court may relieve a party
from an Order as provided in R. 4:50-1(a) and (b) for reasons of mistake or newly discovered
evidence which would probably alter the Order.
Mistake; Newly Discovered Evidence
The Court has mistakenly treated the Plaintiffs Motion to Amend the Complaint as an
unopposed motion. Moreover, as set forth in the Supplemental Certification of Laura M. Rys,
Esq., at paragraph 7 and attached Exhibit E, the Defendants have discovered new evidence which
it did not have at the time of the December 19, 2014 motion proceeding in the form of a Limited
Power of Attorney dated August 7, 2012 executed by U.S. Bank National Association providing
Bank of America, N.A. as a servicer for various trusts, including 2 named trusts on page 13 of
the attached Schedule to that document, having the name of the original named Plaintiff trust

11

CSMC Mortgage Loan Trust 2006-7 and the name of the new Plaintiff trust CSMC
Mortgage-Backed Passed-Through Certificates, Series 2006-7.
Both of these trusts are named in the August 7, 2012 Limited Power of Attorney (Exhibit E)
document, authored by U.S. Bank National Association, as separate entities under this new
document and, in particular, the Schedule A attachment to this newly discovered Limited Power
of Attorney not only names them as separate trusts, but also has provided that each of the trusts
has a different Investor Number associated with those trusts. It seems clear from this newly
discovered evidence, that Plaintiffs assertions in its Motion to Amend the Complaint - that the
two trusts are the same entity - is undermined and contradicted by this document. It should be
pointed out that this document was not produced by the Plaintiff in any discovery responses
served upon the Defendants nor was it attached to or produced in connection with Plaintiff
Motion to Amend the Complaint. As such, and because it is newly discovered evidence, it
should be taken into consideration in this Motion for Reconsideration and is properly presented
herein.
Requested Statement of Reasons
By letter dated January 5, 2015, defense counsel requested of the Court a statement of the
Courts findings of fact and conclusions of law with respect to the Courts December 19, 2014
Court Order granting the Plaintiffs Motion for Leave to Amend. See Supplemental Certification
of Laura M. Rys, Esq. at paragraph 6 with attached Exhibit E. R. 1:7-4(a) calls for the Court to
provide its findings of fact and a statement of its conclusions of law with respect to motions. R.
1:6-2(f) calls for the Court to make findings of fact and conclusions of law explaining its
disposition on motions. In those motions which were orally argued (there was no oral argument
granted on Plaintiffs Motion to Amend its Complaint) and where the Court intends to place its

12

findings on the record at a later date, the Court is required to give parties one day notice of the
time and place it shall do so. Absent placing the findings on the record, R. 1:6-2(f) requires the
court to append to the order a statement of reasons for its disposition when it concludes that
explanation is necessary or appropriate. Given the scope and serious consequences of the
Plaintiffs Motion to Amend the Complaint, as well as the new positions that have been asserted
by the Plaintiff in its motion, and in light of the Defendants strong arguments in opposition
thereto, it is respectfully submitted that a statement of the Courts findings and conclusions of
law is appropriate in this case and should be provided by the Court.
As of the date of this writing, the Court has not provided a response to defense counsels
request for a statement of findings of fact and conclusions of law and, therefore, the Defendants
at this time are unable to address the basis and reasoning of the Court in granting the Motion for
Leave to Amend other than the indication in the Order that the Motion was unopposed. For
this reason, it is respectfully submitted and requested that the Defendants be allowed to respond
to any statement of reasons which may be provided by the Court in response to defense counsels
request for such statement of findings of fact and conclusions of law.
The May 28, 2014 Statement of Reasons
This Motion for Reconsideration is also appropriate because the Court has not addressed
the contradictions which emanate from the granting of Plaintiffs Motion to Amend the
Complaint which call into question the findings set forth in the Courts May 28, 2014 Statement
of Reasons. As more thoroughly discussed in Point III of this brief, in May 2014, the Court
rendered dispositive rulings based upon counsels then certifications and oral representations in
court. See Statement of Reasons at page 32-33. The conclusion of the Court on May 28, 2014
was that U.S. Bank National Association As Trustee For CSMC Mortgage Loan Trust 2006-7

13

possessed the original Note on the filing date of the Complaint (See Statement of Reasons at
page 5), that named entity was the assignee of the subject mortgage as shown by the recorded
assignments as set forth in the Complaint (See Statement of Reasons at page 8) and that U.S.
Bank National Association As Trustee For CSMC Mortgage Loan Trust 2006-7 is the only
proper Plaintiff (See Statement of Reasons at page 13). These findings are now inconsistent
with the facts of this case if the new Plaintiff trust is serving as the Plaintiff in this case. The
Courts findings of May 28, 2014 do not apply to the new Plaintiff trust and the proofs which had
been submitted in May 2014 did not even name the newly named Plaintiff trust.
New Discovery Needs of the Defendants
The Motion for Reconsideration is also appropriate given that the Court has not
addressed the critical need now for new discovery to take place as a result of the introduction of
a newly named Plaintiff trust. The last Case Management Order of this Court dated October 3,
2014, provided that all document discovery be concluded by November 4, 2014, that all
depositions be concluded by January 3, 2015, and that Motions for Summary Judgment would be
filed no later than January 15, 2015. There has been no modification of this Case Management
Order and, in accordance with the terms of Case Management Order, no further discovery may
take place without further order of the Court which has not been provided.
Following the filing of its Motion to Amend the Complaint, the Plaintiff produced and
served on November 4, 2014 a new document, not previously produced in discovery, which it
has called a Loan Schedule which it purports to claim is evidence of the fact that the
Defendants Mortgage was placed within the July 2006 PSA and, therefore, the proper chain of
title and endorsements has been established. This document is highly suspect as it appears to
have only been presented by Nationstar, the loan servicer, and it not a schedule to the PSA. This

14

Loan Schedule is presented without any explanation as to creation, it does not contain any title
or descriptive identification of any sort, it contains a series of 89 specific items of loan
information which is contrary to the requirements of the July 2006 PSA schedules. This Court
has acknowledged (at page 28 of its Statement of Reasons) and the Appellate Division has ruled
with respect to cases involving Pooling and Servicing Agreements, that it essential for a
foreclosing Plaintiff to show ownership and control of the underlying debt by proofs that the
PSA contain an identification of the subject loan in its mortgage loan schedule. U.S. Bank As
Trustee For SG Luggage Security Asset-Backed Certificates, Series 2006-FRE v. Cole, 2013 N.J.
Super. Unpub. LEXIS 1062 (App. Div. 2013).
Addition discovery is necessary for the Defendants to probe the veracity and origins of
the aforesaid Loan Schedule. The Defendants also should have the opportunity to depose
Defendants witnesses at depositions about the newly discovered document entitled Limited
Power of Attorney dated August 7, 2012. This new document directly brings into question the
assertions of the Plaintiff that the two named Plaintiff trusts are, in fact, the same entity. This new
document was not produced by the Plaintiff in discovery although it clearly should have been
produced by the Plaintiff in response to Defendants discovery requests.
The Defendants should have the opportunity to take depositions and obtain discovery
concerning the unsupported and unexplained conclusory statements of Nationstars servicing
agent, Mr. Hyne, presented in his affidavit which state that the Vitolo Mortgage was within the
PSA. A cursory review of Mr. Hynes affidavit shows that the affidavit is in itself insufficient
proof that the new Plaintiff trust is the holder of the Note. Deutsche Bank National Trust
Company v. Mitchell, 422 N.J. Super. 214, 16 (App. Div. 2011).

15

Reliance upon its own counsels certification which claims that the original name of the
Plaintiff was used in the Complaint because it was a shorthand name utilized by her client is a
weak and questionable explanation for the need to now amend the complaint. The Court cannot
rely upon, and the Defendants need to challenge through further discovery, such statements. An
attorney must not certify as fact information which is within the primary knowledge of the
attorneys client and the court should not accept such attorney certifications. Wells Fargo Bank,
N.A. v. Ford, 418 N.J. Super. 592, 599-600 (App. Div. 2011); Claypotch v. Heller Inc., 360 N.J.
Super. 472, 488 (App. Div. 2003). These types of certifications are not permitted pursuant to R.
1:6-6 which requires the affiant to make statements based upon personal knowledge setting forth
only facts which are admissible in evidence to which the affiant is competent to testify.
Accordingly, these unsupported statements and unexplained conclusions by the Plaintiff in its
Motion to Amend the Complaint should also be the subject of further discovery by the Defendant
to ascertain the veracity and admissibility of these statements.
A foreclosing plaintiff is required to show that it controls and owns the underlying debt
upon which it seeks foreclosure. Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597
(App. Div. 2011).

This can be done by virtue of showing recorded assignments to the

foreclosing plaintiff or by showing endorsements of negotiable instruments and their delivery to

the foreclosing plaintiff. Bank of America, N.A. v. Limato, 2012 N.J. Super. Unpub. LEXIS
1559; Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. at 598.

However acquired, the

foreclosing plaintiff must show that it has become into possession and ownership of the
mortgage, and thus has standing, at the time of the filing of the Complaint. Deutsche Bank Trust
Co., Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). A Note endorsed in blank
qualifies as a bearer instrument which can be transferred and negotiated by delivery but that

16

transfer and delivery must occur prior to the time the Complaint was filed for the holder to have
the right to enforce the Note. U.S. Bank v. Campos, 2014 N.J. Super. Unpub. LEXIS 2021, page
7 (App. Div. 2014).
Because of these legal requirements, the Defendants have the right to inquire and verify
as to whether the new Plaintiff trust, CSMC Mortgage-Backed Passed-Through Certificates,
Series 2006-7, had possession of the underlying debt at the time of the filing of the Complaint on
October 30, 2013. That has not been shown in any proofs before this Court and the essential
proofs which must be ascertained and discovered.
Finally, R. 1:5-6(c)(1)(E) and R. 4:64-1(a)(2), and (3) require the foreclosing plaintiff,
and its counsel, to present sworn statements at the time the Complaint is filed (1) that the loan
documentation has been inspected, (2) setting forth communications of the banks servicer or the
foreclosing bank detailing their personal knowledge of the facts pled in the Complaint, and (3)
confirming the accuracy of the Complaint, including the name of the Plaintiff. In October 2013,
such sworn statements were presented and filed with the Court setting forth this information.
However, the sworn statements are now contradicted by the Plaintiffs latest assertion that the
proper foreclosing plaintiff, and the current owner of the subject loan, is the new Plaintiff trust.
Defendants should be given the opportunity to inquire as to how these formerly sworn
statements have now been rendered inaccurate and why they are now inconsistent with the
Plaintiffs prior statements. The question must be asked How could there have been a review of
the Plaintiffs loan documents and Plaintiffs loan file in October 2013 which led to the naming
of the original named Plaintiff trust in the Complaint and then, thirteen months later, Plaintiff has
only now discovered that it misnamed the foreclosing entity previously identified from its loan
documents and records? Such an occurrence is hard to believe and the offered explanation to date

17

suggests that there may be another and different story that needs to be uncovered through further
discovery.
POINT III
THE COURTS MAY 28, 2014 DISPOSITORY RULINGS NO LONGER APPLY
The Plaintiff filed its Motion to Amend nearly 6 months after the Court rendered a
decision on certain aspects of the case which is set forth in the Courts May 28, 2014 Order and
the accompanying Statement of Reasons attached to that Order. In the Courts Statement of
Reasons, the Court reviewed recorded assignments, showing assignments of the Vitolo mortgage
and a chain of title to the then Plaintiff, U.S. Bank National Association As Trustee For CSMC
Mortgage Loan Trust 2006-7, both of which occurred prior to the filing of the Complaint on
October 30, 2013.
In May 2014, the Court was presented at oral argument by the Plaintiffs counsel a copy
of the original Note. Based upon these two avenues of proofs, this Court ruled that U.S. Bank
National Association As Trustee For CSMC Mortgage Loan Trust 2006-7 was the true party in
interest to enforce the instrument of indebtedness. With respect to the issue of the possession by
and the assignment of the mortgages to the original Plaintiff, this Court stated that [h]ere,
Plaintiff has provided proof of both. This Court is satisfied that Plaintiff is the holder of the Note
and that Plaintiffs chain of assignments is valid and sufficient to prove that Plaintiff owned or
controlled the Mortgage prior to the filing of its Complaint. See page 32 of the Statement of
Reasons.
The Courts May 2014 ruling was based upon certifications of Plaintiffs counsel filed in
opposition to Defendants Motion to Vacate and in opposition to Defendants Motion to Dismiss
the Complaint. The Plaintiff asserted in those certifications that U.S. Bank National Association

18

As Trustee For CSMC Mortgage Loan Trust 2006-7 possessed the original Note on the filing
date of the Complaint (See Statement of Reasons at page 5), and that the then named Plaintiff
trust was the assignee of the subject mortgage as shown by the recorded assignments as set forth
in the Complaint (See Statement of Reasons at page 8). The court found that the then named
Plaintiff trust is the only proper party Plaintiff. See Statement of Reasons at page 13.
Based upon the pleadings and certifications submitted to this Court by the Plaintiff in
May 2014, the Court ruled that Plaintiff has established a prima facie case for foreclosure.
This Court is satisfied that Plaintiff [U.S. Bank National Association
As Trustee For CSMC Mortgage Loan Trust 2006-7] is the holder of
the Note and that Plaintiffs chain of assignment is valid and
sufficient to prove that Plaintiff owned or controlled the mortgage
prior to the filing of the Complaint. Defendants argument regarding
lack of standing or that the Plaintiff is not the party in interest are
devoid of merit. (Bracket added) See Statement of Reasons at page
32.
In presenting its Motion to Amend the Complaint to change the name of the original
Plaintiff to the newly named Plaintiff trust name, Plaintiff has not presented any evidence to
show that the new Plaintiff trust name entity, CSMC Mortgage-Backed Passed-Through
Certificates, Series 2006-7, was the holder of the Note either by endorsement and delivery or by
assignment under identified recorded assignments.

It is clear from the record, that the

assignments which the Court relied upon in its May 2014 findings of fact and conclusions of law
do not establish an assignment of the underlying mortgage indebtedness to the trust entity,
CSMC Mortgage-Backed Passed-Through Certificates, Series 2006-7, as that name does not
appear in any place on any of the recorded mortgage assignments. Thus, the Courts findings of
fact and conclusions of law regarding its analysis and statements as to the assignments of
mortgage as serving as a basis for the Plaintiff having established a prima facia case for
foreclosure no longer apply.
19

The Courts analysis as to the May 2014 findings that the Plaintiff is a true party in
interest by virtue of possession of the Note has also been undermined by the current application
to Amend the Complaint. Unlike the May 2014 proceeding, on the current application to Amend
the Complaint, the Plaintiff has offered no certifications or affidavits which state that the new
entity had possession of the original mortgage documents at the time of the filing of the
Complaint on October 30, 2013. This is an essential element to prove ownership and possession
of the underlying debt and because this critical evidence of possession of the original Vitolo
Mortgage instrument by CSMC Mortgage-Backed Passed-Through Certificates, Series 2006-7 is
missing, the Courts prior ruling on the issue of possession is no longer valid or supported by the
record. Wells Fargo, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011); Deutsche Bank
National Trust Company v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011); U.S. Bank v.
Campos, 2014 N.J. Super. Unpub. LEXIS 2021, page 7 (App. Div. 2014).
Plaintiffs current proofs now before the Court are the undated affidavit of Mr. Hyne, a
representative of Nationstar, the servicer of the loan, in which he merely says that the original
Note and Mortgage is being held by Nationstar for Plaintiff. Mr. Hynes affidavit says that he
reviewed business records and other documents of Nationstar and that based upon his knowledge
of those systems, he presented the documents referred to in his affidavit. A mere servicer
cannot enforce through foreclosure a Note and Mortgage which can only be done in the name of
an identified holder of the Mortgage proven by authenticated proofs, to be the true party in
interest pursuing such enforcement action. U.S. Nat. Assn v. Guillaume, 209 N.J. 449, 472
(2012); Bank of New York v. Laks, 422 N.J. Super. 201, 2010 (App. Div. 2011).
The Hyne Affidavit is clearly deficient in terms of its quality and information containing
only conclusory assertions of possession of the Note by a servicer without any explanation of the

20

basis for that assertion and the relationship between the servicer and any owner of the mortgage
indebtedness. Such proofs are legally insufficient for this Court to render any conclusions
about possession and ownership of the Vitolo Mortgage given such weak and unsubstantiated
proofs. Bank of America, N.A. v. Limato, 2012 N.J. Super. Unpub. LEXIS 1559 (App. Div.
2014).
Examining the Certification of [the loan servicer], which
alleged Plaintiff was in actual possession of the
Promissory Note, the judge found the documents
amounted to nothing more than a naked assertion as
there was no information...provided as to the basis of this
assertion. Id. at page 8-9
The Court in Limato not only found that the servicers certification submitted in support
of its position was rife with hearsay (Id.), but the Court also found that the bold assertion by
the servicer that the Plaintiff was the holder of a negotiable instrument were not only lacking and
were unauthenticated, but that the servicing agreement provided by the servicer conflicted with
the subsequent recorded assignments of the Promissory Notes. Id. at pages 14-15. Accordingly,
the Appellate Division upheld the dismissal of the foreclosure action based upon such
certifications.
Moreover, the assertions of counsel in May 2014 made in open court at oral argument
that the original Plaintiff possessed the subject mortgage loan documents, assertions which were
not then and are not now substantiated by any sworn statements or proofs, clearly do not apply as
to the new Plaintiff trust entity. It cannot be said that such proofs pass muster under R. 1: 6-6
which requires proofs by way of affidavits or certifications based upon personal knowledge
setting forth only facts which are admissible in evidence to which the affiant is competent to
testify about. As the Appellate Division has stated, such statements do not constitute cognizable
facts.

Gonzales v. Ideal Tile Importing Co., 371 N.J. Super. 349, 359 (App. Div. 2004);
21

Templeton Arms v. Feins, 220 N.J. Super. 1, 24 (App. Div. 1987); Albrecht v. Correctional
Medical, 422 N.J. Super. 265, 267 N.1 (App. Div. 2011).
Thus, the proofs submitted by the Plaintiff to support the Courts finding of May 2014that the Plaintiff was the holder of the Note question as of the date of the filing of the Complaintdo not apply as to this newly named Plaintiff trust entity and no longer support the conclusions
which the Court has made in its Statement of Reasons on May 28, 2014.
Further set forth in the Courts May 28, 2014 Statement of Reasons, are the conclusions
of the Court that the remaining issues for trial concern the method and timing of the various
transfers and assignments within the PSA framework which the Court has found are critical to
establishing ownership of the Note and proving a chain of title. As the Court stated at page 28 of
its Statement of Reasons:
Technical and procedural compliance with the PSA is not merely a
formality but is of substantive importance. The threshold questions,
which then arise are: (1) if the fund received the mortgage
subsequent to the cut-off date, can plaintiff prosecute this action?;
(2) does the defendant have standing to raise this issue?; and (3) if
the defendant does not have standing, is defendant a third party
beneficiary to the PSA?
While the Court need not express an opinion as to how these issues
ought to be answered, the plaintiffs status as the holder of a valid
Note is the lynchpin of a foreclosure matter. If the foreclosure
matter proceeds to trial, these questions will have to be addressed.
See Statement of Reasons at page 28.
The July 2006 PSA produced by the Plaintiff in discovery on November 4, 2014 and
submitted to the Court in support of its Motion to Amend the Complaint identifies Credit Swiss
First Boston Mortgage Securities Corp. as the depositor of the PSA. The chain of title provided
by the Plaintiff does not have Credit Swiss First Boston Mortgage Securities Corp. as either an
assignor or a holder of the subject Note and Mortgage at any time. Thus, there is no link
22

between the original lender, Countrywide Home Loans, Inc. and Credit Swiss First Boston
Mortgage Securities Corp. which would show or prove that Credit Swiss First Boston Mortgage
Securities Corp. could have been the depositor of the subject Mortgage and Note into the July
2006 PSA trust. These facts further serve to contradict and undermine the conclusory assertions
by Mr. Hyne that the Vitolo Mortgage was placed within the PSA. Again, the proofs that have
now been brought before the Court on the Plaintiffs Motion to Amend the Complaint are not
only inconsistent with the findings of the Court in May 2014, but contradict those findings. It is
essential for the progress of this litigation for the Court to address the impact of these new
proofs on its prior rulings in this case as set forth in its Statement of Reasons dated May 2014.
In addressing this question, it is important for the Court to state whether or not its prior findings
of fact and conclusions of law are valid in light of this new evidence and the new or revised
certification and affidavits of the Plaintiff. The Courts prior findings of facts and conclusions of
law that were based upon the old proofs no longer apply.
POINT IV
NEW DOCUMENTS HAVE BEEN DISCOVERED THAT CONTRADICT THE
PLAINTIFFS CLAIMS THAT CSMC MORTGAGE-BACKED PASSED-THROUGH
CERTIFICATES, SERIES 2006-7 IS THE SAME TRUST AS CSMC MORTGAGE LOAN
TRUST 2006-7
Because the Certifications of Plaintiffs counsel and the Affidavit of Edward Hyne,
submitted in support of Plaintiffs Motion to Amend the Complaint, fail to provide any
explanation or basis upon which they claim the initial pleading was improperly pled, it is
necessary to look at the brief which has been submitted in support of Plaintiffs motion to try to
ascertain the Plaintiffs explanation for why the motion was filed. Such explanation is found on
page 4 of Plaintiffs brief where the Plaintiff casually asserts that the inadvertence or error or
improper pleading was a result of a shorthand naming or a shorthand error contained in the
23

Foreclosure Complaint. The paragraph in the brief goes on to state There are no other trusts
with which this particular trust could be confused with. The brief also contains the statement
that the proposed amendment would clarify confusion with respect to the proper party
plaintiffs name. These are the statements offered by the Plaintiff supporting the basis for the
Motion to Amend the Complaint. Such statements do not pass muster pursuant to R. 1:6-6. See
Comment to R. 1:6-6: Even more egregious is the attempted presentation of facts which are
neither of record, judicially noticeable nor stipulated, by way of statements of counsel made in
supporting briefs, memoranda and oral argument(underline added).
The essence of Plaintiffs Motion to Amend the Complaint is that the newly proposed
Plaintiff trust, CSMC Mortgage-Backed Passed-Through Certificates, Series 2006-7, is the same
entity as the original Plaintiff trust, CSMC Mortgage Loan Trust 2006-7. This fundamental
assertion by the Plaintiff is undermined, and indeed contradicted, by a new document which has
been obtained by Defendants and attached to the Supplemental Certification of Laura M. Rys,
Esq. at Exhibit E.
This new document is entitled Limited Power of Attorney and it is a document
executed by U.S. Bank National Association appointing Bank of America, N.A. as its servicer for
549 various trusts identified on the Schedule A attached thereto. Among the 549 individual and
separate trusts which are identified on that Schedule A, are, at page 13, the trusts identified as
CSMC Mortgage Loan Trust 2006-7 and another trust identified as CSMC Mortgage-Backed
Passed-Through Certificates, Series 2006-7. Each of these separately named and identified trusts
bears a separate and distinct Investor Number which is set forth on the Schedule A next to the
respective trusts names. The only fair reading that can be taken from this new document is that

24

these two trust entities are separate and distinct trusts with separate and distinct identifying
Investor Numbers.
This new document was not produced by the Plaintiff in response to any discovery
requests served by the Defendants even though such documents were called upon in the
discovery requests. This document was not attached to or provided to the Court by the Plaintiff
with its Motion to Amend the Complaint. In fact, the Plaintiffs brief specifically argues the
exact opposite of what this document shows.
At the very least, the Defendants should have the opportunity to seek deposition
discovery of the Plaintiff and its representatives as to the evidence set forth in this new Limited
Power of Attorney document and to seek further discovery on the issue of whether or not the
Plaintiffs statements - that the two entities are the same - are truthful and can be relied upon. It
is respectfully submitted that contrary to the Plaintiffs assertions in its Motion to Amend the
Complaint, this document itself disproves the assertions of the Plaintiff and shows that the new
entity which the Plaintiff seeks to bring into this litigation as a party plaintiff by way of its
Motion to Amend the Complaint is, in fact, an entirely new and separate entity and, therefore, a
new and separate Plaintiff.
The Plaintiffs further assertions, that the basis of the Motion to Amend the Complaint is
to prevent confusion as to the proper name of the Plaintiff, are not only undermined by the
newly discovered Limited Power of Attorney document, but are further undermined by the fact
that there are at least 18 other trusts bearing a similar name as the newly named Plaintiff trust.
See Rys Certification, at paragraph 14 and 15, with attached Exhibits G-1 and G-2.
The Plaintiffs assertions in their Motion to Amend the Complaint have been clearly called
into question and it is respectfully submitted have been undermined based upon the original

25

opposition filed as well as the statements set forth in the Certifications and documents presented
with this Motion for Reconsideration.
CONCLUSION
For the foregoing reasons, the Defendants Motion for Reconsideration should be granted
and the Courts Order granting Plaintiffs the Motion to Amend the Complaint should be altered
to a denial of that motion.
In the alternative, if the Motion to Amend the Complaint remains granted, the Defendants
respectfully request that they be permitted to pursue further discovery as outlined in this brief
and for the purposes stated herein. Defendants additionally respectfully request that, in the event
that the Motion to Amend the Complaint remains granted, that this Court provide a Statement of
Reasons clarifying the Courts prior rulings of May 2014 and the accompanying findings of fact
and conclusions of law with respect to the Plaintiffs standing as the true party-in interest as a
foreclosing owner and holder of the mortgage instrument effective October 30, 2013.

_____________________________
Laura M. Rys, Esq.
Dated: January 19, 2015

26