Professional Documents
Culture Documents
v.
John A. Reed, et al.
Defendant
DEFENDANTS MOTION TO VACATE
Now comes Defendant John A. Reed (Defendant), for this motion
to vacate this Courts November 13th 2008 judgment entry granting
Plaintiff Wells Fargo Bank NA. as Trustee for Securitized Asset Backed
Receivables LLC 2006-OP1 Mortgage Pass-Through Certificates, Series
2006 OP1 (Plaintiff) motion of judgment on the basis of the State of
Ohios Supreme Courts October 31, 2012 holding in Federal Home
Loan Mortgage Corporation v. Schwartzwald, 2012-Ohio-5017.
Respectful
ly submitted,
________________________
John A. Reed
40 Maple Ave..
Centerville, Ohio 45459
937-890-2576
Yotraj@Yahoo.com
SERVICE
A true and exact copy of the foregoing has been served this 16th
day of August, 2010 via email as follows:
Attys for Plaintif
Amelia A. Bower (0013474)
and
David Van Slyke (0077721)
300 East Broad St., Suite 590
Columbus, Ohio 43235
Via email @ abower@plunkettcooney.com
And dvanslyke@plunkettcooney.com
and
Sara M. Petersmann 0055402
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201-5480
Via email @ attyemail@lsrlaw.com
Atty for Defendant John L. Reed
Thomas W. Kendo
7925 Paragon Rd.
Dayton, Ohio 45459
Via email @ tkendo@midam-title.com
CERTIFICATE OF SERVICE
THE UNDERSIGNED HEREBY CERTIFIES that a true and
correct copy of the foregoing has been forwarded, via U,
Plaintiff
v.
DEFENDANTS MOTION
TO VACATE
Defendant also states that by the terms found upon the alleged
Mortgage itself, as is shown on page one, under the heading
BORROWER COVENANTS:
Borrower warrants and will defend generally the title to
the Property against all claims and demands, subject to
any encumbrances of record.
Within this action, Defendant, being forced to act on the assumption
the mortgage and note is in fact legitimate (which he adamantly does
not) Defendant is merely exercising his alleged legal & contractual
requirement and duty of warranting and defending generally the
contractual terms of the alleged mortgage contract.
Additionally, Defendant submits and requests the Courts Judicial
Notice of the recently acquired (Dec. 2012) Affidavit and
accompanying letter attached hereto as Exhibit F stating in part;
In an attempt to provide you with more assistance, I have
enclosed, an affidavit
signed by me, as Register of the Southern Essex District Registry
of Deeds, attesting to the presence of a robo-signed signature on
your document as listed on McDonnell Property Ana1ytics
Approved Robo-signers List. If you are currently being foreclosed
upon, this affidavit may be presented to your attorney, the lender,
or the court to show that your chain of title has been corrupted.
This Affidavit attests to the unlawful and known Robo-Signer
signature status of Plaintiffs Assignment of Mortgage (Ex E), as was
previously alleged by Defendant in numerous Defendants previous
pleadings.
Introductory Statement
Further, since the hearing on the case at Bar, newly found evidence
also proves that the alleged loan in this case was based on an illegally
manipulated Interest rate, LIBOR, which one of the participants to the
securitization schema proposed to hold the alleged note & mortgage
(Plaintiff Trust) was a major participant to. That entity being Barclays
Bank.
Defendant Reed, while repeatedly disavowing any knowledge of
same states not only would he never have accepted a loan based on a
known manipulated Interest rate but also states he could not ever have
been told or had knowledge of that the Index rate the alleged loan was
based on at the time of the alleged note creation, because the
manipulation of the rate was not yet publicly known making the note
void for lack of full disclosure of same. 1
1
Helen Galope v. Deutsche Bank National Trust, et al (9th Cir. 2014), Case No. 12-56892 We reverse the district
courts ruling that Galope failed to establish injury in-fact necessary for Article III standing on her LIBOR-based claims.
Galope adequately alleged that she would not have purchased her loan had she known that the Defendants were
manipulating the LIBOR rate. Article III standing exists when a plaintiff purchases a product she would not have
otherwise purchased but for the alleged misconduct of the defendant. Hinojos v. Kohls Corp., 718F.3d 1098, 1104 n.3
(9th Cir. 2013) (citing Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th Cir. 2012)); Maya v. Centex Corp., 658
F.3d 1060, 1069 (9th Cir. 2011). Contrary to the dissents assertion, Galores standing does not turn on whether she
actually made interest payments that were adjusted in response to the allegedly manipulated LIBOR reate. Glaopes
cognizable injury occurred when she purchased the loan, not upon payment of LIBOR-related interest. Maya, 658 F.3d at
1069.
"Constructive fraud: A contract or act, which, not originating in evil design and contrivance to perpetuate a positive
fraud or injury upon other persons, yet, by its necessary tendency to deceive or mislead them, or to violate a public or
private confidence, or to impair or injure public interest, is deemed equally reprehensible with positive fraud, and
therefore is prohibited by law, ... " Bovier's Law Dictionary - 1856 Edition
"Fraud vitiates the most solemn contracts, documents, and even judgments." i.e. Documents, Constitutions, Court
Decisions.. U.S. vs. Throckmorton, 98 U.S. 61
Fed. Home Loan Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017. (Standing is required to invoke the jurisdiction of the
common pleas court, and it is determined as of the filing of the complaint.)
August 15, 2008, Memorandum in Opposition to Plaintiffs Motion for Summary Judgment
October 15, 2008, Reply to Complaint
November 21,2008, Motion to Vacate a Void Judgment
December 1, 2008, Memorandum in Opposition to Plaintiffs Memorandum in Opposition to Defendant John A. Reed's
Motion to Vacate
January 16, 2009, Motion for Reconsideration
April 1,2010, Amended Motion to Appeal Ruling of the Lower COURT
April 30, 2010, Application for Emergency Reconsideration
February 14,2011, Motion to Vacate Judgment Entry
5
Civ.R. 10(D) requires attachment to the pleading of a copy of the written account or any other written instrument when
a claim or defense is founded on those documents.
Fed. Home Loan Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017. (Standing is required to invoke the jurisdiction of the
common pleas court, and it is determined as of the filing of the complaint.)
Wells Fargo v. Burrows, 2012-Ohio-5995 (9th Dist.)(A plaintiff must attach documents evidencing the right to enforce
both the note and the mortgage to the complaint to show standing, or be subject to dismissal.)
HSBC Bank USA, N.A. v. Sherman, 2013-Ohio-4220 (1st Dist.)(Determination of standing should be made based on
attachments to a complaint, but standing in a foreclosure action can be established by showing the right to enforce either
the note or mortgage. Also adopted in the Second, Fifth, Eleventh, and Twelfth Districts.)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (To survive a motion for summary judgment for lack of standing, a
party must set forth by affidavit or other evidence specific facts to support its claim.)
10
On June 9th, 2005, H&RB (Entity A), with the use of an Allonge
(exhibit **) allegedly assigned all of their rights to the note and
mortgage to Option One Mortgage Corporation (Entity B), (Option
One).
Option One simultaneously (using the same Signatory) creates a
secondary allonge (exhibit**) transferring all of their rights to the note
and mortgage to _________________.
I would write Blank but according to SEC Law, if I did that then I would be representing that only
Blank was the authorized holder, those would be the same SEC laws which require the word Bearer to
be inserted before this Allonge can legally be treated as a Bearer instrument.
7
Blacks 9th intent. (l3c) 1. The state of mind accompanying an act, esp. a forbidden act. While motive is
the inducement to do some act, intent is the mental resolution or determination to do it. When the intent to
do an act that violates the law exists, motive becomes immaterial. Cf. MOTIVE; SCIENTER.
8
As with almost all of Plaintiffs document submissions, the documents Plaintiff submits that are to be
representative of the transfer of the Note & Mortgage from Option One to Barclays Bank are all unsigned
and unauthenticated so no true method of transfer is even represented. BUT, the controlling Law (IRS &
NY. EPTL) both require full sales and transfer of all rights and ownership before a true securitization of the
notes and mortgages into the trust can exist and the Trusts controlling document, the PSA also mandates a
complete evidentiary trail of all transfers and/or assignments of both the note and mortgage before being
allowed to be deposited into the trust.
9
Blacks 9th intent. (l3c) 1. The state of mind accompanying an act, esp. a forbidden act. While motive is
the inducement to do some act, intent is the mental resolution or determination to do it. When the intent to
12
approximately 5,000 other like kind investments and uses the entire
bundle to create a new financial entity called a Special Purpose Vehicle
(SPV), which is designed to accept deposit of the bundled notes and
mortgages and is a REMIC Trust.
Barclays Bank (Entity C) then, we are then lead to believe,
allegedly sells through a document titled BILL OF SALE Ex _ ;
in consideration of (i) the sum of $1,214,208,.30 (not a
typo!) to be paid to it in immediately available fund by
SECURITIZED ASSET BACKED RECEIVABLES LLC (Purchaser) and
(ii) the Class X, Class P and Class R Certificates issued pursuant to
a Pooling and Servicing Agreement, dated as of January 1,2006 (the
Pooling and Servicing Agreement), among the Purchaser, as
Depositor, Option One Mortgage Corporation, as servicer, and Wells
Fargo Bank, National Association, as trustee, does as of January 26,
2006 hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser without recourse, all the Sellers right, title and
interest in and to the Mortgage Loans described on Exhibit A
attached hereto and made a part hereof, including all interest and
principal received by the Seller on or with respect to such Mortgage
Loans.
and then transfers all of their rights to the contents of the
bundled notes and mortgages which contains Defendants alleged Note
& Mortgage (again without a physical assignment, no proof of transfer,
no proof of negotiation, no receipt of delivery, etc.) to the securitized
trusts Depositor10 Securitized Asset Backed Receivables LLC(Entity
D) (SABR), who then allegedly deposits and transfers all of their
interests and rights (yet again without a physical assignment, no proof
of transfer, no proof of negotiation, no receipt of delivery, etc.) to the
notes and mortgages in to the Trust (Entity E).
11
do an act that violates the law exists, motive becomes immaterial. Cf. MOTIVE; SCIENTER.
10
Same as Footnote 5 above no signed or authenticated contract.
11
It is important here to note that in each transaction listed above, Plaintiff also proffers no receipts, no
delivery acceptance, nothing whatsoever to show proof of conveyance or transfer or negotiation or sale of, in
the end, an alleged $5 Billion worth of financial instruments from any party to any other party whatsoever.
13
14
13
Or for that matter any proof of transfer to the trust from the Depositor or proof of transfer from the
Sponsor (Barclays Bank) to the Depositor or proof of transfer from the Lender Option One to the Sponsor
Barclays Bank! One can only transfer what one has to transfer.
15
43.
in the entirety from the Trust itself, actions of which are limited by law
and by contract, lacked not only any proper Assignment of the Note
and/or mortgage that is the subject of this action, but also lacked
authority to initiate the foreclosure action which must be given from
within the trusts governing document, its Indenture, the Pooling and
Servicing Agreement (PSA). Plaintiff Trustee lacked the legal and
mandatory requirement of capacity to invoke the jurisdiction of this
court and therefore, Plaintiff had no standing to initiate this suit which
means this suit was VOID ab initio.
44.
Servicer, another separate legal entity hired by the trust to service the document requirements of the trust.
Its duties are outlined with specificity within the trusts Pooling and Servicing Agreement.
16
15
IRC 860 requires that, among other things, the REMIC trust be a closed entity and bankruptcy remote. New
Yorks Estate Powers & Trust laws were chosen by RMBS sponsors (in the PSAs) as the controlling statutes to govern
REMIC trusts, as the EPTLs rules and concomitant common law establish common law trusts that conform the
REMIC tax free pass-through requirements. NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 end note 7
18
In the case at Bar, Plaintiff shows not 1 iota of proof that said
Sponsor, Barclays Bank (Entity C), ever received Defendants Note
and/or Mortgage.
In the case at Bar, Plaintiff shows not 1 iota of proof that said
Depositor (Entity D) ever received Defendants Note and/or Mortgage
OR the alleged and previously allegedly created bundled notes and
mortgages (from Sponsor Barclays Bank) containing Defendants
alleged Note and/or Mortgage.
In the case at Bar, Plaintiff shows not 1 iota of proof that said
Depositor (SABR) ever received or deposited the alleged Mortgage and
Note into the Plaintiff Trust.
In the case at Bar, Plaintiff shows not 1 iota of proof that said
Plaintiff Trust ever transferred the alleged Mortgage and Note to the
Plaintiff Trusts Trustee, Wells Fargo Bank N.A. who is the Plaintiff in
this case.
In the case at bar and in fact, the assignment of mortgage (&
note) that Plaintiff proffers, and which allege to represent the right to
ownership (or being Holder) of both the Note and Mortgage, initiates
from Lender Option One (Assignor), bypassing Barclays Bank,
bypassing the Depositor and bypassing the Trust itself going straight
to Plaintiff debt collector (Assignee). This is an unlawful and forbidden
action.
It is essential for the courts to understand that before the alleged
note & mortgage could be placed within any REMIC trust, each of
these steps was mandated by the Trusts governing law, New York
Estates Power and Trust Law (N.Y. E.P.T.L), IRS Tax Code (I.R.C.)
requirements AND by the contractual terms found within the PSA
19
16
IRC 860 requires that, among other things, the REMIC trust be a closed entity and bankruptcy remote. New
Yorks Estate Powers & Trust laws were chosen by RMBS sponsors (in the PSAs) as the controlling statutes to govern
REMIC trusts, as the EPTLs rules and concomitant common law establish common law trusts that conform the
REMIC tax free pass-through requirements. NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No.1 end note 7
17
If a tax-free pass-through trust lost its REMIC status, the tax penalties to an investor that purchased certificates would
be devastating. It would also trigger an event called a put back. There was considerable argument over whether these
trusts were business trusts or common law trusts, but the trend appears to be a judicial recognition that they are in fact
common law trusts. NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 end note 8
18
Blacks 9th. trust indenture. 1. A document containing the terms and conditions governing a trustee's
conduct and the trust beneficiaries' rights. - Also termed indenture of trust. [Cases: Trusts C=> 19-29.] 2. See
deed of trust under DEED.
20
The PSA19 requires that each party to the sale of the mortgage
loans endorse each promissory note to the next party in the chain of
title until the promissory note and mortgage is delivered to the
Trustee for the benefit of the Trust. This requirement is included in
the PSA and is found at Section 2.01 (b) which in part reads;
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered
or caused to be delivered to the Trustee for the benefit of the Certificateholders the following
documents or instruments with respect to each Mortgage Loan so assigned:
(i)
the original Mortgage Note bearing all intervening endorsements showing a complete chain of
endorsement from the originator to the last endorsee...
(ii) the original of any guarantee executed in connection with the Mortgage Note;
(iii)
the original Mortgage with evidence of recording thereon or a certified true copy of such
Mortgage submitted for recording.20
(iv)
the originals of all assumption, modification, consolidation and extension agreements, if any,
with evidence of recording thereon;
(v)
the original Assignment of Mortgage for each Mortgage Loan endorsed in blank;
(vi)
the originals of all intervening assignments of Mortgage (if any) evidencing a complete chain
of assignment from the applicable originator to the last endorsee with evidence of recording
thereon....
The Trusts Pooling and Servicing Agreement is a Public Document available here
http://www.secinfo.com/dRSm6.v8h.d.htm
Note: indeed NY EPTL law requires recordation of the note before its acceptance as a part of the trust
is consummated.
20
21
date of the trust pursuant to section 2.02 of the PSA. The absence of
these endorsements on this promissory note is not only very
compelling proof of lack of note holder status, but also proof of
Plaintiffs fraud in the production to the Court of the Assignment of
Mortgage (Exhibit E) which by the terms of the trusts own
governing document (PSA) cannot, does not and cannot now (post
trust closing date) ever legally exist. In fact, Plaintiffs proffered
Assignment of Note & Mortgage is a legal impossibility.
Under the terms of the trust which are contractually, legally
governed under NY E.P.T.L., the contracts between the parties (PSA),
and/or UCC 9 in the case at Bar, there are unmet requirements for
the chain of title by the foreclosing entity to be qualified as a PETE
(person entitled to enforce). In other words, single endorsements in
blank, claiming that any party in possession of a note can enforce a
note, even a thief, skipped assignees, no proof of Holder in Due Course
does not work. In the case at bar, the trusts Trustee is specifically
NOT allowed to own an asset acquired out of thin air on its own its
sole existence is for service to the Trust. Anything done by any trust
participant in contravention to the trusts indenture is by contractual
agreement VOID at its inception. As such, in the case at Bar, should
the Assignment of Mortgage to Plaintiff be deemed legitimate, then the
Plaintiff Trustee would be a non legal entity. In essence its a catch-22.
Either way, Plaintiff lacked the capacity to invoke the jurisdiction of
the court to initiate their action.
The evidence in the collateral file shows an utter and complete
failure of the parties to this alleged securitization to actually convey
this alleged promissory note to this alleged Trust as was articulated by
the Defendant in each and every previous pleading. The plaintiff
Trustee has offered no proof of ownership and the collateral file
22
own terms been closed for more than 2 years at the time the
alleged transfer took place.
c. Third, the alleged promissory note was never endorsed to
the Trust by the Depositor and as such is devoid of the
required chain of endorsements required within the PSA and
which any reasonable market participant would expect to be
present for the purposes of establishing the series of true
sales set forth in the PSA to establish a whole and complete
chain of title of the promissory note for the purposes of
bankruptcy remoteness.
d. Fourth, The claim that the alleged note has been
transferred to the Trust only because it is endorsed in blank
simply flies in the face of the mandatory terms of the PSA and
N.Y. E.P.T.L. and is an extreme deviation from the industry
standards, customs and practices which prevailed at all times
material to this transaction and which prevail today.
e. Fifth, any transfer allowed to be accepted into the trust
past the trusts own cut-off date of deposits invokes the rather
draconian IRS mandate of taxing the REMIC trusts assets not
at the favorable rate of 0% that they now enjoy, but at the rate
of 100% of the value of their assets causing, massive
financial losses to the Certificate Holder Investors.
Equally, by allowing a Deposit into the trust after the trusts
closing date as Plaintiffs Assignment of Mortgage alleges,
Plaintiff Wells Fargo Bank as Trustee again violates the plain
language found within the PSA at section 8.11 titled Tax Matters
section (j) para. 6 which reads in part;
24
Neither the Servicer nor Trustee shall (i) permit the creation of any interests in any
Trust REMIC other than the regular and residual interests set forth in the Preliminary
Statement, or (iii) otherwise knowingly or intentionally take any action, cause
the Trust Fund to take any action or fail to take (or fail to cause to be taken)any action
reasonably within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be, could (A)
endanger the status of any Trust REMIC as a REMIC or (B) result in the imposition of
a tax upon any Trust REMIC or the Trust Fund (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a Trust REMIC set forth in Section 860G(d) of the Code, or the tax on
"net income from foreclosure property") unless the Trustee receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such party fails to
pay such expense, and the Trustee determines that taking such action is in the best
interest of the Trust Fund and the Certificateholders, at the expense of the Trust Fund,
but in no event at the expense of the Trustee) to the effect that the contemplated action
will not, with respect to the Trust Fund or any Trust REMIC created hereunder,
endanger such status or, unless the Trustee determines in its sole discretion to
indemnify the Trust Fund against such tax, result in the imposition of such a tax).
Trusts cut-Off date is the date in which the Trust is mandated by law
to stop accepting deposits into it. Aside from the creation post
foreclosure issue related above, by the terms of the Trusts own PSA,
N.Y. E.P.T.L. & I.R.C. regulations all mandate that this Assignment was
void at its inception.
The Trust is also a Real Estate Mortgage Investment Conduit
(REMIC) trust and as such is held in strict regulations with both I.R.S.
REMIC trust rules of Law and the Laws and Rules created specifically
in accordance with the Trust laws of either the State of the Trusts
creation or by the contractual choice of the participants of the Trust,
as is the case at bar. The agreed contractual choice of Law to be
adhered to by the Trusts participants in the case at Bar is New York
Trust Law E.P.T.L..
Plaintiffs production of the Assignment is contrary to New
York Law and IRS 860. In short, the Plaintiff Trust exercised a
prohibited act on March 7th, 2008.
The aforementioned Assignment is contrary to the Trusts
Instruments and therefore Void pursuant to IRS 860A-G and New York
Estates, Powers & Trusts (E.P.T.L) - Part 2 - 7 2.4 and the Trusts
Indenture requirements.
"Any action which deviates from the Trust documents is void. 7-2.4 Act of trustee in
contravention of trust If the trust is expressed in the instrument creating the estate of the
trustee, every sale, conveyance or other act of the trustee in contravention of the trust,
except as authorized by this article and by any other provision of law, is void".
27
sale of the Asset to the Plaintiff Trust thereby making the Asset, inter
alia, bankruptcy remote and securely within the Trust Vault.
Plaintiffs proffered Assignment in the case at Bar proves only
that it was a counterfeit, forged and fabricated document created
solely for the purpose of facilitating the easy theft of Defendants home
within a Court of Law and the use of the Court in the laundering of the
illegal paperwork used to create the alleged Note & Mortgage and
subsequent alleged MBS Investment Trust.
The Trust is a REMIC Trust
The Trust was formed as a REMIC trust.21 Under the REMIC
provisions of the Internal Revenue Code (IRC) the closing date of the
Trust is also the startup day for the Trust. The closing date/startup day
is significant because all assets of the Trust are mandated to be
transferred to the Trust on or before the closing date to ensure
that the Trust received its REMIC status. The IRC provides in
pertinent part that:
Except as provided in section 860G(d)(2), if any amount is contributed to a
REMIC after the startup day, there is hereby imposed a tax for the taxable year of the
REMIC in which the contribution is received equal to 100 percent of the amount of such
contribution.
26 U.S.C. 860G(d)(1).
The assignment of the note and the mortgage which alleges the
transfer of the Note & Mortgage in this case was dated March 7th,
2008, however, pursuant to the terms of the PSA the trust closed on
January 1st, 2006. Acceptance of the alleged Note & Mortgage into
21
The Internal Revenue Code provides that the terms real estate mortgage investment conduit and
REMIC mean any entity(1) to which an election to be treated as a REMIC applies for the taxable year
and all prior taxable years, (2) all of the interests in which are regular interests or residual interests, (3)
which has 1 (and only 1) class of residual interests (and all distributions, if any, with respect to such interests
are pro rata), (4) as of the close of the 3rd month beginning after the startup day and at all times thereafter,
substantially all of the assets of which consist of qualified mortgages and permitted investments.
28
There is no trust if the trust fails to acquire the property. Kermani v. Liberty
Mut. Ins. Co., 4 A.D. 2d 603 (N.Y. App. Div. sa Depart. 1957).
22
29
Blacks 9th proffer (prof-dr), vb. (l4c) To offer or tender (something, esp. evidence) for immediate acceptance.
[Cases: Criminal Law C':.:o670; Federal Civil Procedure 2013; Trial (7.::>44.]- proffer, n.
30
the post dated, post created and filed with the court
months after foreclosure initiation, Assignment of
Mortgage (&Note)(Ex__) which is Robo-Signed24 by a
known Robo-Signer25 named Ms. Topaka Love.26
2.
The post dated, post created and filed with the court
months after foreclosure initiation, Affidavit of Status of
Account and Military Status(Ex__) again signed by the
same Robo-Signer Ms. Topaka Love
24
we now have a legal definition of "Robo-signer" from the U.S.C.O.A. for the 5th Circuit (TX) in the case of
REINAGEL v. DEUTSCHE BANK NATIONAL TRUST COMPANY, No. 12-50569 (5th Cir. Oct. 29, 2013). The court
defined "Robo-signing" as follows;
"Robosigning is the colloquial term the media, politicians, and consumer advocates have used to describe an
array of questionable practices banks deployed to perfect their right to foreclose in the wake of the subprime
mortgage crisis, practices that included having bank employees or third-party contractors: (1) execute and
acknowledge transfer documents in large quantities within a short period of time, often without the purported
assignors authorization and outside of the presence of the notary certifying the acknowledgment, and (2) swear out
affidavits confirming the existence of missing pieces of loan documentation, without personal knowledge and often
outside of the presence of the notary."
25
In January 2011, John L. OBrien, Register of the Essex Southern District registry of Deeds in Salem, Massachusetts
(Register OBrien), commissioned McDonnell Property Analytics, Inc. (MPA) to conduct a forensic examination to
test the integrity of his registry due to his concerns that: 1.) Mortgage Electronic Registration Systems, Inc. (MERS)
proclaims that its members can avoid recording assignments of mortgage if they register them electronically in the
MERS System; and 2.) due to the robo-signing scandal spotlighting Linda Green an employee of Defendant DocX,
LLC as featured in a 60 Minutes expose on the subject which first aired on April 3, 2011.
A true and correct copy of my report entitled Forensic Examination Of Assignments Of Mortgage Recorded During 2010
In The Essex Southern District Registry Of Deeds, which I released on June 28, 2011, is available on Register OBriens
website at: http://salemdeeds.com/pdf/Audit.pdf.
26
John L. OBrien, Register of the Essex Southern District registry of Deeds in Salem, Massachusetts publishes a list of
known Robo-Signers at his website at http://www.salemdeeds.com/robosite/pdf/robosigners.pdf. Ms. Loves name
appears on page 2, Column B, Row 23.
31
3.
32
33
34
35
29
28
The term "robosigning" does not accurately describe the pattern and practice. The pattern and practice are more
accurately described as contract perjury, contract forgery, evidence fabrication, fraud upon the Court, and theft in which
families are rendered homeless as a result of criminal behavior.
29
The practice from investopedia, "In the third and fourth quarters of 2010, a robo-signing scandal emerged in the
United States involving GMAC Mortgage and a number of major U.S banks. Banks had to halt thousands of foreclosures
in numerous states when it became known that the paperwork was illegitimate because the signers had not actually
reviewed it. While some robo-signers were middle managers, others were temporary workers with virtually no
understanding of the work they were doing."
37
In an attempt to provide you with more assistance, I have enclosed, an affidavit signed
by me, as Register of the Southern Essex District Registry of Deeds, attesting to the
presence of a robo-signed signature on your document as listed on McDonnell Property
Ana1ytics Approved Robo-signers List. If you are currently being foreclosed upon, this
affidavit may be presented to your attorney, the lender, or the court to show that your
chain of title has been corrupted.
31 32 33
Answer of Defendant John Reed (5/26/2008) 8, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, and throughout the rest
of the pleadings.
31
Answer of Defendant John A. Reed Memorandum in Opposition to Plaintiffs Motion For Summary Judgment and
Request For Trial By Jury (filed Aug, 15th, 2008) The opening statement Firstly, You Honor, the plaintiff hasnt even
proven that it owned or held the promissory note which is the subject of the complaint 1, 2,
32
Each and every other pleading submitted by Defendant and already a part of this legal actions record.
MOTION TO APPEAL THE DECISION, ORDER AND ENTRY OVERRULING DEFENDANTS EMERGENCY
AMENDED MOTION TO VACATE A VOID JUDGMENT in its entirety
33
34
39
40
The final question that must be asked your Honor is why would a
Trust buy a Note that was already in default with no monthly income
cash flow and in contravention to the Trusts Indenture for its
Investors? The answer is simple. They couldnt and they didnt.
As a result, the Courts November 13th, 2008 entry granting
Plaintiffs motion for judgment and issuing a decree of foreclosure is
void ab initio (as opposed to voidable).
Accordingly, based upon the foregoing, Defendant respectfully
requests that the November 13th 2008 entry be vacated and this matter
remanded back to the Civil Court with instruction to dismiss,
instruction to quiet title and each of Defendants Counterclaims to be
lawfully adjudged.
Respectfully submitted,
________________________
John A. Reed
40 Maple Ave.
Centerville, Ohio 45459
937-890-2576
Yotraj@Yahoo.com
41
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Fed Home Loan Mtge. Corp. v. Schwartzwald, Slip Opinion No. 2012-0hio-5017.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of
the Ohio Official Reports. Readers are requested to promptly notify the Reporter of
Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any
typographical or other formal errors in the opinion, in order that corrections may be made
before the opinion is published.
APPEAL from and CERTIFIED by the Court of Appeals for Greene County,
No. 2010 CA 41, 194 Ohio App.3d 644, 2011-Ohio-2681.
O'DONNELL, J.
{1} Duane and Julie Schwartzwald appeal from a judgment of the Second District
Court of Appeals affirming a decree of foreclosure entered in favor of the Federal Home
Loan Mortgage Corporation. In addition, the appellate court certified that its decision in
this case conflicts with decisions of the First and
Eighth Districts on the following issue: "In a mortgage foreclosure action, the
lack of standing or a real party in interest defect can be cured by the assignment of
the mortgage prior to judgment."
{2} Federal Home Loan commenced this foreclosure action before it obtained an
assignment of the promissory note and mortgage securing the Schwartzwalds loan. The
Schwartzwalds maintained that Federal Home Loan lacked standing to sue. The trial court
granted summary judgment in favor of Federal Home Loan and entered a decree of
foreclosure. The appellate court affirmed, holding that Federal Home Loan had remedied
its lack of standing when it obtained an assignment from the real party in interest.
{3} However, standing is required to invoke the jurisdiction of the common pleas
court, and therefore it is determined as of the filing of the complaint. Thus, receiving an
assignment of a promissory note and mortgage from the real party in interest subsequent
to the filing of an action but prior to the entry of judgment does not cure a lack of standing
to file a foreclosure action.
(4} Accordingly, the judgment of the court of appeals is reversed, and the cause is
dismissed.
Facts and Procedural History
(5} In November 2006, Duane and Julie Schwartzwald purchased a home in
Xenia, Ohio, and received a mortgage loan from Legacy Mortgage in the amount of
$251,250. They executed a promissory note and a mortgage granting Legacy Mortgage a
security interest in the property. Legacy Mortgage then endorsed the promissory note as
payable to Wells Fargo Bank, N.A., and assigned it the mortgage.
{ 6} In September 2008, Duane Schwartzwald lost his job at Barco, Inc., and the
Schwartzwalds moved to Indiana so he could accept a new position.
They continued making mortgage payments as they tried to sell the house in Xenia, but
they went into default on January 1, 2009. In March 2009, Wells 2
January Term, 2012
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Fargo agreed to list the property for a short sale, and on April 8, 2009, the Schwartzwalds
entered into a contract to sell it for $259,900, with closing set for June 8, 2009.
{7} However, on April 15, 2009, Federal Home Loan Mortgage Corporation
commenced this foreclosure action, alleging that the Schwartzwalds had defaulted on their
loan and owed $245,085.18 plus interest, costs, and advances. It attached a copy of the
mortgage identifying the Schwartzwalds as borrowers and Legacy Mortgage as lender, but
did not attach a copy of the note, claiming that "a copy of [the note] is currently
unavailable."
{8} Julie Schwartzwald then contacted Wells Fargo about the foreclosure
complaint. She testified, "I was told that it was 'standard procedure' and 'don't worry about
it' because we were doing a short sale." The Schwartzwalds did not answer the complaint.
{9} On April 24, 2009, Federal Home Loan filed with the court a copy
of the note signed by the Schwartzwalds in favor of Legacy Mortgage. The final
page carries a blank endorsement by Wells Fargo placed above the endorsement
by Legacy Mortgage payable to Wells Fargo.
{10} On May 15, 2009, Wells Fargo assigned the note and mortgage to
Federal Home Loan, and Federal Home Loan filed with the court a copy of the
assignment on June 17, 2009. It then moved for a default judgment and a
summary judgment, but the trial court discovered that Federal Home Loan had
failed to establish a chain of title because no assignment of the mortgage from
Legacy Mortgage to Wells Fargo appeared in the record.
{11} During this time, even though it had assigned its interest in the
note and mortgage to Federal Home Loan, Wells Fargo continued discussing a
short sale of the property with the Schwartzwalds, but delays in. this process
eventually caused the Schwartzwalds' buyer to rescind the offer. On December
14, 2009, the trial court granted the Schwartzwalds leave to file an answer. That
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SUPREME COURT
same day, Federal Home Loan filed with the court a copy of the assignment of the
mortgage from Legacy Mortgage to Wells Fargo dated November 27,2006.
{12} Federal Home Loan again moved for summary judgment,
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supporting the motion with the affidavit of Herman John Kennerty, vice president
of loan documentation for Wells Fargo as servicing agent for Federal Home Loan,
who averred that the Schwartzwalds were in default and who authenticated the .
note and mortgage as well as the assignment of the note and mortgage from Wells
Fargo. Subsequently, Federal Home Loan filed copies of the notarized
assignments from Legacy Mortgage to Wells Fargo and from Wells Fargo to
Federal Home Loan.
{13} The Schwartzwalds also moved for summary judgment, asserting
that Federal Home Loan lacked standing to foreclose on their property.
{14} The trial court entered summary judgment for Federal Home Loan,
finding that the Schwartzwalds had defaulted on the note, and it ordered the
equity of redemption foreclosed and the property sold. Federal Home Loan
purchased the property at a sheriff's sale.
{15} On appeal, the Second District Court of Appeals affirmed and held
that Federal Home Loan had established its right to enforce the promissory note
as a nonholder in possession, because assignment of the mortgage effected a
transfer of the note it secured. The court further explained that standing is not a
jurisdictional prerequisite and that a lack of standing may be cured by substituting
the real party in interest for an original party pursuant to Civ.R. 17(A). Thus, the
court concluded that although Federal Home Loan lacked standing at the time it
commenced the foreclosure action, it cured that defect by the assignment of the
mortgage and transfer of the note prior to entry of judgment.
{16} The court of appeals certified that its decision conflicted with
Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-0hio-4603, 897
N.E.2d 722 (1st Dist.), 15-16; Bank of New York v. Gindele, 1st Dist. No. C4
January Term, 2012
090251, 2010-0hio-542, 3-4; and Wells Fargo Bank, N.A. v. Jordan, 8th Dist.
No. 91675, 2009-0hio-I092, 21, cases that held that a lack of standing cannot
be cured by substituting the real party in interest for an original party pursuant to
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v. Alta Verde Industries, lnc., 931 F.2d 1055, 1061 (5th Cir.1991).
{25} Further, invoking the jurisdiction of the court "depends on the state
of things at the time of the action brought," Mullan v. Torrance, 22 U.S. 537, 539,
6 L.Ed. 154 (1824), and the Supreme Court has observed that "[t]he state of
things and the originally alleged state of things are not synonymous;
demonstration that the original allegations were false will defeat jurisdiction."
Rockwell Internatl. Corp. v. United States, 549 U.S. 457, 473, 127 S.Ct. 1397,
167 L.Ed.2d 190 (2007).
{26} Thus, "[p]ost-filing events that supply standing that did not exist
on filing may be disregarded, denying standing despite a showing of sufficient
present injury caused by the challenged acts and capable of judicial redress." 13A
Wright, Miller & Cooper, Federal Practice and Procedure 9, Section 3531
(2008); see Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 575, 124
S.Ct. 1920, 158 L.Ed.2d 866 (2004), quoting Caterpillar Inc. v. Lewis, 519 U.S.
61, 75, 117 S.Ct. 467, 136 L.Ed.2d 437 (rejecting argument that" 'finality,
efficiency, and judicial economy' " can justify suspension of the time-of-filing
rule); Utah Assn. of Counties v. Bush, 455 F.3d 1094, 1101, and fn. 6 (10th
Cir.2006) (a plaintiff cannot rely on injuries occurring after the filing of the
complaint to establish standing).
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January Term, 2012
{27} This principle accords with decisions from other states holding that
standing is determined as of the filing the complaint. See, e.g., Deutsche Bank
Natl. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151, 11 ("If Deutsche Bank
became a person entitled to enforce the note as either a holder or nonholder in
possession who has the rights of a holder after the foreclosure action was filed,
then the case may be dismissed without prejudice * * *" [emphasis added]); U.S.
Bank Natl. Assn. v. Kimball, 190 Vt. 210, 2011 VT 81, 27 A.3d 1087, 14 ("U.S.
Bank was required to show that at the time the complaint was filed it possessed
the original note either made payable to bearer with a blank endorsement or made
49
jurisdiction may proceed to adjudicate the matter. Civ.R. 17." However, four
justices declined to join that portion of the opinion, and therefore it is not a
holding of this court. See Ohio Constitution, Article N, Section 2(A) ("A
majority of the supreme court shall be necessary to constitute a quorum or to
render a judgment").
{30} At common law, all actions had to be brought in the name of the
person holding legal title to the right asserted, and individuals possessing only
equitable or beneficial interests could not sue in their own right. See generally
Clark & Hutchins, The Real Party in Interest, 34 Yale L.J. 259 (1925); 6A
Wright, Miller & Kane, Federal Practice and Procedure, Section 1541 (2010).
However, the practice in equity relaxed this requirement, and states later
abrogated the common-law rules and adopted "rules that permitted any 'real party
in interest' to bring suit." Sprint Communications Co., L.P. v.APCC Servs., Inc.,
554 U.S. 269, 279, 128 S.Ct. 2531, 171 L.Ed 2d 424 (2008).
{31} In Ohio, Civ.R. 17(A) governs the procedural requirement that a
complaint be brought in the name of the real party in interest and provides:
Every action shall be prosecuted in the name of the real party in interest.
An executor, administrator, guardian, bailee,
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January Term, 2012
trustee of an express trust, a party with whom or in whose name a contract has
been made for the benefit of another, or a party authorized by statute may sue in
his name as such representative without joining with him the party for whose
benefit the action is brought. When a statute of this.state so provides, an action for
the use or benefit of another shall be brought in the name of this state. No action
shall be dismissed on the ground that it is not prosecuted in the name of the real
party in interest until a reasonable time has been allowed after objection for
ratification of commencement of the action by, or joinder or substitution of, the
real party in interest. Such ratification, joinder, or substitution shall have the same
51
effect as if the action had been commenced in the name of the real party .in
interest.
{32} Considering Civ.R. 17(A) in Shealy v. Campbell, 20 Ohio St.3d 23,
2425,485 N.E.2d 701 (1985), we observed:
The purpose behind the real party in interest rule is '* * * to enable the
defendant to avail himself of evidence and defenses that the defendant has against
the real party in interest, and to assure him finality of the judgment, and that he
will be protected against another suit brought by the real party at interest on the
same matter.' Celanese Corp. of America v. John Clark Industries (5 Cir.l954), 214
F.2d 551, 556." [In re Highland Holiday Subdivision (1971), 27 Ohio App.2d
237] 240 [273 N.E.2d 903).
{33} As the Supreme Court explained in Lincoln Property Co. v. Roche,
546 U.S. 81,90, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005), the real-party-in-interest
rule concerns only proper party joinder. Civ.R. 17(A) does not address standing;
rather, the point of the rule is that "suits by representative plaintiffs on behalf of
the real parties in interest are the exception rather than the rule and should only be
allowed when the real parties in interest are identifiable and the res judicata scope
of the judgment can be effectively determined.". Consumer Fedn. of Am. v. Upjohn Co.,
346 A.2d 725, 729 (D.C.1975) (construing analogous District of
Columbia rule).
{34} Thus, the Third and the Ninth Circuits have rejected the notion that
Fed.R.Civ.P. 17(a), on which Civ.R. 17(A) is based, allows a party with no personal stake
in a controversy to file a claim on behalf of a third party, obtain the
cause of action by assignment, and then have the assignment relate back to
commencement of the action, stating:
"Rule 17(a) does not apply to a situation where a party with no cause of
action files a lawsuit to toll the statute of limitations and later obtains a cause of
action through assignment. Rule 17(a) is the codification of the salutary principle
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L.L.C., Community Legal Aid Services, Inc., Ohio Poverty Law Center, Legal
Aid Society of Columbus, Southeastern Ohio Legal Services, Legal Aid of
Western Ohio, and Pro Seniors, Inc.
______________________________
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EXHIBITS
Exhibit A
Original Complaint
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
Exhibit B
Assignment of Mortgage from Option One Mort. Corp.
to Wells Fargo Bank Na.
81
Exhibit C
Notice of Filing of Assignment
82
83
84
85
86
Exhibit E
87
Exhibit E2
88
Exhibit G
EXECUTION COPY FLOW AMENDED AND RESTATEDMORTGAGE LOAN
PURCHASE AND WARRANTIES AGREEMENT (ECFAARMLPAWA)
89
Exhibit G2
(ECFAARMLPAWA) Due Diligence Statement
90
Exhibit G3
(ECFAARMLPAWA) Validity of Mortgage Documents & Ownership
91
Exhibit G4
(ECFAARMLPAWA) Origination Due Diligence
92
Exhibit G5
(ECFAARMLPAWA) Signatory page 1
93
Exhibit G6
(ECFAARMLPAWA) Signatory page 2
94
Exhibit G7
(ECFAARMLPAWA) Signatory page 3
95
OBrien Affidavit 1
96
97
98
99
100
101