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Jeanne Palumbo - Pro Se

106 Saint Regis Drive,


Deptford, New Jersey 08096

:
SUPERIOR COURT OF NEW JERSEY
:
CHANCERY DIVISION
:
GLOUCESTER COUNTY
:
PLAINTIFF
:
DOCKET NO: F-36842-14
:
v.
:
MOTION PURSUANT TO RULE 4:50-1 &
:
COMMON LAW TO VACATE ORDERS
:
DISMISSING
DEFENANTS ANSWER &
:
Jeanne Palumbo, et al.
COUNTERCLAIMS, DISMISS THE
:
FORECLOSURE
COMPLAINT WITH
:
DEFENDANT
PREJUDICE, AND QUIET TITLE RELIEF
:
:
:
:
:
:
:
BRIEF IN SUPPORT OF MOTION TO VACATE
ORDERS ENTERED AGAINST THE

U.S. Bank, N.A. as Trustee, et al.

DEFENDANT, DISMISS THE FORECLOSURE COMPLAINT, AND QUIET TITLE


:

Comes now Jeanne Palumbo (defendant): motioning the court pursuant to Rule 4:50-1 and
:
common law to vacate the order entered 12/19/2014
dismissing with prejudice the defendants

answer, affirmative defenses, and counterclaims: against U.S. Bank, National Association (hereby
: Loan Trust Inc., Asset-Backed Pass-Through
U.S. Bank), as Trustee for Citigroup Mortgage
:
Certificates, Series 2006-AMC1 (hereby CMLT
2006-AMC1) (Plaintiff) and third-party
:

defendant Ocwen Loan Servicing, LLC (hereby Ocwen), and vacate the order entered
:

01/09/2015 dismissing with prejudice counterclaims against third-party defendant Stern &
:

Eisenberg, PC (hereby S&E). This brief shall also serve as; (1) opposition to a motion filed on
:

11/25/2015 by the Plaintiff seeking an order to enter default against the defendant after six
:

months, (2) support of the defendants motion to dismiss the foreclosure complaint with
:

prejudice, with (3) an order granting quiet title relief for the reasons set forth below, along with
:

exhibits and certification submitted in support.


:
1
:
:

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................3
I.

CONTROLLING LAW ..................................................................................................... 10


A. Rule 4:50-1. .................................................................................................................... 10
B. Fraud upon the court. ...................................................................................................... 12
C. Standing and Due Process............................................................................................... 14

II. LEGAL ARGUMENT ....................................................................................................... 17


A. The trial court must vacate its orders entered dismissing the defendants answer,
affirmative defenses, and counterclaims against the Plaintiff, debt collector Ocwen, and thirdparty debt collectors Stern & Eisenberg, and issue an order dismissing the foreclosure
complaint at bar with prejudice, granting quiet title to the defendant because of five falsely
uttered, void ab initio, counterfeit assignment instruments, two of which were created by the
criminally convicted DocX, LLC, constituting clouds upon the subject title, and the Plaintiff
gained no right to enforce the disputed mortgage loan. ....................................................... 17
i.

Forgery #1 Imposter Bryan Bly of Nationwide Title Clearing ................................... 17

ii. Forgery #2 and Forgery #3 Imposter Linda Green and the criminally convicted
DocX, LLC. ....................................................................................................................... 23
iii.

Forgery # 4 Option One Mortgage Corporation as the assignee. ............................ 26

iv.

Forgery # 5 Sand Canyon Corporation as the assignor. ......................................... 27

B. The Plaintiffs chain of title recital displays a broken succession further justifying the
court issuing an order dismissing the foreclosure complaint with prejudice, and granting the
defendant quiet title relief. ..................................................................................................... 29
C. Four (4) out of five (5) of the Plaintiffs counterfeit assignment instruments make no
mention of a transfer of the debt, further rendering the instruments void ab initio, and
prohibiting the Plaintiffs and Ocwens attempt to enforce the disputed mortgage loan. ...... 33
D. The trial court must vacate its order dismissing the defendants answer, affirmative
defenses, and counterclaims against the Plaintiff, debt collector Ocwen, along with third-party
debt collectors Stern & Eisenberg who, together with Duane Morris, have presented a prima
facie case to foreclose using instruments that are void, not voidable, pursuant to New York
Estates, Powers & Trusts - Part 2 - 7-2.4. ............................................................................ 35
E. The trial court must vacate its order dismissing the defendants answer, affirmative
defenses, and counterclaims against the Plaintiff, debt collector Ocwen, along with third-party
debt collectors Stern & Eisenberg who, together with Duane Morris, have presented a prima
facie case to foreclose using two conflicting, counterfeit instruments both purported to be a
copy of the original disputed paper promissory note, neither of which establish the
Plaintiffs right to enforce. ..................................................................................................... 42
2

F. The trial court must vacate its order dismissing the defendants answer, affirmative
defenses, and counterclaims against the Plaintiff, debt collector Ocwen, along with third-party
debt collectors Stern & Eisenberg who, together with Duane Morris, have asserted agency
relationships without presenting a duly signed and acknowledged power of attorney pursuant
to New Jersey law. ................................................................................................................. 47
G.
The trial court must vacate its order dismissing the defendants answer, affirmative
defenses, and counterclaims against the Plaintiff, debt collector Ocwen, along with third-party
debt collectors Stern & Eisenberg who, together with Duane Morris, are attempting to enforce
the disputed refinance mortgage which is in violation of the Home Ownership Equity
Protection Act (HOEPA) and the New Jersey Home Ownership Security Act (HOSA), and is
subject to being be offset and unenforceable. ......................................................................... 50
H.
The defendant has since rescinded the unconsummated, high-cost mortgage
transaction pursuant to 15 U.S.C. 1635. .............................................................................. 55
I. In the interest of justice and to protect the integrity of the Court, the orders enter in favor
of the Plaintiff must be vacated, and the foreclosure compliant at bar must be dismissed with
prejudice as a result of the fraud upon the court in order to deter future conduct. ................... 59
III. CONCLUSION.................................................................................................................. 66
CERTIFICATION IN LIEU OF OATH R. 1:4-4 ........................................................................ 67

TABLE OF AUTHORITIES
State Cases
Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 368 (App. Div. 1998)
........................................................................................................................................ 14, 29
Allison & Ver Valen Co. v. McNee, 9 N.Y.S. 2D 708 (N.Y. Sur. 1939) .................................... 39
Bain v. Metropolitan Mortgage Group, Inc., 285 P.3d 34, 3637 (Wash. 2012) ......................... 29
Bank of America, N.A. v. Melissa Limato (No. A-4880-10T3) ........................................... 29, 46
Bank of N.Y. v. Alderazi, 28 Misc 3d 376, 379-380 ............................................................ 29, 48
Bank of N.Y. v. Raftogianis, 418 N.J.Super. 323, 32728 (Ch. Div.2010), .......................... 29, 46
Bart G. Brandrup , et al ., v. Recontrust Company, N.A. , et al ., (USDC Case No.
311CV1390HZ, 311CV1399HZ, 311CV1533SI, 312CV0010HA) (SC S060281) .................. 29
Blue v. Everett, 56 N.J. Eq. 455, 458 (E & A 1897)................................................................... 33
Carlson v. Hannah, 6 N.J. 202, 212 (1951) .......................................................................... 29, 48
Chauncey v. Arnold, 24 N.Y. 330, 338 (1862)........................................................................... 58
CitiMortgage, Inc. v. Brown 2010 NY Slip Op 87737 (U) ......................................................... 34
Clark v. Whitaker, 19 Conn. 319 (Conn. 1848).......................................................................... 29
Contl. Bank of Pa. v. Barclay Riding Acad., Inc., 93 N.J. 153, 170 (1983) ................................ 55
3

Cornell v. Moussavian, et al., 2011 N.J. Super. Unpub. ............................................................. 17


Cornell v. Moussavian, et al., 2011 N.J. Super. Unpub. LEXIS 2861 (Ch. Div. 2011) ............... 29
Davis, supra, 317 N.J. Super.at 100-01 ...................................................................................... 10
DEG, supra, 198 N.J. at 261 ................................................................................................ 10, 39
Deutsche Bank National Trust Company as trustee vs. Gary L. Hannah, et al. ........................... 47
Deutsche Bank National Trust Company as trustee vs. Gary L. Hannah, et al. from the Circuit
Court of the Fourth Judicial Circuit, Clay County, FL (Case No 2009-CA-1920 Division B) 18,
62
DiLibero v. Mortgage Electronic Registration Systems, Inc. et al., No. 2013-190- Appeal (PC
11-4645) .......................................................................................................................... 29, 30
Dimon v. Dimon, 10 N.J.L. 156, 158 (Sup. Ct. 1828) ................................................................ 33
Dye v. Lewis (New York, Sup. Crt., 1971) 67 Misc.2d 426, 324 N.Y.S.2d 172 ......................... 39
Federal Reserve Bank of Phila. v. Welch, 122 N.J. 90, 92 (Ch. 1937)........................................ 33
Friedman v. Tappan Dev. Corp., 22 N.J. 523, 531 (1956) .......................................................... 55
Glaski v. Bank of America, N.A., 218 Cal. App. 4th 1079 (2013).............................................. 40
Guillaume, supra, 209 N.J. at 467 .............................................................................................. 10
Horace vs. LaSalle Bank, N.A. from the Alabama Circuit Court of Russell County (Case No.:
57-CV-2008-000362.00)........................................................................................................ 41
Hot Stuff, Inc. v. Kinkos Graphic Corp., 50 Ark. App. 56, 59, 901 S.W.2d 854, 856 (1995) ... 29,
49
Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) .................................................. 10
Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123-24 (2007) ...................................................... 10
in Kelly v. Bank of New York as Trustee for CWALT, Inc. ALT 2007-25, Case No. 1D13-2778
.............................................................................................................................................. 46
In re Adoption of Baby T., 160 N.J. 332, 340 (1999) ................................................................. 15
Jeffrey S. Chiesa, et al. v. Lender Processing services, Inc., et al. .............................................. 64
Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538-39, 95 A.2d 391 (1953) ............... 55
Katz v. East-Ville Realty Co., (249 AD2d 243 [1d Dept 1998] .................................................. 34
Kenner v. Commr of Internal Revenue, 387 F.2d 689, 691 (7th Cir. 1968). ........................ 12, 29
Knox v. Kaelber, 140 N.J. Eq. 598 (E. & A. 1947) .................................................................... 13
Landmark Nat'l Bank v. Kesler, 216 P.3d 158 (Kan. 2009). (Slip op. at 25-26) ......................... 29
Lexow & Jenkins v Hertz Commercial Leasing Corp., 122 AD2d 25 [2d Dept 1986] .......... 29, 49
Lippincot v East Riv. Mill & Lbr. Co., 79 Misc 559 [1913] ................................................. 29, 49
Lyster v. Berberich, 65 A.2d 632 (N. J. Super. App. Div. 1949) ................................................ 29
Millver v. Paste, 386 U.S. 1 (1967) ..................................................................................... 13, 29
Moore v Leaseway Transp. Corp., 65 AD2d 697 [1st Dept 1978] ........................................ 29, 49
Morris Canal & Banking Co. v. Fisher, 9 N.J. Eq. 667, 696-97, 700, (E & A 1855) ................... 33
N.J. Lawyers Fund for Client Prot. v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010) ... 29, 48
N.J. Prac., Law of Mortgages 11.2 (2d ed.) ............................................................................ 33
New Jersey Bank v. Azco Realty Co., supra at 164-165 ............................................................ 20
4

New Jersey Bank v. Azco Realty Co., supra. ............................................................................. 13


New Jersey Citizen Action, supra, 296 N.J. Super. at 409.................................................... 14, 29
People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).................................................. 13, 29
Rosenblit v. Zimmerman, 166 N.J. 391, 400-06 (2001) ............................................................. 13
Sayre v. Fredericks, 16 N.J. Eq. 205, 206 (Ch. 1863) ................................................................ 33
Sears Mortg. Corp. v. Rose, 134 N.J. 326, 338 (1993) ......................................................... 29, 48
Shammas v. Shammas 9 N. J. 321, 88 A.2d ............................................................................... 12
Shammas v. Shammas 9 N. J. 321, 88 A.2d 204 (1952) ............................................................. 29
Shammas v. Shammas, supra note 32, 88 A.2d at 208 ......................................................... 12, 29
Siegel v Kentucky Fried Chicken of Long Is., 108 AD2d 218 [2d Dept 1985] ..................... 29, 49
Stevenson v. Black, 1 N.J. Eq. 338, 343 (Ch. 1831) ................................................................... 33
Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 197 A.2d 721, 726 (Pa. 1964) ............ 29
Tartaglia v. UBS PaineWebber, Inc., et al., 197 N.J. 81 (2008).................................................. 13
Taylor v. Mitchell, supra ........................................................................................................... 13
Unico v. Owen, 50 N.J. 101 (1967) 232 A.2d 405 ..................................................................... 57
United States v. Agurs, 427 U.S. 97, 107 (1976) ................................................................. 13, 29
Vasquez v. Deutsche Bank Trust Company, N.A. (NO. 01-13-00220-CV) .......................... 22, 47
Whipp v. Iverson, 43 Wis. 2d 166 (1969) .................................................................................. 58
Williams v. DeFabio, 65 A.2d 858 (N. 3. Super. App. Div. 1949) ............................................. 29
Yvanova v. New Century Mortgage, Supreme Court case number S18973, decided 02/18/2016 41

Federal Cases
(Jordon v. Gilligan, ................................................................................................................... 11
(Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972) ............... 11
Aoude v. Mobil Oil, 892 F.2d 1115, 1118 (1st Cir. 1989) .......................................................... 10
Austin v. Smith, 312 F 2d 337, 343(1962) ................................................................................. 10
Baram v. Farugia, 606 F.2d 42 (3d Cir. Pa. 1979)...................................................................... 29
Barclay Equestrian Ctr., Inc. v. Contl. Bank of Pa., 464 U.S. 994 (1983) ................................... 55
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 (1930).......................................... 15
Butler v. Deutsche Bank Trust Co., No. 1210337, 2012 WL 3518560, at *67 (D.Mass. Aug.
14, 2012) ............................................................................................................................... 29
Caldwell v. Mississippi, 472 U.S. 320 (1985) ............................................................................ 29
Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271, 275, 21 L. Ed 313 (1872)............................... 33
Cf. Mesarosh v. United States, 352 U.S. 1, 14 (1956) ................................................................ 29
Clarence Austin, Appellant, v. Otis Smith et al., Appellees. No. 16451. United States Court of
Appeals District of Columbia Circuit ..................................................................................... 10
Connecticut v. Doehr, 501 U.S. 1 (1991) ................................................................................... 15
Consumer Financial Protection Bureau, et al. v. Ocwen Loan Servicing, LLC, et al. (Case 1:13cv-02025-RMC) .................................................................................................................... 63
5

Cosajay v. MERS, the U.S. District Court of Rhode Island (Case no. 1:10-cv-00442) ............... 29
Culhane, v. Aurora Loan Services of Nebraska, (C.A. 1st Cir., 2013), 708 F.3d 282.................. 29
Darden v. Wainwright, 477 U.S. 168, 181-82 (1986) ................................................................. 29
Doehr, 501 U.S. at 11 ................................................................................................................ 15
Drouin v. American Home Mortgage Servicing, Wells ........................................................ 26, 28
Herbert Elesh v. MERS, Inc., et al. (Case No. 12 C10355) ........................................................ 29
In Re Kemp. Cite as 391 B.R. 262 (Bkrtcy.D.N.J. 2008) ..................................................... 29, 45
In Re Ron Wilson, Sr. et al., (Case No. 07-11862 (EWM)) ............................................ 26, 27, 64
In re: Doble, v. Deutsche Bank Nat'l Trust Company, as trustee, et al. (Bankruptcy No: 1011296-MM13, AP: 10-90308-MM) ....................................................................................... 29
In the Matter of U.S. Bank, N.A., (Docket No. AA-EC-11-18), amended on 02/21/2013 (#2013128 Amends #2011-049), amended on 06/09/2015 (#2015-066 Amends #2011-049 and #2013128) ....................................................................................................................................... 61
In the Matter of: Lender Processing Services, Inc., et al. (FRB Docket Nos. 11-052-B-SC-1, 11052-B-SC-2, 11-052-B-SC-3, FDIC-11-204b, OCC AA-EC-11-46, OTS DC-11-039) ........... 62
Jefferson Bank, v. Progressive Casualty Insurance Company, 965 F.2d 1274, 1276 (3d Cir. 1992)
.............................................................................................................................................. 20
Jesinoski v. Countrywide Home Loans, Inc. 574 U.S. ___ (2015). ...................................... 29, 58
Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 88 (2014) ....... 13
Livonia Properties in Slorp v. Lerner Sampson et al., No. 13-3402 (6th Cir., opinion issued
September 29, 2014), ............................................................................................................. 29
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) ............................................................ 15
Lujan, 504 U.S. at 560 61 ....................................................................................................... 13
McDonald v. Mabee (1917) 243 US 90, 37 Sct 343, 61 L ed 608 .............................................. 11
Natl Council of Resistance of Iran v. Dept. of State, 251 F.3d 192, 202-205 (D.C. Cir. 2001) .. 15
Old Wayne Mut. I. Assoc. v McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907) ............................... 10
Pennoyer v. Neff (1877) 95 US 714, 24 L ed 565 ...................................................................... 11
Raines v. Byrd, 521 U.S. 811, 818 19 (1997). ................................................................... 13, 29
Ramsey v. Vista Mortgage Corp, 176 BR 183 (9th Cir. BAP 1994) ........................................... 54
Rosa v. Mortg. Elec. Sys., Inc., 821 F.Supp.2d 423, 429 n. 5 (D.Mass.2011) ............................. 29
Rose v Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808) ..................................................... 10
Rose v. Himely (1808) 4 Cranch 241, 2 L ed 608 ...................................................................... 11
Shelley v. Kraemer, 334 U.S. 1 (1948) ...................................................................................... 14
Szelc v. Stanger, 2011 U.S. Dist. LEXIS 41827 (D.N.J. 2011) .................................................. 29
Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897 .......................................................... 11
U.S. v. Holtzman, 762 F.2d 720 (9th Cir. 1985) ........................................................................ 11
United States of America v. Lorraine Brown (Case No. 3:12-cr-198-J-25MLR) ............ 23, 25, 62
United States v. James Daniel Good Real Property, 510 U.S. 43, 53-54 (1993) ......................... 15
Williamson v Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850) .......................................... 10
Woods v. Wells Fargo Bank, N.A., 1st Circuit Id., No. 12-19142, 2013 WL 5543637 ............... 29
6

Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1172 (9th Cir. 2003). ...................................... 29, 58
Citations
5 Williston, Contracts (Rev. ed., 1937), p. 4189, sec. 1500 ........................................................ 58
60 Minutes, CBS News aired The Next Housing Shock .......................................................... 25
98 U. or' PA. L. Rev. 117, n.2 ................................................................................................... 12
Article III of the United States Constitution ............................................................................... 14
Blacks Law Dictionary 1076 [8th ed 2004] .............................................................................. 48
http://articles.latimes.com/2007/sep/01/business/fi-ameriquest1 (last checked 04/14/2016) ....... 35
http://files.consumerfinance.gov/f/201312_cfpb_consent-order_ocwen.pdf (last checked on
04/14/2016) ........................................................................................................................... 64
http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=951370
(last
checked 04/14/2016)........................................................................................................ 26, 64
http://www.housingwire.com/articles/957-ameriquest-close-citigroup-exercises-purchase-optionacc-capital (last checked 04/14/2016) .................................................................................... 35
http://www.nationalmortgagenews.com/on_issues/17_1/-448580-1.html
(last
checked
04/14/2016) ........................................................................................................................... 35
http://www.nytimes.com/2007/09/01/business/01citi.html (last checked 04/14/2016) ................ 35
http://www.occ.gov/static/enforcement-actions/ea2013-128.pdf (last checked on 04/14/2016) .. 62
http://www.occ.treas.gov/news-issuances/news-releases/2011/nr-occ-2011-47f.pdf (last checked
on 04/14/2016) ...................................................................................................................... 63
http://www.occ.treas.gov/news-issuances/news-releases/2011/nr-occ-2011-47j.pdf (last checked
04/14/2016) ........................................................................................................................... 62
http://www.occ.treas.gov/static/enforcement-actions/ea2015-066.pdf
(last
checked
on
04/14/2016) ........................................................................................................................... 62
http://www.sec.gov/Archives/edgar/data/1375282/000088237706003283/d571630_424b5.htm
(last checked 04/14/2016) ...................................................................................................... 39
http://www.sec.gov/Archives/edgar/data/1375282/000088237706003283/d571630_424b5.htm
(last checked 04/14/2016) ...................................................................................................... 61
http://www.sec.gov/Archives/edgar/data/1375282/000088237706003569/d569570_ex4-1.htm
(last checked 04/14/2016) ............................................................................................... passim
https://www.justice.gov/opa/pr/former-executive-florida-based-lender-processing-services-incadmits-role-mortgage-related (last checked 04/06/2012) .................................................. 24, 30
https://www.linkedin.com/in/roger-kistler-a5b34a5b (last checked 04/14/2016) ........................ 43
https://www.lsnj.org/NewsAnnouncements/Foreclosure/materials/EXHIBITGCitiResidentialDep
ositionB ........................................................................................................................... 19, 23
https://www.publicintegrity.org/2009/05/06/12986/no-2-subprime-25-ameriquest-mortgagecoacc-capital-holdings-corp (last checked 04/14/2016) .......................................................... 35
https://www.publicintegrity.org/2009/05/06/12996/no-6-subprime-25-option-one-mortgagecorphr-block-inc (last checked 04/14/2016) ..................................................................... 26, 64
7

HUD-Treasury Report Recommendations to Curb Predatory Home Mortgage Lending at 28-29


(2000) .................................................................................................................................... 50
Id. 2.03................................................................................................................................... 48
Id. 7.08................................................................................................................................... 48
Mansfield, The Road To Subprime "HEL" Was Paved With Good Congressional Intentions:
Usury Deregulation And The Subprime Home Equity Market, 51 S.C.L. Rev. 473, 528 (Spring
2000) ..................................................................................................................................... 50
Real Estate Investment Trusts. Securities Law Series, Vol. 29. Thomson West (2007): 6-22 ..... 37
Restatement (Third) of Agency 1.01 (2006)............................................................................ 48
Restatement (Third) of Agency, supra, 2.01............................................................................ 48
Restatement (Third) of Property (Mortgages) 5.4 cmt. e (1997) ................................................. 33
Restatement, 2 Contracts, p. 890, sec. 470 ................................................................................. 58
Restatement, 2 Contracts, p. 908, sec. 476 ................................................................................. 58
Restatement, Restitution, p. 123, sec. 28 (b) .............................................................................. 58
Richard R. Powell, Powell On Real Property, 37.27[2] (2000) .................................................. 34
See 12 James W. Moore, Moores Federal Practice 60.81 (3d ed. 2007) ................................. 12
Statutes
12 CFR 226.23 ....................................................................................................................... 52
15 U.S.C. 1635(a) .................................................................................................................. 53
15 U.S.C. 1639b(c)................................................................................................................. 55
15 U.S.C. 1639c(a) ................................................................................................................. 50
15 U.S.C. 1640(k) .................................................................................................................. 53
15 U.S.C. 1602(aa) and 1639 ................................................................................................ 50
18 U.S.C. 1342 ....................................................................................................................... 22
26 U.S.C. 860G(a)(3)(4) ......................................................................................................... 35
26 U.S.C. 860A860G.......................................................................................................... 36
28 U.S.C. ............................................................................................................................... 40
HOEPA......................................................................................................................... 52, 60, 65
Home Owner Equity Protection Act of 1994 (hereby HOEPA) ............................................. 50
N.J.S.A. 12A:3-305 ................................................................................................................... 53
N.J.S.A. 2C:20-1(L) .................................................................................................................. 32
N.J.S.A. 3B:14-53(e)................................................................................................................. 47
N.J.S.A. 46:10B-22 et seq. ........................................................................................................ 50
N.J.S.A. 46:10B-23(a) ............................................................................................................... 50
N.J.S.A. 46:10B-24 ................................................................................................................... 52
N.J.S.A. 46:10B-26(b)............................................................................................................... 52
N.J.S.A. 46:10B-26(f) ............................................................................................................... 51
N.J.S.A. 46:10B-26(g)............................................................................................................... 51
N.J.S.A. 46:10B-27(b)............................................................................................................... 52
8

N.J.S.A. 46:10B-27(c) ............................................................................................................... 52


N.J.S.A. 46:15-1........................................................................................................................ 20
N.J.S.A. 46:2B-15 ..................................................................................................................... 47
N.J.S.A. 46:2B-8.13 .................................................................................................................. 47
N.J.S.A. 46:2B-8.13a ................................................................................................................ 47
N.J.S.A. 46:2B-8.9 .................................................................................................................... 47
N.J.S.A.46:2B-8.2 ..................................................................................................................... 47
New Jersey Home Ownership Security Act of 2002 .................................................................. 50
New York Estates, Powers & Trusts - Part 2 - 7-2.4 ......................................................... 38, 43
New York Estates, Powers & Trusts - Part 2 - 7-2.4. .............................................................. 65
NJ HOSA ....................................................................................................................... 51-54, 61
Regulation Z 226.2(13) .................................................................................................... 54, 56
TILA ......................................................................................................................................... 50
New Jersey Rules of Court
R. 4:50-1 .....................................................................................................................................9
Other Authorities
Administrative Order 01-2010 (In The Matter of Residential Mortgage Foreclosure Pleading
and Document Irregularities) ............................................................................................... 58
Article IV of the U.S Constitution ............................................................................................. 40
U.S. Const. art. III, 2, cl. 1 ...................................................................................................... 14

I.

CONTROLLING LAW

A. Rule 4:50-1.
5. As set forth in Rule 4:50-1; On motion, with briefs, and upon such terms as are just, the
court may relieve a party or the party's legal representative from a final judgment or order for the
following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly
discovered evidence which would probably alter the judgment or order and which by due
diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct
of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been
satisfied, released or discharged, or a prior judgment or order upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have
prospective application; or (f) any other reason justifying relief from the operation of the
judgment or order.
6. The trial court's decision on a motion to vacate default judgment pursuant to R. 4:50-1 is
entitled to "substantial deference, and should not be reversed unless it results in a clear abuse of
discretion." Guillaume, supra, 209 N.J. at 467; accord DEG, supra, 198 N.J. at 261; Hous. Auth.
of Morristown v. Little, 135 N.J. 274, 283 (1994). A decision constitutes an abuse of discretion
when it is "'made without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123-24 (2007)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). "All doubts, . . . should be
resolved in favor of the parties seeking relief." Ibid. (citing Arrow Mfg. Co. v. Levinson, 231
N.J. Super.527, 534 (App. Div. 1989)). That is so because of the importance attached to securing

10

a decision on the merits. See Davis, supra, 317 N.J. Super.at 100-01 (stating doubts should be
resolved in favor of the applicant in order to secure a trial upon the merits).
7. According to Rule 4:50-1, the court has the power to vacate judgment or an order that
is void. A judge based an order/judgment on a void order/judgment. Citing Austin v. Smith,
312 F 2d 337, 343(1962); If that judgment is void, the second judgment which was based upon it
is also void, and should be vacated. The second judgment ordering his realty sold was and is void
because it depended for validity upon a void prior judgment. 312 F.2d 337 114 U.S.App.D.C. 97
Clarence Austin, Appellant, v. Otis Smith et al., Appellees. No. 16451. United States Court of
Appeals District of Columbia Circuit. Argued Dec. 22, 1961. Decided Nov. 21, 1962. "Courts
are constituted by authority and they cannot go beyond that power delegated to them. If they act
beyond that authority, and certainly in contravention of it, their judgments and orders are
regarded as nullities. They are not voidable, but simply void, and this even prior to reversal."
Old Wayne Mut. I. Assoc. v McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v Berry,
8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850); Rose v Himely, 4 Cranch 241, 269, 2 L.Ed. 608,
617 (1808). Aoude v. Mobil Oil, 892 F.2d 1115, 1118 (1st Cir. 1989) described the appellate
courts role in applying the abuse of discretion standard of review:
While broad, the trial courts discretion is not unlimited. The [trial] judge must consider
the proper mix of factors and juxtapose them reasonably. Abuse occurs when a material
factor deserving significant weight is ignored, when an improper factor is relied upon, or
when all proper and no improper factors are assessed, but the court makes a serious
mistake in weighing them. Independent Oil and Chemical Workers of Quincy, Inc. v.
Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988); see also Anderson v.
Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988) (to warrant reversal for abuse of
discretion, it must plainly appear[ ] that the court below committed a meaningful error in
judgment).

11

8. "A void judgment is no judgment at all and is without legal effect." (Jordon v. Gilligan,
500 F.2d 701, 710 (6th Cir. 1974) "a court must vacate any judgment entered in excess of its
jurisdiction." (Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir.
1972). An order that exceeds the jurisdiction of the court, is void, or voidable, and can be
attacked in any proceeding in any court where the validity of the judgment comes into issue.
(See Rose v. Himely (1808) 4 Cranch 241, 2 L ed 608; Pennoyer v. Neff (1877) 95 US 714, 24 L
ed 565; Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897; Windsor v. McVeigh (1876)
93 US 274, 23 L ed 914; McDonald v. Mabee (1917) 243 US 90, 37 Sct 343, 61 L ed 608. U.S.
v. Holtzman, 762 F.2d 720 (9th Cir. 1985) ("Portion of judgment directing defendant not to
import vehicles without first obtaining approval ... was not appropriately limited in duration and,
thus, district court abused its discretion by not vacating it as being prospectively inequitable." Id
at 722.
B. Fraud upon the court.
9. The New Jersey Supreme Court was asked in Shammas v. Shammas 9 N. J. 321, 88 A.2d
204 (1952) to interpret the "fraud on the court" phrase. See also Lyster v. Berberich, 65 A.2d
632 (N. J. Super. App. Div. 1949); Williams v. DeFabio, 65 A.2d 858 (N. 3. Super. App. Div.
1949); and see 98 U. or' PA. L. Rev. 117, n.2. The New Jersey Supreme Court expressly
rejected the argument that if intrinsic fraud was allowed to upset judgments endless litigation
would result, and (3) held that either intrinsic or extrinsic fraud was within the "fraud on the
court" term. The interpretation of New Jersey's Supreme Court stems from a more realistic
understanding of the intention of the framers of Federal Rule 60(b) and of the more sensible
application of the doctrine of fraud upsetting judgments. Shammas v. Shammas, supra note 32,
88 A.2d at 208, "[U]pon principle, we hold that relief for fraud upon the court may be allowed

12

under our rule whether the fraud charged is denominated intrinsic or extrinsic." The 7th Circuit
further stated "a decision produced by fraud upon the court is not in essence a decision at all, and
never becomes final" Kenner v. Commr of Internal Revenue, 387 F.2d 689, 691 (7th Cir.
1968). See 12 James W. Moore, Moores Federal Practice 60.81 (3d ed. 2007) (noting that
fraud on the court deals with integrity of the courts). "Fraud On The Court By An Officer Of The
Court State or Federal" Provides For An Independent Actions In Equity. State and federal
attorneys fall into the same general category and must meet the same requirements. People v.
Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).
10. The use of fraudulent evidence is a corruption of the truth seeking process of the trial
court constituting a violation of due process rights. See United States v. Agurs, 427 U.S. 97, 107
(1976) and Millver v. Paste, 386 U.S. 1 (1967) (finding that a deliberate misrepresentation of
truth to a jury is a violation of due process); Caldwell v. Mississippi, 472 U.S. 320 (1985) (fining
that an uncorrected, misleading statement of law to a jury violated due process); Darden v.
Wainwright, 477 U.S. 168, 181-82 (1986) (improper argument and manipulation or misstatement
of evidence violates Due Process). Cf. Mesarosh v. United States, 352 U.S. 1, 14 (1956)
(reversing convictions based on Solicitor General's disclosure that an important government
witness had committed perjury in other proceedings, stating that the Court had a duty "to see that
the waters of justice are not polluted"). See also New Jersey Bank v. Azco Realty Co., supra.
See also Taylor v. Mitchell, supra (involving illegality); Knox v. Kaelber, 140 N.J. Eq. 598 (E. &
A. 1947) (involving fraud plus culpable silence)] knowing their pleadings, certifications, and
evidence submitted are all false.

13

11. Additionally, fraudulent concealment of evidence during judicial proceedings constitutes


extrinsic fraud, and is enough to vacate. See Tartaglia v. UBS PaineWebber, Inc., et al., 197 N.J.
81 (2008); See also Rosenblit v. Zimmerman, 166 N.J. 391, 400-06 (2001). "The spoliator's
level of intent, whether negligent or intentional, does not affect the spoliator's liability. Rather, it
is a factor to be considered when determining the appropriate remedy for the spoliation." Aetna
Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 368 (App. Div. 1998)
(quoting Hirsch, supra, 266 N.J. Super. at 256).
C. Standing and Due Process
12. Article III of the United States Constitution limits the power of the federal judiciary, alike
the state courts of New Jersey, to the adjudication of certain Cases and Controversies. U.S.
Const. art. III, 2, cl. 1. From this textual limitation and the separation of powers principles
underlying that limitation, the federal courts have deduced a set of requirements that together
make up the irreducible constitutional minimum of standing. Lexmark Intl, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1386 88 (2014) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). Three components comprise this irreducible constitutional
minimum: (1) the plaintiff must have suffered an injury in fact, (2) that injury must be fairly
traceable to the defendants challenged conduct, and (3) it must be likely that the plaintiffs
injury would be redressed by the requested relief. Lujan, 504 U.S. at 560 61. At its essence,
Article III standing requires the plaintiff to have some personal and particularized stake in the
dispute. See Raines v. Byrd, 521 U.S. 811, 818 19 (1997).
13. Standing can be raised at any time during a foreclosure proceeding and it must be
addressed and satisfied before the proceeding can move forward. Standing refers to a party's
"ability or entitlement to maintain an action before the court." New Jersey Citizen Action, supra,

14

296 N.J. Super. at 409. To be entitled to sue, a party must have "a sufficient stake and real
adverseness with respect to the subject matter of the litigation." In re Adoption of Baby T.,
supra, 160 N.J. at 340. Additionally, "[a] substantial likelihood of some harm visited upon the
plaintiff in the event of an unfavorable decision is needed for the purposes of standing.
14. The issue of standing is of substantial importance because standing involves a threshold
determination which governs the ability of a party to initiate and maintain an action before the
court. In re Adoption of Baby T., 160 N.J. 332, 340 (1999). The standing doctrine in New
Jersey is to assure that the invocation and exercise of judicial power in a given case are
appropriate and it serves to fulfill the paramount judicial responsibility of a court to seek just and
expeditious determinations on the ultimate merits of deserving controversies. [New Jersey State
Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 69
(1980).] Consequently, the New Jersey Supreme Court has held that "standing is an element of
justiciability that cannot be waived or conferred by consent." In re Adoption of Baby T., supra,
160 N.J. at 341 (citing New Jersey Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402,
411 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed as moot, 152 N.J. 361
(1998)).
15. A courts determination if a Plaintiff has standing to prosecute a judicial-foreclosure is
essential in order to guarantee a defendants due process rights are not violated. In New Jersey,
the assistance of the state court, and the use of state officials who assist the court with
foreclosure proceedings including the county clerks, sheriffs, etc. is mandatory because the
foreclosing entity does not possess the right of self-help. In Shelley v. Kraemer, 334 U.S. 1
(1948), the Supreme Court held that the use of a court to enforce a restrictive covenant could be
state action because the court was essentially participating in the discrimination by enforcing the

15

facially discriminatory covenant. Similarly, in Connecticut v. Doehr, 501 U.S. 1 (1991), the U.S.
Supreme Court recognized that although prejudgment remedy statues ordinarily involve disputes
between private parties, there is significant governmental assistance by state officials and
through state procedures. Specifically, the U.S. Supreme Court acknowledged that prejudgment
remedy statues "are designed to enable one of the parties to 'make use of the state procedures
with the overt, significant assistance of state officials,' and they undoubtedly involve state action
'substantial enough to implicate the Due Process Clause.'" Doehr, 501 U.S. at 11 (quoting Pope,
485 U.S. at 486. See also Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 (1930).
16. The U.S. Supreme Court has been a steadfast guardian of due process rights when what is
at stake is a persons right to maintain control over [her] home because loss of ones home is
a far greater deprivation than the loss of furniture. United States v. James Daniel Good Real
Property, 510 U.S. 43, 53-54 (1993). Courts have held that even a small bank account is
sufficient to trigger due process protections. See Natl Council of Resistance of Iran v. Dept. of
State, 251 F.3d 192, 202-205 (D.C. Cir. 2001) (citing Russian Volunteer Fleet v. United States,
282 U.S. 481, 489-92 (1931)). The U.S. Supreme Court has set out two elements that must be
met in order to establish state action under the Fourteenth Amendment: First, the deprivation
must be caused by the exercise of some right or privilege created by the State Second, the
party charged with the deprivation must be a person who may fairly be said to be a state actor.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

16

II.

LEGAL ARGUMENT

A. The trial court must vacate its orders entered dismissing the defendants answer,
affirmative defenses, and counterclaims against the Plaintiff, debt collector Ocwen, and
third-party debt collectors Stern & Eisenberg, and issue an order dismissing the
foreclosure complaint at bar with prejudice, granting quiet title to the defendant
because of five falsely uttered, void ab initio, counterfeit assignment instruments, two
of which were created by the criminally convicted DocX, LLC, constituting clouds upon
the subject title, and the Plaintiff gained no right to enforce the disputed mortgage
loan.
17. In the State of New Jersey, as throughout the United States of America, a forgery passes
no rights. See Cornell v. Moussavian, et al., 2011 N.J. Super. Unpub. LEXIS 2861 (Ch. Div.
2011) where the court summarized the legal effect of a forgery by quoting Szelc v. Stanger, 2011
U.S. Dist. LEXIS 41827 (D.N.J. 2011); "It appears well-established that the effect of a forgery is
that the forged document is null and void." Id. at p. 10 (internal citations omitted). "... the long
established rule in New Jersey is that '[a] forgery can pass no right, even to a bona fide
purchaser.'" See also N.J.S.A. 46:2-2 Frauds or forgeries not validated; Nothing in this title
contained shall be construed to make good, valid or effectual any fraud or forgery, made or used
in or about any powers of agency, letters of attorney, deeds, writings or records, last wills or
testaments, bargains and sales, or other conveyances of estates of inheritance, grounded
thereupon.
i. Forgery #1 Imposter Bryan Bly of Nationwide Title Clearing
18. The Plaintiff, Ocwen, S&E, and Duane Morris have committed fraud upon this Court by
submitting into evidence the first of five counterfeit, falsely uttered assignment instruments
(hereby Forgery #1) that asserts that Citi Residential Lending, Inc., as Attorney-in-fact for
Argent Mortgage Company, LLC assigned only the disputed mortgage (absent a transfer of
the debt constituting a nullity) to the Plaintiff (U.S. Bank National Association, as Trustee for,
Citigroup Mortgage Loan Trust Inc., Asset-Backed Pass-Through Certificates, Series 200617

AMC1, under the Pooling and Servicing Agreement dated as of September 1, 2006) on
02/18/2009. See Exhibit 1.
19. There is no doubt that the name Bryan Bly that appears within Forgery #1 as a Vice
President of the alleged assignor (Citi Residential Lending, Inc. as Attorney-in-fact for Argent
Mortgage Company, LLC) on 02/18/2009, was an employee of Nationwide Title Clearing, Inc.
(hereby NTC), the document vendor who prepared the first of five counterfeit assignments
now before this court, and was not an employee of the asserted assignor. On 07/02/2010, Bryan
J. Bly as an employee of NTC admitted during a deposition in Deutsche Bank National Trust
Company as trustee vs. Gary L. Hannah, et al. from the Circuit Court of the Fourth Judicial
Circuit, Clay County, FL (Case No 2009-CA-1920 Division B) that his signatures are
electronically scanned and used by others without his supervision, approval, or personal
knowledge. The following are excerpts from Bly's deposition testimony;
Q: (By Mrs. Einstein) We are back on the record. Okay, Mr. Bly, right before we took a
break you were telling me that you had never seen Exhibit 5 before and that your
signature on there was done by an electronic process, that you had given an exemplar to
an NTC employee named Thomas McKinnon; is that correct?
A: That's correct
Q: Okay. So you don't know the actual person who pushes a button, clicks a mouse, does
something, and suddenly your signature gets on the piece of paper?
A: No.
Q: Okay. So you don't supervise these people that apply your signature to documents; is
that correct?
A: That's correct.
Q: Do you know who supervises them?
A: No.

18

Q: Okay. Do you have any communication with them about what documents they are
applying your signature to?
A: No.
Q: Okay. Does anyone ever come to ask you about a particular document, should youyou know, should your signature go on it?
A: No
Q: Okay. Now, in this loan, which you sign the assignment of, did you see the original
note or mortgage change hands?
A: No.
Q: Okay. Do you know where the original note and mortgage are now?
A: No.
Q: Do you know where they were, excuse me, when you signed the assignment? [ 1]
Q: (By Ms. Einstein) Okay. If you had physically signed it, would you know where those
documents were?
A: No.
Q: Okay. Do you know anything at all about the [pg. 52 end] original mortgage in this
case?
A: No.1
See Exhibit 2 for relevant parts from the deposition of Byran J. Bly deposition in Deutsche Bank
National Trust Company as trustee vs. Gary L. Hannah, et al.
20. Additionally, according to the LinkedIn profile for Florida notary public Bobbie Jo
Stoldt, whose alleged signature and name appears within Forgery #1 now before the court
asserting that Bryan Bly of NTC appeared as a Vice President for Citi Residential Lending, Inc.
as Attorney-in-fact for Argent Mortgage Company, LLC on 02/18/2009, was an employee for
1

See
https://www.lsnj.org/NewsAnnouncements/Foreclosure/materials/EXHIBITGCitiResidentialDepositionB
ly.pdf (last checked 04/14/2016) for the complete deposition of Byran J. Bly deposition in Deutsche Bank
National Trust Company as trustee vs. Gary L. Hannah, et al.
19

NTC from March 2007 to May 2014 as a Recorded Document Follow Up Manager / Senior
Account Executive / Sales Force Admin" with duties that included;
As an Account Executive I have hands on experience with note chains, assignment
chains, title policies, loan closing documents, collateral files and servicing files. I also use
Microsoft Work, Excel and Pivot tables extensively. I take a high volume of incoming
calls. I managed 3 of the top 10 clients. I had daily, weekly and monthly client
conference calls which required preparing agendas and reports to be sent out prior to
meetings. As the Sales Force Admin, I set up new users, assigned user roles, updated
reports and graphs on the dashboard.
See Exhibit 3 and https://www.linkedin.com/in/bobbie-stoldt-29238a29 for the LinkedIn profile
for Bobbie Jo Stoldt (last checked 04/14/2016).
21. Hence, the acknowledgement affixed to Forgery #1 used by the Plaintiff, Ocwen, S&E,
and Duane Morris is defective because, as of 02/18/2009, Florida notary public Bobbie Jo Stoldt,
like Bryan Bly, was an employee of NTC who knew or should have known that her co-worker
(Bryan Bly) was not an employee of the alleged assignor (Citi Residential Lending, Inc. as
Attorney-in-fact for Argent Mortgage Company, LLC) of the disputed refinance mortgage.
Because Bryan Bly himself admits that he is an employee of NTC, and has never been an
employee of Citi Residential Lending, Inc. or Argent, Bryan Bly could not have shown any
identification to Bobbie Jo Stoldt on 02/18/2009 to prove the status asserted within Forgery #1
which is being trafficked by the Plaintiff, Ocwen, S&E, and Duane Morris, and submitted in this
court proceeding in support of their prima facie case for foreclosure. See New Jersey Bank v.
Azco Realty Co., supra at 164-165 the court ruled in relevant part that the New Jerseys
Recording Act requires an instrument be properly acknowledged before it is entitled to be
recorded. N.J.S.A. 46:15-1. If an instrument is inadvertently recorded with a defective
acknowledgment or proof, that recording does not serve as constructive notice to a subsequent
purchaser or encumbrancer.

A deficient acknowledgement rendered the mortgage


20

unrecordable and therefore incapable of achieving priority over third parties Without such an
acknowledgement, taken before an authorized notary, the mortgage cannot be validly recorded
and cannot provide security against third party claims. See also Jefferson Bank, v. Progressive
Casualty Insurance Company, 965 F.2d 1274, 1276 (3d Cir. 1992) where the court ruled in
relevant part that; Without such an acknowledgement, taken before an authorized notary, the
mortgage cannot be validly recorded and cannot provide security against third party claims.
22. Furthermore, there are materially different versions of Bly's signature found throughout
public records, which raises doubts as to the integrity of the assignments, which like Forgery #1
now before this court, were prepared by NTC, showing the names, alleged signatures, and
varying job titles of Bryan Bly and Bobbie Jo Stoldt;
Assignment instrument recorded by the Sussex
County Clerks Office on 12/03/2010 in Bk: 8812 Pg:
93 prepared by NTC displaying the name and
alleged signature of Bryan Bly as a Vice President
of JPMorgan Chase Bank, N.A. alleging to have
appeared before Florida notary public / NTC
employee Bobbie Jo Stoldt on 11/16/2010.
See Exhibit 4

First of five assignments before this court prepared


by NTC displaying the name and alleged signature
of NTC employee Bryan Bly impersonating a Vice
President of Citi Residential Lending, Inc.
alleging to have appeared before Florida notary
public / NTC employee Bobbie Jo Stoldt on
02/18/2009. See Exhibit 1

21

23. Thus, the defendant asserts that a fair and impartial trier of facts can reasonably
determine the above images from Forgery #1 coming from the first of five assignment
instruments recorded upon the defendants title on 02/20/2009, and submitted to this court by the
Plaintiff, Ocwen, S&E, and Duane Morris (See Exhibit 1), compared with other assignments
such as the instrument recorded by the Sussex County Clerks Office on 12/03/2010 (See Exhibit
4) displays variations of the purported signatures for NTC employees Bryan Bly and notary
public Bobbie Jo Stoldt, along with varying job titles for Bryan Bly.
24. When confronted with similar circumstances involving an assignment instrument
displaying the name and alleged signature of Bryan Bly of NTC impersonating an Argent, the
Court of Appeals First District of Texas in Vasquez v. Deutsche Bank Trust Company, N.A.
(NO. 01-13-00220-CV) declared in relevant part;
With specific respect to the examples referenced by Deutsche Bank where Vazquez's
petition made reference to Bly's signature or Bly signing, the context must be
considered, and in this circumstance that context includes Vazquez's additional
allegations about the authenticity of the signature on the assignment, which she had
alleged was outside the authority of Bly and Citi to make on behalf of Argent. In addition
to her allegations about the authenticity of the signature on the assignment, Vazquez had
also alleged that the assignment was outside the authority of Bly and Citi to make on
behalf of Argent. Thus, we conclude that Vazquez's allegations in her petition and the
deposition testimony, read as a whole, gave Deutsche Bank fair and adequate notice that
she was challenging the provenance of the signature appearing on the assignment.2
Moreover, this argument manifestly has not been raised for the first time on appeal. In
her response to Deutsche Bank's motion for summary judgment, Vazquez repeated the
essential substance of this argument. Under the subject heading of standing, she argued
that Deutsche's ownership claim based on a public record assignment is void because an
unauthorized person, Bryan Bly, signed the conveyance to Deutsche, noting and
providing evidence that Bly admitted, in deposition testimony, that others routinely use
his signatures without his supervision, approval or personal knowledge.
Since Vazquez's petition adequately alleges forgery, and her response to the summary
judgment motion raised that argument as the reason why she contends the assignment to
Deutsche Bank was void, the trial court should not have granted summary judgment on
the basis that she lacked standing to pursue her quiet-title claim. We sustain her sole
appellate issue.
22

25. Because there is no doubt that as of 02/18/2009 Bryan Bly was not a Vice President or
employed at all by the purported assignor designated within Forgery #1, and he admitted during
a deposition on 07/02/2010 that he was at all times an employee of NTC,2 the first of five
assignment instruments trafficked by the Plaintiff, Ocwen, S&E, and Duane Morris and
submitted in support of their prima facie complaint for foreclosure must be stricken from
evidence for the instrument constitutes a violation of applicable state and federal laws including,
but not limited to, 18 U.S.C. 1342 which states;
Whoever, for the purpose of conducting, promoting, or carrying on by means of the
Postal Service, any scheme or device mentioned in section 1341 of this title or any other
unlawful business, uses or assumes, or requests to be addressed by, any fictitious, false,
or assumed title, name, or address or name other than his own proper name, or takes or
receives from any post office or authorized depository of mail matter, any letter, postal
card, package, or other mail matter addressed to any such fictitious, false, or assumed
title, name, or address, or name other than his own proper name, shall be fined under this
title or imprisoned not more than five years, or both.
ii. Forgery #2 and Forgery #3 Imposter Linda Green and the criminally
convicted DocX, LLC.
26. The Plaintiff, Ocwen, S&E, and Duane Morris have further committed fraud upon this
Court by submitting into evidence the second and third of five counterfeit, falsely uttered
assignment instruments (hereby Forgery #2 and Forgery #3) that asserts assignments and
or transfers of the disputed mortgage (absent a transfer of the debt) on 07/13/2009 from
American Home Mortgage Servicing, Inc., as successor-in-interest to Option One Mortgage
Corporation to the Plaintiff, and on 08/14/2009 from American Home Mortgage Servicing,
Inc., as servicer for U.S. Bank National Association, as Trustee for, Citigroup Mortgage Loan
2

See
https://www.lsnj.org/NewsAnnouncements/Foreclosure/materials/EXHIBITGCitiResidentialDepositionB
ly.pdf (last checked 04/14/2016) for the deposition of Byran J. Bly deposition in Deutsche Bank National
Trust Company as trustee vs. Gary L. Hannah, et al.
23

Trust Inc. Asset-Backed Pass-Through Certificates, Series 2006-AMC1, Under the Pooling and
Servicing Agreement dates as of September 1, 2006 to American Home Mortgage Servicing,
Inc., as success-in-interest to Option One Mortgage Corporation. See Exhibits 5 and 6.
27. There is no doubt that both the second and third of five assignment instruments
trafficked by the Plaintiff, Ocwen, S&E, and Duane Morris, and submitted as evidence in this
court, were prepared and recorded by DocX, LLC (hereby DocX).
28. There is no doubt that on 11/13/2012 DocX executive Lorraine Brown entered a plea
agreement with the Department of Justice (hereby DOJ) Criminal Division admitting her
participation in a six-year scheme to prepare and file more than 1 million fraudulently signed and
notarized mortgage-related documents with property recorders offices throughout the United
States. See Exhibit 7 for United States of America v. Lorraine Brown (Case No. 3:12-cr-198-J25MLR) from the United States District Court for the Middle District of Florida, Jacksonville
Division. See also Exhibit 8 for the DOJs 11/20/2012 press release which states in relevant
part;
According to plea documents filed today, employees of DocX, at the direction of
Brown and others, began forging and falsifying signatures on the mortgage-related
documents that they had been hired to prepare and file with property recorders offices.
Unbeknownst to the clients, Brown directed the authorized signers to allow other DocX
employees, who were not authorized signers, to sign the mortgage-related documents and
have them notarized as if actually executed by the authorized DocX employee
After these documents were falsely signed and fraudulently notarized, Brown authorized
DocX employees to file and record them with local county property records offices
across the country. Many of these documents particularly mortgage assignments, lost
note affidavits and lost assignment affidavits were later relied upon in court
proceedings, including property foreclosures and federal bankruptcy actions. Brown

24

admitted she understood that property recorders, courts, title insurers and homeowners
relied upon the documents as genuine3

29. Hence, both Forgery #2 and Forgery #3 displays the name and varying signatures
purported to be from Linda Green as a purported Vice President & Asst Secretary for
American Home Mortgage Servicing, Inc. on 07/13/2009 and 08/14/2009;
Second of five assignments before this court
prepared by DocX displaying the name and alleged
signature of Linda Green impersonating a Vice
President & Asst Secretary of America Home
Mortgage Servicing, Inc. on 07/13/2009.
See Exhibit 5

Third of five assignments before this court prepared


by DocX displaying the name and alleged signature
of Linda Green impersonating a Vice President &
Asst Secretary of America Home Mortgage
Servicing, Inc. on 08/14/2009.
See Exhibit 6

On 04/04/2011, 60 Minutes, CBS News aired The Next Housing Shock documenting the illegal
mortgage document fabrication practices of DocX, interviewing the actual Linda Green who
admitted she was never an officer for any mortgage companies, and that DocX circulated her
name to be used by others executing counterfeit mortgage related documents, of which
included men impersonating Linda Green.

See also https://youtu.be/IKwB1BaFu9Q (last

checked 04/14/2016). See also Exhibit 7 for counterfeit mortgage related documents prepared
by DocX and recorded throughout county clerks offices in New Jersey displaying varying
signatures, and titles for Linda Green.
3

See https://www.justice.gov/opa/pr/former-executive-florida-based-lender-processing-services-incadmits-role-mortgage-related (last checked 04/14/2016).


25

30. Hence, there is no doubt that both the second and third of five assignment instruments
prepared by the criminally convicted DocX that are being trafficked by the Plaintiff, Ocwen,
S&E, and Duane Morris, and have since been submitted to this course in support of their prima
facie case for foreclosure are counterfeit, forged instruments that resulted in DocXs top
executive Lorraine Brown being criminally convicted by Federal Authorities. See Exhibit 7 for
United States of America v. Lorraine Brown (Case No. 3:12-cr-198-J-25MLR).
31. Thus, if the defendant as a lay person is able to document the findings made by the DOJs
Criminal Division that determined DocX created and recorded forged and falsely notarized
assignment instruments, then the Plaintiff, Ocwen, S&E, and Duane Morris knew, should have
known, and or are attempting to fraudulently conceal from this court the unauthenticity of the
documents submitted in support of their prima facie case for foreclosure.
iii. Forgery # 4 Option One Mortgage Corporation as the assignee.
32. According to the Plaintiff, Ocwen, S&E, and Duane Morris the disputed paper note and
mortgage were assigned and or transferred for a fourth time by the Plaintiff to Option One
Mortgage Corporation, a California Corporation on 01/28/2011 (See Exhibit 10).
33. However, it is impossible for Option One Mortgage Corporation to take possession and
or an ownership interest in the disputed paper note and mortgage on 01/28/2011 because as of
04/30/2008, Option One Mortgage Corporation was acquired by American Home Mortgage
Servicing, Inc.,4 an affiliate of WL Ross & Co. LLC, (See Exhibit 11) effectively changing the
name Option One Mortgage Corporation to "Sand Canyon Corporation". See also Exhibit 13
for the declaration by Dale M. Sugimoto as the President of Sand Canyon Corporation on
03/18/2009 submitted in In Re Ron Wilson, Sr. et al., (Case No. 07-11862 (EWM)).
4

See http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=951370 (last checked


04/14/2016). See also https://www.publicintegrity.org/2009/05/06/12996/no-6-subprime-25-option-onemortgage-corphr-block-inc (last checked 04/14/2016).
26

34. Additionally, on 05/18/2012 in Drouin v. American Home Mortgage Servicing, Wells


Fargo Bank, and Option One Mortgage Corporation, Case No. 11-cv-596-JL, the court issued an
order determined that in early 2008 Option One Mortgage Corporations name was changed to
Sand Canyon Corporation.
35. Wherefore, there is no doubt that Option One Mortgage Corporation could not and did
not acquire any interest in the disputed paper note and mortgage on 01/28/2011 rendering the
fourth of five assignment instruments falsely uttered, fraud in factum, and void ab initio.
iv. Forgery # 5 Sand Canyon Corporation as the assignor.
36. According to the Plaintiff, Ocwen, S&E, and Duane Morris the disputed mortgage were
assigned and or transferred (absent a transfer of the debt) for a fifth time by Sand Canyon
Corporation f/k/a Option One Mortgage Corporation on 05/20/2014 to the Plaintiff. The fifth
of five assignment instruments declares that both the assignor and assignee share the same
address, c/o Ocwen Loan Servicing, LLC. 5720 Premier Park Dr, West Palm Beach, FL
33407, which belongs to Ocwen, the instruments declares it was prepared by David Santa of
Ocwen located at 5720 Premier Park Dr, West Palm Beach, FL 33407 (See Exhibit 12).
Furthermore, the instrument is stamped to be recorded and returned to S&Es at 1040 N. Kings
Highway, Suite 407, Cherry Hill, NJ 08034.
37. There is no doubt that the fifth of five assignment instruments a/k/a Forgery #5 is a
counterfeit document because, as of 05/20/2014, Sand Canyon Corporation f/k/a Option One
Mortgage Corporation did not have ownership or possession of the disputed paper note and or
mortgage subject of the foreclosure action before this court. As set forth with a declaration by
Dale M. Sugimoto as the President of Sand Canyon Corporation, dated 03/18/2009, and
submitted to the United States Bankruptcy Court Eastern District of Louisiana New Orleans in

27

the matter of In Re Ron Wilson, Sr. et al., (Case No. 07-11862 (EWM)), the President of Sand
Canyon Corporation admitted in relevant part, under penalty of perjury that;
5. Accordingly, Sand Canyon is no longer engaged in the servicing of residential
mortgage loans. Sand Canyon has no servicing rights.
6. Sand Canyon also does not own any residential real estate mortgages.
7. Sand Canyon's present business involves dealing with litigation claims,
including title issues or litigation relating to servicing prior to the sale of OOMC's
servicing rights to AHMS.
I declare under penalty of perjury that the foregoing is true and correct.
See Exhibit 13.
38. Additionally, Forgery #5 displays the name and alleged signature of Jason Ayers
impersonating a fictitious officer of Sand Canyon Corporation on 05/20/2014 while the
defendant has identified four (4) instruments recorded with the Hillsborough County Clerks
Office in Florida between the dates of 04/21/2014 and 04/22/2014 displaying the name and
alleged signature of Jason Ayers as a witness with an address of 5720 Premier Park Dr, West
Palm Beach, FL 33407 which is the location of Ocwen, not Sand Canyon Corporation. See
Exhibit 14.
39. On 05/18/2012, the court in Drouin v. American Home Mortgage Servicing, Wells
Fargo Bank, and Option One Mortgage Corporation, Case No. 11-cv-596-JL, issued an order
denying Wells Fargos motion to dismiss by declaring that the homeowners had standing to
attack the alleged transfer as there was not and could not have been any assignment on
03/24/2011 as a matter of fact. The court held that the challenge was not an attack on the
assignment itself, but that no assignment occurred, concluding that the homeowners had standing
to pursue their theory that Sand Canyon Corporation did not hold their mortgage and thus could
28

INTENTIONALLY BLANK

from the Supreme Court of Rhode Island stating in relevant part; the subsequent assignment of
the mortgage would be void ab initio because the assignor had nothing to assign.
42. Furthermore, there is no doubt that the second and third out of five assignment
instruments are forgeries created by DocX who the DOJs Criminal Division determined created
and recorded more than one million (1,000,000) fraudulent mortgage related documents
(assignments, discharges, etc) displaying imposters and false notary acknowledgments 5 (See
Exhibit 9). See also Exhibit 7 for United States of America v. Lorraine Brown (Case No. 3:12cr-198-J-25MLR).
43. Even should the court assume arguendo that assignments one through five are not
counterfeits and forged, the Plaintiff, Ocwen, S&E, and Duane Morris have submitted to this
court a defective chain of title recital displaying a broken succession of title which only
invalidates the Plaintiffs asserted right to enforce the disputed mortgage loan subject of the
foreclosure action before this court.
44. First, according to the Plaintiff, Ocwen, S&E, and Duane Morris the disputed mortgage
was assigned and or transferred (absent a transfer of the debt) for the first time by Citi
Residential Lending, Inc., as Attorney-in-fact for Argent Mortgage Company, LLC to the
Plaintiff on 02/18/2009 (See Exhibit 1), followed by an alleged assignment and or transfer of
the disputed mortgage (absent a transfer of the debt) for a second time by American Home
Mortgage Servicing, Inc., as successor-in-interest to Option One Mortgage Corporation to the
Plaintiff on 07/13/2009 (See Exhibit 5). However, no evidence has been submitted to this court
by the Plaintiff, Ocwen, S&E, or Duane Morris, nor has an instrument been recorded with the

See https://www.justice.gov/opa/pr/former-executive-florida-based-lender-processing-services-incadmits-role-mortgage-related (last checked 04/14/2016)


30

Gloucester County Clerks Office displaying the Plaintiff

assigning its alleged interest in the

disputed mortgage to American Home Mortgage Servicing, Inc. as successor-in-interest to


Option One Mortgage Corporation prior to 07/13/2009 in order to validate the alleged transfer
set forth within the second of five assignment instruments submitted to this court.
45. Next, according to the Plaintiff, Ocwen, S&E, and Duane Morris the disputed mortgage
was assigned and or transferred (absent a transfer of the debt) for a third time by American
Home Mortgage Servicing, Inc., as servicer for the Plaintiff to American Home Mortgage
Servicing, Inc., as successor-in-interest to Option One Mortgage Corporation on 08/14/2009
(See Exhibit 6). However, no evidence has been submitted to this court by the Plaintiff, Ocwen,
S&E, or Duane Morris, nor has an instrument been recorded with the Gloucester County Clerks
Office displaying the Plaintiff

assigning its alleged interest in the disputed mortgage to

American Home Mortgage Servicing, Inc. as servicer for the Plaintiff prior to 08/14/2009 in
order to validate the alleged transfer set forth within the third of five assignment instruments
submitted to this court.
46. Then, according to the Plaintiff, Ocwen, S&E, and Duane Morris the disputed paper note
and mortgage were assigned and or transferred for a fourth time by the Plaintiff to Option One
Mortgage Corporation, a California Corporation on 01/28/2011 (See Exhibit 10). However, no
evidence has been submitted to this court by the Plaintiff, Ocwen, S&E, or Duane Morris, nor
has an instrument been recorded with the Gloucester County Clerks Office displaying
American Home Mortgage Servicing, Inc., as successor-in-interest to Option One Mortgage

The Plaintiff is the last assignee of record as of 02/18/2009 according to the first of five assignment
instruments.
6

The Plaintiff is the last assignee of record as of 07/13/2009 according to the second of five assignment
instruments.
7

31

Corporation8 assigning its alleged interest in the disputed mortgage to the Plaintiff prior to
01/28/2011 in order to validate the alleged transfer set forth within the fourth of five
assignment instruments submitted to this court.
47. Hence, the aforementioned discrepancies for which the Plaintiff, Ocwen, S&E, and
Duane Morris have yet to demonstrate when and how the alleged assignors of the disputed paper
note and or mortgage recited within the second, third, and fourth assignment instruments
constitutes "Broken succession of title" which according to N.J.S.A. 2C:20-1(L) occurs when
there is a;
lack of regular documents of purchase and transfer by any seller except the
manufacturer of the subject property, or possession of documents of purchase and
transfer by any buyer without corresponding documents of sale and transfer in possession
of seller, or possession of documents of sale and transfer by seller without corresponding
documents of purchase and transfer in possession of any buyer.
See N.J.S.A. 2C:20-1(L).
48. Wherefore, even should this court declare that the five assignment instrument recited
by the Plaintiff, Ocwen, S&E, and Duane Morris are not counterfeits, the chain of title recital is
still defective for there is no evidence of how and when the purported assignors designated
within the second, third, and fourth assignment instruments came in to possession and or
ownership of the disputed paper note and mortgage instrument subject of the foreclosure action
before the court.

American Home Mortgage Servicing, Inc., as successor-in-interest to Option One Mortgage


Corporation is the last assignee of record as of 08/14/2009 according to the third of five assignment
instruments.
8

32

C. Four (4) out of five (5) of the Plaintiffs counterfeit assignment instruments make
no mention of a transfer of the debt, further rendering the instruments void ab
initio, and prohibiting the Plaintiffs and Ocwens attempt to enforce the disputed
mortgage loan.
49. As set forth above and referenced herein as if fully incorporated, there is no doubt that
the Plaintiff, Ocwen, S&E, and Duane Morris have submitted to this court five falsely uttered,
fraud in factum, void ab initio assignment instruments that are each counterfeit documents that
in major part display misrepresentations, imposters, and false notary attestations, and passed no
rights to the Plaintiff.
50. Even should the court assume arguendo that assignments one through five are not
counterfeits and forged, the instruments dated 02/18/2009 (See Exhibit 1), 07/13/2009 (See
Exhibit 5), 08/14/2009 (See Exhibit 6), 01/28/2011 (See Exhibit 10), and 05/20/2014 (See
Exhibit 13) failed to make mention and or explained how the Plaintiff was transferred the
disputed paper note. This matter is critical as to the Plaintiffs asserted right to enforce the
disputed paper note because an assignment of mortgage absent a transfer of the debt is a nullity.
See Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271, 275, 21 L. Ed 313 (1872), An assignment
of the note carries the mortgage with it, while an assignment of the latter alone is a nullity. 29
N.J. Prac., Law of Mortgages 11.2 (2d ed.) (emphasis added), citing inter alia Stevenson v.
Black, 1 N.J. Eq. 338, 343 (Ch. 1831); Morris Canal & Banking Co. v. Fisher, 9 N.J. Eq. 667,
696-97, 700, (E & A 1855); Dimon v. Dimon, 10 N.J.L. 156, 158 (Sup. Ct. 1828); Sayre v.
Fredericks, 16 N.J. Eq. 205, 206 (Ch. 1863); Blue v. Everett, 56 N.J. Eq. 455, 458 (E & A 1897);
Federal Reserve Bank of Phila. v. Welch, 122 N.J. 90, 92 (Ch. 1937). A person holding only a
note lacks the power to foreclose because it lacks the security, and a person holding only a deed
of trust suffers no default because only the holder of the note is entitled to payment on it. See
Restatement (Third) of Property (Mortgages) 5.4 cmt. e (1997). "Where the mortgagee has
33

'transferred' only the mortgage, the transaction is a nullity and his 'assignee,' having received no
interest in the underlying debt or obligation, has a worthless piece of paper." See Richard R.
Powell, Powell On Real Property, 37.27[2] (2000) (emphasis added). See Katz v. East-Ville
Realty Co., (249 AD2d 243 [1d Dept 1998]), where the court opinioned in relevant part;
"[p]laintiff's attempt to foreclose upon a mortgage in which he had no legal or equitable interest
was without foundation in law or fact." Also see CitiMortgage, Inc. v. Brown 2010 NY Slip Op
87737 (U), where the court opinioned in relevant part; Foreclosure of a mortgage may not be
brought by one who has no title to it, and absent transfer of the debt, the assignment of the
mortgage is a nullity (Kluge v Fugazy,145 AD2d 537 [1988]).
51. Wherefore, even should this court declare that the five assignment instrument recited
by the Plaintiff, Ocwen, S&E, and Duane Morris are not counterfeits, the undisputed fact that
four out of the five assignment instruments, including the first and the last, fail to explain if
and how the disputed paper note was transferred, renders the instruments void ab initio and
prohibits the Plaintiffs attempt to enforce and foreclose without evidence of having possession
of the debt.

34

D. The trial court must vacate its order dismissing the defendants answer, affirmative
defenses, and counterclaims against the Plaintiff, debt collector Ocwen, along with
third-party debt collectors Stern & Eisenberg who, together with Duane Morris,
have presented a prima facie case to foreclose using instruments that are void, not
voidable, pursuant to New York Estates, Powers & Trusts - Part 2 - 7-2.4.
52. There is no doubt that on or about 08/31/2007, Citigroup, Inc. purchased only the
servicing rights owed by Argent and its affiliate company Ameriquest through acquiring the
latters parent company, ACC Capital Holdings, Inc. 9 See Exhibit 22.
53. There is no doubt that the Plaintiff, as the asserted assignee of the disputed mortgage
(absent a transfer of the disputed debt) as asserted within the assignment instruments dated
02/18/2009 (See Exhibit 1), 07/13/2009 (See Exhibit 5) and 05/20/2014 (See Exhibit 13) has a
Pooling and Servicing Agreement (hereby PSA) dated 09/01/2006 which was filed with the
U.S. Securities and Exchange Commission (hereby SEC) and hereby submitted to the court;
http://www.sec.gov/Archives/edgar/data/1375282/000088237706003569/d569570_ex4-1.htm
(last checked 04/14/2016).

See http://www.housingwire.com/articles/957-ameriquest-close-citigroup-exercises-purchase-optionacc-capital (last checked 04/14/2016) for Ameriquest to Close; Citigroup Exercises Purchase Option on
ACC Capital (August 31, 2007);
See also https://www.publicintegrity.org/2009/05/06/12986/no-2-subprime-25-ameriquest-mortgagecoacc-capital-holdings-corp (last checked 04/14/2016) for No. 2 of The Subprime 25: Ameriquest
Mortgage Co./ACC Capital Holdings Corp. (May 6, 2009);
See also http://www.nationalmortgagenews.com/on_issues/17_1/-448580-1.html
04/14/2016) for Citigroup Acquires Argent (October 1, 2007);

(last

checked

See also http://articles.latimes.com/2007/sep/01/business/fi-ameriquest1 (last checked 04/14/2016) for


Citi to buy remains of Ameriquest (September 1, 2007);
See also http://www.nytimes.com/2007/09/01/business/01citi.html (last checked 04/14/2016) for
Citigroup Buys Parts of a Troubled Mortgage Lender (September 1, 2007);

35

54. Further, there is no doubt that Section 10.01 (REMIC Administration) of the Plaintiffs
PSA represents and warrants that the Plaintiff was to function as a Real Estate Mortgage
Investment Conduit (hereby REMIC) within the meaning of Section 860G(a)(9) of the Code.
55. Consequently, in order for the Plaintiff to qualify as a REMIC with tax advantages for
investors purchasing certificates sold from the issuing entity, 26 U.S.C. 860G(a)(3)(4) requires
the purchase of only qualified mortgages as follows;
(3) Qualified mortgage
The term qualified mortgage means
(A) any obligation (including any participation or certificate of beneficial ownership
therein) which is principally secured by an interest in real property and which
(i) is transferred to the REMIC on the startup day in exchange for regular or
residual interests in the REMIC,
(ii) is purchased by the REMIC within the 3-month period beginning on the
startup day if, except as provided in regulations, such purchase is pursuant to a
fixed-price contract in effect on the startup day, or
(iii) represents an increase in the principal amount under the original terms of an
obligation described in clause (i) or (ii) if such increase
(I) is attributable to an advance made to the obligor pursuant to the original
terms of a reverse mortgage loan or other obligation,
(II) occurs after the startup day, and
(III) is purchased by the REMIC pursuant to a fixed price contract in effect
on the startup day.
(4) Qualified replacement mortgage
The term qualified replacement mortgage means any obligation
(A) which would be a qualified mortgage if transferred on the startup day in exchange
for regular or residual interests in the REMIC, and
(B) which is received for
(i) another obligation within the 3-month period beginning on the startup day, or
36

INTENTIONALLY BLANK

59. Lastly, there is no doubt that Section 11.04 (Governing Law) within the Plaintiffs PSA
declares that This Agreement shall be construed in accordance with the laws of the State of
New York and the obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws. See Exhibit 16.
60. As set forth within New York Estates, Powers & Trusts - Part 2 - 7-2.4; 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. New York law provides that any transfers beyond the stated
the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of
the Depositor under the Assignment Agreement, payments made to the Trust Administrator by the
Cap Administrator under the Cap Administration Agreement and the Cap Account, and all other
assets included or to be included in REMIC I. Such assignment includes all interest and principal
received by the Depositor or the Servicer on or with respect to the Mortgage Loans (other than
payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The
Depositor herewith delivers to the Trustee executed copies of the Assignment Agreement, and the
Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the
Certificateholders.
In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit
with, the Trustee or a Custodian on its behalf, the following documents or instruments (a Mortgage
File) with respect to each Mortgage Loan so transferred and assigned:
(i) The Mortgage Note, endorsed by manual or facsimile signature without recourse by the
Originator or an Affiliate of the Originator in blank or to the Trustee showing a complete chain of
endorsements from the named payee to the Trustee or from the named payee to the Affiliate of
the Originator and from such Affiliate to the Trustee;
(ii) The original recorded Mortgage, noting the presence of the MIN of the Mortgage Loan, if
applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is a MOM Loan, with evidence of recording thereon or a copy of the Mortgage certified by the
public recording office in those jurisdictions where the public recording office retains the
original;
(iii) Unless the Mortgage Loan is registered on the MERS System, an assignment from the
Originator or an Affiliate of the Originator to the Trustee in blank or in recordable form of the
Mortgage which may be included, where permitted by local law, in a blanket assignment or
assignments of the Mortgage to the Trustee, including any intervening assignments and showing a
complete chain of title from the original mortgagee named under the Mortgage to the Person
assigning the Mortgage Loan to the Trustee (or to MERS, noting the presence of the MIN, if the
Mortgage Loan is registered on the MERS System);
38

powers of the trust are void. 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. McKinney's Consolidated
Law of New York Annotated, Estates Powers and Trust Laws, section 7-2.4 (2003); See also
Allison & Ver Valen Co. v. McNee, 9 N.Y.S. 2D 708 (N.Y. Sur. 1939); See also Dye v. Lewis
(New York, Sup. Crt., 1971) 67 Misc.2d 426, 324 N.Y.S.2d 172. (The authority of the trustee is
subject to any limitations imposed by the trust instrument [EPTL, s 111.1, subd. (b)(8)], and
every act in contravention of the Trust is void. [EPT, s 72.4]).
61. Hence, the attempt by the Plaintiff, Ocwen, S&E, and Duane Morris to persuade this
court to accept the aforementioned five assignment instruments (two of which were created by
the criminally convicted DocX) is fraud in factum, void ab initio, and must be estopped for each
of the alleged assignments and or transfers presented to the court are in contravention of the
conveyance requirements set forth in the Plaintiffs binding PSA and 424B5 11 that are registered
with the SEC which required a true sale of 6,772 without recourse to the trustee in order to issue
$1,300,516,002 (approximately) worth of certificates to investors represented as Mortgage
Backed Securities by the September 28, 2006 closing a/k/a start-up date.
62. As stated In re Saldivar, Case No. 11-1-0689 (June 5, 2013), the United States
Bankruptcy Court, S.D. Texas declared in relevant part;
Under New York Trust Law, is an ultra vires act void or merely voidable? A third party
generally lacks standing to challenge the validity of an assignment. Bank of American
Natl Assoc. v. Bassman FBT, L.L.C., et al. 981 N.E.2d 1, 7 (Ill. App. Ct. 2012). A
borrower may however raise a defense to an assignment, if that defense renders the
assignment void N.Y. Est. Powers & Trusts Law 7-2.4. The Bassman court holds
that despite the plain language of 7-2.4, under various circumstances a trustees ultra
vires acts are voidable and not void. Bassman, 981 N.E.2d. at 9. The Bassman court cites
New York cases that hold that beneficiaries of a trust can ratify a trustees ultra vires acts.
11

See http://www.sec.gov/Archives/edgar/data/1375282/000088237706003283/d571630_424b5.htm (last


checked 04/14/2016);
39

INTENTIONALLY BLANK

New York law, any transfer to the trust in contravention of the trust documents is void].)
Relying on Erobobo, a bankruptcy court recently concluded that under New York law,
assignment of the Saldivars Note after the start up day is void ab initio. As such, none of
the Saldivars claims will be dismissed for lack of standing. (In re Saldivar
(Bankr.S.D.Tex., Jun. 5, 2013, No. 11-10689) 2013 WL 2452699, at p. *4.)
We are aware that that some federal district courts sitting in California have rejected the
post-closing date theory of invalidity on the grounds that the borrower does not have
standing to challenge an assignment between two other parties These cases are not
persuasive because they do not address the principle that a borrower may challenge an
assignment that is void and they do not apply New York trust law to the operation of the
securitized trusts in question
See also Horace vs. LaSalle Bank, N.A. from the Alabama Circuit Court of Russell County
(Case No.: 57-CV-2008-000362.00), stating in relevant part; First, the Court is surprised to the
point of astonishment that the defendant trust (LaSalle Bank National Association) did not
comply with the terms of its own Pooling and Servicing Agreement and further did not comply
with New York Law in attempting to obtain assignment of the plaintiff Horaces note and
mortgage.
64. Wherefore, this court is obligated by Article IV of the U.S Constitution and 28 U.S.C.
1652 to give full faith and credit to the governing law binding the Plaintiff and Ocwen for which
New York Estates, Powers & Trusts Law section 7-2.4 renders the five assignment instruments
submitted to this court void ab initio, not voidable. See Yvanova v. New Century Mortgage,
Supreme Court case number S18973, decided 02/18/2016 by the California Supreme Court
declaring a homeowner has a right to challenge an assignment which is void ab initio such as the
five falsely uttered assignment instruments being trafficked by the Plaintiff, Ocwen, S&E, and
Duane Morris, and submitted to this court in support of their prima facie case for foreclosure.

41

E. The trial court must vacate its order dismissing the defendants answer, affirmative
defenses, and counterclaims against the Plaintiff, debt collector Ocwen, along with
third-party debt collectors Stern & Eisenberg who, together with Duane Morris,
have presented a prima facie case to foreclose using two conflicting, counterfeit
instruments both purported to be a copy of the original disputed paper promissory
note, neither of which establish the Plaintiffs right to enforce.
65. On 08/27/2014, the Plaintiff, Ocwen, and S&E commenced the current foreclosure
proceeding filing their complaint with the Clerk for the Superior Court of New Jersey, including
in support as Exhibit A, an instrument purported to be the disputed paper note void of any
indorsements. Also included with Exhibit A is a separate page titled allonge which displays
an undated stamp by Citi Residential Lending, Inc. as Attorney-In-Fact For Argent Mortgage
Company, LLC, paid to the order of in blank (____________). See the Plaintiffs Exhibit
A hereby attached as Exhibit 17.
66. The defendant asserts that what the Plaintiff, Ocwen, and S&E have presented by way of
their Exhibit A as the disputed paper note, defective in part because there is no certainty if the
one page piece of paper submitted with Exhibit A and titled allonge is actually permanently
affixed to the three page instrument seen within Exhibit A purported to be the disputed paper
note, the latter of which displays two dots on the top of each of the three pages that are alleged
to be whole punches. Because there is room on the last page of the alleged paper note displayed
within the Plaintiffs Exhibit A, there is no need for an allonge which according to Blacks
Law Dictionary 4th Edition is defined as; A slip of paper sometimes attached to a negotiable
instrument for the purpose of receiving further indorsements when the original paper is filled
with indorsements. Furthermore, the defendant has identified a LinkedIn profile for Roger
Kistler, the name and the alleged signature affixed to separate page included within the
Plaintiffs first Exhibit A submitted to this court on 08/27/2014 as an allonge, appearing to be
a Vice President for Citi Residential Lending, Inc. as Attorney-In-Fact For Argent Mortgage
42

Company, LLC. However, according to Roger Kistlers LinkedIn profile (as of 04/14/2016),
from January 2008 May 2012 Roger Kistler declares that he worked as a Assistant Vice
President for American Home Mortgage Servicing, and from January 2008 to present as a
Director Document Services for Homeward Residential Inc. 12

See Exhibit 18.

The

aforementioned findings on LinkedIn (See Exhibit 18) are further supported by Roger Kistlers
testimony in recited by the court on 12/17/2012 in Wells Fargo Bank NA, Plaintiff - Appelle v.
Terry L. Freed, et al., Defendants - Appellants, Court of Appeals of Ohio, Third Appellate
District (Case No. 5-12-01), in which Roger Kistler testified that he was the Vice President of
the Records and Collateral Management Department for American Home Mortgage Servicing,
Inc. (AHMSI), casting a legitimate doubt as to the authenticity of the purported allonge
submitted to this court within the Plaintiffs Exhibit A which displays the alleged signature of
Roger Kistlers as a Vice President for Citi Residential Lending, Inc. as Attorney-In-Fact For
Argent Mortgage Company, LLC.
67. Additionally, what the Plaintiff, Ocwen, and S&E have presented as the disputed paper
note not only contradicts the chain of dated indorsements required by the Plaintiffs PSA
reflecting transfers; (i) by the originator, paid to the order of the sponsor / seller, (ii) by the
sponsor, paid to the order of the depositor, and (iii) by the depositor, paid to the order of the
trustee for the benefit of the certificate holders of CMLT 2006-AMC1. See Exhibit 15 for
Section 2.01 (Conveyance of Mortgage Loans) 13 of the Plaintiffs PSA registered with the SEC,
and dated 09/01/2006. Because the Plaintiffs PSA declares in Section 11.04 (Governing Law)
that the PSA agreement is in accordance with the laws of the State of New York, and New York
12

See https://www.linkedin.com/in/roger-kistler-a5b34a5b (last checked 04/14/2016)

13

See http://www.sec.gov/Archives/edgar/data/1375282/000088237706003569/d569570_ex4-1.htm (last


checked 04/14/2016) for Section 2.01 (Conveyance of Mortgage Loans) from the Plaintiffs PSA
registered with the SEC, and dated 09/01/2006.
43

Estates, Powers & Trusts - Part 2 - 7-2.4 renders any act in contravention of the PSA void, the
Plaintiffs presentation displayed within Exhibit A purported to be the disputed paper note is in
contravention of the chain of indorsements set forth in Section 2.01 (Conveyance of Mortgage
Loans), and is therefore void.
68. On 07/23/2015, the Plaintiff and Ocwen through third-party debt collector / counsel
Duane Morris filed a motion to strike the defendants answer and suppress the affirmative
defenses, attaching in support as Exhibit A (hereby submitted as Exhibit 19) an instrument
purported to be the disputed paper note that is different from the instrument submitted as
Exhibit A (See Exhibit 17) with the filing of their foreclosure complaint on 08/27/2014.
Unlike the first Exhibit A submitted to this court on 08/27/2014 for which there are no
indorsements, only a separate one page document titled allonge, the second Exhibit A
submitted to this court by the Plaintiff, Ocwen, and Duane Morris on 07/23/2015 does not
include the separate one page document titled allonge and page three (3) of three (3) of the
purported paper note displays an undated stamp by Argent Mortgage Company, LLC in blank
(____________);
Page 3 of 3 from the first Exhibit A
submitted to the court on 08/27/2014

Page 3 of 3 from the second Exhibit A


submitted to the court on 07/23/2015

44

69. Additionally, the two dots displayed on the top of pages one through three of the alleged
paper note displayed with the first Exhibit A submitted to this court by the Plaintiff, Ocwen,
and S&E on 08/27/2014 do not appear on page one through three of the alleged paper note
displayed within the second Exhibit A submitted to this court by the Plaintiff, Ocwen, and
Duane Morris on 07/23/2015;
Page 1 of 3 from the first Exhibit A
submitted to the court on 08/27/2014

Page 1 of 3 from the second Exhibit A


submitted to the court on 07/23/2015

Page 2 of 3 from the first Exhibit A


submitted to the court on 08/27/2014

Page 2 of 3 from the second Exhibit A


submitted to the court on 07/23/2015

Page 3 of 3 from the first Exhibit A


submitted to the court on 08/27/2014

Page 3 of 3 from the second Exhibit A


submitted to the court on 07/23/2015

45

INTENTIONALLY BLANK

F. The trial court must vacate its order dismissing the defendants answer, affirmative
defenses, and counterclaims against the Plaintiff, debt collector Ocwen, along with
third-party debt collectors Stern & Eisenberg who, together with Duane Morris,
have asserted agency relationships without presenting a duly signed and
acknowledged power of attorney pursuant to New Jersey law.
72. As set forth above and herein referenced as if fully incorporated, the first of five
assignment instruments submitted to this court which displays the name and alleged signature
of Bryan Bly impersonating a Vice President of Citi Residential Lending, Inc. as Attorney-InFact for Argent Mortgage Company, LLC is a counterfeit document because Bryan Bly was an
employee of NTC as of 02/18/2009 not the alleged assignor of the disputed mortgage. See
Exhibit 2 for relevant parts from the deposition of Byran J. Bly deposition in Deutsche Bank
National Trust Company as trustee vs. Gary L. Hannah, et al.. See also Vasquez v. Deutsche
Bank Trust Company, N.A. (NO. 01-13-00220-CV) for the opinion issued by the Court of
Appeals First District of Texas on 07/24/2014.
73. Further, as set forth above and herein referenced as if fully incorporated, the defendant
asserts that the separate page within Exhibit A that was submitted to the court by the Plaintiff,
Ocwen, and S&E on 08/27/2014 as an allonge displays the name and alleged signature of
Roger Kistler as a Vice President of Citi Residential Lending, Inc. as Attorney-In-Fact for
Argent Mortgage Company, LLC is questionable in part because, according to Roger Kistlers
LinkedIn profile (last checked 04/14/2016), he has never worked for either Citi Residential
Lending, Inc. or Argent Mortgage Company, LLC, and from 2008 to present date has worked for
American Home Mortgage Servicing and Homeward Residential Inc.
74. Nevertheless, both the first of five assignment instruments along with the purported
allonge within the first Exhibit A submitted to this court by the Plaintiff, Ocwen, and S&E
on 08/27/2014 assert that Citi Residential Lending, Inc. was the Attorney-In-Fact for Argent

47

Mortgage Company, LLC without presenting to this court a duly signed and acknowledged
power of attorney to validate the asserted agency relationship.

See Blacks Law Dictionary

1076 [8th ed 2004] [defining a nominee as (a) person designated to act in place of another,
(usually) in a very limited way]). See also N.J.S.A.46:2B-8.2; N.J.S.A. 46:2B-8.9; N.J.S.A.
46:2B-8.13; N.J.S.A. 46:2B-15; N.J.S.A. 46:2B-8.13a; N.J.S.A. 3B:14-53(e).
75. As established by the New Jersey Supreme Court in N.J. Lawyers Fund for Client Prot.
v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010); An agency relationship is created when
one person (a principal) manifests assent to another person (an agent) that the agent shall act on
the principals behalf and subject to the principals control, and the agent manifests assent or
otherwise consents so to act. Restatement (Third) of Agency 1.01 (2006) (internal quotation
marks omitted). Generally, an agent may only bind his principal for such acts that are within his
actual or apparent authority. Carlson v. Hannah, 6 N.J. 202, 212 (1951). Actual authority occurs
when, at the time of taking action that has legal consequences for the principal, the agent
reasonably believes, in accordance with the principals manifestations to the agent, that the
principal wishes the agent so to act. Restatement (Third) of Agency, supra, 2.01. Apparent
authority arises when a third party reasonably believes the actor has authority to act on behalf of
the principal and that belief is traceable to the principals manifestations. Id. 2.03. The
doctrine of apparent authority focuses on the reasonable expectations of third parties with
whom an agent deals. Id. 7.08 comment b. Hence, a court must examine the totality of the
circumstances to determine whether an agency relationship existed even though the principal did
not have direct control over the agent. [Sears Mortg. Corp. v. Rose, 134 N.J. 326, 338 (1993)].
See also Bank of N.Y. v. Alderazi, 28 Misc 3d 376, 379-380; A party who claims to be the
agent of another bears the burden of proving the agency relationship by a preponderance{**28

48

INTENTIONALLY BLANK

G. The trial court must vacate its order dismissing the defendants answer, affirmative
defenses, and counterclaims against the Plaintiff, debt collector Ocwen, along with
third-party debt collectors Stern & Eisenberg who, together with Duane Morris, are
attempting to enforce the disputed refinance mortgage which is in violation of the
Home Ownership Equity Protection Act (HOEPA) and the New Jersey Home
Ownership Security Act (HOSA), and is subject to being be offset and
unenforceable.
77. There is no doubt the disputed refinance mortgage transaction dated 06/19/2006 that is
subject of the foreclosure action before this court is a high-cost, adjustable rate mortgage loan.
78. The past two decades has seen the "tremendous increase" of the subprime home equity
lending industry and a "marked and tragic increase in the number of home foreclosures as the
result of subprime home equity lending." See Mansfield, The Road To Subprime "HEL" Was
Paved With Good Congressional Intentions: Usury Deregulation And The Subprime Home
Equity Market, 51 S.C.L. Rev. 473, 528 (Spring 2000). Eighty percent (80%) of subprime loans
including the one at bar are refinance transactions and not purchase money mortgages. 15
79. Very high interest rate loans may lead to not only rescission remedies, but also assignee
liability pursuant to the provisions of the Home Owner Equity Protection Act of 1994 (hereby
HOEPA), See 15 U.S.C. 1602(aa) and 1639. HOEPA amended TILA in 1994 to require
enhanced disclosures for very high interest rate mortgage loans. This act is powerful in that it
imposes assignee liability.
80. In response to the increase in predatory lending in New Jersey, the Legislature explicitly
recognized and responded to this increase in abusive mortgage lending by enacting the New
Jersey Home Ownership Security Act of 2002, N.J.S.A. 46:10B-22 et seq. (hereby "HOSA"). In
doing so, the Legislature expressly found that:

15

See HUD-Treasury Report Recommendations to Curb Predatory Home Mortgage Lending at 28-29
(2000).

50

Abusive mortgage lending has become an increasing problem in this State, exacerbating
the loss of equity in homes and causing an increase in the number of foreclosures in
recent years. One of the most common forms of abusive lending is the making of loans
that are equity-based, rather than income based. The financing of points and fees in these
loans provides immediate income to the originator and encourages the repeated financing
of home loans. The lender's ability to sell loans reduces the incentive to ensure that the
homeowner can afford the payments of the loan. As long as there is sufficient equity in
the home, an abusive lender benefits even if the borrower is unable to make the payments
and is forced to refinance. In addition, the financing of high points and fees causes the
loss of precious equity in each refinancing and often leads to foreclosure.

N.J.S.A. 46:10B-23(a) (emphasis added). These are exactly the practices at issue in the case at
bar.
81. On 06/19/2006, neither Argent or its financiers presented the defendant with a fixed rate
refinance or any alternatives as required by 15 U.S.C. 1639c(a) other than the high-cost
refinance mortgage subject of the foreclosure action before this court.
82. When a borrower is about to enter into a "high cost" loan, NJ HOSA requires a creditor to
give the borrower the following notice:
YOU SHOULD BE AWARE THAT YOU MIGHT BE ABLE TO OBTAIN A LOAN
AT A LOWER COST. YOU SHOULD SHOP AROUND AND COMPARE LOAN
RATES AND FEES. MORTGAGE LOAN RATES AND CLOSING COSTS AND
FEES VARY BASED ON MANY FACTORS, INCLUDING YOUR PARTICULAR
CREDIT AND FINANCIAL CIRCUMSTANCES, YOUR EMPLOYMENT HISTORY,
THE LOAN-TO-VALUE REQUESTED AND THE TYPE OF PROPERTY THAT
WILL SECURE YOUR LOAN. THE LOAN RATE AND FEES COULD ALSO VARY
BASED ON WHICH CREDITOR OR BROKER YOU SELECT.
IF YOU ACCEPT THE TERMS OF THIS LOAN, THE CREDITOR WILL HAVE A
MORTGAGE LIEN ON YOUR HOME. YOU COULD LOSE YOUR HOME AND
ANY MONEY YOU PUT INTO IT IF YOU DO NOT MEET YOUR PAYMENT
OBLIGATION S UNDER THE LOAN.
YOU SHOULD CONSULT AN ATTORNEY-AT-LAW AND A QUALIFIED
INDEPENDENT CREDIT COUNSELOR OR OTHER EXPERIENCED FINANCIAL
ADVISOR REGARDING THE RATE, FEES AND PROVISIONS OF THIS
MORTGAGE LOAN BEFORE YOU PROCEED.
A LIST OF QUALIFIED
COUNSELORS IS AVAILABLE BY CONTACTING THE NEW JERSEY
DEPARTMENT OF BANKING AND INSURANCE.
51

INTENTIONALLY BLANK

loan...." N.J.S.A. 46:10B-24 (definition of "Creditor"). NJ HOSA, like its federal counterpart
(HOEPA), also applies to purchasers and assignees of the loan:
Notwithstanding any provision of law, any person who purchases or is otherwise
assigned a high cost home loan shall be subject to all affirmative claims and any defenses
with respect to the loan that the borrower could assert against the original creditor or
broker of the loan...."
N.J.S.A. 46:10B-27(b).
87. Additionally, the NJ HOSA allows for affirmative claims, and defenses by borrowers c.
Notwithstanding any other law to the contrary, but limited to amounts required to reduce or
extinguish the borrower's liability under the home loan plus amounts required to recover costs
including reasonable attorney's fees, a borrower acting only in an individual capacity may assert
against the creditor or any subsequent holder or assignee of the home loan (2) at any time
during the term of a high-cost home loan after an action to collect on the home loan or
foreclose on the collateral securing the home loan has been initiated or the debt arising from
the home loan has been accelerated or the home loan has become 60 days in default, any defense,
claim or counterclaim. N.J.S.A. 46:10B-27(c)(2).
88. See also 12 CFR 226.23 - Right of rescission; (h) Special rules for foreclosures (1)
Right to rescind. After the initiation of foreclosure on the consumer's principal dwelling that
secures the credit obligation, the consumer shall have the right to rescind the transaction if: (i) A
mortgage broker fee that should have been included in the finance charge was not included; or
(ii) The creditor did not provide the properly completed appropriate model form in appendix H
of this part, or a substantially similar notice of rescission. See also 15 U.S.C. 1640(k)
Defense to Foreclosure, which states in relevant part;
(1) In general

53

Notwithstanding any other provision of law, when a creditor, assignee, or other holder of
a residential mortgage loan or anyone acting on behalf of such creditor, assignee, or
holder, initiates a judicial or nonjudicial foreclosure of the residential mortgage loan, or
any other action to collect the debt in connection with such loan, a consumer may assert a
violation by a creditor of paragraph (1) or (2) of section 1639b(c) of this title, or of
section 1639c(a) of this title, as a matter of defense by recoupment or set off without
regard for the time limit on a private action for damages under subsection (e).
89. There is no doubt the defendant never signed two Notices of Right to Cancel as
required by law, and contrary to any purported signed copies submitted or soon to be
submitted to this court by the Plaintiff, Ocwen, S&E, or Duane Morris, the defendant only has in
her possession unsigned notices in violation of 15 U.S.C. 1635 et seq.. There is no doubt
the defendants initial answer filed on 10/30/2014, along with the first amended answer includes
a counterclaim pursuant to the NJ HOSA.
90. One of several material issues in a foreclosure proceeding is the validity of the
transaction. Citing Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993).
Furthermore, as set forth in relevant part within N.J.S.A. 12A:3-305 Defenses and claims in
recoupment; . the right to enforce the obligation of a party to pay an instrument is subject to
the following: (1) a defense of the obligor based on infancy of the obligor to the extent it is a
defense to a simple contract, duress, lack of legal capacity, or illegality of the transaction which,
under other law, nullifies the obligation of the obligor, fraud that induced the obligor to sign the
instrument with neither knowledge nor reasonable opportunity to learn of its character or its
essential terms,. Hence, the aforementioned violations of the HOEPA and NJ HOSA with the
origination of the underlying transaction at bar invalidates the disputed debt from its inception.
91. Wherefore, the trial court must acknowledge the defendants claim made pursuant to the
NJ HOSA rendering the disputed mortgage transaction unenforceable and subject to offset, and
cancellation.

54

H. The defendant has since rescinded the unconsummated, high-cost mortgage


transaction pursuant to 15 U.S.C. 1635.
92. As it pertains to the date which a loan contract is consummated, the United States
Bankruptcy Appellate Panel for the Ninth Circuit in Ramsey v. Vista Mortgage Corp, 176 BR
183 (9th Cir. BAP 1994) reasoned in relevant part; In Jackson v. Grant, 890 F.2d 118 (9th
Cir.1989), the Ninth Circuit held that under California law a loan contract was not consummated
when the borrower signed the promissory note and deed of trust because the actual lender was
not known at that time. Under these circumstances, the loan is not "consummated" until the
actual lender is identified, because until that point there is no legally enforceable contract
See Regulation Z 226.2(13) which defines consummation as "the time that a consumer
becomes contractually obligated on a credit transaction."
93. In the State of New Jersey, a written contract is formed when there is a meeting of the
minds between the parties evidenced by a written offer and an unconditional, written
acceptance. See Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538-39, 95 A.2d 391
(1953). To be an enforceable contract there must be a definite offer, acceptance of that offer and
consideration. Friedman v. Tappan Dev. Corp., 22 N.J. 523, 531 (1956).

Thus, without

consideration there can be no contract. Contl. Bank of Pa. v. Barclay Riding Acad., Inc., 93 N.J.
153, 170 (1983), cert. denied, Barclay Equestrian Ctr., Inc. v. Contl. Bank of Pa., 464 U.S. 994
(1983).
94. As set forth within 15 U.S.C. 1639b(c) Prohibition on steering incentives;
(1) In general
For any residential mortgage loan, no mortgage originator shall receive from any person
and no person shall pay to a mortgage originator, directly or indirectly, compensation that
varies based on the terms of the loan (other than the amount of the principal).
(2) Restructuring of financing origination fee

55

(A) In general
For any mortgage loan, a mortgage originator may not receive from any person
other than the consumer and no person, other than the consumer, who knows or
has reason to know that a consumer has directly compensated or will directly
compensate a mortgage originator may pay a mortgage originator any origination
fee or charge except bona fide third party charges not retained by the creditor,
mortgage originator, or an affiliate of the creditor or mortgage originator.
(B) Exception Notwithstanding subparagraph (A), a mortgage originator may
receive from a person other than the consumer an origination fee or charge, and a
person other than the consumer may pay a mortgage originator an origination fee
or charge, if
(i) the mortgage originator does not receive any compensation directly
from the consumer; and
(ii) the consumer does not make an upfront payment of discount points,
origination points, or fees, however denominated (other than bona fide
third party charges not retained by the mortgage originator, creditor, or an
affiliate of the creditor or originator), except that the Bureau may, by rule,
waive or provide exemptions to this clause if the Bureau determines that
such waiver or exemption is in the interest of consumers and in the public
interest.
95. There is no doubt that as of 06/19/2009, Argent Mortgage Company, LLC was not a
national bank with deposits to fund mortgage originations.
96. There is no doubt that as of 06/19/2009, the backers of Argent Mortgage Company, LLC
and its affiliate company Ameriquest included Morgan Stanley, JPMorgan Chase & Co.,
Deutsche Bank, UBS Securities, Citigroup, Greenwich Capital Markets (part of the Royal Bank
of Scotland Group), Credit Suisse First Boston, and Banc of America, the investment banking
subsidiary of Bank of America. 16 See Exhibit 20.
97. Hence, the defendant asserts, alleges, and believes that the disputed refinance mortgage
loan subject of the foreclosure action before this court was never consummated because Argent
Mortgage Company, LLC did not suffer a loss by loaning the defendant $220,800.00 of Argents
16

See https://www.publicintegrity.org/2009/05/06/12986/no-2-subprime-25-ameriquest-mortgage-coacccapital-holdings-corp (last checked on 04/14/2016).


56

INTENTIONALLY BLANK

Whipp v. Iverson, 43 Wis. 2d 166 (1969) from the Supreme Court of Wisconsin stating in
relevant part; It is not necessary for rescission of a contract "that the party making the
misrepresentation should have known that it was false." Recovery is allowed even though
misrepresentation is innocently made because "it would be unjust to allow one who has made
false representations, even innocently, to retain the fruits of a bargain induced by such
representation." 5 Williston, Contracts (Rev. ed., 1937), p. 4189, sec. 1500. This statement of
law is adopted by the Restatement, 2 Contracts, p. 908, sec. 476, which states "Where a party is
induced to enter into a transaction with another party that he was under no duty to enter into by
means of the latter's fraud or material misrepresentation, the transaction is voidable as against the
latter and all who stand in no better position, subject to" certain qualifications. A
misrepresentation may be innocent, negligent, or known to be false, Restatement, 2 Contracts, p.
890, sec. 470, Comment a, and if innocently made is voidable, sec. 476 (2). See also
Restatement, Restitution, p. 123, sec. 28 (b)." See also Chauncey v. Arnold, 24 N.Y. 330, 338
(1862); No mortgagee or obligee was named in [the security agreement], and no right to
maintain an action thereon, or to enforce the same, was given therein to the plaintiff or any other
person. It was, per se, of no more legal force than a simple piece of blank paper."
100.

In a correspondence dated 11/21/2015, signed by the defendant, and forwarded to

Ocwen by certified mail, the disputed mortgage transaction that was never consummated on
06/19/2009 was rescinded pursuant to 15 U.S.C. 1635 (See Exhibit 21).
101.

Ocwen has since failed to return all monies paid by defendant (closing cost,

principal, and interest payments) and discharge the disputed security instrument recorded by
the clerks office on 06/27/2006 (Book 9795, Page 257) within 20 days of receiving the
aforementioned rescission. Additionally, Ocwen failed to challenge the defendants rescission

58

within 20 days.

In a case where the creditor disputes the consumer's asserted ground for

rescission, rescission is not accomplished until a court determines that the consumer had the right
to rescind. See Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1172 (9th Cir. 2003). But in a case
where the creditor acquiesces in the consumer's notice of rescission or fails to respond within the
20-day response period, rescission is accomplished automatically, as was done in the matter now
before the Court. See also Jesinoski v. Countrywide Home Loans, Inc. 574 U.S. ___ (2015).
102.

Wherefore, the trial court must dismiss the Plaintiffs foreclosure complaint with

prejudice because the disputed mortgage has been rescinded by operation of law.

See

Jesinoski v. Countrywide Home Loans, Inc. 574 U.S. ___ (2015).

I. In the interest of justice and to protect the integrity of the Court, the orders enter in
favor of the Plaintiff must be vacated, and the foreclosure compliant at bar must be
dismissed with prejudice as a result of the fraud upon the court in order to deter
future conduct.
103.

On 12/20/2010, the Administrative Office of the Courts for the Superior Court of

New Jersey issued Administrative Order 01-2010 (In The Matter of Residential Mortgage
Foreclosure Pleading and Document Irregularities) in response to findings of systemic
irregularities underlying foreclosing filings throughout the State of New Jersey and across the
United States of America, and stated in relevant part;
Because these actions frequently lack an aggressive defense, the Office of
Foreclosure and our General Equity judges are tasked with the responsibility of ensuring
that justice is done for absent and pro se parties
.Serious questions have surfaced about the accuracy of documents submitted to courts
by lenders and service-providers in support of foreclosure requests
.Specifically, proof of standing to bring a foreclosure action has become a large
problem. Mortgagees often fail to produce Notes or produce the wrong Notes. There are
often gaps in the chain of title. The information provided by plaintiff mortgagees often

59

differs from the County Clerks records.


signatures cast on assignments.

Doubt has also been over the validity of

The Judiciary has an overriding concern about the integrity of the judicial
process. Its obligation to administer justice extends to safeguarding that process, which
depends on the integrity of documents filed with the court. The questionable practices
discussed above have the potential to call into question: (1) the validity of affidavits,
certifications, assignments, and other documents filed with the court; (2) the integrity of
residential mortgage foreclosure records; (3) the integrity of the judicial system as a
whole; and (4) the integrity of titles passed through purchase at foreclosure sale

104.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

fraudulently concealing from this court that CMLT 2006-AMC1 is bound by its PSA dated
09/01/2006,

registered

with

the

SEC,

and

hereby

submitted

to

this

court,

http://www.sec.gov/Archives/edgar/data/1375282/000088237706003569/d569570_ex4-1.htm,
(last checked 04/14/2016).
105.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

fraudulently concealing from this that Section 1.01 (Defined Terms) sets forth 09/28/2006 as the
closing date for the Plaintiff to take ownership and possession of qualified mortgages by the
designated closing date in order for CMLT 2006-AMC1 to qualify as a REMIC as represented
and warranted within Section 10.01 (REMIC Administration).
106.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

fraudulently concealing from this court that Section 2.01 (Conveyance of Mortgage Loans) of the
Plaintiffs PSA represented and warranted a true sale of mortgage loans to the trust displaying
an uninterrupted chain of indorsements by the originator, by the sponsor, and by the depositor to
the trustee for the benefit of the certificate holders.
107.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

60

fraudulently concealing from this court that CMLT 2006-AMC1 issued $625,148,000
(approximate) worth of certificates purchased by investors under the representations and
warranties set forth within the Plaintiffs binding PSA and 424B5 prospectus registered with the
SEC18 that the underlying certificates issued from CMLT 2006-AMC1 were already backed by
title to 6,772 mortgage loans by 09/28/2006.
108.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

fraudulently concealing form this court that the Plaintiff represented and warranted within
EXHIBIT B Representations and Warranties - 7.03. Representations and Warranties Regarding
Individual Mortgage Loans. 19 that none of the 6,772 mortgage loans declared transferred to
the Plaintiff by way of a true sale, within 90 days of the 09/28/2006 closing date were predatory
in violation of the HOEPA, NJ HOSA, and usury such as the disputed transaction at bar which
has since been rescinded.
109.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

attempting to fraudulently conceal from this court that the first of five assignment instrument is
falsely uttered, void ab initio, never passed any rights to the alleged assignor on 02/18/2009, and
displays the name and purported signature of NTC employee Bryan J. Bly who was deposed on
07/02/2010 in Deutsche Bank National Trust Company as trustee vs. Gary L. Hannah, et al. from
the Circuit Court of the Fourth Judicial Circuit, Clay County, FL (Case No 2009-CA-1920

18

See http://www.sec.gov/Archives/edgar/data/1375282/000088237706003283/d571630_424b5.htm (last


checked 04/14/2016).
19

See http://www.sec.gov/Archives/edgar/data/1375282/000088237706003569/d569570_ex4-1.htm (last


checked 04/14/2016) for EXHIBIT B Representations and Warranties - 7.03. Representations and
Warranties Regarding Individual Mortgage Loans. from the Plaintiffs PSA registered with the SEC
stating in relevant part; 47. No Mortgage Loan is a covered home loan pursuant to the New Jersey
Home Ownership Security Act of 2002;
61

INTENTIONALLY BLANK

proceedings throughout the United States of America. See In the Matter of: Lender Processing
Services, Inc., et al. (FRB Docket Nos. 11-052-B-SC-1, 11-052-B-SC-2, 11-052-B-SC-3, FDIC11-204b, OCC AA-EC-11-46, OTS DC-11-039).24
112.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

attempting to fraudulently conceal from this court that the second and third of five assignment
instruments are falsely uttered, in contravention of the Plaintiffs conveyance requirements set
forth in the binding PSA registered with the SEC rendering the documents void ab initio, passing
no rights to the alleged assignees on 07/13/2009 and 08/14/2009, and the instruments were
created by the criminally convicted DocX whose chief executive office Lorraine Brown entered
a plea agreement on 11/13/2012 with the United States of America for her role in creating and
recording more than one million (1,000,000) counterfeit assignment and discharge
instruments used in foreclosure and bankruptcy proceedings displaying imposters and false
notarizations. See Exhibit 7 for United States of America v. Lorraine Brown (Case No. 3:12-cr198-J-25MLR) from the United States District Court for the Middle District of Florida,
Jacksonville Division.
113.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known are

fraudulently concealing from this court that as of 01/30/2013, foreclosure technology vendor
Lender Processing Services, Inc. (now known as Black Knight Financial Services, LLC, hereby
LPS)25 and its subsidiaries including the criminally convicted DocX, entered a consent order
with the Acting New Jersey Attorney General and the New Jersey Division of Consumer Affairs
24

See http://www.occ.treas.gov/news-issuances/news-releases/2011/nr-occ-2011-47f.pdf (last checked on


04/14/2016)
25

The Plaintiff and Ocwen use the technology services of LPS to facilitate debt collection, document
creation, default services, and more. Third-Party debt collectors S&E and Duane Morris are part of LPS
foreclosure / bankruptcy network of attorneys, and subscribe to LPS in return for foreclosure and
bankruptcy referrals including the action at bar.
63

prohibiting further engagement in unlawful and deceptive practices including, but not limited to,
creating and recording false assignments instruments, affidavits, and certifications displaying
imposters and false notarizations that are used in foreclosure and bankruptcy proceedings
throughout the State of New Jersey. See Jeffrey S. Chiesa, et al. v. Lender Processing services,
Inc., et al. from the Superior Court of New Jersey Chancery Division Mercer County.
114.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known are

fraudulently concealing from this court that as of 01/30/2013, Ocwen entered a consent order
with the Consumer Financial Protection Bureau, and 49 States including New Jersey prohibiting
further engagement in unlawful and deceptive practices pertaining to unlawful foreclosures and
debt collection practices for residential mortgages throughout the United States of America in
violation of the deceptive practices acts of each state.

See Consumer Financial Protection

Bureau, et al. v. Ocwen Loan Servicing, LLC, et al. (Case 1:13-cv-02025-RMC).26


115.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

attempting to fraudulently conceal from this court that the fourth of five assignment instrument
is falsely uttered, in contravention of the Plaintiffs conveyance requirements set forth in the
binding PSA registered with the SEC rendering the documents void ab initio, passing no rights to
the alleged assignee on 01/28/2011 because as of 04/30/2008, Option One Mortgage
Corporation was acquired by American Home Mortgage Servicing, Inc. 27, an affiliate of WL
Ross & Co. LLC, effectively changing the name Option One Mortgage Corporation to "Sand
Canyon Corporation". See Exhibit 11 and Exhibit 13.
26

See http://files.consumerfinance.gov/f/201312_cfpb_consent-order_ocwen.pdf (last checked on


04/14/2016).
27

See http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=951370 (last checked


04/14/2016). See also https://www.publicintegrity.org/2009/05/06/12996/no-6-subprime-25-option-onemortgage-corphr-block-inc (last checked 04/14/2016).
64

116.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

attempting to fraudulently conceal from this court that on 03/18/2009, Sand Canyon
Corporations President Dale M. Sugimoto submitted a declaration in In Re Ron Wilson, Sr. et
al., (Case No. 07-11862 (EWM)) stating in relevant part under penalty of perjury that Sand
Canyon does not own any residential real estate mortgages (See Exhibit 13) rendering
the last of five assignment instrument falsely uttered, void ab initio, and the Plaintiff gain no
rights to enforce the disputed mortgage loan (now rescinded) on 05/20/2014.
117.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

attempting to fraudulently conceal from this court that the Plaintiff never took ownership or
possession of the disputed paper note (now rescinded) before commending the foreclosure at bar
or at any other time in general. Consequently, the Plaintiff, Ocwen, S&E, and Duane Morris are
attempting to deceive the defendant and the court by trafficking and submitting into evidence
two counterfeit instruments both purported to be the disputed paper note, while it is undisputable
that one conflicts with the other (compare Exhibit 17 and Exhibit 19), both contradict the chain
of title recital asserted within the five counterfeit assignment instruments submitted to this
court, and both of the conflicting instruments asserted to be the disputed paper note void
because they are in contravention of the Plaintiffs representations and warranties set forth within
Section 2.01 (Conveyance of Mortgage Loans) of the binding PSA registered with the SEC
requiring an uninterrupted chain of dated indorsements, the last by the depositor (Citigroup
Mortgage Loan Trust Inc.) to the trust within 90 days from the 09/28/2006 closing / start-up date,
and the disputed transaction (now rescinded) is in violation of the NJ HOSA, HOEPA, and

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common law usury in violation of the binding representations set forth within the Plaintiffs
PSA.28
118.

The Plaintiff, Ocwen, S&E, and Duane Morris knew, should have known, and are

attempting to fraudulently conceal from this court that their allegations set forth within the
original foreclosure complaint, briefs, certifications, assignments, mortgage, and note
instruments are falsely uttered and in contravention of the Plaintiffs binding PSA for which
Section 11.04 (Governing Law) of the Plaintiffs PSA declares the laws of New York as the
governing law rendering the Plaintiffs foreclosure complaint and attempted enforcement of the
disputed mortgage loan (now rescinded) void pursuant to New York Estates, Powers & Trusts
- Part 2 - 7-2.4. See also Yvanova v. New Century Mortgage, Supreme Court case number
S18973, decided 02/18/2016 by the California Supreme Court declaring a homeowner has a right
to challenge an assignment which is void ab initio.

III.

CONCLUSION

For the reasons set forth above, the defendant respectfully request that the court; (1) vacate its
orders entered in favor of the Plaintiff, Ocwen, S&E, and Duane Morris on 12/19/2014 and
01/09/2015, (2) deny the Plaintiffs open motion filed on 11/25/2015 to enter a default against
the defendant, (3) dismiss the Plaintiffs foreclosure complaint with prejudice, (4) sanction the
Plaintiff, Ocwen, S&E, and Duane Morris, and (5) issue an order granting quiet title relief

28

See http://www.sec.gov/Archives/edgar/data/1375282/000088237706003569/d569570_ex4-1.htm (last


checked 04/14/2016) for EXHIBIT B Representations and Warranties - 7.03. Representations and
Warranties Regarding Individual Mortgage Loans. from the Plaintiffs PSA registered with the SEC
stating in relevant part; 47. No Mortgage Loan is a covered home loan pursuant to the New Jersey
Home Ownership Security Act of 2002;
66

cancelling the mortgage of record, along with the five corresponding assignments and lis
pendens.
Date: 04/14/2016
Respectfully Submitted,

Jeanne Palumbo

CERTIFICATION IN LIEU OF OATH R. 1:4-4


I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements are willfully false, I am subject to punishment.
Date: 4/14/2016
Respectfully Submitted,

Jeanne Palumbo

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