The NY. E.P.T.L.

Argument
As used in Ohio.
What is the Controlling Law in the foreclosure realm.
Parameters = Assignment of Mortgage or trust/trustees representation of
acquisition of note occurred POST the Trusts own Cut-Off date.
And

Participants of the trust have signed to be held to NY Trust Laws within the PSA.
Benefits = negates Ohios Holder laws in favor of NY Estate Power & Trust
Laws which negates standing or capacity to sue.
Each state has their own Controlling Law code. I wrote this for Ohio but each
state has their own

First we have Ohio Revised Code.

ORC. 5801.06 Designated jurisdiction - controlling law.
(A) The law of the jurisdiction designated in the terms of a trust determines the meaning and
effect of the terms unless the designation of that jurisdiction's law is contrary to a strong public
policy of the jurisdiction having the most significant relationship to the matter at issue. In the
absence of a controlling designation in the terms of the trust, the law of the jurisdiction having
the most significant relationship to the matter at issue determines the meaning and effect of the
terms.
(B) The administration of a trust is governed by the law designated in the terms of the trust to
govern trust administration. If the terms of the trust do not designate the governing law, both of
the following apply:
(1) The law of the trust's principal place of administration governs the administration of the trust.

(2) If the trust's principal place of administration is transferred to another jurisdiction under
section 5801.07 of the Revised Code, the law of the new principal place of administration of the
trust governs the administration of the trust from the time of the transfer.
Effective Date: 01-01-2007; 2008 HB499 09-12-2008
THE APPLICABLE LAW IS NOT ENTIRELY OHIO CONTRACT LAW
Expressio unius est exclusio alterius.
The expression of one thing is the exclusion of another.

At the risk of being repetitious let me repeat again. Defendants position is simple. Momentarily
setting aside the Ohio legal standing issue presented by the AOM being created after foreclosure
initiation issue held within Ohios law (the OSC Schwartzwald decision expounded on infra)
another issue in the entirety is that under IRS & New York law, the applicant in this case is not the
holder of the note and /or owner of the mortgage loan and this is not a matter of privity of contract
but of the application of the contractually agreed controlling law, NY EPTL (Estates Powers and
Trusts Law) and the case law applicable to it at the time of foreclosure filing.

Moreover, the full property of the Trust (Trust Funds) had to be delivered on the closing date of the
trust, and because of that, the AOM is a conveyance that is void because it violates the Trusts
Indenture, the PSA. EPTL 7-2.4

To explain: An express life trust in New York, as is the case at Bar, is governed by New York Law
(EPTL) which requires the property, the intention to create a trust, the beneficiaries and the actual
delivery of the property to the trust. Defendant submits that by the language of the preliminary
statement (page # l) of the PSA, the PSA designated the property for the Trust which was the Trust
Fund that upon delivery to the designated trustee created the trust. What is property or not of the
trust is governed by the PSA. It is not a matter of the Defendants not having privity to enforce the
PSA.

What matters is if under the applicable controlling law that governs this trust and trustee, the trust
was a real party in interest at the time that the foreclosure action was led. Defendant submits that
Plaintiff was not, that it remains not and that by controlling law it can never be the real party in
interest and therefore it lacked the capacity to invoke the jurisdiction of the court.

In New York, the mere intention to create a trust without delivery of the trust assets to the trustee
has not legal consequences; it does not create a trust, if the Settler is the sale trustee, the transfer of
Title assets is completed by recording the DEED or registering the securities or accounts in the
name of the trust. If the trust names a third party as a trustee, the property, titled assets, documents
evidencing ownership of the property must be formally transferred to the trustee. A transfer is not
effected by mere recital of assignment, but the written assignment and all documents of property
must be actually delivered to the trustee ( EPTL 7-1.8). As stated above the property is passed to
the trustee with the intention to pass legal title thereto to it as trustee. Brown v. Spehr, 180 N.Y.
201 (N.Y. 1904). There is no valid trust until actual delivery of the assets to the trust. Riezel v.

Central Hanover Bank and Trust Co..,_266 App. Div. 586.

There is no trust if the trust fails to acquire the property. Kermani v. Liberty Mut. Ins. Co., 4
A.D. 2d 603 (N.Y. App. Div. sa Depart. 1957).

The delivery of the property must be done to the trust as designated in the instrument creating the
Trust ( EPTL 7.2.1(c)). The PSA prescribes the specific method of transfer. This is not subject to
variation because it is set in the instrument. No court can ignore and create contractual remedies
that were omitted in the PSA. Schmid v. Magnetic Head Corp., 468 NYS 2d 649 (NY App. Div.
1983). However, the court can enforce the prescription of the PSA. Morlee Corp. v.

Manufacturer Trust Co., 172 N.E. 2d 280 ( N.Y. l96l). But no court can on the basis of contract
law change a trust which is specifically governed by its business indenture.

What is valid delivery to the trustee is governed by the corporate business indenture, because the
Trustee in the present case is a corporate trustee. Under a corporate indenture the right of the
trustee are not governed by fiduciary relationship but by the term(s) of the agreement (the PSA).
The cases that do not see that it is not simply a matter of privity fail to see that if the property is not
received in the manner prescribed by the indenture, then the property is not property of the trust,
and if not delivered as prescribed and delivered in violation of it, there is not trust because there has
not been complete and perfected delivery of the property to the trust. AG Capital Funding

Partners, L.P. v. State St. Bank & Trust Co., 2008 N.Y. Slip Op. 5766; Hazard v. Chase
National Bank, 159 Misc. 57, 287 N.Y.S. 541 (Sup Ct 1936) affd 257 A.D. 950 14 N.Y.S. 147
(1st Dept.) affd 282 N.Y. 652 cert. de. 311 U.S. 708 (1940). The duties and power of the trustee
are set by the agreement (PSA). In RE IBJ Schroeder Bank and Trust Co., 271 A.D. 2d 322
(N.Y. App. Div. 1st Dept. 2000).

The PSA is also the agreement that creates the trust, it is a mistake to think that under New York
Law you can create a trust without complete delivery of the designated property of the trust and in
the manner specified by the document that creates it. Without the delivery of the property
designated to it, there is not trust.

The delivery under the PSA requires, under the corporate indenture, strict compliance with the
mandatory terms of the trust indenture, because the property has to be delivered as prescribed and
the securities ascertained if not, no right to beneficiaries arise. Wells Fargo Bank, N.A. v. Farmer,
2008 N.Y. Slip OP. 51133 U 6 ( N.Y. Sup. Ct 2008) and no right in the trust arises without
consideration paid (in this case the depositor to the sponsor).

The delivery necessary to consummate a gift must be perfected as to the nature of the property.
There must be actual surrender and control and authority over the things surrendered must be
intended. It is the consummation that completes the transaction, intention alone is not sufcient.

Vincent v. Putnam, 248 N.Y. 76 (N.Y. 1928). The Consummation Act of the delivery of all the
property and documents is necessary. Phillipsen v. Emigrant Inds. Saving Bank, 86 N.Y.S. 2nd

133 ( N.Y. Sup. Ct. 1948). Therefore, if the note and the mortgage and the interim assignment were
not delivered by the closing date (of the trust) they are not property of the trust.

The delivery rule requires that the delivery necessary to consummate a gift must be perfected as to
the nature of the property and the circumstances permit. Vincent v. Rix, 248 N.Y. 76 as cited in

Gruen v. Gruen, 68 N.Y. 2d 48 ( N.Y. 1986). See also Sussman v. Sussman, 61 A.D, 2d 838 (
N.Y. App. Div. 2d Dept, 1978); Riegel v. Hanover Bank TrustCo., 266 App. Div. 586 there
must be a change of dominion over the thing intended to be given. Vincent v. Putnam, 248
N.Y. 76, 82-84 ( N.Y. 1928).Undelivered note and assignments after the closing date if not
contemplated in the PSA are not property of the trust. Any act, sale, and conveyance by the trustee
in violation of the PSA is void under NY EPTL law 7-2.4.

Four essential elements for valid trust property must be present:

1) A designated beneciary
2) A designated trustee
3) A fund or property, sufficiently designated or identified to enable title to pass to the
trustee
4) Actual delivery of the fund or property or the legal assignments.

In the present case, the transfer did not comply with the PSA because in each step of the entire
mortgage securitization process there are no authenticated documents proving legitimate transfer of
the Note & Mortgage and also because the only proffered assignment of mortgage & note occurred
after the date of the closing of the trust. In fact the assignments from Option One Mortgage
Corporation (Lender) occurred years after the closing date. In addition, there is no specific
endorsement from Lender Option One Mortgage Corp. (Lender), to anyone, only an incomplete,

non-authenticated by affidavit, unexecuted Order (not Bearer) Instrument (Allonge) left blank to
anyone.

The chain of delivery for the acquisition of the property by plaintiff, as per the PSA was not
followed, the note and the mortgage were not endorsed and assigned from Originator to Seller to
Sponsor to Depositor, to the Trust , all of which are in violation of the PSA. There was not a
single iota of proof offered that this is the case in the present application.1

Moreover, the actual chain of Plaintiffs assignment was from Option One Mort. Corp. (who
allegedly had previously relinquished ownership of the note & mortgage to Barclays Bank) to the
Trustee, is not the prescribed path of the PSA agreement. All of this was done years after the closing
date of the trust and even after the filing of the foreclosure complaint.

Any act of the trustee contrary to the trust agreement (PSA) is void ( NY EPTL 7-2.4).
Therefore, the acceptance of the assignment from Option One to Plaintiff, by both rule of law and
by contractual agreement is void.

In order to prove injury in fact the plaintiff has to prove that it has legal standing by showing that it
is a real party in interest. If the plaintiff cannot prove that the loan became an asset of the trust
under New York Law EPTL (Trust Law) and the trusts controlling document, the PSA, then it can
never be able to prove standing.

The Ohio Constitution expressly requires standing for cases filed in common pleas courts. Article IV, Section 4(B) provides
that the courts of common pleas shall have such original jurisdiction over all justiciable matters. (Emphasis added.) A matter is
justiciable only if the complaining party has standing to sue. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 OhioSt.3d 13,
2012-Ohio-5017, 979 N.E.2d 1214, 41 (It is fundamental that a party commencing litigation must have standing to sue in order
to present a justiciable controversy). Indeed, for a cause to be justiciable, it must present issues that have a direct and
immediate impact on the plaintiffs. Burger Brewing Co. v. Liquor Control Comm., Dept. of Liquor Control,34 Ohio St.2d 93,
97-98, 296 N.E.2d 261 (1973). Thus, if a common pleas court proceeds in an action in which the plaintiff lacks standing, the
court violates Article IV of the Ohio Constitution.
Article IV requires justiciability, and justiciability requires standing.

In the PSA Section 2.01 stipulates that as promptly as practicable subsequent to such transfer and
assignment in any event within 120 days after such transfer and assignment the trustee shall cause
such assignment to be recorded in the appropriate public office for real property records for
assignments of the mortgages. This is because assignments of the mortgages under New York laws
are required to be led in order to affect as a lien on the property. N.Y. RPL Section 417 (New
York Real Property Law) and Section 418.

Moreover, the documents that affect the transfer (assignments) of the property must be completely
registered in the name of the trustee or the trust for the property to become property of the trust.
EPTL 7-1.18, the law applicable as to what becomes property of the trust, is New York law. The
negotiable instrument(s) that are the property of the Trust when they become such property as per
the PSA are in New York regardless that the collateral may be anywhere in the world, and the PSA is
clear that New York law applies to all substantive issues and it is New York Law that governs the
mandatory requirements to effectively transfer an asset to a trust. There has been no contest by
Plaintiff that securitization trusts such as the one for which Plaintiff is the trustee are subject to New
York Common Law.

New York Law is a venerable and ancient law. Under New York law whether an asset is trust
property is determined under the law of gifts. In order to have a valid inter vivos gift there must be
delivery of the gift. Since at least 1935 in Burgoyne v. James, 282 N.Y.S. 18,21 (N.Y. App. Div. 1935),
the New York Supreme Court recognized that business trusts are deemed to be common law trust.
In Re Estate Plotkin , 290 N.Y.S. 2d 46, 49 (N.Y.Sur. 1968) other jurisdictions agreed. Mayled

v. First Natl Bank of Chattanooga, 137 F.2 d10l3 (6th' Cir. 1943). Therefore, all of the
conditions stated above for the transfer of property to a trust and the ownership of the trust of such
property apply also to business trust so called Massachusetts Trusts In Re Plotkin Supra.

The Securitized Trust

Securitization is the legal apotheosis of form over substance 2

The Notice of Default indicates that the original creditor is Wells Fargo Bank NA., as
Trustee for Securitized Asset Backed Receivables LLC 2006-OP1 Mortgage Pass-Through
Certificates, Series 2006 OP1 (Plaintiff). The Trust is a New York common law REMIC trust
created through a Pooling and Servicing Agreement (the PSA). Under the PSA, loans were
purportedly pooled into a trust and converted into mortgage-backed securities. The PSA
provides a closing date for the Trust of January 1, 2006. As set forth infra, this was the
date on which all assets were required to be deposited into the Trust. The PSA provides that
New York law governs the acquisition of mortgage assets for the Trust.

The Plaintiff trust is organized as a Real Estate Mortgage Investment Conduit (REMIC). As a
REMIC, the trust's investors receive significant tax benefits, but to receive those benefits, the trust
must comply with the US Treasury regulations governing REMICS. [*8]26 USCA 860-D-1. The
terms of the PSA require that the trust does not operate or take any action that would jeopardize its
REMIC status. The PSA, Article III section (c) (ii)(B) states:

(c) Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any
future advances with respect to a Mortgage Loan . and the Servicer shall not
. (ii) permit any modification, waiver or amendment of any term of any Mortgage
Loan that would both . (B) cause any Trust REMIC to fail to qualify as a
REMIC under the Code or the imposition of any tax on "prohibited transactions" or
"contributions after the startup day" under the REMIC Provisions,..

Quoting: Written Testimony of Adam J. Levitin, Associate Professor of Law, Georgetown University Law Center,
Associate Professor of Law, Before the House Financial Services Committee, Subcommittee on Housing and Community
Opportunity Robo-Singing, Chain of Title, Loss Mitigation, and Other Issues in Mortgage Servicing November 18, 2010
Securitization is the legal apotheosis of form over substance, and if securitization is to work it must adhere to its proper,
prescribed form punctiliously. The rules of the game with securitization, as with real property law and secured credit are, and
always have been, that dotting is and crossing ts matter, in part to ensure the fairness of the system and avoid confusions
about conflicting claims to property. Close enough doesnt do it in securitization; if you dont do it right, you cannot ensure that
securitized assets are bankruptcy remote and thus you cannot get the ratings and opinion letters necessary for securitization to
work. Thus, it is important not to dismiss securitization problems as merely technical; these issues are no more technicalities
than the borrowers signature on a mortgage. Cutting corners may improve securitizations economic efficiency, but it
undermines its legal viability.

Conveyance from the Depositor to the Trust

Notwithstanding any other law, the Final Authority as it relates to the assignment of the note and
the conveyance of the mortgage to the Securitized Trust created under the Laws of New York are
New York Laws and the Pooling & Servicing Agreement (PSA) dated January 1, 2006. See PSA
2.01(c) Establishment of the Trust: which reads;

(c) The Depositor does hereby establish, pursuant to the further provisions of this Agreement
and the laws of the State of New York, an express trust (the "Trust") to be known, for
convenience, as "Securitized Asset Backed Receivables LLC Trust 2006-OP1" and Wells Fargo
Bank, National Association is hereby appointed as Trustee in accordance with the provisions of
this Agreement. The parties hereto acknowledge and agree that it is the policy and intention of
the Trust to acquire only Mortgage Loans meeting the requirements set forth in
this Agreement, including without limitation, the representation and warranty set forth in
paragraph (50) of Schedule III. The Trust's fiscal year is the calendar year.

See also PSA 10.03. Governing Law:

Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. emphasis theirs

The PSA specifically requires the Depositor (SABR) to have transferred all of the interest in the
mortgage notes to the Trustee on behalf of the trust as of the closing date. PSA Article II, Section
2.01.

The PSA requires the Trustee to acknowledge acceptance of the Mortgage Loans on behalf of the
trust as of the closing date. PSA Article II, Section 2.02

Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of
the trust is void. EPTL 7-2.4. The Assignment of Mortgage dated March 7th, 2008, to the Plaintiff
Trust was/is an Unlawful Assignment. There is no legal, valid, enforceable assignment of the note
and conveyance of the mortgage to the Plaintiff Trust, unless it complies with the mandates of Trust
Instruments, IRS 860A-G and New York Law as explained more fully infra and supra. Therefore,
the acceptance of the note and mortgage by the trustee after the date the trust closed, is void.

The Plaintiff Trust was created by the terms set forth in the Trust Instruments, Pooling & Servicing
Agreement (PSA) Plaintiffs exhibit 18, dated January 1st, 2006, with the "closing date" of
January 1st, 2006. According to this contractual document signed by all of the participants of the
trusts creation, management and servicing, including Plaintiff, all the Assets must have been
assigned to the Trust on the Closing Date. See PSA Article II Section 2.01.

The evidence is clear that the above-mentioned assignment was not created and executed within the
permitted period. Accordingly, no rights derived from the Plaintiff Trust and as a result, the Plaintiff
Trust has no rights in the note and mortgage and therefore, no standing whatsoever in any action at
law.3

Contrary to New York Law and IRS 860 the Plaintiff Trust exercised a prohibited act on March 7th,
2008 and the above assignment was contrary to the Trust Instruments and therefore Void pursuant
to IRS 860A-G and New York Estates, Powers & Trusts - Part 2 - 7- 2.4.

"Any action which deviates from the Trust documents is void. 7-2.4 Act of trustee in
contravention of trust If the trust is expressed in the instrument creating the estate of the trustee,
3

Acceleration Standing and Statute of Limitation; One who lacks standing to bring a foreclosure action, lacks the capacity to
accelerate the entire note and thus cannot start the running of the statute of limitations to bar the later
payments due on the installment note. Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 943 N.Y.S.2d 540 (Second Dept. 2012)
2

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".

No possession of the Asset exists until there has been a delivery and an acceptance of the Asset and
the giver of the Asset has relinquished all dominion and control over the Asset signifying a true sale
of the Asset to the Plaintiff Trust thereby making the Asset, inter alia, bankruptcy remote and
securely within the Trust Vault.

The failure of the Parties of the Trust to timely assign the Asset to the Plaintiff Trust and the
Plaintiff Trust to discover this Fact, makes any future attempts after the "closing date" had past,
void pursuant to New York Law, and the late assignment was also a prohibited act pursuant to IRS
860G as not being a qualified mortgage. Moreover, the parties knew they had no authority to alter
the composition of the Trust as demonstrated infra and supra and the late assignment further
violated O.R.C 2913.01 (each and every one) again showing scienter.

A threshold matter to determine that the Plaintiff Trust had standing in the Land Court was to
determine whether the Plaintiff Trust legally possessed the Asset. Clearly, the record dictates the
Trust did not, as evidenced by the unlawful assignment two plus years after the "closing date" of the
Trust.4

Mere recital of assignment, holding or receipt of an asset is insufficient to transfer an asset to a trust.
The grantor must actually transfer the asset. EPTL 7 -1.18.
4

Recently, the Supreme Court of Ohio addressed the issue of standing in a foreclosure action. Federal
Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. In Schwartzwald, the Court
determined the plaintiff lacked standing to invoke the jurisdiction of the common pleas court because "it failed to
establish an interest in the note or mortgage at the time it filed suit." Blouseat 8, quoting Schwartzwald at
28. "It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the court unless he
has, in an individual or representative capacity, some real interest in the subject matter of the action." (Emphasis
sic.) Schwartzwaldat 22. Accordingly, the court found that a plaintiff must have standing at the time the
complaint is filed and the lack of standing cannot be cured by "receipt of an assignment of the claim or by
substitution of the real party in interest" pursuant to Civ.R. 17(A). Id.at 26, 41

The Trust is a REMIC Trust

The Trust was formed as a REMIC trust.5 Under the REMIC provisions of the Internal Revenue
Code (IRC) the closing date of the Trust is also the startup day for the Trust. The closing
date/startup day is significant because all assets of the Trust were to be transferred to the Trust
on or before the closing date to ensure that the Trust received its REMIC status. The IRC
provides in pertinent part that:

Except as provided in section 860G(d)(2), if any amount is contributed to a REMIC after

the startup day, there is hereby imposed a tax for the taxable year of the REMIC in which the
contribution is received equal to 100 percent of the amount of such contribution.
26 U.S.C. 860G(d)(1).

The assignment of the note and the mortgage which affected the transfer was dated March 7th, 2008,
however, pursuant to the terms of the PSA the trust closed on January 1st, 2006.

Defendant asserts that the transfer of the note herein is void because the note is represented to have
been acquired after the trusts closing date which is in violation of the terms of the PSA.

Section 9.02 of the PSA specifically prohibits the acquisition of any asset for a REMIC fund after
the closing date unless the party permitting the acquisition and the NIMS (net interest margin
5

The Internal Revenue Code provides that the terms real estate mortgage investment conduit and
REMIC mean any entity(1) to which an election to be treated as a REMIC applies for the taxable year and all
prior taxable years, (2) all of the interests in which are regular interests or residual interests, (3) which has 1 (and
only 1) class of residual interests (and all distributions, if any, with respect to such interests are pro rata), (4) as of
the close of the 3rd month beginning after the startup day and at all times thereafter, substantially all of the assets of
which consist of qualified mortgages and permitted investments.

securities) Insurer have received an Opinion letter from counsel, at the party's expense, that the
acceptance of the asset will not affect the REMIC's status. No such letter has been provided to show
compliance with the requirements of the PSA. Plaintiff has provided no evidence that the trustee
had authority to acquire the note and mortgage herein after the trust had closed.

A trusts ability to transact is restricted to the actions authorized by its trust

documents. Defendant Reed alleges that here, the Trust documents permit only one
specific method of transfer to the Trust as set forth Article II within section 2.01 of the
PSA. Section 2.01 (b)(i) requires the Depositor to provide the Trustee with the:
original Mortgage Note bearing all intervening endorsements showing a complete chain of
endorsement from the originator to the last endorsee, endorsed "Pay to the order of
_____________, without recourse" and signed (which may be by facsimile signature) in the
name of the last endorsee by an authorized officer.

Further, section 2.01 (b)(vi) states:

the originals of all intervening assignments of Mortgage (if any) evidencing a complete chain
of assignment from the applicable originator to the last endorsee with evidence of recording
thereon,

As such, all prior and intervening endorsements must show a complete chain of
endorsement from the originator to the Trustee.

Since the trustee acquired the subject note and mortgage after the closing date, the trustee's act in
acquiring them exceeded its authority and violated the terms of the trust. The acquisition of a
mortgage after 90 days is not a mere technicality but a material violation of the trust's terms, which
jeopardizes the trust's REMIC status.

Section 9.01(f) of the PSA provides that neither the Trustee, the Servicer nor Holder of the
Certificates shall cause any REMIC formed under the PSA, by action or omission, to endanger the
status of the REMIC or cause any imposition of tax upon the REMIC.

Since the trust was organized as a REMIC, the investors received certain tax benefits on the income
that passed through the trust to them. Section 26 U.S.C.A. 860D(a)(4) defines a REMIC as an
entity that as of the close of the 3rd month beginning after the startup day and at all times thereafter,
substantially all of the assets of which consist of qualified mortgages and permitted investments.

Section 26 U.S.C.A. 860G (a)(3)(i,ii) defines a qualified mortgage as [*9]

(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.

Thus to qualify for the REMIC tax benefits, the mortgages upon which the securities are based must
be acquired by the Trust within three months of its start up date.

While section 26 U.S.C.A. 860D(a)(4) permits a REMIC to contain some portion of non qualified
mortgages, it is unclear how many unqualified mortgages are permitted without losing tax status. It is
clear, however, that the late acquisition violates the terms of the PSA not only by the late submission
of the note and mortgage, but also by the acceptance of the trust of an unqualified (defaulted) note
and mortgage.

Under New York Estates Powers and Trusts Law 7-2.1(c), property must be registered in the
name of the trustee for a particular trust in order for transfer to the trustee to be
effective. Trust property cannot be held with incomplete endorsements and assignments that do not
indicate that the property is held in trust by a trustee for a specific beneficiary trust.

The assignment of the note and the mortgage which affected the transfer was created and dated
March 7, 2008, however, pursuant to the terms of the PSA the trust closed on January 1, 2006.

Defendant Reed alleges that the Note was not even allegedly transferred to the Trust until 2008,
resulting in an invalid assignment of the Note to the Trust. Reed alleges that this defect means that
Plaintiff is not, has never been nor can it ever be the valid Note Holder and therefore was not ever
the Party Entitled To Enforce (PETE).

As the trust's assignment was void, ab initio, for reasons stated infra & supra and because it also
occurred after the closing date, Defendant Reed has a valid argument that Plaintiff is not and could
not ever be the valid Note Holder (PETE).

Under 28 U.S.C. 1652, this Court has the duty to apply New York law in accordance with the
controlling decision of the highest state court.

In a recent decision from the US Bankruptcy Court S. District Texas case 12-1010 - Saldivar et al v.
JPMorgan Chase Bank, N.A. et al, and in a case not dissimilar to this the Court in their decision stated:
While the Court finds no applicable New York Court of Appeals decision, a recent New
York Supreme Court decision is factually similar to the case before the Court. See Wells Fargo
Bank, N.A. v. Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct. April 29, 2013). In Erobobo,
defendants argued that plaintiff (a REMIC trust) was not the owner of the note because
plaintiff obtained the note and mortgage after the trust had closed in violation of the terms of the
PSA governing the trust, rendering plaintiffs acquisition of the note void. Id. at *2. The
Erobobo court held that under 7-2.4, any conveyance in contravention of the PSA is

void; this meant that acceptance of the note and mortgage by the trustee after the date the trust
closed rendered the transfer void. Id. at 8.
Based on the Erobobo decision and the plain language of N.Y. Est. Powers & Trusts Law
7-2.4, the Court finds that under New York law, assignment of the Saldivars Note after the
start up day is void ab initio.

In addition, the promissory note attached to the complaint is payable to H&R Block Mortgage
Corp., see Plaintiff's Exhibit B. Defendant Reed has a meritorious defense to foreclosure because
there is no indorsement on the promissory note."If an instrument is payable to an identified person,
negotiation requires transfer of possession of the instrument and its indorsement by the holder."
O.R.C.1303.21 (8). Since the promissory note is payable to H&R Block Mortgage Corp. and there is
no indorsement on the note then there has been no valid negotiation to the Plaintiff.

The same fact pattern as was found in Erobobo above is present in Reed's situation. Shortly after the
time the complaint was filed by WFB, as is evidenced by the assignment, OOMC (assignor) certifies
to have owned Reed's note and mortgage. It was error to grant a judgment against Reed. WFB is not
here representing OOMC, they are here as the Trustee for a Trust.

Further, as of the closing date of the trust, January 1, 2006, and the contractual agreement (the
Pooling and Servicing Agreement) which lists the signed as legal participants of the Trust, Option
One Mortgage Corp. had previously sold in its entirety, all of its alleged interest in the note and
mortgage to Barclays Bank PLC 6, therefore and thereafter Option One Mortgage Corp. had no legal
right to assign the mortgage from itself to Wells Fargo or even to the Trust.

See plaintiffs exhibit #25 Purchase Price and Terms Agreement