Beruflich Dokumente
Kultur Dokumente
Respec
tfully submitted,
________________________
John A. Reed
40 Maple Ave..
Centerville, Ohio
45459
937-890-2576
Yotraj@Yahoo.comSERVICE
A true and exact copy of the foregoing has been served this
16th day of August, 2010 via email as follows:
Attys for Plaintif
Amelia A. Bower (0013474)
and
David Van Slyke (0077721)
300 East Broad St., Suite 590
Columbus, Ohio 43235
Via email @ abower@plunkettcooney.com
And dvanslyke@plunkettcooney.com
and
Sara M. Petersmann 0055402
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201-5480
Via email @ attyemail@lsrlaw.com
Atty for Defendant John L. Reed
Thomas W. Kendo
7925 Paragon Rd.
Dayton, Ohio 45459
Via email @ tkendo@midam-title.com
CERTIFICATE OF SERVICE
THE UNDERSIGNED HEREBY CERTIFIES that a true and
correct copy of the foregoing has been forwarded, via U,
Introductory Statement
As an initial matter, Defendant freely acknowledges that Plaintiff
filed this lawsuit in 2008, and much litigation and time has since
ensued, including an appeal and motion for relief from judgment
pursuant to Civ. R. 60(B).
Plaintiff debt collector Wells Fargo Bank as Trustee for Trust
claims to be the real party in interest to foreclose on an alleged
Note and Mortgage created between H&R Block and Defendant
Reed. Defendant Reed has repeatedly disavowed any knowledge of
same.
This does not, however, change the fact that the Court never
had jurisdiction to hear this matter, nor was Plaintiff Wells Fargo
Bank N.A. as Trustee, the real party in interest entitled to enforce
the alleged note and mortgage on February 27th, 2008, the date
Plaintiff filed the foreclosure complaint, nor can it be at any point
thereafter, without Plaintiff having first been assigned or otherwise
been legally vested as the true Holder in Due Course of the note &
mortgage in question. Defendant submits that Plaintiff is not, was
not, and by the Trusts own controlling documents terms and
agreements, could never have been.
Defendant also states that by the terms found upon the alleged
Mortgage itself, as is shown on page one, under the heading
BORROWER COVENANTS:
Borrower warrants and will defend generally the title
to the Property against all claims and demands,
subject to any encumbrances of record.
II.
3 Civ.R. 10(D) requires attachment to the pleading of a copy of the written account or any other written
instrument when a claim or defense is founded on those documents.Fed. Home Loan Mtge. Corp. v. Schwartzwald,
2012-Ohio-5017. (Standing is required to invoke the jurisdiction of the common pleas court, and it is determined
as of the filing of the complaint.)
Wells Fargo v. Burrows, 2012-Ohio-5995 (9th Dist.)(A plaintiff must attach documents evidencing the right to
enforce both the note and the mortgage to the complaint to show standing, or be subject to dismissal.)
4 I would write Blank but according to SEC Law, if I did that then I would be representing that only
Blank was the authorized holder, those would be the same SEC laws which require the word
Bearer to be inserted before this Allonge can be treated as a Bearer instrument.
7 Blacks 9th intent. (l3c) 1. The state of mind accompanying an act, esp. a forbidden act. While
motive is the inducement to do some act, intent is the mental resolution or determination to do it. When
the intent to do an act that violates the law exists, motive becomes immaterial. Cf. MOTIVE;
SCIENTER.
10
10 It is important here to note that in each transaction listed above, Plaintiff also
proffers no receipts, no delivery acceptance, nothing whatsoever to show proof of
conveyance or transfer or negotiation or sale of, in the end, an alleged $5 Billion
worth of financial instruments from any party to any other party whatsoever.
43.
in the entirety from the Trust itself, actions of which are limited by
law and by contract, lacked not only any proper Assignment of the
Note and/or mortgage that is the subject of this action, but also
lacked authority to initiate the foreclosure action which must be
13
Servicer, another separate legal entity hired by the trust to service the document
requirements of the trust. Its duties are outlined with specificity within the trusts
Pooling and Servicing Agreement.
THE TRUST
The Trust was formed as a vehicle for purchasing mortgage
backed securities and then selling certificates based solely on the
income generated by those monthly principal and interest
payments generated by those notes and mortgages held within the
Trust. The Trust is subject to the terms of the trust indenture
(controlling document) memorialized in a document titled the
Pooling and Servicing Agreement, (the PSA). The PSA was
signed by the Depositor, Securitized Asset Backed Receivables LLC
(SABR), by the Servicer, Option One, and by the Trustee, WELLS
FARGO BANK, NA, and is dated January 1, 2006.
The PSA contractually sets forth the governing law of the
trust and the manner in which mortgages would be purchased by
the trust, as well as the duties of the trustee and the servicer. It is
the trusts own contractual controlling document.
Section 2.01, subsection 1 of the PSA requires that transfer
and assignment of mortgages must be effected by hand delivery,
for deposit with the Trustee with the original note endorsed in
blank.
Section 2.05 of the PSA requires that the Depositor transfer
all right, title, interest in the mortgages to the Trustee, on behalf of
the trust, as of the Closing Date. The Closing Date as provided
in the PSA is January 26th, 2006.
The Date of the Assignment of Mortgage (and Note)
referenced infra, is over 2 years past the date allowed for deposits
into the trust. If the trust does not perfect legal title by taking
physical possession of the notes and mortgages, the Internal
Revenue Code, specifically 26 U.S.C. 860G(d)(1), provides for a
The Depositor is
14
IRC 860 requires that, among other things, the REMIC trust be a closed entity and bankruptcy remote. New
Yorks Estate Powers & Trust laws were chosen by RMBS sponsors (in the PSAs) as the controlling statutes to
govern REMIC trusts, as the EPTLs rules and concomitant common law establish common law trusts that
conform the REMIC tax free pass-through requirements. NYSBA NY Business Law Journal |Summer 2012 |Vol.
16 |No. 1 end note 7
The Mortgage Securitization Transaction In 1986, Congress changed the tax code.
One of these changes was the creation of the Real Estate Mortgage Investment
Conduit (REMIC). A REMIC or special purpose vehicle (SPV) is an entity that is
created for the specific purpose of being a tax-free pass-through for interest income
generated by pooled mortgages. This allowed investors to purchase shares or
certificates in a mortgage pool that was only taxed once at the investor level. The
REMIC rules allowed the mortgage pools to collect interest income from the pool
and disburse that income to the certificate holders tax-free at the pool level. Prior to
the REMIC, interest income from pooled mortgage investments were taxed twice,
once at the pool level and again at the investor level.
REMIC rules are very specific,15 and to qualify as a REMIC under federal and state
tax codes, the SPV had to meet very stringent requirements. With respect to RMBS
the controlling trust document is known as the Pooling and Servicing Agreement
(PSA). One function of the PSA is to establish the rules governing the trust such
that the trusts activities and management conform to IRC 860. If the trust did not
conform, it could lose its REMIC status and its tax-free pass-through status. 16
NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 pg. 77
15
IRC 860 requires that, among other things, the REMIC trust be a closed entity and bankruptcy remote. New
Yorks Estate Powers & Trust laws were chosen by RMBS sponsors (in the PSAs) as the controlling statutes to
govern REMIC trusts, as the EPTLs rules and concomitant common law establish common law trusts that
conform the REMIC tax free pass-through requirements. NYSBA NY Business Law Journal |Summer 2012 |Vol.
16 |No. 1 end note 7
16
If a tax-free pass-through trust lost its REMIC status, the tax penalties to an investor that purchased certificates
would be devastating. It would also trigger an event called a put back. There was considerable argument over
whether these trusts were business trusts or common law trusts, but the trend appears to be a judicial recognition
that they are in fact common law trusts. NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 end note
8
17
Blacks 9th. trust indenture. 1. A document containing the terms and conditions
governing a trustee's conduct and the trust beneficiaries' rights. - Also termed
indenture of trust. [Cases: Trusts C=> 19-29.] 2. See deed of trust under DEED.
the original Mortgage Note bearing all intervening endorsements showing a complete
chain of endorsement from the originator to the last endorsee...
(ii) the original of any guarantee executed in connection with the Mortgage Note;
(iii)
the original Mortgage with evidence of recording thereon or a certified true copy of such
Mortgage submitted for recording.19
(iv)
(v)
the original Assignment of Mortgage for each Mortgage Loan endorsed in blank;
18
The Trusts Pooling and Servicing Agreement is a Public Document available here
http://www.secinfo.com/dRSm6.v8h.d.htm
19
Note: indeed NY EPTL law requires recordation of the note before its acceptance as a part of the trust
is consummated.
(vi)
the originals of all intervening assignments of Mortgage (if any) evidencing a complete
chain of assignment from the applicable originator to the last endorsee with evidence of
recording thereon....
clearly demonstrates that this loan was not securitized into nor was
it ever transferred to this Trust.
Assuming the note and/or mortgage at issue could somehow
retroactively be properly and legally deposited into the Trust, the
Court should also be made aware that Sections 2.07 d., e., h., 3.01
c., 3.17 (h), 5.02, c, 8.11 of the PSA are all specific to the case at
bar which set forth further explicit restrictions on the powers of
the Trustee, Depositor and the Servicer of the trust and which
prohibits the Trustee, Depositor and the Servicer from taking any
action which would jeopardize the REMIC status of the Trust. The
production of the post dated, forged and fabricated Assignment of
Mortgage is itself a prohibited action. These types of limitations
are common and are present in this or a similar form in every
pooling and servicing agreement which seeks to create a
securitized trust that can claim the tax benefits of REMIC status
under the US Tax Code.
Any attempt to accept a transfer of this alleged Promissory
note after the January 26, 2006, plus 90 day closing date of the
trust would have violated both SEC code 424 & 1122 and the
REMIC provisions of the IRS tax code 26 USC 860 A thru F -for a
number of reasons.
a. First, the alleged loan is in default at this time.
Therefore the alleged loan cannot be a qualified
mortgage loan under the IRS tax code because a
qualified mortgage loan is a performing mortgage loan.
b. Second, an attempted transfer to the trust is now at a
point in time after the closing day of the Trust and after
the certificates were issued, in effect, the Plaintiff would
language found within the PSA at section 8.11 titled Tax Matters
section (j) para. 6 which reads in part;
Neither the Servicer nor Trustee shall (i) permit the creation of any interests in
any Trust REMIC other than the regular and residual interests set forth in the
Preliminary Statement, or (iii) otherwise knowingly or intentionally take
any action, cause the Trust Fund to take any action or fail to take (or fail to cause
to be taken)any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (A) endanger the status of any Trust REMIC as a
REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the
Trust Fund (including but not limited to the tax on "prohibited transactions" as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a Trust
REMIC set forth in Section 860G(d) of the Code, or the tax on "net income from
foreclosure property") unless the Trustee receives an Opinion of Counsel (at the
expense of the party seeking to take such action or, if such party fails to pay such
expense, and the Trustee determines that taking such action is in the best interest
of the Trust Fund and the Certificateholders, at the expense of the Trust Fund, but
in no event at the expense of the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund or any Trust REMIC created
hereunder, endanger such status or, unless the Trustee determines in its sole
discretion to indemnify the Trust Fund against such tax, result in the imposition of
such a tax).
"Any action which deviates from the Trust documents is void. 7-2.4 Act of trustee
in contravention of trust If the trust is expressed in the instrument creating the estate
of the trustee, every sale, conveyance or other act of the trustee in contravention
of the trust, except as authorized by this article and by any other provision of law, is
void".
20
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.
of the note and mortgage into the Trust and has proffered no
evidence that the trustee had authority to acquire the note and
mortgage herein after the trust had closed or for the purpose of
foreclosure.
Defendant asserts that the alleged transfer of the note &
mortgage to Plaintiff Trust herein was VOID ab initio because the
note is represented to have been acquired after the trusts closing
date and as such is a violation of the contractual terms established
and memorialized within the Trusts controlling document, the
PSA.
the post dated, post created and filed with the court
months after foreclosure initiation, Assignment of
The post dated, post created and filed with the court
months after foreclosure initiation, Affidavit of Status
of Account and Military Status again signed by the
same Robo-Signer Ms. Topaka Love
23
we now have a legal definition of "Robo-signer" from the U.S.C.O.A. for the 5th Circuit (TX) in the case of
REINAGEL v. DEUTSCHE BANK NATIONAL TRUST COMPANY, No. 12-50569 (5th Cir. Oct. 29, 2013). The
court defined "Robo-signing" as follows;
"Robosigning is the colloquial term the media, politicians, and consumer advocates have used to describe an
array of questionable practices banks deployed to perfect their right to foreclose in the wake of the subprime
mortgage crisis, practices that included having bank employees or third-party contractors: (1) execute and
acknowledge transfer documents in large quantities within a short period of time, often without the purported
assignors authorization and outside of the presence of the notary certifying the acknowledgment, and (2) swear
out affidavits confirming the existence of missing pieces of loan documentation, without personal knowledge and
often outside of the presence of the notary."
24
In January 2011, John L. OBrien, Register of the Essex Southern District registry of Deeds in Salem,
Massachusetts (Register OBrien), commissioned McDonnell Property Analytics, Inc. (MPA) to conduct a
forensic examination to test the integrity of his registry due to his concerns that: 1.) Mortgage Electronic
Registration Systems, Inc. (MERS) proclaims that its members can avoid recording assignments of mortgage if
they register them electronically in the MERS System; and 2.) due to the robo-signing scandal spotlighting
Linda Green an employee of Defendant DocX, LLC as featured in a 60 Minutes expose on the subject which
first aired on April 3, 2011.
A true and correct copy of my report entitled Forensic Examination Of Assignments Of Mortgage Recorded
During 2010 In The Essex Southern District Registry Of Deeds, which I released on June 28, 2011, is available on
Register OBriens website at: http://salemdeeds.com/pdf/Audit.pdf.
3.
25
John L. OBrien, Register of the Essex Southern District registry of Deeds in Salem, Massachusetts publishes a
list of known Robo-Signers at his website at http://www.salemdeeds.com/robosite/pdf/robosigners.pdf. Ms. Loves
name appears on page 2, Column B, Row 23.
THE ALLONGE
On or about June 9, 2005, as the evidence of record shows
Mr. Reed's alleged original lender, H&R Block Mortgage Corp.,
claims that through the use of an alleged executed endorsement
which was unattached, is incomplete, is non-authenticated by
affidavit, and is left unexecuted Pay to the Order(as in existing
distinctly separate under law from bearer paper) document
entitled allonge dated June 9, 2005 from Option One to
__________.26
28
AND
The term "robosigning" does not accurately describe the pattern and practice. The pattern and practice are more
accurately described as contract perjury, contract forgery, evidence fabrication, fraud upon the Court, and theft in
which families are rendered homeless as a result of criminal behavior.
The practice from investopedia, "In the third and fourth quarters of 2010, a robo-signing scandal emerged in the
United States involving GMAC Mortgage and a number of major U.S banks. Banks had to halt thousands of
foreclosures in numerous states when it became known that the paperwork was illegitimate because the signers
had not actually reviewed it. While some robo-signers were middle managers, others were temporary workers with
virtually no understanding of the work they were doing."
30 31 32
Answer of Defendant John Reed (5/26/2008) 8, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, and throughout the
rest of the pleadings.
30
Answer of Defendant John A. Reed Memorandum in Opposition to Plaintiffs Motion For Summary Judgment
and Request For Trial By Jury (filed Aug, 15th, 2008) The opening statement Firstly, You Honor, the plaintiff
hasnt even proven that it owned or held the promissory note which is the subject of the complaint 1, 2,
31
Each and every other pleading submitted by Defendant and already a part of this legal actions record.
32
33
Respectfully submitted,
________________________
John A. Reed
40 Maple Ave.
Centerville, Ohio 45459
937-890-2576
Yotraj@Yahoo.com