v.
John A. Reed, et al.
Defendant
DEFENDANTS MOTION TO VACATE
Now comes Defendant John A. Reed (Defendant), for this motion
to vacate this Courts November 13th 2008 judgment entry granting
Plaintiff Wells Fargo Bank NA. as Trustee for Securitized Asset Backed
Receivables LLC 2006-OP1 Mortgage Pass-Through Certificates, Series
2006 OP1 (Plaintiff) motion of judgment on the basis of the State of
Ohios Supreme Courts October 31, 2012 holding in Federal Home
Loan Mortgage Corporation v. Schwartzwald, 2012-Ohio-5017.
Respectful
ly submitted,
________________________
John A. Reed
40 Maple Ave..
Centerville, Ohio 45459
937-890-2576
Yotraj@Yahoo.com
SERVICE
A true and exact copy of the foregoing has been served this 16th
day of August, 2010 via email as follows:
Attys for Plaintif
Amelia A. Bower (0013474)
and
David Van Slyke (0077721)
300 East Broad St., Suite 590
Columbus, Ohio 43235
Via email @ abower@plunkettcooney.com
And dvanslyke@plunkettcooney.com
and
Sara M. Petersmann 0055402
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201-5480
Via email @ attyemail@lsrlaw.com
Atty for Defendant John L. Reed
Thomas W. Kendo
7925 Paragon Rd.
Dayton, Ohio 45459
Via email @ tkendo@midam-title.com
CERTIFICATE OF SERVICE
THE UNDERSIGNED HEREBY CERTIFIES that a true and
correct copy of the foregoing has been forwarded, via U,
Introductory Statement
As an initial matter, Defendant freely acknowledges that Plaintiff
filed this lawsuit in 2008, and much litigation 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, 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.
Within this action, Defendant is merely exercising his legal
requirement and duty of warranting and defending generally the
contractual terms of the alleged mortgage contract.
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.)
WFB, according to the binding case law in the State of Ohio and
Montgomery County, was not entitled to judgment as a matter of law
because they were not and could not ever have been the real party in
interest. The judgment is void ab initio. Res judicata cannot be a bar to
judgment that is void ab initio.
I.
II.
August 15, 2008, Memorandum in Opposition to Plaintiffs Motion for Summary Judgment
October 15, 2008, Reply to Complaint
November 21,2008, Motion to Vacate a Void Judgment
December 1, 2008, Memorandum in Opposition to Plaintiffs Memorandum in Opposition to Defendant John A. Reed's
Motion to Vacate
January 16, 2009, Motion for Reconsideration
April 1,2010, Amended Motion to Appeal Ruling of the Lower COURT
April 30, 2010, Application for Emergency Reconsideration
February 14,2011, Motion to Vacate Judgment Entry
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.)
HSBC Bank USA, N.A. v. Sherman, 2013-Ohio-4220 (1st Dist.)(Determination of standing should be made based on
attachments to a complaint, but standing in a foreclosure action can be established by showing the right to enforce either
the note or mortgage. Also adopted in the Second, Fifth, Eleventh, and Twelfth Districts.)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (To survive a motion for summary judgment for lack of standing, a
party must set forth by affidavit or other evidence specific facts to support its claim.)
been assigned the mortgage and note, and for reasons stated in
specificity below it could not then nor can it ever cure this lack of
standing through a later filing of the mortgage assignment as it
attempted to do on March 27th, 2008.
HISTORY as alleged by Plaintif.
Plaintiff brought this action to foreclose based on an alleged
mortgage, dated June 9th, 2005, which secured an alleged loan of
$100,000 issued to the Defendant by H&R Block Mortgage
Corporation, a Massachusetts Corporation, (H&RB). On June 9th,
2005, H&RB assigned the alleged note and mortgage to Option One
Mortgage Corporation, (Option One). Option One then alleges to
have assigned the note and mortgage to Plaintiff by assignment
executed March 7th, 2008. Plaintiff is the alleged debt collector
Trustee for a securitized trust titled Securitized Asset Backed
Receivables LLC 2006-OP1 Mortgage Pass-Through Certificates, Series
2006 OP1, (the Trust). On February 27th 2008 Plaintiff Trustee
initiated the foreclosure suit at Bar.
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.
5
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.
6
As with almost all of Plaintiffs document submissions, the documents Plaintiff submits that are to be
representative of the transfer of the Note & Mortgage from Option One to Barclays Bank are all unsigned
and unauthenticated so no true method of transfer is even represented. BUT, the controlling Law (IRS &
NY. EPTL) both require full sales and transfer of all rights and ownership before a true securitization of the
notes and mortgages into the trust can exist and the Trusts controlling document, the PSA also mandates a
complete evidentiary trail of all transfers and/or assignments of both the note and mortgage before being
allowed to be deposited into the trust.
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.
11
10
43.
in the entirety from the Trust itself, its actions 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 any
authority to initiate the foreclosure action which must be given within
the trusts governing document, its Indenture, the Pooling and
Servicing Agreement (PSA). Plaintiff Trustee lacked the legal and
mandatory requirement of capacity to invoke the jurisdiction of this
13
Or for that matter any proof of transfer to the trust from the Depositor or proof of transfer from the
Sponsor (Barclays Bank) to the Depositor or proof of transfer from the Lender Option One to the Sponsor!
One can only transfer what one has to transfer.
14
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.
12
court and therefore, Plaintiff had no standing to initiate this suit which
means this suit was VOID ab initio.
44.
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
15
deposit of all of the Notes & Mortgages allegedly held within the pool
of assets owned by the trust are strict and are mandated to be adhered
to punctiliously.
As stated in the NYSBA NY Business Law Journal |Summer 2012
|Vol. 16 |No. 1 pg. 77;
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,16 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. 17
NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 pg. 77
16
IRC 860 requires that, among other things, the REMIC trust be a closed entity and bankruptcy remote. New
Yorks Estate Powers & Trust laws were chosen by RMBS sponsors (in the PSAs) as the controlling statutes to govern
REMIC trusts, as the EPTLs rules and concomitant common law establish common law trusts that conform the
REMIC tax free pass-through requirements. NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 end note 7
17
If a tax-free pass-through trust lost its REMIC status, the tax penalties to an investor that purchased certificates would
be devastating. It would also trigger an event called a put back. There was considerable argument over whether these
trusts were business trusts or common law trusts, but the trend appears to be a judicial recognition that they are in fact
common law trusts. NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 end note 8
18
Blacks 9th. trust indenture. 1. A document containing the terms and conditions governing a trustee's
conduct and the trust beneficiaries' rights. - Also termed indenture of trust. [Cases: Trusts C=> 19-29.] 2. See
deed of trust under DEED.
16
The PSA19 requires that each party to the sale of the mortgage
loans endorse each promissory note to the next party in the chain of
title until the promissory note and mortgage is delivered to the
Trustee for the benefit of the Trust. This requirement is included in
the PSA and is found at Section 2.01 (b) which in part reads;
(b) In connection with the transfer and assignment of each Mortgage Loan, the Depositor has delivered
or caused to be delivered to the Trustee for the benefit of the Certificateholders the following
documents or instruments with respect to each Mortgage Loan so assigned:
(i)
the original Mortgage Note bearing all intervening endorsements showing a complete chain of
endorsement from the originator to the last endorsee...
(ii) the original of any guarantee executed in connection with the Mortgage Note;
(iii)
the original Mortgage with evidence of recording thereon or a certified true copy of such
Mortgage submitted for recording.20
(iv)
the originals of all assumption, modification, consolidation and extension agreements, if any,
with evidence of recording thereon;
(v)
the original Assignment of Mortgage for each Mortgage Loan endorsed in blank;
(vi)
the originals of all intervening assignments of Mortgage (if any) evidencing a complete chain
of assignment from the applicable originator to the last endorsee with evidence of recording
thereon....
The Trusts Pooling and Servicing Agreement is a Public Document available here
http://www.secinfo.com/dRSm6.v8h.d.htm
Note: indeed NY EPTL law requires recordation of the note before its acceptance as a part of the trust
is consummated.
20
17
date of the trust pursuant to section 2.02 of the PSA. The absence of
these endorsements on this promissory note is not only very
compelling proof of lack of note holder status, but also proof of
Plaintiffs fraud in the production to the Court of the Assignment of
Mortgage (Exhibit E) which by the terms of the trusts own
governing document (PSA) cannot, does not and cannot now (post
trust closing date) ever legally exist.
Under the terms of the trust which are contractually, legally
governed under NY E.P.T.L., the contracts between the parties (PSA),
and/or UCC 9 in the case at Bar, there are unmet requirements for
the chain of title by the foreclosing entity to be qualified as a PETE
(person entitled to enforce). In other words, single endorsements in
blank, claiming that any party in possession of a note can enforce a
note, even a thief, skipped assignees, no proof of Holder in Due Course
does not work. The trusts Trustee is specifically NOT allowed to own
an asset acquired out of thin air on its own its sole existence is for
service to the Trust. Anything done by any trust participant in
contravention to the trusts indenture is by contractual agreement
VOID at its inception.
The evidence in the collateral file shows an utter and complete
failure of the parties to this alleged securitization to actually convey
this alleged promissory note to this alleged Trust as was articulated by
the Defendant in each and every previous pleading. The plaintiff
Trustee has offered no proof of ownership and the collateral file
proffered by the Plaintiff through Discovery clearly demonstrates that
this loan was not securitized into nor was it ever transferred to this
Trust.
18
20
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).
22
N.Y. E.P.T.L. & I.R.C. regulations all mandate that this Assignment was
void at its inception.
The Trust is also a Real Estate Mortgage Investment Conduit
(REMIC) trust and as such is held in strict regulations with both I.R.S.
REMIC trust rules of Law and the Laws and Rules created specifically
in accordance with the Trust laws of either the State of the Trusts
creation or by the contractual choice of the participants of the Trust,
as is the case at bar. The agreed contractual choice of Law to be
adhered to by the Trusts participants in the case at Bar is New York
Trust Law E.P.T.L..
Plaintiffs production of the Assignment is contrary to New
York Law and IRS 860. In short, the Plaintiff Trust exercised a
prohibited act on March 7th, 2008.
The aforementioned Assignment is contrary to the Trusts
Instruments and therefore Void pursuant to IRS 860A-G and New York
Estates, Powers & Trusts (E.P.T.L) - Part 2 - 7 2.4 and the Trusts
Indenture requirements.
"Any action which deviates from the Trust documents is void. 7-2.4 Act of trustee in
contravention of trust If the trust is expressed in the instrument creating the estate of the
trustee, every sale, conveyance or other act of the trustee in contravention of the trust,
except as authorized by this article and by any other provision of law, is void".
23
The assignment of the note and the mortgage which alleges the
transfer of the Note & Mortgage in this case was dated March 7th,
2008, however, pursuant to the terms of the PSA the trust closed on
January 1st, 2006. Acceptance of the alleged Note & Mortgage into
Plaintiff Trust at the date shown on Plaintiffs Assignment is in
violation of IRC 860G(d)(2) and as such is mandated to be declared
21
The Internal Revenue Code provides that the terms real estate mortgage investment conduit and
REMIC mean any entity(1) to which an election to be treated as a REMIC applies for the taxable year
and all prior taxable years, (2) all of the interests in which are regular interests or residual interests, (3)
which has 1 (and only 1) class of residual interests (and all distributions, if any, with respect to such interests
are pro rata), (4) as of the close of the 3rd month beginning after the startup day and at all times thereafter,
substantially all of the assets of which consist of qualified mortgages and permitted investments.
24
VOID by the terms found within the PSA and by N.Y. E.P.T.L. & I.R.C.
regulations.22
THE POST DATED ASIGNMENT 2
In the case at bar, Wells Fargo Bank, N.A, as Trustee of the
Trust, claims to be the sole and exclusive owner of the securitized
note & mortgage. If Wells, as Trustee for the Trust is in fact the true
and legal owner, it must have acquired legal title to the loan within 90
days of January 1, 2006 (the trusts closing date).
For clarification of the above; New York law states that transfers
to a REMIC trust after the closing date of the trust are void. N.Y.
Estates, Powers and Trusts Law 7-1.18, 7-2.4. Glaski v. Bank of
America, N.A., 218 Cal.Rptr.4th 1079 (2013). See also, Saldivar v.
JPMorgan Chase, 2013 WL 2452699 (Bky. SD Tex. 6/5/13) (holding
that trustee mortgagees position is void if notes and assignments of
mortgage not delivered within 90 day of closing of trust); Wells Fargo
v. Erobobo, 2013 WL 1831799 (NY Slip Op. 4/29/13) (holding that NY
trust law governs securitization (not Ohio law) and that notes and
assignments of mortgage must be physically delivered to trustee
within 90 days of closing for trustee to have claim of ownership). The
Internal Revenue Code provides for 100 percent tax penalties for
asset transfers to the trust after the closing date of the trust and the
Trusts controlling document, the PSA, specifically Section 9.02,
forbids all participants in the securitization of the assets of the trust to
perform any action in contravention to the IRS code.
Further, Section 9.02 of the PSA specifically prohibits the
acquisition of any asset for a REMIC fund after the closing date unless
There is no trust if the trust fails to acquire the property. Kermani v. Liberty
Mut. Ins. Co., 4 A.D. 2d 603 (N.Y. App. Div. sa Depart. 1957).
22
25
the party permitting the acquisition and the NIMS (net interest margin
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.
Plaintiff offers no such evidence or proof that a letter has been
provided to show compliance with these requirements of the PSA.
Plaintiff has proffered23 no evidence of Depositors depositing 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.
Whereas in Ohio Law it may be permissible for a Holder to
execute suit on a note and/or mortgage, in the case at Bar the alleged
contraction between parties is not being done by an Ohioan against an
Ohioan. Instead it is being committed by a debt collector who is an
alleged representative of a NY Trust, a trust which is bound by NY
Laws and as such it is up to Plaintiff to prove not only that he is indeed
the true PETE (Person Entitled To Enforce) of the alleged Note &
Mortgage, but also that he has any legal capacity whatsoever to hold
anything in contravention to the trust. In the case at Bar, Plaintiff debt
collector has not the legal capacity to even be a Holder.
23
Blacks 9th proffer (prof-dr), vb. (l4c) To offer or tender (something, esp. evidence) for immediate acceptance.
[Cases: Criminal Law C':.:o670; Federal Civil Procedure 2013; Trial (7.::>44.]- proffer, n.
26
the post dated, post created and filed with the court
months after foreclosure initiation, Assignment of
Mortgage which is Robo-Signed24 by a known RoboSigner25 named Ms. Topaka Love.26
2.
The post dated, post created and filed with the court
months after foreclosure initiation, Affidavit of Status of
Account and Military Status again signed by the same
Robo-Signer Ms. Topaka Love
3.
we now have a legal definition of "Robo-signer" from the U.S.C.O.A. for the 5th Circuit (TX) in the case of
REINAGEL v. DEUTSCHE BANK NATIONAL TRUST COMPANY, No. 12-50569 (5th Cir. Oct. 29, 2013).
The court defined "Robo-signing" as follows;
"Robosigning is the colloquial term the media, politicians, and consumer advocates have used to describe an
array of questionable practices banks deployed to perfect their right to foreclose in the wake of the subprime
mortgage crisis, practices that included having bank employees or third-party contractors: (1) execute and
acknowledge transfer documents in large quantities within a short period of time, often without the purported
assignors authorization and outside of the presence of the notary certifying the acknowledgment, and (2)
swear out affidavits confirming the existence of missing pieces of loan documentation, without personal
knowledge and often outside of the presence of the notary."
25
In January 2011, John L. OBrien, Register of the Essex Southern District registry of Deeds in Salem, Massachusetts
(Register OBrien), commissioned McDonnell Property Analytics, Inc. (MPA) to conduct a forensic examination to
test the integrity of his registry due to his concerns that: 1.) Mortgage Electronic Registration Systems, Inc. (MERS)
proclaims that its members can avoid recording assignments of mortgage if they register them electronically in the
MERS System; and 2.) due to the robo-signing scandal spotlighting Linda Green an employee of Defendant DocX,
LLC as featured in a 60 Minutes expose on the subject which first aired on April 3, 2011.
A true and correct copy of my report entitled Forensic Examination Of Assignments Of Mortgage Recorded During 2010
In The Essex Southern District Registry Of Deeds, which I released on June 28, 2011, is available on Register OBriens
website at: http://salemdeeds.com/pdf/Audit.pdf.
26
John L. OBrien, Register of the Essex Southern District registry of Deeds in Salem, Massachusetts publishes a list of
known Robo-Signers at his website at http://www.salemdeeds.com/robosite/pdf/robosigners.pdf. Ms. Loves name
appears on page 2, Column B, Row 23.
27
28
29
30
31
29
The term "robosigning" does not accurately describe the pattern and practice. The pattern and practice are more
accurately described as contract perjury, contract forgery, evidence fabrication, fraud upon the Court, and theft in which
families are rendered homeless as a result of criminal behavior.
29
The practice from investopedia, "In the third and fourth quarters of 2010, a robo-signing scandal emerged in the
United States involving GMAC Mortgage and a number of major U.S banks. Banks had to halt thousands of foreclosures
in numerous states when it became known that the paperwork was illegitimate because the signers had not actually
reviewed it. While some robo-signers were middle managers, others were temporary workers with virtually no
understanding of the work they were doing."
33
Ana1ytics Approved Robo-signers List. If you are currently being foreclosed upon, this
affidavit may be presented to your attorney, the lender, or the court to show that your
chain of title has been corrupted.
31 32 33
Answer of Defendant John Reed (5/26/2008) 8, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, and throughout the rest
of the pleadings.
31
Answer of Defendant John A. Reed Memorandum in Opposition to Plaintiffs Motion For Summary Judgment and
Request For Trial By Jury (filed Aug, 15th, 2008) The opening statement Firstly, You Honor, the plaintiff hasnt even
proven that it owned or held the promissory note which is the subject of the complaint 1, 2,
32
Each and every other pleading submitted by Defendant and already a part of this legal actions record.
MOTION TO APPEAL THE DECISION, ORDER AND ENTRY OVERRULING DEFENDANTS EMERGENCY
AMENDED MOTION TO VACATE A VOID JUDGMENT in its entirety
33
34
MOTION TO APPEAL THE DECISION, ORDER AND ENTRY OVERRULING DEFENDANTS EMERGENCY
AMENDED MOTION TO VACATE A VOID JUDGMENT at 4 thru 16, 35, 45, 46, 47,48, 50, 52, 58, 60, 67, 239, 240,
241, 242, .
35
position and the situation which then lead to the ultimate theft of
Defendants home, loss of Defendants personal and business inventory
and possessions, forced homelessness upon Defendant and became the
cause of Defendants mental injury while allowing Plaintiffs own
unjust enrichment. In essence, they not only got a free house, they also
got the Court to launder their dirty money.
Defendants pleadings and exhibits show undeniable proof that
each of the entities involved in their entirety and throughout the entire
chronology (time-line) of this alleged mortgage did fail in their legal
and mandatory due diligence duties and requirements to sign, date,
authenticate, record and more ( stated in more specificity infra). The
true holder in due course of the alleged Note & Mortgage and true
holder of the legal right to foreclose upon this alleged Note &
Mortgage is entirely a falsity and under no circumstance of fact is it,
was it, nor can it ever be the Plaintiff Wells Fargo Bank NA. as Trustee
for this Trust who would have the legal authority or right to bring a
foreclosure action against Defendant Reed..
36
Respectfully submitted,
________________________
John A. Reed
40 Maple Ave.
Centerville, Ohio 45459
937-890-2576
Yotraj@Yahoo.com
37
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Fed Home Loan Mtge. Corp. v. Schwartzwald, Slip Opinion No. 2012-0hio-5017.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of
the Ohio Official Reports. Readers are requested to promptly notify the Reporter of
Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any
typographical or other formal errors in the opinion, in order that corrections may be made
before the opinion is published.
APPEAL from and CERTIFIED by the Court of Appeals for Greene County,
No. 2010 CA 41, 194 Ohio App.3d 644, 2011-Ohio-2681.
O'DONNELL, J.
{1} Duane and Julie Schwartzwald appeal from a judgment of the Second District
Court of Appeals affirming a decree of foreclosure entered in favor of the Federal Home
Loan Mortgage Corporation. In addition, the appellate court certified that its decision in
this case conflicts with decisions of the First and
Eighth Districts on the following issue: "In a mortgage foreclosure action, the
lack of standing or a real party in interest defect can be cured by the assignment of
the mortgage prior to judgment."
{2} Federal Home Loan commenced this foreclosure action before it
obtained an assignment of the promissory note and mortgage securing the
Schwartzwalds loan. The Schwartzwalds maintained that Federal Home Loan
lacked standing to sue. The trial court granted summary judgment in favor of
Federal Home Loan and entered a decree of foreclosure. The appellate court
affirmed, holding that Federal Home Loan had remedied its lack of standing when
it obtained an assignment from the real party in interest.
{3} However, standing is required to invoke the jurisdiction of the
common pleas court, and therefore it is determined as of the filing of the
complaint. Thus, receiving an assignment of a promissory note and mortgage
from the real party in interest subsequent to the filing of an action but prior to the
entry of judgment does not cure a lack of standing to file a foreclosure action.
(4} Accordingly, the judgment of the court of appeals is reversed, and
the cause is dismissed.
Facts and Procedural History
(5} In November 2006, Duane and Julie Schwartzwald purchased a
home in Xenia, Ohio, and received a mortgage loan from Legacy Mortgage in the
amount of $251,250. They executed a promissory note and a mortgage granting
Legacy Mortgage a security interest in the property. Legacy Mortgage then
endorsed the promissory note as payable to Wells Fargo Bank, N.A., and assigned
it the mortgage.
{ 6} In September 2008, Duane Schwartzwald lost his job at Barco,
Inc., and the Schwartzwalds moved to Indiana so he could accept a new position.
They continued making mortgage payments as they tried to sell the house in
Xenia, but they went into default on January 1, 2009. In March 2009, Wells
2
January Term, 2012
39
Fargo agreed to list the property for a short sale, and on April 8, 2009, the
Schwartzwalds entered into a contract to sell it for $259,900, with closing set for
June 8, 2009.
{7} However, on April 15, 2009, Federal Home Loan Mortgage
Corporation commenced this foreclosure action, alleging that the Schwartzwalds
had defaulted on their loan and owed $245,085.18 plus interest, costs, and
advances. It attached a copy of the mortgage identifying the Schwartzwalds as
borrowers and Legacy Mortgage as lender, but did not attach a copy of the note,
claiming that "a copy of [the note] is currently unavailable."
{8} Julie Schwartzwald then contacted Wells Fargo about the
foreclosure complaint. She testified, "I was told that it was 'standard procedure'
and 'don't worry about it' because we were doing a short sale." The
Schwartzwalds did not answer the complaint.
{9} On April 24, 2009, Federal Home Loan filed with the court a copy
of the note signed by the Schwartzwalds in favor of Legacy Mortgage. The final
page carries a blank endorsement by Wells Fargo placed above the endorsement
by Legacy Mortgage payable to Wells Fargo.
{10} On May 15, 2009, Wells Fargo assigned the note and mortgage to
Federal Home Loan, and Federal Home Loan filed with the court a copy of the
assignment on June 17, 2009. It then moved for a default judgment and a
summary judgment, but the trial court discovered that Federal Home Loan had
failed to establish a chain of title because no assignment of the mortgage from
Legacy Mortgage to Wells Fargo appeared in the record.
{11} During this time, even though it had assigned its interest in the
note and mortgage to Federal Home Loan, Wells Fargo continued discussing a
short sale of the property with the Schwartzwalds, but delays in. this process
eventually caused the Schwartzwalds' buyer to rescind the offer. On December
14, 2009, the trial court granted the Schwartzwalds leave to file an answer. That
3
SUPREME COURT
40
same day, Federal Home Loan filed with the court a copy of the assignment of the
mortgage from Legacy Mortgage to Wells Fargo dated November 27,2006.
{12} Federal Home Loan again moved for summary judgment,
supporting the motion with the affidavit of Herman John Kennerty, vice president
of loan documentation for Wells Fargo as servicing agent for Federal Home Loan,
who averred that the Schwartzwalds were in default and who authenticated the .
note and mortgage as well as the assignment of the note and mortgage from Wells
Fargo. Subsequently, Federal Home Loan filed copies of the notarized
assignments from Legacy Mortgage to Wells Fargo and from Wells Fargo to
Federal Home Loan.
{13} The Schwartzwalds also moved for summary judgment, asserting
that Federal Home Loan lacked standing to foreclose on their property.
{14} The trial court entered summary judgment for Federal Home Loan,
finding that the Schwartzwalds had defaulted on the note, and it ordered the
equity of redemption foreclosed and the property sold. Federal Home Loan
purchased the property at a sheriff's sale.
{15} On appeal, the Second District Court of Appeals affirmed and held
that Federal Home Loan had established its right to enforce the promissory note
as a nonholder in possession, because assignment of the mortgage effected a
transfer of the note it secured. The court further explained that standing is not a
jurisdictional prerequisite and that a lack of standing may be cured by substituting
the real party in interest for an original party pursuant to Civ.R. 17(A). Thus, the
court concluded that although Federal Home Loan lacked standing at the time it
commenced the foreclosure action, it cured that defect by the assignment of the
mortgage and transfer of the note prior to entry of judgment.
{16} The court of appeals certified that its decision conflicted with
Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-0hio-4603, 897
N.E.2d 722 (1st Dist.), 15-16; Bank of New York v. Gindele, 1st Dist. No. C4
January Term, 2012
41
090251, 2010-0hio-542, 3-4; and Wells Fargo Bank, N.A. v. Jordan, 8th Dist.
No. 91675, 2009-0hio-I092, 21, cases that held that a lack of standing cannot
be cured by substituting the real party in interest for an original party pursuant to
Civ.R. 17(A). We accepted the conflict and the Schwartzwalds' discretionary
appeal on the same issue.
Arguments on Appeal
{17} The Schwartzwalds explain that the essential aspect of standing is
injury to a legally protected right and claim that Federal Home Loan had not been
injured by their default at the time it commenced this foreclosure action, because
it had not obtained the note and mortgage until after it filed the complaint.
Relying on federal caselaw, they maintain that standing is determined as of the
time the action is brought, so that subsequent events do not cure a lack of
standing. They further urge that although the requirement of a real party in
interest can be waived, that requirement cannot be equated with the requirement
of standing.
{18} Federal Home Loan asserts that pursuant to R.C. 1303.31, it is a
"person entitled to enforce the note" because it is "[a] nonholder in possession of
the instrument who has the rights of a holder" by virtue of the negotiation of the
note from Legacy to Wells Fargo and the assignment from Wells Fargo. Further,
it maintains that R.C. 1303.31 defines only which party is entitled to enforce a
note and that the failure to be a real party in interest at the commencement of suit
can be cured pursuant to Civ.R. 17(A) by the assignment of the mortgage, and
note. It also contends that the jurisdictional requirement of justiciability is
satisfied if the allegations of the complaint establish that the plaintiff has standing
to present a justiciable controversy and that even if it is determined that those
allegations were in fact false, the matter remains justiciable so long as the plaintiff
subsequently obtains the right to foreclose prior to judgment. On this basis, it
argues that because "the Ohio Constitution bestows general (and not limited)
5
SUPREME COURT OF OHIO
jurisdiction on common pleas courts, common pleas courts have 'jurisdiction' to
42
hear disputes, even if the named plaintiff was not the correct person to invoke it."
Thus, it concedes that the record in this case does not establish that it was a
person entitled to enforce the note as of the date the complaint was filed, but it
maintains that it "proved that it was such a person prior to judgment."
{19} Accordingly, the question presented is whether a lack of standing
at the commencement of a foreclosure action filed in a common pleas court may
be cured by obtaining an assignment of a note and mortgage sufficient to establish
standing prior to the entry of judgment.
Law and Analysis .
Standing to Sue
{20} The Ohio Constitution provides in Article IV, Section 4(B); "The
courts of common pleas and divisions thereof shall have such original jurisdiction
over all justiciable matters and such powers of review of proceedings of
administrative officers and agencies as may be provided by law." (Emphasis
added.)
{21} In Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51, 507 N.E.2d 323
(I 987), we stated:
" 'Whether a party has a sufficient stake in an otherwise
justiciable controversy to obtain judicial resolution of that
controversy is what has traditionally been referred to as the
question of standing to sue. Where the party does not rely on any
specific statute authorizing invocation of the judicial process, the
question of standing depends on whether the party has alleged
...... a "personal stake in the outcome of the controversy." "
6
January Term, 2012
Id, quoting Middletown v. Ferguson, 25 Ohio St.3d 71, 75, 495 N.E.2d 380
(1986), quoting Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S.Ct. 1361, 31
L.Ed.2d 636 (1972), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7
43
L.Ed.2d 663 (1972). Similarly, the United States Supreme Court observed in
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102, 118 S.Ct. 1003,
140 L.Ed.2d 210 (1998), that "[s]tanding to sue is part of the common
understanding of what it takes to make a justiciable case."
{22} We recognized that standing is a "jurisdictional requirement" in
State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d
176, 179, 298 N.E.2d 515 (1973), and we stated: "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 added.) See also New Boston Coke Corp. v. Tyler, 32
Ohio St.3d 216, 218, 513 N.E.2d 302 (1987) (''the issue of standing, inasmuch as
it is jurisdictional in nature, may be raised at any time during the pendency of the
proceedings"); Steinglass & Scarselli, The Ohio State Constitution: A Reference
Guide 180 (2004) (noting that the jurisdiction of the common pleas court is
limited to justiciable matters).
{23} And recently, in Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322,
2010-0hio-6036, 944 N.E.2d 207, we affirmed the dismissal of a complaint for
lack of standing when it had been filed before the claimant had suffered any
injury. There, Kincaid asserted claims that his insurer had breached the insurance
contract by failing to pay expenses covered by the policy; however, he had never
presented a claim for reimbursement to the insurer. We concluded that Kincaid
lacked standing to assert the cause of action, explaining, "Until Erie refuses to pay
a claim for a loss, Kincaid has suffered no actual damages for breach of contract,
the parties do not have adverse legal interests, and there is no justiciable
controversy." Id. at 13.
7
SUPREME COURT OF OHIO
{24} Because standing to sue is required to invoke the jurisdiction of the
common pleas court, "standing is to be determined as of the commencement of
suit." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570-571, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992), fn. 5; see also Friends of the Earth, Inc. v. Laidlaw
Environmental Servs. (TOC), 528 U.S. 167, 180, 120 S.Ct.693, 145 L.Ed.2d 610
44
(2000); Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154-1155 (10th Cir.2005);
Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275
(11th Cir.2003); Perry v. Arlington Hts., 186 F.3d 826, 830 (7th Cir.1999); Carr
v. Alta Verde Industries, lnc., 931 F.2d 1055, 1061 (5th Cir.1991).
{25} Further, invoking the jurisdiction of the court "depends on the state
of things at the time of the action brought," Mullan v. Torrance, 22 U.S. 537, 539,
6 L.Ed. 154 (1824), and the Supreme Court has observed that "[t]he state of
things and the originally alleged state of things are not synonymous;
demonstration that the original allegations were false will defeat jurisdiction."
Rockwell Internatl. Corp. v. United States, 549 U.S. 457, 473, 127 S.Ct. 1397,
167 L.Ed.2d 190 (2007).
{26} Thus, "[p]ost-filing events that supply standing that did not exist
on filing may be disregarded, denying standing despite a showing of sufficient
present injury caused by the challenged acts and capable of judicial redress." 13A
Wright, Miller & Cooper, Federal Practice and Procedure 9, Section 3531
(2008); see Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 575, 124
S.Ct. 1920, 158 L.Ed.2d 866 (2004), quoting Caterpillar Inc. v. Lewis, 519 U.S.
61, 75, 117 S.Ct. 467, 136 L.Ed.2d 437 (rejecting argument that" 'finality,
efficiency, and judicial economy' " can justify suspension of the time-of-filing
rule); Utah Assn. of Counties v. Bush, 455 F.3d 1094, 1101, and fn. 6 (10th
Cir.2006) (a plaintiff cannot rely on injuries occurring after the filing of the
complaint to establish standing).
8
January Term, 2012
{27} This principle accords with decisions from other states holding that
standing is determined as of the filing the complaint. See, e.g., Deutsche Bank
Natl. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151, 11 ("If Deutsche Bank
became a person entitled to enforce the note as either a holder or nonholder in
possession who has the rights of a holder after the foreclosure action was filed,
then the case may be dismissed without prejudice * * *" [emphasis added]); U.S.
45
Bank Natl. Assn. v. Kimball, 190 Vt. 210, 2011 VT 81, 27 A.3d 1087, 14 ("U.S.
Bank was required to show that at the time the complaint was filed it possessed
the original note either made payable to bearer with a blank endorsement or made
payable to order with an endorsement specifically to U.S. Bank" [emphasis
added]); Mtge. Electronic Registration Sys., Inc.v. Saunders, 2010 ME 79, 2 A.3d
287, 15 ("Without possession of or any interest in the note, MERS lacked
standing to institute foreclosure proceedings and could not invoke the jurisdiction
of our trial courts" [emphasis added]); RMS Residential Properties, L.L.C. v,
Miller, 303 Conn. 224, 229, 232, 32 A.3d 309 (2011), quoting Hiland v. Ives, 28
Conn.Supp. 243, 245, 257 A.2d 822 (1966) (explaining that" '[s]tanding is the
legal right to set judicial machinery in motion' " and holding that the plaintiff had
standing because it proved ownership of the note and mortgage at the time it
commenced foreclosure action); Mclean v. JP Morgan Chase Bank Natl. Assn.,
79 So.3d 170, 173 (Fla.App.2012) ("the plaintiff must prove that it had standing
to foreclose when the complaint was filed"); see also Burley v. Douglas, 26 So.3d
1013, 1019 (Miss.2009), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
571, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), fn. 5 ("'standing is to be
determined as of the commencement of suit' "); In re 2007 Administration of
Appropriations of Water of the Niobrara, 278 Neb. 137, 145, 768 N.W.2d 420
(2009) ("only a party that has standing may invoke the jurisdiction of a court or
tribunal. And the junior appropriators did not lose standing if they possessed it
under the facts existing when they commenced the litigation" [footnote omitted]).
9
SUPREME COURT OF OHIO
{28} Here, Federal Home Loan concedes that there is no evidence that it
had suffered any injury at the time it commenced this foreclosure action. Thus,
because it failed to establish an interest in the note or mortgage at the time it filed
suit, it had no standing to invoke the jurisdiction of the common pleas court.
The Real-Party-in-Interest Rule
{ 29} The court of appeals and Federal Home Loan relied on the
46
plurality opinion in State ex rel. Jones v. Suster, 84 Ohio St.d 70, 77, 701 N.E.2d
1002 (1998), which suggested that "[t]he lack of standing may be cured by
substituting the proper party so that a court otherwise having subject matter
jurisdiction may proceed to adjudicate the matter. Civ.R. 17." However, four
justices declined to join that portion of the opinion, and therefore it is not a
holding of this court. See Ohio Constitution, Article N, Section 2(A) ("A
majority of the supreme court shall be necessary to constitute a quorum or to
render a judgment").
{30} At common law, all actions had to be brought in the name of the
person holding legal title to the right asserted, and individuals possessing only
equitable or beneficial interests could not sue in their own right. See generally
Clark & Hutchins, The Real Party in Interest, 34 Yale L.J. 259 (1925); 6A
Wright, Miller & Kane, Federal Practice and Procedure, Section 1541 (2010).
However, the practice in equity relaxed this requirement, and states later
abrogated the common-law rules and adopted "rules that permitted any 'real party
in interest' to bring suit." Sprint Communications Co., L.P. v.APCC Servs., Inc.,
554 U.S. 269, 279, 128 S.Ct. 2531, 171 L.Ed 2d 424 (2008).
{31} In Ohio, Civ.R. 17(A) governs the procedural requirement that a
complaint be brought in the name of the real party in interest and provides:
Every action shall be prosecuted in the name of the real party in interest.
An executor, administrator, guardian, bailee,
10
January Term, 2012
trustee of an express trust, a party with whom or in whose name a contract has
been made for the benefit of another, or a party authorized by statute may sue in
his name as such representative without joining with him the party for whose
benefit the action is brought. When a statute of this.state so provides, an action for
the use or benefit of another shall be brought in the name of this state. No action
shall be dismissed on the ground that it is not prosecuted in the name of the real
47
party in interest until a reasonable time has been allowed after objection for
ratification of commencement of the action by, or joinder or substitution of, the
real party in interest. Such ratification, joinder, or substitution shall have the same
effect as if the action had been commenced in the name of the real party .in
interest.
{32} Considering Civ.R. 17(A) in Shealy v. Campbell, 20 Ohio St.3d 23,
2425,485 N.E.2d 701 (1985), we observed:
The purpose behind the real party in interest rule is '* * * to enable the
defendant to avail himself of evidence and defenses that the defendant has against
the real party in interest, and to assure him finality of the judgment, and that he
will be protected against another suit brought by the real party at interest on the
same matter.' Celanese Corp. of America v. John Clark Industries (5 Cir.l954), 214
F.2d 551, 556." [In re Highland Holiday Subdivision (1971), 27 Ohio App.2d
237] 240 [273 N.E.2d 903).
{33} As the Supreme Court explained in Lincoln Property Co. v. Roche,
546 U.S. 81,90, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005), the real-party-in-interest
rule concerns only proper party joinder. Civ.R. 17(A) does not address standing;
rather, the point of the rule is that "suits by representative plaintiffs on behalf of
the real parties in interest are the exception rather than the rule and should only be
allowed when the real parties in interest are identifiable and the res judicata scope
of the judgment can be effectively determined.". Consumer Fedn. of Am. v. Upjohn Co.,
346 A.2d 725, 729 (D.C.1975) (construing analogous District of
Columbia rule).
{34} Thus, the Third and the Ninth Circuits have rejected the notion that
Fed.R.Civ.P. 17(a), on which Civ.R. 17(A) is based, allows a party with no personal stake
in a controversy to file a claim on behalf of a third party, obtain the
cause of action by assignment, and then have the assignment relate back to
commencement of the action, stating:
48
"Rule 17(a) does not apply to a situation where a party with no cause of
action files a lawsuit to toll the statute of limitations and later obtains a cause of
action through assignment. Rule 17(a) is the codification of the salutary principle
that an action should not be forfeited because of an honest mistake; it is not a
provision to be distorted by parties to circumvent the limitations period."
Gardner v. State Farm Fire & Cas. Co., 544F.3d 553, 563 (3d Cir.2008), quoting
United States ex rel. Wulff v. CMA, Inc., 890 F.2d 1070, 1075 (9th Cir.l989).
{ 35} The Sixth Circuit Court of Appeals' decision in Zurich Ins. Co. v.
Logitrans, Inc., 297 F.3d 528 (6th Cir.2002), illustrates this point. In that case, a
fire at a warehouse destroyed property insured by American Guarantee, which
paid out a claim for damages. However, another insurance company, Zurich
Switzerland, filed a complaint claiming to be the insured's subrogee,
notwithstanding the fact that Zurich Switzerland had neither issued an insurance
12
January Term,2012
policy nor paid out any money to the insured. The defendants moved to dismiss
for lack of standing, and. Zurich Switzerland sought to substitute American
Guarantee as the real party in interest pursuant to Fed.R.Civ.P. 17(a). The district
court dismissed the action.
{36} The Sixth Circuit Court of Appeals acknowledged that the statute of
limitations would bar American Guarantee's claim unless Fed.R.Civ.P. 17(a) allowed it to
be substituted for Zurich Switzerland. However, the court distinguished between the
requirement of standing and the objection that the
plaintiff is not the real party in interest, and it held that because "Zurich American
admittedly has not suffered injury in fact by the defendants, it had no standing to
bring this action and no standing to make a motion to substitute the real party in
interest." ld.
{37} Other courts have also determined that a plaintiff cannot rely on
49
on the merits and is therefore without prejudice. See State ex rel, Coles v.
Granville, 116 Ohio St.3d 231, 2007-0hio-6057, 877N.E.2d 968, 51. Because
there has been no adjudication on the underlying indebtedness, our dismissal has
no effect on the underlying duties, rights, or obligations of the parties.
Conclusion
{41} It is fundamental that a party commencing litigation must have
standing to sue in order to present a justiciable controversy and invoke the
jurisdiction of the common pleas court. Civ.R. 17(A) does not change this principle, and a
lack of standing at the outset of litigation cannot be cured by
receipt of an assignment of the claim or by substitution of the real party in
interest.'
{ 42} Here, it is undisputed that Federal Home Loan did not have
standing at the time it commenced this foreclosure action, and therefore it failed
14
January Term, 2012
to invoke the jurisdiction of the court of common pleas. Accordingly, the
judgment of the court of appeals is reversed, and the cause is dismissed.
Judgment reversed
and cause dismissed.
O'CONNOR, C.J., and PFEIFER, LUNDBERG STRAlTON, ANZlNGER, CUPP,
and MCGEE BROWN,JJ., concur.
_____________________________
Thompson Hine, L.L.P., Scott A. King, and Terry W. Posey Jr., for
appellee.
Andrew M. Engle, for appellants.
Bruce M. Broyles, urging reversal for amici curiae Homeowners of the
State of Ohio and Ohiofraudclosure.blogspot.com,
Advocates for Basic Legal Equality, Inc., and Andrew D. Neuhauser;
Legal Aid Society of Cleveland and Julie K. Robie; Legal Aid Society of
Southwest Ohio, L.L.C., and Noel M. Morgan; Community Legal Aid Services,
51
Inc., Christina M. Janice, and Paul E. Zindle; and Ohio Poverty Law Center and
Linda Cook, urging reversal for amici curiae Advocates for Basic Legal Equality,
Inc., Legal Aid Society of Cleveland, Legal Aid Society of Southwest Ohio,
L.L.C., Community Legal Aid Services, Inc., Ohio Poverty Law Center, Legal
Aid Society of Columbus, Southeastern Ohio Legal Services, Legal Aid of
Western Ohio, and Pro Seniors, Inc.
______________________________
52
EXHIBITS
Exhibit A
Original Complaint
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
Exhibit B
Assignment of Mortgage from Option One Mort. Corp.
to Wells Fargo Bank Na.
77
Exhibit C
Notice of Filing of Assignment
78
79
80
81
82
Exhibit E
83
Exhibit E2
84
Exhibit G
EXECUTION COPY FLOW AMENDED AND RESTATEDMORTGAGE LOAN
PURCHASE AND WARRANTIES AGREEMENT (ECFAARMLPAWA)
85
Exhibit G2
(ECFAARMLPAWA) Due Diligence Statement
86
Exhibit G3
(ECFAARMLPAWA) Validity of Mortgage Documents & Ownership
87
Exhibit G4
(ECFAARMLPAWA) Origination Due Diligence
88
Exhibit G5
(ECFAARMLPAWA) Signatory page 1
89
Exhibit G6
(ECFAARMLPAWA) Signatory page 2
90
Exhibit G7
(ECFAARMLPAWA) Signatory page 3
91
OBrien Affidavit 1
92
93
94
95