SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK

THE BANK OF NEW YORK, AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007- 14 T2, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007 - 14T2 Plaintiff -Against Stephen Silverberg, Fredrica Silverberg, Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide Home Loans, Inc. and "John Doe # 1" through "John Joe #10", inclusive ofthe last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the persons, tenants, occupants, or corporations, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants Index No. 08 -17464

Defendants, STEPHEN C. SILVERBERG AND FREDRICA SILVERBERG, by their attorneys, STEPHEN C. SILVERBERG, PLLC, as their ANSWER and Counterclaim to the Complaint of the Plaintiff herein, allege as follows: 1. Denies each and every allegation contained in paragraphs SEVENTH and EIGHTH ofthe complaint. 2. Denies knowledge or information sufficient to form a belief as to the accuracy ofthe allegation contained in Paragraph FIRST, SECOND, THIRD, SIXTH, NINTH, TENTH, ELEVENTH, TWELFTH, THIRTEENTH, and SEVENTEENTH. Amended Answer and Counterclaim Hon. Denise F. Molia

PRELIMINARY STATEMENT OF ISSUES FOR WHICH THE PI .AINTIFF BEARS THF. RITKDFN OF PROOF
Amended Answer and Counterclaim - 1
STEPHEN C

SILVERBERG, PLLC 626 RXR Plaza

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK

3.

The Defendants allege on information and belief, the assignments of mortgage purporting to bear the signatures of officers of MERS are not genuine and therefore deny the genuineness of the signature on any assignments of mortgage from Countrywide Home Loans, Inc., to the Plaintiff and the legal effect of same.

4.

The Defendants allege that the circumstances surrounding the execution of the purported 2008 Assignment of Mortgage indicate that the execution of said assignments renders the assignments null and void and demand that plaintiff submit admissible proof of the chronology surrounding the execution of said assignments and the legality of said executions.

5.

The Defendants allege that the Note and Mortgage were not physically delivered to the Plaintiff during 2007 or 2008. The Defendants demand that Plaintiff prove at trial, by legally sufficient admissible evidence, the actual physical delivery to Plaintiff, and Plaintiffs acceptance of the Note and Mortgage.

6.

The Defendants allege that Plaintiff cannot establish by legally admissible evidence a full chain of title of the Note and Mortgage and asserts that the legal sufficiency of the chain of title is at issue. The Defendants demand that the Plaintiff prove at trial a legally sufficient chain of title of the Note and Mortgage from the original Lender, Countrywide Home Loans, Inc. to the Plaintiff that provides the factual basis for the determination that the Plaintiff is the holder in due course of the Mortgage and Note.

STEPHEN C. SILVERBERG, PLLC 626 RXR Plaza Amended Answer and Counterclaim - 2

RELEVANT FACTS

Background of Securitization System 7. Plaintiff, THE BANK OF NEW YORK, AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATE HOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007- 14 T2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007 - 14T2, is commonly known as a REMIC, meaning a Real Estate Mortgage Investment Conduit. 8. A REMIC is a type of special purpose vehicle used for the pooling of mortgage loans and issuance of mortgage-backed securities. Typically, the entity operates pursuant to a Pooling and Servicing Agreement and Master Trust. They are defined under the United States Internal Revenue Code Sections 860 et seq. and are the typical vehicle of choice for the securitization of residential mortgages in the United States. 9. REMICs are investment vehicles that issue securities representing an undivided interest in these mortgages. A REMIC assembles mortgages into pools and issues pass- through certificates, multiclass bonds similar to a collateralized mortgage obligation (CMO), or other securities to investors in the secondary mortgage market. Mortgage-backed securities issued through a REMIC can be debt financings of the issuer or a sale of assets. Legal form is irrelevant to REMICs: trusts, corporations, and partnerships may all elect to have REMIC status. 10. The principal investment function of a REMIC is to distribute current income receivables under mortgage loans. 11. Mortgage backed Securities (MBS) Certificates are "pass through Certificates," where the T rust has elected to be treated as a Real Estate Mortgage Investment Conduit ("REMIC") to enjoy the tax exempt status allowed under 15 U.S.C. 860A-G. 12. RF-MIC regulations impose very strict limitations as to the nature of the investments a
STEPHEN C. SILVERBERG, PLLC 526 RXR Plaza

Amended Answer and Counterclaim - 3

REMIC trust may make (i.e. "permitted investments") and transactions which it may not undertake (i.e. "prohibited transactions"). 13. Any violation of REMIC regulations has significant tax implications for the Trust, as well as all Certificate holders. For example, any income realized by the Trust from a "prohibited transaction" is taxed at 100%.

14.

The REMIC regulations also provide that any entity that causes the REMIC regulations to be violated is liable to the Trust and the Certificate holders for the entire amount of the tax.

15. 16.

Only income from "qualified mortgages" and "permitted investments" may enter a REMIC trust. A "qualified mortgage" is an obligation (i.e. mortgage) which is principally secured by an interest in real property which (1) was transferred to the Trust on the startup date, (2) was purchased by the REMIC Trust within 3 months after the startup date or (3) any qualified replacement mortgage.

17.

Permitted investments are limited to: Cash Flow Investments (i.e. temporary investment where the Trust holds money it

has received from qualified mortgages pending distribution to the Certificate holders);

STEPHEN C. SILVERBERG. PLLC

Qualified Reserve Assets (i.e. any intangible property which is held for investment and is

part of a reasonably required reserve to provide for full payment of expenses ofthe REMIC or amounts due on regular interests in the event of defaults on qualified mortgages or lower than expected returns on cash flow investments. 18. 19. These investments are for very defined purposes and are to be passive in nature. Liquidation Proceeds from "foreclosed property" which is acquired in connection with the default or imminent default of a "qualified mortgage" held by the Trust. 20. In order to maintain the REMIC status, the Trustee and the Servicers must ensure that the REMIC receives no income from any asset that is not a "Qualified Mortgage" or a "Permitted Investment." 26 U.S.C. 860F(a)(2)(B).

21.

Prohibited Transactions include the acquisition of a mortgage that is then in default. 26 U.S.C. 860F(a)(2)(B).

22.

A mortgage that is acquired in "good standing" and that falls into default when owned by the trust must be disposed of by the trust within 90 days from the time of default.

23.

Prohibited Transactions are taxed in an amount 100% ofthe REMIC's net income from such prohibited transaction. 26 U.S.C. 860F(a)(l).

24.

Contributions of any "property" - e.g., cash, mortgages, etc. - made to the REMIC are taxed at 100% of the contribution, except for the four following exceptions:.

25.

Contributions to facilitate a "clean up call" (i.e. the redemption of a class of regular interest, when by reason of prior payments with respect to those interests the administrative costs associated with servicing that class outweigh the benefits of maintaining the class). Reg. 1.860G-2(j)O)-

26.

Any violation of REMIC regulations will defeat the privileged tax status and will subject the REMIC to 100% taxation, plus penalties and interest. These taxes and penalties are ultimately borne by the Certificate holders.who are protected under a surety bond,
CTCDUCM R

en UCDDCDR. DI I r

letter of credit or insurance policy. 27. Any cash contribution during the three-month period after the start-up day; and any cash contribution to a qualified reserve fund made by a holder of a residual interest. 28. A REMIC is funded by the transfer of the mortgage notes and through a chain of ownership which typically proceeds as follows: 1. 2. 3. 4. 5. 29. From the Borrower to the Originator; then From the Originator to the Sponsor; then From the Sponsor to the Seller; then From the Seller to the Depositor; then From the Depositor to the Trustee.

The original source of funds for the closing of the Mortgage Loans is sometimes a commercial paper offering by the Investment Banker/Seller who has organized the securitization offering.

30.

The Trustee may maintain possession of the Mortgage Loan documents through a Custodian, if the Trustee does not have its own storage facilities.

31.

Each securitization offering has a "Closing Date" by which, with few exceptions, all of the mortgage loans to be owned by the REMIC are to be transferred to the RLMIC in exchange for the proceeds of the offering of Certificate interests in the entity.

32.

At the time of Closing of the Registration, the Depositor transfers the Mortgage Loan documents to the Trustee and they are reviewed for compliance with the terms of the Prospectus, and particularly the Pooling and Service Agreement ("PSA") to ensure that the Trustee is obtaining "good title" to the Mortgage Loan. The Seller and Master Servicer make several representations and warranties to the Trustee at the time of transfer of the loan documents concerning the documents being transferred and the status of the loans (such as that none of the loans is in default) and the Depositor makes additional representations and CTcnucM r* en \/r?d nnnr Di 1 r warranties.

33. 34.

Other intermediaries are sometimes involved in the securitization process, such as the Warehouse Lender. It is understood in the industry that the reason for this circuitous route ofthe ownership ofthe mortgage loans is to shield the Investment Banker from exposure to any creditor or bankruptcy claims which might be asserted against the REMIC and for tax purposes.

Organization of the Plaintiff 35. Reference herein is to the.REMIC "CWALT Alternative Loan Trust 2007-14T2" as the Plaintiff herein. Such reference is made as a matter of convenience and is not to be deemed a binding admission that such entity is the "Plaintiff" intended to be named. The ultimate identity of the proper "Plaintiff" will be determined by discovery had herein. However, until a different entity is identified as the proper party Plaintiff, if any, reference shall be to said entity, CWALT Alternative Loan Trust 2007-14T2 36. The "Plaintiff' was formed and organized on May 30, 2007 although the Pooling and Servicing Agreement was executed on May 30, 2007 as of May 1, 2007 (the "Cutoff Date"). The source of its capital was through publicly raised investments pursuant to an 8-K Registration filing. According to the 8-K ofthe Plaintiff, the "Closing Date" for the offering was May 30, 2007. The Offering raised approximately a billion dollars for the purchase of residential

mortgages. The 8-K itself is in excess of 200 pages, but can be retrieved online from the SEC site or by "Googling" [CWALT Alternative Loan Trust 2007-14T2.J" 37. CWALT, Inc. (which stands for Countrywide Alternate Loan Trust") was an affiliate of Countrywide and served as a Special Purpose Vehicle in the securitization of home mortgages originated by Countrywide. 38. Countrywide Home Loan, Inc. (hereinafter "Countrywide") was the largest mortgage originator in the United States in 2007. However, it was facing increasing defaults from mortgage loans, principally on its subprime mortgage portfolio, but also on the higher-rated Alt-A mortgage loans. 39. Bank of America Corporation is a Financial services company, the largest bank holding company in the United State, by assets, and the second largest bank by market capitalization. 40. On August 23, 2007, the Bank of America Corporation announced a $2 billion repurchase agreement for Countrywide Financial. Following that initial investment, on January 11, 2008, Bank of America announced that they would buy Countrywide Financial for $4.1 billion. This acquisition, designed in the form of a merger of Countrywide Home Loans. Inc. into a subsidiary of Bank of America, closed on May 30, 2008. On October 16.
2008. Countrywide announced it would delist its stock.

Background of the Mortgage Electronic Recording Systems 41. Mortgage Electronic Registration Systems (MERS) is a privately held company that operates an electronic registry designed to track servicing rights and ownership of mortgage loans in the United States. Shareholders and owners of MERS include the Mortgage Bankers Association, Fannie Mae, Freddie Mac, WAMU, CitiMortgage. Bank of America, GMAC, AlCi, United Guaranty, and Merrill Lynch. 42. MERS serves as the mortgagee of record for lenders, investors and their loan servicers in the county land records. MERS claims its process eliminates the need to file assignments in the county land records, which lowers costs for lenders and consumers by reducing county recording revenues from real estate transfers and provides a central source of information and tracking for mortgage loans. MERS helped make mortgage-backed securities possible. Others have claimed that it is a scheme to evade paying the states their SsTKPHFN r <;ii VFBnBDr, PI i N mortgage recording fees, hide the identity of the actual owners of the mortgage, and puts a cloud on the title to all ofthe properties in which MERS has attempted to assign a mortgage to another entity.

43.

MERS claims to become the mortgagee of record by assignment or in the original security instrument (MERS as Original Mortgagee or "MOM"). Once MERS is the mortgagee of record, MERS believes that subsequent assignments of the mortgage are not necessary upon a transfer of servicing to another MERS member or the sale of the beneficial interest in the promissory or mortgage note because MERS remains the mortgagee on behalf ofthe current owner and servicer. Many cases have challenged these assertions, particularly claiming that an assignment cannot be valid, if it separates the interest in the mortgage from the interest in the mortgage note. Recent decisions have held flatly that any assignment executed by MERS, as nominee for the actual Lender and mortgagee, is invalid.

The Loan Transaction 44. On April 23, 2007, Defendant executed a consolidated note, Consolidation, Modification and Extension Agreement and mortgage covering the premises (the "Note" and "Mortgage"). 45. The Mortgage was in favor of MERS, as named mortgagee, nominee of Countrywide Home Loans, Inc. (hereinafter "Countrywide") for purpose of recording the mortgage. 46. The Note was in favor ofthe Lender, Countrywide Home Loans, Inc. The "Payee" on the note was Countrywide. 47. The Plaintiffs complaint alleges that the Mortgage and Note were subsequently assigned by MERS to the Plaintiff in an "assignment to be recorded.." 48. Upon information and belief, MERS has no financial interest or ownership interest in the Mortgage and never has any interest in the Note. Its records do not qualify as business records and they are not public records. Officers of MERS have testified in other litigation that it does not obtain any interest in, or possession of, the Note at any time and has no legal power to assign any interest in the Note. 49. The Consolidation, Modification and Extension Agreement and the consolidated mortgage were recorded in the Office of the County Clerk of Suffolk County on June 12, 2007.

The Relevant Parties in this Action 50. As set forth in the Form 8-K of the Offering Prospectus of the Plaintiff, the original participants in the offering were as follows: The "Borrower" was Stephen Silverberg, the Defendant herein.

51.

52. 53. 54. 55.

The "Originator" was Countrywide Home Loans, Inc.. The original "Servicer" of the Loans sold by Countrywide was Countrywide Home Loans Servicing LP The "Seller" in the present securitization scenario was Countrywide. l'he "Depositor" was CWALT, INC. CWALT, Inc. was a Special Purpose Vehicle ("SPV"), an affiliate corporation of Countywide.

56. 57. 58.

The "Master Servicer" was Countrywide Home Loans Servicing LP. The "Trustee" was The Bank of New York The Summons and Complaint The Plaintiff commenced this action by filing its summons and complaint with this Court on May 6, 2008. A lis pendens has also been filed against the property. The Plaintiff alleges in paragraph "SEVENTH" of the complaint that "The plaintiff is the holder of said note and mortgage by assignment "to be recorded," and under the subsequent allegations of the Complaint, brings on this action to foreclose on the Mortgage. As ofthe date of commencement of the action, the Assignment of Mortgage was not recorded. 60. The Complaint recites that "Annexed hereto as Exhibit "A" is a copy of the Note signed by the Defendant. However, Exhibit "A" is not the Note for $479,000 alleged to be due in this action. The Plaintiff has not, in any pleading, annexed a copy ofthe Note purporting to represent the debt on which it seeks to foreclose. 61. The copies ofthe documents annexed to the pleadings state that Countrywide Home Loans, Inc., was the "Lender" in the transaction, not the "Plaintiff." Payments by the Borrower were to be made to Countrywide. 62. The Complaint failed to annex as an exhibit a copy of the Consolidated Note, any evidence that the Note was endorsed to the "Plaintiff, any evidence that the Note was physically delivered to the "Plaintiff," any evidence that the Note was accepted by the "Plaintiff" as a transfer into the "Trust", or any evidence that the Note was in the possession of the "Plaintiff on the date of the commencement of this action. 63. Upon information and belief, the Plaintiffs position that MERS, as a nominee ofthe Lender, can legally assign the Mortgage to the Plaintiff has not been sanctioned by the Court of Appeals as a means of a legally recognized transfer of ownership of a mortgage in New York. To the contrary, the trend of court decisions is to hold ineffective any assignment of mortgage by MERS as nominee of the real Lender.

59.

64.

The Complaint alleges that the Mortgage was assigned by Countrywide to the Plaintiff "by assignment to be recorded." However, that assignment was a nullity, since the signature ofthe officer of MERS and the acknowledgement ofthe signature taken by a Notary Public were both undated.

Amended Answer and Counterclaim - 11

STEPHEN C. SILVERBERG, PLLC 626 RXR Plaza

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65.

Plaintiff sought to correct this error by the presentation to the Court of a "Corrected Assignment" dated April 30, 2008. (Exhibit "C") However, this assignment was not disclosed until well after the commencement of the Defendant's Motion to Dismiss, when it was annexed to the Affirmation in Opposition of Lisa Wallace, Esq. dated July 9, 2008. This was over 2 months after its purported date. Further, the "Corrected Assignment" was not recorded until July 28, 2008, 3 months later.

66.

At the time that the Note and Mortgage were purportedly assigned to the Plaintiff, on April 30, 2008, as alleged by the "Corrected Assignment," the Complaint alleges that the Mortgage Loan was in arrears for 7 months, i.e., since November 1, 2007. However, the PSA of the "Trust" does not permit the transfer of a Mortgage Loan to the "Trust," if it was in arrears. The Internal Revenue Code provisions governing REMIC taxation prohibit the holding of a mortgage loan in arrears more than 90 days after the default is discovered.

67.

Violation of this prohibition would endanger the tax status of the REMIC and expose the "trust" to double taxation, first at the entity level and then, again, at the individual taxpayer level. This would be disastrous for the investors and the "Trustee" would be personally liable for the resulting additional taxes. Yet, Plaintiff would have the Court accept that the Trustee would have jeopardized the trust, placed itself in jeopardy and continues to hold the Note and Mortgage.

68.

At the time of the purported assignment of the Note and Mortgage as alleged by the "Corrected Assignment," the "Closing Date" of Plaintiff's Offering, May 30, 2007, had passed by approximately 11 months.

69.

Upon information and belief, if the assignment of the Mortgage to the Plaintiff was made as alleged on April 30, 2008, the Plaintiff had knowledge that the Mortgage Loan was in arrears. CTFPHPN f <sl I Vh'KHFRf. Pl .l f 70. Plaintiff made no attempt to contact the Defendants to discuss the repayment ofthe loan. I he Plaintiff did not do anything other than to commence this action.

The Invalidity o f t h e Purported Assignments and Transfers Defective Delivery of the Mortgage without Assignment in 2007

71.

As previously mentioned, the closing date of the Mortgage Loan was April 23, 2007. This was

approximately one month prior the May 30, 2007 "Closing Date" of the public Offering of Certificate Interests sold by the "Trust". 72. An Exhibit to the Offering Prospectus, designated Ex 99.1, is a schedule of the mortgages that were

purportedly part ofthe pool transferred to the Issuer. 73.

One ofthe mortgages listed in this Exhibit is the Mortgage at issue in this action.

Annexed hereto as Exhibit "A" are copies of the relevant pages of the aforesaid exhibit Ex.99.1 74. However, if the transfers of the Note and Mortgage were, in fact, made to the Plaintiff prior to or on

the May 30, 2007 Closing Date, the transfers would have violated several provisions of the PSA. As detailed below, the transfers would have been made without an accompanying assignment of the mortgage or endorsement of the Note, in violation ofthe PSA, and insufficient under the UCC to constitute the Plaintiff as a "holder" ofthe Note. 75. Upon the date ofthe commencement of the action, May 6, 2008, the Assignment of Mortgage

annexed as Exhibit "B" to the Complaint from MERS, as nominee for Countrywide, to the Plaintiff was undated. That Assignment is annexed hereto as Exhibit "B." The Plaintiff has never explained why it annexed an undated assignment to the Complaint. 76. This mortgage loan was intended to be included in the original pool of mortgages to

be transferred to the trust at the Closing Date, but it presumably did not make it into the pool, since a recordable assignment of the Mortgage and endorsement of the Note were nonexistent. 77. Accordingly, upon information and belief, the Plaintiff did not become the legal owner of the

Mortgage or holder of the Note on May 30, 2007 or any other time in 2007.

The Aliened April 30, 2008 Assisnment

78.

The only assignment with a full date on it is dated "April 30, 2008'' and the Plaintiff has not offered

a copy of the Consolidated Note with any indorsement of it to the "Trust.".

79.

The transfer of the Note and Mortgage to the Plaintiff, if it ever took place on April 30, 2008, would

have been wholly ineffective and void under New York law to transfer to the Plaintiff the right to commence this action, because the Plaintiff fails to allege the transfer in its Complaint or to annex any evidence of the endorsement or possession of the Note. 80. 3211(a). 81. In the Affirmation in Support of the Motion, the Defendants noted that the assignment of mortgage On June 20, 2008, Defendants noticed a pre-answer Motion to Dismiss the Complaint under CPLR

was undated, and, therefore, legally unrecordable, invalid and void. 82. For the first time, in Plaintiffs Attorney Affirmation in Further Opposition to the Motion, the

Plaintiff then annexed to a sworn affirmation by Lisa M. Wallace, Esq. on July 9, 2008 another purported assignment to the Plaintiff However, this paper (marked as a "Corrected" Assignment) was purportedly dated and acknowledged on "April 30, 2008," conveniently 6 days prior to the commencement of the action. 83. Upon information and belief, the Defendants allege that this Assignment is invalid, because it was

created after the commencement of this action for purposes of this litigation as a response to the Defendants' objections to the undated assignment in the Motion to Dismiss.

Acceptance of the Mortgage and Note Would Have Been Violations of the PSA and the IRC

84.

Nevertheless, even taking the "Corrected" Assignment on its face, which the Defendants do not,

an Assignment of Mortgage from MERS, as nominee for Countrywide, 12 months after the "Closing Date" ofthe Offering is prohibited by the specific terms ofthe Offering and particularly the PSA, i.e., the Trustee must accept a Mortgage Loan into the mortgage pool by within 90 days after the "Closing Date." The REMIC provisions ofthe Code have a similar provision. 85. At the time that the "Corrected" Assignment of Mortgage was purportedly executed, allegedly on

April 30, 2008, the Mortgage was non-performing according to the "Plaintiffs" own allegations in the Complaint.

86.

For the Trustee to accept a non-performing loan into the pool in violation of the PSA and to risk its tax

status would have been an ultra vires act and void. Acceptance of the Note into the "Trust" knowing that it was "in default" could not have been in good faith and without notice of a default or that the obligation was subject to defenses. 87. Therefore, the Complaint apparently alleges two ineffective Assignments of Mortgage and no

endorsement of the Consolidated Note to the "Plaintiff." 88. It is clear that the "Plaintiff' is not and cannot be the holder in due course ofthe Note
STEPHEN C. SILVERBERG, 526 RXR Plaza

PLLC Amended Answer and Counterclaim - 15

or the proper assignee of the mortgage.

Plaintiff Not Holder in Due Course 89. The Plaintiff has not annexed as an Exhibit to the Complaint any evidence that it is in possession of

the ink original of the Note.

90. 91. 92.

The Plaintiff has not plead any facts that support its taking of the Note for value. The Plaintiff has not plead any facts that support its taking of the Note in good faith. The Plaintiff has not plead any facts that support its taking of the Note without notice that it is in

default or overdue. 93. The Plaintiff has not plead any facts that support its taking of the Note without notice that it was

subject to defenses by the Borrower. 94. Plaintiff has not established a credible chain of good legal title for the Note and Mortgage.

Plaintiff's Burden to Establish a Prima Facie Case 95. To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must demonstrate

the existence of the mortgage and the mortgage note, the validity of the mortgage, ownership and possession of the note, ownership of the mortgage, the defendant's default, and the amount defendant owes to the plaintiff.

96. herein "'upon

Many of the facts which are the basis of the allegations stated

Amended Answer and Counterclaim - 16STEPHEN C. SILVERBERG, PLLC

626 RXR Plaza Uniondola Maur Ynrlr 1 H S f i fWM

information and belief are within the sole possession and control ofthe Plaintiff or in the possession of a person under the Plaintiffs control. The Defendant anticipates the ability to establish these facts after reasonable discovery.

FIRST DEFENSE -Failure to State a Cause of Action

97.

Plaintiff has failed to plead and support by the Exhibits annexed to the complaint that on

the date this lawsuit commenced, the plaintiff was the true owner of the claim sued upon, the existence of the Note, plaintiffs ownership and possession of the Note, ownership of the mortgage, the defendants' default, the amount defendant allegedly owes to the plaintiff, and that plaintiff is the real party in interest or authorized to bring this foreclosure action. 98. action for foreclosure. 99. Accordingly, the Complaint should be dismissed. As a result of each ofthe foregoing deficiencies, plaintiff has failed to state a cause of

SECOND DEFENSE -Lack of Capacity to Sue

100. case.

Plaintiff fails to plead any facts necessary to describe the basis for its capacity to sue in this

The only reference in the Complaint to the status of the Plaintiff is in paragraph FIRST, where plaintiff alleges: Plaintiff, at all times relevant herein, was a Delaware corporation with its principal place of business at 7105 Corporate Drive, Piano, TX . The allegation of Paragraph FIRST of the Complaint (1) does not clearly CTDDUEXi p CTT \rcnDrnn ni i n

101.

identify who is alleged to be the Plaintiff. The allegation leaves unclear whether the Plaintiff is alleged to be (a)"Bank of New York'" as Trustee, or, (b) "The Certificate Holders of the, CWALT, Inc., Alternative Loan Trust 2007- 14 T2, Mortgage Pass-Through Certificates, Series 2007 - 14T2", or CWALT, Inc., or (c) "The CWALT, Inc. Alternative Loan Trust 2007- 14 T2, Mortgage Pass- Through Certificates, Series 2007 - 14T2" and (2) in what capacity the alleged Plaintiff brings this

102.

If the Complaint seeks to designate as Plaintiff "Bank of New York" as Trustee, then the

allegation is insufficient. While the Trustee may carry on certain banking functions, Plaintiffs Trustee is not licensed to carry on the "trust" activities that it alleges justifies its status in this case. The Complaint fails to plead any basis for an exemption from that requirement for it to be able to sue as a Trustee in New York.

103.

Furthermore, the Trustee is not a Trustee in the sense commonly understood in Trusts and

Estates practice. The "Trustee" does not have the authority or responsibility that the title of Trustee confers upon a person under New York law. According to the Prospectus organizing the Plaintiff, the "Trust" is alleged to be a New York common law trust. However, substance must take precedence over form and titles. In accordance with the organizational documents under which the Plaintiff was created and under which Certificate interests were sold to investors, most of the operational authority for the management of the mortgage pool, including decisions concerning foreclosure and modification of any mortgages, were delegated to the Master Servicer. The Trustee predominantly acts at the direction of the Mortgage Servicer. The "Trustee" has little autonomous operational power or responsibility. Therefore, the "Trustee" is more a figurehead or "straw man" than a "Trustee" fiduciary. Moreover, the holders of Regular Interest Holders are treated as creditors of the Trust, not beneficiaries. Therefore, the "Plaintiff' cannot maintain an action as a Trustee in its name on behalf of the investors in the "Trust." 104. If the Complaint seeks to designate "The Certificate I Iolders ofthe, CWALT, Inc., Alternative Loan

Trust 2007- 14 T2, Mortgage Pass-Through Certificates, Series 2007 - 14T2," then the Complaint should name each of the Certificate Holders as a party. 105. If the Complaint seeks to designate "The CWALT, Inc., Alternative Loan Trust 2007- 14 T2,

Mortgage Pass-Through Certificates, Series 2007 - 14T2," as a "common law trust," then it must identify the Trust Agreement or Trust Indenture under which it was organized, which must comply with the requirements of a Trust

Agreement or Trust Indenture under New York law. The Trust Agreement or Trust Indenture must identify with particularity the corpus of the trust, the grantor ofthe trust, the beneficiaries of the trust, and the terms ofthe trust. None of these requirements has been met in this case. 106. Which entity is the alleged holder and owner of the Note and Mortgage has a substantial effect on the

defense of this case. Is the Plaintiff the Bank of New York, a Delaware Corporation, or "The CWALT, Inc., Alternative Loan Trust 2007- 14 T2, Mortgage Pass-Through Certificates, Series 2007 - 14T2," a New York common law trust, or some variation thereof The Complaint creates a conflict of facts, which must be resolved as part of the overall clarification ofthe issues raised by the Complaint. 107. Since, under any alternative identification of a possible Plaintiff, the Plaintiff in this Complaint

has not been identified and shown to have the capacity to sue in the State of New York, the complaint should be dismissed.

THIRD DEFENSE -Lack of Capacity to Sue 108. Plaintiff fails to plead any facts necessary to describe the basis for its capacity to sue

PLLC Amended Answer and Counterclaim - 19

in this case.

STEPHEN C. SILVERBERG, 626 RXR Plaza

109.

By failing to define or to identify in any way the nature of its legal status, the "Plaintiff' has not

plead that it has the capacity to maintain suit before this Court. 110. As a result, the complaint should be dismissed.

FOURTH DEFENSE -Lack of Standing to Sue 111. The Plaintiff pleaded in the Complaint at Paragraph SEVENTH that: "Plaintiff is the holder of said note and mortgage. Said mortgage was assigned to Plaintiff, by Assignment of Mortgage to be recorded in the Office of the County Clerk of Suffolk County. See Exhibit B."

112.

The purported assignment annexed as Exhibit "B" to the Complaint was undated at the signature

line and undated in the acknowledgement, which was otherwise completed. 113. Plaintiff fails to plead in the Complaint that it is the holder and owner of the Note anc Mortgage, as

required by the UCC to enforce a Note. 114. An Assignment of the Mortgage does not negotiate ownership of the Note to the assignee.

115.

The Plaintiff was not and could not have become a holder or owner of the note as a result of the

undated Assignment of the Mortgage. 116. 117. Plaintiff has no financial interest in the claim sued upon. The Plaintiff fails to state a cause of action and the Complaint should be dismissed.

CTCDUCW f CM VCDDCDr. DI I f FIFTII DEFENSE -Lack of Standing to Sue 118. In Plaintiff s "Attorney Affirmation in Further Opposition to Motion to Dismiss," Plaintiff changes

the Plaintiffs position taken in the Complaint and alleges that the Note and Mortgage were "assigned" by a "Corrected" Assignment of Mortgage dated "APR 30, 2008" and by physical delivery to the Plaintiff at some unspecified date "prior to the current action within the VIERS electronic system.". 119. Plaintiffs Complaint does not alleged that there was any written assignment of the mortgage made

from Countrywide to the Plaintiff at any time prior to April 30, 2008. 120. 121. Plaintiff does not allege the endorsement of the note at any time. The Note, being payable to the original payee, could only be negotiated by the payee yy (1)

endorsement to the next payee, or (2) endorsement in blank and actual physical delivery to the payee. 122. Physical delivery "within the MERS electronic system" is inadequate to meet the requirements of

physical delivery to the assignee as provided in the UCC and is a legal nullity.

123.

Accordingly, the Plaintiff neither holds nor owns the Note and, therefore, lacks a financial interest in

the claim asserted. 124. 125. The Plaintiff is not a proper party to this action. The complaint should be dismissed.

SIXTH DEFENSE - Lack of Subject Matter Jurisdiction cTKDurw n en uroDCon DI I r 126. The Note, being payable to the original payee, could only be negotiated by the payee 'yy (1)

endorsement to the next payee, or (2) endorsement in blank and actual physical delivery to the payee. 127. Physical delivery "within the MERS electronic system" is inadequate to meet the

requirements of physical delivery to the assignee as provided in the UCC. 128. Accordingly, the Plaintiff neither holds nor owns the Note and, therefore, lacks the ability to

foreclose on the mortgage pursuant to New York law. 129. The Court lacks subject matter jurisdiction over this matter.

130.

The complaint should be dismissed.

SEVENTH DEFENSE - Lack of Subject Matter Jurisdiction

131.

Defendant repeats and realleges each allegation of the preceding paragraphs.

132. 133.

Plaintiff has failed to plead sufficient facts to support its standing to sue in this action. Standing to sue is a jurisdictional requirement which must be met for a plaintiff to

gain entry to our court system. 134. should be dismissed. As a result, this Court lacks subject matter jurisdiction over the action and the complaint

EIGHTH DEFENSE - Defense based on Documentary Evidence - Plaintiff not the Owner

135.

On the documentary evidence presented by the "Plaintiff," the Complaint and

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Amended Answer and Counterclaim - 22

the exhibits attached to the Complaint failed (I) to allege that the Plaintiff is the true owner of the debt sued upon on the date this action was commenced, (2) to demonstrate that the Plaintiff was the real party in interest at the commencement of this action, (3) to show that the Plaintiff had no interest in the subject Mortgage and the Note at the date on which the subject complaint for foreclosure was filed with this Court, or (4) to show that the "Plaintiff' is authorized by the holder and owner of the note and mortgage to bring this foreclosure action. 136. As a result, the Complaint should be dismissed.

NINTH DEFENSE Assignment of Note and Mortgage Ineffective

137.Assignment of Mortgage dated April 30. 2008 did not include a valid negotiation of the Note.

138.The attempted assignment of the mortgage without the negotiation of the Note is a legal nullity in New York.

139.Therefore. Plaintiff has no financial interest in the action and the action should be dismissed.

TENTH DEFENSE-No allegation of Notice of Acceleration

Repeats and realleges each and every allegation contained in the preceding 140. paragraphs.

141. Paragraph 22 of the mortgage provides that before a foreclosure action can be

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commenced. Notice of Acceleration must be delivered to the mortgagor by the mortgagee at least 30 days prior to the commencement of the action. 142. 143. I he Complaint fails to plead the delivery ofthe required "Notice of Acceleration." As a result, Plaintiff has failed to comply with a contractual Condition Precedent to the

commencement of this action and the Complaint should be dismissed.

ELEVENTH DEFENSE-Ineffective Notice of Acceleration

144. 145.

Repeats and realleges each and every allegation contained in the preceding paragraphs. Paragraph 22 of the mortgage provides that before a foreclosure action can be commenced, the

mortgagee must deliver a Notice of Acceleration to the mortgagor. 146. The Defendants have not received a Notice of Acceleration from the "Plaintiff." or anyone else

alleging to be the mortgagee, or any person authorized to act on behalf of a mortgagee. 147. Accordingly, a Notice of Acceleration by the mortgagee, as a Condition Precedent to the

commencement of a foreclosure ofthe mortgage, was never delivered to the Defendants. 148. As a result. Plaintiff has failed to comply with a contractual Condition Precedent to the

commencement of this action and the Complaint should be dismissed

149.

Wherefore. Defendants demand that the Plaintiffs Complaint be dismissed. QTPPHFNI r IT VCBBPOfl PI I ELEVENTII DEFENSE-lneffective Notice of Acceleration -No authority
r

150.

Repeats and realleges each and every allegation contained in the preceding paragraphs.

151. the mortgagor.

Paragraph 22 of the mortgage provides that the mortgagee must deliver a Notice of Acceleration to

152.

On or about May 3, 2008 the attorneys for the Plaintiff mailed a letter to the Defendants

purporting to be a Notice of Acceleration. 153. 154. The letter was not alleged to be made by an officer of any purported owner of the mortgage. The Defendant's attorney did not allege or enclose a power of attorney from any officer of a

purported mortgagee authorizing the sending of the letter. 155. Accordingly, a Notice of Acceleration required to be sent by the mortgagee, as a Condition

Precedent to the commencement of a foreclosure of the mortgage, was never delivered to the Defendants. 1 56. As a result. Plaintiff has failed to comply with a contractual Condition Precedent to the commencement of this action and the Complaint should be dismissed 157. Wherefore. Defendants demand that the Plaintiffs complaint be dismissed.

TWELFTH AFFIRMATIVE DEFENSE - FDCPA Violation

158.

Repeats and realleges each and every allegation contained in the preceding
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paragraphs 159. U.S.C. 1692 eteq. 160. eteq. 161. The aforesaid letter from the Plaintiffs attorneys misrepresented the Defendants' legal rights to The Defendants are "consumers" under the Fair Debt Collection Practices Act. 15 U.S.C. 1692 Plaintiffs attorneys are "debt collectors" under the Fair Debt Collection Practices Act. 15

dispute the validity of the claim in the Notice of Acceleration and have any legal action stayed pending the verification ofthe debt. 162. As an action in equity, the Plaintiff must not come into this Court with "unclean hands." The

Plaintiffs misleading of the Defendants as to their legal rights violated federal law and standards of fundamental due process. 163. 164. By so doing, the Plaintiff has lost any right to seek equity in this Court. As a result, the Complaint should be dismissed.

THIRTEENTH AFFIRMATIVE DEFENSE- Fraud on the Court 165. 166. Repeats and realleges each and every allegation contained in the preceding paragraphs Plaintiff came into this court alleging that it owned the subject loan on May 6, 2008, the

date this action was commenced. 167. When the plaintiff made this statement it was fully aware that it was not true.

168. mislead this Court.

The Plaintiff has submitted affirmations and documentation as to facts in this case to

169.

These affirmations and exhibits have lead to an order of this court denying the Defendants

Motion to Dismiss the Complaint.

170.

These acts are a fraud on the court.

171. imposed on the Plaintiff.

The action should be dismissed and further appropriate sanctions should be

FOURTEENTH AFFIRMATIVE DEFENSE - Unclean hands

172.

As a matter of equity, this Court should refuse to foreclose this mortgage because

acceleration of the note would be inequitable, unjust, and the circumstances of this case render acceleration unconscionable.

173.

This court should refuse the acceleration and deny foreclosure because Plaintiff has waived

the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent.

174.

Defendants demand the Plaintiff s complaint be dismissed with prejudice and for fraud on

the court, and for their attorney's fees and costs and for all other relief to which this Court finds Defendants entitled.

FIFTEENTH AFFIRMATIVE DEFENSE -Indispensable Party

175.

The complaint fails to join indispensable parties, specifically the loan STEPHEN C STT.VFRRFRn PT.T.r

originator, the loan servicer(s). the Depositor, the Master Servicer, any entity issuing mortgage default insurance or other credit enhancement products, and the Certificate Holders ofthe Plaintiff. I 76. Accordingly, the complaint should be dismissed.

SIXTEENTH AFFIRMATIVE 1)1 I I \SI:-Ml KS Assignment invalid

177.

Ihe purported assignment ofthe mortgage by MERS is invalid, ineffective and void as a matter of

law to transfer ownership of the note and mortgage to the purported assignee, the Plaintiff herein. 178. 179. should be dismissed. Upon information and belief. Plaintiff has no financial interest in the note or mortgage. Therefore, the Plaintiff has no standing to commence or maintain this action and the complaint

EIGHTEENTH AFFIRMATIVE DEFENSE No physical transfer to pool

180.

Upon information and belief, the Trustee never accepted the Note and Mortgage as part ofthe

"Trust." because they did not meet the requirements ofthe Pooling and Service Agreement, and were not accompanied by valid a assignment ofthe mortgage and endorsement of the Note. 181. commenced. Accordingly, the Plaintiff did not own the Note and Mortgage at the day this action was

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182. Plaintiff has not plead and cannot demonstrate OMMfl ftl W tl(\te M Vd
assignment of the mortgage required to state or prove a prima facie case in an action for foreclosure.

NINETEENTH AFFIRMATIVE DEFENSE - Ineffective Transfer

183. unendorsed note.

The Offering does not provide for receipt by the Trustee of the unassigned mortgages and

184.

The only w ritten assignment alleged to be made by the Plaintiff was alleged to have been made on

April 30, 2008. 10 months after the "Closing Date" of the REMIC on May 30. 2007.

185.

The Prospectus for the Plaintiffs formation provides:

Pre-Funding Account and Capitalized Interest Account

A particular series may provide for the purchase of additional mortgage loans after the related closing date if the aggregate stated principal balance of the mortgage loans transferred to that issuing entity on the related closing date is less than the amount specified in the related prospectus supplement. The related prospectus supplement will specify the amount required to be deposited in a pre-funding account to be used through the end of the related funding period (which, generally, will not exceed 90 days) to purchase subsequent mortgage loans for that issuing entity. Any amounts not used for that purpose will be paid to holders of the related senior certificates as a prepayment of principal no later than the distribution date following the end of the funding period. 186. Upon information and belief, the alleged assignment of the mortgage of April 30. 2008 was

well beyond the maximum 90 days period after closing. No special circumstances for an exception to this rule have been alleged in the Complaint by the Plaintiff.

187.

On the face of the complaint, the alleged physical transfer of the Mortgage Loan to the Plaintiff on April 30. 2008 would have been in violation of its own

Amended Answer and Counterclaim - 29

Offering Statement requirements, a violation of the terms of the registration of the sale of the Certificate Interests in the REMIC and a

violation of the Internal Revenue Code provisions governing REMICs and the REMIC'
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regulations. 188. The previously mentioned physical transfer ofthe Note and Mortgage, if accepted by the

Trustee, was an irresponsible, reckless and ultra vires act. without legal effect and a violation ofthe terms ofthe registration ofthe sale ofthe Certificate Interests in the REMIC. 189. By commencing this action. Plaintiff has represented that the Plaintiff is the holder ofthe

note and mortgage by virtue of a valid transfer ofthe Mortgage Loan to the Plaintiff. 190. Upon information and belief, as set forth herein, the Plaintiff did not own the Mortgage l

oan through a legally valid transfer of ownership on the date that this action commenced. 191. Defendant and the Court. 192. Upon information and belief, the Plaintiff did not have a financial interest in the asserted Upon information and belief, such allegation of ownership is false and misleading to the

claim on the date of commencement of this action. 193. For all ofthe aforesaid reasons, the complaint should therefore be dismissed.

TWENTIETH AFFIRMATIVE DEFENSE-LATE CLOSING & NO DOCUMENTATION 194. The PSA provides in Section 8.05 that if the Trust purchases a mortgage loan after the

"Closing Date." it must be accompanied by. among other documents, the original note and mortgage, all endorsements ofthe note and all allonges to the note, all original assignments of mortgages and an opinion of counsel that the transfer would not impose any adverse tax consequences on the REMIC. 195. The PSA also requires that upon transfer of a Mortgage Loan package, all
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Amended Answer and Counterclaim - 30

promissory notes must have been endorsed in blank, except for the last endorsement, which might lave been endorsed to the Trust. 196. Upon information and belief, the Note and Mortgage were not accompanied by required

documentation including a legal opinion, all assignments, and the original note and
e.

197.

It was a material requirement ofthe securitization offering to the public that all transfers of

Mortgage Loans to the Trust transfer to it good "holder in due course" title. 198. If the "Plaintiff" has possession ofthe Note, it is not a holder in due course of the Note and the

Investors in the Plaintiff have been deprived ofthe benefit of their investment lo the extent allocable to the Mortgage Loan. 199. The acceptance ofthe Mortgage Loan by the PlaintiffREMIC's Trustee would have been a

breach of its duty (contractual and/or fiduciary) to the Investors to use the proceeds of the Offering in accordance with the terms and conditions ofthe Prospectus and the underlying documents annexed thereto, including the Pooling and Servicing Agreement.

200.

In any event, if there was a transfer ofthe Note and Mortgage to the "Plaintiff" which was

accepted by the Trustee and placed into the pool, it was in violation ofthe Pooling and Servicing Agreement and the Offering and was ineffective and invalid. 201 It is wholly unreasonable to believe that the Plaintiff would have carried on

such actions in dereliction of its duties and obligations to its investors and in violation of state and federal law. Accordingly, the Plaintiff has failed to state a cause of action, and the complaint should be dismissed.

Amended Answer and Counterclaim - 31

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TWENTY-FIRST AFFIRMATIVE DEFENSE - No Authorization for Foreclosure Upon information and belief, the Pooling Agreement and Master Servicing Agreement provides in Article 8. Section 8.01 (iii). in effect, that before instituting any foreclosure action and not be liable personally for the consequences of the action, the Trustee must obtain the authorization of at least 25% of the Certificate Holders of the Trust and receive from the Certificate Holders indemnification for costs, expenses and liabilities in connection with such litigation. Further, the Trustee is not responsible to exercise any due diligence in the performance of its duties and need not verify any facts upon which it acts. Moreover, upon information and belief, as a RFMIC. its tax benefits are placet in jeopardy if its Certificate Holders make significant management decisions, such as vote on the foreclosure of a mortgage. Upon information and belief, the owners of the Plaintiff being the Certificate Holders have not authorized the Trustee to commence this foreclosure action or provided the req u ired I ndem n i fi cat ion. Accordingly, the commencement of this action based upon the purported ownership of the note and mortgage as a result of a purported transfer of the Note and Mortgage to the Trustee was without proper authority from the Certificate Holders and is ineffective and invalid

AS A TWENTY-SECOND AFFIRMATIVE. DEFENSE - BREACH OF WARRANTIES 206. SECTION 2.04. of the PSA provides:
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bzo RXR Plaza Representations and Warranties ofthe Depositor as to the Mortgage Loans. The Depositor hereby represents and warrants to the Trustee with respect to each Mortgage Loan as ofthe date hereof or such other date set forth herein that as ofthe Closing Date, and following the transfer ofthe Mortgage Loans to it by each Seller, the Depositor had good title to the Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses 01 counterclaims. The Depositor hereby assigns, transfers and conveys to the Trustee all of its rights with respect to the Mortgage Loans including, without limitation, the representations and warranties of each Seller made pursuant to Section 2.03(a)(ii) hereof, together with all rights ofthe Depositor to require each Seller to cure any breach thereof or to repurchase or substitute for any affected Mortgage Loan in accordance with this Agreement.

207.

Upon information and belief, if the Note and Mortgage were transferred to the Trust in 2007,

as a result of the defects in the manner of negotiation ofthe Note and the assignment of the Mortgage, the Depositor, CWALT, INC., would have breached its representations and warranties with respect to the Mortgage Loan. 208. Pursuant to the provisions of the PSA. the Seller. Countrywide, would have been obligated to

substitute a "Qualifying Mortgage" for the Note and Mortgage ofthe Defendants. 209. Upon information and belief, if the Note and Mortgage were transferred to the Trust in 2007,

the Note and Mortgage would have been reacquired by Countrywide at some time after the Closing Date, for the Depositor and Seller to comply with the requirements ofthe PSA. 210. The fate of the Note and Mortgage are undetermined, since Bank of America acquired

Countrywide in July of 2008. If the Plaintiff had followed its own PSA, it would not have owned the Note and Mortgage at the date ofthe commencement of this action. 211. dismissed. In any event, the Plaintiff is not the proper party to this action and the complaint should be

TWENTY-THIRD AFFIRMATIVE DEFENSE 212. If a Mortgage Loan is discovered to be in default, it becomes the obligation o
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the Master Servicer, Countrywide, to reacquire the Mortgage Loan. 213. SECTION 2.05.of the PSA provides, in relevant part, as follows:

Delivery of Opinion of Counsel in Connection with Substitutions provides:

" (b) Upon discovery by the Depositor, a Seller, the Master Servicer, or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall promptly (and in any event within five (5) Business Days of discovery) give written notice thereof to the other parties. In connection therewith, the Trustee shall require Countrywide ... at its option, to either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of such discovery in the same manner as it would a Mortgage Loan for a breach of representation or warranty made pursuant to Section 2.03. The Trustee shall reconvev to Countrywide the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty contained in Section 2.03

(emphasis added)."

The Note and Mortgage, allegedly being in default at the time of the assignment to the Plaintiff would not constitute a "qualified mortgage" within the meaning of Sect 860G of the Internal Revenue Code. 214. B\ the terms of the Section of its own PSA. the Note and Mortgage should have been reacquired by Countrywide. If the Plaintiff followed its own terms and conditions, it would not have 215. owned the Mortgage Loan at the time of the commencement of this action. 21 7.
216.

Accordingly, the Plaintiff is not the proper party in this action and the

Complaint should be dismissed.

Amended Answer and Counterclaim - 34T WENTY-FOIJRT11 AFFIRMATIVE DEFENSE STEPHEN C. SILVERBERG, PLLC 626

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218. Trustee.

Alternatively, the commencement ofthe foreclosure was without the knowledge ofthe

219.

The retention ofthe attorneys for the Plaintiff was in violation ofthe terms of the Pooling

Agreement and Master Servicc Agreement and without authority. 220. Accordingly, the Plaintiffs action should be dismissed.

TWENTY-FIFTH AFFIRMATIVE DEFENSL No Effective Negotiation or Mortgaue AssignmentSplit Ownership 221. At the closing ofthe Mortgage Loan with the Defendants, MERS was named in the Mortgage as the

"mortgagee" and subsequently was the assignor ofthe purported assignment of mortgage.

222.

At the closing ofthe Mortgagee Loan with the Defendants. Countrywide was named as the payee

ofthe Note. MERS was not mentioned in the Note as payee or in any other capacity.

223.

Upon information and belief, the split ofthe Note from the Mortgage was intentional by

Countrywide as it served Countrywide's purpose in securitizing the Mortgage Loan .

224.

The initial separation ofthe Note from the Mortgage followed by the subsequent assignment ofthe

Mortgage without the endorsement ofthe Note rendered the Mortgage unenforceable, since the holder ofthe Mortgage may not foreclose on the Mortgage without ownership ofthe Note.

225.

The initial separation ofthe Note from the Mortgage followed by the subsequent
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assignment ofthe Mortgage without the endorsement ofthe Note rendered the holder ofthe Note unable to foreclose, since it was not the mortgagee or assignee ofthe mortgage. 226. 227. 228. Accordingly, the Mortgage is unenforceable. The action to foreclose is unavailable to the Plaintiff. This action to foreclose should be dismissed. TWENTY-SIXTH AFFIRMATIVE DEFENSE - Champerty 229. As stated above, the purported assignment ofthe Note and Mortgage from

Countrywide to "Plaintiff' was made 6months after the Defendant was allegedly in default in the repayment of the Note. 230. The assignment was made just 6 days before the Summons and Complaint were filed

in the Office ofthe County Clerk on May 6, 2008. 231. The purported Notice of Acceleration, while legally insufficient, was mailed on May 3,

2008, just 3 days prior to the commencement ofthe action and was received 1 day prior to commencement ofthe action. 232. default. Plaintiff acquired the note with the principal intent of commencement of this action for foreclosure of the mortgage. At the time that the Assignment was purportedly made. Plaintiff had no other interest in debt.
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Plaintiff acquired the Note (if it actually did acquire it), knowing that it was in

233.

234.

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235.

Ai the time of the purported assignment, there was no other litigation pending in

connection with the Note and Mortgage. 236. 237. Plaintiff made no effort to collect on the Note; it immediately commenced this action. According, the acquisition of the Note was with the intent and for the purpose of bringing

this action and was, therefore, a violation of New York Judiciary Law 489(1). 238. 239. 240. The obligation of payment of the note is null and void. The obligation of the Note and Mortgage should be judicially discharged. The lis pendens against the Property should be discharged.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE Invalid Assignment 241. The purported Assignment of Mortgage dated April 28, 2008 annexed as an Exhibit to the

Plaintiffs Affirmation In Further Opposition To Motion To Dismiss recites an assignment from MERS, as nominee for Countrywide, to the Plaintiff. 242. The terms of the PSA provide that the Trustee receives the Mortgage Loans from the

"Depositor." A transfer from the Originator or the Seller would violate the terms of the PSA. Since the securitzation scheme is designed to achieve bankruptcy and tax objectives for the investment banks and investors, a legitimate assignment of mortgage to a Trustee would not have skipped the intermediary participants.

243.

By skipping the intermediaries in the Securitization chain, the Seller, and the Depositor, the

authenticity of the purported assignment is made questionable in the least. 244. The Assignment documents a break in the chain of title, since there would have been no

assignment from the Originator ofthe Loan to the Seller ofthe Loan and then from the Seller to the Depositor, all as required by the securitization scheme and the Offering.

245.

The execution of the Assignment by the Originator to the Plaintiff presumptively after it had

already negotiated the Note to the Seller (or another intermediary before the Depositor) indicates that when the Originator signed the Assignment it was already out of title to the Note.

246.

An assignment of Mortgage contrary to the terms of the Note is a nullity.

247. 248.

The Assignment is therefore void on its face. Accordingly, the Complaint should be dismissed.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE - Indispensable Rallies 252. The complaint fails to join indispensable parties, specifically the loan originator, the seller, the depositor,

the loan servicer(s) and the Certificate Holders of the REMIC. 253. The complaint should be dismissed.

TWENTY-NINTH AFFIRMATIVE DEFENSE - Plaintiff is Improper Party 254. Upon information and belief, because of provisions of the PSA, the Plaintiff may not

be the owner ofthe Mortgage Loan. 255. The PSA provides that, in the event of default in the payment ofthe underlying obligation:
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Amended Answer and Counterclaim - 38

If so specified in the prospectus supplement relating to the applicable series of certificates, the master servicer or the holder of a specified percentage of a particular class of certificates may have the option to instruct the trustee to conduct an auction of the remaining mortgage loans and real estate owned by the issuing entity. If an auction is held and the trustee receives a purchase price at least equal to the amount set forth in the related prospectus supplement, the mortgage loans will be sold to that bidder and the certificates will be paid in full on that distribution date.

256.

Accordingly, if the Mortgage Loan was ever owned by the Plaintiff, the Mortgage Loan might have been

auctioned to an unknown and undisclosed party and no longer be held as an asset of the Plaintiff "Trust." 257. Therefore, upon information and belief, Defendant alleges that the "Plaintiff" is not the true owner of the

Mortgage and Note and the true owner of the Note and Mortgage will be determined by the discovery to be prosecuted by the Defendants.

THIRTIETH AFFIRMATIVE DEFENSE- Payment

258.

Credit enhancements provide limited protection to holders of certain classes of certificates against

shortfalls in payments received on the mortgage loans and realized losses on the mortgage loans. The Prospectus for the organization and securitization of "Plaintiff' REMIC provides that the issuing entity might employ any one or more of the following general forms of credit enhancement:

the subordination of one or more classes of the securities of the series, the preferential allocation of prepayments on the mortgage loans to the senior certificates in order to increase the level of subordination,

overcollateralization, excess interest, letter of credit, financial guaranty insurance policy issued by an entity named in the prospectus supplement
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Amended Answer and Counterclaim - 39

covering one or more classes of certificates, n surety bond, U bankruptcy bond, special hazard insurance policy, guaranteed investment contract, one or more reserve funds, one or more derivative contracts, insurance on the mortgage loans, which may be FHA Insurance, a VA Guarantee or a mortgage pool insurance policy, cross-collateralization feature, or any combination ofthe foregoing. 259. Upon information and belief, one or more of the foregoing credit enhancements have been purchased by the Plaintiff, the Master Servicer, Depositor or Seller of the Defendants' Note and Mortgage and the proceeds of such products allocable to the Defendants' Mortgage Loan have been paid to the purchaser thereof. 260. 1'he proceeds from any of the foregoing techniques should be applied to the account of the

Defendant pursuant to UCC 3-602(a). 261. part. Accordingly, the Defendants' Mortgage Loan has been paid in full or in

1 HIRTY-HRST AFFIRMATIVE DEFENSE - Master Servicer Pays Monthly Delinquencies 262. The Plaintiff's PSA provides that the Master Servicer must advance to the

Amended Answer and Counterclaim - 40

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Trustee out of its own funds whatever deficiency is realized in the collection of monthly mortgage payments from the Mortgage Loans. 263. The payments provided by the foregoing advances allocable to the Defendants' Mortgage Loan should be applied to the account of the Defendant pursuant to UCC 3-602(a). 264. Accordingly, the Defendants' Mortgage Loan has been paid in full or in part. THIRTY-SECOND AFFIRMATIVE DEFENSE 265. The Prospectus Supplement provides under the heading Optional Purchase of Defaulted Loans and Certain Delinquent Loans that
"the Master Servicer may, at its option but subject to the conditions set forth in the Pooling and Servicing Agreement, purchase from the issuing entity any Mortgage Loan which is delinquent in payment by 151 days or more according to the MBA Method. The Master Servicer may enter into an agreement with a third party, which may be a certificateholder, granting the party the right to direct the Master Servicer to exercise its right to purchase those defaulted Mortgage I ,oans and requiring that party to purchase those Mortgage Loans from the Master Servicer..."

266.

If this provision of this paragraph were exercised, the proceeds of the sale of the Mortgage Loan

provided by the foregoing technique should be applied to the account of the Defendant pursuant to UCC 3-602(a). 266. Accordingly, the Defendants' Mortgage Loan has been paid in full or in part.

FIRST COUNTERCLAIM - Disgorgement of profits

267.

Plaintiff has received undisclosed profits in the form of payoff from credit default swaps, mortgage

insurance, overcollateralization, and other credit enhancement techniques. 268. Defendant has a right to receipt of the previously mentioned undisclosed profits from the transaction.

Amended Answer and Counterclaim - 41

1516) 522-2515

EXHIBIT A

EXHIBIT B

Uniondale, tsc-w -if ork i I

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SECOND COUNTERC LAIM - Damages for Slander of Title 269. Plaintiff has fded and prosecuted this action without regard to the care required by

the laws, rules, and regulations of New York. 270. Plaintiff has submitted documents and pleadings to this Court and made allegations in its

affirmations that have improperly prolonged this action, without support of the law or facts.

271.

The institution of this action has caused the Defendants to suffer significant damage to its credit.

272.

The improper commencement of this action has caused damage to Defendants' title to the subject

property, which will cause significant costs ultimately to rectify. WHEREFORE, Defendants demand judgment against Plaintiff as follows: (a) (b) Dismissing completely the Complaint by the Plaintiff; Granting judgment in favor ofthe Defendants on its Affirmative Defenses and Counterclaims;

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Uniondale. New York 1 1 ( 5 16) 522-25 /3

( c) Awarding the Defendants the costs of this action, including attorney's fees; and ( d) For such other and further relief as this Court deems just and proper.

Dated: Uniondale, New York July 25, 2010 Stephen C. Silverberg, Esq. Attorneys for Defendants Stephen C. Silverberg and Fredrica Silverberg 626 RXR Plaza

Uniondale, New York 11556 (516) STEPHEN By: 522-2575 RG, PL). i/yu^i

To: McCabe, Weisberg & Conway, P.C. Attorneys for Plaintiff 145 Huguenot Street, Suite 401 New Rochelle, New York

STEPHEN C. SILVERBERG, PLLC

626 RXR Plaza Uniondale, New York 11556-0626

(516") 522-2575

Amended Answer and Counterclaim 43