Earl S.

David
Attorney at Law
1091 River Avenue, Unit 17 Lakewood, NJ 08701 Tel. 908.907.0953
Email:earlsdavid@yahoo.com

August 11 , 2011 The Honorable William C. Todd, III, P.J. Ch. Atlantic County Civil Courthouse 1201 Bacharach Blvd. Atlantic City, NJ 08401 Re: Docket # -F--10 Onewest Bank, FSB vs., et al Motion return date Request Cross Motion to Dismiss Complaint Please accept this letter in lieu of a formal brief which is in reply to plaintiff's opposition to defendant's motion for summary judgment. In light of the recent Appellate Division decision in Bank of New York v. Laks, A-4221-09, I am respectfully cross motioning for dismissal of the complaint. In Bank of New York v. Laks, A-4221-09, the Appellate Division stated that the notice of intention to foreclose must identify the lender, not just the loan servicer, or the foreclosure complaint may be dismissed without prejudice. In the case at bar, the notice of intention to foreclose (NOI) mentioned on the face of the letter, IndyMac Mortgage Services, a Division of Onewest Bank, FSB. The date of the letter was August 10, 2010. The complaint states that the mortgage was assigned to the Mortgage Electronic Registration Systems (MERS).See Pleading number 2 of the complaint which can be found at Appendix XII-B2 of Plaintiff's summary judgment motion. In fact Ms.mortgage refers to MERS where it lists the18 digit min number which is located near the top of the mortgage on the right hand side . This can be found in the discovery that was provided by Plaintiff's lawyers. However in the summary judgment motion it was blacked out. In any event, when you type the min number in the mers servicer id page, it states that 1 record matched your search. It lists the

servicer as oneWest Bank, FSB and the investor as Fannie Mae, Washington, DC. The note date on the mers web page is 04/29/2008 and the min status is active. However, no where in the notice of intention to foreclose is Fannie Mae listed as the lender. See attached printout from the MERS web page. Based on the recent ruling in the Appellate Division , this is a fatal flaw and the complaint must be dismissed.By failing to mention Fannie Mae in the complaint, Plaintiff may have violated Rule 4:64-1(b)10 that requiresrecital of all assignments in the chain of title . Another point worth mentioning is that the NOI mentioned that IndyMac Mortgage Services is a division of OneWest Bank FSB which was dated August 7, 2010. If that is a fact then why would they assign themselves the mortgage in October 1, 2010 when they claimed that they held the note already in August, 2010? One can assume that either the assignment of mortgage is fictitious or that perhaps OneWest Bank FSB did not hold the mortgage on August 7, 2010 and if that is so, then who did hold the note on August 7, 2010? A point of contention I have with Plaintiff's lawyers is why did they black out the loan number of the defendant? Every location it mentions a loan number it is blacked out. See Exhibit B of Plaintiff's complaint. Is there something they are hiding or covering up from the Court? Will the loan number lead to another lender or owner? As they are seeking the grant of summary judgment they should be open with the Court and not hide such important information. Such censorship action should not be tolerated by the Court. Based on above analysis, there are genuine issues of material fact precluding summary judgment and based on Bank of New York v. Laks, the complaint should be dismissed without prejudice as it did not mention the true owner of the note that is Fannie Mae.

Sincerely,

Earl S. David cc: