IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DIVISION

Wells Fargo Bank NA. as Trustee for Securitized
023136

C.A. Case No.

Asset Backed Receivables LLC 2006-OP1

Mortgage Pass-Through Certificates,
Series 2006 OP1
Plaintiff,
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.

Respec
tfully submitted,
________________________
John A. Reed

40 Maple Ave..
Centerville, Ohio

45459
937-890-2576

Yotraj@Yahoo.comSERVICE
A true and exact copy of the foregoing has been served this
16th day of August, 2010 via email as follows:
Attys for Plaintif
Amelia A. Bower (0013474)
and
David Van Slyke (0077721)
300 East Broad St., Suite 590
Columbus, Ohio 43235
Via email @ abower@plunkettcooney.com
And dvanslyke@plunkettcooney.com
and
Sara M. Petersmann 0055402
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201-5480
Via email @ attyemail@lsrlaw.com
Atty for Defendant John L. Reed
Thomas W. Kendo
7925 Paragon Rd.
Dayton, Ohio 45459
Via email @ tkendo@midam-title.com

CERTIFICATE OF SERVICE
THE UNDERSIGNED HEREBY CERTIFIES that a true and
correct copy of the foregoing has been forwarded, via U,

Introductory Statement
As an initial matter, Defendant freely acknowledges that Plaintiff
filed this lawsuit in 2008, and much litigation and time has since
ensued, including an appeal and motion for relief from judgment
pursuant to Civ. R. 60(B).
Plaintiff debt collector Wells Fargo Bank as Trustee for Trust
claims to be the real party in interest to foreclose on an alleged
Note and Mortgage created between H&R Block and Defendant
Reed. Defendant Reed has repeatedly disavowed any knowledge of
same.
This does not, however, change the fact that the Court never
had jurisdiction to hear this matter, nor was Plaintiff Wells Fargo
Bank N.A. as Trustee, the real party in interest entitled to enforce
the alleged note and mortgage on February 27th, 2008, the date
Plaintiff filed the foreclosure complaint, nor can it be at any point
thereafter, without Plaintiff having first been assigned or otherwise
been legally vested as the true Holder in Due Course of the note &
mortgage in question. Defendant submits that Plaintiff is not, was
not, and by the Trusts own controlling documents terms and
agreements, could never have been.
Defendant also states that by the terms found upon the alleged
Mortgage itself, as is shown on page one, under the heading
BORROWER COVENANTS:
Borrower warrants and will defend generally the title
to the Property against all claims and demands,
subject to any encumbrances of record.

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.
Debt collector Plaintiff Wells Fargo Bank N.A. as Trustee (WFB)
lacked standing to bring, initiate or invoke this action because it
was not, nor was it allowed to be, the holder of the note or the
assignee of the mortgage at the time it filed suit (explained infra). If
a party does not have standing at the time the complaint is filed, it
is a jurisdictional problem that cannot later be cured.
The question of standing is a threshold question of whether the
party has a personal stake in the outcomeand if that personal
stake does not exist when the lawsuit is filed, the suit must be
dismissed. Plaintiff Wells Fargo Bank N.A. as Trustee had no legal
interest at the time it filed the complaint, and standing cannot exist
without a legal right or claim.
Since the foreclosing bank relied on an alleged after foreclosure
initiation acquired interest in the alleged note and mortgage to
establish its right to enforce the agreements, then I Move the
Court to vacate the judgment in its entirety or to remand back to
the civil court with instruction for same.
I need not proceed under Civ.R. 60(B) because the judgment is
void. The on point decision of the Ohio Supreme Courts
Schwartzwald decision1 states that standing has to exist at the time
the case is filed, and if it does not exist, the jurisdiction of the
common pleas court was not, it could not have been invoked. A
court without jurisdiction cannot enter any judgment (except one
dismissing the case for lack of jurisdiction). A motion to vacate a
void (as opposed to a voidable) judgment is not based on Civ. R.
1 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.)

60(B), it invokes the courts inherent power. Patton v. Diemer, 35

Ohio St. 3d 68 (1988).
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.

Relevant Factual Background

1. On February 27th, 2008 (Ex. A) , Plaintiff filed the
foreclosure complaint in this action.
2. As of March 6th, 2008 the note & mortgage at issue had not
been assigned from whoever the previous holder/owner
was, to Plaintiff herein.
3. On August 26th, 2008 Plaintiff filed a Notice of Assignment
of Mortgage (which contains therein also an Assignment of

Note) (Exh C), which contained a copy of a recorded

assignment of Defendants note & mortgage to Plaintiff.
(The Assignment, attached hereto as Exh. B).
4. Plaintiff recorded the Assignment on March 27th, 2008 or
29 days after the foreclosure lawsuit filing.
5. On November 13th, 2008 the Court granted Plaintiffs
judgment and entered a decree of foreclosure against
Defendant.
Defendant has repeatedly and continuously held that Plaintiff
in the case at Bar lacked the capacity to evoke the jurisdiction of

the court in this action;2 hence Plaintiff lacked standing to initiate

this suit.3

II.

Law and Argument

There are more issues with this post dated assignment

Ex.B than just those addressed in the Schwartzwald Decision.

But thats where we start.
2 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.)

The POST DATED ASSIGNMENT issue # 1.

As is evidenced in Plaintiffs alleged Assignment from
Option One Mortgage Corp. to The Trust the date of the
transference or Assignment of both the Note & Mortgage did not
occur until after the suit to foreclose had already been filed.
In Federal Home Loan Mortgage Corporation v.
Schwarzwald, et al., a case recently decided by the Ohio
Supreme Court, plaintiff bank brought a foreclosure
lawsuit before it obtained an assignment of mortgage
securing defendant homeowners loan. Defendants
maintained that plaintiff lacked standing to sue (much as
Defendant previously contended in this case) because the
assignment of mortgage had not been recorded prior to
the filing of the lawsuit. Plaintiff was assigned the
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.)

mortgage via formal assignment, as here, only after the

filing of the lawsuit. The trial court entered a judgment in
favor of plaintiff, and the Second District Court of Appeals
affirmed.
The Supreme Court reversed, holding that standing is a
jurisdictional requirement that must be satisfied to even
initiate a foreclosure lawsuit:
We recognized that standing is a jurisdictional
requirement in State ex rel. Dallman v. Franklin Cty.
Court of Common Pleas (1973), 35 Ohio St. 2d 176,
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 by
the Court).
(Schwarzwald, attached hereto as Exh. D at para.
22).
Further, the Court stated,
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.
Id. At para. 24 Invoking jurisdiction of the court,
thus, depends on the state of things at the time the
action is brought, and not after. Id. At para. 25.
In reversing the Second District, the Supreme Court included:
The lack of standing at the commencement of a
foreclosure action requires dismissal of the
complaint[.]
Id. At para. 40 (Emphasis added).
Hence, in accordance with the ruling of the Supreme Court
of the State of Ohio, when Plaintiff filed this lawsuit on February

27th 2008, Plaintiff lacked the capacity to invoke the jurisdiction of

the court or in other words, Plaintiff did not have standing to
invoke the jurisdiction of the court because Plaintiff debt collector
had not yet 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.

HISTORY as alleged by the EVIDENCE

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 (Entity A), with the use of an
Allonge (exhibit **) allegedly assigned all of their rights to the note

and mortgage to Option One Mortgage Corporation (Entity B),

(Option One).
Option One simultaneously (using the same Signatory)
creates a secondary allonge (exhibit**) transferring all of their
rights to the note and mortgage to _________________.

Option One then allegedly (there is no assignment proffered

by Plaintiff for this action), through 2 unsigned and
unauthenticated, previously created documents (intent5),
1. titled: Purchase Price and Terms Agreement
(Ex..**) and
2. titled: EXECUTION COPY FLOW AMENDED AND
RESTATED MORTGAGE LOAN PURCHASE AND
WARRANTIES AGREEMENT (Ex**),

4 I would write Blank but according to SEC Law, if I did that then I would be representing that only
Blank was the authorized holder, those would be the same SEC laws which require the word
Bearer to be inserted before this Allonge can be treated as a Bearer instrument.

with which we are lead to believe (without any proof whatsoever)

that Option One does assign/sells/transfers6 all of their rights to the
NOTE & Mortgage to Barclays Bank (Entity C)(Sponsor) who then,
we are led to believe (intent7), bundles the Note & Mortgage along
with approximately 5,000 other like kind investments and uses the
entire bundle to create a new financial instrument called a Special
Purpose Vehicle (SPV), which is designed to be deposited into a
REMIC Trust.
Barclays Bank (Entity C) then, we are then lead to believe,
allegedly sells through a document titled BILL OF SALE Ex _ ;
in consideration of (i) the sum of $1,214,208,.30 (not a
typo!) to be paid to it in immediately available fund by
SECURITIZED ASSET BACKED RECEIVABLES LLC (Purchaser)
and (ii) the Class X, Class P and Class R Certificates issued
pursuant to a Pooling and Servicing Agreement, dated as of
January 1,2006 (the Pooling and Servicing Agreement), among
the Purchaser, as Depositor, Option One Mortgage Corporation,
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.

as servicer, and Wells Fargo Bank, National Association, as

trustee, does as of January 26, 2006 hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser without
recourse, all the Sellers right, title and interest in and to the
Mortgage Loans described on Exhibit A attached hereto and
made a part hereof, including all interest and principal received
by the Seller on or with respect to such Mortgage Loans.

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.

and transfers all of their rights to the contents of the SPV

containing Defendants alleged Note & Mortgage (again without a
physical assignment, no proof of transfer, no proof of negotiation,
no receipt of delivery, etc.) to the securitized trusts Depositor8
Securitized Asset Backed Receivables LLC(Entity D) (SABR),
who then allegedly deposits and transfers all of their interests and

8 Same as Footnote 5 above no signed or authenticated contract.

rights (yet again without a physical assignment, no proof of

transfer, no proof of negotiation, no receipt of delivery, etc.) to the
notes and mortgages in the SPV9 to the Trust (Entity E).

10

9 Same as Footnote 5 above no signed or authenticated contract.

10 It is important here to note that in each transaction listed above, Plaintiff also
proffers no receipts, no delivery acceptance, nothing whatsoever to show proof of
conveyance or transfer or negotiation or sale of, in the end, an alleged $5 Billion
worth of financial instruments from any party to any other party whatsoever.

Option One (Entity B) then alleges (with intent and

scienter11) to have assigned the note and mortgage to Plaintiff
(Entity E) by assignment of Mortgage (ex**) executed March 7th,
2008. Plaintiff had previously initiated suit on February 27th, 2008.
The important aspect from above is the assignment from Entity B
directly to Entity E.
Plaintiff, as represented is the alleged debt collector Trustee
for a securitized REMIC trust titled Securitized Asset Backed

11 Blacks 9th scienter (sI-en-tJr or see-), n. [Latin "knowingly"] (1824)

1. A degree of knowledge that makes a person legally responsible for the
consequences of his or her act or omission; the fact of an act's having been done
knowingly, esp. as a ground for civil damages or criminal punishment. See
KNOWLEDGE; MENS REA. [Cases: Criminal Law C=>20; Negligence (::::J212,
302.] 2. A mental state consisting in an intent to deceive, manipulate, or defraud. - In
this sense, the term is used most often in the context of securities fraud. The Supreme
Court has held that to establish a claim for damages under Rule lOb-5. a plaintiff
must prove that the defendant acted with scienter. Ernst & Ernst v. Hochfelder, 425
U.S. 185,96 S.Ct. 1375 (1976). [Cases: Securities Regulation G:::c60,45, 60.51(2).]

Receivables LLC 2006-OP1 Mortgage Pass-Through Certificates,

Series 2006 OP1, (the Trust).
ASSIGNMENT ARGUMENT 2 (besides Schwartzwald (post
dating))
The lack of proper transfers of the note & mortgage (proper
would be A B, B C, C D and D E) and in fact, the improper
transfers (as in the case at Bar where Plaintiffs Assignment
alleges transfer from Entity B to E), to others creates a series of
document defects and deficiencies that include, but are not limited
to the following:
a) Broken endorsement chains (A B, B E);
b) Original Notes without signatures on endorsements;
c) Notes with skipping endorsements;
d) Notes with endorsements on unattached allonges;
e) Allonges unattached to their original wet-ink notes;
f) Allonges copied and taken from other notes and placed
onto a different note ;
g) Allonges unattached to original notes with blank
endorsements;
h) Notes never endorsed;
i) Allonges never dated;
j) Allonges in blank and pre-executed and undated for later
fill-ins by unknown parties;
k) Double pledges of the same note and/or loan to different
parties;
l) Post-dated assignments of mortgages and notes;

m) Robo-signed assignments of mortgages and notes;

n) Post-dated assignments of mortgages and notes;
o) Assignments executed with no lawful authority;
p) Assignors assigning to themselves;
q) Two different parties claiming the ownership of the same
note/loan.
Can the Trustee Foreclose?
Further, Defendant requests Judicial Notice that in the case
at Bar, it is the Trustee for the Trust that is bringing the
foreclosure suit. Plaintiff Trustee offers no proof of any transfer of
any ownership, or rights or authority from the Trust to the
Trustee12 of/or pertaining to the alleged Note and/or the Mortgage
and/or pertaining to the rights or authority granted to the Trustee,
in the case at Bar to foreclose.
12
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 Barclays Bank! One can only transfer what
one has to transfer.

The above statement is of utmost importance because within

the Trusts controlling document, its Indenture, the Pooling and
Servicing Agreement (PSA), at section 3.15 we find that by
contractual agreement it is not the Trustees position to engage in
any foreclosing related activities, it is instead the Servicers13
obligation. Section 3.15 reads:
Section 3.15 Realization upon Defaulted Mortgage Loans. The Servicer shall use its
best efforts, consistent with Accepted Servicing Practices, to foreclose upon or otherwise
comparably convert (which may include an acquisition of REO Property) the ownership of
properties securing such of the Mortgage Loans as come into and continue in default
emphasis mine

43.

Again, Plaintiff Trustee, an entity separate from yet created

in the entirety from the Trust itself, actions of which are limited by
law and by contract, lacked not only any proper Assignment of the
Note and/or mortgage that is the subject of this action, but also
lacked authority to initiate the foreclosure action which must be
13
Servicer, another separate legal entity hired by the trust to service the document
requirements of the trust. Its duties are outlined with specificity within the trusts
Pooling and Servicing Agreement.

given from 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 court and therefore, Plaintiff had no
standing to initiate this suit which means this suit was VOID ab
initio.
44.

Further, Plaintiff can never suffer a loss or injury as is

required by the Real Party in Interest Rule. As Plaintiff Trustee is

only an incident of the Trust and as the Trust Indenture gives no
rights to Plaintiff Trustee to otherwise obtain, purchase, or hold
legal ownership of any item other than trusts possessions,
Plaintiff Trustee fails to satisfy the U.S. Constitution Article IIIs
standing requirements that a plaintiff must show which require:
(a) it has suffered an injury in fact that is concrete and
particularized and actual or imminent, not conjectural or
hypothetical;
(b) the injury is fairly traceable to the challenged action of
the defendant; and (c) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.
Standing is a threshold issue. Without standing to invoke the
jurisdiction of the court at the initiation of suit, no further
mutterings or protestations of the Plaintiff can be heard for they
are moot.

THE TRUST
The Trust was formed as a vehicle for purchasing mortgage
backed securities and then selling certificates based solely on the
income generated by those monthly principal and interest
payments generated by those notes and mortgages held within the
Trust. The Trust is subject to the terms of the trust indenture
(controlling document) memorialized in a document titled the
Pooling and Servicing Agreement, (the PSA). The PSA was
signed by the Depositor, Securitized Asset Backed Receivables LLC
(SABR), by the Servicer, Option One, and by the Trustee, WELLS
FARGO BANK, NA, and is dated January 1, 2006.
The PSA contractually sets forth the governing law of the
trust and the manner in which mortgages would be purchased by
the trust, as well as the duties of the trustee and the servicer. It is
the trusts own contractual controlling document.
Section 2.01, subsection 1 of the PSA requires that transfer
and assignment of mortgages must be effected by hand delivery,
for deposit with the Trustee with the original note endorsed in
blank.
Section 2.05 of the PSA requires that the Depositor transfer
all right, title, interest in the mortgages to the Trustee, on behalf of
the trust, as of the Closing Date. The Closing Date as provided
in the PSA is January 26th, 2006.
The Date of the Assignment of Mortgage (and Note)
referenced infra, is over 2 years past the date allowed for deposits
into the trust. If the trust does not perfect legal title by taking
physical possession of the notes and mortgages, the Internal
Revenue Code, specifically 26 U.S.C. 860G(d)(1), provides for a

100 percent tax penalty on those non-complying cash flows

severely affecting the Trusts Investors Return On Investment
(ROI).
As listed in the PSA, the Depositor in the case at Bar was
Securitized Asset Backed Receivables LLC ("SABR"). Within the
schema of a securitized MBS (Mortgage Backed Security) REMIC
(Real Estate Mortgage Investment Conduit) trust, the Depositor is
the mandated entity in the title chain that provides the Bankruptcy
remoteness necessary to the Notes and the Mortgages deposited
into the trust, for compliance to obtain the AAA rating with the
securities ratings agencies required by the Trust, and also
mandated for compliance with IRS rule 86014

The Depositor is

also the authorized and designated sole depositor to the trust.

14
IRC 860 requires that, among other things, the REMIC trust be a closed entity and bankruptcy remote. New
Yorks Estate Powers & Trust laws were chosen by RMBS sponsors (in the PSAs) as the controlling statutes to
govern REMIC trusts, as the EPTLs rules and concomitant common law establish common law trusts that
conform the REMIC tax free pass-through requirements. NYSBA NY Business Law Journal |Summer 2012 |Vol.
16 |No. 1 end note 7

In the case at Bar, Plaintiff shows not 1 iota of proof that

said Sponsor, Barclays Bank (Entity C), ever received Defendants
Note and/or Mortgage.
In the case at Bar, Plaintiff shows not 1 iota of proof that
said Depositor (Entity D) ever received Defendants Note and/or
Mortgage OR the alleged and previously allegedly created SPV
(from Sponsor Barclays Bank) containing Defendants alleged Note
and/or Mortgage.
In the case at Bar, Plaintiff shows not 1 iota of proof that
said Depositor (SABR) ever received or deposited the alleged
Mortgage and Note (or SPV) into the Plaintiff Trust.
In the case at Bar, Plaintiff shows not 1 iota of proof that
said Plaintiff Trust ever transferred the alleged Mortgage and Note
to the Plaintiff Trusts Trustee, Wells Fargo Bank N.A. who is the
Plaintiff in this case.
It is essential for the courts to understand that before the
alleged note & mortgage could be placed within any REMIC trust,
each of these steps was mandated by N.Y. E.P.T.L, I.R.C.
requirements AND by the contractual terms found within the PSA
which was signed and agreed upon by the participants of the
securitization. The rules for the 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,15 and to qualify as a REMIC under federal and state
tax codes, the SPV had to meet very stringent requirements. With respect to RMBS
the controlling trust document is known as the Pooling and Servicing Agreement
(PSA). One function of the PSA is to establish the rules governing the trust such
that the trusts activities and management conform to IRC 860. If the trust did not
conform, it could lose its REMIC status and its tax-free pass-through status. 16
NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 pg. 77

15
IRC 860 requires that, among other things, the REMIC trust be a closed entity and bankruptcy remote. New
Yorks Estate Powers & Trust laws were chosen by RMBS sponsors (in the PSAs) as the controlling statutes to
govern REMIC trusts, as the EPTLs rules and concomitant common law establish common law trusts that
conform the REMIC tax free pass-through requirements. NYSBA NY Business Law Journal |Summer 2012 |Vol.
16 |No. 1 end note 7

16
If a tax-free pass-through trust lost its REMIC status, the tax penalties to an investor that purchased certificates
would be devastating. It would also trigger an event called a put back. There was considerable argument over
whether these trusts were business trusts or common law trusts, but the trend appears to be a judicial recognition
that they are in fact common law trusts. NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 end note
8

The Trusts agreement (known as the Pooling and Servicing

Agreement (PSA)), the trusts indenture17, sets forth in its entirety
how the trust acquires and is allowed to acquire its assets and the
Trust agreement sets forth both powers and the limits of the
powers of the Trust and the Trusts participants.

17
Blacks 9th. trust indenture. 1. A document containing the terms and conditions
governing a trustee's conduct and the trust beneficiaries' rights. - Also termed
indenture of trust. [Cases: Trusts C=> 19-29.] 2. See deed of trust under DEED.

The PSA18 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.19

(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;

18
The Trusts Pooling and Servicing Agreement is a Public Document available here
http://www.secinfo.com/dRSm6.v8h.d.htm

19
Note: indeed NY EPTL law requires recordation of the note before its acceptance as a part of the trust
is consummated.

(vi)

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

(vii) the original mortgagee title insurance policy ...

(viii) the original or, if unavailable, a copy of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage (if provided) ...

Plaintiff proffers no series of endorsements of the alleged

promissory note reflective of each party who had an alleged
ownership interest in the alleged promissory note.

Further, this chain of endorsements, or rather the lack

thereof, in order to comply with this Trusts PSA, would have had
to be complete on or before the closing date of the trust specified
within the PSA of this securitization but in no event more than 90
days from the closing 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. In the case at bar,
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. As such, in the case at Bar, should the
Assignment of Mortgage to Plaintiff be deemed legitimate, then the
Plaintiff Trustee would be a non legal entity. In essence its a catch22. Either way, Plaintiff lacked the capacity to invoke the
jurisdiction of the court to initiate their action.
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.
Assuming the note and/or mortgage at issue could somehow
retroactively be properly and legally deposited into the Trust, the
Court should also be made aware that Sections 2.07 d., e., h., 3.01
c., 3.17 (h), 5.02, c, 8.11 of the PSA are all specific to the case at
bar which set forth further explicit restrictions on the powers of
the Trustee, Depositor and the Servicer of the trust and which
prohibits the Trustee, Depositor and the Servicer from taking any
action which would jeopardize the REMIC status of the Trust. The
production of the post dated, forged and fabricated Assignment of
Mortgage is itself a prohibited action. These types of limitations
are common and are present in this or a similar form in every
pooling and servicing agreement which seeks to create a
securitized trust that can claim the tax benefits of REMIC status
under the US Tax Code.
Any attempt to accept a transfer of this alleged Promissory
note after the January 26, 2006, plus 90 day closing date of the
trust would have violated both SEC code 424 & 1122 and the
REMIC provisions of the IRS tax code 26 USC 860 A thru F -for a
number of reasons.
a. First, the alleged loan is in default at this time.
Therefore the alleged loan cannot be a qualified
mortgage loan under the IRS tax code because a
qualified mortgage loan is a performing mortgage loan.
b. Second, an attempted transfer to the trust is now at a
point in time after the closing day of the Trust and after
the certificates were issued, in effect, the Plaintiff would

be claiming to have transferred an asset to a trust that

had by its own terms been closed for more than 2 years at
the time the alleged transfer took place.
c. Third, the alleged promissory note was never endorsed
to the Trust by the Depositor and as such is devoid of the
required chain of endorsements required within the PSA
and which any reasonable market participant would
expect to be present for the purposes of establishing the
series of true sales set forth in the PSA to establish a
whole and complete chain of title of the promissory note
for the purposes of bankruptcy remoteness.
d. Fourth, The claim that the alleged note has been
transferred to the Trust only because it is endorsed in
blank simply flies in the face of the mandatory terms of
the PSA and N.Y. E.P.T.L. and is an extreme deviation from
the industry standards, customs and practices which
prevailed at all times material to this transaction and
which prevail today.
e. Fifth, any transfer allowed to be accepted into the trust
past the trusts own cut-off date of deposits invokes the
rather draconian IRS mandate of taxing the REMIC trusts
assets not at the favorable rate of 0% that they now enjoy,
but at the rate of 100% of the value of their assets
causing, massive financial losses to the Certificate Holder
Investors.
Equally, by allowing a Deposit into the trust after the trusts
closing date as Plaintiffs Assignment of Mortgage alleges,
Plaintiff Wells Fargo Bank as Trustee again violates the plain

language found within the PSA at section 8.11 titled Tax Matters
section (j) para. 6 which reads in part;
Neither the Servicer nor Trustee shall (i) permit the creation of any interests in
any Trust REMIC other than the regular and residual interests set forth in the
Preliminary Statement, or (iii) otherwise knowingly or intentionally take
any action, cause the Trust Fund to take any action or fail to take (or fail to cause
to be taken)any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (A) endanger the status of any Trust REMIC as a
REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the
Trust Fund (including but not limited to the tax on "prohibited transactions" as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a Trust
REMIC set forth in Section 860G(d) of the Code, or the tax on "net income from
foreclosure property") unless the Trustee receives an Opinion of Counsel (at the
expense of the party seeking to take such action or, if such party fails to pay such
expense, and the Trustee determines that taking such action is in the best interest
of the Trust Fund and the Certificateholders, at the expense of the Trust Fund, but
in no event at the expense of the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund or any Trust REMIC created
hereunder, endanger such status or, unless the Trustee determines in its sole
discretion to indemnify the Trust Fund against such tax, result in the imposition of
such a tax).

To Summarize, (The closing date of this trust was January

26, 2006. The creation date of Plaintiffs Assignment of Mortgage
is March 7, 2008 or 25+ Months past the trusts closing date) as
such it is in violation of the trusts own controlling document, the
Pooling and Servicing Agreement (PSA), I.R.C. regulations and the
trusts controlling law, N.Y. E.P.T.L. and is VOID. Plaintiffs and
Plaintiffs counsel clearly show scienter by having acted in
contravention to the trust by;
1. creating or manufacturing, (forgery with intent to
defraud (intent & scienter))
2. attempting the use of (distribution) and (intent to fraud)
3. actually submitting (selling) false, forged and
fraudulent documents within this very Court of Law and

Equity, evidenced not only by their late creation date as

it concerns legal standing to invoke the jurisdiction of
the Court, but also in contravention of IRS REMIC Law
as explained above and again within the PSA at Section
8.11 Tax Matters (g) which reads;
(g) not knowingly or intentionally take any action or
omit to take any action that would cause the
termination of the REMIC status of any Trust REMIC
created hereunder;
4. Making false statements to the Court
Nemo dat quod non habet
One can only give/assign and/or transfer that which one has
to give/assign and/or transfer. Only the legitimate rights of the
transferor can be transferred to the transferee.
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).
In so doing the above, in violation of the law, codes, rules &
regulations articulated above, Plaintiff also acted in violation of
the Fair Debt Collection Practices Act. The allegations above are
re-alleged and incorporated herein by reference.
Defendant John A. Reed incorporates by reference all of the
proceeding and foregoing allegations in the entirety of Defendants
answers & pleadings as in regard to the Complaint in its entirety
and from its inception.

The POST DATED ASSIGNMENT 2

As is referred to above, Plaintiffs Assignment of Mortgage
(and Note) was created on March 7th, 2008. The Plaintiff Trust, by
virtue of its REMIC status has what is called a Cut-Off date. The
Trusts cut-Off date is the date in which the Trust is mandated by
law to stop accepting deposits into it. Aside from the creation post
foreclosure issue related above, by the terms of the Trusts own
PSA, 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".

No possession of the Asset exists until there has been a

delivery and an acceptance of the Asset and the giver of the Asset
has relinquished all dominion and control over the Asset signifying
a true sale of the Asset to the Plaintiff Trust thereby making the
Asset, inter alia, bankruptcy remote and securely within the Trust
Vault.
Plaintiffs proffered Assignment in the case at Bar proves
only that it was a forged and fabricated document created solely
for the purpose of facilitating the easy theft of Defendants home
within a Court of Law and the use of the Court in the laundering of
the illegal paperwork used to create the alleged Note & Mortgage
and subsequent alleged MBS Investment Trust.
The Trust is a REMIC Trust

The Trust was formed as a REMIC trust.20 Under the REMIC

provisions of the Internal Revenue Code (IRC) the closing date of
the Trust is also the startup day for the Trust. The closing
date/startup day is significant because all assets of the Trust are
mandated to be transferred to the Trust on or before the
closing date to ensure that the Trust received its REMIC status.
The IRC provides in pertinent part that:
Except as provided in section 860G(d)(2), if any amount is contributed to a
REMIC after the startup day, there is hereby imposed a tax for the taxable year of the
REMIC in which the contribution is received equal to 100 percent of the amount of
such contribution.
26 U.S.C. 860G(d)(1).

20
The Internal Revenue Code provides that the terms real estate mortgage investment
conduit and REMIC mean any entity(1) to which an election to be treated as a
REMIC applies for the taxable year and all prior taxable years, (2) all of the interests
in which are regular interests or residual interests, (3) which has 1 (and only 1) class
of residual interests (and all distributions, if any, with respect to such interests are pro
rata), (4) as of the close of the 3rd month beginning after the startup day and at all
times thereafter, substantially all of the assets of which consist of qualified mortgages
and permitted investments.

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 VOID by the terms found within the PSA
and by N.Y. E.P.T.L. & I.R.C. regulations.21
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).
21
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).

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 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 proffered22 no evidence of Depositors depositing
22
Blacks 9th proffer (prof-dr), vb. (l4c) To offer or tender (something, esp. evidence) for immediate

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
acceptance. [Cases: Criminal Law C':.:o670; Federal Civil Procedure 2013; Trial (7.::>44.]- proffer, n.

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.
Plaintiff debt collector offers only 3 signed documents, just 3
pieces of paper attesting to their alleged legitimacy to foreclose,
their right to be PETE. Those documents are:
1.

the post dated, post created and filed with the court
months after foreclosure initiation, Assignment of

Mortgage which is Robo-Signed23 by a known

Robo-Signer24 named Ms. Topaka Love.25
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

23
we now have a legal definition of "Robo-signer" from the U.S.C.O.A. for the 5th Circuit (TX) in the case of
REINAGEL v. DEUTSCHE BANK NATIONAL TRUST COMPANY, No. 12-50569 (5th Cir. Oct. 29, 2013). The
court defined "Robo-signing" as follows;
"Robosigning is the colloquial term the media, politicians, and consumer advocates have used to describe an
array of questionable practices banks deployed to perfect their right to foreclose in the wake of the subprime
mortgage crisis, practices that included having bank employees or third-party contractors: (1) execute and
acknowledge transfer documents in large quantities within a short period of time, often without the purported
assignors authorization and outside of the presence of the notary certifying the acknowledgment, and (2) swear
out affidavits confirming the existence of missing pieces of loan documentation, without personal knowledge and
often outside of the presence of the notary."

24
In January 2011, John L. OBrien, Register of the Essex Southern District registry of Deeds in Salem,
Massachusetts (Register OBrien), commissioned McDonnell Property Analytics, Inc. (MPA) to conduct a
forensic examination to test the integrity of his registry due to his concerns that: 1.) Mortgage Electronic
Registration Systems, Inc. (MERS) proclaims that its members can avoid recording assignments of mortgage if
they register them electronically in the MERS System; and 2.) due to the robo-signing scandal spotlighting
Linda Green an employee of Defendant DocX, LLC as featured in a 60 Minutes expose on the subject which
first aired on April 3, 2011.
A true and correct copy of my report entitled Forensic Examination Of Assignments Of Mortgage Recorded
During 2010 In The Essex Southern District Registry Of Deeds, which I released on June 28, 2011, is available on
Register OBriens website at: http://salemdeeds.com/pdf/Audit.pdf.

3.

The unattached Allonge from Option One Mort. Corp.

to ______________.

Defendant submits new evidence in this case in the form of

an Affidavit attesting to the Robo-signing (explained infra) of both
Plaintiffs Assignment of Mortgage and Plaintiffs Affidavit of
Status of Account and Military Status marked Exhibit __..

25

John L. OBrien, Register of the Essex Southern District registry of Deeds in Salem, Massachusetts publishes a
list of known Robo-Signers at his website at http://www.salemdeeds.com/robosite/pdf/robosigners.pdf. Ms. Loves
name appears on page 2, Column B, Row 23.

THE ALLONGE
On or about June 9, 2005, as the evidence of record shows
Mr. Reed's alleged original lender, H&R Block Mortgage Corp.,
claims that through the use of an alleged executed endorsement
which was unattached, is incomplete, is non-authenticated by
affidavit, and is left unexecuted Pay to the Order(as in existing
distinctly separate under law from bearer paper) document
entitled allonge dated June 9, 2005 from Option One to
__________.26

It is Defendants position that along beside the known bogus,

forged and fabricated Assignment of Mortgage referenced above,
the proffered Allonge from Option One Mort. Co. to blank is
also a fraud and a sham created solely to represent to this Court
26
Comments Of Nye Lavalle To Florida Supreme Court Page 52 Nye Lavalle, Pew Mortgage Institute, 407/9689097 mortgagefrauds@aol.com
243. In fact, a common industry practice was to create an unattached and an undated endorsed in blank piece
of paper the industry wrongly inferred was an allonge! 244. The unattached piece of paper with an executed
endorsement upon its face would then be placed in a file with or without a note, scanned and imaged into an
imaging system and then discarded, destroyed, concealed, or even later attached if necessary, upon default by a
borrower when a servicer needed to create evidence of note ownership or holder status. 245. Under UCC Article 3,
indorsement means a signature on an instrument, not on a blank piece of paper. 246. In order for the
endorsement on an allonge to be valid, the proper document custody process that should have been followed was
to: a) determine if room existed on the last page of the note or its backside to see if any room existed for the
endorsement; b) only if no room existed, a blank piece of paper should be firmly affixed to the last page of the
original wet-ink note, so as to prevent its removal and replacement; c) the first page on the face of the note should
then be stamped Allonge property address, loan number etc. should be placed upon the blank piece of paper; and
then e) the endorsement stamp and signature should be placed on the affixed piece of paper to the note (i.e. an
allonge). 247. An unattached to an original note blank piece of paper is not an allonge. An unattached to an
original note blank piece of paper with an endorsement on its face is not an allonge either. If the endorsement is
placed upon the blank piece of paper and then the endorsement and signature are placed on the blank piece of
paper while unattached, all someone has endorsed was the blank piece of paper, not the original note itself. 248.
Darrell W. Pierce is a Michigan lawyer for the national law firm of Dykema Gossett. Mr. Pierce served as member
of the Article 9 Study Committee for the Permanent Editorial Board for the Uniform Commercial Code, as Chair
of the Article 9 Filing Project and as the primary drafter of the International Association of Commercial
Administrators Model Administrative Rules for Article 9 filing offices. He is a frequent lecturer and writer
regarding UCC matters. 249. Mr. Pierce authored an article for the Association of Corporate Counsel titled
Allonges: Separate Indorsements Not Effective Unless Affixed. In this article, Mr. Pierce exposes the lenders
dirty secret of the motives and use of allonges by the mortgage industry when he writes:

Plaintiffs interest in an alleged Note & Mortgage which in truth

has no legal value whatsoever except to prove Plaintiffs and
Plaintiffs Counsels willingness to forge, to fabricate, to create and
bring into this court fraudulent documents created solely to induce
the Courts bias at Defendants (and the Courts) expense.
The Wells Fargo Manual
Secured lenders routinely take pledges of instruments (including negotiable instruments under UCC Article
3 and other promissory notes) as collateral. Instruments are subject to special priority rules.
Security interests perfected merely by filing a UCC1 financing statement are junior to security interests
perfected by possession, without regard to time of filing or possession.
Security interests perfected by control (possession plus indorsement) are senior to those perfected merely
by filing or possession. Accordingly, secured parties who are relying on instruments as collateral will want to
have control over the instruments.
Instruments may be indorsed to secured parties, but it is a cumbersome process that has to be unwound
when the loan is repaid as expected. It is, therefore, convenient and common practice to have the requisite
indorsements supplied on a separate piece of paper. This keeps the instrument clean so that it can be
returned clean when the secured obligations are paid. The separate piece of paper is kept with the
instrument but is not typically attached to it, though the lender or its custodian has authority to do so, at
least upon default.
This practice works well in most cases. Even though the lender is not yet a holder under Article 3,
because the indorsement is not attached, the lender has possession and the related loan documents
should cause the lender to be a nonholder in possession of the instrument who has the rights of a
holder, that is one who can enforce the instrument as such under UCC 3-301 , and compel
indorsement under UCC 3-203.
In addition, secured parties in (mere) possession have priority over other secured parties except those
who have control (possession plus indorsement), so the failure to achieve full control does not normally
impair priority (no one else will have possession except in rare cases). UCC 9-330(d).
So, even if a separate indorsement is not initially affixed to an instrument, a secured party in Attached;

d) identifying information on the note such as origination date, borrower name,

possession normally maintains first priority and has the power to negotiate the instrument upon
default.
There are occasions, however, when having an indorsement is critically important. One would be the
relatively rare case where one competing secured party has possession for itself as well as for the other
competing secured party, so both would be in possession and priority could depend on the effectiveness of an
indorsement. Another would be where the maker of a negotiable instrument has defenses against the named
payee but the secured party, with the indorsement, would be a holder in due course. Yet another would be an
assignment of a note or a casual pledge where the related documents do not clearly provide the lender with
the rights of a holder.
Under UCC Article 3, which applies to negotiable instruments (as defined in Article 3) and which
is commonly applied by courts to non-negotiable instruments, indorsement means a signature on an
instrument For the purpose of determining whether a signature is made on an instrument, a paper
affixed to the instrument is a part of the instrument. UCC 3-204(a) (emphasis supplied). Under this
rule, a separate assignment document is not sufficient to create the requisite indorsement, unless it is
affixed to the instrument.
Some Michigan assignees found out the hard way how important it is to have ones separate indorsement
affixed. In one case, a separate indorsement was not attached to the note in question and the assignee was
unwilling to produce the underlying assignment of loans agreement. The court held the separate indorsement
was not effective and, because it referenced the unproduced underlying agreement, it did not prove an
absolute assignment was intended. Brown Bark, II, LP v. Bay Are Floor Covering & Design, Inc., Case No.
296660, (Mich. Ct. App. May 31, 2011). In the other case, the assignee ultimately had two problems after it
took a note and placed it in an envelope with a separate indorsement. Not only was the separate indorsement
ineffective because it was not affixed to the note, it turned out the note was in fact a color copy of the
original note, so the assignee did not even have possession of the note. Without ever having had possession,

Defendant submits new and previously unobtainable

evidence in this case of Plaintiff Wells Fargo Banks recently
publicly published, in house manual titled Wells Fargo Home
Mortgage Foreclosure Attorney Procedure Manual, Version
1 proving scienter through a pattern and practice of Plaintiffs
and Plaintiffs Counsel in the creation of forged and fraudulent
documents created solely to allow Plaintiff and Plaintiffs Counsel
to fraudulently steal free homes from homeowners when they
lacked the legal right to do so because they lacked the mandated
proof to accomplish it legally.
A distinguished colleague, New York bankruptcy attorney
Linda Tirelli has been working in exposing these remediation
practices. Their ta-da Perry Mason-like moments of evidence all
of a sudden appearing in foreclosure and bankruptcy litigation are
not amusing. On March 12, 2014, the New York Post published a
story on Ms. Terellis work wherein it wrote:
Wells Fargo, the nations biggest mortgage servicer, appears to have set up
detailed internal procedures to fabricate foreclosure papers on demand,
according to allegations in papers filed Tuesday in a New York federal court. In a
filing in New Yorks Southern District in White Plains for a local homeowner in
bankruptcy, attorney Linda Tirelli described a 150-page Wells Fargo
Foreclosure Attorney Procedures Manual created November 9, 2011 and
updated February 24, 2012. According to court papers, the Manual details a
procedure for processing [mortgage] notes without endorsements and
obtaining endorsements and allonges.

The Wells Fargos manual Ms. Terilli speaks of is even more

disconcerting when you review just a few of the steps in its
numerous processes as reflected below:
Attorney: If an allonge is still needed after a note has been
endorsed, forward the allonge attachment to Wells Fargo
the assignee did have standing to enforce the note as a lost note under UCC 3-309. Shaya v. Karam, Case
No. 308905 (Mich. Ct. App. May 6, 2014). Pledgees and other assignees of notes need to ensure that original
notes are delivered to them, and if indorsements are separately provided, that transaction documents properly
authorize them to attach the separate indorsements when appropriate.

Default Docs area via email address

Defaultallongemailbox@wellsfargo.com and add step Y44,
ATTORNEY REQUESTED ALLONGE, to FOR3
WFHM Default Docs Team: If property is located in an original
doc state and attorney has the original note, review the
allonge attachment to determine if we have signing authority
to execute internally.
If WFHM does have signing authority, enter log code FCALGI
(ALLONGE SENT FOR INTERNAL SIGNATURE)
If WFHM does not have signing authority, enter log code
FCALGE (ALLONGE SENT OUT FOR EXECUTION) and mail
document for 3rd party signature.
After allonge has been executed, enter log code FCALGA
(ALLONGE COMPLETED/RETURNED TO ATTORNEY).
Complete the Y44 actual date with the date allonge was
returned to attorney.

The Wells Fargo manual may be reviewed and downloaded at

http://stopforeclosurefraud.com/wpcontent/uploads/2014/03/foreclo
sure_attorney_procedure_manual-1.pdf.
This manual, is the foundation for the strong rebuke of Wells
Fargo in the recent 30- page opinion of Federal Bankruptcy Judge
Robert Drain in New Yorks Southern District wherein in his
opinion, Judge Drain stated with emphasis:
[T]he blank indorsement, upon which Wells Fargo is
relying, was forged, Nevertheless it does show a general
willingness and practice on Wells Fargos part to create
documentary evidence, after the-fact, when enforcing its
claims, WHICH IS EXTRAORDINARY,
This was on the heels of another major defeat for Wells Fargo
wherein a family who had actually paid off their mortgage was
unlawfully foreclosed on by Wells Fargo and the Judge awarded

over $3 million in punitive and compensatory damages by Judge R.

Brent Elliott of Missouris 43rd Judicial Circuit.
In this Missouri case, the automated robotic foreclosure,
evidence and witness process was in perfect focus for this
Honorable Court to understand when the corporate witness for
Wells Fargo testified that:
Im not here as a human being. Im here as a
representative of Wells Fargo.
In his opinion attached as Exhibit H, Judge Elliott chastised
Wells Fargo for their outrageous and reprehensible decisions and
deceptive and intentional conduct that displayed a complete and
total disregard for the rights of the borrowers. He went on to state:
Defendant Wells Fargo operated from a position of
superiority provided by its enormous wealth. Wells
Fargos decision took advantage of an obviously
financially vulnerable family,
the judge continued, noting that Wells Fargo showed no evidence
of remorse for the harm caused. The judge wrote.
In fact, the Court recalls the lack of remorse and
humanity illustrated by a Wells Fargo corporate
representative who testified, Im not here as a human
being. Im here as a representative of Wells Fargo,
The ROBO-SIGNED DOCs.
When Plaintiff, several months after initiating foreclosure,
introduced into the court record a forged and fabricated, back
dated and Robo-Signed document titled Assignment of Mortgage,
Plaintiffs Counsel certified the legitimacy of a document that
could, by the very terms within the controlling document of the
Trust (PSA) itself, never possibly exist.

This document is titled Assignment of Mortgage. Upon

inspection though, this document is in reality not only the alleged
assignment of the alleged mortgage but also the alleged
assignment of the alleged note.
Also upon inspection it can be found that this document was
attested to and signed by one Ms. Topaka Love. Ms. Love is an
employee of Lender Processing Services in Dakota County,
Minnesota and as such the AOM was also fraudulently signed by a
person who had no authority to sign. It is patently fraudulent and
is an obvious forgery and as explained infra it was executed two
years after the Plaintiff trusts mandated Cut-Off date for
deposits and after foreclosure initiation.
Mortgages may be enforced only by, or on behalf of, the
entity that is entitled to enforce the obligation the mortgage
secures. The underlying obligation in all cases is a promissory note.
The mortgage is the security instrument that secures the
indebtedness created by the note to the real property.
The practice of Plaintiff Wells Fargo Banks use of
unauthorized document forgers in Affidavit & Assignment of
Mortgage creation is now common knowledge. It is a matter that

has even been unaffectionately termed Robo-Signing27

28

AND

now through common knowledge of Plaintiff Wells Fargo Banks

Public admissions (and payment of $ Billions in fines concerning
same) of participation in that very same illegal action on a daily,
monthly and yearly basis, Defendant submits and requests the
Courts Judicial Notice of the recently and previously unavailable
Affidavit and accompanying letter attached hereto as Exhibit F
stating in part;
In an attempt to provide you with more assistance, I have enclosed, an affidavit
signed by me, as Register of the Southern Essex District Registry of Deeds, attesting
to the presence of a robo-signed signature on your document as listed on McDonnell
Property 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.

The above referenced Affidavit attests to the unlawful and

known Robo-Signer signature status of Plaintiffs Assignment of
Mortgage (Ex E) as well as signature status of Plaintiffs sole
27

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.

proffered and alleged legal conclusory Affidavit titled STATUS OF

ACCOUNT AND MILITARY STATUS AFFIDAVIT (Ex. __) which
are both signed by one Ms. Topaka Love, as was previously
articulated to this Court by Defendant in all of Defendants
previous pleadings. The above mentioned forged, fraudulent and
conclusory Affidavit and Assignment of Mortgage are 2 of the
three solely signed documents Plaintiff presented to the court in
their case to establish their alleged ownership of the alleged Note
& Mortgage and their subsequent right to initiate this foreclosure
suit against Defendant.
The above Love conclusory affidavit represents that it is
based on Loves familiarity with Defendants account stating
Affiant has access of and has personal knowledge of the accounts
of said company, and specifically with the account of John L. Reed,
defendant herein. Love also avers that said account is in default
and that plaintiff has elected to call the entire balance of said
account due and payable... While the Love Affidavit states that
28

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."

Loves personal knowledge is limited to her review of Option One

Mortgage Co. as Servicing Agent for Plaintiff, Love fails to identify,
describe or annex the particular business records upon which her
limited knowledge is based.
Significantly, the Love Moving Affidavit makes the conclusory
representation that plaintiff has been in continuous possession of
the note and mortgage since prior to the commencement of this
action without providing any factual details, or the source of Loves
knowledge. In addition to a lack of foundation, the Love Moving
Affidavit fails to provide evidence that the originating lender, H&R
Block Inc., indorsed and physically delivered the alleged Reed
Note, through the proper and mandated legal processes necessary
to effectuate a true transference of ownership with complete rights
and interests thereof to each participant in the securitization chain
and then finally to the Asset Backed Receivables Trust as is a
requirement found within the PSA, a requirement of N.Y. E.P.T.L.
and a requirement of IRC.
Defendant has repeatedly denied plaintiffs actions on the
ground that Plaintiff Wells Fargo Bank as Trustee for trust lacks
standing to foreclose.
Specifically, Defendant contends and has always contended in
each and every of his pleadings that Ms. Love also lacked the
actual authority to execute the Option One Assignment.
The above referenced affidavit of John Obrien, combined with
the several other factual inconsistencies the Defendant has

previously articulated to this Court29

30 31 32

, prove beyond any

doubt that Plaintiffs position, a position which is completely void

of legal standing to have initiated this foreclosure action against
Defendant, could not have been accomplished without the use of,
as was previously articulated by Defendant,33 forged and
fraudulently created documents, created specifically by and
29

Answer of Defendant John Reed (5/26/2008) 8, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, and throughout the
rest of the pleadings.

30

Answer of Defendant John A. Reed Memorandum in Opposition to Plaintiffs Motion For Summary Judgment
and Request For Trial By Jury (filed Aug, 15th, 2008) The opening statement Firstly, You Honor, the plaintiff
hasnt even proven that it owned or held the promissory note which is the subject of the complaint 1, 2,

delivered into this Court while being Certified by Plaintiffs

Counsel as being true, just and accurate for the sole purpose of
blinding this Court to the legal realities of their 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

31

Each and every other pleading submitted by Defendant and already a part of this legal actions record.

32

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..

MOTION TO APPEAL THE DECISION, ORDER AND ENTRY OVERRULING DEFENDANTS

EMERGENCY AMENDED MOTION TO VACATE A VOID JUDGMENT in its entirety

33

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, .

As a result, the Courts November 13th, 2008 entry granting

Plaintiffs motion for judgment and issuing a decree of foreclosure
is void ab initio (as opposed to voidable).
Accordingly, based upon the foregoing, Defendant
respectfully requests that the November 13th 2008 entry be vacated
and this matter remanded back to the Civil Court with instruction
to dismiss, instruction to quiet title and each of Defendants
Counterclaims to be lawfully adjudged.

Respectfully submitted,

________________________
John A. Reed

40 Maple Ave.
Centerville, Ohio 45459
937-890-2576
Yotraj@Yahoo.com