IN THE SUPERIOR COURT OF WASHINGTON FOR CLARK COUNTY

In re:
Case No
OCCO and REBECCA DEJONGH,

Petitioners,
and PLAINTIFF’S RESPONSE TO
DEFENDANTS’ MOTION FOR SUMMARY
LAWYERS TITLE INSURANCE JUDGMENT
CORPORATION, a foreign company doing
business in Washington State, and HSBC
BANK USA, NATIONAL ASSOCIATION, a
foreign corporation doing business in
Washington State, and NOMURA HOME
EQUITY LOAN, INC. ASSET-BACKED
CERTIFICATES, SERIES 2006-FM 1, a
foreign corporation doing business in
Washington State,

Responde
nts.

COMES NOW the Plaintiffs, Occo and Rebecca DeJongh, by and through their counsel of

record, Gavin Flynn, Attorney at Law, and responds to Defendants’ Motion for Summary

Judgment by stating that the Respondent-Counter-Plaintiff lacks standing to bring a foreclosure

against the Plaintiffs under the applicable law because they have failed to demonstrate ownership.

Plaintiffs respectfully request that the court deny Defendants’ Motion for Summary Judgment.

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 1 Fax: (360) 883-9361
 OVERVIEW

On one level, this is a complicated case, as it involves two trust relationships, and also

because it necessarily hinges upon the laws of two states, Washington and New York. But on

another level, this is a simple case that hinges on ownership and ordinary rules of evidence.

The first trust relationship is that set up under the Deed of Trust executed by the DeJonghs

and is governed by Washington State Law. The second trust relationship was formed when Nomura

Home Equity Loan created a REMIC trust under New York laws. As will be shown in greater

detail below, the terms of the second trust (hereinafter “REMIC trust”) determine that the DeJongh

Note and Deed of Trust is not a part of the Nomura REMIC trust assets, which means that Nomura

is not the owner of the Note and Deed of Trust and has no standing to pursue a foreclosure.

Judicial Foreclosure

Under Washington law, the foreclosing party must demonstrate why they are entitled to

pursue the foreclosure, i.e., that they are the current owner of the promissory note and mortgage. 18

WA PRAC: REAL ESTATE § 19.5 (emphasis added). For all the Defendant’s talk at the last

hearing about how commercial paper is negotiable even by a thief, Defendant misses the point,

which is that a thief cannot sue in a court of law to enforce a stolen check; one must be an owner.

Black’s Law Dictionary defines “owner” as “One who has the right to possess, use, and

convey something; a person in whom one or more interests are vested. An owner may have

complete property in the thing or may have parted with some interests in it (as by granting an

easement or making a lease). SEE OWNERSHIP.” Black’s Law Dictionary 1214 ( 9th ed., 2009).

“Ownership is defined as: “The bundle of rights allowing one to use, manage, and enjoy property,

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 2 Fax: (360) 883-9361
including the right to convey it to others. … ‘Possession is the de facto exercise of a claim;

ownership is the de jure recognition of one. A thing is owned by me when my claim to it is

maintained by the will of the state as expressed in the law; it is possessed by me, when my claim to

it is maintained by my own self-assertive will.’” Black’s Law Dictionary 1215 ( 9th ed., 2009).

Because defendant only submits evidence of possession of the note, without clear evidence

of legal ownership, they fail to demonstrate the necessary element to pursue judicial foreclosure of

showing that they are the current owner of the promissory note and mortgage.

In Washington, one must have standing to pursue a judicial foreclosure. The common law

doctrine of standing prohibits a litigant from raising another's rights. Fire Prot. Dist. V. City of

Moses Lake, 145 Wn.2d. 702, 713 (2002).

HSBC claims that as Trustee of the Nomura REMIC trust, it is authorized to foreclose on

assets of the trust. To have standing to pursue a foreclosure, it is necessary that HSBC show more

than mere possession of the Note. It necessarily must provide admissible evidence that the

DeJongh’s Promissory Note and Deed of Trust were properly assigned to the Nomura REMIC trust.

However, nowhere in the Motion for Summary Judgment does the Defendant provide a

copy of any assignment of the Deed of Trust or Note to HSBC or Nomura Home Equity. In fact,

they do not argue assignment of the Deed of Trust in their argument, and appear to rely solely upon

possession of the Note endorsed in blank. While possession of a bearer note may be sufficient in a

purely commercial setting, possession is not what the law in Washington requires in order to pursue

a judicial foreclosure; Washington law requires ownership. 18 Wa.Prac. §19.

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 3 Fax: (360) 883-9361
 Without showing a valid assignment of the Deed of Trust and Note, the Defendants have

failed to demonstrate that fundamental element of standing, and their motion for summary

judgment should be denied.

As will be shown in greater detail below, the documents provided by the Defendant

demonstrate that the DeJongh Note and Deed of Trust were never made a part of the REMIC trust.

Since the REMIC trust has no legal interest in the property, the Defendants lack standing to

foreclose upon the DeJongh property.

REMIC Trusts and Strict Adherence to Indentures

To help understand why the Nomura REMIC trust has no interest in this property, it is

important to give a bit a background about what REMIC trusts are and why their own rules (the

trust indentures) are interpreted so strictly, even when it could mean that the REMIC trust does not

receive property it otherwise could have claimed. REMIC trusts are specially created trusts which

receive preferential status under the US Tax Code. 26 USC 860. Should a REMIC trust violate the

provisions under the Code, the IRS will treat them as an ordinary corporation, and they will lose

their preferential tax status, leaving them liable to possibly millions in tax liability. Because of this,

REMIC trusts are very careful to abide by the requirements of the Tax Code.

What happens when a Trustee for a REMIC trust unwittingly enters a transaction that

violates the Tax Code? Are they now liable for millions in additional taxes? The answer to those

questions would need to be resolved by the laws of the State in which the REMIC trust operates.

Here, by the terms of the Trust itself, New York substantive law governs.

“THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND

GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn
DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 4 Fax: (360) 883-9361
 APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD
TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF OTHER THAN THE
PROVISIONS OF SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.”

Securitization Pooling and Servicing Agreement (hereinafter

“PSA”) §11.03 (emphasis in original); see also Declaration of Colin
Davis.

According to the New York cases that have dealt with this situation, when a Trustee acts in

contravention to the indentures, the Trustee’s action is void. Dye v. Lewis, 326 N.Y.S.2D 581, 68

Misc.2d 434 (N.Y.Sup. 1971) (The authority of a trustee to whom a mortgage had been delivered

under a trust indenture was subject to any limitations imposed by the trust instrument, and every

act in contravention of the trust was void.); Warren's Weed New York Real Property 14‐140 §

140.58 (“It is a fundamental principle of trust law that the instrument under which the trustee

acts is the charter of his rights. Therefore, in administering the trust, he must act in accordance

with its terms. This rule applies to every kind of trustee, regardless of whether the trustee is to

hold, invest or pay over income, or to sell or liquidate for the benefit of creditors.”).

In short, if an attempted assignment is made that would violate the terms of the REMIC

indentures, the assignment is void. One cannot, after all, effectuate an assignment to an unwilling

party, and by its terms, the REMIC trusts only accept contributions under the conditions established

by the trust.

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 5 Fax: (360) 883-9361
 Contributions to REMIC trust must be within 90 days of formation

One of the requirements of the IRS REMIC provisions is that all contributions to the

REMIC trust must be within 90 days of a REMIC’s startup date. 26 USC 860 G(3). According to

its terms, this REMIC trust was created as of the Closing Date, January 30, 2006, and all assets had

to be assigned by then. PSA, Definitions; see also Declaration of Colin Davis.

The defendant never provided the assignment of the deed of trust or the note as part of

their motion. Assuming, arguendo, that they provide an admissible copy of the assignment that

was stricken from the record on their first Motion for Summary Judgment, the purported

assignment is dated and notarized on March 11, 2008, almost two years after the terms of the

trust say contributions are closed.

Under terms of the REMIC trust and the operation of New York law, the attempted

contribution of the DeJongh’s property to the asset of the trust was void. Dye; see also

Declaration of Colin Davis. While this may appear to be a significant loss to the REMIC trust in

the instant case, it has the fundamental benefit of preserving the REMIC trust’s tax preferential

status, arguably worth much more, while leaving the Trust able to pursue the selling lender for its

money back.

Contributions to REMIC trust must be conforming loans

Additionally, the trust indentures warrant that only performing loans will be contributed

to the trust. Declaration of Colin Davis, citing PSA. By their own testimony, the Defendant

acknowledges that the DeJongh Note and Deed of Trust was in default prior to its purported

assignment to the REMIC trust. See Declaration of Christopher Spradling in Support of

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 6 Fax: (360) 883-9361
Defendants’ Motion for Summary Judgment. Since the attempted assignment did not comport

with the indentures, the assignment is void. Dye; see also Declaration of Colin Davis.

Void assignment causes lack of standing

Because the attempted assignment is void, HSBC and Nomura lack standing to pursue a

foreclosure of the DeJongh’s property. Dye; see also Declaration of Colin Davis. HSBC must

have “standing” to bring this action. The common law doctrine of standing prohibits a litigant

from raising another's rights. Fire Prot. Dist. V. City of Moses Lake, 145 Wn.2d. 702, 713

(2002). Standing is a threshold issue. Standing to sue requires an interest in the claim at issue in the

lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s

request. Here, under the terms of the PSA that govern Nomura’s REMIC trust, the attempted

assignment was void and gave to HSBC and/or Nomura no legal rights.

Since HSBC’s only claim to an interest in this lawsuit relates to its role as Trustee for the

Nomura REMIC trust, a demonstration that the Nomura REMIC trust has no legal interest in the

action defeats the standing of both HSBC and Nomura.

Under New York case law, this Assignment is Defective and a Nullity

Even aside from the strictures of the trust indentures, in the instant action, the March 12,

2008 assignment from MERS to HSBC is defective under New York law. The facts relating to

the assignment in this case are strikingly similar to the facts in the New York case of HSBC

BANK USA, NA v. Yeasmin, 19 Misc.3d 1127(A), 866 N.Y.S.2d 92, 2008 WL 1915130 (Table)

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 7 Fax: (360) 883-9361
(N.Y.Sup., 2008) (hereinafter “Yeasmin”); see also Bank of New York v. Alderazi, 28 Misc.3d

376, 900 N.Y.S.2d 821, 2010 N.Y. Slip Op. 20167.

In Yeasmin, HSBC Bank USA, NA, acting as Trustee for Nomura Asset-Backed

Certificate Series 2006-AF1, attempted to foreclose on real property owned by Lovely Yeasmin.

Id. Relying upon well-established principles of real estate and agency, the court found the

purported assignment by MERS defective as it lacked any power of attorney or corporate

resolution demonstrating that MERS had authority to assign the rights of the original lender, and

held that the terms of the Deed of Trust, identical to the case at hand, were insufficient to give

rise to such authority. Id. The court dismissed the foreclosure without prejudice. Id.

As in Yeasmin, in our case, the recorded assignment by “Victor Parisi, Vice President”

on behalf of MERS has neither the corporate resolution nor a power of attorney attached and

recorded. Since MERS purported to act on the behalf of the lender, this lack is fatal to a proper

assignment and renders the assignment a nullity.

“To have a proper assignment of a mortgage by an authorized agent, a power of

attorney is necessary to demonstrate how the agent is vested with the authority to assign
the mortgage. “No special form or language is necessary to effect an assignment as long
as the language shows the intention of the owner of a right to transfer it.” (Tawil v.
Finkelstein Bruckman Wohl Most & Rothman, 223 A.D.2d 52, 55 [1d Dept 1996]; see
Suraleb, Inc. v. International Trade Club, Inc., 13 AD3d 612 [2d Dept 2004]).
To foreclose on a mortgage, a party must have title to the mortgage. The instant
assignment is a nullity. The Appellate Division, Second Department ( Kluge v. Fugazy,
145 A.D.2d 537, 538 [2d Dept 1988] ), held that a “foreclosure of a mortgage may not be
brought by one who has no title to it and absent transfer of the debt, the assignment of the
mortgage is a nullity.” Citing Kluge v. Fugazy, the Court ( Katz v. East-Ville Realty Co.,
249 A.D.2d 243 [1st Dept 1998] ), held that “[p]laintiff's attempt to foreclose upon a
mortgage in which he had no legal or equitable interest was without foundation in law or
fact.”
It is clear that plaintiff HSBC, with the invalid assignment of the instant mortgage
and note from MERS, lacks standing to foreclose on the instant mortgage. The Court, in
Campaign v. Barba (23 AD3d 327 [2d Dept 2005] ), held that “[t]o establish a prima
facie case in an action to foreclose a mortgage, the plaintiff must establish the existence
PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn
DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 8 Fax: (360) 883-9361
 of the mortgage and the mortgage note, ownership of the mortgage, and the defendant's
default in payment.” (See Household Finance Realty Corp. of New York v. Wynn, 19
AD3d 545 [2d Dept 2005]; Sears Mortgage Corp. v. Yahhobi, 19 AD3d 402 [2d Dept
2005]; Ocwen Federal Bank FSB v. Miller, 18 AD3d 527 [2d Dept 2005]; U.S. Bank
Trust Nat. Ass'n v. Butti, 16 AD3d 408 [2d Dept 2005]; First Union Mortgage Corp. v.
Fern, 298 A.D.2d 490 [2d Dept 2002]; Village Bank v. Wild Oaks Holding, Inc., 196
A.D.2d 812 [2d Dept 1993] ).
Id.

Under Washington Law Assignment of Deed of Trust and Note was without authority

HSBC impliedly alleges that MERS assigned Fremont’s interest in the Deed of Trust and

Note to HSBC Bank. However, that’s not what the assignment says. On its face, the assignment

is, not of Fremont’s interest, but of MERS’ interest. In fact, no mention of Fremont is made in

the Assignment at all.

Even if MERS’ intent was to transfer Fremont’s interests, the assignment fails to do so.

Courts are required to give effect to the actual terms of a contract. “It is a well-established rule

in this jurisdiction that parol evidence will not be admissible to vary the promissory terms of a

written contract.” Shelton v. Fowler, 69 Wn.2d 85, 93 (1966).

And as the original Deed of Trust states, MERS holds “only legal title to the interests

granted by Borrower in this Security Instrument, but, if necessary to comply with laws or

custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to

exercise any or all of those interests, including, but not limited to, the right to foreclose and sell

the Property; and to take any action required of Lender including, but not limited to, releasing

and canceling this Security Instrument.” (See Defendant’s Motion for Summary Judgment,

Exhibit 1, page 3)(emphasis added).

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 9 Fax: (360) 883-9361
 By the terms of the Deed of Trust, MERS’ only “interest” was to hold legal title subject

to the directions of the Lender, and that is all that could be transferred by MERS. (See

Defendant’s Motion for Summary Judgment, Exhibit 5) There is no document which

demonstrates a transfer of Fremont’s interest in the Deed of Trust to anyone.

It is assumed that HSBC will assert that Fremont authorized MERS to assign its interests

in the Deed of Trust and Note. However, there is no evidence that Fremont ever authorized

MERS to assign anything. Notably lacking from the file and the evidence before the court is any

sort of power of attorney or corporate resolution from Fremont which would grant this type of

authority to MERS.

“Nominee” is defined as “A person designated to act in place of another, usu. in a very

limited way. A party who holds bare legal title for the benefit of others or who receives and

distributes funds for the benefit of others.” Black’s Law Dictionary 1149 ( 9th ed., 2009). No

Washington case interpreting this term in this situation has been found. By analogy to the cases

from numerous states dealing with these same transactions (and often the same lenders and/or

beneficiaries), a nominee does not have authority to assign a deed of trust and promissory note

absent evidence of specific direction from the lender. See e.g. Dye, supra, Yeasmin, supra,

Landmark National Bank v. Kesler, 2009 WL 2633640 (Kan.)(2009), Bellistri v. Ocwen Loan

Servincing, LLC, 284 S.W. 3d 619, 623 (Mo.App. 2009); In re Wilhelm, 407 B.R. 392

(Bankr.D.Idaho 2009); In re Vargas, 396 B.R. 511, 517 (Bankr.C.D.Cal.2008);and Saxon

Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D.Cal.2008).

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 10 Fax: (360) 883-9361
 The Deed of Trust itself is not signed by Fremont, so Fremont cannot have given its

authority to MERS by way of the Deed of Trust. Under the Statute of Frauds, this authority

would have had to be in writing. RCW 19.36.010.

In reviewing language identical to the case at bar, courts in New York have noted that to

have a proper assignment of a mortgage by an authorized agent, a power of attorney is necessary

to demonstrate how the agent is vested with the authority to assign the mortgage. HSBC Bank

USA, N.A. v. Yeasmin, supra. There would have had to have been another document somewhere

for that grant of authority, but that document, if it exists, is nowhere before the court.

Not only that, but the Assignment of the Deed of Trust would also have to have assigned

the Note. But the Note makes no mention of MERS at all. (See Defendant’s Motion for

Summary Judgment, Exhibit 5). There is no written authority for MERS to assign the Note. And

again, under Washington law ownership is required to pursue a judicial foreclosure, not mere

possession. 18 Wa.Prac. §19, supra.

Deed of Trust says “this Security Instrument” - Not the Note

Another issue with the Deed is that the role of MERS is limited to dealing with “this

Security Instrument”. “Security Instrument” is defined as “this document, which is dated June

20, 2005 together with all Riders to this document.” Notably, that does not include the

Promissory Note. Banks would naturally be more guarded before giving out authority over the

Promissory Note as compared to the Deed of Trust, since as court’s have long held “… the note

is ‘essential’, the mortgage is only ‘an incident’ to the note”. Landmark, supra.

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 11 Fax: (360) 883-9361
 The Promissory Note (Adjustable Rate Note) does not include any mention of MERS, nor

does it grant to MERS the right or authority to act for the Lender, or to transfer the Note. (See

Defendant’s Motion for Summary Judgment, Exhibit 5).

This is not the first time that MERS has attempted to assign both a mortgage and note.

Courts across the country have held that when the record contains no evidence that the original

holder of the note authorized MERS to transfer the note, the language of the assignment

purporting to transfer the promissory note was ineffective. See Landmark National Bank v.

Kesler, 2009 WL 2633640 (Kan.)(2009), citing Bellistri v. Ocwen Loan Servincing, LLC, 284

S.W. 3d 619, 623 (Mo.App. 2009); Bellistri, supra (MERS never held the promissory note, thus

its assignment of the deed of trust to Ocwen separate from the note had no force), see also In re

Wilhelm, 407 B.R. 392 (Bankr.D.Idaho 2009) (standard mortgage note language does not

expressly or implicitly authorize MERS to transfer the note); In re Vargas, 396 B.R. 511, 517

(Bankr.C.D.Cal.2008) (“If FMH has transferred the note, MERS is no longer an authorized

agent of the holder unless it has a separate agency contract with the new undisclosed

principal.”); Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D.Cal.2008) (For

there to be a valid assignment, there must be more than just assignment of the deed alone, the

note must also be assigned… MERS purportedly assigned both the deed of trust and the

promissory note… However, there is no evidence of record that establishes that MERS held

either the promissory note or was given the authority… to assign the note.”).

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 12 Fax: (360) 883-9361
 Conflict of Interest Problems – Voids Holder in Due Course

On March 13, 2008, Victor Parisi, acting as VP of MERS purportedly assigns all interests

in the Deed of Trust and Note to HSBC Bank USA, NA. See Declaration of Colin Davis.

Victor Parisi is also the VP of HSBC Bank USA, NA. The following day, Victor Parisi,

acting as VP of HSBC Bank USA NA, purportedly appoints successor trustee, Lawyers Title

Insurance Corporation, and requests that a copy of the recorded document be forwarded to

Popular Mortgage Servicing. See Declaration of Colin Davis.

The Appointment of Successor Trustee was not provided as an attachment to any of the

Defendant’s materials. Previously, a copy of a purported appointment was one of those

documents that the court struck as inadmissible the last time we were here on Defendant’s first

motion for summary judgment. Defendant has failed to provide an admissible copy.

Victor Parisi is also the Vice President of Popular Mortgage Servicing. See Declaration

of Colin Davis.

HSBC / Nomura Not Holder in Due Course

RCW 62A.3-303 provides that a "holder in due course" means the holder of an

instrument if:

(1) The instrument when issued or negotiated to the holder does not bear such
apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as
to call into question its authenticity; and
(2) The holder took the instrument (i) for value, (ii) in good faith, (iii) without
notice that the instrument is overdue or has been dishonored or that there is an uncured
default with respect to payment of another instrument issued as part of the same series,
(iv) without notice that the instrument contains an unauthorized signature or has been
altered, (v) without notice of any claim to the instrument described in RCW 62A.3-306,
and (vi) without notice that any party has a defense or claim in recoupment described in
RCW 62A.3-305 (a)
PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn
DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 13 Fax: (360) 883-9361
 RCW 62A.3-303(emphasis added).

Here, the Plaintiffs first defaulted on September 1, 2007, yet the assignment from MERS

to HSBC is dated March 12, 2008. Since Victor Parisi is listed as the Vice President of MERS

as well as the Vice President of HSBC, he clearly had notice “that the instrument is overdue or

has been dishonored or that there is an uncured default with respect to payment”. This violation

of the rules governing Holder in Due Course status lends further strength to the REMIC trust

indentures prohibiting non-performing loans from becoming a part of the trust assets. PSA, p. 97.

Claim against Fremont Investment and Loan

The Plaintiffs have defenses and counter-claims against enforcement of the Note based

upon fraudulent lending practices of Fremont Investment and Loan. The HUD Settlement

Statement that is required to be provided as part of any residential loan also requires the

disclosure of any payments, if any, made by the lender to the mortgage broker outside of the

monies directly involved in the loan. That amount is shown on page 2 of the HUD statement,

line number 814. Exhibit 1. This demonstrates that Fremont Investment and Loan paid to Agape

Home Mortgage an additional $1,407.36. Agape Home Mortgage was the mortgage broker who

secured the loan at issue. This payment from the lender to the broker is evidence that the

mortgage broker colluded with the lender to have the borrowers accept a mortgage with less

advantageous terms than they are qualified for.

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 14 Fax: (360) 883-9361
 SUMMARY

Because the terms of the Nomura REMIC trust and the operation of New York laws

which govern the trust make it clear that the DeJongh property cannot be a part of the REMIC

trust assets, and because the purported assignment of the note and deed of trust was invalid, the

Defendants are unable to demonstrate ownership of the Deed and the Note, and therefore lack

standing to pursue a foreclosure. Therefore, the Motion for Summary Judgment should be

dismissed.

RESPECTFULLY SUBMITTED this day of ________________2011.

GAVIN FLYNN, WSBA # 25781

Attorney for Plaintiff

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 15 Fax: (360) 883-9361
 DECLARATION OF SERVICE

I, Gavin Flynn, hereby certify that I have served a true and correct copy of the foregoing

Response to Defendants’ Motion for Summary Judgment upon the individual(s) listed herein by

the following means:

Lance Olsen U.S. Mail (First Class)
Routh Crabtree Olsen, P.S. Facsimile
3535 Factoria Blvd. SE, Suite 200 Email
Bellevue WA 98006 Hand Deliver

Mark J. Phelps of U.S. Mail (First Class)

FIDELITY NATIONAL TITLE GROUP, Facsimile
INC. Email
1200 – 6TH AVENUE, SUITE 1900 Hand Deliver
SEATTLE, WA 98101

I declare under the penalties of perjury of the laws of the State of Washington that the

foregoing is true and correct to the best of my knowledge.

SIGNED at Vancouver, Washington, this ____ day of ___________________, 2010.

__________________________________
Gavin Flynn
Attorney at Law

PLAINTIFF’S RESPONSE TO The Law Office of Gavin Flynn

DEFENDANTS’ MOTION FOR SUMMARY 1112 Daniels Street, Suite 50
JUDGMENT Vancouver, WA 98660
Tel: (360) 260-5486
Page 16 Fax: (360) 883-9361