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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF QUEENS-------------------------------------------------------------------------X INDEX #DEUTSCHE BANK NATIONAL TRUST COMPANY AS Date: Filed 05-30-2008
AS TRUSTEE FOR REGISTERED HOLDERS OF
GSAMP TRUST 2006-NC2 MORTGAGE PASS- REPLY TOPLAINTIFFSTHROUGH CERTIFICATES, SERIES 2006-NC2 AFFIRMATION
IN
OPPOSITION TO
DEFENDANTS THIRDPlaintiff,
ORDER TO SHOW CAUSE
-against-
JOHN DOE & JANE DOEDefendant(s)
---------------------------------------------------------------------X
. __________________., an attorney duly licensed to practice law in the
State of New York, and being the attorney for the Defendants hereby affirms the following under
the penalty of perjury pursuant to CPLR 2106:
1. I am the principal of the Law Offices of ________, Esq., attorneys for the
defendants John Doe and Jane Doe (hereinafter referred to as defendants) and as such, I am
fully familiar with the facts and circumstances of this litigation and make this reply in support
of Defendants reply with a Temporary Restraining Order: (i) vacating the Judgment of
Foreclosure and Sale of March 9, 2009 entered on March 24, 2009, The Foreclosure Sale of
October 23, 2009, the Judgment of May 3, 2011, the Order of October 11, 2011 due to Plaintiffs
counsel reliance upon documentary evidence containing a plethora of elements of extrinsic and
extrinsic fraud as per CPLR 5015(a)(2)(3); (ii) dismissing the herein Summons and Complaint
of May 30, 2008 in its entirety, with prejudice, base upon documentary evidence as per CPLR
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3211(a)(1) including a Securitization Audit Report (iii) that this court exercise its discretion in
not only enjoining Plaintiff for evicting Defendants, but also exercise its discretion in
rescinding said mortgage and promissory note as a remedy of fraud, in accordance with the UCC
2-721, returning all payments made by Defendants back to the Defendants in full (iv) the
issuance of a Permanent Injunction against Putative Plaintiff staying the eviction until this court
issues a determination on the instant Order to Show Cause and Defendants Reply to Plaintiffs
Opposition until this court issues a determination on this instant Order to Show Cause and the
matters stated therein, and such other further relief that may be just and proper to the court.
2. The statements that follow are solidly anchored on fact and information and belief.
The sources of the information and ground for my belief reflected in this reply are from
conversation with Defendants, examination of the court file pertaining to the case at bar, the
different papers filed with this proceeding, my personal investigation into this matter, the
applicable statutes and several court decisions, the Pooling and Servicing Agreement of June 1,
2006 as well as the Prospectus Supplement to Prospectus dated March 31, 2006
DISCUSSION
3. The alleged Defendants default at law is not a default. Because the
assignment of mortgage can be shown to be fraudulent, the defendant has established a
meritorious defense for vacatur of the Judgment of Foreclosure and Sale. Moreover, the
misrepresentations by Plaintiff in this regard (which Defendants assumed to be true) constitute
extrinsic fraud in that it deprived Defendant of an opportunity to fully and fairly litigate this
matter. As such, Defendants do not need to show a reasonable excuse for his default in the
litigation. (Shaw v Shaw, 97AD2d 403 [2d Dept. 1983].
4. It is in those cases, like ours, wherein the Defendants advance specific and
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substantiated allegations that the Plaintiff or its agents engaged in acts constituting extrinsic
fraud, that is, wrongful acts of trickery or deceit which allegedly induced the moving defendants
into defaulting or otherwise wrongfully deterred him or her from litigating the plaintiff's claims
and demonstrates justifiable reliance thereon, will avacatur of a default in answering be excused
as reasonable (see CPLR 5015[a] [31; Midfirst Bank vAl-Rahman, 81 AD3d 797, 917 NYS2d
871 [2d Dept 2011]; Tribeca Lending Corp. v. Crawford, 79 A.D3d 1018, 916 NYS2d 116 [2d
Dept 2010]; Bank of New York v. Stradford, 55 AD3d 765, 869 N.YS2d 554 [2d Dept 2008],
supra; Wells Fargo v Linzenberg, 50 AD3d 674, 853 NYS.2d 912 [2d Dept 2008], Aames
Capital Corp. v Davidsohn, 24 AD3d 474, 808 NYS.2d 229 [2d Dept 2005], American Shoring,
Inc. v D.C.A. Constr., Ltd., 15 AD3d 431, 789 NYS2d 722, 789 N.Y.S.2d 722 [2d Dept 2005],
supra; Miller v Lanzisera, 273 AD2d 866, 709 NYS2d 286 14th Dept 2000]).
5. In 7 Plaintiff states in relevant part: Defendants second Order to Show
Cause was marked off by the Court on October 11, 2011 due to the failure of Defendants
Counsel to appear at the return date for same.Plaintiff continues in 10: Defendants counsel
fails to even present any excuse for why he failed to appear at the return date held on October 11,
2011. Defendants counsel apologizes to Plaintiff and to the court. The non appearance was due
to an unfortunate calendar error in the office.
6. The Courts in the First and Second Departments have been uniform on the issue
of reasonable excuse for default in cases of law office failure. In cases such as this, where party
fails to appear at the calendar call and a default for failure to appear is entered, the Defednant
must establish pursuant to CPLR 50515, a reasonable excuse for the failure to appear and a
meriterious defense. SeeDeshler v East West Renovatators, Inc, 259 AD 2nd
251, 687 N.Y.S.2d
65 (1st Dept 1999)Reices v Catholic Medical Center Brooklyn, 306 AD 2d 394, 761 NYS2d 2A5
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(2nd
Dept 2003) Mita v Bianchi, 286 AD2d 376, 728 NYS2d 710 (1st
Dept 2001), Harwood v
Chaliha 291 AD2d 737 NYS2d 359 (1st Dept 2002) DAniello v T.E.H. Slopes Inc 301 AD2d
301 AD2d 156, 756 N.Y.S.2d 54 (2nd
Dept 2003) Polir Construction Inc v Etingin 297 AD2d
509509 747 N.Y.S.2d 220 (1st Dept 2002).
7. The law office failure needs to be substantiated. See Matter ofELRAC, Inc v
older, 31 A.D.3d 636, 817 N.Y.S.2d 916 (2006). Here the law office is substantiated by an
attorneys affirmation admitting that he missed the calendar call to a scheduling error in the
office.
8. Therefore, Defendants request that the Court exercise its discretion in the
interest of justice to excuse Defendants attorney calendar error in this action as law office
failure pursuant to CPLR 2005, particularly in light of the numerous meritorious defenses
Defendants have to this action that warrants a vacatur of all default judgments granted herein
pursuant to CPLR 5015,
Upon an application satisfying the requirement of subdivision (d) of section3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be
precluded from exercising its discretion in the interest of justice to excuse delay
or default resulting from law office failure. CPLR 2005(a) On motion. The court which rendered a judgment or order may relieve a
party from it upon such terms as may be just, on motion of any interested
person with such notice as the court may direct, upon the ground of:1. excusable default, if such motion is made within one year after
service of a copy of the judgment or order with written notice of its
entry upon the moving party, or, if the moving party has enteredthe
judgment or order, within one year after such entry; or
2. newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not havebeen
discovered in time to move for a new trial under section 4404; or
3. fraud, misrepresentation, or other misconduct of an adverse party;or
4. lack of jurisdiction to render the judgment or order; or
5. reversal, modification or vacatur of a prior judgment or order upon
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which it is based.
9. Defendant asserts the default judgments granted in this action should be
vacated as per CPLR 5015(a)(2)(3) base on discovered evidence and/or misrepresentation and
misconduct, respectively. Specifically putative Plaintiff, Plaintiff agents, and/or Plaintiffs
counsel allegedly utilized both extrinsic and intrinsic fraud to wrongfully obtain default
judgment against the Defendants. Therefore, Defendants urge the court to vacate all Default
Judgments granted in this action based on Newly Discovered Evidence and fraud pursuant to
CPLR 5015(a)(2)(3).
10. After this court granted the Default Judgments in this action, Defendant
discovered new chocking documentary evidence which illustrates the calculated frauds utilized
by Plaintiff, Deutsche Bank National Trust Company as Trustee For the Registered Holders of
GSAMP Trust 2006-NC2, Ocwen Loan Servicing LLC (Ocwen), Scott W Anderson, New
Century Mortgage Corporation with the approval of Plaintiffs counsel Shapiro, DiCaro &
Barack LLC (Shapiro & DiCaro), in deceiving the Court to knowingly, willingly and wrongfully
to grant a Default Judgment and Judgment and Foreclosure and of March 9, 2009.
11. In order for the court to appreciate and understand the magnitude of the fraud
(extrinsic and intrinsic) engineered by Deutsche Bank, Ocwen and/or Shapiro & DiCaro it is
useful to have a chronological picture of the pertinent fact and documentary evidence before us.
12. On or about May 30, 2008 putative Plaintiff filed a Summons and
Complaint against Defendants. In 11 of the Complaint putative Plaintiff states: The Plaintiff
is the true and lawful owner of the said bon/note and mortgage. Astonishingly a quick
inspection of the documentary evidence verifies that this statement is 100% false for reasons not
limited to the following:
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13. On or about April 25, 2008 the invalid assignment 1 states that the note was also
assigned with the mortgage: Together with the bond and note(s) or obligation(s) described
Therefore Defendants proffer the following indisputable documentary evidence which serves as
the first to tenth instances of Deutsche Bank, Ocwen New Century Corporation and/or Shapiro &
DiCaros usage and reliance upon intrinsic as well as extrinsic fraud for wrongfully obtaining
judgment against the Defendants in blatant violation of the Conveyance requirement of the
Pooling and Servicing Agreement of June 1, 2006. Contrary to Plaintiffs allegation 38:
Without evidence that Defendant is even entitled to enforce any provisions of the PSA. Yes
because by so doing it violated New York Estate and Power Trust Law 7-2.4 In a Court Order
the Hon Albert L. Johnson says in a similar case:
Plaintiff Horace is a third party beneficiary of the Pooling and Servicing Agreement
created by the defendant trust (LaSalle Bank National Association). Indeed without suchPooling and Servicing Agreement Plaintiff Horace and other mortgagors similarly
situated would never had been able to obtain financing
Consequently, Plaintiffs motion for Summary Judgment is granted to the extent thatdefendant trust (LaSalle Bank National Association) is permanently enjoined from
foreclosing on the property. Hon Albert L. Johnson Circuit Judge March 25, 2001 in
case Phylis Horace v LaSalle BankNA 57-CV-2008-000362.00 in the Circuit Court of
Russel County Alabama
14. In 10 Plaintiff states: Defendant still does not dispute the longstanding,
severe and continuing default in payment under the term of the subject note and mortgage.
From the onset no proof of default has been introduced before the court by the presentment of a
certified copy of the ledger that would verify the alleged default. Without a certified copy of the
1The Congressional Oversight Panel of November 16, 2010 specifically pages 16-19 attached
by reference as Exhibit A spelled out in crystal clarity how the assignment must be carried out
regardless if Defendants are part to it or not. This also flies in the face of Plaintiff 38 and the
Phyllis Horace case referenced supra.
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ledger before the court the idea of default is another inadmissible hearsay that the court cannot
consider. Plaintiff also allude to default in 20.
15. If there is default the money is not and could not be for the wrong party in
interest. Plaintiff is not the creditor. Furthermore, there is provision in the Form 424(b)(5) for
credit default swap, credit enhancement, and other insurance scheme associate with the
securitization of Defendants mortgage loan: payments have been made on this account by third
party. Therefore, Plaintiff must verify that Defendants mortgage loan was not the recipient of
any payment from any third party before talking about default.
14. First, as for Plaintiff first instance of fraud upon the Court, Plaintiff cannot
explain how in the securitization of Defendants mortgage loan why the servicer New Century
Mortgage Corporation assigned the mortgage directly to Deutsche Bank National Trust
Company although the Pooling and Servicing Agreement Section 2.01 reserved this task
exclusively to the Depositor GS Mortgage Securities Corp
15. Second on 10/4/2007 Preston DuFauchard California Corporation
Commissioner revoked New Century License according to the following Order Revoking
Residential Mortgage Lender and Residential Loan Servicing license. Therefore the assignment
dated April 25, 2008
is not and could not be validhttp://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdf
16. Third, furthermore New Century was also in 2007 in Chapter 11 bankruptcy.
Therefore to assign the note and the mortgage New Century should have to secure an
authorization by the bankruptcy trustee. This document is missing from the court record making
this assignment suspicious at the very least if not felonious
17. Fourth, the assignment was made by New Century Mortgage Corporation
http://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdfhttp://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdfhttp://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdfhttp://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdf -
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by its Attorney-in-Fact Ocwen Loan Servicing LLC with a Power of attorney recorded in April
26, 2006 with instrument # 2006-000233313. After trying unsuccessfully to locate this document
online my office contacted the Palm Beach County Clerk for help. My office then learned that
not only such power of attorney does not exist but also the document number has 13 digits and
that the document number used by the county has only 11 digits. In addition, the referenced
power of attorney is not attached with the assignment.
19. The following diagram illustrates the various parties involved in the
transaction
-------------------------------------
| NC Capital Corporation |
| (Responsible Party) |
| |
-------------------------------------
| Loans
\ /
-------------------------------------
| Goldman Sachs Mortgage Company | ----------------------------
| (Sponsor) | |Deutsche Bank National Trust
| | | Company
------------------------------------- /| (Trustee)
| Loans / ----------------------------
\ / /
------------------------------------- / /----------------------------| | / / | Wells Fargo Bank, N.A.
| GS Mortgage Securities Corp. | / / | (Master Servicer and
| (Depositor) | / / | Securities Administrator)
| | / / ----------------------------
------------------------------------- / /
| Loans / /
\ / / /
-------------------------------------/ /
| | /
| GSAMP Trust 2006-NC2 | / ----------------------------
| (Issuing Entity) |/ | Ocwen Loan Servicing, LLC
| |------------| (Servicer)
-------------------------------------\ ----------------------------
\
\
\
\ ----------------------------
------|Goldman Sachs Mitsui Marine
|
| Derivative Products, L.P.
|
(Interest Rate Swap Provider)
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----------------------------
and their functions and verifies that New Century Mortgage Corporation did not assign anything
to the GSAMP Trust 2006-NC2 as falsely alleged. The chart id from p. 7 of the Form 424(b)(5)
18. No power of attorney has been found, filed or produced by Plaintiff. If such
document exist it must be notarized before New Century filed for Chapter 11 bankruptcy and
which all New Century Mortgage Corp matters were transferred to bankruptcy trustee Defendant
and the court need to see this document. Plaintiff must also explain to the court how it did it
although without a license since October 4, 20072.
20. As for further documentary evidence of the well known robo signing
activities of Scott W. Anderson The Defendants urge the court to consider Anderson false
signature as yet another instance of intrinsic fraud utilized by the Plaintiff and Plaintiffs counsel
as and for their respective modus operandi in obtaining unlawful judgments against the
Defendants see Lyn Szymoniak Affidavit for countless version of Anderson signature enclosed
by reference as
Exhibit A
21. As for Plaintiff fifth fraud upon the court Defendant will now evidence to
the court the fact that Shapiro & DiCaro knowingly and willingly committed a felony, in and
through the construction, execution and filing of the assignment.
22. Upon information and belief, Shapiro & DiCaros office created the
2The company, once the second-biggest U.S. subprime-mortgage lender, engaged in
accounting fraud in 2005 and 2006 before filing forbankruptcyin April 2007, according to the
581-page report by court examinerMichael J. Missalunsealed today: from Bloomberg website
on March 26, 2008
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aXebBOZ3eBjQ
http://www.bloomberg.com/apps/quote?ticker=NEWCQ:UShttp://www.bloomberg.com/apps/quote?ticker=NEWCQ:UShttp://www.bloomberg.com/apps/quote?ticker=NEWCQ:UShttp://search.bloomberg.com/search?q=Michael+J.+Missal&site=wnews&client=wnews&proxystylesheet=wnews&output=xml_no_dtd&ie=UTF-8&oe=UTF-8&filter=p&getfields=wnnis&sort=date:D:S:d1http://search.bloomberg.com/search?q=Michael+J.+Missal&site=wnews&client=wnews&proxystylesheet=wnews&output=xml_no_dtd&ie=UTF-8&oe=UTF-8&filter=p&getfields=wnnis&sort=date:D:S:d1http://search.bloomberg.com/search?q=Michael+J.+Missal&site=wnews&client=wnews&proxystylesheet=wnews&output=xml_no_dtd&ie=UTF-8&oe=UTF-8&filter=p&getfields=wnnis&sort=date:D:S:d1http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aXebBOZ3eBjQhttp://www.bloomberg.com/apps/news?pid=newsarchive&sid=aXebBOZ3eBjQhttp://www.bloomberg.com/apps/news?pid=newsarchive&sid=aXebBOZ3eBjQhttp://search.bloomberg.com/search?q=Michael+J.+Missal&site=wnews&client=wnews&proxystylesheet=wnews&output=xml_no_dtd&ie=UTF-8&oe=UTF-8&filter=p&getfields=wnnis&sort=date:D:S:d1http://www.bloomberg.com/apps/quote?ticker=NEWCQ:US -
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assignment out of thin air. The court will notice the fact that on top left of the assignment shows:
Closing USA LLC Attn Default 250 Mile Crossing Blvd Suite 4 Rochester NY 14624 the
same information is also on the cover page enclosed by reference as Exhibit B. Upon
information and belief, CLOSING is a wholly owned subsidiary company of Shapiro & DiCaro
and shares the same office space as Shapiro & DiCaro. See attached as Exhibit C a print out of
the New York Department of State verifies Defendant allegation.
23. Upon evaluating the New York State Department pertaining to Closing
the court can easily see that Shapiro & DiCaro has personally created, executed and filed a
fraudulent assignment pertaining to this action, in so doing upon information and belief Shapiro
& DiCaro may have violated NYCRR 130-1.1(c) as well as NYS Penal Law 175.35
175.35 Offering a false instrument for filing in the first degree.
A person is guilty of offering a false instrument for filing in thefirst degree when, knowing that a written instrument contains a false
statement or false information, and with intent to defraud the state or
any political subdivision, public authority or public benefit
corporation of the state, he offers or presents it to a public office,public servant, public authority or public benefit corporation with the
knowledge or belief that it will be filed with, registered or recorded
in or otherwise become a part of the records of such public office,
public servant, public authority or public benefit corporation. Offeringa false instrument for filing in the first degree is a class E felony.
24. Upon information and belief, having caused the creation and/or
production, execution, filing and recording of the fraudulent and invalid assignment in the public
record of the New York City Recorder Office as well as included said knowingly false
assignment as a part of the pleading and/or motion in the public authority of the New York State
Supreme Court of the County of Queens.
25. The fraud at the inner core of the assignment verifies that Deutsche Bank
Trust Company was not the originator of the referenced mortgage and note and is not the proper
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owner of Defendants mortgage and note as it is not the real party in interest. Deutsche Bank is
usually and merely and appointed trustee The corporate trust office of the trustee is located at
1761 East St. Andrew Place, Santa Ana, California 92705-4934, and its telephone number is
(714) 247-6000. Therefore the address of the Trustee C/o Ocwen Loan Servicing LLC West
Palm Beach Florida 33409 the sixth fraud perpetrated against the court.
26. Upon diligent research, the Defendants have been able to locate the
Pooling and
Servicing Agreement as well as the Prospectus Supplement to Prospectus dated March 31, 2006
at:http://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txt
27. The Trust i.e. GSAMP Trust 2006-NC2 Mortgage Pass-Through
Certificates
Series 2006-NC2, which alleges ownership of Defendants mortgage and note is governed by a
document called the Pooling and Servicing Agreement of June 1, 2006 said PSA is governed by
the New York Estate and Power Trust law 7-2.4. The PSA has 371 pages and therefore to
voluminous to be attached with this reply but it could be accessed to the SEC website at:
http://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txt
28. The above links are integral part of Defendants evidence of material fact.
Said PSA has not been introduced before the court by Plaintiff for the only reason that it would
single out the magnitude of the fraud perpetrated by Plaintiff against the court and Defendant by
verifying that all the action taken by Plaintiff are inaccurate frivolous and indubitably fraudulent.
29. Defendant would like to draw the courts attention to the fact that the PSA
is the official document, filed under oath with the Securities and Exchange Commission, which
governs all matter of the Trust which claims to own Defendants mortgage and note according to
http://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txt -
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New York State Law.
Section 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED INACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE
STATE OF NEW YORK 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.
30. As for assistance in understanding the complexities of mortgage
backed securities, the Defendant provides the Court the following which has been penned
by Richard F. Kessler, Esq., who is a nationally recognized authority on 'foreclosures
and the mortgage backed securitization process, as an attempt to clarify the complexities of
legal standing when purported by trustees of securitized assets:
"In the mortgage securitization process, collateralized securities are issued by, and
receive payments from, mortgages collected in a collateralized mortgage pool. The
collateralized mortgage pool is treated as a trust. This trust is organized as a special
purpose vehicle ("SPV") and a qualified special purpose entity
("QSPE") which
receives special tax treatment. The "SPV" is organized by the securitizer and parties
who manage it. This shielding is described as making the assets "bankruptcy
remote "To avoid double taxation of both the trust and the certificate
holders, mortgages are held in Real Estate Mortgage Investment Conduits ("REMIC")'s.
To qualify for the single taxable event, all interest in the mortgages and notes are
transferred forward to the end bond, stock, and certificate holders. The legal basis ofREMIC" was established by the Tax Reform Act of 1986 (100 Stat. 2085, 26 USCA 47,
1042), which eliminated double taxation from these securities. The principal advantage
of forming a "REMIC" for the sale of mortgage backed securities is that "REMIC"'s are
treated as pass-through vehicles for tax purposes helping avoiddouble taxation."
"If the special purpose entity, or the assets transferred, qualify as a "REMIC ", then
any income of the "QSPE" is `passed through " and, therefore, not taxable until the
income reaches the holders of the "REMIC", also known as the beneficiaries of
the "REMIC" trust. In order for one of these investment trusts to qualify for the
`pass through" tax benefit of a "REMIC", ALL LEGAL AND EQUITABLEINTEREST IN THE MORTGAGES HELD IN THE NAME OF THE TR UST
ARE VESTED IN THE INVESTORS, NOT IN ANYONE ELSE, AT ANY TIME.
If legal and/or equitable interest in the mortgages held in the name of the trust are
claimed by anyone other than the individual investors, those that are asserting claims, if
other
than the individual investors, are knowingly and intentionally defrauding the
investors,
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the homeowners, and the court."
The 15 page document is at:http://4closurefraud.org/2010/08/31/explanation-of-securitization/
31. The above quotations are verify by page 61 of the Form 424(b)(5) that
states in relevant part:
ASSIGNMENT OF THE MORTGAGE LOANS
Pursuant to a certain mortgage loan purchase and warranties agreement (the "SALEAGREEMENT"), the responsible party sold the mortgage loans, without recourse,to GSMC. Pursuant to the pooling and servicing agreement, GSMC will sell and
convey the mortgage loans, including all principal outstanding as of, and interestdue and accruing after, the close of business on the cut-off date, without recourse,
to the depositor on the closing date. Pursuant to the pooling and servicing agreement,
the depositor will sell, without recourse, to the trust, all right, title and interest in and
to each mortgage loan, including all principal outstanding as of, and interest due after,the close of business on the cut-off date. Each such transfer will convey all right, title
and interest in and to (a) principal outstanding as of the close of business on the cut-off
date (after giving effect to payments of principal due on that date, whether or notreceived) and (b) interest due and accrued on each such mortgage loan after the cut-off
date. However, GSMC will not convey to the depositor, and will retain all of its right,
title and interest in and to (x) principal due on each mortgage loan on or prior to the
cut-off date and principal prepayments in full and curtailments (i.e., partial prepayments)received on each such mortgage loan on or prior to the cut-off date and (y) interest due
and accrued on each mortgage loan on or prior to the cut-off date.
DELIVERY OF MORTGAGE LOAN DOCUMENTS
In connection with the sale, transfer, assignment or pledge of the mortgage loans to
the trust, the depositor will cause to be delivered to the trustee, on or before the closingdate, the following documents with respect to each mortgage loan, which documents
constitute the mortgage file:
(a) the original mortgage note, endorsed without recourse in blank by
the last
endorsee, including all intervening endorsements showing a complete chain ofendorsement from the originator to the last endorsee (except for less than 0.18%
of the mortgage loans for which there is a lost note affidavit and a copy of the
mortgage note);
http://4closurefraud.org/2010/08/31/explanation-of-securitization/http://4closurefraud.org/2010/08/31/explanation-of-securitization/http://4closurefraud.org/2010/08/31/explanation-of-securitization/ -
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(b) the original of any guaranty executed in connection with themortgage
note;
(c) the related original mortgage and evidence of its recording or, incertain
limited circumstances, a copy of the mortgage certified by the originator, escrow
company, title company, or closing attorney;
(d) the originals of any intervening mortgage assignment(s), showing a
complete chain of assignment from the originator of the related mortgage loanto the last endorsee or, in certain limited circumstances, (i) a copy of the
intervening
mortgage assignment together with an officer's certificate of the responsible
party
(or certified by the title company, escrow agent or closing attorney) stating thatof such intervening mortgage assignment has been dispatched for recordation
andthe original intervening mortgage assignment or a copy of such intervening
mortgage assignment certified by the appropriate public recording office will be
promptly delivered upon receipt by responsible party, or (ii) a copy of theintervening mortgage assignment certified by the appropriate public recording
office to be a true and complete copy of the recorded original;
32. Therefore, the Trustee Deutsche Bank National Trust Company, and the
other parties servicing the trust, Ocwen have absolutely and positively no legal standing or
equitable interest in the securitized mortgage and note. Thus, any servicer or Trustee who alleged
that they are or they have the right or have been assigned the right of foreclosure is stating a legal
impossibility. Any argument containing such an allegation would be a knowingly false and
fraudulent statement and in direct violation of 22 BYCRR 130-1.1(c).
33. In order to fully ascertain the allegations made by the Plaintiff that
Deutsche Bank National Trust Company is the owner and holder of Defendants mortgage and
note it is extremely critical to analyze the specific text of the PSA
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
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REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of theDepositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund.
(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 instrumentswith respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.18% of the
Mortgage Notes for which there is a lost note affidavit and a copy of the
Mortgage Note) bearing all intervening endorsements, endorsed "Pay to theorder of _________, without recourse" and signed in the name of the last
endorsee. To the extent that there is no room on the face of the MortgageNotes for endorsements, the endorsement may be contained on an allonge
unless the Trustee is advised by the Responsible Party that state law does
not so allow. If the Mortgage Loan was acquired by the Responsible Partyin a merger, the endorsement must be by "[last endorsee], successor by
merger to [name of predecessor]". If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another name,
the endorsement must be by "[last endorsee], formerly known as [previousname]";
(ii) the original of any guarantee executed in connection with
the mortgage note, if provided;
(iii) the original Mortgage with evidence of recording thereon or
a certified true copy of such Mortgage submitted for recording. If inconnection with any Mortgage Loan, the Responsible Party cannot deliver or
cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by thepublic recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Responsible
Party shall deliver or cause to be delivered to the Trustee, a photocopyof such Mortgage, together with (A) in the case of a delay caused by the
public recording office, an Officer's Certificate of (or certified by) the
Responsible Party (or certified by the title company, escrow agent, orclosing attorney) stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public
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recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Trustee upon receipt thereof bythe Responsible Party; or (B) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, a
copy of such Mortgage certified by such public recording office to be atrue and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidationor extension agreements, if any, with evidence of recording thereon or a
certified true copy of such agreement submitted for recording;
(v) the original Assignment of Mortgage for each Mortgage Loan
endorsed in blank and in recordable form;
(vi) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the originator to thelast endorsee with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recordingoffice or has been lost or if such public recording office retains the
original recorded assignments of mortgage, the Responsible Party shall
deliver or cause to be delivered to the Trustee, a photocopy of suchintervening assignment, together with (A) in the case of a delay caused by
the public recording office, an Officer's Certificate of (or certified by)
the Responsible Party (or certified by the title company, escrow agent, or
closing attorney) stating that such intervening assignment of mortgage hasbeen dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of mortgage or a
copy of such intervening assignment of mortgage certified by the
appropriate public recording office to be a true and complete copy of theoriginal recorded intervening assignment of mortgage will be promptly
delivered to the Trustee upon receipt thereof by the Responsible Party; or
(B) in the case of an intervening assignment where a public recordingoffice retains the original recorded intervening assignment or in the case
where an intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by suchpublic recording office to be a true and complete copy of the original
recorded intervening assignment;
34. A rigorous analysis of the PSA and Prospectus Supplement quotations
reveals that if the Plaintiff is in fact the owner and holder of Defendants mortgage and note
(what Defendants deny) then the ownership of said mortgage and note would have been first
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sold, transferred or assigned from the Sponsor Goldman Sachs Mortgage Company (GSMC) to
the Depositor GS Mortgage Securities Corporation To the Trustee Deutsche Bank National
Trust Co. Herein lies documentary evidence of Deutsche Bank, Ocwen and/Shapiro & DiCaro
seventh fraud upon the court in which Plaintiff has not provided the court with any evidence of
an unbroken chain of assignment, endorsements and/or allonge showing the PSA mandated
chain of ownership from GSMC to GS Mortgage Securities Corp.
35. It is crystal clear that the mandate of the PSAs Conveyance Requirement
have been ignored in the case at bar. If Defendants mortgage and note were property of Plaintiff
then the original note and mortgage would have to be sold, assigned transferred and endorsed to
the Trust on or before the closing date of June 29, 2006.
36. The closing date is extremely critical in the securitization of any mortgae
loan. Upon information and belief every trust which qualifies as a Real Estate Mortgage
Investment Conduit (REMIC) must have a closing date, in which said closing date signifies; (i)
the date the trust is closed and no longer able and willing to sell, assign, transfer and/or receive
any more assets such as Defendants mortgage. (ii) the closing date is also the start up date of the
REMIC that keeps the trust in compliance with the Federal Tax Standards, as they are defined by
prohibited transaction under Section 860(a)(1)/860G(d) of the IRC of 1986.
37. The Trust, which is suing through its trustee, is a New York Corporate
Trust formed to act as a "REMIC" trust (Real Estate Mortgage Investment Conduit) pursuant to
the U.S. Internal Revenue Code ("IRC"). Pursuant to the terms of the Trust and the applicable
Internal Revenue Service ("IRS") Regulations adopted and incorporated into the terms of the
Trust, the "closing date" of the Trust (June 29, 2006) is also the "Startup Day" for the Trust
under the REMIC provisions of the Internal Revenue Code IRC. The Startup Day is extremely
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significant because the IRC ties the limitations upon which a REMIC Trust may receive its assets
to this date. The relevant portion of the IRC addressing the definition of a REMIC is:
(a) General rule. For purposes of this title, the terms `real estate mortgage
investment conduit' and `REMIC' mean any entityto which an election to be treated as a REMIC applies for the taxable year and
all prior taxable years,
all of the interests in which are regular interests or residual interests,which has 1 (and only 1) class of residual interests (and all distributions, if any,
with respect to such interests are pro rata),
as of the close ofthe 3rd month beginning after the startup dayandat alltimes thereafter, substantially all of the assets of which consist of qualified
mortgages and permitted investments.
26 U.S.C.S. 860D(emphasis added).
38. The IRC also provides definitions of prohibited transactions and
prohibited contributions which are relevant to this case as well. In the context of this case, the
relevant statute is the definition ofprohibited contributions which is as follows:
26 U.S.C. 860G(d)(1) states:
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 theamount of such contribution."
26 U.S.C. 860G(d)(2) states:
(2) Exceptions. Paragraph (1) shall not apply to any contribution which is made
in cash and is described in any of the following subparagraphs:
Any contribution to facilitate a clean-up call (as defined in regulations) or a
qualified liquidation.Any payment in the nature of a guarantee.
Any contribution during the 3-month period beginning on the startup day .
Any contribution to a qualified reserve fund by any holder of a residualinterest in the REMIC.
Any other contribution permitted in regulations.
39. The PSA addresses these sections of the IRC by obliging the parties to
the Trust to avoid any action which might jeopardize the tax status of any REMIC and/or
impose any tax upon the Trust for prohibited contributions or prohibited transactions. The PSA
provisions are important to the court's analysis of the facts in this case because of the interplay
between the New York trust law, the IRC's REMIC provisions, and the PSA's incorporation of
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the IRC REMIC provisions.
40. The closing date for this trust is on or about June 29, 2006 according to the
Prospectus Supplement page S-8.
41. Scott Andersons assignment is dated April 25th 2008 or about 22 months
late in blatant violation of THE PSA. In addition, Plaintiff provided no supporting documentary
evidence complying with the Conveyance Requirement for this securitized mortgage loan in
violation of the PSA and New York Estate and Power Law 7-2.4: the note does not verify and
unbroken chain of endorsements and the mortgage does not verify an unbroken chain of title of
ownership.
42. The claim that Plaintiff is the holder and owner of Defendants note and
mortgage is already preposterous, invalid and fraudulent as per the specific test of the PSA as
well as the Congressional Panel of November 16, 2010 enclosed by reference as Exhibit A and
the Securitization Audit Report enclosed by reference as Exhibit Band Richard Kesslers article.
43. Plaintiff willingly and knowingly violated the internal Revenue Code
Section 860, its own PSA closing date requirement and UCC 3-201, 3-204 and 3-302
dealing with endorsements of negotiable instruments evidence eighth fraud upon the court which
was utilized in obtaining unlawful judgments against Defendants.
44. Upon further scrutiny in the filings with the SEC, Defendants have been
able to identify a astonish truth that should shock the integrity of the court: However, DBNTC's
proprietary document tracking system will show the location within DBNTC's facilities of each
mortgage file and will show that the mortgage loan documents are held by the Trustee on behalf
of the trust. Prospectus Supplement p. S-55. In this astonishing text, the truth is revealed to the
court that in fact Plaintiff cannot be the owner of Defendants note and mortgage.
45. As such every single allegation, affidavit, affirmation provided by
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Deutsche
Bank, Ocwen, Scott W Anderson, Shapiro & DiCaro are not only false and frivolous, but
arguably felonious in that not any one of these parties could honestly say they have first hand
knowledge or possession of the original mortgage and note being that if in fact Defendants
mortgage and note were held by Plaintiff it would be so exclusively for the benefit of the
certificatedholders.
46. Upon reviewing all of the documentary evidence provided herein
Defendants urge the court to consider the meritorious defenses stated and evinced therein, as
well as consider the following pertinent case law.
47. In order to commence a foreclosure action, Plaintiff must gave a legal or
equitable interest in the mortgage see Wells Fargo Bank, NA v Marchione, 2009 NY Slip Op
07624 (2d Dept 2009).
48. To establish aprima facie case in an action to foreclose a mortgage, the
Plaintiff must establish the existence of the mortgage and note, ownership of the mortgage and
Defendants default in payment. See Campaign v Barba, 23 AD3d 327 (2d Dept 2005).
49. Where there is no evidence that Plaintiff, prior to commencing foreclosure
action, was the holder of the mortgage and note, took physical delivery of the mortgage and note,
or was conveyed the mortgage and note by written assignment [this] is insufficient to establish
Plaintiffs requisite standing. SeeBankers Trust Co v Hoovis, 263 AD2d 937 (3d Dept 1999); see
alsoDeutsche Bank v Eisenberg, 24 Misc. 3d 1205A (NY Sup. Ct Suffolk County 2009) citing
Kluge v Fugazy, 145 AD2d 537 (2d Dept 1988).
50. Where there is no evidence that Plaintiff, prior to the filing of this action is
the holder and owner of the mortgage and note by taking physical delivery of the original
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mortgage and note as required by the PSA the Plaintiff did not and does not have the requisites to
start this foreclosure action. SeeNew Century Mortgage Corporation v Durden et al 2009 Slip
Op 50175 (U) N.Y. Sup Ct. 2009)
51. Ownership of the note and mortgage may be established by the lending
documents themselves or by proof that the Plaintiff is the owner of the note and mortgage by
reason of an assignment of both the note and the mortgage by the owner thereof to the Plaintiff
or by the owners endorsement of the note and its written assignment of mortgage to Plaintiff.
See the Federal National Mortgage Association v Youkelsone, 303 AD2d 546 755 NYS2d 730.
52. The note secured by the mortgage is a negotiable instrument (UCC 3-104)
which required endorsements on the instrument itself or on a paper so firmly affixed thereto as to
become a part thereof UCC 3-202(2) in order to effectuate a valid assignment of the entire
instrument see Slutsky v Blooming Grove Inn Inc, 147 AD2d 208, 542 NYS2d 721 (2nd Dept
1989).
53. Upon information and belief a negotiable instrument can only be in one of
two states after undergoing securitization, not both at the same time. It can either be a loan or a
stock. Once the instrument is traded as a stock, it is forever a stock and therefore regulated, as
this loan was, by the SEC as a stock.
54. More specific to the well documented frauds and false affidavits and
violation of the New York State Penal Law 175.35 and the PSA Articles II and XII perpetrated
by Deutsche Bank, Ocwen, Scott W Anderson, and Shapiro & DiCaro the following law applies.
55. A Plaintiff has no foundation in fact or law to foreclose in which Plaintiff
has no legal or equitable interest, and where an assignment is a fraudulent document. A
foreclosure of a mortgage may not be brought by one who has no title to it and absent a legally
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effective transfer of the debt; the assignment of mortgage is a legal nullity. Us Bank National
Association v Kosaket al; 2007 NY Slip Op 51680 (U)(N.Y. Sup. Ct. Sufolk Co 2007), citing
Katz v. East-Ville Realty Co; 249 AD2d (1st
Dept. 1998) Carpenter v. Longan, 16 Wall. 271, 83
U.S. 271, 274, 21 L.Ed. 313 (1872),
56. Fraud ninth: in fact the Trust and the Trustee are governed by the laws of
the state of New York according the PSA Section 12.03. The New York Trust law says every
sale, conveyance or other act of the trustee in contravention of the trust is void NY CLS EPTL
7-2.4, Application of Muratori, 183 Misc 967, 970 (N.Y. Sup. Ct. Queens Co. 1944). See also
Dye v Lewis, 67 Misc. 2d 426 (N.Y.Sup Ct Monroe Co 1971)
57. Upon information and belief, there is no trust under the common law until
there is a valid delivery of the asset in question to the trust. Until the delivery to the trustee is
performed by the settlor, or until the securities are definitely ascertained by the declaration of the
settlor, when he himself is the trustee, no rights of the beneficiary in a trust created without
consideration ariseRiegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of
Gurlitz [Lynde], 105 Misc 30, affd 190 App Div 907; Marx v Marx, 5 Misc 2d 42) as cited in
Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep't 1978). In reviewing the
documents for this loan I note that there is no documentary evidence that verifies a valid transfer
of the mortgage on the closing date of June 29, 2006 as per the PSA Article II and Section 12.03:
that means that the mortgage loan must be assigned from: the Sponsor Goldman Sachs Mortgage
Co to Depositor GS Mortgage Securities Corp
58. Furthermore, when the trust fails to acquire the property on the closing
date, (on 06/29/2006) then there is no trust over that property that may be enforced. Kermani v.
Liberty Mut. Ins. Co., 4 A.D.2d 603 (N.Y. App. Div. 3d Dept 1957)
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59. New York's law is so well-settled regarding the limitations of a trustee's
power to
act that New York's Estates Powers and Trust Law Section 7-2.4 states: 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.
60. "Under New York Trust Law there are four essential elements of a valid trust
of personal property,: (i) A designated beneficiary; (ii) a designated trustee, who must not be the
beneficiary; (iii) a fund or other property sufficiently designated or identified to enable title
thereto to pass to the trustee; and (iv) the actual physical delivery of the fund or other property,
or of a legal assignment thereof to the trustee, with the intention of passing legal title thereto to
him as trustee."Brown v.Spohr, 180 N.Y. 201, 209-210 (N.Y. 1904).There is absolutely no trust
under the common law until there is a valid physical delivery of the asset in question to the
Trust. Until the delivery to the trustee is performed by the settlor, or until the securities are
definitely ascertained by the declaration of the settlor, when he himself is the trustee, no rights of
the beneficiary in a trust created without consideration ariseRiegel v. Central Hanover Bank &
TrustCo., 266 App. Div. 586; Matter of Gurlitz [Lynde], 105 Misc 30, affd 190 App. Div. 907,
Marx v. Marx, 5 Misc 2d 42) as cited in Sussman v. Sussman, 61A.D.2d 838 (N.Y. App. Div. 2d
Dept 1978).
61. Tenth fraud the note has been separated from the security instrument3
making the note an unsecured debt precluding any foreclosure action Carpenter v. Longan, 16
3 Allegedly the mortgage has been assigned to the trust on April 25, 2008 although the trust
closed on June 29, 2006 date the note allegedly was assigned to the trust.
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Wall. 271, 83 U.S. 271, 274, 21 L.Ed. 313 (1872), the U.S. Supreme Court stated: The note and
the mortgage are inseparable; the former as essential, the latter as an incident. An assignment of
the note carries the mortgage with it, while an assignment of the latter alone is a nullity. The
security cannot be separated from the debt, and exist independently of it. This is the necessary
legal conclusion." (Merritt v Bartholick, 36 NY 44, 45 [1867].
62. Plaintiff is a trustee working on behalf of the GSAMP Trust 2006-NC2
Mortgage Pass-Through Certificates Series 2006-NC2. If this is true we have a problem because
the closing date was on or about June 29, 2006. A trusteeDeutsche Bank-cannot act in a way
prohibited by the instrument creating the Trust unless it has the consent of the beneficiaries.
63. It is well settled that the duties and powers of a trustee are defined by the
terms of the Trust Agreement and are tempered only by the fiduciary obligation of loyalty to the
beneficiaries (see, United States Trust Co. v First Natl City Bank, 57 A.D.2d 285, 295-296, affd
45 NY2d 869; Restatement [Second] of Trusts 186, comments a, d). See In re IBJ Schroder
Bank & TrustCo., 271 A.D.2d 322 (N.Y. App. Div. 1st Dept 2000) If the Trustee acts without
this written consent the Trustee act is void. There is an instrument creating the Trust and the
Trust can only acquire asset from the Depositor to wit: the assignment of 04/25/2008 is a fraud
according to the above.
64. In 46 Plaintiff raises the issues ofRes Judicata but Res Judicata does not
apply to void judgment or judgment obtains by fraudulent means Allcock v. Allcock437 N.E. 2d
392 (Ill. App. 3 Dist. 1982) The doctrine ofres judicata, in a New York state court's judgment is
not given preclusive effect by the federal court if the judgment was procured by collusion or
fraud. See Kelleran v. Andrijevic, 825 F.2d 692, 694 (2d Cir.1987), cert. denied, 484 U.S. 1007,
108 S.Ct. 701, 98 L.Ed.2d 652 (1988); Goddard, 2006 WL 842925, at *7; In re Slater, 200 B.R.
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491, 495 (E.D.N.Y.1996); County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1387,
1393 (E.D.N.Y.1989). New York law permits collateral attacks on judgments obtained by
extrinsic fraud, Slater, 200 B.R. at 496 (citing Altman v. Altman, 150 A.D.2d 304, 542 N.Y.S.2d
7, 9 (N.Y.App. Div.1989))
65. In the context of mortgage-backed securitization, it is clear that registration of
the notes and mortgages in the name of the trustee for the trust is necessary for effective transfer
to the trust. Within the Statutes of New York governing Trusts, Estates Powers and Trusts Law
(EPTL) section 7-2.1(c) authorizes investment trusts to acquire real or personal property "in the
name of the trust as such name is designated in the instrument creating said trust." Further, the
actual contracts of the parties, which include the custodial agreements, the mortgage loan
purchase agreements, and the trust instrument known as the "Pooling and Servicing Agreement,"
prescribes a very specific method of transfer of the notes and mortgages to the Trust. Because the
method of transfer is set forth in the Trust instrument, it is not subject to any variance or
exception.
66. Courts may neither ignore the actual provisions of transaction documents
nor create contractual remedies that were omitted from the governing contracts by the
contracting parties. See Schmidt v. Magnetic Head Corp., 468 N.Y.S.2d 649, 654 (N.Y. App.Div.
1983) (It is fundamental that courts enforce contracts and do not rewrite them . . .An obligation
undertaken by one of the parties that is intended as a promise . . . should be expressed as such,
and not left to implication. (Citations omitted));Morlee Sales Corp. v. Manufacturers Trust Co.,
172 N.E.2d 280, 282 (N.Y. 1961) ([T]he courts may not by construction add or excise terms . . .
and thereby make a new contract for the parties under the guise of interpret[ation]. (quoting
Heller v. Pope, 250 N.E. 881, 882 (N.Y. 1928))
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65. A the root of the case at bar with the plethora of knowingly fraudulent or
false documents, allegations, sworn statements provided by Deutsche Bank, Ocwen, Scott W
Anderson and or Shapiro & DiCaro Defendants respectfully request that this court to use its
equitable powers to vacate the Judgment of Foreclosure and Sale and Order of Reference the lis
penden the summons and the complaint. The courts should not be made parties to, or perpetuate,
frauds. See Argent Mortgage Co LLC v Mentesana, 23 Musc3d 1116A (NYSup Ct Kings Co
2009).
66. In light of the foregoing information, a temporary Restraining Order
staying the eviction of Defendants from the property at 132-18 109
th
South Ozone Park NY is
warranted. The above information in crystal clarity verifies willingness from Deutsche Bank,
Ocwen, Scott W Anderson and Shapiro & DiCaro reliance upon intrinsic and extrinsic frauds as
their modus operandi in filing, obtaining and securing unlawful judgments against Defendants.
67. Defendants face the immediate threat of losing their property for ever when
it appears that the fact, documentary evidence, case law and legal precedents that Plaintiff was
not is not and could not be the real party in interest entitled to the judgment of Foreclosure and
Sale and the Order of Reference due to Defendants excusable default; Plaintiff not only is not the
real party in interest having equity in the note its lack of standing is present in the four corners of
its pleadings. But most importantly the elusive presence of fraud (common law fraud, fraud by
concealment of material fact, violation of the PSA, violation of New York Estate and Power
Trust Law 7-2.4 violation of the NYS Penakl Law 175.35 etc Fraud vitiates the most solemn
contracts, documents, and even judgments U.S. V. Throckmorton, 98 US61. Fraud destroys
the validity of everything into which it enters Nudd V. Burrows, 91 U.S. 426
68. Unless Defendants obtain a Temporary Restraining Order to stay the
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eviction from their home in order that the case must be litigate on the merit law annd facts
Defendants run the risk of being evicted from their home under color of law causing immediate
and irreparable injury, harm and damage to Defendants.
69. It is well settled in the law that to be entitled to preliminary injunctive
relief, a movant must establish (i) the likelihood of success on the merits (ii) irreparable injury
absent the granting of the preliminary injunction, and (iii) a balancing of the equities in the
movants favor. W.T. Grant Co v Sgroi, 52 NY2d 496, 517 (1981); Petervary v Algie Bubnis, et
al, 30 AD3d 498 (2d Depart 2006). Defendants are entitled to immediate injunctive relief
because they satisfy all three enumerated criterion.
70. First of all Defendants will likely succeed on the merits because they prove
excusable default; Plaintiff lack standing; and Deutsche Bank, Ocwen, Scott W Anderson and
Shapiro & DiCaro repeated usage and reliance upon intrinsic and extrinsic fraud as their modus
operandi in obtaining unlawful judgment against Defendants.
71. Then, it is further undisputed that the Defendants will be immediately,
permanently and irreparably injured and/or damaged if a temporary restraining order and/or
Permanent injunction is not granted before Plaintiff evicts Defendants from their home prior to
this court rendering a determination in this matter on the merit of the case. Further any eviction
granted in favor of putative Plaintiff will be ineffective if a temporary restraining order and/or an
injunction are not immediately granted to stay the eviction in this matter until the court ca issue a
determination on the merits of this case.
72. The balancing of equity in light of Deutsche Bank, Ocwen, Scott Anderson
and Shapiro & DiCaros evidenced and proven fraud and repeated usage and reliance upon
intrinsic and extrinsic frauds as their respective modus poerandi in obtaining unlawful (void)
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judgments against the Defendants and proof that the Defendants proffer in the action concerning
their excusable default leans heavily on Defendants favor. Deutsche Bank National Trust
Company cannot complaint of being prejudiced should the court vacate all judgments granted
herein when it is clear that Plaintiff develops and perfection fraud to its zenith. In addition
Defendants have more to lose than Plaintiff in the action if the court does not issue an immediate
temporary order and/or injunction staying all actions in this matter until the court ruled on the
merit of the case.
73. For the reasons outline in this reply, with the Defendants ability to (i)
establish the likelihood of success on the merits (ii) irreparable injury absent the requested relief
and (iii) a balancing of the equities Defendants are requesting that the court stop any
contemplated eviction
CONCLUSION74. The Assignment produced by the Plaintiff/Trustee in this case specifically
contradicts the governing documents for this Trust. Whether the Defendants mortgage loan
is/was a part of this Trust has not even been established with documentary evidence but the
Plaintiff/Trustee has already violated the operative agreements of this Trust by creating and
filing a fraudulent assignment of mortgage with this court and has also placed a cloud on the title
of the Defendants property.
75. The Defendant specifically disputes that the mere copy of what the Plaintiff
alleges to be the original note is in fact authentic and disputes that it is her actual signature on
this Note that the Plaintiff has recently filed and which is different than a copy of the Note the
Plaintiff originally filed with this court.
76. Plaintiff has, by its very submissions and admissions, demonstrated that there are
genuine issues of material fact as to its status and when, if ever, Plaintiff came into any
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ownership interest in either the Note or Mortgage. Plaintiffs refusals to comply with
Defendants discovery requests are improper. Summary judgment for Plaintiff is thus
inappropriate.
77. The Plaintiff has failed to show conclusively and with documentary evidence that
it will suffer any injury due to the alleged default of the Defendant and has failed to document
that the mortgage loan in this case is an Asset on its books and ledgers. If the Plaintiff has not
and will not suffer any economic or other injury that it has failed to show that is a real party in
interest.
78. The Certification of Proof of Amount Due, which consists of incompetent
hearsay, is legally inadmissible and does not in any way support the entry of summary judgment
for Plaintiff.
Dated: November 15, 2011
Duly affirmed by:
______________________________
mmmmmmmmmmmmm, EsqAttorney for
the Defendants
259-44 148th
Avenue
Rosedale,
New York 11422Tel # 646-
395-0458
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS-------------------------------------------------------------------------X INDEX #
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DEUTSCHE BANK NATIONAL TRUST COMPANY AS Date: Filed 05-30-2008
AS TRUSTEE FOR REGISTERED HOLDERS OFGSAMP TRUST 2006-NC2 MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2006-NC2
Plaintiff,
-against-
_________________________
Defendant(s)-------------------------------------------------------------------------X
AFFIRMATION OF MAILING
____________, an attorney duly admitted to practice before the Courts of the State of
New York hereby certifies that on ______________________, 2011, I mailed a copy of the
foregoing answer upon the Shapiro & Barack LLC by depositing a true copy of the answer in a
post-paid, sealed envelope, under the exclusive custody and control of the United States Postal
Service.
Dated: This ______day of November, 2011 Rosedale New York11422
_______________________
------------------, Esq.
259-44 148th
Avenue
Rosedale New York 11422646-395-0458
Attorneys for Plaintiff
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS-------------------------------------------------------------------------X INDEX #DEUTSCHE BANK NATIONAL TRUST COMPANY AS Date: Filed 05-30-2008AS TRUSTEE FOR REGISTERED HOLDERS OF
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GSAMP TRUST 2006-NC2 MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2006-NC2
Plaintiff,
-against-
--------------------------------------------------Defendant(s)
DEFENDANTS OPPOSITION
Law Offices of -------------
Attorneys for Defendant______________________________________________________________________________
TO:
Attorneys for Plaintiff
Signature, Rule 130-1.1-a
________________________________
-------------------, Esq.
Service of the within John Doe and Jane Does opposition is hereby admitted.
______________________________ Date: ____________________________Attorney for