hsbc, et al vs jodi matt - amicus curiae of robert p. marley
TRANSCRIPT
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
1/51
i
COMMONWEALTH OF MASSACHUSETTSSUPREME JUDICIAL COURT
_____________________
NO. SJC-11101________________________________
HSBC BANK USA, N.A. & ACE SECURITIES CORP.HOME EQUITY LOAN TRUST SERIES 2005-HE4
Plaintiff-Appellee,
V.
JODI B. MATT
Defendant-Appellant,
_________________________________
ON APPEAL FROM AN ORDER OF FINALJUDGMENT FROM THE LAND COURT
________________________________________
AMICUS CURIAE OF ROBERT P. MARLEY______________________________________________
Robert P. Marley Pro-se18 Lakeview DriveLynnfield, MA [email protected]
March 6, 2012
mailto:[email protected]:[email protected] -
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
2/51
ii
TABLE OF CONTENTS
I. TABLE OF AUTHORITIES.iii, iv, v & viII. STATEMENT OF INTEREST OF AMICUS CURIAE1III. STATEMENT OF THE ISSUES.....2IV. ARGUMENT..2
A) Examination Of Standing Begins And HingesAt The Trust Level and Standing Can Only
Derive from the Trust Instruments7
V. A BASIC TENANT OF LAW REQUIRES THATTHE PROPER PARTIES ARE BEFORE A COURT OF LAW,JURISDICTIONALLY AND SUBSTANTIVELY.14
VI. THE APPELLEE TRUST HAS NO STANDING TO BRING ANACTION UNDER THE SERVICEMEMBERS ACTBECAUSE THERE HAS BEEN NO VALID ENFORCEABLEASSIGNMENT TO THE TRUSTEE OF THE TRUST.16
A) The Appellee Trust Is A New York CommonLaw Trust Controlled By New York Law Basedon Its Trust Instruments.16
B) The Trust Instruments Sets Forth AnUnambiguous Time, Method And Manner OfFunding The Trust.21
VII. THE TRUST AGREEMENT PROVIDES THE ONLY MANNERIN WHICH ASSETS MAY BE PROPERLY TRANSFERRED TOTHE TRUST AND ANY ACT IN CONTRAVENTION OF THE
TRUST AGREEMENT IS VOID.23
A) Transfer Of Assets To The Trust MustBe Pursuant To The Trust Instruments23
B) New York Law Governs the MandatoryObligations To Effectively Transfer AnAsset To A Trust.28
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
3/51
iii
I. TABLE OF AUTHORITIESMASSACHUSETTS CASES
Bello v. South Shore Hospital,384 Mass. 770, 778 (1981).15
285 Lynn Shore Drive Condominium Trust v. AUTOMATICSPRINKLER APPEALS BOARD,
47 Mass. App. Ct. 437, 441 (1999)14
Ginther v. Commissioner of Insurance,427 Mass. 319, 322 (1998).15
US Bank National Association v. Ibanez,458 Mass. 637 (2011).39
NEW YORK CASES
AG Capital Funding Partners, L.P. v. State St. Bank & TrustCo.,
2008 N.Y. Slip Op. 5766, 7 (N.Y. 2008).33
Allison & Ver Valen Co. v. McNee,170 Misc. 144, 146 (N.Y. Sup. Ct. 1939).40
Brown v. Spohr,180 N.Y. 201, 73 N.E. 14, 17 (1904)4, passim
Burgoyne v. James,282 N.Y.S. 18, 21 (1935).29
Corp. v. Bankers Trust Co.,151 Misc. 2d 334, 336 (N.Y. Sup. Ct. 1991)24
Green v. Title Guarantee & Trust Co.,223 A.D. 12, 227 N.Y.S. 252 (1st Dept.), affd, 248N.Y. 627 (1928).33
Gruen v. Gruen,68 N.Y.2d 48, 56 (N.Y. 1986).30
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
4/51
iv
Hazzard v. Chase National Bank,159 Misc. 57, 287 N.Y.S. 541 (Sup. Ct. 1936)33
Heller v. Pope,250 N.E. 881, 882 (N.Y. 1928).32
In re Becker,2004 N.Y. Slip Op. 51773U, 4 (N.Y. Sur. Ct. 2004)29
In re Doman,68 A.D.3d 862, 890 N.Y.S.2d 632,634(2dDep't2009.4
In re Estate of Plotkin,290 N.Y.S.2d 46, 49 (N.Y. Sur. 1968)29
In Re IBJ Schroder Bank & Trust Co.,271 A.D.2d 322 (N.Y. App. Div. 1st Dept (2000))20,34
In re Natl Commer. Bank & Trust Co.,257 A.D. 868, 869-870(N.Y. App. Div.3d Dept(1939)..37
Kermani v. Liberty Mut. Ins. Co.,4 A.D.2d 603 (N.Y. App. Div. 3d Dept 1957).31
Martin v. Funk,75 N.Y. 134, 141 (1878).4
Morlee Sales Corp. v. Manufacturers Trust Co.,
172 N.E.2d 280, 282 (N.Y. 1961).32
Phillippsen v. Emigrant Indus.Sav. Bank,86 N.Y.S.2d 133, 137-138 (N.Y. Sup. Ct. 1948).36
Schmidt v. Magnetic Head Corp.,468 N.Y.S.2d 649, 654 (N.Y. App.Div. 1983).32
Sussman v. Sussman,61 A.D.2d 838 (N.Y. App. Div. 2d Dept 1978).31,35
United States Trust Co. v First Natl City Bank,57 A.D.2d 285, 295-296 (1977).19
Vincent v. Putnam,248 N.Y. 76, 82-84 (N.Y. 1928)36
Wells Fargo Bank v. Farmer,2008 N.Y. Misc Lexis 324831
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
5/51
v
Wells Fargo Bank, N.A. v. Farmer,2008 NY Slip Op 51133U, 6 (N.Y. Sup. Ct. 2008).31,35
HSBC BANK USA, NA v. SENE,
2012 NY Slip Op 50352 - NY: Supreme Court (2012)42
FEDERAL CASES
Agudas Chasidei Chabad of U.S. v. Gourary,833 F.2d 431, 434 (2d Cir.1987).4
In re Dreier LLP,452 BR 391 Bankr. Court, SD New York (2011).5
LFD Operating, Inc. v. Ames Dep't Stores, Inc. (In re AmesDep't Stores, Inc.),
274 B.R. 600, 623 (Bankr.S.D.N.Y.2002).4
Mayfield v. First Natl Bank of Chattanooga,137 F.2d 1013 (6th Cir. 1943).29
Meckel v. Continental Resources,758 F.2d 811, 816 (2d Cir. 1985).33
MISCELLANEOUS CASES
Grant Trust & Savings Co. v. Tucker,49 Ind. App. 345, 353, 96 N.E. 487, 489 (1911).37
Furenes v. Eide, 109 Iowa,511, 80 NW 539 (1899).37
Dickeschied v. Exchange Bank,28 W. Va. 340, 368 (1886).37
Love v. Francis,63 Mich. 181(1886).37
STATUTORY LAW
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
6/51
vi
MASSACHUSETTS GENERAL LAWSC. 266 Section 35A.12
New York Estates, Powers & Trusts,(EPTL)Part 2 - 7-2.411, passim
New York Estates, Powers & Trust,7-2.1(c).31,38
Servicemembers Civil Relief Act,50 U.S.C. App. 501 et seq.(ACT).14
USC : TITLE 26 - INTERNAL REVENUE CODE PART IV - REALESTATE MORTGAGE INVESTMENT CONDUITS SECTION 860 A Gpassim
OTHER AUTHORITIES
Comptroller of the Currency of the United States Treasury,Safety and SoundnessHand-Book (Asset Securitization)http://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdf....6
Pooling & Servicing Agreement Dated June 1, 2005
http://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txt10, passim
Prospectus Supplement Dated June 23, 2005http://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txt10, passim
Mortgage Loan Purchase Agreement (MLPA) Dated Feb 1, 2006from series 2006-HE1http://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htm25
http://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdf -
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
7/51
1
II. STATEMENT OF INTEREST OF AMICUS CURIAEThis is the second time your Amicus has been
compelled to file a Brief as a Friend of the Court.
Yourpro-se Amicus is a lifelong resident of
Massachusetts and he has studied and investigated the
matter of Securitization of Asset Backed Securities
extensively for the past three years. Your Amicus
believes this Brief would be desirable to this
Honorable Court because it explains and simplifies the
issues of a Securitized REMIC Trusts, the road the
note and mortgage must traverse, what laws control,
and whether those laws were tracked, as it relates to
the securitization of the note and mortgage at issue
that would grant or deny the Appellees in the above
captioned matter, legal standing in any Massachusetts
Court of Law.
As a concerned citizen and homeowner embroiled in
the current foreclosure crisis which has sparked a
Nationwide Controversy, your Amicus has an interest in
the instant action. Your Amicus respectfully submits
this Brief without hyperbole or rhetoric.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
8/51
2
III. STATEMENT OF THE ISSUESThis Brief focuses on the ramifications of late
Assignment of Jodi B Matts (Appellant) Note and
Mortgage and limited issues of the REMIC Trust, HSBC
BANK USA, N.A as Trustee and ACE Securities Corp. Home
Equity Loan Trust Series 2005-HE4, collectively
(Appellee Trust), the Trust Instruments, New York
Statutory and Black Letter Law, and the IRS Code.
Further, what is required to insure the Trust legally
possesses the Note and Mortgage (Asset), which would
give the Appellee Trust or any party bound by the
Trust Instruments, a legal, enforceable right in the
Note or Mortgage whereby the parties to the Trust
Instruments could have standing in any legal action
whatsoever.
The combined Trust Instruments are well over a
thousand pages therefore, the references made herein
are the bare minimum required to demonstrate the
Appellee Trust never owned the Asset in the instant
matter and never will.
IV. ARGUMENTThis Honorable Court has solicited amicus briefs
on whether the Land Court Judge correctly concluded
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
9/51
3
that a bank had standing to commence an action to
determine whether the defendant (alleged to be in
breach of her mortgage obligations) was entitled to
the benefits of the Servicemembers Civil Relief Act on
the ground that the bank had a contractual right to
become the holder of the note and mortgage.
To give standing to the Appellee Trust on future,
unattainable rights, was erroneous and respectfully,
the Land Court (Long, J.) needed to look no further
than the late assignment of mortgage CREATED on
November 6, 2007 and recorded on November 16, 2007 in
the Norfolk County Registry of Deeds.
Notwithstanding any other law, the Final
Authorityas it relates to the assignment of the note
and the conveyance of the mortgage to the Securitized
Trust created under the Laws of New York are New York
Laws and the Pooling & Servicing Agreement (PSA) dated
June 1, 2005. See PSA 2.10 Establishment of the
Trust:
The Depositor does hereby establish,
pursuant to the further provisions of thisAgreement and the laws of the State of New
York, an express trust to be known, for
convenience, as "ACE Securities Corp., Home
Equity Loan Trust, Series 2005-HE4" and does
hereby appoint HSBC Bank USA, National
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
10/51
4
Association as Trustee in accordance with
the provisions of this Agreement.1
See also PSA 12.04. Governing Law: This
Agreement shall be construed in accordance
with the laws of the State of New York and
the obligations, rights and remedies of the
parties hereunder shall be determined in
accordance with such laws without regard to
conflicts of laws principles thereof.
Under New York law, "[a] valid express trust
requires (1) a designated beneficiary, (2) a
designated trustee, (3) a fund or other property
sufficiently designated or identified to enable title
of the property to pass to the trustee, and (4) actual
delivery of the fund or property, with the intention
of vesting legal title in the trustee." In re Doman,
68 A.D.3d 862, 890 N.Y.S.2d 632, 634 (2d Dep't 2009)
(citing Brown v. Spohr, 180 N.Y. 201, 73 N.E. 14, 17
(1904)). An express trust may be created orally or in
writing; no particular form of words is necessary.
Agudas Chasidei Chabad of U.S. v. Gourary, 833 F.2d
431, 434 (2d Cir.1987) (citing Martin v. Funk, 75 N.Y.
134, 141 (1878)). See also LFD Operating, Inc. v. Ames
Dep't Stores, Inc. (In re Ames Dep't Stores, Inc.),
274 B.R. 600, 623 (Bankr.S.D.N.Y.2002) ("An express
1 Referenced in Article II of the PSA
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
11/51
5
trust is a fiduciary relationship with respect to
property, subjecting the person by whom the title to
property is held to equitable duties to deal with the
property for the benefit of another person, which
arises as a result of a manifestation of an intention
to create it. Generally, four elements comprise an
express trust: (i) a designated beneficiary; (ii) a
designated trustee who is not 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 delivery of the fund or
other property, or the legal assignment thereof to the
trustee, with the intention of passing legal title
thereto to him or her as trustee.") (internal
quotation marks omitted) (quoting RESTATEMENT (SECOND)
OF TRUSTS 2 (1959)). In re Dreier LLP, 452 BR 391
Bankr. Court, SD New York (2011)
No standing or rights ascribes to the Appellee
Trust whereas, the terms set forth in the Trust
Instruments were violated and the mere fact the New
Century Mortgage createdthe above assignment in 2007
is evidence one did not exist in 2005 as set forth
more fully infra.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
12/51
6
Your Amicus does not brief the issues based on a
Third Party Beneficial Interest to the Contracts and
merely points out that the Parties are duty bound by
the Trust Instruments and must adhere to those
Instruments and if they do not, then New York Law,
inter alia, deems the Partys action void. The rights
and duties bestowed on the Parties of the Trust only
derived from the Trust Instruments and to shed light
on whether these Rights exist, we must refer to the
Instruments of the Trust.
Alternatively, all Borrowers are Third Party
Beneficiaries to the Trust and Trust Instruments.
Your Amicus would refers this Honorable Courts
attention to the, Office of the Comptroller of the
Currency of the United States Treasury, Safety and
Soundness Hand-Book (Asset Securitization).2
Particularly stated, Borrowers benefit from the
increasing availability of credit on terms that
lenders may not have provided had they kept the loans
on their balance sheets. (Benefits of Asset
Securitization), @ p. 4.
2http://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdf
http://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdf -
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
13/51
7
These benefits, which may increase the soundness
and efficiency of the credit extension process, can
include a more efficient origination process, better
risk diversification, and improved liquidity. A look
at the roles played by the primary participants in the
securitization process will help to illustrate the
benefits. (Parties to the Transaction) @ p. 7, see
also, Chart on p. 8, where borrowers reside at the top
of the food chain. Borrowers are the intended third
party beneficiaries of the freed up cash flow from the
trusts whereas, without the trusts, there would be no
money for the borrowers as is the stated intention of
the Securitization Players.
Your Amicus respectfully request that the
Honorable Justices take Judicial Note of the Public
Records from the various Government entities cited
herein the footnotes.
A) Examination Of Standing Begins And Hinges At TheTrust Level And Standing Can Only Derive From The
Trust Instruments
With all due respect to the Land Court (Long,
J.), your Amicus submits that it was Error of Law, to
consider the future contractual rights of HSBC BANK
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
14/51
8
USA, N.A. and ACE Securities Corp. Home Equity Loan
Trust Series 2005-HE4 (Appellee Trust).
To determine standingwithout first considering
and determiningif delivery and acceptance of the
Asset perfected and dominion and control over the
Assets was relinquished by the giver of the Asset
pursuant to the Law thereby giving the Trust control
over the Asset.
To give standing on a future, unattainable right
that is Expressly Prohibitedby Local law, PSA and the
IRS Code, was erroneous.
The Vault Door to the Appellee Trust was Welded
shut on September 27, 2005 to the loan at issue
whereas, the Affidavit filed by Sharon Mason states
the loan at issue was purchased on September 6, 2005,
albeit without proof. See Supplemental Affidavit of
Sharon Mason, dated May 13, 2010, @ p. 2, 4 attached
to the Appellants record (A-96). Even more
inexplicable is that the evidence submitted to the
Land Court suggested that the Asset at issue was in
ACE Securities Corp. Home Equity Loan Trust Series
2005-HE2 and Not in Series 2005-HE4 as claimed. See
Appellants Record (A-191,195).
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
15/51
9
If there were a legal assignment of the Asset to
the Appellee Trust on September 6, 2005, then the need
to create one on November 6, 2007, would not have been
required. Most telling is that in the mortgage
assignment of November 6, 2007, is that New Century
Mortgagenotwithstanding the fact was in bankruptcy
also assigned the Note, clearly indicating, the
Appellee Trust never legally possessed [it] on or
before September 27, 2005. See Mortgage Assignment
attached to the Appellants record as A-26.
The Appellee Trust in the instant action lost
their rights in the Asset when they violated New York
Law, inter alia, and therefore, had no standing in the
Massachusetts Land Court.
The Land Court was on the right track, yet did
not go far enough in its inquiry related to the Trust,
and what was required for the Trust too legally
acquire the Assets. Had the Court gone further, it
would have realized, it needed go no further than the
late assignment createdon November 6, 2007.
The Memorandum and Order (Memo) of the Land
Court, in the above captioned matter, states in
pertinent part, the record clearly shows that HSBC
has a contractual right to become that holder,
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
16/51
10
conferred by the ACE Securities Corp. Home Equity Loan
Trust, Series 2005-HE4 Asset Backed Pass-Through
Certificates Pooling and Servicing Agreement (Jun. 1,
2005). See Section 2.01 (Conveyance of the Mortgage
Loans to Ace Securities Corp. Home Equity Loan Trust,
Series 2005-HE4) and the associated loan schedules
(which include the Matt loan and mortgage). (Emphasis
added).
The Assignment or Mortgage dated November 6,
2007, to the Appellee Trust was an Unlawful
Assignment. There is no legal, valid, enforceable
assignment of the note and conveyance of the mortgage
to the Appellee Trust, unless it complies with the
mandates of Trust Instruments, IRS 860A-G and New York
Law as explained more fully infra.
The Appellee Trust was created by the terms set
forth in the Trust Instruments, Pooling & Servicing
Agreement (PSA),3 dated June 1, 2005, with the
closing date of June 29, 2005, and the Prospectus
Supplement (PS) dated June 23, 2005.4 All the Assets
3http://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txt4http://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txt
http://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txt -
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
17/51
11
Must have be assigned to the Trust on the Closing
Date. See PS @ S-2. On the closing date, the
trust will contain 6,429 conventional, one- to
four-family, first and second lien fixed-rate and
adjustable-rate mortgage loans on residential real
properties (the "Initial Mortgage Loans").
The evidence is clear that the above-mentioned
assignment was not created and executed within the
permitted period. Accordingly, no rights derived from
the Appellee Trust and as a result, the Appellee Trust
has no rights in the note and mortgage and therefore,
no standing whatsoever in any action at law.
Contrary to New York Law and IRS 860 the Appellee
Trust exercised a prohibited act on November 6, 2007
and the above assignment was contrary to the Trust
Instruments and therefore Void pursuant to IRS 860A-G
and New York Estates, Powers & Trusts - Part 2 - 7-
2.4. Any action which deviates from the Trust
documents is void. 7-2.4 Act of trustee in
contravention of trust If the trust is expressed in
the instrument creating the estate of the trustee,
every sale, conveyance or other act of the
trustee in contravention of the trust, except as
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
18/51
12
authorized by this article and by any other provision
of law, is void.
No possession of the Asset exists until there has
been a delivery and an acceptance of the Asset and the
giver of the Asset has relinquished all dominion and
control over the Asset signifying a true sale of the
Asset to the Appellee Trust thereby making the Asset,
inter alia, bankruptcy remote and securely within the
Trust Vault.
The failure of New Century Mortgage to timely
assign the Asset to the Appellee Trust and the
Appellee Trust to discover this Fact, makes any future
attempts after the closing date had past, void
pursuant to New York Law, and the late assignment was
a prohibited act pursuant to IRS 860G as not being a
qualified mortgage. Moreover, the parties Knew they
had no authority to alter the composition of the Trust
as demonstrated infra and the late assignment further
violated M.G.L. c. 266 35A.
A threshold matter to determine that the Appellee
Trust had standing in the Land Court was to determine
whether the Appellee Trust legally possessed the
Asset. Clearly, the record dictates the Trust did not,
as evidenced by the unlawful assignment two plus years
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
19/51
13
after the closing date of the Trust. Moreover, the
Land Court acknowledges in the Memo at p. 2, Indeed,
it is not clear from the record that HSBC is the
current holder of either the note or the mortgage.
Further stating, But a plaintiff need not be the
current holder of the note or the mortgage to have
standing in a Servicemembers case. It is sufficient
if the plaintiff satisfies the general requirements of
standing.
It is axiomatic to standing to have an
enforceable right under the note and mortgage, without
such, there is no reason to file under the
Servicemembers Act. Whereas, there is no justiciable
controversy in that, the Appellee Trust has no rights
because those rights do not exist whereas they do not
own or hold the note and mortgage or have an
enforceable right under such therefore, Appellee Trust
cannot suffer harm and no jurisdictional issue arises.
Therefore, the Appellee Trust could not invoke the
subject matter jurisdiction of the Land Court.
In a securitized mortgage, the rights of the
parties derive from the Trust Instruments created
under New York Law. If the Appellee Trust has violated
the terms of the Trust Instruments, then they have no
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
20/51
14
rights because New York Law voids any action, which
contravenes the Trust Instruments.
Accordingly, in light of the evidence in the
record from the Land Court, logically, Appellees were
one, claiming to be that of which they were not,
making them charlatans without standing and not a
proper party before a court of law as set forth more
fully infra.
V. A BASIC TENANT OF LAW REQUIRES THAT THEPROPER PARTIES ARE BEFORE A COURT OF LAW,
JURISDICTIONALLY AND SUBSTANTIVELY
A precursor to a foreclosure action in
Massachusetts is the filing of a civil complaint in
accordance with the Servicemembers Civil Relief Act 50
U.S.C. App. 501 et seq. (ACT). In any action at law,
only the proper party may bring a Legal Action. In
law, the proper party is the one who actually
possesses the substantive right being asserted and has
a legal right to enforce the claim (under applicable
substantive law).
A party has standing when it can allege an
injury within the area of concern of the statute or
regulatory scheme under which the injurious action has
occurred. 285 Lynn Shore Drive Condominium Trust v.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
21/51
15
AUTOMATIC SPRINKLER APPEALS BOARD, 47 Mass. App. Ct.
437, 441 (1999).
Even if there is an actual controversy, a
plaintiff must demonstrate the requisite legal
standing to secure its resolution. Bello v. South
Shore Hospital, 384 Mass. 770, 778 (1981).
We treat standing as an issue of subject matter
jurisdiction. See Doe v. The Governor, 381 Mass. 702,
705 (1980). "The question of standing is one of
critical significance. `From an early day it has been
an established principle in this Commonwealth that
only persons who have themselves suffered, or who are
in danger of suffering, legal harm can compel the
courts to assume the difficult and delicate duty of
passing upon the validity of the acts of a coordinate
branch of government.' " Tax Equity Alliance v.
Commissioner of Revenue, 423 Mass. 708, 715 (1996),
quoting Doe, supra at 704, Ginther v. Commissioner
of Insurance, 427 Mass. 319, 322 (1998).
Accordingly, as a threshold matter, the party
bringing the action under the ACT would have to
demonstrate a legal right to the debt and demonstrate
they have suffered harm. If an agent on behalf of
owner, proof of agency; how the party came by the
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
22/51
16
right to enforce the debt (Note); proof of such right
by way of assignment, indorsement and proof of
delivery and acceptance of the note and conveyances of
the mortgage pursuant to the statutes of fraud. The
Late Assignment of mortgage dated November 6, 2007 is
clear evidence the Appellee Trust had no standing in
the Land Court as set forth infra.
If the moving party cannot demonstrate these
threshold relationships and proof of said
relationships through an unbroken chain of title,
then, such as the Appellee Trust here in the instant
action, it has no legal standing to bring an action
under the ACT.
VI. THE APPELLEE TRUST HAS NO STANDING TO BRING ANACTION UNDER THE SERVICEMEMBERS ACT BECAUSE THERE
HAS BEEN NO VALID ENFORCEABLE ASSIGNMENT TO THE
TRUSTEE OF THE TRUST
A) The Appellee Trust Is A New York Common LawTrust Controlled By New York Law Based On
Its Trust Instruments
Because Jodi B. Matts (Appellant) loan
securitized in 2005it must stand that when the
Appellee Trust filed under the ACTthey filed as the
purported legal owner and holder of the note and had a
legal right to enforce the mortgage. The Trust is not
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
23/51
17
the originator of the mortgage, the servicer, or even
a bank. Instead, this entity is a New York Common Law
Trust created by an agreement known as the Pooling
and Service Agreement (PSA). Purportedly, the
Appellants loan, along with 8,553 other loans, were
pooled into a REMIC Trust and converted into
residential mortgage-backed securities (RMBS) that are
bought and sold by investorsa process known as
securitization, as certificates. See PS @ S-2 Mortgage
Loans.
The PSA also incorporates by reference @ 2.01,
a separate document called the Mortgage Loan Purchase
Agreement (MLPA). These documents, and the acquisition
of the mortgage assets for the Trust, are controlled
by New York Law pursuant to PSA 12.04 & 12.10 supra.
REMICs are widely used securitization vehicles for
mortgages and are governed by sections 860A through 860G of
the Internal Revenue Code Section 860D (a) (4) of the Code
provides that an entity qualifies as a REMIC only if, among
other things, as of the close of the third month beginning
after the startup day and at all times thereafter,
substantially all of its assets consist of qualified
mortgages and permitted investments.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
24/51
18
This asset test is satisfied if the entity owns no
more than a de minimis amount of other assets. See
1.860D1(b) (3) (i) of the Income Tax Regulations. As a
safe harbor, the amount of assets other than qualified
mortgages and permitted investments is de minimis if the
aggregate of the adjusted bases of those assets is less
than one percent of the aggregate of the adjusted bases of
all the entitys assets. 1.860D1 (b) (3) (ii).
With limited exceptions, a mortgage loan is not a
qualified mortgage unless it is transferred to the REMIC on
the startup day in exchange for regular or residual
interests in the REMIC. See 860G (a) (3) (A) (i).
See PSA @ 11.01 (b): The Closing Date is hereby
designated as the "Startup Day" of each Trust REMIC within
the meaning of Section 860G(a)(9) of the Code.
The legislative history of the REMIC provisions
indicates that Congress intended the provisions to apply
only to an entity that holds a substantially fixed pool of
real estate mortgages and related assets and that has no
powers to vary the composition of its mortgage assets. S.
Rep. No. 99313, 99th Cong., 2d Sess. 79192; 19863 (Vol.
3) C.B. 79192. Section 860F (a) (1) imposes a tax on a
REMIC equal to 100 percent of the net income derived from
prohibited transactions. The disposition of a qualified
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
25/51
19
mortgage is a prohibited transaction unless the disposition
is pursuant to (i) the substitution of a qualified
replacement mortgage for a qualified mortgage; (ii) a
disposition incident to the foreclosure, default, or
imminent default of the mortgage;(iii) the bankruptcy or
insolvency of the REMIC; or (iv) a qualified liquidation.
Section 860F (a) (2) (A).
The underlying promissory notes of every mortgage
purportedly held by the Appellee Trust serve to
generate a potential income stream for investors. The
Trust, purportedly holding the Appellants note and
mortgage was created on June 1, 2005, and by its
terms, set a cut off date at June 1, 2005 and
closing date of June 29, 2005. The terms of the
Trust are contained in the PSA, which creates the
Trust and defines the rights, duties and obligations
of the parties to the Trust Agreement.
It is 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 (1977), affd 45 NY2d 869 (1978);
Restatement [Second] of Trusts 186, comments a, d).
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
26/51
20
See, In Re IBJ Schroder Bank & Trust Co., 271 A.D.2d
322 (N.Y. App. Div. 1st Dept (2000)).
The PSA was filed under oath with the Securities
and Exchange Commission. The Trust, suing through its
Trustee (HSBC), is a New York Corporate Trust formed
to act as a REMIC Trust 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, 2005) is also the Startup Day for the
Trust under the REMIC obligations of the IRC. The
Startup Day is important because the IRC authorizes
how and when a REMIC Trust may receive its assets on
this date.5
The PSA adopts these sections of the IRC by
requiring the parties to the Trust to avoid any action
that might jeopardize the tax status of any REMIC
and/or impose any tax upon the Trust for prohibited
contributions or prohibited transactions. These PSA
provisions are important to the courts analysis of
5 See, PSA Article XI. 11.01 REMIC Administration(b) The Closing Date is hereby designated as the"Startup Day" of each Trust REMIC within the meaningof Section 860G(a)(9) of the Code. However, see entiresection for prohibited transactions.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
27/51
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
28/51
22
transfers of assets from the depositor to the Trust.8
Thus, for an asset to become an Asset of the Trust, it
MUSThave transferred to the Trust within the time set
forth in the PSA and PS.
The extra 90 days in the timeline requirement
incorporated from the REMIC stipulations of the IRC is
to provide a clean-up period for a REMIC to complete
the documents associated with the transfers of assets
to a REMIC after the startup day (which is also the
Trust closing date). Consequently, according to the
plain terms of the Trust Instruments in this case,
the closing date/startup date was June 29, 2005 and
the last day for transfer of assets into the Appellee
Trust was the fixed date of September 27, 2005.
However, for the Appellee Trust to have legally
obtained the Asset and for the Trust to create
certificates based on that Asset, a legal assignment
of the note and mortgage to the Trust was required by
the closing date of June 29, 2005. That means that,
as a matter of law there had to be an indorsement from
the first assignee to the last without a break in the
chain of title. There is no bona fide purchase unless
8 These requirements is found @ ARTICLE XI, 11.01.REMIC Administration (a) through (k)
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
29/51
23
the transfer to the Appellee Trust complied with the
statutes of fraud. No such assignment is evident in
the record and the record indicates there was never a
legal enforceable assignment within the prescribed
period set forth in the Trust Instruments and
therefore, the late assignment dated November 6, 2007
is void, as it violates the terms of the Trust
Instruments, IRS 860 et seq., and New York Law deems
it Void.
VII. THE TRUST AGREEMENT PROVIDES THE ONLY MANNER INWHICH ASSETS MAY BE PROPERLY TRANSFERRED TO THE
TRUST AND ANY ACT IN CONTRAVENTION OF THE TRUST
AGREEMENT IS VOID
A) Transfer Of Assets To The Trust Pursuant To TheTrust Instruments
Generally, the underlying assets of the Trust,
specifically the individual promissory notes, may be
transferred or conveyed by several methods. A Trusts
ability to transact is restricted to the actions
authorized by its Trust Instruments. In this case, the
Trust Instruments permit only one specific method of
transfer to the Trust. That method is set forth in
Section 2.01 of the PSA:
Section 2.01: The Depositor, concurrently
with the execution and delivery hereof, does
hereby transfer, assign, set over and
otherwise convey to the Trustee, on behalf
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
30/51
24
of the Trust, without recourse, for the
benefit of the Certificateholders, all the
right, title and interest of the Depositor,
including any security interest therein for
the benefit of the Depositor, in and to the
Mortgage Loans identified on the Mortgage
Loan Schedule, the rights of the Depositor
under the Mortgage Loan Purchase Agreement
(including, without limitation the right to
enforce the obligations of the other parties
thereto thereunder) and the Subsequent
Mortgage Loan Purchase Agreement, such
assets as shall from time to time be
credited or are required by the terms of
this Agreement to be credited to the Pre-
Funding Account, and all other assets
included or to be included in REMIC I.
Such assignment includes all interest and
principal received by the Depositor and the
Servicers and the Interim Servicer on or
with respect to the Mortgage Loans (other
than payments of principal and interest due
on such Mortgage Loans on or before the Cut-
off Date). The Depositor herewith deliversto the Trustee and each Servicer an executed
copy of the Mortgage Loan Purchase
Agreement.
The analysis of this transfer language requires
the Court to consider each part. The affirmative
language of the Trust PSA places a Duty on the
depositor to make a valid legal transfer in the terms
required by the Trust instrument. The Mortgage Loan
Purchase Agreement (MLPA) is incorporated by reference
into section 2.01 of the PSA. However, it is not
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
31/51
25
attached as an exhibit to the PSA in the instant
matter and the parties did not start attaching the
MLPA to the PSA until 2006 therefore, Your Amicus will
refer this Honorable Courts attention to the
boilerplate MLPA in a subsequent filing on the US
Securities and Exchange Commissions web-site. See
MLPA below, marked as Exhibit F in the PSA. 9
See In Particularly SECTION 4. Transfer of the
Mortgage Loans:
(a) Possession of Mortgage Files: The Sellerdoes hereby sell to the Purchaser, withoutrecourse but subject to the terms of thisAgreement, all of its right, title andinterest in, to and under the Mortgage Loans,including the related Prepayment Charges. Thecontents of each Mortgage File not deliveredto the Purchaser or to any assignee,transferee or designee of the Purchaser on orprior to the Closing Date are and shall be
held in trust by the Seller for the benefitof the Purchaser or any assignee, transfereeor designee of the Purchaser. Upon the saleof the Mortgage Loans, the ownership of eachMortgage Note, the related Mortgage and theother contents of the related Mortgage Fileis vested in the Purchaser and the ownershipof all records and documents with respect tothe related Mortgage Loan prepared by or thatcome into the possession of the Seller on orafter the Closing Date shall immediately vest
in the Purchaser and shall be deliveredimmediately to the Purchaser or as otherwisedirected by the Purchaser.
9http://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htm
http://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htm -
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
32/51
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
33/51
27
second lien on the Mortgaged Propertyrepresented therein as a fee interest vestedin the Mortgagor;
(vii) the original of any guarantee executed
in connection with the Mortgage Note, if any;and
(viii) the original of any securityagreement, chattel mortgage or equivalentdocument executed in connection with theMortgage, if any.
Accordingly, there must be a complete, unbroken
chain of assignments and endorsements in order to
divest allprior to entering the TRUST of Pooled
Assetsof dominion and control over the assets, the
Note and Mortgage. The only party which could maintain
any rights in the note and mortgage, would be the
Trust, however, because there was no lawful assignment
to the Appellee Trust in the instant matter, it has no
enforceable rights under the Note and Mortgage.
The foregoing requirement demonstrates clearly
that while the parties to the securitization Trust
made provisions whereby promissory notes for this
Trust might be delivered in blank to the Trustee;
there were two requirements that weremandatory.
First, all notes sold to the Trust were required to
have an unbroken chain of endorsements from the
original payee to the person endorsing it to the
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
34/51
28
Trustee. This requirement stems from a particular
business concern in securitization, namely to evidence
that there was in fact a true sale of the
securitized assets and that they are in no way still
property of i.e., the originator, sponsor, or
depositor, and thus not subject to the claims of
creditors of the originator, sponsor, or depositor.
Second, there was a requirement that ultimately,
on or before the Trust closing date, the actual
promissory note must be endorsed over to the trustee
for the specific trust to effectively transfer the
asset into the Trust and therefore, make the
Appellants promissory note Trust property. This
requirement finds support in logic and law and is, in
fact, the prehistoric and settled Law of New York on
this issue. The fact that the November 6, 2007
assignment of mortgage also assigns the note evidences
that the note was never timely or legally assigned to
the Appellee Trust.
B) New York Law Governs The Mandatory Obligations ToEffectively Transfer An Asset To A Trust
It is settled law that securitization trusts,
such as the Appellees, are subject to the common law
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
35/51
29
of New York.10New Yorks Trust Law is ancient and
settled. There are a few principles of New York Trust
Law that are particularly important to the analysis of
whether any particular asset is an asset of a given
Trust. Under New York Law, the analysis of whether an
asset is Trust property is determined under the law of
gifts.11 In order to have a valid inter vivos gift,
there must be a delivery of the gift (either by a
physical delivery of the subject of the gift) or a
constructive or symbolic delivery (such as by an
instrument of gift) sufficient to divest the donor of
dominion and control over the property12and what is
10 As early as 1935, in Burgoyne v. James, 282 N.Y.S.
18, 21 (1935), the New York Supreme Court recognizedthat business trusts, also known as Massachusetts
trusts, are deemed to be common law trusts. See alsoIn re Estate of Plotkin, 290 N.Y.S.2d 46, 49 (N.Y.Sur. 1968) (characterizing common stock trust funds ascommon law trust[s]). Other jurisdictions are in
accord. See, e.g., Mayfield v. First Natl Bank ofChattanooga, 137 F.2d 1013 (6th Cir. 1943) (applyingcommon law trust principles to a pool of mortgageparticipation certificate holders).
11
In the case of a trust where there is a trustee
other than the grantor, transfer will be governed bythe existing rules as to intent and delivery (theelements of a gift)In re Becker, 2004 N.Y. Slip Op.51773U, 4 (N.Y. Sur. Ct. 2004).
12 (see, Matter of Szabo, 10 NY 2d 94 NY (1961);Speelman v. Pascal, 10 N.Y.2d 313, 318-320 (1961);Beaver v. Beaver, 117 N.Y. 421, 428-429 (1889); Matter
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
36/51
30
sufficient to constitute delivery must be tailored to
suit the circumstances of the case.13 The delivery
rule requires that [the] delivery necessary to
consummate a gift must be as perfect as the nature of
the property and the circumstances and surroundings of
the parties will reasonably permit.14
Under New York law there are four essential elements
of a valid trust of personal property: (1) A
designated beneficiary; (2) a designated trustee, who
must not be the beneficiary; (3) a fund or other
property sufficiently designated or identified to
enable title thereto to pass to the trustee; and (4)
the actual 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.15 There is no trust under the common law
until there is a valid delivery of the asset in
of Cohn, 187 App. Div. 392, 395 (1919) as cited inGruen v. Gruen, 68 N.Y.2d 48, 56 (N.Y. 1986).
13 (Matter of Szabo, supra, at p. 98).
14 (id.; Vincent v Rix, 248 N.Y. 76, 83(1928); Matterof Van Alstyne, supra, at p 309; see, Beaver v.Beaver, supra, at p 428) as cited in Gruen v. Gruen,68 N.Y.2d 48, 56-57 (N.Y. 1986).
15 Brown v. Spohr, 180 N.Y. 201, 209-210 (N.Y. 1904).
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
37/51
31
question to the Trust.16 If the trust fails to acquire
the property, then there is no trust over that
property which may be enforced.17An attempt to convey
to a trust will fail if there is no designated
beneficiary in the conveyance.18
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)
16 Until the delivery to the trustee is performed bythe settlor, or until the securities are definitelyascertained by the declaration of the settlor, when hehimself is the trustee, no rights of the beneficiary
in a trust created without consideration arise (cf.Riegel v. Central Hanover Bank & Trust Co., 266 App.Div. 586; Matter of Gurlitz [Lynde], 105 Misc 30,affd 190 App. Div. 907, supra; Marx v. Marx, 5 Misc
2d 42) as cited in Sussman v. Sussman, 61 A.D.2d 838(N.Y. App. Div. 2d Dept 1978).
17 In an action against the individual defendant astrustee, based on the theory of breach of fiduciaryobligation, the complaint was properly dismissed onthe ground that he had acquired no title or separatecontrol of the goods and, hence, there was no actualtrust over the property to breach. Kermani v. LibertyMut. Ins. Co., 4 A.D.2d 603 (N.Y. App. Div. 3d Dept
1957).
18 Wells Fargo Bank v. Farmer, 2008 N.Y. Misc Lexis3248, Wells Fargo Bank, N.A. v. Farmer NY Slip Op51133 - NY: Supreme Court (2008).
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
38/51
32
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 MLPA, and
the Trust Instrument known as the PSA, demand 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.19 The Trust documents
require that the promissory notes and mortgages be
transferred to the Trustee, which under New York trust
law requires valid delivery. The question then
arisesWhat constitutes valid delivery to the
Trustee?
19 Courts may neither ignore the actual provisions oftransaction documents nor create contractual remediesthat were omitted from the governing contracts by thecontracting parties. See Schmidt v. Magnetic HeadCorp., 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 toimplication. (citations omitted)); Morlee SalesCorp. v. Manufacturers Trust Co., 172 N.E.2d 280, 282(N.Y. 1961) ([T]he courts may not by constructionadd or excise terms . . . and thereby make a new
contract for the parties under the guise ofinterpret[ation]. (quoting Heller v. Pope, 250 N.E.881, 882 (N.Y. 1928))
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
39/51
33
When the mandates of transfer to the trustee are
viewed in the context of the corporate or business
trust indenture, more information about compliance
with these requirements becomes apparent. It is
important to point out that,
[t]he corporate trustee has very little incommon with the ordinary trustee . . . .Thetrustee under a corporate indenture . . . hashis [or her] rights and duties defined, notby the fiduciary relationship, butexclusively by the terms of the agreement.His [or her] status is more that of astakeholder than one of a trustee.20
Undeniably, [a]n indenture trustee is unlike the
ordinary trustee. In contrast with the latter, some
cases have confined the duties of the indenture
trustee to those set forth in the indenture.21 The
indenture trustee, it has been said, resembles a
stakeholder whose obligations are defined by the terms
of the indenture agreement.22Moreover, [i]t is
20 AG Capital Funding Partners, L.P. v. State St. Bank& Trust Co., 2008 N.Y. Slip Op. 5766, 7 (N.Y. 2008)
21
Green v. Title Guarantee & Trust Co., 223 A.D. 12,227 N.Y.S. 252 (1st Dept.), affd, 248 N.Y. 627(1928); Hazzard v. Chase National Bank, 159 Misc. 57,287 N.Y.S. 541 (Sup. Ct. 1936), affd, 257 A.D. 950,14 N.Y.S.2d 147 (1st Dept.), affd, 282 N.Y. 652,
cert. denied, 311 U.S. 708 (1940).
22 See Meckel v. Continental Resources, 758 F.2d 811,816 (2d Cir. 1985) as cited in Ambac Indem. Corp. v.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
40/51
34
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.23
The clear significance of these cases and
statutes is that the delivery of an asset to a trustee
under the terms of a corporate indenture requires
strict acquiescence with the mandatory transfer terms
of the trust indenture. Thus, the Trustee in this case
can only take delivery in strict compliance with the
terms of the PSA/Trust Instrument.
Further, given that New York Estates Powers and
Trusts Law section 7-2.1(c) authorizes a trustee to
acquire property in the name of the Trust as such
name is designated in the instrument creating said
trust property, there should be little doubt that
for transfer to a trustee to be effective, the
property must be registered in the name of the trustee
forthe particular trust. Trust property cannot beas
Bankers Trust Co., 151 Misc. 2d 334, 336 (N.Y. Sup.Ct. 1991).
23See, United States Trust Co. v First Natl CityBank, 57 A.D.2d 285, 295-296, affd 45 NY2d 869;Restatement [Second] of Trusts 186, comments a, d)as cited in In re IBJ Schroder Bank & Trust Co., 271A.D.2d 322 (N.Y. App. Div. 1st Dept (2000).
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
41/51
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
42/51
36
(2) The delivery necessary to consummate a gift
must be as perfect as the nature of the property and
the circumstances and surroundings of the parties will
reasonably permit; there must be a change of dominion
and ownership; intention or mere words cannot supply
the place of an actual surrender of control and
authority over the thing intended to be given.26
It is the consummation of the donors intent to
give that completes the transaction. Intention alone,
no matter how fully established, is of no avail
without the consummated act of delivery.27
How could one logically argue that delivering a
promissory note endorsed in blank (making it bearer
paper) into a trustees vault is delivery beyond the
authority and control of the donor when the vault is
managed by the agent of the donor? If the donor were
to claim that the promissory note were its property,
not the trustees, there would be no evidentiary basis
for the trustee to claim ownership. Consequently, New
York law expressly requires that for property to be
26 Vincent v. Putnam, 248 N.Y. 76, 82-84 (N.Y. 1928).
27 Phillippsen v. Emigrant Indus.Sav. Bank, 86 N.Y.S.2d133, 137-138 (N.Y. Sup. Ct. 1948). (Beaver v. Beaver,supra,117 N.Y. 421, 428, 22 N.E. 940, 941, 6 L.R.A.403, 15 Am.St.Rep. 531).
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
43/51
37
validly delivered to a trust, the property must pass
completely out of the control of the donor (and its
agents):
If the donor delivers the property to
the third person simply for the purpose of
his delivering it to the donee as the agent
of the donor, the gift is not complete until
the property has actually been delivered to
the donee. Such a delivery is not absolute,
for the ordinary principle of agency
applies, by which the donor can revoke the
authority of the agent, and resume
possession of the property, at any time
before the authority is executed.28
Another case addressing this issue holds that In
order that delivery to a third person shall be
effective, he must be the agent of the donee. Delivery
to an agent of the donor is ineffective, as the agency
could be terminated before delivery to the intended
donee.29
Trustees for securitizations often occupy many
roles concurrently and conflictingly both as document
custodians and as trustees for myriad thousands of
28 (See, also, Grant Trust & Savings Co. v. Tucker, 49
Ind. App. 345, 353, 96 N.E. 487, 489 (1911); Furenesv. Eide, 109 Iowa 511, 80 NW 539 (1899); Dickeschiedv. Exchange Bank, 28 W. Va. 340, 368 (1886); Love v.Francis, 63 Mich. 181(1886).
29In re Natl Commer. Bank & Trust Co., 257 A.D. 868,869-870 (N.Y. App. Div. 3d Dept (1939) citing Vincentv. Rix, supra v. Rix, supra; Bump v. Pratt, 84 Hun,201.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
44/51
38
securitizations as well as for various parties who are
active in the securitization process including
originators, servicers, sponsors and depositors.
Accordingly, it is unimaginable that anything other
than registration into the name of the trust as such
name is designated in the instrument creating said
trust property30 could ever qualify as delivery to any
particular securitization trust. Absent such
registration, there would be nothing that would
indicate which of thousands of trusts in the care of a
trustee a particular promissory note might belong to
or if it were the personal property of the trustee
itself. Absent such registration, a promissory note
would simply be bearer paper, and thus the property of
anyone who obtained possession of it. Further, if
anything less constituted delivery, why are our courts
overwhelmed with robo-signed mortgage assignments and
affidavits expressing, outrageous legally impossible
transfers into the specific trusts long afterthe
trusts have closed for funding?
This point was recently slammed home to the
public consciousness in a watershed decision by this
30 EPTL 7-2.1(c)
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
45/51
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
46/51
40
Further, the failure to convey to the Appellee
Trust per the controlling Trust Instruments is not a
matter that may be cured by the breaching party. New
York Law is unflinchingly clear that a trustee has
only the authority granted by the instrument under
which he holds; either Deed or Will. This fundamental
rule has existed from the beginning and is still law.31
To the extent that the Note and Mortgage at issue
was not conveyed to the Appellee Trust as required and
when required by the Trust instrument, they are not
assets of the Trust and the Appellee trust could not
correct this deficiency in 2007since the funding
period provided in the Trust instruments passed two-
plus years prior.
Any attempts to acquire assets by the Trust,
which violate the terms of the Trust Instruments are
void. Therefore, late assignments, improper chains of
title, late endorsements, and improper chains of title
in the endorsements are just a number of the many
examples of actions, which are voidif taken by a
party to the indenture who is attempting to transfer
31 Allison & Ver Valen Co. v. McNee, 170 Misc. 144, 146(N.Y. Sup. Ct. 1939).
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
47/51
41
property to the Trustee for the Trust in violation of
the Trust Instrument.
Under New York Law, there is no Trust over
property that has not been properly transferred to a
Trust.
Any attempt by the parties, to transfer the
promissory note to the Trust on November 6, 2007 would
fail for numerous reasons, not the least of which is
that the closing date of June 29, 2005 had come and
gone prior to the assignment to the Trust.
By the terms of the Trust and the applicable
provision of the Internal Revenue Code incorporated
into and a part of the Trust agreement, the promissory
note could not and cannot be transferred to the Trust.
The uncontroverted evidence in the instant action is
that the Appellants loan was never been legally
assigned or conveyed to the Trust and a conveyance to
the Trust in 2007 is void as violating the terms of
the PSA inter alia, and therefore, the Court is left
with one clear and inescapable proposition. The Trust
has never owned theAppellants promissory note or the
mortgage and the Trustcan never own theAppellants
promissory note leaving it with no enforceable right
under the mortgage.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
48/51
42
Subsequently, Standing will forever escape the
Appellee trust, and no want of trying will ever change
this fact. Certainly, there may be a proper Plaintiff
to bring a civil complaint under the ACT however; it
certainly is not the Appellee Trust. A Proper and
Legal demonstration of standing begins and ends with
the TRUST in any securitized mortgage and the late
assignment in the instant matter dated November 6,
2007 is clear evidence that one never took place in
2005.
The last case Your Amicus would cite which, will
give this Honorable Court a clear understanding of how
pervasive the deception and the abuses perpetrated on
Courts across the Nation in all matters involving the
Appellee Trust are; See HSBC BANK USA, NA v. SENE, NY
Slip Op 50352 , NY Supreme Court (2012), were the
Court stated: This Court is further reporting the
matter to the District Attorney, Kings County, the
Attorney General of the State of New York and the U.S.
Attorney for the Eastern District of New York. Copies
of the two notes are annexed hereto and made a part
hereof. This constitutes the decision and order of the
Court.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
49/51
43
CONCLUSION
In light of the foregoing, based on the law, the
terms of the Pooling and Service Agreement inter alia,
and the uncontroverted facts related to the November
6, 2007 Assignment of the Note and Mortgage, clearly
there were not enough facts in evidence before the
Land Court to determine a future right under the note
and mortgage. The evidence suggests completely the
opposite whereas the Appellee Trust, HSBC BANK USA,
N.A as Trustee and ACE Securities Corp. Home Equity
Loan Trust Series 2005-HE4 will never have standing as
it relates to Jodi B. Matts note and mortgage. If
there was no timely assignment to the Trustee within
the proscribed period as set forth above, there can
never be one.
Your Amicus concludes, with all due respect to
the Land Court (Long, J.), that for the Land Court to
proffer and hold that the Appellee Trust couldbecome
the owner and holder of the note and mortgage and
therefore, had standing, was clear error of law, when
clearly it cannot have standing, as it is prohibited
by New York Law and IRS 860A-G.
-
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
50/51
44
Therefore Your Amicus respectfully request that
this Honorable Court reverse the Land Court's Rulings,
or alternatively, remand the case back to the Land
Court for a factual determination that Appellee Trust
lacks any evidentiary foundation to support its claim
of standing as it is not the current holder of
Appellants Note and Mortgage. Further, for a
determination as to whether or not the Appellee Trust
and their Counsel deliberately committed Fraud upon
the Land Court (Long, J).
Respectfully Submitted
/s/Robert P. Marley
________________________Robert P. Marley, Pro-se18 Lakeview DriveLynnfield, MA 01940781-844-3044
Dated: March 6, 2012
mailto:[email protected]:[email protected] -
8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley
51/51
45
Certification
I, Robert P. Marley, hereby certify that I complied,
to the best of my abilities, with Mass. R. A. P Rule
16 (k) and further, hereby certify that I have served
two copies of the herewith Amicus Brief on the partys
attorney of record by sending the same by US regular
mail and by e-mail on this 6 day of March, 2012.
Signed under the pains and penalties of perjury on
this 6 day of March, 2012.
/s/Robert P. Marley
_____________________________
Robert P. Marley