nj - response in opposition to msj + memorandum of law
TRANSCRIPT
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SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION, ESSEX COUNTY
_____________________________________________X
Deutsche Bank National Trust Company, Docket No.: F-20060-08
as Trustee of Argent Securities, Inc. Asset-Backed
Pass Through Certificates, Series 2004-PW1
Plaintiff,
v.
Paulette A. Dennis, et. al.
Defendant(s).
______________________________________________X
DEFENDANTS RESPONSE IN OPPOSITION TO
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
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Comes Now, Defendant, Paulette A. Dennis, by and through her
attorney, Farrel Donald, and pursuant to Rule 4:46-2(b), hereby submits her
Response in Opposition to Plaintiffs Motion for Summary Judgment.
SUMMARY STATEMENT
Plaintiff has filed a Motion for Summary Judgment which relies on
factually inapplicable decisional law; ignores the threshold issue of legal
standing; fails to justify the striking of Defendants contesting Answer and
denials; and purports to be supported by a Certification of Proof of Amounts
Due for Plaintiff which is not made on personal knowledge and which is in
fact based on incompetent hearsay. Plaintiff has failed to demonstrate the
absence of genuine issues of material fact and has failed to sustain its
burden to be entitled to the entry of summary judgment.
Plaintiffs own submissions and admissions therein demonstrate that
there are issues of material fact before this court. In this case, the Plaintiff
has submitted various allegations as to its ownership status of the subject
Note and Mortgage which are highly conflicting in nature. For instance in the
complaint, the Plaintiff does not even allege ownership of the Note and
Mortgage, it merely alleges that an Assignment from Argent Mortgage
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Company, LLC to the Plaintiff was somewhere in existence and in the
process of being recorded. In a subsequent Certification of Amount Due
filed on or about October 10, 2008, the servicer for the Plaintiff alleged that
the Plaintiff is still the holder and owner of the aforesaid obligation and
mortgage. Then, in the Plaintiffs Motion for Summary Judgment, the Plaintiff
merely alleges that it is the holder of the Note and Mortgage by the
aforementioned Assignment of record. It is one thing to be a holder and
yet another thing to be an owner and holder. These various allegations
conflict with one another and alone present issues of material fact to this
court.
The Plaintiff is relying solely on an un-authenticated Assignment and a
new Note it has recently submitted and is alleging to be the original,
unaltered Note. Defendant specifically denies that this new copy of a Note
Plaintiff has submitted is authentic and bears her actual, original signature.
One thing is crystal clear: 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 by established with documentary evidence but the
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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.
RESPONSE TO PLAINTIFFS MOTION
1. Defendant does not dispute that she obtained a mortgage from Argent
Mortgage Company in the amount of $126,000.00 and signed a Note
payable to Argent Mortgage Company, LLC and a Mortgage.
2. The Defendant has specifically and repeatedly disputed that the Note
and Mortgage were in fact assigned to Plaintiff, at a minimum, in the
manner and method presented to this court by virtue of the
Assignment dated May 16, 2008 the Plaintiff has filed. The Defendant
specifically disputes that Tamara Price has any lawful authority to
execute this Assignment on behalf of Argent Mortgage Company, LLC;
especially since the Assignment was executed on May 16, 2008 nearly
one year AFTER Argent Mortgage Company ceased all operations and
also because the Plaintiff attaches no documentation supporting
Tamara Prices authority to execute on behalf of Argent Mortgage
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Company, LLC.
3. The Defendant specifically denies that any amount or payments are
due to the Plaintiff and Plaintiff has completely failed to provide any
evidence that its demands for payment have any merit whatsoever. To
date, Plaintiff has only submitted certain hearsay evidence that
Defendant is even in default.
4. Defendant disputes that Plaintiff has legal standing to pursue this
cause of action. Plaintiff has failed to document that it has any
financial interest at stake in this matter and has failed to document
that the Defendants Note is shown to be an asset of the Plaintiff.
Plaintiff does not have a sufficient stake in the outcome of this action
and has shown no economic injury or otherwise due to the alleged
default by Defendant. Defendant specifically denies that the latest
Note presented by the Plaintiff is the original Note signed by Defendant
and denies that the Note presented by Plaintiff and alleged to the
original Note bears her actual, original signature.
5. Defendant specifically disputes that Plaintiff is in possession of the
Original Note and therefore lacks the standing to foreclose. A mortgage
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cannot be delinquent, only a Note can be delinquent. The Plaintiff is
merely alleging that the Note is bearer paper and has not sufficiently
demonstrated such. If the Note is found to be un-authentic or not the
original, then Plaintiff is merely in possession of a worthless piece of
paper.
6. Defendant specifically disputes Plaintiffs allegations in 6 of its Motion
for Summary Judgment.
7. Defendant specifically disputes that the Assignment is authentic and
contends that the Plaintiff fabricated this Assignment as a means to
prop up its allegations as the owner and holder of the Note and
Mortgage so that it could rely on such document to attempt to defeat
Defendants argument and defense that it lacks standing. Plaintiff
contends that the Assignment was in its possession prior to the filing of
the Complaint however Plaintiff failed to attach the Assignment to its
complaint but rather it merely references the existence of such a
document. If the Assignment was authentic and it truly was in
possession of the document prior to the filling of the complaint then it
would be plausible that Plaintiff would have been able to simply attach
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the Assignment to its complaint. Furthermore, the Assignment
produced by Plaintiff DIRECTLY CONFLICTS WITH THE GOVERNING
DOCUMENTS THAT PLAINTIFF IS CONTROLLED BY IN ITS CAPACITY AS
TRUSTEE FOR ARGENT SECURITIES, INC. ASSET BACKED PASS
THROUGH CERTIFICATES SERIES 2004-PW1.
8. Defendant specifically denies Plaintiffs allegation that there are no
material issues of fact and to the contrary, the Defendant has and
continues to show this court that serious issues of fact do exist which
go to the heart of this cause of action.
MEMORANDUM OF LAW
9. Plaintiffs view of the scope of Chancery litigation is as wrongfully
narrow as that found by the court in Leisure Technology-Northeast, Inc. v.
Klingbiel Holding Company, 137 N.J.Super. 353, 349 A.2d 96 (N.J. Super A.D.
1975), wherein it was held that R.4:6-2 requires that every defense to an
action legal or equitable, in law or in fact be asserted in an answer, and
that one of the purposes of the adoption of the Judicial Article of the 1947
Constitution was to permit the resolution of all aspects of a controversy
between parties to be resolved in a single forum, whether the claims be legal
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or equitable in nature. 137 N.J.Super. at 357.
10. The Courts of New Jersey have apparently not addressed the
specific factual situation in this case. In instances where there is no New
Jersey case on point, the Courts of New Jersey have utilized opinions from
other jurisdictions for guidance. (See, e.g., Greate Bay Hotel & Casino, Inc. v.
City of Atlantic City, 264 N.J.Super. 213, 217-218, 624 A.2d 102 (N.J. Super L.
1993)(analysis of treatment of business trusts as distinct legal entities by
various other jurisdictions including California, New York, and Michigan where
no New Jersey case explicitly dealt with types of trusts in case); Gregory v.
Allstate Insurance Company, 315 N.J.Super. 78, 82-83, 716 A.2d 573
(N.J.Super.L. 1997)(analyzing split of authority in jurisdictions which
considered issue of whether victim of unintentional auto collision was
covered by uninsured motorist coverage). The Courts of the State of New
York have been repeatedly presented with the legal standing issues in
foreclosure actions raised in this case, and have consistently held that when
there is no proof that the foreclosing party had the requisite legal interest in
the mortgage and note at the time that it filed the foreclosure action that
dismissal of the action was proper.
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11. In mortgage foreclosure actions (as in all actions), the foreclosing
party must have standing to bring the action. Standing to sue is critical to
the proper functioning of the judicial system. It is a threshold issue. If
standing is blocked, the pathway to the courthouse is blocked. Standing to
sue requires an interest in the claim at issue in the lawsuit that the law will
recognize as a sufficient predicate for determining the issue at the litigants
request.If a plaintiff lacks standing to sue, the plaintiff may not proceed in
the action. IndyMac Bank v. Bethley, 2009 NY Slip Op 50186(U)(N.Y.Sup.Ct.
2/6/2009), citing Saratoga County Chamber of Commerce, Inc. v. Pataki, 100
NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]; Caprer v. Nussbaum,
36 AD3d 176, 181 [2d Dept 2006]; Stark v. Goldberg, 297 A2d 203 [1 st Dept
2002].
12. Where there is no evidence that the plaintiff, prior to
commencing a foreclosure action, is the holder of the mortgage and note or
took physical delivery of the mortgage and note or that same were conveyed
by valid written assignment, the plaintiff did not have standing to institute
the action. New Century Mortgage Corporation v. Durden et al., 2009 NY Slip
Op 50175(U) (N.Y. Sup. Ct. 2/2/09), citing Deutsche Bank Trust Co. Ams. V.
Peabody, 20 Misc. 3d 1108A (Sup.Ct. Saratoga County 2008) and
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Countrywide Home Loans, Inc. v. Taylor, 17 Misc. 3d 595 (Sup.Ct. Suffolk
County 2007) and additional cases cited therein.
13. A plaintiff has no foundation in law or fact to foreclose upon a
mortgage in which the plaintiff has no legal or equitable interest, or where an
assignment of the mortgage post-dates the filing of the complaint, the
plaintiff does not have the requisite ownership interest at the time of filing.
As a foreclosure of a mortgage may not be brought by one who has no title
to it and absent a legally effective transfer of the debt, the (post-filing)
assignment of the mortgage is a legal nullity. U.S. Bank National Association
v. Kosak et al., 2007 NY Slip Op 51680(U)(N.Y. Sup.Ct. 9/4/2007), citing Katz
v. East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998] and
Kluge v. Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dpet 1988].
STATEMENT OF FACTS
14. In addition to the disputed issues of material fact set forth in the
Defendants Statement of Material Facts filed simultaneously herewith, the
Defendant has propounded a First Request for Production, First Request for
Admissions, and First Set of Interrogatories upon Plaintiff, none of which have
been responded to as of the date of this Response other than to summarily
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object to nearly all of the discovery as overly burdensome. These discovery
requests seek information as to the Plaintiffs legal standing including the
chain of title to the mortgage and note which are factual issues material to
not only the Plaintiffs claim but also the affirmative defense of the
Defendant and which relate specifically to the subject Note and Mortgage. As
there is a dispute as to the absence of factual issues at this early stage of
the proceedings where the case is not fully developed, summary judgment is
inappropriate. Velantzas v. Colgate-Palmolive Company, Inc., 109 N.J. 189,
193, 536 A.2d 237 (N.J. 1987):
15. Generally, we seek to afford every litigant who has a bona fide
cause of action or defense the opportunity for full exposure of his case, and
When critical facts are peculiarly within the moving partys knowledge, it
is especially inappropriate to grant summary judgment when discovery is
incomplete. 109 N.J. at 193, citing United Rental Equip.Co. v. Aetna Life and
Casualty Ins. Co., 74 N.J. 92, 99, 376 A.2d 1183 (1977)(citing Robins v. Jersey
City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957), and Martin v. Educational
Testing Serv., Inc., 179 N.J. Super 317, 326, 431 A.2d 868 (Ch.Div.1981).
In cases where a suit is in an early state and not fully developed, the
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standard by which a court ought to review a judgment terminating it now is
from the standpoint of whether there is any basis upon which the plaintiff
should be entitled to proceed further. Velantzas, supra at 193, citing Bilotti v.
Accurate Forming Corp., 39 N.J. 184, 193, 188 A.2d 24 (1963).
16. Plaintiff also attempts to support its Motion for Summary
Judgment with the Certification of Proof of Amount Due by an unnamed and
unrecognizable person claiming to be a Litigation Specialist but who is not
an officer or director of the Plaintiff and who failed to fully identify himself
and who exactly he is employed by. The subject Certification is not made on
personal knowledge, jumps to several legal conclusions which this person
cannot simply make and admits that it is based on a review of the records of
the plaintiff. As the Certification is not based on personal knowledge, the
statements in the Certification can only be based on information and belief.
The Plaintiff also failed to attach to its Certification any of the documents the
Affiant referred to in his statements.
17. Rule 1:6-6 requires that Certifications in support of Motions be
made on personal knowledge. Personal knowledge excludes matters based
on information and belief. See., e.g., Wang v. Allstate Ins. Co., 125 N.J. 2, 16
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(1991); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 153 (1988). The
Certification, which is based on a review of computerized records (which
areper se incompetent hearsay) by someone without personal knowledge, is
thus incompetent to support the Plaintiffs Motion for Summary Judgment as
a matter of law and New Jersey procedure.
The Certification also makes reference to and attaches the Assignment
(was attached as Exhibit C to the Certification). This Assignment is the very
document demonstrating a substantial issue of material fact in that this
Assignment directly conflicts with specific provisions in the Pooling and
Servicing Agreement that the Plaintiff attaches as Exhibit D to their Motion
for Summary Judgment (only the first page of the Pooling and Servicing
Agreement was attached by Plaintiff).
18. Article II of the Pooling and Servicing Agreement, attached as
Exhibit B to this Response clearly states on page 77 that the Depositor...
does hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse... all the right, title and interest of the
Depositor, in and to the Mortgage Loans identified in the Mortgage
Loan Schedule, the rights of the Depositor under the Mortgage Loan
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Purchase Agreement, all other assets included or to be included in
the REMIC I and the Cap Contracts.
The Depositor for this Trust and under this specific Pooling and
Servicing Agreement is Argent Securities, Inc. and is clearly not
the Assignor, Argent Mortgage Company, LLC, on the Assignment
produced by Plaintiff.
19. Argent Securities, Inc. is a specific, separate entity and this
entity is NOT Argent Mortgage Company, LLC. Plaintiff produced an
Assignment after filing its Complaint that alleges to assign the Subject Note
and Mortgage from ARGENT MORTGAGE COMPANY, LLC TO DEUTSCHE BANK
NATIONAL TRUST COMPANY AS TRUSTEE OF ARGENT SECURITIES, INC ASSET
BACKED PASS THROUGH CERTIFICATES, SERIES 2004-PW1. This Assignment
DIRECTLY CONFLICTS WITH THE POOLING AND SERVICING AGREEMENT
GOVERNING THIS TRUSTand raises genuine issues of material facts as to
when (if ever) Plaintiff came into any ownership rights of either the Note or
the Mortgage. The Pooling and Servicing Agreement Conveyance clauses on
page 77 also specifically reference the Mortgage Loan Schedule and the
Mortgage Loan Purchase Agreement. Neither of these documents has been
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attached by the Plaintiff to conclusively demonstrate the Defendants Note
and Mortgage have ever been or ever were deposited into and/or assigned to
this Trust, and even if so, specifically, when that happened.
20. Additionally, the Prospectus and the Pooling and Servicing
Agreement clearly stipulate that the Closing Date for this Trust was on or
about June 7, 2004 see Exhibit C to this Response for the pertinent parts
of the Prospectus.
In the case of a Mortgage-Backed Securitized Trust, it is always necessary for
the Trust to establish an unbroken chain of transfers of the mortgage notes
from the Originator to the Trust. The objective of the securitization process is
to make the mortgage notes as bankruptcy remote as is legally possible
from any claims against the Originator, Sponsor or Master Servicer. The
operative document for the mandatory note transfer rules in connection with
the mortgage notes is the Pooling and Servicing Agreement (PSA) or
sometimes referred to as the Pooling Agreement or the Servicing Agreement.
The applicable statutory laws include Articles 3 and 9 of the Uniform
Commercial Code and any local statutes related to real estate law.
21. To the point, the Section 2.01(iv) of the Pooling and Servicing
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Agreement (Exhibit C) for the Trust that this loan was deposited into says
that In connection with such transfer and assignment, the
Depositor does hereby deliver to, and deposit with, the Trustee the
following documents (iv) the original recorded intervening
Assignments of the Mortgage showing a complete chain of
assignments from the Originator to the person assigning the
mortgage to the Trustee... (emphasis mine).
22. Exhibit A of this Response clearly demonstrate the Chain of
Title and Ownership of the Mortgage Loans for the specific Trust the Plaintiff
is acting as Trustee for.
23. The Originator normally the party who wrote and funded the
original mortgage transaction for the consumer. In this transaction, it was
Argent Mortgage Company, LLC.
24. The Warehouse Lender generally the entity that provides the
interim funding for the originator (the warehouse lender normally just files
a UCC-1 financing statement as to the notes or claims perfection by
possession and always claims a security interest in the Note and Mortgage
until it is made whole. The Warehouse Lender in this transaction has not yet
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been disclosed by the Plaintiff but there was a Warehouse Lender present in
this transaction since Argent Mortgage Company was not a bank and
therefore could not monetize a Note without the assistance of a bank or
warehouse lender.
25. The Seller and Master Servicer the party who organized the
securitization of the mortgage and submitted the original registration
statements to the Securities and Exchange Commission (often times, the
Sponsor also assumes the role of Master Servicer or Servicer). The
Seller and Master Servicer in this transaction is/was Ameriquest
Mortgage Company and, if the Defendants loan was part of this
trust and securitization process as the Plaintiff alleges, then
Ameriquest definitely took possession and ownership of the Note
and Mortgage from Argent Mortgage Company.
26. The Depositor is the last party in the chain to own the Note
before it is transferred to the Trust. In this trust, the Depositor is Argent
Securities, Inc.
27. The Trustee through a named trust is the entity that owns the
notes for the benefit of the parties who invested in the various tranches of
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bonds issued by the Trust. In this trust, the Trustee is Deutsche Bank
National Trust Company.
28. Since there were so many missing elements to the Plaintiffs
complaint along with huge leaps in allegations, Defendant initiated a
discovery process to put the Plaintiff on notice that it needed to prove up its
claims of owner and holder of her Note and Mortgage, not merely allege it
and then produce an un-authenticated Assignment AFTER THE FACT to create
the illusion of ownership when this same Assignment directly conflicts with
the governing documents of the Trust it is acting as a Trustee for.
ELECTION BY TRUST TO BE TREATED AS A REMIC
29. A REMIC (Real Estate Mortgage Investment Conduit) is a
corporation, trust, partnership or a segregated pool of assets that qualifies
for special tax treatment under the Internal Revenue Code of 1986 (as
amended, the IRC).
30. The principal advantage of forming a REMICs for the sale of
mortgage-backed securities is that REMICs are treated as pass-through
vehicles for tax purposes helping avoid double-taxation. For instance, in most
mortgage-backed securitizations, the owner of a pool of mortgage loans (the
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Sponsor or Master Servicer usually) sells and transfers such loans to a
special purpose entity, usually a trust, that is designed specifically to qualify
as a REMIC, and, simultaneously, the special purpose entity issues securities
that are backed by cash flows generated from the transferred assets to
investors in order to pay for the loans along with a certain return. If the
special purpose entity or the assets transferred qualify as a REMIC, then any
income of the REMIC is passed through and taxable to the certificate
holders of the REMIC Regular Interests and Residual Interests.
31. According to the Prospectus (Exhibit C), page 10, under the
Section Heading Federal Income Tax Consequences, the Argent Securities,
Inc., Asset Backed Pass Through Certificates, Series 2004-PW1Trust that this
loan was allegedly deposited into is electing to be treated as a REMIC, which
provides for pass-through tax treatment of the income generated by the
Trust assets, thus the name Mortgage Pass Through Certificates, Series 2004-
PW1.
32. According to 26 CFR 1.860D-1 (a) Definition of a REMIC, A
real estate mortgage investment conduit (or REMIC) is a qualified entity, as
defined in paragraph (c)(3) of this section, that satisfies the requirements of
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section 860D(a).
33. According to 26 CFR 1.860D-1 (c) (2) Identification of
assets. Formation of the REMIC does not occur until(i) The sponsor
identifies the assets of the REMIC, such as through execution of an indenture
with respect to the assets; and (ii) The REMIC issues the regular and residual
interests in the REMIC.
34. In other words, the REMIC is not officially formed until the
Sponsor/Seller identifies the specific assets of the REMIC (the
specific loans) and the REMIC subsequently issues the regular and
residual interests in the REMIC.
35. The Prospectus and PSA specifically identify a Closing Date which
is the last day that an asset (mortgage loan) can be identified for inclusion
in the Trust/REMIC. The Closing Date also serves as the Startup Day for the
REMIC. According to Internal Revenue Code, Section 860, All of a REMICs
loans must be acquired on the startup day of the REMIC or within
three months thereafter. Any contribution of an asset (other than cash)
that is contributed to the REMIC after the Startup Day is deemed an
unqualified contribution and can cause the entire REMIC Trust to lose its
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tax-free status which would be catastrophic to the Trust and all the individual
shareholders or certificateholders because the Trust would then be subjected
to double-taxation.
36. The Closing Date/Startup Day for this Trust/REMIC was: on
or about June 7, 2004
37. In order for the Trust to qualify as a REMIC, all steps in the
contribution and transfer process (of the notes) must be true and complete
sales between the parties and within the three month time limit from the
Startup Day. Therefore, every transfer of the Note(s) for inclusion in the Trust
must be a true purchase and sale, and, consequently the Note must be
endorsed from one entity to another and the corresponding mortgages must
be assigned in the same chain. Any mortgage note/asset identified for
inclusion in a Trust seeking a REMIC status MUST be deposited into
the Trust within the three month time period calculated from the
official Startup Day of the REMIC as per Section 860 of the Internal
Revenue Code. There is no alternative option.
38. The assignments of mortgage must follow the same chain of
ownership to avoid de-linking the Note from the Mortgage. According to
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Section 2.01 of the PSA, the depositor will cause the mortgage loans... to
be assigned to the trustee.
According to the Prospectus and PSA for this Trust, the Note ownership Chain
goes from:
Originator to the Seller (Argent Mortgage Company, LLC to Ameriquest
Mortgage Company)
Seller to the Depositor (Ameriquest Mortgage Company to Argent Securities,
Inc.)
Depositor to the Trustee on behalf of the Trust (Argent Securities, Inc. to
Deutsche Bank)
39. In a securitized transaction involving mortgage loans, the
Depositor is always the last party in the chain to own the note before it is
sold and transferred (deposited into) the Trust. See also Exhibit A Chain
of Ownership Map.
40. According to two REMIC experts, Jeff Steiner and James Butler,
The REMIC rules require that REMIC pools be static--subject to very limited
exceptions, they cannot be expanded, or significantly altered once formed.Page 22 of 22
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Failure to strictly observe these rules is the tax equivalent of Armageddon for
REMIC investors, servicers and other participants, because the loss of REMIC
status is a catastrophic event in terms of double taxation, and even penalty
taxes, on pool income.
Thus, one would logically conclude that no party in the ownership
chain of the Notes, especially the Servicer or the Trustee, would do anything
that could possibly jeopardize the REMIC status of the Trust.
41. Assuming full IRS and SEC Compliance on this contribution and
transfer process of the subject loan along with all other loans included in this
Trust, the subject Note needed to have gone through the complete chain of
ownership and deposited into the Trust by the Depositor, Argent Securities,
Inc. by the date of September 7, 2004.
42. The assignment that the Plaintiff produced in the instant case
shows an Assignment of Mortgage from the Originator (Argent Mortgage
Company, LLC) to the Trustee (Deutsche Bank National Trust Company).
However, the corresponding Prospectus and PSA clearly indicate that no loan
in this Trust followed that chain of ownership (from Originator directly to
Trustee thus skipping the Seller and the Depositor). It also shows that the
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Assignment was completed on May 16, 2008, nearly FOUR YEARS after the
mandatory expiration period for loans to be deposited into this Trust and
which is clearly outside of the three-month window from the Startup Day
disclosed to the Securities and Exchange Commission.
43. Additionally, originators of residential loans do not deal with
Trustees in their normal course of business. In a securitized transaction,
originators always sell the Notes and transfer ownership to a Master Servicer
or a Seller/Sponsor who subsequently sells the Notes and transfers
ownership to the Depositor and subsequently to the Trustee for the benefit of
the Trust.
44. These are all genuine issues of material fact in this case which go
to the heart of the Plaintiff allegations that it has the Standing to bring this
cause of action. Since there are many issues of fact plainly enumerated in
this case and due to the fact that there is still outstanding discovery specific
and material to this case and Plaintiffs allegations, Plaintiffs Motion for
Summary Judgment must thus be denied.
CONCLUSION
45. Again, one thing is crystal clear: The Assignment produced
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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.
46. 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.
47. 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 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.
48. The Plaintiff has failed to show conclusively and with
documentary evidence that it will suffer any injury due to the alleged default
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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.
49. 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.
WHEREFORE, Defendant, Paulette A. Dennis, by and through her attorney,
Farrel Donald, prays that this honorable court will find that genuine issues of
material fact exist, recognize her due process right to discovery and find in
Defendants favor and deny the Plaintiffs Motion for Summary Judgment.
Respectfully Submitted,
____________ ___________________ __
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Farrel Donald, Esq. (NY No. 4671575)
Attorney for Defendant
242 Fountain Ave.
Brooklyn, NY 11208
Phone: (347) 278-2509
Facsimile: (718) 341-6873
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
document has been furnished by US Mail to Fein, Such, Kahn & Shepard, P.C.
located at 7 Century Drive, Suite 201, Parsippany, NJ 07054, on this _____ day
of ____________, 2010.
Respectfully Submitted,
By: ____________ ______________ __
Joshua Sears, Esq.
Fein, Such, Kahn & Shepard, P.C.
Attorneys for Plaintiff
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7 Century Drive, Suite 201
Parsippany, NJ 07054
Phone: (973) 538-4700
Facsimile: (973) 538-8234
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