The Homeowners Guide To A Winning FC Defense-1

sharenb38@aol.
com 04 Sep 2018
i
sharenb38@aol.com 04 Sep 2018
HOW TO BEAT THE BANKSTERS

____________________
The Homeowner’s Guide to

A Winning Foreclosure Defense
____________________
Joe Portofino
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DISCLAIMER:
LEGAL INFORMATION IS NOT LEGAL ADVICE

This publication provides general information related to the law designed to help homeowners
safely address their own legal needs. This publication does not provide legal advice and the
author is not a lawyer. Although the author has gone to great lengths to make sure the
information is accurate and useful, we recommend you consult a lawyer if you want legal advice.
No attorney-client or confidential relationship exists or will be formed between you and the
author.
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Copyright © 2016 Joe Portofino
ALL RIGHTS RESERVED

_________________________
No part of this publication may be reproduced, stored in or introduced into a retrieval system, or
transmitted, in any form or by any means (electronically, mechanical, photocopying, recording or
otherwise), without the express prior written consent of both the copyright owner and the
publisher of this book.
Re-selling of this publication through electronic outlets (like Barnes & Noble, Amazon or E-
Bay) without permission of the publisher is illegal and punishable by law.
The uploading and distribution of this publication via the Internet or via any other means without
the express prior written consent of the publisher is illegal and punishable by law.
Please purchase only from an authorized distributor and do not participate in or encourage
electronic piracy of copyrighted materials and publications.
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ACKNOWLEDGMENTS
Special thanks to my good friend Keith Dennis for his invaluable proofreading and suggestions. I
would also like to thank those named and unnamed people whose contributions to the field of
foreclosure defense contributed to this book.
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DEDICATION
This book is dedicated first to my wife Sandy, who has stood by me and supported me through
thick and thin. Next, to our six children, to hopefully inspire them to achieve their dreams, that
anything is possible. Lastly, to my parents, who have always been there for me.
_________________________
COVER GRAPHIC DESIGNED BY: Deborah A. Flynn
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TABLE OF CONTENTS
Introduction ..................................................................................................................................... 1
Judicial or Non-Judicial Foreclosure .............................................................................................. 3
The Foreclosure Complaint ............................................................................................................ 5
The caption.................................................................................................................................. 6
The claim or cause of action ....................................................................................................... 7
Relief requested .......................................................................................................................... 8
Contesting the foreclosure complaint ............................................................................................. 9
The contested foreclosure process ................................................................................................ 10
There is no “free house” ............................................................................................................... 14
Some common specific defenses to mortgage foreclosures: ........................................................ 15
The Promissory Note .................................................................................................................... 16
The Assignment of Mortgage or Deed of Trust ............................................................................ 18
Affidavits ...................................................................................................................................... 19
Securitization of your mortgage loan documents ......................................................................... 20
Breach of Contract through Securitization ................................................................................... 24
The Pooling and Servicing Agreement (PSA) .............................................................................. 26
How to find the trust’s Prospectus and PSA ............................................................................. 27
The two KEY parts of the PSA you want ................................................................................. 29
Finding deficiencies in the foreclosure complaint itself ............................................................... 34
Finding deficiencies in the promissory note ................................................................................. 35
Finding deficiencies in the Assignment of Mortgage ................................................................... 38
Finding deficiencies in the Affidavit ............................................................................................ 41
Answering the foreclosure complaint ........................................................................................... 42
Affirmative Defenses (or New Matter) to the Foreclosure Complaint ......................................... 43
Substitution of Party Plaintiff ....................................................................................................... 46
Discovery ...................................................................................................................................... 47
Depositions ............................................................................................................................... 47
Interrogatories ........................................................................................................................... 48
Request for Production and Inspection ..................................................................................... 48
Requests for Admissions........................................................................................................... 48
Motion for Summary Judgment (MSJ) ......................................................................................... 51
Mortgage Loan Modification ........................................................................................................ 54
Summary ....................................................................................................................................... 54
Resources ...................................................................................................................................... 55
Important Cases to Read ............................................................................................................... 56
ATTACHMENT 1 – U.S. Bank – Role of the Corporate Trustee................................................ 57
ATTACHMENT 2 - Decision and Order of Judge Wayne P. Saitta ............................................ 62
ATTACHMENT 3 - Decision and Order of Judge Arthur M. Schack ......................................... 68
ATTACHMENT 4 - SAMPLE: DEFENDANT’S FIRST SET OF INTERROGATORIES
ADDRESSED TO PLAINTIFF .................................................................................................... 79
ATTACHMENT 5 - SAMPLE: DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF
DOCUMENTS DIRECTED TO PLAINTIFF.............................................................................. 90
ATTACHMENT 6 - SAMPLE: DEFENDANT’S FIRST REQUEST FOR ADMISSIONS
ADDRESSED TO PLAINTIFF .................................................................................................... 98
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HOW TO BEAT THE BANKSTERS
The Homeowner’s Guide to

a Winning Foreclosure Defense
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Introduction
According to Core Logic’s National Foreclosure Report, since the financial

crisis began in 2008 through December 2013, 4.9 million foreclosures have been
completed. The sad truth of the matter is that most of those foreclosures were
illegitimate, in other words, the party foreclosing had no legal right to do so. Many
homeowners lost their homes anyway because they could not afford a lawyer and
simply defaulted, never answering the foreclosure notice or complaint.
This Guide will present the homeowner facing foreclosure everything they
need to know about a winning foreclosure defense. The main thing you need to
understand is that the entity foreclosing on your property must have “standing.” In
a foreclosure, without the original promissory note, the foreclosing entity does not
have “standing” to sue for foreclosure.
“Standing” is defined as the right to make a particular legal claim by filing a

lawsuit. Only a person or entity that has suffered an actual loss or injury has
standing to seek a remedy in court. Standing in a foreclosure complaint has
nothing to do with whether or not the homeowner is in default, indebted, or the
amount in controversy.
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Every homeowner has three options for defending their home; going it
alone, hiring a certified paralegal to help with the paperwork, or hiring a lawyer to
handle the entire case.
Going it alone is the riskiest course for a homeowner because it requires one
to quickly acquire knowledge that they likely do not have, such as knowing the
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rules of court, rules of evidence and their state’s uniform commercial code (UCC).
These are absolutely critical to a winning defense.
Beware, there are lots of foreclosure defense web sites out there, but most
homeowners will not be able to discern which are reliable and which are
dangerous. Some of them offer “free” paperwork, but most of it is either worthless
or downright dangerous to use.
Most homeowner’s do not have the time required to learn the necessary
information and properly apply it to their unique situation. Considering the money
invested in one’s home, going it alone with insufficient knowledge and experience
is a recipe for disaster and the possible loss of one’s home.
A better alternative is to hire a certified paralegal who specializes in

foreclosure defense. This paralegal can help you by preparing your documents for
court. While a certified paralegal cannot give you legal advice, they can provide
you with the information you need to make informed decisions. Should your case
ultimately have to go to trial, you should definitely hire a lawyer, but if your
paralegal did their job properly, most of the lawyer’s work will have already been
done. Your lawyer can then concentrate on trial strategy. More on this later.
The best option, if one can afford it, is to hire a lawyer who specializes in
foreclosure defense. Consumer advocate type lawyers can also be pretty good at
foreclosure defense. One mistake you want to avoid is to hire a lawyer who works
both sides of the fence. In other words, if the lawyer represents banks and
homeowners in foreclosures, you do not want to hire him/her. You want a lawyer
dedicated 100% to the cause of homeowners.
Should you exercise this option, always remember, YOU are the boss. The
lawyer will give you advice, but the final decision should be yours. You are paying
the piper, you call the tune. That means that you must educate yourself as much as
possible as to what is involved in your foreclosure defense. This Guide will help
you do that. Blindly following anyone, let alone a lawyer, is again, a recipe for
disaster and disappointment.
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Judicial or Non-Judicial Foreclosure
In the United States, there are two types of foreclosure, judicial and non-
judicial. The following chart is from a very helpful web site by Realty Trac that
lists foreclosure laws and procedures by state;
http://www.realtytrac.com/real-estate-guides/foreclosure-laws/
List of U.S. States which use Judicial or Non-Judicial Foreclosure
STATES THAT ARE JUDICIAL FORECLOSURE STATES
Connecticut Delaware
Florida Illinois
Indiana Kansas
Kentucky Louisiana
Maine Maryland
Massachusetts Nebraska
New Jersey New Mexico
New York North Dakota
Ohio Oklahoma
Pennsylvania South Carolina
South Dakota Vermont
Wisconsin
(Oklahoma, South Dakota and Wisconsin have non-judicial foreclosure provisions

in their state laws; however, judicial foreclosure is common.)
STATES THAT ARE NON-JUDICIAL FORECLOSURE STATES
Alabama Alaska
Arizona Arkansas
California Colorado
District of Columbia Georgia
Hawaii Iowa
Michigan Minnesota
Mississippi Missouri
Montana Nevada
New Hampshire North Carolina
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Oregon Rhode Island

Tennessee Texas
Utah Virginia
Washington West Virginia
Wyoming
The main difference in state foreclosure laws is whether your state uses
Mortgage Notes or Deeds of Trust as the (alleged) security instrument for the
purchase of real property. Generally, states that use Mortgage Notes conduct
judicial foreclosures and states that use Deeds of Trust conduct non-judicial
foreclosures, because the Deed of Trust contains a power of sale clause.
Additionally, many non-judicial foreclosure states are handled as trustee sales.
_________________________
NOTE: For purposes of this Guide, when you see the word “mortgage” it can also
mean “deed of trust.” It just depends on what state you live in.
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In judicial foreclosures the supposed lender sues the (allegedly) defaulting

borrower in state court in order to auction off the property to recover on an
(alleged) defaulted mortgage. The main difference in non-judicial foreclosures is
that the supposed lender can auction off the property without having to go to court.
This difference is significant as it affects the foreclosure process and procedures
and even whether you'll be liable for a monetary deficiency (which is the
difference between the sale price of the house and the loan amount), after the
foreclosure sale.
The two parties most likely to initiate a foreclosure action are the trustee for
a securitized trust and the loan servicer. The loan servicer is usually the entity in
day-to-day contact with a borrower so it is considered to be in the most practical
position to handle foreclosure proceedings. However, some states’ laws require the
servicer to demonstrate its entitlement to foreclose on behalf of the lender or
securitization trustee before initiating a foreclosure suit.
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The trustee for a securitized trust, as the party supposedly holding title to
the promissory note on behalf of the trust investors, is considered the proper party
to foreclose, but only if it possesses the right to do so under state law, which in
most cases requires that it have been formally assigned the mortgage through
lawful endorsement, assignment and transfer.
Interestingly, there is good authority that a trustee is not the proper party to
foreclose. Attachment 1 is a four-page document from U.S. Bank titled, Role of the
Corporate Trustee. At the bottom of page 59, under “Who Initiates and Manages a
Foreclosure?” it states:
“The trustee does not have an economic or beneficial interest in the

loans and has no authority to manage or otherwise take action on the
loans which is reserved for the servicer. As noted, the trustee does not
play a role in initiating or managing a foreclosure process and
consequently has little, if any, information relating to mortgage loan
activities including a foreclosure.”
So, if a “trustee” for a trust is the foreclosing entity in your case, this is a
great argument to make that it does not have standing and thus the court does not
have jurisdiction and must dismiss the foreclosure complaint.
Bottom line, if you are a homeowner affected by a foreclosure action and

you would like to stay in your home, you must challenge the foreclosure action
with facts that you know the foreclosing party cannot dispute or otherwise
overcome.
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The Foreclosure Complaint
Generally, a foreclosure complaint must follow your state’s Rules of Civil

Procedure requirements for a civil complaint. Basically a complaint consists of the
caption, the claim or cause of action and then the relief requested. Let’s examine
each in a little more detail.
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The caption
The caption opens the complaint. It identifies the specific court and the
county and state where it is located, the docket or case number and the title of the
action. It also identifies all parties to the complaint as plaintiff(s) and defendant(s).
The plaintiff must be what is called a “real-party-in-interest” in order to have
“standing” to bring the action. The plaintiff is the party who claims it has been
injured or harmed in some way, and the defendant is the person or entity accused
of causing said injury or harm.
In the vast majority of foreclosure complaints, the plaintiff is either a bank, a

securitized trust, or a trustee on behalf of a securitized trust. Any one of these may
be further referred to as a substitute trustee.
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SAMPLE CAPTION
IN THE COURT OF COMMON PLEAS

OF BUCKS COUNTY, PENNSYLVANIA
____________________
Bank of America, N.A., :
: Docket No. 2016-cv-12345
Plaintiff, :
:
v. : Complaint in Foreclosure
:
John S. Smith and Joan M. Smith, :
:
Defendants. :
__________________________________________________________________
Except for the location and name of the court, the caption will generally look
the same for all fifty states.
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NOTE: in a non-judicial foreclosure state in which deeds of trust contain a

“power of sale clause,” the homeowner must initiate the lawsuit when the notice to
foreclose is posted and the notice of default is recorded in the public records. The
homeowner will be the injured party or plaintiff, claiming wrongful foreclosure,
and the bank or other entity will be the party accused of causing the harm, the
defendant.
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The claim or cause of action
The most important part of the complaint is the claim, or cause of action. It
should contain concise statements of the basis for which the plaintiff is seeking
relief. It should identify the statutes or laws that form the basis of the complaint, if
relevant, and then state a timeline of the facts of the complaint that are supported
by the law. Lastly, the claim will accuse the defendant of violating a law or
breaching a contract, causing the injury to the plaintiff, and entitling the plaintiff to
the relief it is asking the court to grant. Most states have specific rules of procedure
regarding the contents of a foreclosure complaint, so be sure to check yours.
For example, in a foreclosure complaint, the plaintiff bank will claim,

among other things, that:
 defendant/homeowner signed a mortgage promising to pay a
certain sum each month;
 said homeowner failed to make said payments and is in default;
and
 after defendant homeowner did not cure its failure to pay;
 plaintiff bank (or trust) is entitled to possession of defendant
homeowner’s property.
Some states require the plaintiff bank to attach a copy of the promissory
note, mortgage, and any assignments of mortgage to its complaint. In
Pennsylvania, if a document such as a mortgage or assignment of mortgage is in
the public record, it is enough to cite the instrument and when and where it is
recorded, without attaching it to the complaint. Again, you must check your state’s
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rules. Later on we will discuss all the deficiencies in the plaintiff bank’s
foreclosure complaint and why it should be dismissed by the court.
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Relief requested
This is commonly known as the “WHEREFORE clause.” It demands

judgment in favor of the plaintiff and relief in the form requested by the plaintiff.
Depending on what stage of foreclosure one is involved, forms of relief might
include dismissal of the foreclosure complaint, summary judgment (which is like a
dismissal, but usually occurs after discovery and before trial) which can be
requested by either party, an award of monetary damages or return of improperly
foreclosed upon property.
A typical “WHEREFORE clause” for the bank or plaintiff might look like
this:
WHEREFORE, Plaintiff demands in rem judgment against the

Defendant in the sum of $153,490.66, together with the current
interest at the rate of 6.25000% and other costs and charges collectible
under the Mortgage and for the foreclosure and sale of the mortgaged
property.
The following is a defendant’s actual wherefore clause from a successful

motion to dismiss a foreclosure complaint in New York State.
WHEREFORE, as the prima facie documentary evidence provided by

the Plaintiff in its foreclosure complaint demonstrates a valid defense
for Defendant against Plaintiff’s foreclosure complaint, pursuant to
CPLR Rule 3211(a)(1), Defendant respectfully requests this
Honorable Court DISMISS Plaintiff’s complaint with prejudice.
Next is a defendant’s wherefore clause from a motion opposing plaintiff

bank’s motion for summary judgment.
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WHEREFORE, as Defendants have provided evidence that: a)

Plaintiff sold the subject loan in 2006, and thus cannot be a real-party-
in-interest; b) has not provided any evidence that it is a party entitled
to enforce the subject note, it is respectfully requested that this
Honorable Court deny Plaintiff’s motion for summary judgment and
grant Defendants’ cross motion for summary judgment.
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Contesting the foreclosure complaint
First of all, homeowners need to adopt the mindset that foreclosure is a war
on their property, and court is the hostile environment where that war is going to
be waged. Unfortunately, there are judges on state and federal benches who refuse
to even consider the idea that homeowners were deliberately misled by the banks
into loans they could not afford, signing paperwork they could not understand.
Those judges refuse to believe the banks could do any wrong, including
forging documents to support their unlawful foreclosures, but believe homeowners
are now merely looking for a free house instead of justice. Those judges don’t
understand that even if the bank or other entity cannot foreclose, the homeowner’s
debt STILL exists. In reality, the only party looking for a free house is the plaintiff
bank or securitized trust that has no standing to foreclose.
While homeowners in judicial foreclosure states will have their day in court
after being foreclosed upon, a homeowner in a non-judicial foreclosure state
wishing to contest a foreclosure will have to file a lawsuit themselves, or through
an attorney. They will ask the court to temporarily stop the foreclosure so the legal
issues can be resolved in court. Once the homeowner is in court, he/she can raise
the same defenses they would have raised in a judicial foreclosure proceeding.
_________________________
NOTE: Foreclosures are state issues, in other words, the county court has
jurisdiction. In a non-judicial foreclosure state, it is critical that the
plaintiff/homeowner use ONLY state rules and statutes because the defendant bank
might try to have the suit removed to federal court based upon, for example,
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citizenship diversity or the amount in question exceeding $75,000. It would then

file a Rule 12(b) motion to dismiss. This will cause the homeowner to expend
much time, energy and money to have the case remanded (sent back) to the proper
state court. So, when filing a complaint to contest a foreclosure, NEVER cite
federal statutes or rules, and NEVER allege a specific dollar amount of damages.
Bottom line, since the property subject to foreclosure is located in a state, it is a

state issue and belongs in a state court, not federal. A properly written complaint
will stay in state court where it belongs and prevent removal to federal court.
_________________________
If a foreclosure is properly challenged, one can delay or defeat the

foreclosure entirely, or else negotiate a favorable settlement, depending on your
ultimate goal. The best strategy for defeating a foreclosure action is some
combination of the following:
 Forcing the alleged mortgage holder to prove its claim against the
homeowner, and this is difficult, if not impossible for them to do because, 1)
the original note has been destroyed, and 2) the legal chain of title required
to prove ownership interest in the note and mortgage more than likely has
been broken, and once broken, cannot be cured;
 Asserting specific defenses to mortgage foreclosure suits by use of various
sections of your state’s Uniform Commercial Code (UCC) and your state’s
Rules of Evidence (as specifically detailed further on); and
 Filing affirmative defenses or counterclaims against the alleged mortgage
holder, of which there could be many such counterclaims, including but not
limited to, fraud upon the court through counterfeit documents fabricated to
deceive the court.
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The contested foreclosure process
The goal of all foreclosure defenses is to avoid trial at all costs. You want to
have the complaint dismissed before trial if at all possible. That is where this Guide
can help you. Even though you should still have an excellent chance to win, court
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is a crapshoot. Too many things can go wrong if your trial attorney is not sharp and
knowledgeable of foreclosure defense tactics. Plus, will the judge assigned to your
case follow the law or let the banks run roughshod over you?
There is also the added time and expense of a trial. The good news is,
plaintiff banks and securitized trusts also want to avoid a trial at all costs. They
know that if a homeowner gets the case to that point, the bank or securitized trust
has a very weak case and a jury will likely side with the homeowner.
Depending on your state, the foreclosure process can take anywhere from
180 days to a year or more. A contested foreclosure process generally goes as
follows:
 Plaintiff files its foreclosure complaint;

 Defendant/homeowner files its answer and affirmative defenses (or
new matter) and initiates discovery;
 Plaintiff files its reply to Defendant/homeowner’s answer and its
response to the affirmative defenses;
 Defendant/homeowner files its reply to Plaintiff’s response to
Defendant/homeowner’s affirmative defenses;
 At any point in the process after initial pleadings have been filed
and discovery completed, either party may file a motion for
summary judgment (MSJ), but generally it will be the Plaintiff
bank or trust prematurely moving first;
 The court will schedule an administrative conference to see if the
parties can come to an agreement, otherwise it will schedule
discovery deadlines, a trial date and any other deadlines it deems
necessary to move the case along;
 Once discovery is completed, and if Plaintiff has not filed a MSJ,
the Defendant/homeowner should file a MSJ based upon his/her
findings of deficiencies in the promissory note, allonge attached to
the note, the assignment of mortgage, and any affidavits submitted;
 Those deficiencies should reflect that Plaintiff had no standing to
file its foreclosure complaint and that it is not a party entitled to
enforce the note;
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 If Plaintiff has filed its MSJ first, the Defendant/homeowner will

file an answer opposing said MSJ and its own cross-motion for SJ;
 Plaintiff will file its reply to your answer against its MSJ, as well
as its response to your cross motion for SJ;
 Defendant/homeowner will file its reply to Plaintiff’s response to
the cross-motion for SJ;
 If you have followed this Guide and constructed your arguments
properly, there can only be two possible outcomes to the motions;
 Either the judge will DENY Plaintiff’s MSJ and DENY
Defendant/homeowner’s MSJ and schedule the case for trial, or;
 The judge will DENY Plaintiff’s MSJ and GRANT
Defendant/homeowner’s MSJ and dismiss the case;
 Even if the case goes to trial, the Defendant/homeowner is still in
excellent shape to win a dismissal;
 However, if the case is scheduled for trial, it is imperative the
Defendant/homeowner find a competent trial attorney to represent
them in court because the attorney will have critical courtroom
experience that no layperson has;
 Knowing how and when to object using the rules of evidence will
mean the difference between winning and losing. This is why an
experienced trial lawyer is needed;
 For example, if a counterfeit, fabricated AOM or allonge is
allowed into evidence, the Defendant/homeowner will likely lose;
 Or if a deficient Affidavit is allowed into evidence, without the
affiant in court to testify and be cross-examined, the
Defendant/homeowner will likely lose;
 Plus, by objecting properly, your attorney will preserve arguments
you can use on appeal should things not go your way for whatever
reason;
 In other words, if something was not objected to at trial, it cannot
be raised on appeal;
 Do not despair if you do not win a trial, especially if it is a bench
trial, or in front of a judge with no jury, because many cases are
won on appeal;
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 Be prepared for Plaintiff to make a motion for no trial by jury

(which you must oppose) because it knows a jury will likely side
with a Defendant/homeowner;
 REMEMBER: ANY adverse decision can be appealed!
In non-judicial foreclosure states, the process is generally the same except

the homeowner must initiate suit against the foreclosing bank or other entity to
contest a foreclosure, using the defenses presented above. Thus it will be the
Homeowner/Plaintiff v. Defendant/Bank (or Securitized Trust).
_________________________
Generally, there are two ways to get the foreclosure complaint dismissed
without the need for a trial. One is by filing your answer and affirmative defenses
(sometimes called “new matter” or “counterclaim”). If, after receiving any reply by
the plaintiff to your affirmative defenses, the court agrees with your defenses, it
should dismiss the complaint.
On the other hand, if there is no response to your affirmative defenses then

you can file a default judgment against the plaintiff, because absent appropriate
answers (or any answers at all) from the plaintiff, your affirmative defenses will
have been admitted. The other way is by winning a motion for summary judgment,
generally after discovery has been completed but before trial.
Some states like Pennsylvania allow the Defendant/homeowner to file what

are called preliminary objections (P.O.s) before they are required to answer the
foreclosure complaint. P.O.s have the same effect as a motion to dismiss. If, after
the plaintiff replies to your P.O.s, the court agrees with your objections, it should
dismiss the case, otherwise it will deny them and order you to answer the
complaint. This is not a big deal at all and you should still be in an excellent
position to successfully defend against the foreclosure complaint. The court is
simply letting the process play out a little further before deciding how to rule.
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There is no “free house”
NEVER let your opponent or the judge get away with saying YOU are
trying to get a “free house.” Object immediately to such an assertion. Actually,
it is the plaintiff bank or securitized trust that is trying to get a free house. They
have come into the court with no standing, and with unclean hands, filing
fabricated, fraudulent documents to give the appearance of legitimacy when there
is none.
Remind the court that defeating a foreclosure action does NOT extinguish
the debt. The debt still exists BUT it is unsecured. And as the U.S. Supreme Court
held in Carpenter v. Longan, 83 U.S. 271 (1872), if a creditor holds the note but no
mortgage security, it can still collect on the debt, it just has no right to foreclose,
but if it has a mortgage with no note, it can’t collect anything.
The homeowner MUST continue to make all property tax payments and
insurance payments, otherwise the local county can file a tax lien, get a judgment
and ultimately sell the property for back taxes. At some point after defeating a
foreclosure action, the homeowner should file a quiet title action. The aim of that is
to clear the title of any encumbrances or liens, like a mortgage.
Again, a quiet title action does NOT extinguish or eliminate the debt. The
debt still exists but you get title to your property free and clear of any liens or
encumbrances. The reality of the situation is that after winning a quiet title action,
the homeowner would then have clean title to sell the house whenever he/she
wanted and can use the proceeds to pay the outstanding debt should a creditor
come forward with the original promissory note.
While many original notes were destroyed during the securitization

process, it is still possible a creditor or noteholder might appear afterwards with an
alleged original note and try to collect from the homeowner. The alleged creditor
would still have to prove among other things that the homeowner’s signature is on
the note and that the creditor gave value for the note. The creditor might get a
14
judgment against the homeowner, but with no mortgage as security, would likely
have a difficult time collecting anything. Every situation is different.
_________________________
Some common specific defenses to mortgage foreclosures:
 The plaintiff is not the real party in interest.

 The plaintiff is not a person entitled to enforce (P.E.T.E.) the note.
 The plaintiff lacks legal standing to bring the action.
 The plaintiff is not legally authorized to bring the action.
 The plaintiff does not own/hold the alleged original promissory note.
 The plaintiff does not own/hold the alleged mortgage.
 The assignment chain of title to the property has been broken and as such,
the mortgage plaintiff claims it holds is ‘unperfected’ by operation of law.
 There are no lawfully valid assignments to prove the plaintiff holds the title
to the property.
 Documents and/or witnesses necessary to prove plaintiff’s claim are
unavailable or nonexistent.
 The alleged lender(s) and mortgage holder(s) violated the Federal Truth in
Lending Act (TILA).
 The defendant never borrowed any money from the plaintiff and does not
owe any money to the plaintiff.
 The defendant never entered into any contract or agreement with the plaintiff
to borrow or repay money.
 The plaintiff cannot prove that the defendant was ever lent any money from
the alleged original lender to begin with. Remember to never admit
ANYTHING during a foreclosure action. ALWAYS deny, deny, deny,
because it is the plaintiff’s burden to PROVE its case against you, NOT for
you to admit to the plaintiff’s claims, resulting in a “quick and easy” slam-
dunk win for the plaintiff.
 The plaintiff failed to prove a default exists.
 The securitization failed because the alleged mortgage was not duly
assigned, transferred or sold to the plaintiff.
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 The securitization failed because the promissory note was not duly assigned,
sold or transferred each and every time the mortgage was assigned, sold or
conveyed.
 The documents memorializing the transfer of the mortgage and note to the
plaintiff were not executed until after the date of commencement of the
action. Accordingly, the plaintiff lacked standing to bring the action on the
date it was commenced.
 The homeowner properly rescinded the loan under 15 U.S.C. § 1635 prior to
the foreclosure action.
 In judicial foreclosure states, proper notice as required by statute was not
given the homeowner.
The easiest way for a homeowner to prove its case to the court is to use the
very same documents the plaintiff submitted in support of its foreclosure action.
By finding all the deficiencies in them, and believe us, they are there, you should
be able to get the foreclosure action dismissed. The most important of these are the
promissory note, any allonge, any assignments of mortgage, and any affidavits.
In those states that do not require the note and assignment(s) be attached to
the foreclosure complaint, the homeowner will have to request in discovery to view
the alleged original promissory note that the plaintiff should be holding, and also
go to their local county recorder’s office to obtain copies of any recorded
assignments.
Next we’ll examine each of these along with the securitization process and
the Pooling and Servicing Agreement in greater detail, and then in later sections of
this Guide demonstrate the numerous deficiencies in each and how you can use
that information to successfully defeat a foreclosure.
_________________________
The Promissory Note
The original Promissory Note is the most important document in any

foreclosure action. It is prima facie evidence of the debt that is documented in the
books and ledgers of the lender, with those books and ledgers being the best
16
evidence. The mortgage or deed of trust is merely the security for the prima facie
evidence of the debt represented in the promissory note. A promissory note without
a mortgage or deed of trust is still enforceable, whereas a mortgage or deed of trust
without a promissory note is unenforceable.
It is a longstanding American rule that the mortgage is mere security for the
promissory note and follows the promissory note as a matter of law. As noted
earlier, the United States Supreme Court held in Carpenter v. Longan, 83 U.S. 271
(1872), that “The note and mortgage are inseparable; the former as essential, the
latter as an incident. An assignment of the note carries the mortgage with it, while
an assignment of the latter alone is a nullity.” This case has never been overturned.
When a homeowner signs a promissory note as its maker (“issuer”), he/she

automatically incurs the obligation in UCC § 3-412 that the instrument will be paid
to a “person entitled to enforce” the note. The Uniform Commercial Code forbids
foreclosure of the mortgage unless the creditor possesses the properly negotiated
original promissory note. If the creditor doesn’t, the foreclosure must stop.
Professor Douglas J. Whaley calls this the “Golden Rule of Mortgage

Foreclosures,” that a foreclosure cannot proceed without production of the original
promissory note signed at the closing. (See Mortgage Foreclosures, Promissory
Notes, and the Uniform Commercial Code by Douglas J. Whaley.)
Further, Professor Whaley said that “a mere copy of the note will not
suffice. There could be 100 copies of the original note, but that would not create a
right of foreclosure in 100 plaintiffs. To the bank's argument that a copy of the
promissory note should be enough, ask any banker if he/she would be willing to
accept a copy of check.”
If the plaintiff does not possess the original promissory note, some plaintiffs
have resorted to filing a “lost note affidavit” whereby they swear that they have
been unable to locate the original, but they have the right to enforce it anyway.
While this is permitted by the UCC, it can still be defeated.
_________________________
17
The Assignment of Mortgage or Deed of Trust
“Purported” assignment of mortgage or deed of trust is more appropriate.

This is because a large majority of these assignments are counterfeit; they were
unlawfully fabricated by document processing companies for attorneys in
foreclosure mills, law firms specializing in foreclosure actions against
homeowners. These documents were fabricated, often years after the fact, in order
to deceive the court into believing the transaction was legitimate when it was
anything but.
Be aware that an assignment of mortgage (AOM) must also assign the note,
EXCEPT in cases where “MERS as nominee” is the Assignor. Because by its
charter MERS cannot hold an ownership interest in the promissory note, it has no
lawful authority to transfer what it does not own. So, any purported AOM from
MERS that claims to also assign the note is a legal nullity.
Several county recorders hired professional forensic examiners to audit their

county land records. The results revealed that a majority of real property records
have major deficiencies, resulting in clouded titles. This makes it virtually
impossible to sell the property because no title insurance company will guarantee
that the chain of title is complete.
For example, a forensic audit of the Salem, Massachusetts land records

revealed that only 16% of all mortgage assignments examined were valid. 75% of
all assignments examined were invalid and an additional 8.7% were questionable
(required more data.) The forensic audit of the Osceola County, Florida land
records revealed similar criminal activity.
See:
 http://www.salemdeeds.com/robosite/?returnURL=http://www.salemdeeds.c
om
 http://www.salemdeeds.com/pdf/PressRelease7-29-11.pdf
 http://www.salemdeeds.com/pdf/Audit.pdf
18
 http://www.osceolaclerk.com/Home/Content/forensic-examination-real-
property-osceola-county
 http://www.osceolaclerk.com/Content/UploadedContent/Examination/OC_F
orensic_Examination.pdf
Any plaintiff bank or trustee relying on invalid assignments of mortgage and

notes or other counterfeit documents should never be able to win its case. Of
course, that all depends on if the homeowner defends against the foreclosure
complaint and if the homeowner or his/her attorney properly documents for the
court why the evidence in the record supports dismissal of the foreclosure action.
Lastly, it depends on an honest court to uphold the law.
_________________________
Affidavits
An affidavit is a written statement of facts voluntarily made by a person

(called an affiant) under an oath or affirmation administered by a person authorized
by law to do so, such as a notary. An affidavit based on the personal knowledge of
the affiant carries more weight than one based merely on information and belief.
Affidavits are not automatically admitted into evidence, and even when they
are, affidavits are not conclusive (solid) evidence of the facts stated therein.
Homeowners should always challenge the admission of any affidavits into
evidence. Done properly, they can almost always be excluded, especially when the
affiant is not in court to testify or be cross-examined about the information he/she
has set forth in the affidavit.
Affidavits are considered a very weak type of evidence since they are not
taken in court. They are usually submitted when no better evidence can be offered.
This is especially true in foreclosure actions because as you will see, the
documentation necessary to prove a person is entitled to enforce the note or has
standing to foreclose, is either very weak or even non-existent. This is why there
are so many fabricated, counterfeit documents submitted by foreclosure mill law
firms on behalf of foreclosing entities. This practice is illegal and criminal.
_________________________
19
Securitization of your mortgage loan documents
Many foreclosure complaints are filed by REMIC (Real Estate Mortgage

Investment Conduit) securitized trusts. Securitization of mortgage loans, while
legal, is the root cause of the foreclosure crisis because the laws were not followed
by the banks that initiated and sold the loans. Further, the banks’ use of Mortgage
Electronic Registration Systems, or MERS, for recording the mortgages and deeds
of trust has created breaks in the chain of title to most homeowners’ mortgages and
deeds of trust. This has created clouds on the title of an estimated 70+ million
residential properties in the United States.
Mortgage loan documents consist of promissory notes or adjustable rate

notes, and mortgage notes. Promissory notes and adjustable rate notes are
negotiable instruments. Negotiable instruments are governed by the UCC, Article
3. The mortgage as a security instrument evidences a secured transaction governed
by UCC Article 9. Some courts have incorrectly ruled that mortgage notes are
negotiable instrument, apparently to allow the banks to unlawfully foreclose.
Securitization changes the nature of the promissory note from an asset-

backed negotiable instrument governed by UCC Article 3, into a security through
the securitization process. A security is governed by UCC Article 8. By law, the
note cannot exist as a negotiable instrument and a security at the same time.
Still, you will find some plaintiff banks and securitized trusts arguing just
the opposite, so do not let them get away with such nonsense. Remember, without
the original promissory note, they are really just trying to steal your house.
In a homeowner’s case, his/her mortgage documents (the promissory note

and the mortgage) were securitized and packaged into a REMIC trust which was
sold to investors. In many cases, homeowners can use the UCC to help
successfully defend against a foreclosure action. More on this later.
The United States Office of the Comptroller of the Currency defines

“securitization” as:
20
Asset securitization is the structured process whereby interests in loans

and other receivables are packaged, underwritten, and sold in the form of
"asset-backed" securities. This process enables credit originators to
 Transfer some of the risks of ownership to parties more willing or
able to manage them,
 Access broader funding sources at more favorable rates,
 Save some of the costs of on-balance-sheet financing, and
 Manage potential asset-liability mismatches and credit
concentrations.
Said another way, “securitization” is the process whereby mortgage loans,

i.e., promissory notes and mortgages/deeds of trust, are converted into securities
(stock) and then sold to investors in REMIC trusts as well as investors in private
trusts. This process is governed by a Pooling and Servicing Agreement (PSA).
Section 2.01 of the Trust’s PSA states the requirements for the assignment and
transfer of loans and mortgages. During this process, numerous “true sales” of the
note must occur, whereby the loan is sold and transferred to each of the parties
involved in the securitization process.
Once the offer to sell is accepted by the buyer and compensation is given for
the note, it must be assigned and transferred with the mortgage to the buyer. Every
assignment and transfer in the chain of title must be recorded, including in the
county recorder’s office where the property is located (if your state requires such
recording). The note must be “endorsed” (with either a “special” or “blank”
endorsement) to the next party in the chain of sales. See UCC §§ 3-204 and 3-205.
Any break in that chain negates the entire assignment and transfer process and
throws ownership of the note into question, which is very helpful in defending a
foreclosure action.
Under the common law, the holder of the note has the right to payments on
the note, and if the owner of the note holds a mortgage as security, then the note
owner has the right to foreclose on the homeowner if the homeowner defaults on
the note.
21
Traditionally, before investment banks began securitizing promissory notes,

the holder of the promissory note would hold the mortgage in its own loan
portfolio. A mortgage was seldom separated from the promissory note it secured
and transferred by itself. This made perfect sense since the party holding the note
entitling it to payments would need the mortgage to foreclose if the homeowner
defaulted.
However, in order to streamline the securitization process, the investment

banks along with Fannie Mae and Freddie Mac created an entity called “Mortgage
Electronic Registration System” (MERS). Theoretically, MERS was to maintain a
database to keep track of all buying, selling and transfers of securitized notes, as
well as all assignments of mortgages, bypassing the local county clerk’s offices
and avoiding payment of recording fees.
The problem for the banks is that the MERS process bifurcated or separated
the promissory note from the mortgage when MERS entered the tracking
information into its database. Anytime a note is separated from the security
instrument, as in the mortgage or deed of trust, the debt obligation under the note
becomes an unsecured obligation. Also, once the note has been separated from the
security instrument they can never be made as one again for purposes of
foreclosure.
This is the main point of the U.S. Supreme Court in Carpenter v. Longan, 83
U.S. 271, 274; 16 Wall. 271; 21 L.Ed. 313, 315 (1872), where it held:
“The note and mortgage are inseparable; the former as essential, the
latter as an incident. An assignment of the note carries the mortgage
with it, while an assignment of the latter alone is a nullity.”
This case has never been overturned and is still used by foreclosure defense
attorneys.
Contrary to popular belief, promissory notes and mortgages are not

separated during the securitization process. Both mortgage documents are used in
the process and are not separated. However, once mortgage documents have been
22
pooled for use in the securitization process, their status changes from negotiable
instruments regulated by UCC Article 3 for promissory notes and Article 9 for
mortgage notes or deeds of trust, into securities regulated by Article 8.
Although the general consensus among the state courts is that the
negotiability of such mortgage documents is lost through their conversion into
securities, plaintiff banks and securitized trusts always try to argue the law of
negotiable instruments instead of the law of securities that the mortgage documents
have become.
This is because the laws governing negotiable instruments are far more
forgiving of the numerous deficiencies in the plaintiff’s complaint. However, either
way, the conversion process calls for the destruction of the original notes. This is
usually why foreclosing plaintiffs cannot and will not produce the original
documents during discovery or any phase of the foreclosure action, and often file a
lost note affidavit even though the notes weren’t truly lost.
_________________________
NOTE: A classic example of a homeowner being right but losing anyway is the
case of In re Janice WALKER, Debtor, 466 B.R. 271, (USBC E.D.PA 2012). Here,
Ms. Walker argued correctly that the securitized trust did not comply with the
terms of the PSA, and thus lacked standing. BUT, because she never argued that
the mortgage loan was securitized, it allowed the plaintiff securitized trust to argue
the note was a negotiable instrument, instead of the security it had become. This
allowed the court to rule that Article 3 of the UCC applied, instead of Article 8.
Also, because Ms. Walker did not support her argument about violations of the
PSA with relevant cases, she allowed the court to rule that as a non-party to the
PSA, she had no standing to challenge any violations of it. Having Attachment 1,
U.S. Banks’s Role of the Corporate Trustee certainly would have helped her.
_________________________
Pursuant to multiple court rulings, when a note is destroyed, it is nullified,

evidencing that legally, the debt obligation has been paid. See for example, District
of Columbia v. Cornell, 130 U.S. 655 (1889); State Street Trust Co. v. Muskogee
23
Electric Traction Co., 204 F.2d 920 (10th Cir. 1953) and Darland v. Taylor, 52
Iowa 503 (1879).
As a matter of law, “[w]here the payee and owner of a promissory note has
voluntarily destroyed the same, he cannot recover judgment against the maker
either upon the note itself, or upon the debt which was the consideration for which
the note was given.” See for example, Booth v. Smith, Woods 19, Circuit Court D.
Louisiana (Nov. Term 1876). Once converted into a security and sold, it is
impossible for a promissory note and mortgage to be made whole again, to exist as
a negotiable instrument.
Next, we will examine the Pooling and Servicing Agreement (PSA), then
we’ll get to the heart of this booklet, how to defend against a foreclosure
complaint. For those in non-judicial foreclosure states, homeowners will have to
file suit themselves against the entity attempting to foreclose because of the power
of sale clause written into deeds of trust. However, the defenses are identical
because the deficiencies are identical.
_________________________
Breach of Contract through Securitization
Licensed attorney Neil Garfield’s blog was the first place we saw this type
of argument presented and it makes perfect sense. Despite this apparent truth
however, courts appear reluctant to accept this argument. (You can sign up for
Garfield’s free daily blog here: https://livinglies.wordpress.com)
A promissory note is a contract. The homeowner who accepted the terms of

this contract and signed the note is called the note’s “maker” or “issuer.” Let’s
examine the terms of this contract that the homeowner accepted.
 Did the lending contract (promissory note) state who the “Lender” is to be?
YES.
 Did it state how much that “Lender” is to lend? YES
 Did it state who the borrower is? YES
 Did the borrower, as the maker of the lending contract instrument, believe
that the “loan funds” are coming from the “Lender”? YES
24
 Did the contract state that payments were to be made to the “Lender”? YES
 Did the contract state that the maker's note might be sold? YES
So far, so good. Now the note gets sold, which a homeowner understood could
happen from the original contract he/she signed. It’s what happens after that sale
that creates the breach of the contract.
The homeowner’s note is most often sold to a securitized trust (as discussed
above) and converted from a negotiable instrument into a security. This is an
unauthorized alteration of the original note, a violation of the UCC § 3-407. The
homeowner (maker) of the note never authorized that conversion to a security.
That is a violation of the contract the homeowner signed.
The homeowner now has a new lender. Instead of making payments to the
original lender or the new lender, the homeowner is told to make payments to a
“servicer.” This is another violation of the original contract. The homeowner never
agreed to make payments to anyone other than the lender or a bona fide purchaser
of the note through a lawfully valid sale.
In many cases, MERS was named as either beneficiary or nominee on the

mortgage security. Pursuant to MERS own charter, as well as voluminous court
rulings, MERS has no right to assign the mortgage absent an instruction to do so
from the lender. No plaintiff has ever presented such authority in any court that we
are aware of. See for example, The Bank of New York, as Trustee for the Benefit of
the Certificateholders, CWABS, Inc., Asset Backed Certificates, Series 2007-2, v.
Sameeh Alderazi (2011) beginning at page 63 of this Guide.
Garfield has written, “The Banks are painting themselves into a corner. They
have been using assignments from MERS as the basis for showing the sale of the
loan when in fact (a) no sale occurred and (b) MERS never owned the loan (c)
MERS was never a creditor or payee on the note and (d) MERS was never a
mortgagee or beneficiary.”
Garfield goes further and says, “A borrower who signs papers without
having a known party who is required by law to execute a satisfaction (release and
25
reconveyance) has in effect executed documentation without a counterparty. The

document is therefore void.”
In other words, when the borrower pays off the loan, the mortgage lien
should be released. In this case however, because MERS is involved, the borrower
has no idea what party is to make that release upon payment. Absent a known
counterparty to the contract, the document is void. We agree with Garfield.
Bottom line, there is a breach of contract because among other reasons, the
actual terms upon which the money was advanced for the mortgage loan and the
new party that is to receive payments as a result of the securitization, were
different from the actual terms accepted by the homeowner/borrower.
_________________________
The Pooling and Servicing Agreement (PSA)
The PSA is a very effective weapon in exposing the deficiencies in a

plaintiff’s evidence supporting its foreclosure complaint. Thus, it is important to
understand what a PSA is in order to identify those deficiencies and use them in
your defense. This section will be an important reference as you construct your
foreclosure defenses.
Your promissory note and mortgage were very likely sold by your loan
“originator,” the company that helped you do all the paperwork for the loan and
which incidentally, is often NOT your true “lender.” The “originator” is merely a
middleman between the borrower and the true undisclosed “lender.” While that is a
violation of the terms and conditions of your note and mortgage, courts are still
reluctant to accept that argument. As such, it is not very helpful in a foreclosure
defense so we will not visit that subject here.
Now, in order to sell your promissory note and mortgage to a securitized

REMIC trust or a private trust, they had to first be pooled with other mortgage
loans (bundled together) in order to be securitized.
26
How to find the trust’s Prospectus and PSA
The Prospectus is a legally required document for all securitized trusts, to be

provided to all potential investors so they understand what they are investing in
and how the securitized trust will operate. Many securitized trusts are public and
can be found at:
http://www.sec.gov/edgar/searchedgar/companysearch.html
Once you find your securitized trust’s Prospectus and PSA, you should
contact the SEC to request a certified copy of it. You should also ask for a certified
copy of the Prospectus Supplement, if one was issued. You will need a certified
copy because that certification makes it admissible into evidence if the document is
relevant. The PSA will definitely be relevant, especially Section 2.01.
If you are lucky, the trust will be the actual plaintiff on the foreclosure
complaint. You may see something like this: The Bank of New York Mellon f/k/a/
The Bank of New York, as Trustee for the Certificate-Holders of CWMBS, Inc.,
CHL Mortgage Pass-Through Trust 2007-15 Mortgage Pass-Through Certificates,
Series 2007-15. Here, you have all the information you need to find this trust and
its PSA at the SEC web site.
Private securitized trusts cannot be found here because they are not governed
by the SEC so you will need to hire a professional securitization auditor. They use
a subscription based search tool like ABSNet or Bloomberg. Auditors will
generally charge anywhere from $100 to $600 to conduct the search. You will need
to provide the auditor with your loan number, MIN number if listed on your note,
your name and the property address. Some may want the actual note and mortgage.
Auditors can also find the PSA for you for an additional fee.
One caveat: not all securitized loans can be found on ABSNet or Bloomberg.
Some loans were not sold into REMIC trusts, but into something called a “floating
note debt offering.” For example, Washington Mutual FA did these in the early and
mid-2000’s. Just like a REMIC trust, these debt offerings have a Prospectus and
Pooling and Servicing Agreement, and require an Originator, Depositor, Seller, etc.
as parties to the securitization process.
27
Not all auditors are able to trace loans that went into these debt offerings, so
you definitely want to ask the auditor up front if they have the ability to search for
floating note debt offerings along with their access to ABSNet and Bloomberg.
This will save you from paying twice for the same service if your loan is not on
ABSNet or Bloomberg.
One other issue you might run into that will require an auditor is where the
Plaintiff claims to have owned your loan from the beginning. Since over 95% of all
mortgage loans were securitized, this claim is usually false. Again, the only way to
prove that is to find the trust your loan was sold into.
A good example of this situation would be any of the numerous wholly

owned subsidiaries of HSBC Bank that sold mortgages under such names as
Beneficial or Household Finance. HSBC shut down all of the over 800 nationwide
branches of these subsidiaries in early 2009, yet they unlawfully continue to appear
as plaintiffs in foreclosure complaints. All mortgage loans sold by these
subsidiaries were immediately packaged and sold by HSBC into trusts, some of
them private. An auditor will find the trust for you and provide the Prospectus and
PSA for you to use.
Assuming the trust you are looking for is not a private trust, once you know
the name of the trust, you can try entering that in the search engine. Sometimes you
may need to try a partial name of the trust, or various combinations of terms in the
trust’s name.
When you have found the specific trust your promissory note was sold to,
you can begin your search for its PSA. Unfortunately, the PSA is not an easy
document to find on the SEC web site. There is a lot of trial and error involved.
Don’t be surprised if it takes you up to an hour or more to find it.
Listed under your trust you will see a list of all the documents it has filed to
date. The most common ones are the 10-K, 8-K, 424B5 (Prospectus) and the FWP
(free writing prospectus). Generally, you will find the PSA listed as Exhibit 99-1 to
28
an 8-K filing. Again, it requires trial and error to find the right 8-K that contains
that exhibit.
The two KEY parts of the PSA you want
Once you have the PSA, you are interested in two specific sections,
Definitions and Section 2.01. Under definitions, you want the “closing date.” That
is the latest date that a promissory note and mortgage can be accepted by the trust.
Any attempted sale and transfer of these items into the trust after that date are
void per the PSA. You will need this date when examining any purported
assignments of mortgage or deed of trust.
Section 2.01 of most PSAs includes the mandatory process (also called
“conveyancing rules” or “conveyance of mortgages”) by which the promissory
notes and mortgages are to be sold and transferred into the securitized trust, and
any representations and warranties. The basic terms of this Section of the standard
PSA are set forth below:
2.01 Conveyance of Mortgage Loans. (a) The Depositor,

concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for
the benefit of the Certificateholders, without recourse, all the right,
title and interest of the Depositor in and to the Trust Fund, and the
Trustee, on behalf of the Trust, hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the
Trustee for the benefit of the Certificateholders the following
documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the original Mortgage Note (except for no more than up to 0.02%
of the mortgage Notes for which there is a lost note affidavit and the
copy of the Mortgage Note) bearing all intervening endorsements
showing a complete chain of endorsement from the originator to
the last endorsee, endorsed “Pay to the order of _____________,
without recourse” and signed in the name of the last endorsee. To
29
the extent that there is no room on the face of any Mortgage Note
for an endorsement, the endorsement may be contained on an
allonge, unless state law does not so allow and the Trustee is advised
by the Responsible Party that state law does not so allow. If the
Mortgage Loan was acquired by the Responsible Party in a merger,
the endorsement must be by “[last endorsee], successor by merger to
[name of predecessor].” If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another
name, the endorsement must be by “[last endorsee], formerly known
as [previous name]”; (All bold, underlined emphasis added.)
The complete chain of title from originator to last endorsee (usually the
trust) includes all of the following:
 the Originator
 the Seller
 the Depositor
 the Sponsor or Issuing Entity
 the Trustee
Pursuant to the UCC and the PSA, there MUST be a valid receipt for the
assignment and transfer of the mortgage loan documents from each entity to the
next one in the chain, otherwise the chain is broken, title is clouded and ownership
of the note cannot be ascertained. Thus, with a broken chain of title, the plaintiff
securitized trust cannot have standing to foreclose as it is not a real-party-in-
interest, thus, the complaint should be dismissed.
In other words, there MUST be an assignment of mortgage for every step in

the chain of title. Some states require it to be on file at the local county recorder’s
office where the real property is located. If there is no assignment, that is one way
to prove that the securitization of your promissory note FAILED, throwing
ownership of your promissory note and mortgage into question and clouding title
to your property.
Understand that the bank or entity that you make monthly payments to does
not own your promissory note; it is merely servicing (collecting) those payments
30
for the trustee on behalf of the investors in the trust. But the investors have no right
to receive their interest portions of those payments if the mortgage documents
weren’t transferred into the trust before the closing date listed in the PSA. This is
the most common ownership defect in foreclosures and is another way to prove
FAILED securitization and thus questionable ownership.
In order to ascertain whether or not the alleged assignment missed the

closing date, compare the date of the assignment of mortgage to the closing date.
For example, for a promissory note and mortgage allegedly sold to the CHL
Mortgage Pass-Through Trust 2007-15, you would find the closing date listed in its
PSA as July 30, 2007. If the first alleged recorded assignment of mortgage is
AFTER this closing date, the assignment is void pursuant to the PSA and New
York Estates, Powers and Trust Law which governs most securitized trusts.
See: New York Trust Law EPTL § 7-2.4, “If the trust is expressed in the
instrument creating the estate of the trustee, every sale, conveyance or other act of
the trustee in contravention of the trust, except as authorized by this article and by
any other provision of law, is void.”
In that case, it is very likely impossible to establish what entity, if any, owns
your promissory note and mortgage. Thus, the court will have no choice but to
either dismiss the complaint on motion by the defendant/homeowner, or award
summary judgment to the defendant/homeowner because the plaintiff cannot
establish standing and its right to enforce the note.
_________________________
NOTE: Most plaintiffs will try to argue to the court that a defendant/homeowner
has no right to challenge alleged violations of the PSA because they are not a
beneficiary or party to it. Do not allow the plaintiff to get away with such an
argument. As you will see below, prior to 2012, some courts agreed with that
argument, but since then, courts have recognized such a right and it is now
unquestioned. Needless to say, the banks are very unhappy with this.
Recall Attachment 1, U.S. Bank’s publication, Role of the Corporate Trustee. It

explicitly states (at the top of page 61) that a borrower [homeowner] is a party to
31
the mortgage backed securities transaction. Remember, without borrowers, there

would be no mortgage loans to securitize. The PSA governs this very transaction,
thus a defendant/homeowner has the right to challenge violations of the PSA.
_________________________
When defending against a foreclosure complaint, the following is an

excellent PSA argument to include if necessary:
Article II, Section 2.01 requirements of the Pooling and Servicing

Agreement (PSA) will demonstrate a break in the chain of title through defects in
the securitization process. A demonstrated break in the chain of title is evidence
that neither title nor possession of the original note passed to plaintiff.
Homeowners have the right to challenge foreclosures based on violations of

the PSA. See Ball v. Bank of N.Y., 2012 WL 6645695 at 4 (W.D.Mo. Dec. 20,
2012); James Hendricks et al., v. US Bank, N.A. as Successor Trustee to Bank of
America, et al., Case No. 10-849-CH, Washtenaw Cty., MI (2011).
Also, the federal First Circuit has ruled in two cases, Culhane v. Aurora
Loan Services of Nebraska, 708 F.3d 282, 289-90 (1st Cir. 2013) and Woods v.
Wells Fargo Bank, N.A., 733 F.3d 349, 353-54 (1st Cir. 2013), that a homeowner's
standing to sue is not foreclosed by virtue of their lack of privity to the assignment
documents.
Further, in a “pleading decision” published August 8, 2013, Glaski v. Bank

of America, National Association, F064556 (CA. Super. Ct. No. 09CECG03601),
that court held:
“We conclude that a borrower may challenge the securitized trust’s

chain of ownership by alleging the attempts to transfer the deed of
trust to the securitized trust (which was formed under New York law)
occurred after the trust’s closing date. Transfers that violate the terms
of the trust instrument are void under New York trust law, and
borrowers have standing to challenge void assignments of their loans
32
even though they are not a party to, or a third party beneficiary of, the
assignment agreement.”
Foreclosing plaintiffs generally cite Livonia Property Holdings, L.L.C., v.

Farmington Road Holdings, L.L.C., 717 F.Supp.2d 724 (E.D.Mich. 2010), as a
defense that the homeowner has no standing to challenge the validity of any
associated assignments made pursuant to the PSA. That court stated; “Borrower
disputes the validity of the assignment documents on several grounds outlined
above. But, as a non-party to those documents, it lacks standing to attack them.”
However, two years later in Talton v. BAC Home Loans Servicing LP, 839
F.Supp.2d 896 (E.D.Mich. 2012), that same court held differently when it ruled;
“It is true that the Livonia Properties opinion contains the statement
that “there is ample authority to support the proposition that ‘a litigant
who is not a party to an assignment lacks standing to challenge that
assignment, ‘” Livonia Properties, 399 F. App’x at 102 (quoting
Livonia Properties Holdings, LLC v. 12840-12976 Farmington Road
Holdings, LLC, 717 F.Supp.2d 724, 736-37 (E.D. Mich. 2010)); but
when read carefully the case does not stand for such a general and
unqualified position. The Court believes, therefore, that Livonia
Properties does not compel the conclusion that a foreclosure plaintiff
can never attack the foreclosure by challenging the validity of an
underlying assignment.”
Notably, the cases cited favorably above all post-date Livonia (2010), and
held that a homeowner need not claim party status nor third party beneficiary status
to the PSA, in order to challenge a foreclosure based on violations of the PSA that
rendered a purported assignment void.
In an interlocutory decision, the court in Wells Fargo Bank, N.A. v. Erobobo,

supra. held;
“Under New York Trust Law, every sale, conveyance or other act of
the trustee in contravention of the trust is void. EPTL § 7-2.4.
Therefore, the acceptance of the note and mortgage by the trustee after
33
the date the trust closed, would be void.” (Wells Fargo Bank, N.A. v.
Erobobo (Apr. 29, 2013) 39 Misc.3d 1220(A), 2013 WL 1831799,
slip opn. p. 8; see Levitin & Twomey, Mortgage Servicing, supra, 28
Yale J. on Reg. at p. 14, fn. 35 [under New York law, any transfer to
the trust in contravention of the trust documents is void].)” id.
_________________________
Under these circumstances, a defendant/homeowner should ALWAYS argue

that securitization FAILED because the plaintiff never actually received ownership
of defendant/homeowner’s original promissory note and mortgage. This is because
those instruments were never properly transferred to the plaintiff according to the
terms of the trust and the purported assignments that occurred in this case did not
follow the law of trusts in the State of New York to validly transfer those
instruments to the plaintiff. That makes the alleged assignment and transfer void.
As we next learn how to defeat a foreclosure complaint by examining the

promissory note, assignments and affidavits for deficiencies, it will be useful to
refer back to this section.
_________________________
Finding deficiencies in the foreclosure complaint itself
The first thing you need to understand about a complaint is that a plaintiff
needs only to allege certain facts (called “allegations”); it is not required to submit
its proof at this stage. That will come during discovery and trial if necessary.
Despite most foreclosure complaints not strictly complying with the rules of
civil procedure, courts have let those complaints stand. We want you to be aware
of the most common deficiencies, especially if the plaintiff is NOT the original
lender, and always include them in your affirmative defenses.
In no particular order:
 plaintiff has not alleged its standing to sue
 plaintiff has not alleged it loaned homeowner any money
34
 plaintiff has not alleged a binding contract between itself and

defendant
 plaintiff has not alleged how it became a party entitled to enforce
the note
 plaintiff has not alleged a specific injury or loss caused by
defendant
Absent these type of allegations, a complaint normally will not stand, unless
it is a foreclosure complaint. Without a contract, like the promissory note, there is
no legally binding requirement for a defendant to do anything. Without a claim of
injury, there is nothing for the court to grant recovery of. Without standing, a court
has no jurisdiction and should dismiss the complaint.
_________________________
Finding deficiencies in the promissory note
As mentioned earlier, the original promissory note with a borrower’s wet-

ink signature is the critical piece of evidence needed by the plaintiff to help it
prove its case. However, mere possession does not entitle a person to enforce
(PETE) the note. Article 3, Parts 2 and 3 of the UCC describe how a person must
obtain the note in order to become a person entitled to enforce the note.
Under the UCC Article 3, Part 3, there are only three ways a plaintiff can be
a person entitled to enforce a note: (1) as an assignee of the original lender’s
interest in the note, (2) as a holder of the note, or (3) as a non-holder in possession
of the note with the rights of a holder. Each distinct status requires the plaintiff to
present different materials to demonstrate its right to enforce.
_________________________
KEY POINT: Mere ownership or possession of a note is insufficient to qualify an

individual as a “holder.” The instrument must be obtained through a process the
UCC terms “negotiation,” defined as “the transfer of an instrument in such form
that the transferee becomes a holder.” UCC § 3-202(1). If the instrument is payable
to order, negotiation is accomplished “by delivery with any necessary
indorsement.”
35
Also, a note may be “endorsed in blank,” in which case it becomes “bearer” paper
under the UCC. However, in order to prove a “true sale” from the Sponsor to the
Depositor you must have written delivery and transfer receipts and proof of pay
outs and pay in transactions. You will ask for these documents in discovery.
_________________________
In discovery, which will be discussed later on, you will ask for proof that the
plaintiff has standing and is a person entitled to enforce the note. This includes
proof of value and consideration having been given for the note as well as proof of
negotiation, delivery and transfer of the note, per the UCC.
In the previous section, under Section 2.01 of the PSA you will find this:
“ … [t]he original Mortgage Note (except for no more than up to

0.02% of the mortgage Notes for which there is a lost note affidavit
and the copy of the Mortgage Note) bearing all intervening
endorsements showing a complete chain of endorsement from the
originator to the last endorsee, endorsed “Pay to the order of
_____________, without recourse” and signed in the name of the
last endorsee. To the extent that there is no room on the face of
any Mortgage Note for an endorsement, the endorsement may be
contained on an allonge, …”
(All bold, underlined emphasis added.)
“Pay to the order of _____________, without recourse” with no endorsee in

the space, is known as a “blank endorsement” which makes the note bearer paper,
just like paper money. Any person who holds such bearer paper may exchange it
for value with any other party. Most endorsements were placed on the note long
after the note was supposedly sold, assigned and transferred, instead of before,
which is the normal course after a holder has negotiated a sale of the note.
Because there is no requirement for endorsements to be dated, it is

impossible to prove when the endorsement was made. However, there can be
several problems with the endorsement present on your note that are easily
36
demonstrated. These will help you prove that the plaintiff has no standing and is
not a person entitled to enforce your note.
Section 3-204 of the UCC requires an endorsement be placed on the note

itself, as does the PSA. An endorsement must be placed on the original note right
under the signatures, unless there is no room. If there is no room, the endorsement
may be placed on a separate page that is permanently affixed to the note itself.
That separate page is called an “allonge.” While the UCC was revised in 1990 and
2002 to relax the “no space on original note” test, New York and South Carolina
still retain that explicit language.
Since the vast majority of mortgage securitization trusts were formed under
New York State’s Estates, Powers and Trusts Law, New York laws are controlling,
and the “no space on original note test” should apply. Also, UCC § 3-204(a)
mandates that the allonge be “affixed” to the original note, not an unattached sheet.
The Official Code Comment for UCC § 3-204 explains the requirement that
the indorsement be on or firmly affixed to the instrument. It states that the UCC
“follows decisions holding that a purported indorsement on a mortgage or other
separate paper pinned or clipped to an instrument is not sufficient for negotiation.
The indorsement must be on the instrument itself or on a paper intended for the
purpose which is so firmly affixed to the instrument as to become an extension or
part of it. Such a paper is called an allonge.” See Adams v. Madison Realty &
Development, 853 F. 2d 163, (3rd Cir. 1988).
Examine your note. More than likely, there is plenty of space after your
signature on the note, but an alleged allonge with the blank endorsement on that
separate page was included anyway. That is a problem for the plaintiff, as it is an
indication the endorsement was made after the fact in order to deceive the court
into believing it was timely and legitimate.
Also, see if there is any information on the allonge containing the blank
endorsement that connects it to your note. Information such as your name, the
address of the property and the loan number are critical. Otherwise, it is simply a
piece of paper with an endorsement, unconnected to any identifiable document
37
such as your note. Utilizing this information along with the rules of evidence
(Articles VIII and IX) should prevent the allonge and any endorsements from
being entered into evidence.
Another problem with many endorsements is that they were stamped onto
the note by a person other than whose signature (name) appears on the stamp. This
is known as robo-signing and will be explained below. The person stamping the
endorsement onto the note had no personal knowledge as to anything having to do
with the transaction.
One of the more notorious blank endorsement robo-signers is Michelle

Sjolander, a Bank of America employee who has given several depositions
whereby she testified that she never personally placed or signed any endorsements
on notes, and that she gave power of attorney to unknown individuals to stamp her
signed endorsement onto notes. She also testified that she had no idea how many of
her signature stamps existed and that she had no control over their [mis]use. See:
http://4closurefraud.org/2012/03/22/robo-stamped-full-deposition-of-michele-
sjolander-executive-vice-president-of-countrywide-home-loans/
for pertinent excerpts from her deposition on January 12, 2012 in a case titled: In
the Matter of: Clinton E. Kirby v. Bank of America, No. 2:09-cv-182, (USDC
SDMS 2011).
_________________________
Finding deficiencies in the Assignment of Mortgage
Assignments of Mortgage (AOM) may be recorded in the land records of the

county where the property is located. MERS member banks in most cases failed to
do this. With no evidence of compliance with the PSA’s recording requirement for
all assignments of mortgage, there is likely a break in the chain of title. Your
particular foreclosure may have more than one AOM which actually gives you
more chances to prove fraud and defeat the foreclosure action.
In foreclosure cases, the foreclosure mill law firm representing the plaintiff
contracts with a document processing company such as Lender Processing
Services (LPS) in Jacksonville, Florida, to unlawfully fabricate missing
38
documents. These documents are necessary for the plaintiff to falsely claim party-
entitled-to-enforce status and thus standing, in order to foreclose. Whether you call
it forgery or fraud, it is illegal, yet companies like LPS are still in business.
At the top of most AOMs you should find “Recording Requested By” and
“When recorded return to.” Often, the recording is requested by the foreclosure
mill law firm doing the foreclosing, years after the closing date for the securitized
trust. This makes no sense because an assignment should have been recorded at the
time of each “true sale” into the securitized trust, not years later by a foreclosure
mill law firm claiming to represent an alleged plaintiff attempting to unlawfully
foreclose.
The date on the AOM is usually after the closing date, a very reliable
indication that the note and mortgage never made it into the securitized trust. That
means the securitization FAILED and the securitized trust does not lawfully own
the promissory note or the mortgage and is not a person entitled to enforce the
note. Therefore, it cannot foreclose.
There are other obvious defects on an AOM that indicate it is likely a

fabricated, fraudulent document including:
 Check the address listed for the assignor and then the state from
which the notary’s commission was issued. Often they will be in
different states, some clear across the country. Does it make sense
for an entity in Florida to notarize a document in California? No.
In those cases both the signatory and notary most likely work for
the bank (or its servicer) trying to foreclose. Fabrication of such a
document constitutes numerous elements of fraud, including notary
fraud.
 Check the signature of the person signing for the assignor. In most
cases it will either be initials or squiggly lines. This is a strong
indication of robo-signing, also known as forgery. Briefly, robo-
signing involves people (who are often not even the named party)
signing documents and swearing to their accuracy without
verifying any of the information. Robo-signers are also mortgage
lending company or bank and/or servicer employees who prepared
39
and signed off on foreclosures without reviewing them, as the law

requires. Robo-signers literally sign hundreds of documents per
day in the course of their (unlawful) duties. It should be relatively
easy to find out if the signatory to your AOM is a known robo-
signer. Simply google their name and the word “robo-signer” and
check the results. Also check the links to the Salem County,
Massachusetts and Osceola County, Florida Forensic Audits
mentioned earlier.
 Any AOM with MERS as the assignor that purports to assign the
mortgage and the note is fabricated. Notes cannot legally be
assigned by MERS because by its charter, it can never have an
ownership interest in the note. Because MERS only might have
had an interest in the mortgage security, merely assigning the
mortgage without the note is a legal nullity. This is an attempt on
the part of the plaintiff or its lawyers to deceive the court into
believing it is a party entitled to enforce the note. An argument can
certainly be made that this constitutes fraud upon the court.
 Look at the date in the name of the trust your loan was allegedly
sold to. For example, HSBC Home Equity Trust Series 2006-1. If
the AOM is dated, notarized and filed in any year after the year
stated in the name of the trust on the AOM, it is actually an AOM
specifically and fraudulently created to facilitate a wrongful
foreclosure.
 If all the fill-in–the-blank spaces such as names, titles and dates
were stamped, this indicates a fabricated, robo-signed document.
 Check if the assignment of the Mortgage was executed by a legal
entity that was no longer in existence on the date the document was
executed. For example, AOMs allegedly made by Option One
Mortgage Corporation are likely fraudulent.
 Check if the assignment was executed by a party pursuant to a
Power-of-Attorney but no Power-of-Attorney is attached to the
instrument or filed with the instrument or otherwise recorded with
the local county recorder.
 Check for self-assignments, where the assignor and assignee are
the same entity and/or the same person signs for both.
40
You must use whichever deficiencies you identify in your documents for
your defense. They will be organized under your Affirmative Defenses or New
Matter.
_________________________
Finding deficiencies in the Affidavit
Affidavits for each individual foreclosure will be different, but generally,

you will find that the person swearing to the contents of the affidavit (known as the
affiant), did not have personal knowledge of the facts to which they swore. No
affidavit attached to a foreclosure complaint should ever be allowed into evidence.
This is where familiarity with your state’s Rules of Civil Procedure and the Rules
of Evidence will come in handy.
Note that it is what the affiant doesn’t say in his/her affidavit that leaves
wide open defenses for you. For example, there is usually no evidence provided
by exhibit or testimony of the affiant that the plaintiff is the alleged holder or
owner of the original promissory note and thus a person entitled to enforce said
note.
Even if the affiant claims in the affidavit that the plaintiff has physical
possession of a promissory note and has attached an alleged “true and correct
copy,” note the job title and description of the affiant. It will usually be in some
department that has nothing to do with the handling or ownership of any
promissory notes.
In fact, the affiant will never assert first-hand eyewitness knowledge of

having either seen the original promissory note themselves or in the possession of
the plaintiff, at any time. Thus, the affiant’s affidavit (testimony) is not sufficient
to establish possession of the original promissory note and thus, plaintiff has no
standing to foreclose.
Without personal knowledge, the affidavit should be inadmissible as

evidence; it is merely hearsay. Note that any reference to familiarity with or
41
examining books and records is a red flag telling you this affiant did not have
personal knowledge. Should your case go to trial, any trial lawyer worth his/her
salt should be able to impeach the affiant’s credibility and testimony under cross-
examination. And if the affiant is not in the courtroom, your lawyer should move
to have the affidavit excluded as inadmissible evidence, which it most certainly is.
_________________________
Answering the foreclosure complaint
The most important thing to remember is to deny, deny, and deny ALL
allegations in the foreclosure complaint except for obvious allegations such as a
description of the property or receipt of a letter, if it can be proven you signed for
its receipt. Never, ever admit that you missed a payment(s) or your loan is in
default. If you do that, you will lose. End of story. While it has not yet been
determined if a default exists, your loan is likely NOT in default, and is paid up to
date.
In discovery, you will request copies of all monthly “Remittance Reports”

submitted by the servicer to the securitized trust. These remittance reports will
prove that your note is not in default and all payments have been made. The
explanation as to why this is is beyond the scope of this Guide, but the answer can
be found in the Prospectus, Prospectus Supplement, or even the PSA.
So, among other things, deny that your loan is in default and force the
plaintiff to prove a default, deny that you owe plaintiff any amounts, deny the
amounts listed are correct, deny that you ever received any proceeds of a loan from
plaintiff (which is especially true if the plaintiff listed is not who you thought was
the original lender), deny that your signature is on the copy of the promissory note,
if they present one (remember, ONLY an original promissory note with your wet-
ink signature can help prove standing and a possible right to foreclose), and most
importantly, deny that plaintiff has standing and deny plaintiff is a person entitled
to enforce the note. Some of these denials can be repeated for more than one of the
plaintiff’s allegations.
42
Be careful when hiring a lawyer, for it is common practice for lawyers to

take your money and then admit to most, if not all, allegations in the foreclosure
complaint. If that happens, you will lose and be out thousands of dollars. Be sure
the lawyer is a consumer advocate type lawyer and knowledgeable of foreclosure
defense tactics so you can have some confidence he/she will defend you properly
for the money he/she charges you. Reading this Guide will help you manage your
case should you hire a lawyer.
After you have addressed all the allegations in the numbered paragraphs of
the foreclosure complaint, you will ask the court to dismiss the complaint for the
various reasons in your denial, basically that the plaintiff has no standing, is not a
party entitled to enforce the note and there is no evidence the loan is in default, or
even that there is a mortgage loan outstanding. Generally, your denials are not
going to be enough to get the foreclosure complaint dismissed, which is why the
next section is critical.
Affirmative Defenses (or New Matter) to the Foreclosure Complaint
Whatever the rules of civil procedure for your state call them, your defenses
will give the court the evidence it needs to dismiss the foreclosure, despite many
courts’ bias in favor of the banks. Each individual defense is numbered separately
with its own paragraph.
If the foreclosure complaint included a copy of the note and any AOMs, you
should have no trouble compiling affirmative defenses. However, in those states
that do not require attachment of the note and any AOMs to the foreclosure
complaint, you will have to go to your local courthouse and check your property
records for any AOMs and get copies. Otherwise, your defenses will be more
general and thus not strong enough to support a dismissal of the foreclosure
complaint on their own.
Not having the note and AOM makes it more likely that you will not be able
to get the foreclosure complaint dismissed at this stage, and instead, the case will
be scheduled for trial and proceed to discovery. However, after discovery is
43
completed, you should have a great opportunity to be awarded summary judgment

and have the case dismissed before the scheduled trial.
In order to do that, you must effectively use the three discovery tools at your
disposal - requests for admissions, interrogatories and requests for production of
documents. These will be discussed further on and samples will be attached at the
end of this Guide.
As applicable, among your affirmative defenses, you should allege the

following individually:
 Plaintiff has failed to allege the existence of a debt arising from
Defendant receiving a loan from the foreclosing party or any
predecessor in the chain of title.
 Plaintiff has failed to claim it loaned Defendant any money
 Plaintiff has not alleged any financial injury to itself, and as such,
this Court has no jurisdiction to continue the matter.
 Plaintiff has failed to join an indispensable party, i.e. the holder or
holder in due course of the original promissory note at the time
this action was filed and therefore Plaintiff is not entitled to
enforce the note. Thus, this Court does not have subject matter
jurisdiction.
 (If you find deficiencies in the AOM.) The purported mortgage has
not been lawfully assigned to Plaintiff as evidenced by a fraudulent
robo-signed document filed with the County Clerk’s (or
Recorder’s) Office and the lender does not have the original note,
thus, Plaintiff lacks standing to bring suit because it has suffered
no legally cognizable injury upon which relief can be granted.
 (If you know the name of the trust that your note was allegedly
sold to.) The note and mortgage upon which Plaintiff’s claims for
relief were brought were apparently negotiated, assigned,
transferred or deposited from the original lender and original
mortgagee, or subsequent transferee. Defendant denies for lack of
knowledge the lawfulness of said transaction, including the
authenticity of, and authority to execute, notarize or otherwise
effect each purported transaction.
44
 Plaintiff and its counsel filed this instant action with unclean hands
because they did not possess the documents they swear they
reviewed in their affidavits and pleadings filed with this court.
Plaintiff and its counsel knowingly filed false, fraudulent, unlawful
and deficient documents with the County Clerk’s Office to
expedite this foreclosure to Defendant’s detriment, therefore,
Plaintiff’s complaint should be dismissed with prejudice.
 (If you have identified specific deficiencies in the AOM, use them
here. The following is from an actual affirmative defense.) “The
purported ASSIGNMENT OF MORTGAGE dated _________ and
recorded with the ______ County, Recorder of Deeds is a robo-
signed forgery and therefore void, a nullity with no legal effect.
See Exhibit “A” for a copy of the Assignment of Mortgage.
Reasons the document is a robo-signed forgery include the fact that
names and dates are STAMPED instead of hand-written and the
purported signature of Christopher Herrera, alleged Vice President
of MERS is a robo-signed forgery. Christopher Herrera is a known
employee at BAC Home Loans Servicing, LP
(http:ll4closurefraud.org/201I106127lfalse-statements-bank-
ofamerica-bank-of-new-york-mellon-corelogic-cwabs-cwalt-
mers/).”
Mr. Herrera did not read the documents or verify the facts
contained therein by reviewing the primary source(s) of evidence
regarding the purported assignment. Evidence will be requested
and should be provided through discovery, of Christopher
Herrera’s position as Vice President of MERS and proof of his
signing authority, if any, as well as the page from the notarial
journal of notary Danya Bucaro containing the purported
notarization of said assignment.
Further, Defendant believes that notary Danya Bucaro was an
employee of one of the entities named on the Assignment of
Mortgage at the time of the notarization, thus, the notarization may
be neither effective nor lawful.
45
Depending on what your examination of the note and any AOMs reveals,
there may be other affirmative defenses to list. By rule in most states (Florida
being a notable exception), the Plaintiff must respond to your affirmative defenses,
and you will then have a set period of time (depending on your state’s rules) to
reply to the Plaintiff’s response to your affirmative defenses. ALWAYS take
advantage of any opportunity to make your case to the court. And, in the rare case
that the plaintiff does not respond to your affirmative defenses, you can file for a
default judgment.
After you have listed all your affirmative defenses, you will include another
wherefore clause, repeating your request that the court dismiss the foreclosure
complaint. For example:
WHEREFORE, as answering Defendants have provided evidence that

Plaintiff had no standing to bring the instant action, it is respectfully
requested that this Honorable Court DISMISS the Complaint with
prejudice, at Plaintiff’s cost or, in the alternative, Defendant demands
trial by jury on each and every issue so triable as a matter of right
pursuant to Pa.R.C.P. No. 1007.1 and the Pennsylvania Constitution
Article I, Section 6.
Obviously use YOUR state’s rules of procedure and Constitution.

_________________________
Substitution of Party Plaintiff
In some cases, after the homeowner has filed his/her answer and affirmative
defenses (or new matter), they will receive a motion to substitute the foreclosing
party or party plaintiff. This is merely a ruse where the original foreclosing party
now requests that another party be substituted as the new foreclosing party. The
goal is to further distance any parties to the original transaction from being
questioned through discovery or called as witnesses during trial.
Always challenge such a motion by demanding strict proof via admissible

evidence of the alleged substitution. Things to ask for include any documentation
46
proving exactly what was transferred to the new plaintiff, when the alleged transfer
occurred, how the alleged transfer took place and the agreement by both parties to
the alleged transfer and substitution.
If the court permits the substitution, you should immediately file a motion to
amend your answer and affirmative defenses (or new matter). Due process
mandates that the homeowner be permitted to amend its pleadings to include
defenses to this alleged and undocumented transfer, and to conduct discovery on
the alleged transfer.
_________________________
Discovery
Discovery tools are powerful weapons you must use in order to prove your
case and win a dismissal of the foreclosure complaint at any stage of the legal
process. Discovery is used before trial to obtain evidence by requiring the adverse
party to disclose information that is essential for the preparation of the requesting
party's case and that the other party alone knows or possesses.
There are four main discovery tools: depositions, interrogatories, production

and inspection of documents and requests for admission of facts. We’ll briefly
examine each and also attach samples of the last three at the end of this Guide.
Depositions
A deposition is an oral pretrial examination of an adverse party or witness,

called a deponent, who is under oath and must respond truthfully to the questions.
This discovery tool is rarely used in foreclosure cases because it can be expensive.
You must pay for a lawyer to perform the examination, as well as pay for a
videographer or licensed court reporter to record the examination. You are usually
also required to pay any costs borne by the deponent such as transportation, and
lodging if they travelled a long distance and the deposition will take more than one
day. Most if not all of the information you need for a foreclosure defense can be
obtained through the other three methods of discovery. Only if your case goes to
trial and your attorney deems it absolutely necessary should you even consider this
option.
47
Interrogatories
Interrogatories are specific written questions submitted by a party to its

adversary who must respond under oath and in writing. You should be careful to
state questions in a precise manner so as to obtain an answer that is pertinent to
your foreclosure defense. Do not leave your adversary any wiggle room to avoid
the answer you are seeking. In other words, paint him into a corner with your
questions. See Attachment 4 (p. 79) for sample interrogatories.
Request for Production and Inspection
A party is generally entitled to the production and inspection of relevant

documents in the possession or control of its adversary. For example, you want to
inspect the original promissory note for originality of signatures and look for any
unauthorized alterations to it, as well as copies of any recorded AOMs and copies
of such things as transfer receipts and remittance reports. See Attachment 5 (p. 90)
for suggested documents to request.
Requests for Admissions
This is the least utilized, yet most powerful discovery tool at your disposal.
You are seeking simple admissions or denials. There is no wiggle room. Facts
constructed properly will leave your adversary no choice but to admit to them. Be
sure your facts are facts, and not conclusions of law or opinions. See Attachment 6
(p. 98) for sample admissions to request.
This discovery tool is used to minimize the time and expense incurred in
proving issues that are not in dispute. If an adversary denies a fact that evidence in
the record proves is true, that will work in your favor. If your adversary fails to
respond to your request, it will result in all facts being admitted. This also serves to
prevent your adversary from challenging the admission of those facts during trial.
_________________________
48
NOTE: The SAMPLE Discovery documents provided in Attachments 4, 5 and 6

need to be modified to fit your particular circumstances. Remember to check your
state’s rules for the maximum number of requests permitted in each of the three
discovery tools. If you will exceed that number, you can always make a second
request later. All items highlighted in YELLOW should be properly completed
based on your case. All explanatory comments in parentheses and highlighted in
YELLOW should be removed prior to mailing.
If you are in a non-judicial foreclosure state, you will be the plaintiff and the
bank or securitized trust will be the defendant, so you will need to reverse them in
the samples provided.
The three SAMPLE discovery documents contain boilerplate language before the
actual numbered requests. Some numbered requests were compiled from various
sample discovery documents found on the internet and used in actual cases, and
adapted as necessary. Others were created by the author, a certified paralegal. Feel
free to modify, add or delete items as necessary.
_________________________
The most common responses by the foreclosing party are to, a) object to all
your requests and not answer them, b) state they are overly burdensome and would
not lead to any discoverable information that can be used in court, or c) simply
ignore them completely. In any case, after the applicable time to respond has
passed, you can do one of two things, 1) file a Motion to Compel Discovery or,
better yet, 2) file a motion for summary judgment.
In your motion to compel discovery, you must tell the court that you
properly served discovery requests on your adversary and they either filed
objections to everything you requested or they simply did not respond at all. For
discovery to be granted, you must explain to the court that you have a reasonable
belief such evidence is necessary to your foreclosure defense and why.
The better alternative to filing a motion to compel discovery at this time

would be to file a motion for summary judgment (MSJ) since by plaintiff’s failure
to answer your request for admissions, by rule all are deemed admitted. That
49
means there are no issues of material fact in dispute and the court should grant
your motion which would dismiss the foreclosure complaint. MSJ’s are explained
below at page 51.
You can initiate discovery at any time, even before you have filed an answer
to the foreclosure complaint, but some parties wait until the court issues a
scheduling order giving dates to initiate and complete discovery. It is a good idea
to serve discovery requests on your adversary concurrent with the filing of your
answer and affirmative defenses. You can always refile them if necessary.
You want to put the plaintiff bank or securitized trust on the defensive
immediately. Always send those requests via certified, return receipt requested
mail. That way, you will know exactly when the requests were received and when
the clock starts and stops for a response.
_________________________
NOTE: Of the dozens of foreclosure cases we have assisted with or studied, only
once has a foreclosing plaintiff served discovery requests on the
defendant/homeowner. You must answer the requests as best you can while
continuing to deny, deny, and deny. Deny your signature is on the note they
presented for evidence because it will most assuredly be a “copy” of an alleged
original and your wet-ink signature can ONLY appear on the original, deny you
owe plaintiff any money and deny you are in default. As every foreclosure case is
different, it is impossible to get any more specific than that. However, be sure to
read your state’s rules on how to write a proper denial. Merely denying without
providing a factual basis for the denial will be deemed an admission under the
rules.
_________________________
At any time after initial pleadings have been filed, but usually after
discovery has been completed and before preparations for trial begin, either party
may file a Motion for Summary Judgment (MSJ). In virtually every case
however, the plaintiff bank or trust will prematurely file its MSJ, before discovery
is initiated and completed. You should respond with an Answer in Opposition to
Plaintiff’s Motion for Summary Judgment, Defendant’s Counter-Motion for
50
Summary Judgment, and Brief in Support Thereof. Yes, that’s a mouthful, but
all will be explained in the next section.
_________________________
Motion for Summary Judgment (MSJ)
A motion for summary judgment is where one party asks the court to render
judgment in its favor because it claims there are no material facts in dispute, and
those undisputed facts support its position. If, after the other party has filed its
response, the court agrees with your motion, it grants the motion and the case is
dismissed. There will be no trial. Of course, a MSJ ruling against either party is
appealable to the appellate court.
Rule 56 of the Federal Rules of Civil Procedure states:
A party may move for summary judgment, identifying each claim or

defense — or the part of each claim or defense — on which summary
judgment is sought. The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. The court
should state on the record the reasons for granting or denying the
motion.
Your state’s rule should be very similar. In deciding a summary judgment

motion, the court is supposed to review the pleadings, any attached exhibits, any
depositions, any answers to interrogatories, any admissions on file, and any
affidavits admitted by the court. In order to protect each party’s due process rights,
courts are very reluctant to grant such motions. In fact, the standard of proof is
very high for such motions. All inferences drawn from the evidence presented and
all ambiguities must be resolved in favor of the party who opposes the summary
judgment motion. In other words, this would cause such a motion to be denied and
trial scheduled.
The standard for the plaintiff bank or other entity to win a MSJ is actually
much higher than that of the defendant opposing the motion. It has to prove among
51
other things, jurisdiction of the court, that it is the owner/holder of

defendant/homeowner’s original promissory note and mortgage, that defendant
had a duty to pay plaintiff a certain sum, said defendant failed in that duty and
defaulted, that failure caused a loss to Plaintiff, and plaintiff is entitled to foreclose
on the mortgaged property of defendant to recover its loss.
_________________________
NOTE: Although outside the scope of this Guide, we would be remiss if we did
not at least mention the following.
One other item of proof that courts have so far refused to entertain is the fact that
the alleged “lender” did not lend the homeowner any money. Congress considered
a “debt” to be one “arising out of a transaction.” (See 15 U.S.C. §1692a(5).) In
banking terms, a “transaction” is defined as:
“Any event that causes a change in an organization’s financial

position or net worth, resulting from normal business activity. It is
recorded on the general ledger by debit or credit tickets. (Emphasis
added.)
Only when the “transaction” causes a change (decrease) in a lender’s Net Worth
account can the lender prove a legitimate debt obligation was created against a
homeowner/borrower as a loan of “money.” In the case of money loans, almost
100% of them were entered on the lender’s books as an increase in assets and a
corresponding increase in its liabilities, resulting in no change to the lender’s net
worth.
This is the reason you should always ask for copies of the lender’s books and
records in a request for production of documents. However, be prepared for the
court to rule against the production of such books and records in order to protect
the banks from being exposed for their fraudulent lending practices.
It is also why the original lender is virtually never the foreclosing plaintiff, and
why you often see substitute trustees. The banks are trying to put as much distance
52
between the defendant/homeowner and the original purported lender as possible so

they can claim they cannot produce the requested books and records.
Why? Because the banks know their books and records reflect no change to their
net worth, meaning no money was lent, and thus are the smoking gun that would
defeat their foreclosures. The courts also know this all too well.
_________________________
In order to defeat a plaintiff’s MSJ, all the defendant/homeowner should

have to do is demonstrate one fact that is in dispute, and the MSJ should be denied.
Having learned all the potential deficiencies in the allonge to the promissory note,
the blank endorsement on the note or allonge, the assignment of mortgage and
violations of the PSA, it should be very easy for a homeowner to defeat a MSJ.
Better yet, if those deficiencies are presented properly in a cross-motion for

summary judgment, there is an excellent chance of having the case dismissed right
there. The main goal is to prove to the court the plaintiff did not have standing to
file its foreclosure complaint and thus the court had no jurisdiction to accept the
case, and therefore must dismiss the complaint.
The easiest way to do this is to prove violations of the PSA, especially that
the attempted assignment and transfer of the note and mortgage into the securitized
trust was void because it missed the closing date of the securitized trust. Earlier,
you learned how to do that by comparing the date on the AOM with the closing
date of the securitized trust. They are often years apart. That also means the
securitization of your note failed because the plaintiff bank or securitized trust
does NOT hold a perfected mortgage lien upon your property. An unperfected
mortgage lien is of no legal significance or value.
This is the most common way homeowners have defeated foreclosures,

especially in New York State. You must read these two excellent examples where
NY judges “get it” and have ruled in favor of the homeowner, citing many of the
same reasons we have shown you in this Guide:
53
 Attachment 2 (pg 63) – Decision and Order of Judge Wayne P.

Saitta in: The Bank of New York, as Trustee for the Benefit of the
Certificateholders, CWABS, Inc., Asset Backed Certificates, Series
2007-2, v. Sameeh Alderazi (2011)
 Attachment 3 (pg 69) - Decision and Order of Judge Arthur M.

Schack in: The Bank of New York, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN
TRUST 2006-OC1 MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-OC1, Plaintiff, against Denise
Mulligan, BEVERLY BRANCHE, et. al. (2010)
Mortgage Loan Modification
Just a quick word on this topic. It is generally never in a homeowner’s best

interest to accept a mortgage loan modification. In addition to the generally lousy
terms offered, think about this: if you know the documents entered into the record
are fabricated, then the foreclosing plaintiff doesn’t have standing to foreclose, so
why would you negotiate ANYTHING with them? By accepting a loan
modification, the new paperwork WILL give the foreclosing plaintiff standing to
foreclose if you do not make the new payments. It is usually better to defend
against the foreclosure, especially if you have followed the information in this
Guide.
_________________________
Summary
The goal of this Guide is to teach homeowners the basics of how to contest
and defeat the foreclosure action. If you choose to delve deeper into the issue, there
is a list of resources following this section that you can research. Even if you do
not win a dismissal of the foreclosure complaint with your affirmative defenses or
a MSJ, everything you have used to construct your defense will help you during
trial. Just because the court does not grant a dismissal at these pre-trial stages does
not mean your case is weak. Remember, most judges are reluctant to deprive a
party to a lawsuit its day in court unless that facts are undeniably in favor of one
party or the other.
54
Having said that, there are many instances where courts have done just that,
and deprived homeowner’s their day in court by granting a bank's motion for
summary judgment, despite numerous disputed issues of material fact. Some courts
have a blatant and undeniable bias in favor of the banks. However, all court
decisions are appealable, so hopefully in those cases the homeowner with a solid
defense will find justice at the appellate level of the court system.
Utilizing the information provided in this Guide will give you your best
chance of defeating a foreclosure action. Good luck!
_________________________
Resources
NOTE: We have provided links to the FEDERAL Rules of Civil Procedure,

FEDERAL Rules of Evidence and FEDERAL Uniform Commercial Code for
study purposes as they will be very similar to those of your state, but remember,
you must use your home state’s rules and procedures. This is especially
important in non-judicial foreclosure states where as mentioned earlier, the
defendant bank might try to have the case removed to federal court.
1. Federal Rules of Civil Procedure - https://www.law.cornell.edu/rules/frcp

2. Federal Rules of Evidence - https://www.law.cornell.edu/rules/fre
Especially Rules: 401, 402, 801 – 807, 901, 902 and 1001 – 1008.
3. Federal Uniform Commercial Code - https://www.law.cornell.edu/ucc
Especially: Article 3, Parts 1 – 3; Article 8 and Article 9, Part 3.
4. Google Scholar for finding and researching court cases -
https://scholar.google.com/
5. Jurisdictionary - http://www.jurisdictionary.com/ This is one of the best
legal self-help courses available.
6. Nolo.com – Another excellent legal self-help site.
7. https://livinglies.wordpress.com/ Attorney Neil Garfield’s blog is one of the
best resources for up-to-date information about foreclosure defense and
relevant court decisions around the country.
55
8. Anything you can find on-line by attorney Robert M. Janes, Nye Lavalle,
and Florida attorney April Charney, who performed groundbreaking work in
the foreclosure defense field.
9. Clouded Titles by Dave Kreiger
10.http://stopforeclosurefraud.com/2013/11/18/adam-levitin-the-paper-chase-
securitization-foreclosure-and-the-uncertainty-of-mortgage-title/
11.www.sec.gov to look up the securitized trust that supposedly owns your
promissory note and mortgage.
12.You can run your mortgage through all three of the following systems
whether you’re in a non-judicial or a judicial state.
http://www.fanniemae.com/loanlookup/
https://ww3.freddiemac.com/corporate/
https://www.mers-servicerid.org/sis/
_________________________
Important Cases to Read
In addition to the cases in Attachments 2 and 3 and others excerpted

throughout this Guide, if you would like to learn more about successful foreclosure
defense, the following cases are an excellent place to start. They can be found at
Google Scholar or any major search engine.
 Bevilaqua, v. Rodriguez, Mass. SJC–10880 (2011)
 Bank of America, N.A. v. Scott A. Greenleaf, 2014 ME 89, SJC of
Maine (2014)
 Bank of America, N.A. Successor by Merger to BAC Home Loans
Servicing, LP, fks Countrywide Home Loans Servicing, LP v. Nash,
CASE NO. 59-201 l-CA-004389, Seminole County, FL (2014) –
Final Judgment
 In re: Cynthia Carrsow‐Franklin, Case No. 10‐20010, USBR Ct,
SDNY (2015)
 JP Morgan Chase Bank, NA v. Murray, 63 A. 3d 1258 (Pa.
Superior Court 2013)
56
ATTACHMENT 1 – U.S. Bank – Role of the Corporate Trustee
57
• U . S . B A N K G LO BA L C O R P O R AT E T R US T S E R ){I C ES
Role of the Corporate Trustee

Financial strength. Local expertise. Global reach.
It is estimated that some mortgage lenders securitized as much as 70-80% of their
outstanding mortgages through the sale of Mortgage Backed Securities (MBS) in the
capital markets. This process, the securitization of mortgage loans, goes back to the
1970s and has contributed to the availability and affordability of mortgage credit.
The combination of high foreclosure rates and high levels of mortgage backed
securitization activity has many people attempting to understand the complex
securitization process and identify the parties to the MBS transactions and their
assigned responsibilities.
Distinct Party Roles
Parties involved in a MBS transaction include the borrower, the originator, the servicer
and the trustee, each with their own distinct roles, responsibilities and limitations.
usbank.
58
What is a Mortgage Backed Security?

U.S. Bank as Trustee:
Residential and commercial property mortgages often are used to create Mortgage
As Trustee, U.S. Bank Global Backed Securities (MBS) by firms within the financial industry. Mortgage backed
Corporate Trust Services securities are financial instruments which represent an ownership in a group of
performs the following mortgage loans, commonly referred to as pools, and their corresponding cash flows.
responsibilities: Mortgage loans are purchased from banks. mortgage companies, and other originators
and then assembled into pools by a governmental, quasi-governmental. or private
• Holds an interest in the entity and then deposited into trusts which issue securities entitling the investors to all
mortgage loans for the principal and interest payments made by borrowers on the loans in the pool. This
benefit of investors process is known as securitization.
• Maintains investors/securities
holder records MBS securities are
• Collects payments from the brought to market by
Servicer the owner of a pool of
• Distributes payments to mortgages, typically
the investors/ securities referred to as the
holder sponsor, and the
• Does not initiate, nor has transaction is structured
any discretion or authority in and sold by investment
the foreclosure process bankers. A sponsor may
• Does not have responsibility for be the originator of the
overseeing
mortgages or, in many
mortgage servicers
circumstances, an
• Does not mediate between
aggregator who both
the servicer(s) and
originates and purchases
investors in securitization
mortgage loans from
deals
smaller originating
• Does not manage or
institutions. When a pool of
maintain properties in
sufficient size and
foreclosure
diversification has been
• Is not responsible for the
aggregated, the sponsor
approval of any loan
will engage the appropriate
modifications
parties to structure, sell
and administer the
All trustees for MBS
transactions. including mortgage loans and trust
U.S. Bank, have no advance on an ongoing basis.
knowledge of when a mortgage Who initiates and Manages a Foreclosure?
loan has defaulted.
U.S. Bank, as trustee for thousands of securitization transactions involving many
Trustees on MBS transactions, millions of mortgages, is often mentioned in media reports about foreclosures. While
while named on the mortgage trustees are listed on mortgages. and therefore in legal documents as well, as the
and on legal foreclosure owner of record, its interest is solely for the benefit of investors. The trustee does not
documents, are not involved in have an economic or beneficial interest in the loans and has no authority to manage or
the foreclosure process. otherwise take action on the loans which is reserved for the servicer.
As noted, the trustee does not play a role in initiating or managing a foreclosure
process and consequently has little, if any, information relating to mortgage loan
activities including a foreclosure. Depending on the particular trust and pool, the trustee
may have very limited information on either the borrower or the property.
The servicer, who is selected by the Sponsor of the trust, may have to foreclose on a
property if a borrower (mortgagee) does not make payments as required by the
mortgage documents. Any action taken by the servicer must maximize the return on the
investment made by the "beneficial owners of the trust” -- the investors.
59
Servicer vs Trustee Responsibilities

Appointed by the sponsor, the Servicer is the contractual party to the trust for the benefit of
investors, and performs the following responsibilities:
• Collects payments from the

borrower/mortgagee Maintains loan level
detail
Pays property taxes and insurance (if
applicable) Calls a default for non-
payment
Forecloses on the mortgage and maintains the related p r o p e r t y
Modifies mortgage terms within limitations outlined by the provisions of the Pooling
and Servicing Agreement relevant to a particular MBS transaction
Maintains the physical property to comply with local housing codes
U.S. Bank Global Corporate Trust Services, as Trustee, is responsible and accountable to
the investors or holders of the securities that the mortgages are pledged against as collateral
Why not modify
for the duties set forth in the contracts governing the transaction. These duties are carefully mortgage loans in
detailed in the contracts and are limited to the responsibilities specifically accepted by the default?
trustee.
Borrowers agree, under the
terms of their mortgage and
How Do I Obtain Information on a Specific note, that upon a payment
Mortgage Loan? default the lender or owner
has the right to assume
To learn more about a foreclosed property, contact the servicer for the MBS transaction that ownership of the property.
holds the mortgage as collateral. The most effective way to identify the servicer for a specific Whether the servicer pursues
mortgage is to ask the borrower (homeowner) who they make their monthly payment to or a foreclosure or considers a
from whom they receive their monthly statements. The firm receiving the payments and
modification of the loan, the
sending statements is generally the servicer for the MBS transaction and can offer more
goal is still to maximize the
details regarding a foreclosed property.
return to investors.
To ensure clarity of the various participants related to a foreclosure process with MBS Consideration of any loan
transactions, modification is predicated on
U.S. Bank has taken two important actions. U.S. Bank has sent notices to servicers with whether the trust documents
whom they work on MBS transactions to reinforce the importance of properly identifying U.S. allow modifications, the
Bank as Trustee for the specific trust in all foreclosure actions and filings, complying with underwriting criteria
industry servicing practices and maintaining any foreclosures in accordance with applicable applicable to the particular
laws. Secondly, U.S. Bank established a dedicated toll-free (800) number to handle calls borrower's circumstances,
related to loans which identify and federal and state laws
U.S. Bank as Trustee. Our professional staff explains to callers the role of U.S. Bank as concerning loan
Trustee and also provides the information callers need to connect with the servicer who can modifications.
best address their questions. Regardless, the servicer is
fully empowered to enter into
For more information about U.S. Bank and our role as trustee in MBS
modifications with borrowers
transactions, please call (800) 236-3488 between the hours of 8 a.m.
so long as such actions
and 5
comply with industry
p.m. central standard time Monday through Friday.
servicing practices, is
allowed under the trust
Additional Sources of Information : documents. maximizes the
-- American Bankers Association White Paper. The
Trustee's Role in Asset-Backed Securities, dated return to investors and
November 9, 2010 (http://www.aba.com/Press+Room/ complies with relevant laws.
11091ORoleofATrustee.htm) The Trust Indenture Act of
60
Parties to a Mortgage Backed Securities Transaction
Borrower Trust
The person or entity responsible for the mortgage note Generally a special purpose entity, such as a Real Estate
and making principal and interest payments in Mortgage Investment Conduit (REMIC). that is formed solely
accordance with the underlying mortgage documents. to hold the mortgage collateral and to issue the securities
which are then sold to investors. The trust owns the pooled
Investment Bank/Sponsor
mortgages. The trust conducts no other business. Certificates
Responsible for structuring the MBS transaction and issued by the trust represent a financial interest in a pool of
selling the securities to investors. mortgages owned by the trust and is the primary source of
funds for payment of interest and principal due to the
Investor investors on certificates they own.
The buyer and owner of an MBS certificate or Trustee
certificates.
An independent party, responsible for administering the trust
Originator
for the benefit of investors. While the trustee is listed as the
The financial institution or mortgage lender who owner of record, the trustee does not have an economic or
originally initiates the mortgage agreement with the beneficial interest in the loans. The trustee is the owner of the
borro wer. mortgage solely for the benefit of the investors in the
mortgage backed securities, who are the true beneficial
Servicer owners of the mortgages. The Trustee holds a security
Appointed by the sponsor and is a contractual party to interest in the mortgaged property by having the mortgage
the trust, to administer the mortgages loans and to loans assigned in the name of the trustee for the benefit of the
collect monthly payments (e.g. principal/interest, tax, trust (e.g. U.S. Bank as Trustee for the MBS Trust) or in the
insurance). After collection. the servicer sends the name of MERS, a Mortgage Electronic Recording System
funds to the trustee who then makes payment to used by many of the largest financial institutions. The duties of
the investors. If a borrower (mortgagee) does not the trustee are administrative in nature, are clearly spelled out
make payments to the servicer as required by the in the MBS transaction documents. and generally are non-
mortgage documents, the servicer may have to discretionary in nature.
foreclose on the property and provide property
maintenance to maximize the return on the investment
made by the "beneficial owners of the Trust" -- the For more information about U.S. Bank and our
investors. Some MBS transactions have more than one role as trustee in MBS transactions, please call
servicer. The servicer does not own the (800) 236-3488 between the hours of 8 a.m.
mortgages/collateral. The trustee does not designate and 5 p.m. central standard time Monday
the loan servicers, nor are the loan servicers agents of through Friday.
the trustee.
U.S. Bank is not responsible for and does not guarantee the
products, services, performance or obligations of its affiliates. usbank
All of us serving you'"
usbank.com/corporatetrust
Investment and Insurance products are:
NOT A DEPOSIT NOT FDIC-INSURED MAY LOSE VALUE NOT NOT INSURED BY ANY FEDERAL GOVERNMENT
GUARANTEED BY THE BANK A
61
ATTACHMENT 2 - Decision and Order of Judge Wayne P. Saitta
62
Supreme Court, Kings County
The Bank of New York, as Trustee for the Benefit of the

Certificateholders, CWABS, Inc., Asset Backed Certificates, Series
2007-2, Plaintiff,
against
Sameeh Alderazi, Bank of America, NA, New York City Environmental

Control Board, new York City Parking Violations Bureau, New York
City Transit Adjudication Bureau, and "John Doe No.1" through "John
Doe #10", the last ten names being fictitious and unknown to the
plaintiff, the person or parties intended being the person or parties, if
any, having or claiming an interest in or lien upon the mortgaged
premises described in the complaint, Defendants.
2011 NY Slip Op 50547(U)
Decided on April 11, 2011
21739/2008
Hiscock & Barclay

1100 M & T Center
3 Fountain Plaza
Buffalo, New York 14203-1486
Charles C. Martorana, Esq.

Plaintiff Former Attorney -
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP
20 West Main Street
Bayshore, New York 11706 (631) 969-3100
Todd Falasco, Esq.
Wayne P. Saitta, J.
The Plaintiff renews its motion for an appointment of a referee in the underlying foreclosure
action.
Upon reading the Notice of Motion and Affirmation of Charles C. Martorana Esq., of counsel to
Hiscock and Barclay, LLP attorneys for Plaintiff, dated September 28 2010, and the exhibits
annexed thereto; the Affirmation of Charles C. Martorana Esq., dated January 7, 2011; the
Affirmation of Todd Falasco Esq., of counsel to Frenkel, Lambert, Weiss, Weisman, & Gordon,
LLP,. Former attorneys for Plaintiff and the exhibits annexed thereto; the Affidavit of Jonathan
63
Hyman sworn to February 10, 2011, and the exhibits annexed thereto; and upon all the
proceedings heretofore had herein, and after hearing oral argument by Plaintiff's counsel on
March 3, 2011, and after due deliberation thereon, the motion is denied for the reasons set forth
below.
The underlying action is a residential foreclosure action on a property located at 639 East 91st St.
in Brooklyn. Plaintiff's original application for the appointment of a referee to compute was
denied by order of this court dated April 19, 2010. The Court denied the application because the
Plaintiff, could not demonstrate that the original mortgagee, Countrywide Home Loans Inc.,
(doing business as America's Wholesale Lender), had authorized the assignment of the mortgage
to the Plaintiff.
The assignment to Plaintiff was executed by Mortgage Electronic Reporting System (MERS) as
nominee for America's Wholesale Lender.
Black's Law Dictionary defines a nominee as "[a] person designated to act in place of another,
usually in a very limited way".
In its Memoranda to its original motion , Plaintiff quoted the Court in Schuh Trading Co., v.
Commissioner of Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), which defined a nominee
as follows:
The word nominee ordinarily indicates one designated to act for another as his representative in
a rather limited sense. It is used sometimes to signify an agent or trustee. It has no connotation,
however, other than that of acting for another, or as the grantee of another.. Id. ( Emphasis
added).
An assignment by an agent without authority from the principal is a nullity. Plaintiff failed to
provide any evidence that Countrywide had authorized MERS to assign its mortgage to
Plaintiff. The Court denied the application with leave to renew upon a showing that
Countrywide had authorized MERS to assign its mortgage to Plaintiff.
Plaintiff has again moved for an order of reference, and submitted in addition to the MERS
assignment, what it purports to be an endorsed note and a corporate resolution of MERS showing
that MERS had appointed all officers of Countrywide Financial Corporation as assistant
secretaries and vice presidents of MERS.
This present motion must fail for the same reason as the prior motion as Plaintiff has failed to
provide documentation from the lender that it authorized the assignment.
[*2]The Endorsed Note Plaintiff submits an affidavit from Sharon Mason, a vice president of
BAC Home Loan Servicing LP (BAC), a servicer of the loan, in which she asserts, based upon
Plaintiff's books and records, that at the time the action was commenced the original note bearing
the endorsement of Countrywide was in Plaintiff's possession.
Plaintiff also submits an affidavit from Jonathan Hyman, an officer of BAC, based on BAC's
records. Hyman asserts in his affidavit that the mortgage was assigned to Bank of New York and
64
that "the original note was delivered and endorsed to the plaintiff with endorsement in the name
of the plaintiff." Hyman appends to his affidavit a copy of what purports to be an endorsed note.
The note contains a stamped endorsement which states, "Pay to the Order of * * without recourse
Countrywide Home Loans Inc., A New York Corporation Doing Business As America's
Wholesale Lender By: Michele Sjolander Executive Vice President". Under the stamp is
handwritten " * * The Bank of New York, as Trustee for the Benefit of the Certificate, CWABS,
Inc. Asset Backed Certificates, Series 2007-2". The endorsement is undated.
However, the note that was appended to the summons and complaint filed in court on July 25,
2008 does not bear any endorsement. Plaintiff has offered no explanation, from anyone with
knowledge, as to why, had the note had been endorsed and in its possession when it commenced
the suit, that the note filed when the suit was commenced did not bear an endorsement.
Significantly, counsel for Plaintiff stated in oral argument before the Court on March 3 2011 that
"There is nobody left to speak at to Countrywide".
The affidavits of Hyman and Mason, which were based on the books and records of the plaintiff
and BAC, are insufficient to establish ownership of the note in light of the fact that the note
originally submitted bore no endorsement, and the fact that purported endorsement is undated.
The affidavits are based on books and records, not on personal knowledge. Yet the affiants did
not produce any of the records on which they based their assertion that Plaintiff possessed an
endorsed note at the time the action was commenced.
The Mortgage Assignment

In his affidavit Hyman also asserts that, Keri Selman, the person who signed the assignment,
served as an officer of both Countrywide and MERS. He appended a copy of a MERS corporate
resolution which appointed all officers of Countrywide Financial Corporation as assistant
secretaries and vice presidents of MERS.
Even putting aside the fact that there is no evidence that Countrywide Financial Corporation and
Countrywide Home Loans Inc., are the same entity, the fact that MERS authorized Countrywide
officers to act on its behalf, is not evidence of the converse. It is no evidence that Countrywide
authorized MERS officers to act as officers of Countrywide. Further, the fact that Selman may
have been an officer of both Countrywide and MERS does not alter the fact that she executed the
assignment on behalf of MERS.
The face of the assignment indicates that MERS is assigning the mortgage as nominee of
America's Wholesale Lender (a trade name of Countrywide), and more [*3]importantly that
Selman executed the assignment as assistant vice president of MERS.
Hyman's assertion that the assignment incorrectly lists Selman's title as assistant vice president of
MERS, instead of assistant secretary and vice president of MERS, is of no relevance other than
to demonstrate the casual and cavalier manner in which these transactions have been
conducted.
While Hyman further asserts in his affidavit that Selman "under her authority as an Assistant
Secretary and Vice president of MERS, expedited the Assignment of Mortgage process on behalf
65
of MERS, with the approval and for the benefit of Countrywide," he provides no evidence that
Countrywide in fact approved or authorized the assignment.
Similarly, William C. Hultman, Secretary and Treasurer of MERS, states in a conclusory fashion
in paragraph 8 of his affidavit that Countrywide "instructed MERS to assign the Mortgage to
Bank of New York" without offering the basis for that assertion, other than it role as nominee.
Plaintiff claims, that by the terms of the mortgage MERS as nominee, was granted the right "(A)
to exercise any or all of those rights, including, but not limited to the right to foreclose and sell
the Property, and (B) to take any action required of the Lender including, but not limited to,
releasing and canceling this Security Instrument." However, this language is found on page two
of the mortgage under the section "BORROWER'S TRANSFER TO LENDER OF RIGHTS IN
THE PROPERTY" and therefore is facially an acknowledgment by the borrower. The fact that
the borrower acknowledged and consented to MERS acting as nominee of the lender has no
bearing on what specific powers and authority the lender granted MERS as nominee. The
problem is not whether the borrower can object to the assignees' standing, but whether the
original lender, who is not before the Court, actually transferred its rights to the Plaintiff.
Furthermore, while the mortgage grants some rights to MERS it does not grant MERS the
specific right to assign the mortgage. The only specific rights enumerated in the mortgage are the
right to foreclose and sell the Property. The general language "to take any action required of the
Lender including, but not limited to, releasing and canceling this Security Instrument" is not
sufficient to give the nominee authority to alienate or assign a mortgage without getting the
mortgagee's explicit authority for the particular assignment.
The MERS Agreement

Plaintiff also argues that the agreement between MERs and its members grants MERS the
authority to assign the mortgages of its members. However a reading of the MERS agreement
reveals only that MERS can execute assignments on behalf of its members when directed to
do so by the member or its servicer.
Plaintiff cites Rules of MERS membership, Rule 2 section 5. However what that rule requires is
that a member to warrant to MERS that the mortgage either names MERS as mortgagee or that
they prepare an assignment of mortgage naming MERs as mortgagee.
In this case MERS was named in paragraph (c) of the mortgage as Mortgagee of record for the
purpose of recording the mortgage. Being the mortgagee of record for the [*4] purpose of
recording the mortgage does not confer the right to assign the mortgage absent an instruction to
do so from the lender. Paragraph 2 of the MERS terms and conditions provide that "MERS shall
serve as mortgagee of record with respect to all such mortgage loans solely as a nominee in an
administrative capacity", and that "MERS agrees not to assert any rights (other than rights
specified in the governing documents) with respect to such mortgage loans or mortgaged
properties". Assigning or alienating a mortgage without an explicit instruction from a lender to
do so, is not acting in an administrative capacity.
Further, paragraph 6 of the terms and conditions provides that, "the MERS system is not a
vehicle for creating or transferring beneficial interests in mortgage loans." (emphasis added)
66
Lastly, Section 6 of the MERS agreement provides that MERS shall comply with the instructions
from the holder of the notes and that in the absence of instructions from the holder may rely on
instructions from the servicer with respect to transfers of beneficial ownership.
What the MERS agreements and terms and conditions provide, is that MERS may execute an
assignment when instructed to do so by the lender or its servicer. This is nothing more than
saying that if granted authority by the lender, or its agent, to assign a mortgage, MERs can assign
the mortgage on behalf of the lender.
To read the MERS agreement as granting MERS authority to assign any of the mortgages of its
thousands of members, on its own volition, without the instruction or consent of the member
would lead to a nonsensical result.
Plaintiff has failed to meet the very basic requirement that proof of an agent's authority
must be shown from the mouth of the principal not from the agent. Lexow & Jenkins, P.C. v.
Hertz Commercial Leasing Corp., 122 AD2d 25, 504 N.Y.S.2d 192 (2nd Dept 1986), Siegel v.
Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 N.Y.S.2d 744 (2nd Dept
1985).
As Plaintiff has not shown that it owned the note and mortgage, it has no standing to
maintain this foreclosure action. Therefore the renewed motion for an order of reference
must be denied and the action dismissed.
The Court has raised the standing issue sua sponte because, in this case, it goes to the
integrity of the entire proceeding. For the court to allow a purported assignee to foreclose, in
the absence of some proof that the original lender authorized the assignment of the mortgage to
them, would cast doubt upon the validity of the title of any subsequent purchasers, should the
original lender or successor challenge the assignment at a future date.
WHEREFORE it is hereby Ordered that Plaintiff's motion for an Order of Reference is denied
and the action is dismissed. This constitutes the decision and order of the Court.
[*5]
J.S.C. (ALL shaded and bold emphasis added.)
67
ATTACHMENT 3 - Decision and Order of Judge Arthur M. Schack
68
The Bank of New York, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC.
ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-OC1, Plaintiff,
against
Denise Mulligan, BEVERLY BRANCHE, et. al., Defendants.
2010 NY Slip Op 51509(U) [28 Misc 3d 1226(A)]

August 25, 2010
Plaintiff:
McCabe Weisberg Conway PC
Jason E. Brooks, Esq.
New Rochelle NY
Defendant:
No Appearances.
Arthur M. Schack, J.
Plaintiff’s renewed application, upon the default of all defendants, for an order of reference for
the premises located at 1591 East 48th Street, Brooklyn, New York (Block 7846, Lot 14, County
of Kings) is denied with prejudice. The complaint is dismissed. The notice of pendency filed
against the above-named real property is cancelled.
In my June 3, 2008 decision and order in this matter, I granted leave to plaintiff, THE BANK OF
NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC.
ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH
CERTIFICATES, [*2]SERIES 2006-OC1 (BNY), to renew its application for an order of
reference within forty-five (45) days, until July 18, 2008, if it complied with three conditions.
However, plaintiff did not make the instant motion until May 4, 2009, 335 days after June 3,
2008, and failed to offer any excuse for its lateness. Therefore, the instant motion is 290 days,
almost ten months, late. Further, the instant renewed motion failed to present the three affidavits
that this Court ordered plaintiff BNY to present with its renewed motion for an order of
reference: (1) an affidavit of facts either by an officer of plaintiff BNY or someone with a valid
power of attorney from plaintiff BNY and personal knowledge of the facts; (2) an affidavit from
Ely Harless describing his employment history for the past three years, because Mr. Harless
assigned the instant mortgage as Vice President of MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. (MERS) and then executed an affidavit of merit for assignee
BNY as Vice President of BNY’s alleged attorney-in-fact without any power of attorney; and,
(3) an affidavit from an officer of plaintiff BNY explaining why it purchased the instant
nonperforming loan from MERS, as nominee for DECISION ONE MORTGAGE COMPANY,
LLC (DECISION ONE).
Moreover, after I [JUDGE SCHACK] reviewed the papers filed with this renewed motion for an
order of reference and searched the Automated City Register Information System (ACRIS)
website of the Office of the City Register, New York City Department of Finance, I discovered
that plaintiff BNY lacked standing to pursue the instant action for numerous reasons. Therefore,
the instant action is dismissed with prejudice.
69
Background
Defendant DENISE MULLIGAN (MULLIGAN) borrowed $392,000.00 from DECISION ONE
on October 28, 2005. The mortgage to secure the note was recorded by MERS, “acting solely as
a nominee for Lender [DECISION ONE]” and “FOR PURPOSES OF RECORDING THIS
MORTGAGE, MERS IS THE MORTGAGEE OF RECORD,” in the Office of the City Register
of the City of New York, New York City Department of Finance, on February 6, 2006, at City
Register File Number (CRFN) 2006000069253.
Defendant MULLIGAN allegedly defaulted in her mortgage loan payments with her May 1,
2007 payment. Subsequently, plaintiff BNY commenced the instant action, on August 9, 2007,
alleging in ¶ 8 of the complaint, and again in ¶ 8 of the August 16, 2007 amended complaint, that
“Plaintiff [BNY] is the holder of said note and mortgage. said mortgage was assigned to
Plaintiff, by Assignment of Mortgage to be recorded in the Office of the County Clerk of Kings
County [sic].” As an aside, plaintiff’s counsel needs to learn that mortgages in New York City
are not recorded in the Office of the County Clerk, but in the Office of the City Register of the
City of New York. However, the instant mortgage and note were not assigned to plaintiff BNY
until October 9, 2007, 61 days subsequent to the commencement of the instant action, by MERS,
“as nominee for Decision One,” and executed by Ely Harless, Vice President of MERS. This
assignment was recorded on October 24, 2007, in the Office of the City Register of the City of
New York, at CRFN 2007000537531.
I denied the original application for an order of reference, on June 3, 2008, with leave to renew,
because assignor Ely Harless also executed the March 20, 2008-affidavit of merit as Vice
President and “an employee of Countrywide Home Loans, Inc., attorney-in-fact for Countrywide
Home Loans, Inc.” The original application for an order of reference did not present any power
of attorney from plaintiff BNY to Countrywide Home Loans, Inc. Also, the Court pondered how
[*3]Countrywide Home Loans, Inc. could be its own an attorney-fact?
In my June 3, 2008 decision and order I noted that Real Property Actions and Proceedings Law
(RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of defendant or
defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount
due to the plaintiff” and plaintiff BNY’s application for an order of reference was a preliminary
step to obtaining a default judgment of foreclosure and sale. (Home Sav. Of Am., F.A. v
Gkanios, 230 AD2d 770 [2d Dept 1996]). However, plaintiff BNY failed to meet the clear
requirements of CPLR § 3215 (f) for a default judgment, which states:
On any application for judgment by default, the applicant
shall file proof of service of the summons and the complaint, or
a summons and notice served pursuant to subdivision (b) of rule
305 or subdivision (a) of rule 316 of this chapter, and proof of
the facts constituting the claim, the default and the amount due
by affidavit made by the party . . . Where a verified complaint has
been served, it may be used as the affidavit of the facts constituting
the claim and the amount due; in such case, an affidavit as to the
default shall be made by the party or the party’s attorney. [Emphasis
added].
70
Plaintiff BNY failed to submit “proof of the facts” in “an affidavit made by the
party.” (Blam v Netcher, 17 AD3d 495, 496 [2d Dept 2005]; Goodman v New York City Health
& Hosps. Corp. 2 AD3d 581[2d Dept 2003]; Drake v Drake, 296 AD2d 566 [2d Dept 2002];
Parratta v McAllister, 283 AD2d 625 [2d Dept 2001]; Finnegan v Sheahan, 269 AD2d 491 [2d
Dept 2000]; Hazim v Winter, 234 AD2d 422 [2d Dept 1996]). Instead, plaintiff BNY submitted
an affidavit of merit and amount due by Ely Harless, “an employee of Countrywide Home
Loans, Inc.” and failed to submit a valid power of attorney for that express purpose. Also, I
required that if plaintiff renewed its application for an order of reference and provided to the
Court a valid power of attorney, that if the power of attorney refers to a servicing agreement, the
Court needs a properly offered copy of the servicing agreement to determine if the servicing
agent may proceed on behalf of plaintiff. (EMC Mortg. Corp. v Batista, 15 Misc 3d 1143 (A),
[Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v Lewis, 14 Misc 3d 1201 (A) [Sup
Ct, Suffolk County 2006]).
I granted plaintiff BNY leave to renew its application for an order of reference within forty-five
(45) days of June 3, 2008, which would be July 18, 2008. For reasons unknown to the Court,
plaintiff BNY made the instant motion to renew its application for an order of reference on May
4, 2009, 290 days late. Plaintiff’s counsel, in his affirmation in support of the renewed motion,
offers no explanation for his lateness and totally ignores this issue.
Further, despite the assignment by MERS, as nominee for DECISION ONE, to plaintiff BNY
occurring 61 days subsequent to the commencement of the instant action, plaintiff’s counsel
claims, in ¶ 17 of his affirmation in support, that “[s]aid assignment of mortgage [by MERS, as
nominee for DECISION ONE to BNT] was drafted for the convenience of the court in
establishing the chain of ownership, but the actual assignment and transfer had previously
occurred by delivery.” The alleged proof presented of physical delivery of the subject
MULLIGAN mortgage is a computer printout [exhibit G of motion], dated April 30, 2009, from
[*4]Countrywide Financial, which plaintiff’s counsel calls a “Closing Loan Schedule,” and
claims, in ¶ 21 of his affirmation in support, that this “closing loan schedule is the mortgage loan
schedule displaying every loan held by such trust at the close date for said trust at the end of
January 2006. The closing loan schedule is of public record and demonstrates that the Plaintiff
was in possession of the note and mortgage about nineteen (19) months prior to the
commencement of this action.” There is an entry on line 2591 of the second to last page of the
printout showing account number 1232268089, which plaintiff’s counsel, in ¶ 22 of his
affirmation in support, alleges is the subject mortgage. Plaintiff’s counsel asserts, in ¶ 23 of his
affirmation in support, that “[t]he annexed closing loan schedule suffices to proceed in granting
Plaintiff’s Order of Reference in this matter proving possession prior to any default.” This claim
is ludicrous. The computer printout, printed on April 30, 2009, just prior to the making of the
instant motion, has no probative value with respect to whether physical delivery of the subject
mortgage was made to plaintiff BNY prior to the August 9, 2007 commencement of the instant
action.
Further, even if the mortgage was delivered to BNY prior to the August 9, 2007 commencement
of the instant action, this claim is in direct contradiction to plaintiff’s claim previously mentioned
in ¶ 8 of both the complaint and the amended complaint, that “Plaintiff [BNY] is the holder of
said note and mortgage. said mortgage was assigned to Plaintiff, by Assignment of Mortgage to
be recorded in the Office of the County Clerk of Kings County [sic].” Both ¶’s 8 allege that the
71
assignment of the subject mortgage took place prior to August 9, 2007 and the recording would
subsequently take place. The only reality for the Court is that the assignment of the subject
mortgage took place 61 days subsequent to the commencement of the action on October 9, 2007
and the assignment was recorded on October 24, 2007.
Moreover, plaintiff’s counsel alleges, in ¶ 18 of his affirmation in support, that “[p]ursuant to a

charter between Mortgage Electronic Registrations Systems, Inc. ( MERS’) and Decision One
Mortgage Company, LLC, all officers of Decision One Mortgage Company, LLC, a member of
MERS, are appointed as assistant secretaries and vice presidents of MERS, and as such are
authorized” to assign mortgage loans registered on the MERS System and execute documents
related to foreclosures. ¶ 18 concludes with “See Exhibit F.” None of this appears in exhibit F.
Exhibit F is a one page power of attorney from “THE BANK OF NEW YORK, as Trustee”
pursuant to unknown pooling and servicing agreements appointing “Countrywide Home Loans
Servicing LP and its authorized officers (collectively CHL Servicing’)” as its “attorneys-in-fact
and authorized agents” for foreclosures “in connection with the transactions contemplated in
those certain Pooling and Servicing Agreements.” The so-called “charter” between MERS and
DECISION ONE was not presented to the Court in any exhibits attached to the instant motion.
Further, attached to the instant renewed motion [exhibit D] is an affidavit of merit by Keri
Selman, dated August 23, 2007 [47 days before the assignment to BNY], in which Ms. Selman
claims to be “a foreclosure specialist of Countrywide Home Loans, Inc. Servicing agent for
BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC.
ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-OC1 . . . I make this affidavit upon personal knowledge based
on books and records of Bank of New York in my possession or subject to my control [sic]”
Countrywide Home Loans, Inc. is not Countrywide Home Loans Servicing LP, referred to in the
power of attorney attached to the renewed motion [exhibit F]. Moreover, plaintiff failed to
[*5]present to the Court any power of attorney authorizing Ms. Selman to execute for
Countrywide Home Loans, Inc. her affidavit on behalf of plaintiff BNY. Also, Ms. Selman has
a history of executing documents presented to this Court while wearing different corporate
hats. In Bank of New York as Trustee for Certificateholders CWABS, Inc. Asset-Backed
Certificates, Series 2006-22 v Myers (22 Misc 3d 1117 [A] [Sup Ct, Kings County 2009], in
which I issued a decision and order on February 3, 2009, Ms. Selman assigned the subject
mortgage on June 28, 2008 as Assistant Vice President of MERS, nominee for Homebridge
Mortgage Bankers Corp., and then five days later executed an affidavit of merit as Assistant Vice
President of plaintiff BNY. I observed, in this decision and order, at 1-2, that:
Ms. Selman is a milliner’s delight by virtue of the number of hats
she wears. In my November 19, 2007 decision and order (BANK OF
NEW YORK A TRUSTEE FOR THE NOTEHOLDERS OF CWABS, INC.
ASSET-BACKED NOTES, SERIES 2006-SD2 v SANDRA OROSCO NUNEZ,
et. al. [Index No., 32052/07]), I observed that:
Plaintiff’s application is the third application for an
order of reference received by me in the past several days that
contain an affidavit from Keri Selman. In the instant action,
she alleges to be an Assistant Vice President of the Bank of
New York. On November 16, 2007, I denied an application for
72
an order of reference (BANK OF NEW YORK A TRUSTEE FOR

THE CERTIFICATEHOLDERS OF CWABS, INC. ASSET-
BACKED CERTIFICATES, SERIES 2006-8 v JOSE NUNEZ,
et. al., Index No. 10457/07), in which Keri Selman, in her
affidavit of merit claims to be “Vice President of COUNTRYWIDE
HOME LOANS, Attorney in fact for BANK OF NEW YORK.”
The Court is concerned that Ms. Selman might be engaged in a
subterfuge, wearing various corporate hats. Before granting an
application for an order of reference, the Court requires an
affidavit from Ms. Selman describing her employment history
for the past three years.
This Court has not yet received any affidavit from Ms. Selman describing
her employment history, whether it is with MERS, BNY, COUNTRYWIDE HOME LOANS, or
any other entity. [*6]
Further, the Court needs to address the conflict of interest in the June 20, 2008 assignment by
Ms. Selman to her alleged employer, BNY. I am still waiting for Ms. Selman’s affidavit to
explain her tangled employment relationships. Interestingly, Ms. Selman, as “Assistant Vice
President of MERS,” nominee for “America’s Wholesale Lender,” is the assignor of another
mortgage to plaintiff BNY in Bank of New York v Alderazi (28 Misc 3d 376 [Sup Ct, Kings
County 2010]), which I further cite below.
It is clear that plaintiff BNY failed to provide the Court with: an affidavit of merit by an officer
of plaintiff BNY or someone with a valid power of attorney from BNY; an affidavit from Ely
Harless, explaining his employment history; and, an explanation from BNY of why it purchased
a nonperforming loan from MERS, as nominee of DECISION ONE. Moreover, plaintiff BNY
did not own the subject mortgage and note when the instant case commenced. Even if
plaintiff BNY owned the subject mortgage and note when the case commenced, MERS
lacked the authority to assign the subject MULLIGAN mortgage to BNY, as will be
explained further. Plaintiff’s counsel offers a lame and feeble excuse for not complying with
my June 3, 2008 decision and order, in ¶ 23 of his affirmation in support, claiming that “[t]he
affidavits requested in Honorable Arthur M. Schack’s Decision and Order should not be
required, given the annexed closing loan schedule.”
Plaintiff BNY lacked standing

The instant action must be dismissed because plaintiff BNY lacked standing to bring this
action on August 9, 2007, the day the action commenced. “Standing to sue is critical to the
proper functioning of the judicial system. It is a threshold issue. If standing is denied, the
pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the
threshold and seek judicial redress.” (Saratoga County Chamber of Commerce, Inc. v Pataki, 100
NY2d 801 812 [2003], cert denied 540 US 1017 [2003]). Professor Siegel (NY Prac, § 136, at
232 [4d ed]), instructs that:
[i]t is the law’s policy to allow only an aggrieved person to bring a
lawsuit . . . A want of “standing to sue,” in other words, is just another
way of saying that this particular plaintiff is not involved in a genuine
controversy, and a simple syllogism takes us from there to a “jurisdictional”
73
dismissal: (1) the courts have jurisdiction only over controversies; (2) a
plaintiff found to lack “standing” is not involved in a controversy; and
(3) the courts therefore have no jurisdiction of the case when such a
plaintiff purports to bring it.
“Standing to sue requires an interest in the claim at issue in the lawsuit that the law will
recognize as a sufficient predicate for determining the issue at the litigant’s request.” (Caprer v
Nussbaum (36 AD3d 176, 181 [2d Dept 2006]). If a plaintiff lacks standing to sue, the plaintiff
may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1st Dept 2002]). [*7]
Plaintiff BNY lacked standing to foreclose on the instant mortgage and note when this
action commenced on August 7, 2007, the day that BNY filed the summons, complaint and
notice of pendency with the Kings County Clerk, because it did not own the mortgage and note
that day. The instant mortgage and note were assigned to BNY, 61 days later, on October 7,
2007. The Court, in Campaign v Barba (23 AD3d 327 [2d Dept 2005]), instructed that “[t]o
establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the
existence of the mortgage and the mortgage note, ownership of the mortgage, and the
defendant’s default in payment [Emphasis added].” (See Witelson v Jamaica Estates Holding
Corp. I, 40 AD3d 284 [1st Dept 2007]; Household Finance Realty Corp. of New York v Wynn,
19 AD3d 545 [2d Dept 2005]; Sears Mortgage Corp. v Yahhobi, 19 AD3d 402 [2d Dept 2005];
Ocwen Federal Bank FSB v Miller, 18 AD3d 527 [2d Dept 2005]; U.S. Bank Trust Nat. Ass’n
Trustee v Butti, 16 AD3d 408 [2d Dept 2005]; First Union Mortgage Corp. v Fern, 298 AD2d
490 [2d Dept 2002]; Village Bank v Wild Oaks, Holding, Inc., 196 AD2d 812 [2d Dept 1993]).
Assignments of mortgages and notes are made by either written instrument or the assignor
physically delivering the mortgage and note to the assignee. “Our courts have repeatedly held
that a bond and mortgage may be transferred by delivery without a written instrument of
assignment.” (Flyer v Sullivan, 284 AD 697, 699 [1d Dept 1954]). The written October 7, 2007
assignment by MERS, as nominee for DECISION ONE, to BNY is clearly 61 days after the
commencement of the action. Plaintiff’s BNY’s claim that the gobblygook computer printout it
offered in exhibit G is evidence of physical delivery of the mortgage and note prior to
commencement of the action is not only nonsensical, but flies in the face of the complaint and
amended complaint, which both clearly state in ¶ 8 that “Plaintiff [BNY] is the holder of said
note and mortgage. Said mortgage was assigned to Plaintiff, by Assignment of Mortgage to be
recorded in the Office of the County Clerk of Kings County [sic].” Plaintiff BNY did not own
the mortgage and note when the instant action commenced on August 7, 2007. “[A] retroactive
assignment cannot be used to confer standing upon the assignee in a foreclosure action
commenced prior to the execution of an assignment.” (Wells Fargo Bank, N.A. v Marchione,
69 AD3d 204, 210 [2d Dept 2009]). The Marchione Court relied upon LaSalle Bank Natl. Assoc.
v Ahearn (59 AD3d 911 [3d Dept 2009], which instructed, at 912, “[n]otably, foreclosure of a
mortgage may not be brought by one who has no title to it’ (Kluge v Fugazy, 145 AD2d 537 [2d
Dept 1988]) and an assignee of such a mortgage does not have standing unless the assignment is
complete at the time the action is commenced).” (See U.S. Bank, N.A. v Collymore, 68 AD3d
752 [2d Dept 2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709 [2d Dept 2009];
Citgroup Global Mkts. Realty Corp. v Randolph Bowling, 25 Misc 3d 1244 [A] [Sup Ct, Kings
County 2009]; Deutsche Bank Nat. Trust Company v Abbate, 25 Misc 3d 1216 [A] [Sup Ct,
74
Richmond County 2009]; Indymac Bank FSB v Boyd, 22 Misc 3d 1119 [A] [Sup Ct, Kings
County 2009]; Credit-Based Asset Management and Securitization, LLC v Akitoye,22 Misc 3d
1110 [A] [Sup Ct, Kings County Jan. 20, 2009]; Deutsche Bank Trust Co. Americas v Peabody,
20 Misc 3d 1108 [A][Sup Ct, Saratoga County 2008]).
The Appellate Division, First Department, citing Kluge v Fugazy, in Katz v East-Ville Realty
Co., (249 AD2d 243 [1d Dept 1998]), instructed that “[p]laintiff’s attempt to foreclose upon a
mortgage in which he had no legal or equitable interest was without foundation in law or
[*8]fact.” Therefore, with plaintiff BNY not having standing, the Court lacks jurisdiction in
this foreclosure action and the instant action is dismissed with prejudice.
MERS had no authority to assign the subject mortgage and note
Moreover, MERS lacked authority to assign the subject mortgage. The subject DECISION
ONE mortgage, executed on October 28, 2005 by defendant MULLIGAN, clearly states on page
1 that “MERS is a separate corporation that is acting solely as a nominee for Lender [DECISION
ONE] and LENDER’s successors and assigns . . . FOR PURPOSES OF RECORDING THIS
MORTGAGE, MERS IS THE MORTGAGEE OF RECORD.” The word “nominee” is defined
as “[a] person designated to act in place of another, usu. in a very limited way” or “[a] party who
holds bare legal title for the benefit of others.” (Black’s Law Dictionary 1076 [8th ed 2004]).
“This definition suggests that a nominee possesses few or no legally enforceable rights beyond
those of a principal whom the nominee serves.” (Landmark National Bank v Kesler, 289 Kan
528, 538 [2009]). The Supreme Court of Kansas, in Landmark National Bank, 289 Kan at 539,
observed that:
The legal status of a nominee, then, depends on the context of
the relationship of the nominee to its principal. Various courts have
interpreted the relationship of MERS and the lender as an agency
relationship. See In re Sheridan, 2009 WL631355, at *4 (Bankr. D.
Idaho, March 12, 2009) (MERS “acts not on its own account. Its
capacity is representative.”); Mortgage Elec. Registrations Systems,
Inc. v Southwest, 2009 Ark. 152 ___, ___SW3d___, 2009 WL 723182
(March 19, 2009) (“MERS, by the terms of the deed of trust, and its
own stated purposes, was the lender’s agent”); La Salle Nat. Bank v
Lamy, 12 Misc 3d 1191 [A], at *2 [Sup Ct, Suffolk County 2006]) . . .
(“A nominee of the owner of a note and mortgage may not effectively
assign the note and mortgage to another for want of an ownership interest
in said note and mortgage by the nominee.”)
The New York Court of Appeals in MERSCORP, Inc. v Romaine (8 NY3d 90 [2006]),
explained how MERS acts as the agent of mortgagees, holding at 96:
In 1993, the MERS system was created by several large
participants in the real estate mortgage industry to track ownership
interests in residential mortgages. Mortgage lenders and other entities,
known as MERS members, subscribe to the MERS system and pay
annual fees for the electronic processing and tracking of ownership
and transfers of mortgages. Members contractually agree to appoint [*9]
MERS to act as their common agent on all mortgages they register
75
in the MERS system. [Emphasis added]
Thus, it is clear that MERS’s relationship with its member lenders is that of agent with the
lender-principal. This is a fiduciary relationship, resulting from the manifestation of consent by
one person to another, allowing the other to act on his behalf, subject to his control and consent.
The principal is the one for whom action is to be taken, and the agent is the one who acts. It has
been held that the agent, who has a fiduciary relationship with the principal, “is a party who acts
on behalf of the principal with the latter’s express, implied, or apparent authority.” (Maurillo v
Park Slope U-Haul, 194 AD2d 142, 146 [2d Dept 1992]). “Agents are bound at all times to
exercise the utmost good faith toward their principals. They must act in accordance with the
highest and truest principles of morality.” (Elco Shoe Mfrs. v Sisk, 260 NY 100, 103 [1932]).
(See Sokoloff v Harriman Estates Development Corp., 96 NY 409 [2001]); Wechsler v Bowman,
285 NY 284 [1941]; Lamdin v Broadway Surface Advertising Corp., 272 NY 133 [1936]). An
agent “is prohibited from acting in any manner inconsistent with his agency or trust and is at all
times bound to exercise the utmost good faith and loyalty in the performance of his duties.”
(Lamdin, at 136).
Thus, in the instant action, MERS, as nominee for DECISION ONE, is an agent of DECISION
ONE for limited purposes. It only has those powers given to it and authorized by its principal,
DECISION ONE. Plaintiff BNY failed to submit documents authorizing MERS, as nominee for
DECISION ONE, to assign the subject mortgage to plaintiff BNY. Therefore, even if the
assignment by MERS, as nominee for DECISION ONE, to BNY was timely, and it was not,
MERS lacked authority to assign the MULLIGAN mortgage, making the assignment defective.
Recently, in Bank of New York v Alderazi, 28 Misc 3d at 379-380, my learned Kings
County Supreme Court colleague, Justice Wayne Saitta explained that:
A party who claims to be the agent of another bears the burden
of proving the agency relationship by a preponderance of the evidence
(Lippincott v East River Mill & Lumber Co., 79 Misc 559 [1913])
and “[t]he declarations of an alleged agent may not be shown for
the purpose of proving the fact of agency.” (Lexow & Jenkins, P.C. v
Hertz Commercial Leasing Corp., 122 AD2d 25 [2d Dept 1986]; see
also Siegel v Kentucky Fried Chicken of Long Is. 108 AD2d 218 [2d
Dept 1985]; Moore v Leaseway Transp/ Corp., 65 AD2d 697 [1st Dept
1978].) “[T]he acts of a person assuming to be the representative of
another are not competent to prove the agency in the absence of evidence
tending to show the principal’s knowledge of such acts or assent to them.”
(Lexow & Jenkins, P.C. v Hertz Commercial Leasing Corp., 122 AD2d
at 26, quoting 2 NY Jur 2d, Agency and Independent Contractors § 26). [*10]
Plaintiff has submitted no evidence to demonstrate that the original lender, the mortgagee
America’s Wholesale Lender, authorized MERS to assign the secured debt to plaintiff [the
assignment, as noted above, executed by the multi-hatted Keri Selman].
In the instant action, MERS, as nominee for DECISION ONE, not only had no authority to
assign the MULLIGAN mortgage, but no evidence was presented to the Court to demonstrate
DECISION ONE’s knowledge or assent to the assignment by MERS to plaintiff BNY.
76
Cancellation of subject notice of pendency
The dismissal with prejudice of the instant foreclosure action requires the cancellation of the
notice of pendency. CPLR § 6501 provides that the filing of a notice of pendency against a
property is to give constructive notice to any purchaser of real property or encumbrancer against
real property of an action that “would affect the title to, or the possession, use or enjoyment of
real property, except in a summary proceeding brought to recover the possession of real
property.” The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313,
319 [1984]), commented that “[t]he purpose of the doctrine was to assure that a court retained its
ability to effect justice by preserving its power over the property, regardless of whether a
purchaser had any notice of the pending suit,” and, at 320, that “the statutory scheme permits a
party to effectively retard the alienability of real property without any prior judicial review.”
CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:
The Court, upon motion of any person aggrieved and upon such
notice as it may require, shall direct any county clerk to cancel
a notice of pendency, if service of a summons has not been completed
within the time limited by section 6512; or if the action has been
settled, discontinued or abated; or if the time to appeal from a final
judgment against the plaintiff has expired; or if enforcement of a
final judgment against the plaintiff has not been stayed pursuant
to section 551. [emphasis added]
The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action.
“Abatement” is defined as “the act of eliminating or nullifying.” (Black’s Law Dictionary 3 [7th
ed 1999]). “An action which has been abated is dead, and any further enforcement of the cause
of action requires the bringing of a new action, provided that a cause of action remains (2A
Carmody-Wait 2d § 11.1).” (Nastasi v Natassi, 26 AD3d 32, 40 [2d Dept 2005]). Further,
Nastasi at 36, held that the “[c]ancellation of a notice of pendency can be granted in the exercise
of the inherent power of the court where its filing fails to comply with CPLR § 6501 (see 5303
Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451,
451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” Thus, the [*11]dismissal of the
instant complaint must result in the mandatory cancellation of plaintiff BNY’s notice of
pendency against the property “in the exercise of the inherent power of the court.”
Conclusion
Accordingly, it is
ORDERED, that the renewed motion of plaintiff, THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-
OC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC1, for an order of
reference, for the premises located at 1591 East 48th Street, Brooklyn, New York (Block 7846,
Lot 14, County of Kings), is denied with prejudice; and it is further
ORDERED, that the instant action, Index Number 29399/07, is dismissed with
prejudice; and it is further
ORDERED that the Notice of Pendency in this action, filed with the Kings
77
County Clerk on August 9, 2007, by plaintiff, THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-
OC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC1, to foreclose a
mortgage for real property located at 1591 East 48th Street, Brooklyn, New York (Block 7846,
Lot 14, County of Kings), is cancelled.
This constitutes the Decision and Order of the Court.
ENTER
________________________________HON. ARTHUR M. SCHACK
J. S. C.
~
78
ATTACHMENT 4 - SAMPLE: DEFENDANT’S FIRST SET OF

INTERROGATORIES ADDRESSED TO PLAINTIFF
79
COURT OF THE STATE OF

COUNTY OF
____________________
__________ :
:
Plaintiff, :
:
vs. : CASE NO.:
:
:
___________ :
: JURY TRIAL DEMANDED
Defendant(s). :
:
__________________________________________________________________________
DEFENDANT’S FIRST SET OF INTERROGATORIES

ADDRESSED TO PLAINTIFF
The following Interrogatories are submitted pursuant to _________________ and

are to be answered fully and under oath. Plaintiff ________________ must serve an
answer to each interrogatory separately and fully, in writing and under oath within 30
days after service to HOMEOWNER’S NAME AND ADDRESS.
These Interrogatories are deemed to be continuing as to require the filing of
Supplemental Answers promptly in the event plaintiff or its representatives (including
counsel) learn additional facts not set forth in its original Answers or discover that
information provided in the Answers is erroneous. Such Supplemental Answers may be
filed from time to time, but not later than thirty (30) days after such further information
is received.
These Interrogatories are addressed to you as a party to this action; your answers
shall be based upon information known to you or in the possession, custody or control
of you, your attorney or other representative acting on your behalf whether in
preparation for litigation or otherwise. These Interrogatories must be answered
completely and specifically by you in writing and must be verified. The fact that
investigation is continuing or that discovery is not complete shall not be used as an
excuse for failure to answer each interrogatory as completely as possible. The omission
of any name, fact, or other item of information from the Answers shall be deemed a
representation that such name, fact, or other item was not known to Plaintiff, its
counsel, or other representatives at the time of service of the answers.
80
DEFINITIONS
A. The term “document” or “documents” as used herein further shall mean:

a) all writings of any kind (including the originals and all non-identical copies,
(whether different from the originals by reason of any notations made on such
copies or otherwise), including without limitation, correspondence, notes,
statements, transcriptions, checks, forms, applications, receipts, records,
summaries, intra-office communications, notations of any sort of conversations
or interviews, telephone calls or other oral communications, and all drafts,
alterations, modifications, changes, and/or amendments of any of the foregoing.
b) all graphic or aural records or representations of any kind, including without
limitation, photographs, charts, graphs, plans, drawings, microfiche, microfilm,
videotape, recording, and motion pictures;
c) all electronic, mechanical, or electrical records or representations, whether
transcribed or not, including without limitation, tapes, cassettes, discs and tape
recordings, and
B. The term “all documents” as used herein shall mean every document, as
defined above, in your possession, custody or control, or in the possession, custody or
control of your officers, directors, employees, principals or agents. If more than one
version or copy of a document exists and any such version or copy bears markings or
notations which are not on other versions or copies of the document, each such version
or copy is included within the meaning of the term “document.”
C. The terms “you” or “your” shall mean the person or entity to whom this
document request is directed and, if any entity, all officers, directors, employees and
agents of the entity.
D. The term “communication” as used herein shall mean the transmittal of
information (in the form of facts, ideas, inquires, or otherwise) verbally, in writing,
orally, by telephone, in person, at meetings, electronically, or in any way or in any form,
and includes, but is not limited to emails, texts, twitter and similar forms of electronic
communication, letters, faxes, telegraphs, telexes, inter-and intra-office memoranda or
communications, envelopes, and all other written communications of whatever form,
notes and memoranda of meetings, tapes other sound records and transcripts,
videotapes, or films.
E. The term “concerning” as used herein shall mean relating to, referring to,
describing, supporting, evidencing, or constituting.
F. The term “and” and “or” shall where the context permits be construed as
“and/or” so as to be inclusive rather than exclusive.
G. The term “person” shall mean any natural person, trust, partnership,
organization, business, entity or association.
81
H. The terms “related to,” “relates to” or “relating to” mean in any way directly
or indirectly, concerning, referring to, disclosing, describing, confirming, supporting,
evidencing or representing.
I. The past tense shall be construed to include the present tense and vice-versa to
make the request inclusive rather than exclusive.
a. The singular shall be construed to include the plural and vice versa to make
the request inclusive rather than exclusive.
b. Any reference to the Note and Mortgage refers to the specific documents
alleged by Defendants to be involved in the instant proceedings.
J. The term “promissory note(s)” or the word “note(s)” means the promissory
note(s) described in the Complaint.
K. The term “mortgage(s)” means the mortgage(s) described in the Complaint.
L. The term “mortgage loans” means loans made or indebtedness owed to
Plaintiff or its predecessors in connection with secured transactions on real property.
M. The term “Plaintiff” refers to The Bank of New York, as Trustee for the Benefit
of the Certificateholders, CWABS, Inc., Assetbacked Certificates, Series 2007-10.
N. The term “Defendants” refers to Mr. ________ and Mrs. ______________
O. When Defendant(s) use a term, it shall be construed to have the same meaning
as used in Plaintiff’s Complaint and supporting attachments, unless explicitly noted
otherwise.
INSTRUCTIONS
After carefully reviewing all materials pertinent to Plaintiff’s complaint against

Defendant in the above styled case, please answer the following questions. Please
answer in the space provided or, if more space is required (indicate this within the
space provided below) continue to answer on a separate sheet of paper making sure
that the interrogatory number is clearly indicated on the top left hand corner of the
additional page. If additional sheets of paper are required please attach to these
answers securely and place the additional pages at the end of the responses in order. If
you are unsure of a name or street address, you should provide such information that
would reasonably lead to that person’s whereabouts.
INTERROGATORIES
1. Please identify each person who answers these interrogatories and each person
(attach pages if necessary) who assisted, including attorneys, accountants,
82
employees of third party entities, or any other person consulted, however briefly,
on the content of any answer to these interrogatories.
ANSWER:
2. For each of the above persons please state whether they have personal
knowledge regarding the subject loan transaction.
ANSWER:
3. Please state the date of the first contact between Plaintiff and the borrower in the
subject loan transaction; the name, address and telephone number of the
person(s) in your company who was/were involved in that contact.
ANSWER:
4. Please identify the person(s) involved in the underwriting of the subject loan.
“Underwriting” refers to any person who made representations, evaluations or
appraisals of value of the home, value of the security instruments, and ability of
the borrower to pay.
ANSWER:
5. How did Plaintiff first receive the original Note in question? Was it endorsed
when Plaintiff received the document? Where did this happen, when did it
happen, who received the Note (name of the employee who received it), was any
consideration paid for the Note, is there any evidence of that consideration, and
are the any contracts which memorialize this transfer? Include specific details,
not generalities such as “Plaintiff is the holder and entitled to enforce.”
ANSWER:
6. Please identify any person(s) who had any contact with any third party
regarding the securitization, sale, transfer, assignment, hypothecation or any
document or agreement, oral, written or otherwise, that would affect the
funding, closing, or the receipt of money from a third party in a transaction that
referred to the subject loan.
ANSWER:
83
7. Please identify any person(s) known or believed by anyone at ______________

who had received physical possession of the note and allonges, the mortgage, or
any document (including but not limited to assignment, endorsement, allonges,
Pooling and Servicing Agreement, Assignment and Assumption Agreement,
Trust Agreement, letters or email or faxes of transmittals including attachments)
that refers to or incorporates terms regarding the securitization, sale, transfer,
assignment, hypothecation or any document or agreement, oral, written or
otherwise, that would affect the funding, or the receipt of money from a third
party in a transaction, and whether such money was allocated to principal,
interest or other obligation related to the subject loan.
ANSWER:
8. Please state all details known by Plaintiff regarding the indorsement placed on
the original Note in question. Include the date said indorsement was placed on
the Note, who authorized the indorser to place the indorsement on the note,
what authority the indorser had to make the indorsement, and whether any
subsequent indorsements were placed on the note.
ANSWER:
9. Please identify all persons known or believed by anyone at ___________________

or any affiliate to have participated in the securitization of the subject loan
including but not limited to mortgage aggregators, mortgage brokers, financial
institutions, Structured Investment Vehicles, Special Purpose Vehicles, Trustees,
Managers of derivative securities, managers of the company that issued an
Asset-backed security, Underwriters, Rating Agency, Credit Enhancement
Provider.
ANSWER:
10. Please state for the history of the mortgage loan on whose behalf mortgage
payments were collected, specifying the applicable dates collection was made for
each such person or entity and specifying the name, current address, current
phone number, current employer, and employer at the time, and the current
address of any and all employers, of each such person or entity.
ANSWER:
84
11. Please identify the person(s) in custody of any document that identifies the loan
servicer(s) in the subject loan transaction.
ANSWER:
12. Please identify any person(s) in custody of any document which refers to any
instruction or authority to enforce the note or mortgage in the subject loan
transaction.
ANSWER:
13. Other than people identified above, identify any and all persons who have or
had personal knowledge of the subject loan transaction, underwriting of the
subject loan transaction, securitization, sale, transfer, assignment or
hypothecation of the subject loan transaction, or the decision to enforce the note
or mortgage in the subject loan transaction.
ANSWER:
14. Please state the address, phone number, and employment history since
____________ of _____________________whose purported signature appears as
__________________ on the undated blank endorsement on the purported copy
of the HOMEOWNER’S note. (REPEAT IF MORE THAN ONE
ENDORSEMENT.)
ANSWER:
15. Please state the address, phone number, and employment history from _______
to __________ of ____________________, whose purported signature appears as
________________ on the purported copy of the Assignment of Mortgage (or
Deed of Trust) dated ______. (REPEAT IF MORE THAN ONE ASSIGNMENT.)
ANSWER:
16. Please state the address, phone number, and employment history from _______
to __________ of ____________________, whose purported signature appears as
the notary on the purported copy of the Assignment of Mortgage (or Deed of
Trust) dated ______. (REPEAT IF MORE THAN ONE ASSIGNMENT.)
ANSWER:
85
17. Please state the address, phone number, and employment history from
__________________of ________________________, whose purported signature
appears on the purported copy of the ANSWER:
18. Please state the date on which ______________ sold the subject mortgage to
_______________________.
ANSWER:
19. Please state all details known by Plaintiff regarding how it first received
possession of the note. Include when Plaintiff received the note, who delivered
the note to Plaintiff, who received the note, whether Plaintiff only received
certain rights in the note, if so, what rights, the location the note was stored prior
to this action, etc.
ANSWER:
20. Please identify the custodian of the records that would show all entries regarding
the flow of funds for the subject loan transaction prior to and after closing of the
loan. (“Flow of funds” means any record of money received, any record of
money paid out and any bookkeeping or accounting entry, general ledger and
accounting treatment of the subject loan transaction at your company or any
affiliate including but not limited to whether the subject loan transaction was
ever entered into any category on the balance sheet at any time or times, whether
any reserve for default was ever entered on the balance sheet, and whether any
entry, report or calculation was made regarding the effect of this loan transaction
on the capital reserve requirements of your company or any affiliate.)
ANSWER:
21. Please identify the person or persons who prepared the monthly Remittance
Reports submitted by the Servicer to the Trust.
ANSWER:
86
22. Please identify the auditor and/or accountant of Plaintiff’s financial statements or
tax returns.
ANSWER:
23. Please identify any attorney with whom you consulted or who rendered an
opinion regarding the subject loan transaction or any pattern of securitization
that may have affected the subject loan transaction directly or indirectly.
ANSWER:
24. Please identify any person who served as an officer or director with
_______________________ commencing with 6 months prior to closing of the
subject loan transaction through the present. (This interrogatory is limited only
to those people who had knowledge, responsibility, or otherwise made or
received reports regarding information that included the subject loan transaction,
and/or the process by which solicitation, underwriting and closing of residential
mortgage loans, or the securitization, sale, transfer or assignment or
hypothecation of residential mortgage loans to third parties.)
ANSWER:
25. Did any investor/certificate holder approve or authorize foreclosure proceedings

on HOMEOWNER’S property?
ANSWER:
26. Please identify the person(s) involved or having knowledge of any insurance
policy or product, plan or instrument describing over-collateralization, cross-
collateralization or guarantee or other instrument hedging the risk of default as
to any person or entity acting as an issuer of any securities or certificates. (Such
instrument(s) relate to the composition of a pool, tranche or other aggregation of
assets that was created, included or referred to the subject loan and the pool or
aggregation was transmitted, transferred, assigned, pledged or hypothecated to
any entity or buyer. A person who “transmitted, transferred, assigned, pledged
or hypothecated” refers to any person who suggested, approved, received or
accepted the composition of the pool or aggregation made or confirmed
representations, evaluations or appraisals of value of the home, value of the
security instruments, ability of the borrower to pay.)
ANSWER:
87
27. Please identify the person(s) involved or having knowledge of any credit default
swap or other instrument hedging the risk of default as to any person or entity
acting as an issuer of any securities or certificates. (Such instrument(s) relate to
the composition of a pool, tranche or other aggregation of assets that was
created, included or referred to the subject loan.)
ANSWER:
28. Describe in detail how Plaintiff came to possess the subject note and mortgage.
ANSWER:
29. List the names and addresses of all persons who are believed or known by
Plaintiff, its agents, or its attorneys to have any knowledge concerning any of the
issues in this lawsuit; and specify the subject matter about which the witness has
knowledge.
ANSWER:
30. Does Plaintiff intend to call any expert witnesses at the trial of this case? Yes or
no.
ANSWER:
31. If your answer to Question 28 is yes, state as to each such witness the name and
business address of the witness, the witness‘s qualifications as an expert, the
subject matter upon which the witness is expected to testify, the substance of the
facts and opinions to which the witness is expected to testify, and a summary of
the grounds for each opinion.
ANSWER:
32. List all non-expert witnesses that you intend to call at the trial in this matter and
any documents or other tangible items you intend to introduce as evidence at the
trial in this case.
ANSWER:
88
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
certified U.S. Mail this ______ day of ________________, 201_ to:
________________________
______________________________
HOMEOWNER
89
ATTACHMENT 5 - SAMPLE: DEFENDANT’S FIRST REQUEST FOR

PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF
90

COUNTY OF
____________________
__________ :
:
Plaintiff, :
:
vs. : CASE NO.:
:
:
___________ :
Defendant(s). :
:
__________________________________________________________________________
DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

DIRECTED TO PLAINTIFF
Defendant ___________________, pro se, pursuant to ________________ files this

First Request for Production of Documents Directed to Plaintiff and requests that
Plaintiff produce the following within thirty (30) days after service at the address of the
undersigned: _____________________
INSTRUCTIONS
A. You are requested to produce all documents in your custody, possession or control,
including all documents which are in the custody of your employees, attorneys,
consultants, accountants, or agents, regardless of the location of such documents.
B. If any document responsive to a specific request was, but no longer is, in your
possession, custody or control, please identify that document and state whether any
such document (a) is missing or lost; (b) has been destroyed; (c) has been transferred
voluntarily or involuntarily; or (d) has been otherwise disposed of, and, in each
instance, please explain in detail the circumstances surrounding any such disposition
thereof.
C. All documents are to be produced in or with their original file folders, file jackets,
envelopes, or covers.
D. In answering these requests for production you are required to furnish all
information, documents and/or things that are available to you or subject to your
reasonable inquiry, including information and things in the possession, custody or
91
control of any of your representatives, including, without limitation, your attorneys,

accountants, advisors, agents, or other persons directly or indirectly employed by or
connected with you and anyone else otherwise subject to your control.
E. The relevant time period is from ___________ until the present, unless otherwise
indicated.
F. Any document as to which a claim of privilege is or will be asserted should be
identified by author, signatory, description (i.e., letter, memo, telefax), title (if any),
dates, addresses (if any), general subject matter, present location and custodian and a
complete statement of the grounds for the claim of privilege should be set forth.
DEFINITIONS
A. The term “document” or “documents” as used herein further shall mean:

a. all writings of any kind (including the originals and all non-identical copies,
(whether different from the originals by reason of any notations made on such
copies or otherwise), including without limitation, correspondence, notes,
statements, transcriptions, checks, forms, applications, receipts, records,
summaries, intra-office communications, notations of any sort of conversations
or interviews, telephone calls or other oral communications, and all drafts,
alterations, modifications, changes, and/or amendments of any of the foregoing.
b. all graphic or aural records or representations of any kind, including without
limitation, photographs, charts, graphs, plans, drawings, microfiche, microfilm,
videotape, recording, and motion pictures;
c. all electronic, mechanical, or electrical records or representations, whether
transcribed or not, including without limitation, tapes, cassettes, discs and tape
recordings, and
B. The term “all documents” as used herein shall mean every document, as defined
above, in your possession, custody or control, or in the possession, custody or control of
your officers, directors, employees, principals or agents. If more than one version or
copy of a document exists and any such version or copy bears markings or notations
which are not on other versions or copies of the document, each such version or copy is
included within the meaning of the term “document.”
C. The terms “you” or “your” shall mean the person or entity to whom this document
request is directed and, if any entity, all officers, directors, employees and agents of the
entity.
D. The term “communication” as used herein shall mean the transmittal of information
(in the form of facts, ideas, inquires, or otherwise) verbally, in writing, orally, by
telephone, in person, at meetings, electronically, or in any way or in any form, and
includes, but is not limited to emails, texts, twitter and similar forms of electronic
communication, letters, faxes, telegraphs, telexes, inter-and intra-office memoranda or
92
communications, envelopes, and all other written communications of whatever form,

notes and memoranda of meetings, tapes other sound records and transcripts,
videotapes, or films.
E. The term “concerning” as used herein shall mean relating to, referring to, describing,
supporting, evidencing, or constituting.
F. The term “and” and “or” shall where the context permits be construed as “and/or”
so as to be inclusive rather than exclusive.
G. The term “person” shall mean any natural person, trust, partnership, organization,
business, entity or association.
H. The term “related to,” “relates to” or “relating to” means in any way directly or
indirectly, concerning, referring to, disclosing, describing, confirming, supporting,
evidencing or representing.
I. The past tense shall be construed to include the present tense and vice-versa to make
a. The singular shall be construed to include the plural and vice versa to make
b. Any reference to the Note and Mortgage refers to the specific documents
alleged by plaintiff to be involved in the instant proceedings.
J. The term “promissory note(s)” or the word “note(s)” means the promissory note(s)
described in the Complaint.
K. The term “mortgage(s)” means the mortgage(s) described in the Complaint.
L. The term “mortgage loans” means loans made or indebtedness owed to Plaintiff or
its predecessors in connection with secured transactions on real property.
M. The term “Plaintiff” refers to The Bank of New York, as Trustee for the Benefit of the
Certificateholders, CWABS, Inc., Assetbacked Certificates, Series 2007-10.
N. The term “Defendants” refers to HOMEOWNER’S NAME(S).
O. When Defendant uses a term, it shall be construed to have the same meaning as used
in Plaintiff’s Complaint and supporting attachments, unless explicitly noted otherwise.
DOCUMENTS TO BE PRODUCED
1. All documents which are related to the subject loan transaction including but not
limited to the original wet-ink Note, modification of mortgage, judgment notes,
security agreements, mortgages, assignments, allonges, insurance agreements,
servicing agreements, pooling and servicing agreements and any and all other
documents that relate or reference in any way the loan, or Plaintiff’s ability to
service the loan, which is the subject of this instant litigation.
93
2. All contracts, agreements and other documents which show the exact date that
Plaintiff came into possession of the Note involved in this action, including: 1)
evidence such as a cancelled check or wire for payment of the note, 2) the
original entries from Plaintiff’s “general ledger” showing the date the note came
onto the books of Plaintiff all the way through the date of the foreclosure filing,
3) copies of any and all transfers, assignments, mergers, purchase and sale
agreements, endorsements or other documents that demonstrate Plaintiff is a
party entitled to enforce Defendant’s note.
3. All documents which show that Plaintiff held, received, or was in possession of
the original note on or before August 11, 2008.
4. Copies of any and all documents which create or demonstrate the existence of a
nominee or agency relationship by, between, or otherwise relating to Lehman XS
Trust Mortgage Pass-Through Certificates Series 2006-8 U.S. Bank National
Association as Trustee Successor in Interest to Lasalle Bank National Association
as Trustee and Equihome Mortgage Corp. and which supports Plaintiff’s
allegation that it has standing to bring this Complaint in Foreclosure.
5. Copy of the Pooling and Servicing Agreement (PSA) that governs the
____________ Trust. (APPLICABLE IN 95%+ OF ALL FORECLOSURES.)
6. Copy of the latest Remittance Report submitted by the servicer to the investors.
7. All agreements, contracts, or other documents which support the responses

Plaintiff made or will make to Defendant’s First Set of Interrogatories to the
Plaintiff.
8. All agreements, contracts, or other documents which support the responses

Plaintiff made or will make to Defendant’s First Set of Admissions to the
Plaintiff.
9. If Plaintiff claims that this mortgage and note are held in trust and Plaintiff is
associated with said trust, please produce any relevant mortgage loan schedule
which should include the Mortgagor’s name, loan identification number, the
property address, etc. Please also produce any exceptions schedule which shows
what mortgages were not transferred into the trust.
10. Any corporate resolution, power of attorney, contract, or document which shows
that all parties which are able to act as servicing agent or otherwise authorized to
94
act on behalf of Plaintiff with regard to the note or mortgage attached to the
complaint.
11. All correspondence generated by any party concerning the alleged loan
transaction, mortgage or note in question, and instant foreclosure, from May 1,
2007 until the date of responding to this request.
12. All telephone log sheets, computer printouts and any other internal memoranda
or notes concerning this account.
13. All executed or unexecuted, recordable or non-recordable assignments associated

in any way with the subject loan including, but not limited to, assignments,
transfers, allonges or any other document that purports to transfer the interest in
the subject note and mortgage to any party from the date of its inception until the
date of answering these requests for production.
14. All contracts between Plaintiff and any person or entity responsible for servicing
the mortgage and/or note.
15. All notices sent to Defendant pursuant to the Mortgage.
16. All documents which show the (1) name of the computer system that holds,
processes, creates documents, prepares data, maintain, analysis, and otherwise
contain the documents, information, data compilations, codes, and records of
Defendant’s purported mortgage, note, payment history, indebtedness, lender
placed insurance, hazard insurance, late charges, appraisal, property inspections,
brokers price opinions, title charges, title updates, etc., (2) the date of the system
was created, (3) who maintains the system, (4) who developed the system, (5)
what tasks the system performs, (6) who has access to the system, (7) how often
the system is audited for accuracy, (8) how information is boarded or input into
the system, (9) who boards the information into the system, and (10) where the
server to the system is located.
17. Any and all bailee letters or other documents or data compilations which show
who owned, held, serviced, or otherwise had any rights to enforce the note or
mortgage attached to Plaintiff’s complaint.
18. All documents that borrower sent to lender, or its successors and assigns that
designates a substitute address by which notices should be sent under the
mortgage. (IF APPLICABLE.)
95
19. All assignments of mortgage upon which Plaintiff relies on.
20. The exact page from notary _____________’s notarial journal containing the
notarization of the purported assignment dated _____. (NOTE: NOTARIES IN
LOUISIANA ARE NOT REQUIRED TO KEEP SUCH A JOURNAL, BUT IT
DOESN’T HURT TO ASK ANYWAY.)
21. All documents that Plaintiff intends to rely on at trial.
22. A copy of the mortgage loan schedule which references the instant note or
mortgage.
23. A copy of all Requests for Release of Documents which reference the instant note
or mortgage.
24. All written notices to either Defendant or Defendants which notify them of the
assignment of the note at issue to another entity.
25. All communications regarding or relating to the creation of the Assignment of

Mortgage.
26. All communications between Countrywide Bank, F.S.B. or Bank of America,

N.A. and Stern & Eisenbereg, PC concerning the instant file.
27. Copies of the legal services and retainer agreements for each law firm
representing Plaintiff in the instant action including without limitation the scope
of services to be provided and fees for handling this action.
28. Copies of all licenses and authority (including a true and correct copy of their
signature) to provide notary services required for each of the notary publics
utilized for any portion of the pleadings or filings utilized in this case by
Plaintiff, including but not limited to_____.
29. Copies of all Plaintiff’s corporate authorizations, powers of attorney, and

corporate resolutions for all signatories appearing on assignments and note
endorsements, including but not limited to ___________.
96
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via
certified prepaid US Mail this ___ day of ___________, 201_ to:
__________________
______________________________
HOMEOWNER
97
ATTACHMENT 6 - SAMPLE: DEFENDANT’S FIRST REQUEST FOR

ADMISSIONS ADDRESSED TO PLAINTIFF
98

COUNTY OF
____________________
__________ :
:
Plaintiff, :
:
vs. : CASE NO.:
:
:
___________ :
Defendant(s). :
:
__________________________________________________________________________
DEFENDANT’S FIRST REQUEST FOR ADMISSIONS

ADDRESSED TO PLAINTIFF
The following Request for Admissions is submitted pursuant to

_________________ and is to be answered fully and under oath. Plaintiff
________________ must serve an answer to each numbered request separately and fully,
in writing and under oath within thirty (30) days after service to HOMEOWNER’S
NAME AND ADDRESS.
INSTRUCTIONS
After carefully reviewing all materials pertinent to the Plaintiff’s complaint

against Defendant in the above styled case, please admit the following statements
below. Each matter of which an admission is requested shall be separately set forth.
The matter is admitted unless you serve upon the Defendant a written answer or
objection addressed to the matter within 30 days after service of this request. If an
objection is made, the reasons shall be stated. The answer shall specifically deny the
matter or set forth in detail the reasons why you cannot truthfully admit or deny the
matter. A denial shall fairly meet the substance of the requested admission, and when
good faith requires that you qualify an answer or deny only a part of the matter of
which an admission is requested, you shall specify so much of it as is true and qualify
99
or deny the remainder. You may not give lack of information or knowledge as a reason
for failure to admit or deny unless you state that you have made a reasonable inquiry
and that the information known or readily obtainable by you is insufficient to enable
that party to admit or deny. You may not object to a request solely because you consider
that a matter of which an admission has been requested presents a genuine issue for
trial. All references to “you” and “your” below refer to the Plaintiff listed in the Caption
of the Complaint in this action. The phrase “Promissory Note” or the word “Note” shall
refer to the Promissory note described in the Complaint and the word Mortgage shall
refer to the mortgage described in the Complaint and upon which Plaintiff is seeking to
foreclose. Unless stated otherwise, Defendant will utilize the same definitions and
terminology as used in Plaintiff’s Complaint.
DEFINITIONS
A. The term “promissory note(s)” or the word “note(s)” means the promissory
note(s) described in the Complaint.
B. The term “mortgage(s)” means the mortgage(s) described in the Complaint.
C. The term “mortgage loans” means loans made or indebtedness owed to
Plaintiff or its predecessors in connection with secured transactions on real
property.
D. The term “Plaintiff” refers to ________________
E. The term “Defendants” refers to _________________
F. When Defendant(s) use a term, it shall be construed to have the same
meaning as used in Plaintiff’s Complaint and supporting attachments, unless
explicitly noted otherwise.
ADMISSIONS
1. Admit that Plaintiff was not in possession of the original wet-ink promissory
note at the time this foreclosure lawsuit was filed, February 18, 2015.
____ ADMITTED ____ DENIED
2. Admit that no party, at least thirty (30) days prior to the filing of this lawsuit,
gave Defendant notice that the Note was assigned to Plaintiff.
3. Admit that Plaintiff is not the holder of the Note.

100
4. Admit that Plaintiff is not the non-holder in possession of the instrument who
has the rights of a holder.
5. Admit that Plaintiff is not the assignee of the original lender’s interest in the note.
6. Admit that no document exists that shows Plaintiff received the original wet-ink
note on or before February 18, 2015.
7. Admit that no document exists that shows Plaintiff held in its possession the
original wet-ink note on or before February 18, 2015.
8. Admit that Mortgage Electronic Registration Systems, Inc. (“MERS”) is not a

party to the Note.
9. Admit that Mortgage Electronic Registration Systems, Inc. (“MERS”) has no

authority to assign or transfer the promissory note in the instant action.
10. Admit that these admissions are being answered by Plaintiff’s servicer.
11. Admit that the note is an obligation of a consumer to pay money arising out of a
transaction in which the money or property which are the subject of the
transaction are primarily for personal, family or household purposes.
12. Admit that Christopher Herrera is an employee or agent of Bank of America,

N.A. or its subsidiaries. (ADMISSIONS 12 – 16 REFER TO NAMES AND
SIGNATURES ON ANY ASSIGNMENTS OF MORTGAGE.)
101
13. Admit that Christopher Herrera is not authorized to sign documents as an

employee or agent for Mortgage Electronic Registration Systems Incorporated
(MERS) as nominee for Countrywide Home Loans, Inc. (IF APPLICABLE.)
14. Admit that notary Danya Bucaro is an employee or agent of Bank of America,
N.A. or its subsidiaries.
15. Admit that Bank of America, N.A. fabricated the Assignment of Mortgage from
MERS to Bank of New York Mellon.
16. Admit that the Assignment of Mortgage from MERS to Bank of New York
Mellon was fabricated for the purposes of litigation.
17. Admit that no due diligence was conducted by Plaintiff as to whether the note
and deed of trust at issue in this litigation was ever properly assigned to Plaintiff
pursuant to the requirements of the pertinent Pooling & Servicing Agreement
and 424B Prospectus.
18. Admit that Plaintiff is not a creditor.

19. Admit that the loan originator never had the subject loan on its books and
records as a loan receivable.
20. Admit that the loan originator was paid by third parties which were not
disclosed to homeowner/Defendant.
21. Admit that the loan originator was not the source of funds for any financial
transaction with homeowner/Defendant.
22. Admit that no assignment of the alleged loan was ever supported by
consideration or value.
102
23. Admit that no accounting or report has ever been issued and delivered to
homeowner/Defendant by the actual source of funds for the origination of any
alleged loan transaction.
24. Admit that the master servicer never issued and delivered to
homeowner/Defendant an accounting or report for the origination or transfer of
the alleged loan.
25. Admit that the note and mortgage at issue in this litigation were never lawfully
assigned to Bank of New York Mellon.
26. Admit that the Remittance Report submitted by Bank of New York Mellon to the
CWMBS, Inc., CHL Mortgage Pass-Through Trust 2007-15 Mortgage Pass-
Through Certificates, Series 2007-15 Trust shows the subject loan/note paid up to
date.
27. Admit that the alleged loan obligation under the Note and Deed of Trust at issue
in this litigation is not in default.
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
via certified prepaid US Mail this ____ day of _____________, 201_ to:
____________________
____________________
Homeowner
103

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com 04 Sep 2018

HOW TO BEAT THE BANKSTERS

The Homeowner’s Guide to

LEGAL INFORMATION IS NOT LEGAL ADVICE

Copyright © 2016 Joe Portofino

ALL RIGHTS RESERVED

COVER GRAPHIC DESIGNED BY: Deborah A. Flynn

HOW TO BEAT THE BANKSTERS

The Homeowner’s Guide to

According to Core Logic’s National Foreclosure Report, since the financial

“Standing” is defined as the right to make a particular legal claim by filing a

A better alternative is to hire a certified paralegal who specializes in

Judicial or Non-Judicial Foreclosure

List of U.S. States which use Judicial or Non-Judicial Foreclosure

STATES THAT ARE JUDICIAL FORECLOSURE STATES

(Oklahoma, South Dakota and Wisconsin have non-judicial foreclosure provisions

STATES THAT ARE NON-JUDICIAL FORECLOSURE STATES

Oregon Rhode Island

In judicial foreclosures the supposed lender sues the (allegedly) defaulting

“The trustee does not have an economic or beneficial interest in the

Bottom line, if you are a homeowner affected by a foreclosure action and

The Foreclosure Complaint

Generally, a foreclosure complaint must follow your state’s Rules of Civil

In the vast majority of foreclosure complaints, the plaintiff is either a bank, a

IN THE COURT OF COMMON PLEAS

NOTE: in a non-judicial foreclosure state in which deeds of trust contain a

The claim or cause of action

For example, in a foreclosure complaint, the plaintiff bank will claim,

This is commonly known as the “WHEREFORE clause.” It demands

WHEREFORE, Plaintiff demands in rem judgment against the

The following is a defendant’s actual wherefore clause from a successful

WHEREFORE, as the prima facie documentary evidence provided by

Next is a defendant’s wherefore clause from a motion opposing plaintiff

WHEREFORE, as Defendants have provided evidence that: a)

Contesting the foreclosure complaint

citizenship diversity or the amount in question exceeding $75,000. It would then

Bottom line, since the property subject to foreclosure is located in a state, it is a

If a foreclosure is properly challenged, one can delay or defeat the

The contested foreclosure process

 Plaintiff files its foreclosure complaint;

 If Plaintiff has filed its MSJ first, the Defendant/homeowner will

 Be prepared for Plaintiff to make a motion for no trial by jury

In non-judicial foreclosure states, the process is generally the same except

On the other hand, if there is no response to your affirmative defenses then

Some states like Pennsylvania allow the Defendant/homeowner to file what

There is no “free house”

While many original notes were destroyed during the securitization

Some common specific defenses to mortgage foreclosures:

 The plaintiff is not the real party in interest.

The Promissory Note

The original Promissory Note is the most important document in any

When a homeowner signs a promissory note as its maker (“issuer”), he/she

Professor Douglas J. Whaley calls this the “Golden Rule of Mortgage

The Assignment of Mortgage or Deed of Trust

“Purported” assignment of mortgage or deed of trust is more appropriate.

Several county recorders hired professional forensic examiners to audit their

For example, a forensic audit of the Salem, Massachusetts land records

Any plaintiff bank or trustee relying on invalid assignments of mortgage and

An affidavit is a written statement of facts voluntarily made by a person

Securitization of your mortgage loan documents

Many foreclosure complaints are filed by REMIC (Real Estate Mortgage

Mortgage loan documents consist of promissory notes or adjustable rate