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COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT
LAND COURT DEPARTMENT
CASE NO. 08 MISC 384283 KCL
) U.S. BANK NATIONAL ASSOCIATION, ) as TRUSTEE FOR THE STRUCTURED )
ASSET SECURITIES CORPORATION )
MORTGAGE PASS-THROUGH )
CERTIFICATES, SERIES 2006-Z, )
v. ) )
ANTONIO IBANEZ, )
MEMORANDUM OF ANTONIO IBANEZ IN OPPOSITION TO PLAINTIFF'S MOTION TO V ACATE JUDGMENT
"~: -_ ~ t :~,
Purportedly facing title insurance concerns about the July 5,2007 foreclosure sale
advertising, PlaintiffU.S. Bank National Association, as Trustee for the Structured Asset
Securities Corporation Mortgage Pass-Through Certificates, Series 2006-Z ("Plaintiff' or "US.
Bank") brought this action " ... to remove a cloud from title", G.L. c. 260 § 6; Sheriff's Meadow
Foundation, Inc. v. Bay-Courte Edgartown, Inc.,40111<iss. 267, 269 (1987) (Plaintiffs burden
to prove sufficiency of Plaintiffs title in action to Clear Title). According to its Complaint, US.
Bank's title was based solely upon an assignment of the Ibanez mortgage dated and executed on
September 2,2008: well over a year after the sale. This Court held that, as U.S. Bank was not
the mortgagee at the time it sold the premises (to itself), its foreclosure sale was invalid. US.
Bank v. Ibanez, 17 Land Court Reporter 202 (March 26,2009; Long, J.).
U.S. Bank moved to vacate this Court's judgment, and a hearing was held on that Motion
on April 27, 2009. "Pursuant to that hearing, the Court entered a Docket Order which, inter alia,
authorized the filing of only the following -- each of which must be properly authenticated": 1
(1) the documents which created the securitized trust and govern its operations, (2) the documents identifying the "blocks of mortgages sold into that trust," which purportedly include the mortgage at issue in this case, (3) the "collateral file" for the mortgage as it existed at the time the foreclosure sale was noticed and conducted, which was represented to include the original note, the original (or a copy) of the mortgage, endorsements or assignments "in blank," "other documents," and perhaps a timely assignment in recordable form, (4) the master servicing ~eement, showing the relationship between the trust and the loan servicer (which apparently was the entity instructing and supervising the attorneys who noticed and conducted the foreclosure), (5) the power of attorney under which the loan servicer acted in this instance, along with its recording information, and (6) the powers of attorney or certificates of incumbency, which purportedly evidence the authority of the particular individuals who acted on behalf of the loan servicer in this instance, along with their recording information. The court has concerns about the apparent practice of assignments "in blank," what plaintiff means by that term, the legal sufficiency of such a practice in the context of mortgage assignments and G.L. c.244, Section 14, and the possibility that names may have been placed on those documents post-notice and post-sale. Accordingly, all documents reflecting or purporting to reflect an assignment of the promissory note or mortgage must be produced in the form - they existed at the time the foreclosure sale was noticed and conducted, along with an affidavit from a witness with direct personalknowledge so attesting. That witness must also be available for examination at an evidentiary hearing if the court so directs.
As of today, U.S. Bank has failed to produce any of the documents "which created the
securitized trust"; indeed no document has been produced which evidences that such a Trust
exists. U.S. Bank, has failed to produce a single document" .. .identifying the blocks of
mortgages sold into that trust"; even though the Private Placement Memorandum ("PPM") filed
April 27, 2009 Docket Entry, emphasis in original.
expressly represents that "Each Mortgage Loan held by" U.S. Bank would be identified. See Section III B, infra. Moreover, the Trustee has failed to produce the "master servicing agreement" or any other materials authorizing" ... the instructing and supervising the attorneys who noticed and conducted the foreclosure"; instead, the Trustee produced a "bailee letter" dated May 11,2009 authorizing a "Foreclosure Start Date 0/04-09-07". Exhibit A, p.l. Further, U.S. Bank has provided no Affiant documenting the authenticity or integrity of the "collateral file" as of the date of the foreclosure notices and sale, or any other relevant date, for that matter.
Finally, as the Court's Memorandum of Decision and Docket Order illustrate, the failures here are not merely technical ones; they go to the heart of the Registry of Deeds recording process which is charged with ensuring the integrity of record ownership of land. That is, although the entity seeking to validate the foreclosure of the Ibanez loan has presented a document of no legal authority identified only as a "Private Placement Memorandum", the securitization and sale of these loan packages itself depends upon accurate conveyancing and record-keeping, and upon closing and recording practices which credibly establish the title to securitized real estate assets, according to the conveyancing and real property jurisprudence of each jurisdiction in which the assets are located. Months after this action was begun, the Trustee has woefully failed to demonstrate even the hint of good title to the mortgage loan given to the Defendant.
It is axiomatic that a party moving to Vacate a Judgement of the Court has the burden of proving that the Judgment is based on clearly erroneous factual findings or an error in the legal standard applied. Parrell v. Keenan, 389 Mass. 809,815 (1983); New England Allbank v. Rouleau, 28 Mass. App. 135, 142 (l989)_ Here, the Trustee's burden was, indisputably, that of proving that the Trustee was the mortgagee on the date the Trustee advertised and conducted the
foreclosure sale, and itself purchased the Ibanez mortgage. In light of the egregious failures of
proof evidenced by the Plaintiffs filings, and decisional precedent set forth below, the Court
should deny the Motion of U.S. Bank to vacate this Court's Judgment.
I. STATEMENT OF FACTS
A. Origination of Defendant's Mortgage Loan
Defendant Antonio Ibanez's mortgage loan was originated by Rose Mortgage, Inc.
("Rose") on December 1, 2005 by the execution of an Adjustable Rate Note (the "Note") and
mortgage (the "Mortgage"; and together with the Note, the "Mortgage Loan"). The Note was
made payable to Rose, which was identified as the "Lender" in the Note. Likewise, Rose was
identified as the "Lender" and "Mortgagee" under the terms of the Mortgage. The Mortgage was
secured by Defendant's property located at 20 Crosby Street in Springfield, MA.
On December 8,2005, Ralph Vitiello, Chief Executive Officer of Rose purportedly
assigned the Mortgage to Option One Mortgage Corporation ("Option One"), which assignment
(the "Rose-Option One Assignment") was recorded with the Hampden County Registry of Deeds
(the "Registry") on June 7, 2006. According to the terms of the assignment, Option One was
assigned "all beneficial ownership under that certain Mortgage dated December 1, 2005 executed
by Antonio Ibanez" as of December 8, 2005.
On January 23,2006, "Katherine Burns", an Assistant Secretary of Option One, executed
a purported assignment of the Mortgage (the "Option One Blank Assignment"). Through this
purported assignment, Option One, as "holder of a real estate mortgage from: Antonio Ibanez
... assigns said mortgage and the Note ... to:
". This purported assignment fails
~. to identify an assignee or any further identifying information relating to the Mortgage necessary
I,;;. to identify the mortgage the instrument purports to assign.
At some unknown point in time after the execution of the Note on December 1, 2005, the
following three undated allonges were executed: (1) an "Allonge to Note" purportedly executed
by Rose Mortgage, Inc. Vice President, Michael Petrucelli, endorsed "in blank", and, presumably, affixed to the original Noter' (2) an "Allonge to Note" purportedly executed by Vitiello, of Rose, endorsing the Note to Option One, without recourse.' and (3) an entirely
separate Allonge to Note was executed by Option One Mortgage Corporation by Sheryn
Cervantes, Assistant Secretary, "Pay to the order of:
Without Recourse." Thus, there
are two "conflicting", and three undated Allonges to the Note in the Trustee's chain oftitle: facts
which leave great doubt as to which, if any, of the Trustee's chain oftitle documents existed at
the time the foreclosure sale was advertised and held.
B. Foreclosure of Defendant's Mortgage and Post-Foreclosure Mortgage Assignment
On April 17, 2007, Plaintiff filed a complaint to foreclose with this Court pursuant to the
Service Members Civil Relief Act ("Foreclosure Complaint"). On the Foreclosure Complaint,
Plaintiff identified itself as "the owner ( or assignee) and holder of' the Mortgage. In reliance on
the complaint, the Court issued an Order of Notice. Specifically, the Notice establishes that U.S.
Bank "claiming to be the holder of Mortgage given by Antonio Ibanez to Rose Mortgage, Inc,
... and now held by PIa in tiff by assignment ... has/have filed with said court a complaint for
authority to foreclose." See Pl.'s Ex. C. (emphasis added). On June 14,21, and 28,2007 (the
"Foreclosure Notice Dates"), Plaintiff caused foreclosure notices to be published in the Boston
2 See Exhibits 2A and 2B, at _ - _, infra. This allonge was submitted to Defendants' counsel via
informal discovery from Plaintiffs counsel. Because this allonge appears to have been attached to the Note in the "closing file", it seems reasonably likely that this Allonge was "first-in-time".
Although U.S. Bank, Trustee's Third Supplemental Memorandum states that the second Rose Mortgage Allonge (2B) was "executed on December 1, 2005", there is no record support whatsoever for this statement. The 2B Allonge is undated, not notarized, not part of the closing file, and is unsupported by Affidavit or other supporting evidence. Indeed, on both of the conflicting Allonges, the only date which appears is the "Date of Note: December
._",., .. r: .. notices identified U.S. Bank as "the present holder" of the Mortgage. Finally, on
S':~OO7 (the "Foreclosure Sale Date"), Plaintiff sold the Property to itself at a foreclosure
auction for $94,350, which was $16,437.27 less than the amount of Defendant's outstanding
On September 2, 2008, approximately fourteen months after the foreclosure sale of the ~roperty, American Home Mortgage Servicing, Inc. ("American Home") assigned the Mortgage
to U.S. Bank, which assignment (the "Post-Foreclosure Assignment") was recorded with the
Registry on September 9,2008. American Home did not "back date" the effective date of the
C. Plaintiff's Complaint to Quiet Title, Memorandum and Order of the Court, and
Plaintiff's Motion to Vacate.
On September 16, 2008, Plaintiff filed a complaint with the Court pursuant to G.L.
c. 240, § 6 to "remove a cloud from the title" of the property. On January 20,2009, Plaintiff
filed a Motion for Entry of Default Judgment. After oral argument on February 11, 2009 and
supplemental briefing by Plaintiff, the Court entered its Memorandum and Order on Plaintiffs
Motions for Entry of Default Judgment on March 26, 2009 (the "Order"). In its Order, the Court
found that U.S. Bank had not been assigned the Mortgage at the time the foreclosure notice was
published or at the time the foreclosure sale took place. Order at 2. The Court ruled, amon~ other
things, that the foreclosure of Defendant's Mortgage was invalid because the foreclosure notices
failed to name the actual mortgage holder at the time of publication or sale as required by G.L. c.
244, §14. Id.
On April 6, 2009, Plaintiff filed its Motion to Vacate Judgment ("Motion to Vacate")
with the Court, which is currently pending. At the hearing on Plaintiff's Motion to Vacate,
1,2005"; although we know that the Allonge which was included in the closing documents was, presumably,
, Plaintiffs counsel represented to the Court that "documents may exist which may show a pre-
notice, pre-sale assignment sufficient under G.L. c. 244, § 14." See Notice of Docket Entry,
dated April 21, 2009. Based upon this representation, Plaintiff was given leave to submit, (1)
the documents which created and governed the securitized trust and govern its operations that
allegedly owned Defendant's Mortgage Loan, (2) the documents that identified the "blocks of
mortgages sold into that trust, which purportedly include the mortgage at issue in this case," (3)
the "collateral file" for the mortgage as it existed at the time of the foreclosure sale was noticed
and conducted, which was represented to include the original note, the original (or copy) of the
mortgage, endorsements or assignments "in blank", (4) the master servicing agreement, (5) the
power of attorney under which the loan servicer acted; (6) the powers of attorney which
purportedly evidence the authority of the particular individuals who acted on behalf of the loan
D. Plaintiff's Third Supplemental Memorandum of Law and supporting
On June 8, 2009, Plaintiff submitted its Third Supplemental Memorandum of Law in
Support of Motion for Entry of Default Judgment ("Third Mem."), the affidavits of Michelle Halyard (the "Halyard Affidavit"), Robert Salazar (the "Salazar Affidavit")" and Walter H. Porr,
... Jr. (the "Porr Affidavit"), and additional supporting documentation (the "June 8th sub~issioIl")'
The June 8th submission contained:
1. The Adjustable Rate Note, together with the Allonge to Note
created at the time the loan originated: absent, of course, alteration of these files after the closing.
4 According to the Haylard Affidavit, Ms. Haylard identifies herself as a "Foreclosure Support Manager" of American Home. Haylard Affidavit at ~ 1. In her affidavit, Ms. Haylard states that "[o]n May 4, 2009, I received the original Ibanez Loan Collateral file from Robert Salazar." Id. at ~ 5. In his affidavit, Mr. Salazar indentifies himself as a "Loan Sales Specialist Il/Sr. Collateral Administration Specialist" for American Home. Salazar Affidavit at ~ 2. Mr. Salazar states that he contacted Wells Fargo on Apri128, 2009 to obtain "the original collateral file for the Antonio Ibanez loan," which file he received from Wells Fargo on May 4,2009. Salazar Affidavit at
~ 4,5. None of these Affidavits makes any representation as to the integrity or existence of any records as of the date of the foreclosure sale.
(Rose Mortgage, Inc., to Option One Mortgage Corporation), both of which were executed on December 1, 2005, and the Allonge to Note (Investor) (Option One Mortgage Corporation to" ") executed on January 20,2006.
2. The Mortgage, Adjustable Rate Rider and 1-4 Family Rider which were executed on December 1, 2005, and recorded on December 2,2005, and subsequently returned by the Registry.
3. A certified copy of the Mortgage, Adjustable Rate Rider and 1- 4 Family Rider.
4. The Rose-Option One Assignment.
5. A certified copy of the Rose-Option One Assignment.
6. The Option One Blank Assignment.
7. The Lender's Policy of Title Insurance.
8. A facsimile copy of the Lender's Policy of Title Insurance Commitment.
9. The Bailee Letter dated May 11, 2009.
See Third Mem., at 3-4.
Plaintiff also submitted a copy of the Private Placement Memorandum (the "PPM") for the
Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-2
Trust, "copies of all foreclosure documents recorded with the Registry of Deeds," and a
"Consent by Directs and Assistant Secretary to Recital And Resolutions of Option One Mortgage
Thus, to Defendant's knowledge, of the documents the Plaintiff was given leave by the
Court to submit in order to show "pre-notice, pre-sale assignment sufficient under G.L. c. 244, §
14", the Plaintiffs submission did not include the following: (1) the Trust Agreement that
created the securitized trust and governs its operations; (2) any schedule "identifying the blocks
of mortgages sold into that trust"; (3) the master servicing agreement; (4) the power of attorney
under which the loan servicer acted in this instance; and (5) any powers of attorney or
authorizing corporate resolutions evidencing the authority of Sheryn Cervantes to act as
Assistant Secretary of Option One to execute an Allonge to Note, or Linda Green, as Vice
President, and Jessica Obde, as Asst. Vice President, for American Home to assign the Mortgage
from American Home to U.S. Bank.
II. THE COURT CORRECTLY HELD THAT U.S. BANK'S
RETROACTIVE, UNRECORDED AND UNRECORDABLE "TITLE" DOCUMENTS FAILED TO ESTABLISH A LEGAL INTEREST WHICH ENABLED U.S. BANK TO CONDUCT A VALID FORECLOSURE SALE
In its decision of March 26,2009, this Court held the following:
To allow a foreclosing party, without any interest in the mortgage at the time of the sale (recorded or unrecorded), to conduct the sale in these circumstances, bid and then acquire good title by later assignment is completely contrary to G.L. c. 244, § 14's intent and commands.
Notwithstanding the multiple legal theories advanced by the Plaintiff memoranda in support of
its motion for summary judgment, and its further Memorandum in support of its motion to vacate
this Court's judgment, the Court's above-quoted holding is unambiguously correct. A party may
not foreclose pursuant to the power of sale contained in a mortgage contract without first
obtaining the mortgagee's contractual rights by written, valid assignment.
A. In Massachusetts, a Mortgagee's Power of Sale Arises Solely from the
Contractual Provisions of the Mortgage.
G.L c. 244, § 14 specifies the process to which a party must adhere to foreclose pursuant
to the statutory power of sale. However, a party's right, if any, to sell a mortgaged property at a
foreclosure auction pursuant to a power of sale is conferred by a particular mortgagor upon a
particular mortgagee by the mortgage contract. Mortgagees conduct the vast majority of
foreclosures in Massachusetts pursuant to the statutory power of sale, codified as a "short form"
at G.L. c. 183, § 21. In order for a mortgagee to exercise the statutory power of sale, it must be
explicitly incorporated as a term in the mortgage contract between the mortgagor and mortgagee.
Norton v. Joseph, 2009 WL 58896 at *3, Docket No. 374733 (CWT) (Mass. Land. Ct. Jan. 12,
2009) ("The statutory power is not applied by default in the event of its omission; failure to
invoke the power in some way results in no such power."). If incorporated, the statutory power
of sale authorizes a mortgagee "upon any default" to "sell the mortgaged premises ... by public
auction on or near the premises ... " G.L. c. 183, § 21.5 Where, and only where there is
authority to foreclose pursuant to a contractual power of sale does G.L. c.244 § 14 set out
additional statutory protections which supplement the statutory power of sale, and which must be
strictly followed for a foreclosure sale to be valid. Bottomly v. Kabachnick, 13 Mass. App. 480,
484 (1982); McGreevey v. Charlestown Five Cent Savings Bank, 294 Mass. 480, 484 (1936).
B. A Retroactive Assignment of a Power of Sale is Invalid, and Provides
no Authority for a Previous Foreclosure Proceeding.
Under the default common law rule, a party may freely assign its contract rights. If a
party other than the original mortgagee seeks to foreclose pursuant to the statutory power of sale,
that party must have obtained an assignment of the mortgage. See M.G.L ch. 83, § 21 ("[TJhe
mortgagee or his executors, administrators, successors or assigns may sell the mortgaged
premises '" ")( emphasis added). While a mortgagee may assign to another party its rights in a
mortgage contract, including the contractual right to foreclose, such an assignment is itself a
contract for the sale of interest in land and subject to the statute of frauds. G.L. c. 259, § 1(4).
Accordingly, under well-settled Massachusetts law, the assignment of a mortgagee's contract
rights must be in writing. Only the written, executed assignment of a mortgage contact can
effectively transfer ownership of that mortgage. See Warden v. Adams, 15 Mass 233 (1818)
5 The statutory short form provides only the content for a term of a contract between a particular mortgagor and a
("No interest passes by a mere delivery of a mortgage deed, without an assignment in writing and by deed. "). Moreover, to satisfy the statute of frauds, an assignment must "must contain
the terms of the contract agreed upon - the parties, the locus (if an interest in real estate is
dealt with), in some circumstances the price, and it must be signed by the party to be
charged or by some one authorized to sign on his behalf." Cousbelis v. Alexander, 315 Mass.
729, 730 (1944) (quoting Des Brisay v. Foss, 264 Mass. 102, 109 (1928)).
A mortgagee cannot foreclose on a particular property before it has obtained the contract
right to foreclose on that property by a written, executed assignment. See,~, In Re Schwartz
("[T]he assignment [Deutsche Bank] provided to the Court was not signed until after the
foreclosure sale. Acquiring the mortgage after the entry and foreclosure sale does not satisfy the
Massachusetts statute."). Numerous courts have rejected supposedly "retroactive" assignments,
in which a purported mortgagee attempts to justify an invalid foreclosure it conducted prior
obtaining the right to foreclose by written, valid assignment. See,'~, Countrywide Home
Loans, Inc. v. Taylor, 17 Misc.3d 595 (N.Y. Sup. Ct., September 20, 2007) ("Language in the
purported assignment to Countrywide states that the '[a]ssignment shall be deemed effective as
of August 1, 2006.' Such attempt at retroactivity, however, is insufficient to establish
Countrywide's ownership interest at the time the action was commenced. Indeed, foreclosure of a
mortgage may not be brought by one who has notitle to it ... "); Deutsche Bank Trust Co.
Americas v. Peabody, 866 N.Y.S.2d 91 (N.Y. Sup. Ct., June 26, 2008) ("The crucial issue then is
whether the written assignment, dated after the commencement of the action but stated to be
effective on a date before the commencement, was effective to give plaintiff the requisite interest
in the mortgage and thus standing to commence an action to foreclose it. Recently, finding such
post-commencement dated assignments ineffective, several trial level courts have said "no" .");
c. In Massachusetts, a Mere Holder of a Note Gains Neither Equitable nor Legal Authority to Foreclose.
While the Plaintiff seemingly acknowledges that a party must obtain an assignment of the
mortgage contract prior to conducting a foreclosure sale, it also advances the theory that an
"equitable holder" - a party who is not the beneficiary of a written assignment of the mortgage
- may nevertheless conduct a valid foreclosure sale. An "equitable holder," according to the
Plaintiff, holds the promissory note secured by the mortgage contract, but has not obtained an
assignment of the mortgage contract itself. Doonan Graves & Longoria LLC ("Longoria") and
the Real Estate Bar Association for Massachusetts ("REBA") make similar arguments in their
Brief of Amicus Curie [sic] and Statement of Interest, respectively, asserting that the mortgage
contract "follows" the promissory note.
Notably absent from the four briefs of the Plaintiff and the brief of Longoria is a single
case in which any Court permitted a party to conduct a Massachusetts foreclosure sale without
first obtaining a written assignment of the mortgage contract. The Plaintiff and Longoria cite
multiple cases for the proposition that the owner of a promissory note is "entitled" to an
assignment of the mortgage contract which secures it, but they do not cite any case that holds
that the owner of a promissory note automatically becomes the assignee or holder of a mortgage
without a valid, written assignment. See, st..&, Barnes v. Boardman, 149 Mass. 106, 114 (1889)
("In some jurisdictions it is held that the mere transfer of the debt without any assignment or
even mention of the mortgage, carries the mortgage with it, so as to enable the assignee to assert
his title in an action at law. This doctrine has not prevailed in Massachusetts, and the
tendency of the decisions here has been that in such case the mortgagee would hold the legal title in trust for the purchaser of the debt, and that the latter might obtain a conveyance by a bill in equity.") (citations omitted); Com. v. Reading Sav. Bank, 137 Mass. 431 (1883) (correcting execution of an existing written assignment); Com. v. Globe Inv. Co., 168 Mass. 80 (1897) (resolving rights of competing creditors to assets of insolvent corporation where no foreclosure was at issue). None of the cases cited by the Plaintiff and Longoria even contain the phrase "equitable holder," because, quite simply, Massachusetts law recognizes no such concept.
To the contrary, Massachusetts is clear that the last assignee of a mortgage contract is the holder of that mortgage - even if only a holder of in trust. See Barnes, 149 Mass. at 114 ("[I]n such case the mortgagee would hold the legal title in trust for the purchaser of the debt, and that the latter might obtain a conveyance by a bill in equity."). Promissory notes are negotiable instruments which can only negotiated by a process specified in the Uniform Commercial Code. See G.L. c. 106, § 3-104 et seq. In Massachusetts, promissory notes do not contain the statutory power of sale. The owner of a promissory note may be entitled to obtain an assignment of the mortgage contract that secures it, but the mere negotiation of a note does not, under Massachusetts law, assign the mortgage contract or provide the statutory Power of Sale; indeed, even the most casual reading of the contract - the Note - Plaintiff claims to hold shows that other than "late charges' and "acceleration", the holder of the Note lacks any contractual foreclosure authority: and it is axiomatic that the power of sale is a contractual one.
In short, the owner of a promissory note who is not also the assignee of the mortgagee's contract rights has no authority to conduct a foreclosure sale pursuant to the mortgage contract.Despite the Plaintiffs many attempts to avoid it, this Court's central holding in its March 26, 2009 decision is correct and inescapable. Absent a written assignment of the
mortgage contract that satisfies the statute of frauds executed prior to the advertising and sale of
the home at foreclosure, a party has no right to conduct a foreclosure pursuant to the statutory
power of sale.
III. NONE OF THE FILINGS ACCOMPANYING THE TRUSTEE'S
THIRD SUPPLEMENTAL MEMORANDUN CURE THE ABSENCE OF VALID TITLE AT THE TIME OF THE FORECLOSURE ADVERTISEMENT AND SALE.
A. U.S. Bank was not the holder of the Mortgage at the time the
foreclosure notices were published and at the time of the foreclosure auction was conducted.
Although Plaintiff has now had the opportunity to submit to the Court all the documents
in its possession, custody or control that "may exist which may show a pre-notice, pre-sale
assignment sufficient under G.L. c. 244, § 14", the plain fact remains that Plaintiff was not assigned the Mortgage until September 2, 2008. There is nothing in Plaintiffs June 8th
submission to contradict this simple fact. In fact, Plaintiffs submissions clearly demonstrates
that (1) Rose assigned the Mortgage to Option One on December 8,2005, and (2) no subsequent
assignment of the Mortgage occurred until American Home executed the Post-Foreclosure
Assignment on September 2, 2008. Therefore, on the Foreclosure Notice Dates and the
Foreclosure Sale Date, Option One was, and remained, the mortgagee and holder of
1. An "Assignment in Blank" is legally inoperative under Massachusetts Law.
In one futile attempt to get around this clear fact, Plaintiff has submitted the Option One
Blank Assignment, which was purportedly executed "in blank' on January 23,2006, and
purportedly in the custody of Wells Fargo on May 4,2009. This assignment, however, does
nothing to support Plaintiff s allegation that it was the holder of, or had been assigned,
Defendant's Mortgage pre-notice, pre-foreclosure, because this assignment "in blank", by its
very nature, fails to identify an assignee. Massachusetts common law has long held that a
conveyance in land, in which a blank had been left for the name of the grantee, is inoperative as
a conveyance so long as the blank: remained unfilled. See Macurda v. Fuller, 225 Mass. 341, 344
(1916); Phelps v. Sullivan, 140 Mass. 36, 36-37 (1885); Bums v. Lynde, 6 Allen 305, 311
(1863). Even if the Plaintiff s name had been later added to the assignment by parol authority of
Option One, the assignee's name creates a substantial part of the instrument itself, and therefore
redelivery of the assignment after the blanks were filled would have been necessary. See Bums,
at 310. Plaintiff submits no evidence in the June 8th submission that redelivery occurred, most
importantly the empty spaces remained blank:; no assignee was ever named in this Assignenmt.
The Option One Blank Assignment is equally invalid on the grounds that as a contract, it
lacked the required two or more parties, Option One being the only contracting party mentioned.
See Eastman v. Wright, 6 Pick. 316, 321 (1828); see also Situation Mgmt. Sys. v. Malouf, Inc.,
430 Mass. 875, 878 (2000) (the mutual assent of two or more persons to be bound by an
exchange of promises is the basis of a contract): It is a first principle of contract law that one
cannot contract with his or herself. Eastman, at 321. Plaintiff inadvertently acknowledges this
fundamental characteristic of an assignment, when Plaintiff states "an agreement/contract which
assigns a mortgage from Party A to Party B may satisfy the statute of frauds without being in
recordable form ... ,,6 Third Mem., at 10. But, here there is no "Party B," and Plaintiff points to no
legal authority that an assignment is valid when there is no Party B.7
I' 6 See infra fn. 13 regarding the requirement under the Trust Agreement for the assignment to be in recordable form.
~. 7 Only the written, executed assignment of a mortgage contact can effectively transfer ownership of that mortgage.
T See Warden v. Adams, 15 Mass 233 (1818) ("No interest passes by a mere delivery of a mortgage deed, without an assignment in writing and by deed."). To satisfy the statute of frauds, an assignment must "must contain the terms of the contract agreed upon - the parties, the locus (if an interest in real estate is dealt with), in some
Furthermore, Plaintiff glosses over the deficiencies in this purported assignment by
discussing various statutory provisions with respect to recording of instruments. Third Mem., at
10. In doing so, Plaintiff refers to the statutory provisions that indicate that when an instrument
conveying title is lacking certain requirements, the instrument may be valid, even if it may not be
in recordable form, Id. There are no statutory provisions, however, that provide that an
instrument without any grantee or assignee would be valid under any circumstances.
2. The Undated and Conflicting Allonges Produced by the Plaintiff do not Even Establish that the Plaintiff Validly Possessed the Note at the Time of the Foreclosure Sale.
In another unavailing attempt to bolster its allegation that it held Defendant's Mortgage,
Plaintiff has also submitted to the Court a copy of the Note and two aUonges. In informal
discovery, the Plaintiff also produced to counsel the Loan Closing File, as of the date of the
closing. That file includes yet a third allonge - apparently existing as of the closing - which
itself casts doubt on the integrity of the chain of possession of the Note. The first allonge, which
has no indication of the date of its execution, was made payable to "Option One Mortgage
Corporation, A California Corporation (Without Recourse)" and was executed by Ralph Vitiello,
CEO of Rose. The second allonge is made payable in blank, and is executed by Sheryn
Cervantes as Assistant Secretary of Option One. Although there is a date in the footer of the
allonge of "January 20,2006", it is unclear if this date is meant to identify the date of its
execution. According to the affidavits submitted in support of the Third Memorandum. the _Note
and these two allonges were provided to Plaintiffs counsel by American Home on May 13,
2009. Porr Affidavit at 12. In addition, Halyard and Salazar's affidavits indicate that Wells
circumstances the price, and it must be signed by the party to be charged or by some one authorized to sign on his behalf." Cousbelis v. Alexander, 315 Mass. 729, 730 (1944) (quoting Des Brisay v. Foss, 264 Mass. 102, 109 (1928)). Option One's "in blank" assignment fails.
fargo was in possession of the Notes and the allonges as of May 4, 2009. Thus, Plaintiff's own
submission only demonstrates that Wells Fargo was in possession of the Note and the allonges
on May 4, 2009. Plaintiff has provided no testimony or evidence indicating who had possession
of the Note or the status ofthe allonges as of the operative dates - the Foreclosure Notice Dates
and the Foreclosure Sales Date. 8 In fact, it is unclear from Plaintiff's submission if the allonges
to the Note were even executed prior to either the Foreclosure Notice Dates or the Foreclosure
Additionally, although produced to Defendant's counsel, Plaintiff appears to have chosen
not to submit to the Court this third allonge .. See Collier Affidavit, ,,3, 4. The third Allonge To
Note is included in the closing file, and it is endorsed "Pay to the order of:
______ WITHOUT RECOURSE" from Rose Mortgage and signed by Michael
Petrucelli, Vice President. See attached at Exhibit XX. It appears to have been adjacent to a
Note, and the copy of the Note in the closing attorney's file is stamped "Certified to be a true
copy." The existence of a third allonge which was not submitted to the Court raises the very
issue of why the law requires an allonge must be affixed to a note. M.G.L. Ch. 106 § 3-204 ("For
the purpose of determining whether a signature is made on an instrument, a paper affixed to the
instrument is a part of the instrument"); See also Town of Freeport v. Ring, 727 A.2d 901, 905
(Maine 1999) (regarding nearly identical Maine statute court held Ita signature on a separate,
unattached piece of paper is not an indorsementof the instrument"), and Adams v. Madison
Realty & Development, Inc., 853 F.2d 163, 166 (3d Cir.1988) ("indorsement sheets ... not
8 Plaintiff also submitted to the Court a "bailee letter" which only further throws into question who held what when. The "bailee letter" is dated May 11, 2009 but was purported to transfer the "original documents" to Ablitt and Charlton to conduct the foreclosure on April 7, 2007. If the documents were transferred in May 2009 than Ablitt did not have them for the foreclosure. On the other hand, if the documents had been transferredprior to May 2009 than the affidavits of the American Home employees are inaccurate.
physically attached to the instruments in any way ... patently fail to comply with the explicit
Code prerequisite.") The requirement that an allonge be affixed to the note helps meet the dual
policy objectives of preventing fraud and preserving the chain of title to an instrument.
Southwestern Resolution Corp. v. Watson, 964 S.W.2d 262,264 (Tex. Comm'ri App.1997),
citing Adams v. Madison Realty & Development, Inc., 853 F.2d 163, 167 (3d Cir. 1988). In this
instance, these objectives are defeated by significant uncertainty surrounding how, when, or even
whether any of these three the allonges were ever physically attached to the note. Notably,
despite the Court's request for an Affidavit verifying the physical state of these documents
as of the date of the foreclosure sale, no Affiant has "spoken" as to the attachment of any of
the allonges on that date: or on any other date, for that matter. It is impossible to know
based on the various un-affixed and undated allonges who was the holder of the Note at the time
of the publication and sale of the foreclosure on the Ibanez property. And, of course, in
Massachusetts at least, the Note -lacking any Power of Sale-provides no authority to
foreclose, and otherwise does not convey with it "mortgagee' status. 9
(3). The Post-Foreclosure Assignment "confirmed" Nothing.
Not only does the Post-Foreclosure Assignment dated September 8, 2008 demonstrate
that Plaintiffwas not the holder of the Mortgage prior to that date, but this assignment was
incapable of conferring any for several additional reasons. First, if the Option One Blank
Assignment was valid, as Plaintiff argues, then Plaintiff would have been the holder of the
mortgage as of that date, and there would have been no need for the Post-Foreclosure
Assignment. As Plaintiff describes, however, as it was cleaning up the paperwork from the
9 A copy of the "Certified" Note, with the "affixed" (or adjacent) allonge, is included in the Exhibits to the Affidavit of Paul R. Collier, Ill. The only "sanctions" for non-payment provided in the Note are "Late Charges" and acceleration requiring payment of the full balance remaining on the Loan. This "Contract" carries no other authority, and, where the document is unambiguous, none can be jurisprudentially added.
foreclosure of Defendant's property, it was clear that the Option One Blank Assignment was
incomplete, and therefore invalid, so Plaintiffs counsel prepared the Post-Foreclosure
Assignment as a "Confirmatory" assignment to be completed in its stead. Third Mem., at 11-12.
Unfortunately, several fatal flaws invalidate the later assignment as well.
The Post-Foreclosure Assignment was executed by American Home, and not Option
One, which the evidence shows had been the mortgagee since the delivery of the Rose-Option
One Assignment dated December 5,2005. There is no indication in Plaintiffs June 8th
submission as to how American Home came in to possession of the Mortgage, other than the
conclusory statement that American Home was the "successor in interest" to Option One.
Without an assignment from Option One to American Home, or without some other evidence of
the transfer of Option One's interest in the Mortgage to American Home, Plaintiff has produced
no evidence that American Home had any authority to assign Defendant's Mortgage. On
information and belief, American Home acquired substantially all of the assets of Option One
pursuant to a Purchase Agreement dated as of March 17,2008 (the "Purchase Agreement"). 10
The Purchase Agreement indicates that Option One would assign certain assets to American
Home upon the closing of the Purchase Agreement. American Home has produced no evidence
to indicate that Defendant's mortgage was one of the assets assigned to American Home. It is
also important to note that the transaction contemplated by the Purchase Agreement was not a
statutory merger, through which American Home would have become the owner of all of Option
One's assets by operation oflaw. Rather, the Purchase Agreement provides that Option One
10 Purchase Agreement dated as of March 17, 2008, is by and among Option One, the entities listed on Exhibit A thereto, AH Mortgage Acquisition Co., Inc., and, for the limited purpose set forth in Section 4.05 thereof, H&R Block, Inc. The Purchase Agreement is available on the U.S. Securities and Exchange Commission's website at the following URL: http://tr.imJpvgw.
vvou1d execute an Assignment and Bill of Sale transferring certain assets. Purchase Agreement,
§ 1.05( c). Plaintiff has produced no evidence ofthis Assignment and Bill of Sale that may
indicate that American Home had any right to assign the Mortgage to Plaintiff.
And, in what can only be described as Charlie Chaplin-esque , the Plaintiff claims that
the 2006-2 Pass-Through Trust owned the mortgage as of the closing date (December 28, 2006),
lending greater doubt to the trustee's more recent claim that the mortgage was assigned to
American Home two years later. Third Mem., p. 8, ~3. And, were that not enough to extinguish
the later Assignment by Option One, equally fatal to this assignment is that the Foreclosure Sale
extinguished Defendant's Mortgage on July 5,2007; thus, as of September 2,2008, there was of
course nothing for either American Home or Option One to assign.
B. Plaintiff has submitted no documents that create or govern the trust, and no documents evidencing that Defendant's Mortgage Loan was ever acquired by the Trust.
(1) The Trustee's Failure to produce Trust Documents Required by the Private Placement Memorandum and Necessary to prove the Trust's Ownership is Fatal to the Trustee's Motion.
Realizing that the Mortgage, Note, assignments and allonges were insufficient to prove
Plaintiffs contention that it owned Defendant's Mortgage Loan on the Foreclosure Notice Dates
or the Foreclosure Sales Date, Plaintiff also offered to provide the Court with the documents that
created and governed the: relevant trust, and that evidenced the Defendant's Mortgage.Loan was
acquired by that trust. Pia in tiff has submitted no such documents.
Like all securitized trusts, Structured Asset Securities Corporation Mortgage Loan Trust
2006-2 (the "Trust", or "Issuing Entity") had to have been created by a trust agreement. Plaintiff
has submitted no trust agreement. In place of a trust agreement, Plaintiffhas submitted a Private
I/Bcement Memorandum (the "PPM") for the Trust. I I The PPM, however, does not create or govern the Trust. The PPM expressly indicates that the Trust "will be a common law trust
formed under the laws of the State of New York. The Issuing Entity will be created under the
Trust Agreement ... "
In addition, and even more troubling, Plaintiff has not submitted a single document
identifying "the blocks of mortgages sold into the Trust", or held by the Trust: despite the
express requirements of the Private Placement Memorandum filed with the Court:
Each Mortgage Loan (held by the Trust) will be identified in a schedule appearing as an exhibit to the Trust Agreement which will specify with respect to each Mortgage Loan, among other things, the original principal balance and the Scheduled Principal Balance as of close of business on the cut-off date, the Mortgage Rate, the Scheduled Payment, the Maturity date ... whether the Mortgage Loan is covered by a primary mortgage insurance policy and the Applicable Prepayment Premium provisions, if any.
Exhibit B to Third Mem., at 119 (emphasis added). That is, as of today, not a single document
has been filed that evidences that Defendant's Mortgage Loan was ever sold into the Trust. In
fact, the Loan Schedule for the Trust, submitted to the Court by a Third-Party, reveals that the
mortgage in question is conspicuously absent. See
Affidavits of Max Weinstein and
Thomas A. Tarter, and Affidavit of Marie McConnell, previously filed.
(2) The PPM does not demonstrate that Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2006-Z ever acquired or owned - Defendant's Mortgage Loan.
Plaintiff attempts to get around its failure to submit the Trust Agreement by relying upon
selective excerpts from the PPM. Even setting aside the question of the legal significance of the
11 Exhibit B to the PPM refers to the "Trust Agreement dated as of December 1, 2006, among Structured Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master Servicer, Wells Fargo, N.A. as Securities Administrator, Clayton Fixed Income Services Inc., as Credit Risk Manager, and U.S. Bank National Association, as Trustee ... " but the Trust Agreement itself is never provided by the Plaintiff.
ppM, the selected excerpts from the PPM that Plaintiff has cited to the Court do not demonstrate
that any specific loan - much less Defendant's Mortgage Loan -- was ever acquired by the
Plaintiff, as trustee of the 2006-2 Pass-Through Trust.
(a) The PPM does not provide any evidence that Plaintiff ever acquired
Defendant's Mortgage Loan.
The PPM states that the "Mortgage Loans will be acquired by the Depositor, Structured
Asset Securities Corporation from the Seller [Lehman Brothers] and the Depositor will, in turn,
convey such Mortgage Loans to the Trust Fund [Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2006-2]". PPM, at 66; Third Mem., at 5. Although
the PPM does note that 46.28% of the Mortgage Loans in the Trust ''were acquired by the Seller
from Option One Mortgage Corporation," Plaintiff has submitted no evidence to the Court that
Lehman, the Seller, ever acquired Defendant's Mortgage Loan from Option One. Also
Noticeably absent from Plaintiffs June 8th submission is any proof that the Depositor ever
acquired Defendant's Mortgage Loan from Lehman Brothers, or (even more significantly) that
the Trust ever acquired Defendant's Mortgage Loan from the Depositor (or any other entity, for
that matter). In fact, Plaintiff did not submit a single sales agreement or contract that even
references Defendant's Mortgage Loan despite the fact that the PPM requires that "each transfer
of the Mortgage Loans from the Seller to the Depositor and from the Depositor to the Trustee
will intended to be a sale of the Mortgage Loans and will be reflected as such in the Sale and
Assignment Agreement and the Trust Agreement, respectively." PPM, at 120. Plaintiff provides
no evidence that a true sale of the mortgage loan took place from the Seller to the Depositor to
The only evidence that the mortgage was transferred to the Trust is the Post-Foreclosure
Assignment, which is invalid not only for the reasons described above, but also because neither
nor the "Depositor" are evidenced to have ever held the Mortgage, and the
was not the entity that assigned the Mortgage to the Trustee in accordance with the
Based on the description of the Trust Agreement in the PPM (because the Trust
Agreement was never disclosed), there is no indication that the U.S. Bank, as trustee of the Trust,
had the authority to accept assets from any party other than the "Depositor." If this is the case,
the acceptance of the Mortgage by U.S. Bank pursuant to the Post-Foreclosure Assignment
would have been ultra vires and void. Est. Powers & Trusts § 7-2.4 (providing that under New
York law, acts by a trustee in contravention of an express trust are void)Y
(b). The allegation that Wells Fargo was in possession of the "Original
Loan Collateral File" on May 4, 2009 does not demonstrate that Plaintiff ever acquired Defendant's Mortgage Loan.
Based on the documents and affidavits that Plaintiff has submitted, the Court could only
conclude that Wells Fargo was in possession of Defendant's Mortgage Loan file on of May 4,
2009.13 From the record, the limited affidavit support provided by the Plaintiff, the Plaintiffs
failure to provide any proof that the Defendant's mortgage was ever conveyed to the Trust, and
the listing of the Trust's assets, and REO and foreclosure loans, it is wholly unlikely that the
Plaintiff is now or has ever been the holder of the Loan. Although the collateral file given to the
Court contains the original note and endorsements, Plaintiff s submission fails to authenticate
12 According to the PPM, the Trust is a REMIC; under the IRS tax code which prohibits certain transactions, including the transfer of an asset into the Trust after the closing date, if the Defendant's loan was transferred after
the closing date, it would be Subject to alOO% tax rate .. PPM, at 154. '" , "
13 The contents of the collateral file are not in accordance with the rules under the Trust Agreement as summarized in the PPM. Specifically, the PPM indicates that "the original mortgage note endorsed without recourse to the Trustee or in blank" as well as "an original assignment of the mortgage to the Trustee or in blank in recordable form" must be delivered to the Custodian. PPM, at 199. Under Massachusetts law, a recordable instrument must have a residence and address of mortgagee or assignee, MGL c. 183, s 6C, and street address MGL c. 183, s 6B and identification of the land at issue. MGL c. 183, s 6A. The assignment in blank fails to comply with these statutes, is therefore unrecordable, and not in compliance with the Trust Agreement, according to the PPM.
tfJst V.S. Bank ever purchased the Note, much less that the 2006-Z Pass-Through Trust was the holder of the note and mortgage at the time of the foreclosure. 14
IV. NEITHER REBA'S TITLE STANDARD 58
NOR ITS DOOMSDAY SCENARIO ALTERS THE STATUTORY COMMAND THAT ONLY MORTGAGEES MAY FORECLOSE
BY SALE UNDER G.L. c.244 SECTION 14
In the blunt words of title doctrine " ... (U.S. Bank) could not convey what (it) did not
own." Powers v. Orr, 10 Land Court Reporter 137 (February 15, 2002). As U.S. Bank was not
"mortgagee", it could not convey the mortgaged premises even to itself: much less to a public
bidder needing clear, conveyable title. That is, neither a note holder nor e future mortgage
assignee holds a mortgage; consequently, as this Court, and others, recognize, even has U.S.
Bank been a note holder or a future mortgagee, it could not conduct a foreclosure sale and sell
the Ibanez property:
Delivery and seisin of a deed of land to which the grantor has no title does not effect a disseisin.
Cornwall v. Forger, 27 Mass. App. 336,341 (1989). And, despite the vigorous advocacy of
REBA's Title Standard 58,15 a voluntary private association's statement of sound practice
provides no basis to judicially amend the legislature's judgment that mortgagees - and only
14 In fact, the PPM informs investors that "the terms of any custodial agreement under which those services are provided by Wells Fargo are customary of the mortgage-backed securitization industry and provide for the delivery, receipt, review and safekeeping of mortgage loan files." PPM, at 119. Therefore, if a custodian agreement was executed, it would have required that the Custodian review the Mortgage File within a specified period of the closing date and deliver to the Seller and the Trustee a certification that the original note and mortgage are in the file. See e.g. Larace PSA, Exhibits F-I "Form of Trustee's Initial Certification" & F-2 "Form of Receipt of Mortgage Note." No such certifications or receipts were proffered by the Plaintiff to demonstrate that the Ibanez Original Note was in the file.
Or, as the Land Court held in rejecting an effort to determine title on the basis of a REBA Title Standard:
In any event, the court rejects the ... argument which cornflates a standard of professional responsibility with the law ...
Sullivan v. Leonard, 13 Land Court Reporter 482,484 (September I, 2005; Piper,J.).
Jlfortgagees - may foreclose by sale. Cornwall, id at (Mass. Conveyancers Assoc. Title Standard is a "rule of thumb"; while "revision of established law ... is, however, a task
properly within the province of the legislature").
V. FROM THE RECORD TAKEN AS A WHOLE, THE TRUSTEE'S
FAILURES TO COMPLY WITH CONVEYANCING LAW, ITS FAILURES TO EITHER MAINTAIN OR TO PROVIDE THE RECORDS REQUIRED BY ITS OWN PPM, ITS PROVISION OF AL TERED AND/OR UNDATED RECORDS, AND THE ABSENCE OF THE IBANEZ MORTGAGE FROM THE TRUST'S OWN BLOOMBERG REPORTING MERITS DENIAL OF THE TRUSTEE'S MOTION TO VACATE JUDGMENT.
Despite the Court's clear suggestion, U.S. Bank, Trustee has provided no Affiant
documenting the authenticity or integrity of the "collateral file" as of the date of the foreclosure
notices and sale. From the records actually provided, however, a comparison of the Mortgage
Assignments produced in "informal discovery" with those filed with the Court establishes
conclusively that someone in the "chain of custody" altered Mortgage Assignments after their
original execution and notarization. 16 That is, the "Rose Mortgage Assignment" to Option One
was altered after execution and notarization by at least handwritten additions, changes in
addresses, and identification of the assignee.
Similar flaws impeach the integrity of the "Allonges" the Trustee claims bring the Note
into the Trust. Specifically, the Trustee's "Collateral File" contains not only the adulterated
Mortgage Assignment, but an "Allonge to Note" endorsed to "Option One Mortgage
Corporation" by Ralph Vitiello, "Chief Executive Officer", succeeded by a Notarization that on
Exhibit 1A attached, is clearly the "Assignment of Mortgage", as executed by Ralph Vitiello, Chief Executive Officer of Rose Mortgage, Inc. stamped "Certified to be a True and Accurate copy of the Original", and produced by Trustee counsel to Ibanez counsel. Compare to the "Assignment of Mortgage", at p. 29 of the Trustee's Exhibit A. The return address "Rose Mortgage, Inc." has been "whited out", and replaced with an address for Option One in California. Book, page and dates have been handwritten into the document, and Option Ones stamp added to the assignment line. Both have the same notarized endorsement and the same date ("12/08/05"), but neither has a corporate seal or a notarized seal. [Exhibit 1, 1B attached] These two documents alone demonstrate the willingness of the parties to alter documents - even after execution and notarization, without disclosure.
;'1tl/05 Ralph Vitiello ... Executive Vice President of Rose Mortgage, Inc. "executed this IIVU
illstrUIllent".17 However, in the Loan Origination File - presumably the actual loan documents
_ appears an "Allonge to Note", on an identical from, handwritten, endorsed "Pay to the order of
___ [blank], WITHOUT RECOURSE", which is executed by "Michael Pettrucelli, Vice
President", and is, at least in the Origination file from the closing, "appended" by file clamps to
an Adjustable Rate Note identified as "Certified to be a True Copy." Collier Affidavit, Exhibit
3. Similarly, the Trustee's dispute that proof of title "in recordable form' is not required is not
only contrary to the law, but it borders on irony: as the Trustee's own Private Placement
Memorandum expressly requires that every Mortgage Assignment of a Loan to be held in
this Trust be "in recordable form." PPM at 199.
Similarly, and despite the explicit requirements of the Private Placement Memorandum
offered by the Trustee to support its claims and the court's requests, the trustee has never
provided any identification of the Mortgage Loans purportedly held in the 2006-Z Pass-Through
Trust. The Trustee's failure to affirmatively meet its burden to prove ownership of the Ibanez
loan becomes even more incredible upon research of the international reporting sources
identifying the Trust' a actual assets. That is, the sale of these loan packages itself depends on
investors and prospective investors having access to financial information for the "Structured
Asset Securities Corporation Mortgage Pass - Through Certificates, Series 2006-Z." While
publicly-traded securitization assets are registered with the Securities and Exchange
Commission, privately traded securitization assets are identified in filings available through
A copy of the "Collateral" file of Rose Mortgage is attached as Allonge 2b, and the Loan cLOSING File Allonge is 2a, to the Affidavit of Paul R. Collier, III.
....... L'~.O Professional Service. 18 Through Bloomberg, two separate searches have examined
assets held in the Series 2006-Z Pass- Through. 19 Neither of these Series 2006-Z filings
. identified any Mortgage Loan owned by the Trust in the Ibanez loan amount; neither 2006-Z
Pass- Through filing search showed such a mortgage, in Massachusetts, in foreclosure. Indeed,
while these filings purport to identify Trust assets, neither 2006-Z filing provides any evidence
that the Ibanez loan is now, or ever has been, owned by the Trust. And the Private Placement
fC Memorandum's express requirement of "identified" Mortgage loans speaks loudly in this silence.
U.S. Bank, Trustee has utterly failed to establish that the 2006-Z Pass-Through Trust was
the mortgagee of the Ibanez property on the dates that the Trustee advertised and sold the
property to itself. Absent mortgagee authority, the foreclosure sale was invalid. The Trustee's
Motion to Vacate this Court's Judgement should be denied.
PlUiRCOllier, III, Esq
Attorney At Law
675 Massachusetts Ave., lih Floor Cambridge, MA 02139 617-441-3300, Ext. 202
Max Weinstein, BBO# 600982 WilmerHale Legal Services Center of Harvard Law School
122 Boylston Street
Jamaica Plain, MA 02130
See Affidavit of Thomas A. Tarter, filed herewith, to the effect that Bloomberg data compilations are routinely relied upon by the public, and by those engaged in fmancial and banking service sectors for their activities.
See Affidavit of Max Weinstein, attached hereto, and Affidavit of Marie McConnell, previously submitted.
Eloise P. Lawrence BBO #655764 David Dineen BBO # 661242
Greater Boston Legal Services 197 Friend Street
Boston, MA 02114
Dated: June 29, 2009
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