COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

_____________________ NO. SJC-11101 ________________________________

HSBC BANK USA, N.A. & ACE SECURITIES CORP. HOME EQUITY LOAN TRUST SERIES 2005-HE4 Plaintiff-Appellee, V. JODI B. MATT Defendant-Appellant, _________________________________ ON APPEAL FROM AN ORDER OF FINAL JUDGMENT FROM THE LAND COURT ________________________________________ AMICUS CURIAE OF ROBERT P. MARLEY ______________________________________________

Robert P. Marley Pro-se 18 Lakeview Drive Lynnfield, MA 01940 781-844-3044 Marley0685@comcast.net March 6, 2012

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TABLE OF CONTENTS

I. II.

TABLE OF AUTHORITIES……………………………….…iii, iv, v & vi STATEMENT OF INTEREST OF AMICUS CURIAE…………………………1

III. STATEMENT OF THE ISSUES……………………………………………….…....…2 IV. ARGUMENT…………………………………………………………………….…………………………….…2 A) Examination Of Standing Begins And Hinges At The Trust Level and Standing Can Only Derive from the Trust Instrument’s………………………7

V.

A BASIC TENANT OF LAW REQUIRES THAT THE PROPER PARTIES ARE BEFORE A COURT OF LAW, JURISDICTIONALLY AND SUBSTANTIVELY……………………………….14 THE APPELLEE TRUST HAS NO STANDING TO BRING AN ACTION UNDER THE SERVICEMEMBERS ACT BECAUSE THERE HAS BEEN NO VALID ENFORCEABLE ASSIGNMENT TO THE TRUSTEE OF THE TRUST…………………….16 A) The Appellee Trust Is A New York Common Law Trust Controlled By New York Law Based on Its Trust Instrument’s………………………………………….16 The Trust Instrument’s Sets Forth An Unambiguous Time, Method And Manner Of Funding The Trust……………………………………………………………….21

VI.

B)

VII. THE TRUST AGREEMENT PROVIDES THE ONLY MANNER IN WHICH ASSETS MAY BE PROPERLY TRANSFERRED TO THE TRUST AND ANY ACT IN CONTRAVENTION OF THE TRUST AGREEMENT IS VOID…………………………………………………………….23 A) B) Transfer Of Assets To The Trust Must Be Pursuant To The Trust Instrument’s……………23 New York Law Governs the Mandatory Obligations To Effectively Transfer An Asset To A Trust………………………………………………………………….28

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I.

TABLE OF AUTHORITIES

MASSACHUSETTS CASES Bello v. South Shore Hospital, 384 Mass. 770, 778 (1981)…………………………………………………………………….15 285 Lynn Shore Drive Condominium Trust v. AUTOMATIC SPRINKLER APPEALS BOARD, 47 Mass. App. Ct. 437, 441 (1999)…………………………………………………14 Ginther v. Commissioner of Insurance, 427 Mass. 319, 322 (1998)…………………………………………………………………….15 US Bank National Association v. Ibanez, 458 Mass. 637 (2011)………………………………………………………………………………….39

NEW YORK CASES AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 2008 N.Y. Slip Op. 5766, 7 (N.Y. 2008)………………………………….33 Allison & Ver Valen Co. v. McNee, 170 Misc. 144, 146 (N.Y. Sup. Ct. 1939)……………………………….40 Brown v. Spohr, 180 N.Y. 201, 73 N.E. 14, 17 (1904)…………………………4, passim Burgoyne v. James, 282 N.Y.S. 18, 21 (1935)……………………………………………………………………….29 Corp. v. Bankers Trust Co., 151 Misc. 2d 334, 336 (N.Y. Sup. Ct. 1991)…………………………24 Green v. Title Guarantee & Trust Co., 223 A.D. 12, 227 N.Y.S. 252 (1st Dept.), aff’d, 248 N.Y. 627 (1928)……………………………………………………………………………………………….33 Gruen v. Gruen, 68 N.Y.2d 48, 56 (N.Y. 1986)…………………………………………………………….30

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Hazzard v. Chase National Bank, 159 Misc. 57, 287 N.Y.S. 541 (Sup. Ct. 1936)……………………33 Heller v. Pope, 250 N.E. 881, 882 (N.Y. 1928)………………………………………………………….32 In re Becker, 2004 N.Y. Slip Op. 51773U, 4 (N.Y. Sur. Ct. 2004)………29 In re Doman, 68 A.D.3d 862, 890 N.Y.S.2d 632,634(2dDep't2009…………….4 In re Estate of Plotkin, 290 N.Y.S.2d 46, 49 (N.Y. Sur. 1968)…………………………………………29 In Re IBJ Schroder Bank & Trust Co., 271 A.D.2d 322 (N.Y. App. Div. 1st Dep’t (2000))…20,34 In re Nat’l Commer. Bank & Trust Co., 257 A.D. 868, 869-870(N.Y. App. Div.3d Dep’t(1939)..37 Kermani v. Liberty Mut. Ins. Co., 4 A.D.2d 603 (N.Y. App. Div. 3d Dep’t 1957)…………………….31 Martin v. Funk, 75 N.Y. 134, 141 (1878)…………………………………………………………………………….4 Morlee Sales Corp. v. Manufacturers Trust Co., 172 N.E.2d 280, 282 (N.Y. 1961)…………………………………………………….32 Phillippsen v. Emigrant Indus.Sav. Bank, 86 N.Y.S.2d 133, 137-138 (N.Y. Sup. Ct. 1948)……………….36 Schmidt v. Magnetic Head Corp., 468 N.Y.S.2d 649, 654 (N.Y. App.Div. 1983)……………………….32 Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep’t 1978)………….31,35 United States Trust Co. v First Nat’l City Bank, 57 A.D.2d 285, 295-296 (1977)………………………………………………………….19 Vincent v. Putnam, 248 N.Y. 76, 82-84 (N.Y. 1928)…………………………………………………………36 Wells Fargo Bank v. Farmer, 2008 N.Y. Misc Lexis 3248………………………………………………………………………31

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Wells Fargo Bank, N.A. v. Farmer, 2008 NY Slip Op 51133U, 6 (N.Y. Sup. Ct. 2008)…….31,35 HSBC BANK USA, NA v. SENE, 2012 NY Slip Op 50352 - NY: Supreme Court (2012)…………42

FEDERAL CASES Agudas Chasidei Chabad of U.S. v. Gourary, 833 F.2d 431, 434 (2d Cir.1987)……………………………………………………….4 In re Dreier LLP, 452 BR 391 Bankr. Court, SD New York (2011)……………………….5 LFD Operating, Inc. v. Ames Dep't Stores, Inc. (In re Ames Dep't Stores, Inc.), 274 B.R. 600, 623 (Bankr.S.D.N.Y.2002)…………………………………….4 Mayfield v. First ’Nat’l Bank of Chattanooga, 137 F.2d 1013 (6th Cir. 1943)………………………………………………………….29 Meckel v. Continental Resources, 758 F.2d 811, 816 (2d Cir. 1985)………………………………………………….33

MISCELLANEOUS CASES Grant Trust & Savings Co. v. Tucker, 49 Ind. App. 345, 353, 96 N.E. 487, 489 (1911)………………………….37 Furenes v. Eide, 109 Iowa, 511, 80 NW 539 (1899)………………………………………………………………………………………….37 Dickeschied v. Exchange Bank, 28 W. Va. 340, 368 (1886)………………………………………………………………….37 Love v. Francis, 63 Mich. 181(1886)……………………………………………………………………………………….37

STATUTORY LAW

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MASSACHUSETTS GENERAL LAWS C. 266 Section 35A……………………………………………………………………………………….12 New York Estates, Powers & Trusts,(EPTL) Part 2 - § 7-2.4…………………………………………………………………………11, passim New York Estates, Powers & Trust, 7-2.1(c)………………………………………………………………………………………………………….31,38 Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq.(ACT)……………………………….………………14 USC : TITLE 26 - INTERNAL REVENUE CODE PART IV - REAL ESTATE MORTGAGE INVESTMENT CONDUITS SECTION 860 A – G…………………………………………………………………………………………………………………………………………passim

OTHER AUTHORITIES Comptroller of the Currency of the United States Treasury, Safety and SoundnessHand-Book (Asset Securitization) http://www.occ.treas.gov/publications/publications-bytype/comptrollers-handbook/assetsec.pdf ……………………………………....6 Pooling & Servicing Agreement Dated June 1, 2005 http://www.sec.gov/Archives/edgar/data/1331559/000088237705 001857/d348511.txt …………………………………………………………………………………………………………………………………10, passim Prospectus Supplement Dated June 23, 2005 http://www.sec.gov/Archives/edgar/data/1063292/000093041305 004629/c37978_424b5.txt …………………………………………………………………………………………………………………………………10, passim Mortgage Loan Purchase Agreement (MLPA) Dated Feb 1, 2006 from series 2006-HE1 http://www.sec.gov/Archives/edgar/data/1353171/000088237706 001569/d444644_ex4-1.htm ………………………………………………………………………………………………………………………………………………………25

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II.

STATEMENT OF INTEREST OF AMICUS CURIAE This is the second time your Amicus has been

compelled to file a Brief as a Friend of the Court. Your pro-se Amicus is a lifelong resident of Massachusetts and he has studied and investigated the matter of Securitization of Asset Backed Securities extensively for the past three years. Your Amicus believes this Brief would be desirable to this Honorable Court because it explains and simplifies the issues of a Securitized REMIC Trusts, the road the note and mortgage must traverse, what laws control, and whether those laws were tracked, as it relates to the securitization of the note and mortgage at issue that would grant or deny the Appellee’s in the above captioned matter, legal standing in any Massachusetts Court of Law. As a concerned citizen and homeowner embroiled in the current foreclosure crisis which has sparked a Nationwide Controversy, your Amicus has an interest in the instant action. Your Amicus respectfully submits this Brief without hyperbole or rhetoric.

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III. STATEMENT OF THE ISSUES This Brief focuses on the ramifications of late Assignment of Jodi B Matt’s (Appellant) Note and Mortgage and limited issues of the REMIC Trust, HSBC BANK USA, N.A as Trustee and ACE Securities Corp. Home Equity Loan Trust Series 2005-HE4, collectively (Appellee Trust), the Trust Instrument’s, New York Statutory and Black Letter Law, and the IRS Code. Further, what is required to insure the Trust legally possesses the Note and Mortgage (Asset), which would give the Appellee Trust or any party bound by the Trust Instrument’s, a legal, enforceable right in the Note or Mortgage whereby the parties to the Trust Instruments could have standing in any legal action whatsoever. The combined Trust Instruments are well over a thousand pages therefore, the references made herein are the bare minimum required to demonstrate the Appellee Trust never owned the Asset in the instant matter and never will.

IV.

ARGUMENT This Honorable Court has solicited amicus briefs

on whether the Land Court Judge correctly concluded

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that a bank had standing to commence an action to determine whether the defendant (alleged to be in breach of her mortgage obligations) was entitled to the benefits of the Servicemembers Civil Relief Act on the ground that the bank had a contractual right to become the holder of the note and mortgage. To give standing to the Appellee Trust on future, unattainable rights, was erroneous and respectfully, the Land Court (Long, J.) needed to look no further than the late assignment of mortgage CREATED on November 6, 2007 and recorded on November 16, 2007 in the Norfolk County Registry of Deeds. Notwithstanding any other law, the Final Authority as it relates to the assignment of the note and the conveyance of the mortgage to the Securitized Trust created under the Laws of New York are New York

Laws and the Pooling & Servicing Agreement (PSA) dated June 1, 2005. Trust: “The Depositor does hereby establish, pursuant to the further provisions of this Agreement and the laws of the State of New York, “an express trust” to be known, for convenience, as "ACE Securities Corp., Home Equity Loan Trust, Series 2005-HE4" and does hereby appoint HSBC Bank USA, National See PSA § 2.10 Establishment of the

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Association as Trustee in accordance the provisions of this Agreement.”1

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See also PSA § 12.04. Governing Law: This Agreement shall be construed in accordance with the laws of the State of New York and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws without regard to conflicts of laws principles thereof.

“Under New York law, "[a] valid express trust requires (1) a designated beneficiary, (2) a designated trustee, (3) a fund or other property sufficiently designated or identified to enable title of the property to pass to the trustee, and (4) actual delivery of the fund or property, with the intention of vesting legal title in the trustee." In re Doman, 68 A.D.3d 862, 890 N.Y.S.2d 632, 634 (2d Dep't 2009) (citing Brown v. Spohr, 180 N.Y. 201, 73 N.E. 14, 17 (1904)). An express trust may be created orally or in writing; no particular form of words is necessary. Agudas Chasidei Chabad of U.S. v. Gourary, 833 F.2d 431, 434 (2d Cir.1987) (citing Martin v. Funk, 75 N.Y. 134, 141 (1878)). See also LFD Operating, Inc. v. Ames Dep't Stores, Inc. (In re Ames Dep't Stores, Inc.), 274 B.R. 600, 623 (Bankr.S.D.N.Y.2002) ("An express
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Referenced in Article II of the PSA

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trust is a fiduciary relationship with respect to property, subjecting the person by whom the title to property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it. Generally, four elements comprise an express trust: (i) a designated beneficiary; (ii) a designated trustee who is not the beneficiary; (iii) a fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee; and (iv) the actual delivery of the fund or other property, or the legal assignment thereof to the trustee, with the intention of passing legal title thereto to him or her as trustee.") (internal quotation marks omitted) (quoting RESTATEMENT (SECOND) OF TRUSTS § 2 (1959)). In re Dreier LLP, 452 BR 391 Bankr. Court, SD New York (2011) No standing or rights ascribes to the Appellee Trust whereas, the terms set forth in the Trust Instruments were violated and the mere fact the New Century Mortgage created the above assignment in 2007

is evidence one did not exist in 2005 as set forth more fully infra.

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Your Amicus does not brief the issues based on a Third Party Beneficial Interest to the Contracts and merely points out that the Parties are duty bound by the Trust Instrument’s and must adhere to those Instrument’s and if they do not, then New York Law, inter alia, deems the Party’s action void. The rights and duties bestowed on the Parties of the Trust only derived from the Trust Instrument’s and to shed light on whether these Rights exist, we must refer to the Instruments of the Trust. Alternatively, all Borrowers are Third Party Beneficiaries to the Trust and Trust Instrument’s. Your Amicus would refers this Honorable Court’s attention to the, Office of the Comptroller of the Currency of the United States Treasury, Safety and Soundness Hand-Book (Asset Securitization).2 Particularly stated, “Borrowers benefit from the increasing availability of credit on terms that lenders may not have provided had they kept the loans on their balance sheets”. (Benefits of Asset Securitization), @ p. 4.

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http://www.occ.treas.gov/publications/publicationsby-type/comptrollers-handbook/assetsec.pdf

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“These benefits, which may increase the soundness and efficiency of the credit extension process, can include a more efficient origination process, better risk diversification, and improved liquidity. A look at the roles played by the primary participants in the securitization process will help to illustrate the benefits”. (Parties to the Transaction) @ p. 7, see also, Chart on p. 8, where borrowers reside at the top of the food chain. Borrowers are the intended third

party beneficiaries of the freed up cash flow from the trusts whereas, without the trusts, there would be no money for the borrowers as is the stated intention of the Securitization Players. Your Amicus respectfully request that the Honorable Justices take Judicial Note of the Public Records from the various Government entities cited herein the footnotes.

A)

Examination Of Standing Begins And Hinges At The Trust Level And Standing Can Only Derive From The Trust Instrument’s With all due respect to the Land Court (Long,

J.), your Amicus submits that it was Error of Law, to consider the future contractual rights of HSBC BANK

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USA, N.A. and ACE Securities Corp. Home Equity Loan Trust Series 2005-HE4 (Appellee Trust). To determine standing—without first considering and determining—if delivery and acceptance of the Asset perfected and dominion and control over the Assets was relinquished by the giver of the Asset pursuant to the Law thereby giving the Trust control over the Asset. To give standing on a future, unattainable right that is Expressly Prohibited by Local law, PSA and the IRS Code, was erroneous. The Vault Door to the Appellee Trust was Welded shut on September 27, 2005 to the loan at issue whereas, the Affidavit filed by Sharon Mason states the loan at issue was purchased on September 6, 2005, albeit without proof. See Supplemental Affidavit of Sharon Mason, dated May 13, 2010, @ p. 2, ¶ 4 attached to the Appellant’s record (A-96). Even more

inexplicable is that the evidence submitted to the Land Court suggested that the Asset at issue was in ACE Securities Corp. Home Equity Loan Trust Series 2005-HE2 and Not in Series 2005-HE4 as claimed. See Appellant’s Record (A-191,195).

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If there were a legal assignment of the Asset to the Appellee Trust on September 6, 2005, then the need to create one on November 6, 2007, would not have been required. Most telling is that in the mortgage assignment of November 6, 2007, is that New Century Mortgage—notwithstanding the fact was in bankruptcy— also assigned the Note, clearly indicating, the Appellee Trust never legally possessed [it] on or before September 27, 2005. See Mortgage Assignment attached to the Appellant’s record as A-26. The Appellee Trust in the instant action lost their rights in the Asset when they violated New York Law, inter alia, and therefore, had no standing in the Massachusetts Land Court. The Land Court was on the right track, yet did not go far enough in its inquiry related to the Trust, and what was required for the Trust too legally acquire the Assets. Had the Court gone further, it

would have realized, it needed go no further than the late assignment created on November 6, 2007. The Memorandum and Order (Memo) of the Land Court, in the above captioned matter, states in pertinent part, “the record clearly shows that HSBC has a contractual right to become that holder,

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conferred by the ACE Securities Corp. Home Equity Loan Trust, Series 2005-HE4 Asset Backed Pass-Through Certificates Pooling and Servicing Agreement (Jun. 1, 2005). See Section 2.01 (Conveyance of the Mortgage Loans to Ace Securities Corp. Home Equity Loan Trust, Series 2005-HE4) and the “associated loan schedules” (which include the Matt loan and mortgage)”. (Emphasis added). The Assignment or Mortgage dated November 6, 2007, to the Appellee Trust was an Unlawful Assignment. There is no legal, valid, enforceable assignment of the note and conveyance of the mortgage to the Appellee Trust, unless it complies with the mandates of Trust Instruments, IRS 860A-G and New York Law as explained more fully infra. The Appellee Trust was created by the terms set forth in the Trust Instruments, Pooling & Servicing Agreement (PSA),3 dated June 1, 2005, with the

“closing date” of June 29, 2005, and the Prospectus Supplement (PS) dated June 23, 2005.4 All the Assets

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http://www.sec.gov/Archives/edgar/data/1331559/0000882 37705001857/d348511.txt
4

http://www.sec.gov/Archives/edgar/data/1063292/0000930 41305004629/c37978_424b5.txt

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Must have be assigned to the Trust on the Closing Date. See PS @ S-2. trust will contain “On the 6,429 closing date, the

conventional,

one- to

four-family, first and second lien fixed-rate and adjustable-rate mortgage loans on properties (the "Initial Mortgage residential Loans"). real

The evidence is clear that the above-mentioned assignment was not created and executed within the permitted period. Accordingly, no rights derived from the Appellee Trust and as a result, the Appellee Trust has no rights in the note and mortgage and therefore, no standing whatsoever in any action at law. Contrary to New York Law and IRS 860 the Appellee Trust exercised a prohibited act on November 6, 2007 and the above assignment was contrary to the Trust Instruments and therefore Void pursuant to IRS 860A-G and New York Estates, Powers & Trusts - Part 2 - § 72.4. “Any action which deviates from the Trust documents is void. § 7-2.4 Act of trustee in contravention of trust If the trust is expressed in the instrument creating the estate of the trustee, every trustee sale, conveyance or other act of the

in contravention of the trust, except as

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authorized by this article and of law, is void”.

by any other provision

No possession of the Asset exists until there has been a delivery and an acceptance of the Asset and the giver of the Asset has relinquished all dominion and control over the Asset signifying a true sale of the Asset to the Appellee Trust thereby making the Asset, inter alia, bankruptcy remote and securely within the Trust Vault. The failure of New Century Mortgage to timely assign the Asset to the Appellee Trust and the Appellee Trust to discover this Fact, makes any future attempts after the “closing date” had past, void pursuant to New York Law, and the late assignment was a prohibited act pursuant to IRS 860G as not being a qualified mortgage. Moreover, the parties Knew they had no authority to alter the composition of the Trust as demonstrated infra and the late assignment further violated M.G.L. c. 266 § 35A. A threshold matter to determine that the Appellee Trust had standing in the Land Court was to determine whether the Appellee Trust legally possessed the Asset. Clearly, the record dictates the Trust did not, as evidenced by the unlawful assignment two plus years

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after the “closing date” of the Trust. Moreover, the Land Court acknowledges in the Memo at p. 2, “Indeed, it is not clear from the record that HSBC is the current holder of either the note or the mortgage”…. Further stating, “But a plaintiff need not be the current holder of the note or the mortgage to have standing in a Servicemember’s case. It is sufficient if the plaintiff satisfies the general requirements of standing”. It is axiomatic to standing to have an enforceable right under the note and mortgage, without such, there is no reason to file under the Servicemembers Act. Whereas, there is no justiciable controversy in that, the Appellee Trust has no rights because those rights do not exist whereas they do not own or hold the note and mortgage or have an enforceable right under such therefore, Appellee Trust cannot suffer harm and no jurisdictional issue arises. Therefore, the Appellee Trust could not invoke the subject matter jurisdiction of the Land Court. In a securitized mortgage, the rights of the parties derive from the Trust Instruments created under New York Law. If the Appellee Trust has violated the terms of the Trust Instruments, then they have no

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rights because New York Law voids any action, which contravenes the Trust Instruments. Accordingly, in light of the evidence in the record from the Land Court, logically, Appellee’s were one, claiming to be that of which they were not, making them charlatans without standing and not a proper party before a court of law as set forth more fully infra.

V.

A BASIC TENANT OF LAW REQUIRES THAT THE PROPER PARTIES ARE BEFORE A COURT OF LAW, JURISDICTIONALLY AND SUBSTANTIVELY A precursor to a foreclosure action in

Massachusetts is the filing of a civil complaint in accordance with the Servicemembers Civil Relief Act 50 U.S.C. App. § 501 et seq. (ACT). In any action at law, only the proper party may bring a Legal Action. law, the proper party is the one who actually possesses the substantive right being asserted and has a legal right to enforce the claim (under applicable substantive law). “A party has standing when it can allege an injury within the area of concern of the statute or regulatory scheme under which the injurious action has occurred”. 285 Lynn Shore Drive Condominium Trust v. In

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AUTOMATIC SPRINKLER APPEALS BOARD, 47 Mass. App. Ct. 437, 441 (1999). “Even if there is an actual controversy, a plaintiff must demonstrate the requisite legal standing to secure its resolution”. Bello v. South Shore Hospital, 384 Mass. 770, 778 (1981). “We treat standing as an issue of subject matter jurisdiction. See Doe v. The Governor, 381 Mass. 702, 705 (1980). "The question of standing is one of critical significance. `From an early day it has been an established principle in this Commonwealth that only persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government.' " Tax Equity Alliance v. Commissioner of Revenue, 423 Mass. 708, 715 (1996), quoting Doe, supra at 704”, Ginther v. Commissioner

of Insurance, 427 Mass. 319, 322 (1998). Accordingly, as a threshold matter, the party bringing the action under the ACT would have to demonstrate a legal right to the debt and demonstrate they have suffered harm. If an agent on behalf of owner, proof of agency; how the party came by the

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right to enforce the debt (Note); proof of such right by way of assignment, indorsement and proof of delivery and acceptance of the note and conveyances of the mortgage pursuant to the statutes of fraud. The

Late Assignment of mortgage dated November 6, 2007 is clear evidence the Appellee Trust had no standing in the Land Court as set forth infra. If the moving party cannot demonstrate these threshold relationships and proof of said relationships through an unbroken chain of title, then, such as the Appellee Trust here in the instant action, it has no legal standing to bring an action under the ACT.

VI.

THE APPELLEE TRUST HAS NO STANDING TO BRING AN ACTION UNDER THE SERVICEMEMBERS ACT BECAUSE THERE HAS BEEN NO VALID ENFORCEABLE ASSIGNMENT TO THE TRUSTEE OF THE TRUST The Appellee Trust Is A New York Common Law Trust Controlled By New York Law Based On Its Trust Instrument’s Because Jodi B. Matt’s (Appellant) loan

A)

securitized in 2005—it must stand that when the Appellee Trust filed under the ACT—they filed as the purported legal owner and holder of the note and had a legal right to enforce the mortgage. The Trust is not

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the originator of the mortgage, the servicer, or even a bank. Instead, this entity is a New York Common Law Trust created by an agreement known as the “Pooling and Service Agreement” (PSA). Purportedly, the Appellant’s loan, along with 8,553 other loans, were pooled into a REMIC Trust and converted into residential mortgage-backed securities (RMBS) that are bought and sold by investors — a process known as securitization, as certificates. See PS @ S-2 Mortgage Loans. The PSA also incorporates by reference @ § 2.01, a separate document called the Mortgage Loan Purchase Agreement (MLPA). These documents, and the acquisition of the mortgage assets for the Trust, are controlled by New York Law pursuant to PSA § 12.04 & 12.10 supra. REMIC’s are widely used securitization vehicles for mortgages and are governed by sections 860A through 860G of the Internal Revenue Code Section 860D (a) (4) of the Code provides that an entity qualifies as a REMIC only if, among other things, as of the close of the third month beginning after the startup day and at all times thereafter, substantially all of its assets consist of qualified mortgages and permitted investments.

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This asset test is satisfied if the entity owns no more than a de minimis amount of other assets. See § 1.860D–1(b) (3) (i) of the Income Tax Regulations. As a safe harbor, the amount of assets other than qualified mortgages and permitted investments is de minimis if the aggregate of the adjusted bases of those assets is less than one percent of the aggregate of the adjusted bases of all the entity’s assets. § 1.860D–1 (b) (3) (ii). With limited exceptions, a mortgage loan is not a qualified mortgage unless it is transferred to the REMIC on the startup day in exchange for regular or residual interests in the REMIC. See § 860G (a) (3) (A) (i). See PSA @ § 11.01 (b): The Closing Date is hereby designated as the "Startup Day" of each Trust REMIC within the meaning of Section 860G(a)(9) of the Code. The legislative history of the REMIC provisions indicates that Congress intended the provisions to apply only to an entity that holds a substantially fixed pool of real estate mortgages and related assets and that “has no powers to vary the composition of its mortgage assets.” S. Rep. No. 99–313, 99th Cong., 2d Sess. 791–92; 1986–3 (Vol. 3) C.B. 791–92. Section 860F (a) (1) imposes a tax on a REMIC equal to 100 percent of the net income derived from “prohibited transactions.” The disposition of a qualified

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mortgage is a prohibited transaction unless the disposition is pursuant to (i) the substitution of a qualified replacement mortgage for a qualified mortgage; (ii) a disposition incident to the foreclosure, default, or imminent default of the mortgage;(iii) the bankruptcy or insolvency of the REMIC; or (iv) a qualified liquidation. Section 860F (a) (2) (A). The underlying promissory notes of every mortgage purportedly held by the Appellee Trust serve to generate a potential income stream for investors. The Trust, purportedly holding the Appellant’s note and mortgage was created on June 1, 2005, and by its terms, set a “cut off” date at June 1, 2005 and “closing date” of June 29, 2005. The terms of the Trust are contained in the PSA, which creates the Trust and defines the rights, duties and obligations of the parties to the Trust Agreement. It is settled that the duties and powers of a trustee are defined by the terms of the trust agreement and are tempered only by the fiduciary obligation of loyalty to the beneficiaries. See, United States Trust Co. v First Nat’l City Bank, 57 A.D.2d 285, 295-296 (1977), aff’d 45 NY2d 869 (1978); Restatement [Second] of Trusts § 186, comments a, d).

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See, In Re IBJ Schroder Bank & Trust Co., 271 A.D.2d 322 (N.Y. App. Div. 1st Dep’t (2000)). The PSA was filed under oath with the Securities and Exchange Commission. The Trust, suing through its Trustee (HSBC), is a New York Corporate Trust formed to act as a “REMIC” Trust pursuant to the U.S. Internal Revenue Code (IRC). Pursuant to the terms of the Trust and the applicable Internal Revenue Service (IRS) regulations adopted and incorporated into the terms of the Trust, the “closing date” of the Trust (June 29, 2005) is also the “Startup Day” for the Trust under the REMIC obligations of the IRC. The Startup Day is important because the IRC authorizes how and when a REMIC Trust may receive its assets on this date.5 The PSA adopts these sections of the IRC by requiring the parties to the Trust to avoid any action that might jeopardize the tax status of any REMIC and/or impose any tax upon the Trust for prohibited contributions or prohibited transactions. These PSA provisions are important to the court’s analysis of
5

See, PSA Article XI. § 11.01 REMIC Administration (b) The Closing Date is hereby designated as the "Startup Day" of each Trust REMIC within the meaning of Section 860G(a)(9) of the Code. However, see entire section for prohibited transactions.

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the facts in this case because of the interaction between the New York trust law, the IRC’s REMIC provisions, and the PSA’s incorporation of the IRC REMIC provisions throughout the PSA, inter alia.

B)

The Trust Instrument’s Sets Forth An Unambiguous Time, Method And Manner Of Funding the Trust The Appellee Trust seeking relief under the

Servicemember’s ACT has included in the terms of its Trust Agreement (PSA) and (PS) an Unambiguous time, method and manner of funding the Trust with its assets. The most significant time is the Trust closing date, June 29, 2005.6 According to the terms of the PSA, all of the assets of the Trust were to be transferred to the Trust on or before the “closing date”.7 This obligation is to ensure that the Trust will receive REMIC status and thus be exempt from federal income taxation. The PSA provides for a

window of 90 days after the Trust closing date in which the Trust may complete any missing paperwork or confirm any documents necessary to complete the

6

Defined @ PSA Article I §1.01 Defined Terms and PS @ S-1 7 This requirement is found at PSA Article II §2.01 Conveyance of the Mortgage Loans and the PS @ S-2 The Mortgage Loans

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transfers of assets from the depositor to the Trust.8 Thus, for an asset to become an Asset of the Trust, it MUST have transferred to the Trust within the time set forth in the PSA and PS. The extra 90 days in the timeline requirement incorporated from the REMIC stipulations of the IRC is to provide a “clean-up period” for a REMIC to complete the documents associated with the transfers of assets to a REMIC after the startup day (which is also the Trust closing date). Consequently, according to the plain terms of the Trust Instrument’s in this case, the closing date/startup date was June 29, 2005 and the last day for transfer of assets into the Appellee Trust was the fixed date of September 27, 2005. However, for the Appellee Trust to have legally obtained the Asset and for the Trust to create certificates based on that Asset, a legal assignment of the note and mortgage to the Trust was required by the “closing date” of June 29, 2005. That means that,

as a matter of law there had to be an indorsement from the first assignee to the last without a break in the chain of title. There is no bona fide purchase unless
8

These requirements is found @ ARTICLE XI, § 11.01. REMIC Administration (a) through (k)

23

the transfer to the Appellee Trust complied with the statutes of fraud. No such assignment is evident in

the record and the record indicates there was never a legal enforceable assignment within the prescribed period set forth in the Trust Instrument’s and therefore, the late assignment dated November 6, 2007 is void, as it violates the terms of the Trust Instrument’s, IRS 860 et seq., and New York Law deems it Void. VII. THE TRUST AGREEMENT PROVIDES THE ONLY MANNER IN WHICH ASSETS MAY BE PROPERLY TRANSFERRED TO THE TRUST AND ANY ACT IN CONTRAVENTION OF THE TRUST AGREEMENT IS VOID A) Transfer Of Assets To The Trust Pursuant To The Trust Instrument’s Generally, the underlying assets of the Trust, specifically the individual promissory notes, may be transferred or conveyed by several methods. A Trust’s ability to transact is restricted to the actions authorized by its Trust Instruments. In this case, the Trust Instrument’s permit only one specific method of transfer to the Trust. That method is set forth in Section 2.01 of the PSA: Section 2.01: The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee, on behalf

24

of the Trust, without recourse, for the benefit of the Certificateholders, all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement (including, without limitation the right to enforce the obligations of the other parties thereto thereunder) and the Subsequent Mortgage Loan Purchase Agreement, such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the PreFunding Account, and all other assets included or to be included in REMIC I. Such assignment includes all interest and principal received by the Depositor and the Servicers and the Interim Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cutoff Date). The Depositor herewith delivers to the Trustee and each Servicer an executed copy of the Mortgage Loan Purchase Agreement.

The analysis of this transfer language requires the Court to consider each part. The affirmative language of the Trust PSA places a Duty on the depositor to make a valid legal transfer in the terms required by the Trust instrument. The Mortgage Loan

Purchase Agreement (MLPA) is incorporated by reference into section 2.01 of the PSA. However, it is not

25

attached as an exhibit to the PSA in the instant matter and the parties did not start attaching the MLPA to the PSA until 2006 therefore, Your Amicus will refer this Honorable Courts attention to the boilerplate MLPA in a subsequent filing on the US Securities and Exchange Commission’s web-site. MLPA below, marked as Exhibit F in the PSA. See In Particularly SECTION 4. Mortgage Loans: (a) Possession of Mortgage Files: The Seller does hereby sell to the Purchaser, without recourse but subject to the terms of this Agreement, all of its right, title and interest in, to and under the Mortgage Loans, including the related Prepayment Charges. The contents of each Mortgage File not delivered to the Purchaser or to any assignee, transferee or designee of the Purchaser on or prior to the Closing Date are and shall be held in trust by the Seller for the benefit of the Purchaser or any assignee, transferee or designee of the Purchaser. Upon the sale of the Mortgage Loans, the ownership of each Mortgage Note, the related Mortgage and the other contents of the related Mortgage File is vested in the Purchaser and the ownership of all records and documents with respect to the related Mortgage Loan prepared by or that come into the possession of the Seller on or after the Closing Date shall immediately vest in the Purchaser and shall be delivered immediately to the Purchaser or as otherwise directed by the Purchaser.
9

See

Transfer of the

9

http://www.sec.gov/Archives/edgar/data/1353171/0000882 37706001569/d444644_ex4-1.htm

26

(b) Delivery of Mortgage Loan Documents: The Seller will, on or prior to the Closing Date, deliver or cause to be delivered to the Purchaser or any assignee, transferee or designee of the Purchaser each of the following documents for each Mortgage Loan: (i) the original Mortgage Note, including any riders thereto, endorsed in blank, with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee; (ii) the original Mortgage or a certified copy thereof, including any riders thereto, with evidence of recording thereon, and the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon, and in the case of each MOM Loan, the original Mortgage, noting the presence of the MIN of the Loan and either language indicating that the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS®, with evidence of recording indicated thereon; (iii) an original executed in blank; Assignment of Mortgage

(iv) the original recorded Assignment or Assignments of the Mortgage, or a certified copy or copies thereof, showing a complete chain of assignment from the originator to the last Person assigning the Mortgage; (v) the original or copies assumption, modification, written or substitution agreement, if any; of each assurance

(vi) the original lender’s title insurance policy, together with all endorsements or riders that were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien or

27

second lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor; (vii) the original of any guarantee executed in connection with the Mortgage Note, if any; and (viii) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage, if any. Accordingly, there must be a complete, unbroken chain of assignments and endorsements in order to divest all—prior to entering the TRUST of Pooled Assets—of dominion and control over the assets, the Note and Mortgage. The only party which could maintain any rights in the note and mortgage, would be the Trust, however, because there was no lawful assignment to the Appellee Trust in the instant matter, it has no enforceable rights under the Note and Mortgage. The foregoing requirement demonstrates clearly that while the parties to the securitization Trust made provisions whereby promissory notes for this Trust might be delivered in blank to the Trustee; there were two requirements that were mandatory. First, all notes sold to the Trust were required to have an unbroken chain of endorsements from the original payee to the person endorsing it to the

28

Trustee. This requirement stems from a particular business concern in securitization, namely to evidence that there was in fact a “true sale” of the securitized assets and that they are in no way still property of i.e., the originator, sponsor, or depositor, and thus not subject to the claims of creditors of the originator, sponsor, or depositor. Second, there was a requirement that ultimately, on or before the Trust closing date, the actual promissory note must be endorsed over to the trustee for the specific trust to effectively transfer the asset into the Trust and therefore, make the Appellant’s promissory note Trust property. This requirement finds support in logic and law and is, in fact, the prehistoric and settled Law of New York on this issue. The fact that the November 6, 2007

assignment of mortgage also assigns the note evidences that the note was never timely or legally assigned to the Appellee Trust.

B)

New York Law Governs The Mandatory Obligations To Effectively Transfer An Asset To A Trust It is settled law that securitization trusts,

such as the Appellee’s, are subject to the common law

29

of New York.10 New York’s Trust Law is ancient and settled. There are a few principles of New York Trust Law that are particularly important to the analysis of whether any particular asset is an asset of a given Trust. Under New York Law, the analysis of whether an asset is Trust property is determined under the law of gifts.11 In order to have a valid inter vivos gift, there must be a delivery of the gift (either by a physical delivery of the subject of the gift) or a constructive or symbolic delivery (such as by an instrument of gift) sufficient to divest the donor of dominion and control over the property12 and “what is

10

As early as 1935, in Burgoyne v. James, 282 N.Y.S. 18, 21 (1935), the New York Supreme Court recognized that business trusts, also known as ““Massachusetts trusts”, ”are deemed to be common law trusts. See also In re Estate of Plotkin, 290 N.Y.S.2d 46, 49 (N.Y. Sur. 1968) (characterizing common stock trust funds as ““common law trust[s]””). Other jurisdictions are in accord. See, e.g., Mayfield v. First ’Nat’l Bank of Chattanooga, 137 F.2d 1013 (6th Cir. 1943) (applying common law trust principles to a pool of mortgage participation certificate holders).
11

“In the case of a trust where there is a trustee other than the grantor, transfer will be governed by the existing rules as to intent and delivery (the elements of a gift)””In re Becker, 2004 N.Y. Slip Op. 51773U, 4 (N.Y. Sur. Ct. 2004).
12

(see, Matter of Szabo, 10 NY 2d 94 NY (1961); Speelman v. Pascal, 10 N.Y.2d 313, 318-320 (1961); Beaver v. Beaver, 117 N.Y. 421, 428-429 (1889); Matter

30

sufficient to constitute delivery ‘must be tailored to suit the circumstances of the case’”.13 The delivery rule requires that “[the] delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit.’”14 “Under New York law there are four essential elements of a valid trust of personal property: (1) A designated beneficiary; (2) a designated trustee, who must not be the beneficiary; (3) a fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee; and (4) the actual delivery of the fund or other property, or of a legal assignment thereof to the trustee, with the intention of passing legal title thereto to him as trustee.”15 There is no trust under the common law until there is a valid delivery of the asset in

of Cohn, 187 App. Div. 392, 395 (1919) as cited in Gruen v. Gruen, 68 N.Y.2d 48, 56 (N.Y. 1986).
13 14

(Matter of Szabo, supra, at p. 98).

(id.; Vincent v Rix, 248 N.Y. 76, 83(1928); Matter of Van Alstyne, supra, at p 309; see, Beaver v. Beaver, supra, at p 428) as cited in Gruen v. Gruen, 68 N.Y.2d 48, 56-57 (N.Y. 1986).
15

Brown v. Spohr, 180 N.Y. 201, 209-210 (N.Y. 1904).

31

question to the Trust.16 If the trust fails to acquire the property, then there is no trust over that property which may be enforced.17An attempt to convey to a trust will fail if there is no designated beneficiary in the conveyance.18 In the context of mortgage-backed securitization, it is clear that registration of the notes and mortgages in the name of the trustee for the Trust is necessary for effective transfer to the Trust. Within the Statutes of New York governing Trusts, Estates Powers and Trusts Law (EPTL) section 7-2.1(c)

16

Until the delivery to the trustee is performed by the settlor, or until the securities are definitely ascertained by the declaration of the settlor, when he himself is the trustee, no rights of the beneficiary in a trust created without consideration arise (cf. Riegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of Gurlitz [Lynde], 105 Misc 30, aff’d 190 App. Div. 907, supra; Marx v. Marx, 5 Misc 2d 42) as cited in Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep’t 1978).
17

In an action against the individual defendant as trustee, based on the theory of breach of fiduciary obligation, the complaint was properly dismissed on the ground that he had acquired no title or separate control of the goods and, hence, there was no actual trust over the property to breach. Kermani v. Liberty Mut. Ins. Co., 4 A.D.2d 603 (N.Y. App. Div. 3d Dep’t 1957).
18

Wells Fargo Bank v. Farmer, 2008 N.Y. Misc Lexis 3248, Wells Fargo Bank, N.A. v. Farmer NY Slip Op 51133 - NY: Supreme Court (2008).

32

authorizes investment trusts to acquire real or personal property “in the name of the trust as such name is designated in the instrument creating said Trust.” Further, the actual contracts of the parties, which include the custodial agreements, the MLPA, and the Trust Instrument known as the PSA, demand a very specific method of transfer of the notes and mortgages to the Trust. Because the method of transfer is set forth in the Trust instrument, it is not subject to any variance or exception.19 The Trust documents require that the promissory notes and mortgages be transferred to the Trustee, which under New York trust law requires valid delivery. The question then

arises— “What constitutes valid delivery to the Trustee?”

19

Courts may neither ignore the actual provisions of transaction documents nor create contractual remedies that were omitted from the governing contracts by the contracting parties. See Schmidt v. Magnetic Head Corp., 468 N.Y.S.2d 649, 654 (N.Y. App.Div. 1983) (““It is fundamental that courts enforce contracts and do not rewrite them . . . An obligation undertaken by one of the parties that is intended as a promise . . . should be expressed as such, and not left to implication.”” (citations omitted)); Morlee Sales Corp. v. Manufacturers Trust Co., 172 N.E.2d 280, 282 (N.Y. 1961) (““[T]he courts may not by construction add or excise terms . . . and thereby ‘make a new contract for the parties under the guise of interpret[ation].’““ (quoting Heller v. Pope, 250 N.E. 881, 882 (N.Y. 1928))

33

When the mandates of transfer to the trustee are viewed in the context of the corporate or business trust indenture, more information about compliance with these requirements becomes apparent. It is important to point out that, “[t]he corporate trustee has very little in common with the ordinary trustee . . . .The trustee under a corporate indenture . . . has his [or her] rights and duties defined, not by the fiduciary relationship, but exclusively by the terms of the agreement. His [or her] status is more that of a stakeholder than one of a trustee.”20 Undeniably, “[a]n indenture trustee is unlike the ordinary trustee. In contrast with the latter, some cases have confined the duties of the indenture trustee to those set forth in the indenture.”21 The indenture trustee, it has been said, resembles a stakeholder whose obligations are defined by the terms of the indenture agreement.22 Moreover, “[i]t is

20

AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 2008 N.Y. Slip Op. 5766, 7 (N.Y. 2008)
21

Green v. Title Guarantee & Trust Co., 223 A.D. 12, 227 N.Y.S. 252 (1st Dept.), aff’d, 248 N.Y. 627 (1928); Hazzard v. Chase National Bank, 159 Misc. 57, 287 N.Y.S. 541 (Sup. Ct. 1936), aff’d, 257 A.D. 950, 14 N.Y.S.2d 147 (1st Dept.), aff’d, 282 N.Y. 652, cert. denied, 311 U.S. 708 (1940).
22

See Meckel v. Continental Resources, 758 F.2d 811, 816 (2d Cir. 1985) as cited in Ambac Indem. Corp. v.

34

settled that the duties and powers of a trustee are defined by the terms of the trust agreement and are tempered only by the fiduciary obligation of loyalty to the beneficiaries”.23 The clear significance of these cases and statutes is that the delivery of an asset to a trustee under the terms of a corporate indenture requires strict acquiescence with the mandatory transfer terms of the trust indenture. Thus, the Trustee in this case can only take delivery in strict compliance with the terms of the PSA/Trust Instrument. Further, given that New York Estates Powers and Trusts Law section 7-2.1(c) authorizes a trustee to acquire property “in the name of the Trust as such

name is designated in the instrument creating said trust property”, there should be little doubt that

for transfer to a trustee to be effective, the property must be registered in the name of the trustee for the particular trust. Trust property cannot be—as Bankers Trust Co., 151 Misc. 2d 334, 336 (N.Y. Sup. Ct. 1991).
23

See, United States Trust Co. v First Nat’l City Bank, 57 A.D.2d 285, 295-296, aff’d 45 NY2d 869; Restatement [Second] of Trusts § 186, comments a, d) as cited in In re IBJ Schroder Bank & Trust Co., 271 A.D.2d 322 (N.Y. App. Div. 1st Dep’t (2000).

35

many Banks have argued—held with incomplete endorsements and assignments that do not indicate that the property is held in trust by a trustee for a specific beneficiary trust. In fact, it is clear in the Law of New York that an attempt to transfer to a trust, which fails to specify both a trustee and a beneficiary, is ineffective as a conveyance to the Trust. “The failure to name a beneficiary for the Trustee renders the assignment without merit.”24 This position is further reinforced logically in the Common Law of New York by the following propositions: (1) “Until the delivery to the trustee is performed by the settlor, or until the securities are definitely ascertained by the declaration of the settlor, when he himself is the trustee, no rights of the beneficiary in a trust created without consideration arise”.25

24

Wells Fargo Bank, N.A. v. Farmer, 2008 NY Slip Op 51133U, 6 (N.Y. Sup. Ct. 2008).
25

(cf. Riegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of Gurlitz [Lynde], 105 Misc. 30, aff’d 190 App. Div. 907, supra; Marx v. Marx, 5 Misc 2d 42) as cited in Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep’t 1978).

36

(2) The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit; there must be a change of dominion and ownership; intention or mere words cannot supply the place of an actual surrender of control and authority over the thing intended to be given.26 It is the consummation of the donor’s intent to give that completes the transaction. Intention alone, no matter how fully established, is of no avail without the consummated act of delivery.27 How could one logically argue that delivering a promissory note endorsed in blank (making it bearer paper) into a trustee’s vault is “delivery beyond the authority and control of the donor” when the vault is managed by the agent of the donor? If the donor were to claim that the promissory note were its property, not the trustee’s, there would be no evidentiary basis for the trustee to claim ownership. Consequently, New York law expressly requires that for property to be

26 27

Vincent v. Putnam, 248 N.Y. 76, 82-84 (N.Y. 1928).

Phillippsen v. Emigrant Indus.Sav. Bank, 86 N.Y.S.2d 133, 137-138 (N.Y. Sup. Ct. 1948). (Beaver v. Beaver, supra, 117 N.Y. 421, 428, 22 N.E. 940, 941, 6 L.R.A. 403, 15 Am.St.Rep. 531).

37

validly delivered to a trust, the property must pass completely out of the control of the donor (and its agents): “If the donor delivers the property to the third person simply for the purpose of his delivering it to the donee as the agent of the donor, the gift is not complete until the property has actually been delivered to the donee. Such a delivery is not absolute, for the ordinary principle of agency applies, by which the donor can revoke the authority of the agent, and resume possession of the property, at any time before the authority is executed.”28 Another case addressing this issue holds that “In order that delivery to a third person shall be effective, he must be the agent of the donee. Delivery to an agent of the donor is ineffective, as the agency could be terminated before delivery to the intended donee.”29 Trustees for securitizations often occupy many roles concurrently and conflictingly both as document custodians and as trustees for myriad thousands of

28

(See, also, Grant Trust & Savings Co. v. Tucker, 49 Ind. App. 345, 353, 96 N.E. 487, 489 (1911); Furenes v. Eide, 109 Iowa 511, 80 NW 539 (1899); Dickeschied v. Exchange Bank, 28 W. Va. 340, 368 (1886); Love v. Francis, 63 Mich. 181(1886).
29

In re Nat’l Commer. Bank & Trust Co., 257 A.D. 868, 869-870 (N.Y. App. Div. 3d Dep’t (1939) citing Vincent v. Rix, supra v. Rix, supra; Bump v. Pratt, 84 Hun, 201.

38

securitizations as well as for various parties who are active in the securitization process including originators, servicers, sponsors and depositors. Accordingly, it is unimaginable that anything other than registration into “the name of the trust as such name is designated in the instrument creating said trust property”30 could ever qualify as delivery to any particular securitization trust. Absent such registration, there would be nothing that would indicate which of thousands of trusts in the care of a trustee a particular promissory note might belong to or if it were the personal property of the trustee itself. Absent such registration, a promissory note would simply be bearer paper, and thus the property of anyone who obtained possession of it. Further, if anything less constituted delivery, why are our courts overwhelmed with robo-signed mortgage assignments and affidavits expressing, outrageous legally impossible transfers into the specific trusts long after the trusts have closed for funding? This point was recently slammed home to the public consciousness in a watershed decision by this

30

EPTL 7-2.1(c)

39

Honorable Court in US Bank National Association v. Ibanez, 458 Mass. 637 (2011). The Court held that neither bank proved that its trust owned the mortgages when they foreclosed on the homes which amounts to no standing; therefore, neither had title to the foreclosed properties and that their foreclosures were void. Effectively, this put the borrowers back into the place they were before the foreclosure. The Court did sharply instruct the banks that they must have the proper documentation, which demonstrates a valid right to foreclose before a foreclosure can be carried out. It is well worth noting the conclusion of the Ibanez opinion. The Court noted that, “The legal principles and requirements we set forth are well established in our case law and our statutes. All that has changed is the [banks’] apparent failure to abide by those principles and requirements in the rush to sell mortgage-backed securities.” Just as the principles and requirements of Massachusetts Law are well founded, so too are those of New York Law, and they should be upheld even if adherence to the Law is problematic for banks rushing to sell mortgage-backed securities.

40

Further, the failure to convey to the Appellee Trust per the controlling Trust Instrument’s is not a matter that may be cured by the breaching party. New York Law is unflinchingly clear that a trustee has only the authority granted by the instrument under which he holds; either Deed or Will. This fundamental rule has existed from the beginning and is still law.31 To the extent that the Note and Mortgage at issue was not conveyed to the Appellee Trust as required and when required by the Trust instrument, they are not assets of the Trust and the Appellee trust could not correct this deficiency in 2007since the funding period provided in the Trust instruments passed twoplus years prior. Any attempts to acquire assets by the Trust, which violate the terms of the Trust Instruments are void. Therefore, late assignments, improper chains of title, late endorsements, and improper chains of title in the endorsements are just a number of the many examples of actions, which are void if taken by a party to the indenture who is attempting to transfer

31

Allison & Ver Valen Co. v. McNee, 170 Misc. 144, 146 (N.Y. Sup. Ct. 1939).

41

property to the Trustee for the Trust in violation of the Trust Instrument. Under New York Law, there is no Trust over property that has not been properly transferred to a Trust. Any attempt by the parties, to transfer the promissory note to the Trust on November 6, 2007 would fail for numerous reasons, not the least of which is that the closing date of June 29, 2005 had come and gone prior to the assignment to the Trust. By the terms of the Trust and the applicable provision of the Internal Revenue Code incorporated into and a part of the Trust agreement, the promissory note could not and cannot be transferred to the Trust. The uncontroverted evidence in the instant action is that the Appellant’s loan was never been legally assigned or conveyed to the Trust and a conveyance to the Trust in 2007 is void as violating the terms of the PSA inter alia, and therefore, the Court is left with one clear and inescapable proposition. The Trust

has never owned the Appellant’s promissory note or the mortgage and the Trust can never own the Appellant’s promissory note leaving it with no enforceable right under the mortgage.

42

Subsequently, Standing will forever escape the Appellee trust, and no want of trying will ever change this fact. Certainly, there may be a proper Plaintiff

to bring a civil complaint under the ACT however; it certainly is not the Appellee Trust. A Proper and Legal demonstration of standing begins and ends with the TRUST in any securitized mortgage and the late assignment in the instant matter dated November 6, 2007 is clear evidence that one never took place in 2005. The last case Your Amicus would cite which, will give this Honorable Court a clear understanding of how pervasive the deception and the abuses perpetrated on Courts across the Nation in all matters involving the Appellee Trust are; See HSBC BANK USA, NA v. SENE, NY were the

Slip Op 50352 , NY Supreme Court (2012), Court stated:

“This Court is further reporting the

matter to the District Attorney, Kings County, the Attorney General of the State of New York and the U.S. Attorney for the Eastern District of New York. Copies of the two notes are annexed hereto and made a part hereof. This constitutes the decision and order of the Court.”

43

CONCLUSION In light of the foregoing, based on the law, the terms of the Pooling and Service Agreement inter alia, and the uncontroverted facts related to the November 6, 2007 Assignment of the Note and Mortgage, clearly there were not enough facts in evidence before the Land Court to determine a future right under the note and mortgage. The evidence suggests completely the opposite whereas the Appellee Trust, HSBC BANK USA, N.A as Trustee and ACE Securities Corp. Home Equity Loan Trust Series 2005-HE4 will never have standing as it relates to Jodi B. Matt’s note and mortgage. If

there was no timely assignment to the Trustee within the proscribed period as set forth above, there can never be one. Your Amicus concludes, with all due respect to the Land Court (Long, J.), that for the Land Court to proffer and hold that the Appellee Trust could become the owner and holder of the note and mortgage and therefore, had standing, was clear error of law, when clearly it cannot have standing, as it is prohibited by New York Law and IRS 860A-G.

44

Therefore Your Amicus respectfully request that this Honorable Court reverse the Land Court's Rulings, or alternatively, remand the case back to the Land Court for a factual determination that Appellee Trust lacks any evidentiary foundation to support its claim of standing as it is not the current holder of Appellant’s Note and Mortgage. Further, for a

determination as to whether or not the Appellee Trust and their Counsel deliberately committed Fraud upon the Land Court (Long, J).

Respectfully Submitted /s/Robert P. Marley ________________________ Robert P. Marley, Pro-se 18 Lakeview Drive Lynnfield, MA 01940 781-844-3044 Marley0685@comcast.net Dated: March 6, 2012

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Certification I, Robert P. Marley, hereby certify that I complied, to the best of my abilities, with Mass. R. A. P Rule 16 (k) and further, hereby certify that I have served two copies of the herewith Amicus Brief on the party’s attorney of record by sending the same by US regular mail and by e-mail on this 6 day of March, 2012. Signed under the pains and penalties of perjury on this 6 day of March, 2012.

/s/Robert P. Marley

_____________________________ Robert P. Marley

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