IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS CHANCERY DIVISION WELLS FARGO BANK, N.A., Plaintiff, -vs.

MARY RILEY, Defendant. DEFENDANT’S MOTION TO STRIKE AND DISMISS COMPLAINT Now comes the defendant, Mary A. Riley, by her attorney, Daryl R. Berry, and moves this Court to strike and dismiss the Complaint of plaintiff, pursuant to §[2-615] [2-619] of the Code of Civil Procedure, 735 ILCS 5/2-619, and, in the support of this Motion, states: 1. Section 2-615 of the Code of Civil Procedure provides in pertinent part: (a) All 2011 CH

objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief. 2. Motions for involuntary dismissal pursuant to 735 ILCS 5/2-619 are based upon

certain defects or defenses. The purpose of a motion to dismiss under this statute is to provide litigants with a method of disposing of issues of law and easily proved issues of fact at the beginning of a case, reserving disputed issues of law for trial, if necessary. Van Meter v. Darien Park Dist., 207 Ill. 2d 359 (2003). A defendant may move to dismiss a complaint on a number of different grounds, including: (1) (2) 3. 4. lack of jurisdiction; one or both of the parties do not have legal capacity to sue or be sued;

In the instant matter the Plaintiff does not have legal capacity to sue. The Complaint to Foreclose Mortgage was filed on July 19, 2011, purportedly to 1

enforce rights arising from a Fixed Rate Note dated June 11, 2004 designated as Loan No. 0059515536-9701 [Exhibit A] and a Mortgage of same date [Exhibit B] . 5. The Assignment of Mortgage was executed on July 21, 2011 and recorded in the [Exhibit C]

Office of the Cook County Recorder of Deeds on August 1, 2011.

Accordingly, the Plaintiff was not “assigned” interest in the subject Mortgage and Note until thirteen (13) days after the Complaint to Foreclose was filed and therefore the Plaintiff did not have standing to sue. That is assuming that the Assignment of Mortgage is actually valid. 6. The Assignment of Mortgage has inconsistent content which raises tangible

questions of fact as to the true Assignee of the Mortgage. This Assignment of Mortgage is fatally flawed. 7. The use of affidavits on motions for summary judgment is governed by Illinois

Supreme Court Rule 191(a) (eff. July 1, 2002). Under that rule, affidavits must set out the facts on which the affiant’s claims are based, and attach all documents upon which the affiant relies. The subject Assignment of Mortgage contains false statements, misrepresentations, and omission of material facts and is fatally flawed for the following reasons: a. Parent company Citigroup Inc. bought Argent Mortgage Co. LLC and

AMC Mortgage Services in August 2007. The companies were subsidiaries of ACC Holdings, which owned Ameriquest, one of the nation’s largest and most criticized subprime lenders. The signatories on this document are alleged employees of Bank of America, N.A. (BANA) not Argent Mortgage Company, LLC. There is no documentation reflecting a transaction between Citigroup Inc. and Bank of America NA accompanying the Assignment of Real Estate Mortgage. 2

Pennsylvania. Compliance Specialist. The Notary Jurat states that both signers personally appeared before her and that they are personally known to her and that they were signing with the authority of its Board of Directors “and that the seal affixed to the foregoing instrument is the corporate seal of said entity and that said instrument was signed and sealed on behalf of said entity by the authority of its Board of Directors. i. He is not an employee of Bank of America.” j. Assignment of Mortgage as an Attorney-In-Fact for Argent Mortgage Company. f. There is no Corporate Board of Resolution and no Power of Attorney attached to the Assignment or on file with the Cook County Recorder of Deeds. Eric Oyler is an employee of Bank of America Home Loans as an Assistant Vice President located in the San Francisco Bay Area. Global Compliance Risk Manager however she is signing as an Assistant Vice President and as Attorney-In-Fact. Pennsylvania. e. c. [Exhibit D] Amanda Chase works in the San Francisco Bay Area in California. The plaintiff submits the Assignment of Mortgage [Exhibit C] as evidence that 3 . k. There is no corporate seal affixed to this document. 8. {Exhibit D] d. h. There is no Power of Attorney of record.b.A as alleged on the Assignment and defendant demands strict proof thereof. Amanda Chase is an employee of Bank of America as a Sr. g. The Assignment of Mortgage was notarized in Allegheny County. There is no evidence that either signer had the authority to execute this The Assignment of Mortgage was notarized in Allegheny County. N.

sec. there is an entity by a similar name that is registered with the Securities and Exchange Commission as: Park Place Securities.the subject Note & Mortgage were transferred to Wells Fargo Bank. ABSNet®Lewtan is the Structured Finance Industry's leading source for asset4 . (PPSI) is identified as the Depositor required to deposit the Original Mortgage and Note with the Trustee. as Trustee for the Benefit of the Certificate Holders of Asset-Backed Pass-Through Certificate Series 2004-WCW2.. In the prospectus. Inc... in the Office of the Cook County Recorder of Deeds.ny.gov/corps/bus_entity_search.A. Upon multiple searches conducted on various official web sites such as the SEC- Securities and Exchange Commission as www. Park Place Securities.gov and New York Corporate Search site http://www. Inc. N.dos. If that is true.. 13.jsp . [Exhibit E] That according to Article II.: DE | 10. Series 2004-WCW2 CIK#: 0001303122 (see all company filings) SIC: 6189 – ASSET-BACKED SECURITIES State location: CA | State of Inc. 9. N.A.A. Wells Fargo Bank. 11. as reflected in the Pooling Servicing Agreement. There is no record of the transfer of the Original Note and Mortgage by PPSI to Wells Fargo Bank. Section 2.delaware. N.gov/tin/GINameSearch. Also absent is evidence of a relationship between PPSI and Argent Mortgage Company.01 of the PPSI filings with the Securities and Exchange Commission [Exhibit F] the Original Mortgage and Note for the subject premises were to have been deposited by PPSI in the offering in addition to any original intervening Assignment or Assignments of the complete chain of assignment. [Exhibits F and G] 12. another alleged owner of the Mortgage and Note.html and Delaware Corporate Search site https://delecorp. (PPSI) Asset-Backed Pass-Through Certificates. the Trust was not properly funded by the deposit of the Original Mortgage and Note as required by SEC regulations and the prospectus of Park Place Securities Inc.

C. 0059515536 [Exhibit A] is included as part of PPSI 2004-WCW2 with Pool Group ID PP04WCW2-3. Contra Costa County Superior Court. if the Deed of Trust and Note are not together. If such assignment did occur. 2013 Wells Fargo is listed as “Servicer”. there can be no legal enforcement of the Note. A Mortgage Pass Through Trust (R.I. Hillery. having been replaced at some point by Countrywide Home Loans. 5 . as defined in Title 26.backed securities surveillance and intelligence. No Entity can be a Creditor if they do not hold/own the asset in question. 17. PPSI’s activity is reflected in the Deal Snapshot. Riley was never notified of it as he/she should have been according to federal RESPA law. Therefore. foreclosure legally cannot occur. The Third Party Summary attached hereto further indicates that Wells Fargo is no longer the Trustee for PPSI.M. Part II §§ 850. There is no evidence that the Mortgage Loan was properly assigned a new holder-in-due-course. The Mortgage title was never officially transferred. LEXIS 834 (Aug 28. 19.862) cannot hold assets for if they do. Loan No. Either the Trust has voided its intended Tax Free Status or the asset is not owned by it. Generally. CA Dec 2008. As such the Note has been converted into a security and is not enforceable through a foreclosure proceeding. 18. if the Mortgage and Note are separated. Subtitle A. Landmark Nat’l Bank v. 2009).E. The bifurcation of the Mortgage and Note creates an immediate and fatal flaw in Title. [Exhibit J] 16. Chapter 1. The mortgage enforces the Note and provides the capability for the lender to foreclose on the property. As of June 17. [Exhibit I] 15. 2009 Kan. Public Law 111-22 and the Statute of Frauds. Saxon vs. Kesler. their tax exempt status is violated and the Trust itself is void ab initio. Subchapter M. [Exhibit H] 14.

It is now a stock and governed as a stock under the rules and regulations of the SEC. 24. pooled and turned into a security. 21. Countrywide Home Loans Servicing LP is named as the Master Servicer in the “Pooling Servicing Agreement. Under the terms of the Pooling & Servicing Agreements or Trust Agreements. Once a loan has been securitized. the Note cannot be re-attached to the Mortgage/Deed of Trust through adhesion. Since the loan was sold.performing non-secured debt similar to a collection agency that buys bad credit card debts. the holder can no longer claim that it is real party in interest. Double dipping is a form of securities fraud. Under the UCC. exist at the same time. Once the Note was converted into a stock. otherwise the instrument is faulty. The original Note has the only legally binding chain of title. The original Note was a one-of-a-kind instrument. or a stock equivalent. the “Servicer” can buy back the Note as a non. 6 . If both the Note and the stock. the Promissory Note is a one-of-a-kind instrument and any endorsement must be as a permanent fixture onto the original Note. 23. pooling and servicing agreements. 22. or stock equivalent. etc. it forever loses its security component (Mortgage/DOT) and the right to foreclose through the Mortgage/DOT is lost forever.20. that is known as double dipping. That would be a purchase of a discharged asset and cannot be re-adhered to the original Mortgage. it is no longer a Note. The Promissory Note has been converted into a stock as a permanent fixture. not part of a discharged asset. similar to a check. This is evidenced by the requirement for filings of the registration statements. After securitization. The purchaser of that discharged asset can never be the holder-in-due course of the original note. 26. 25. The original lender was paid in full.

” 31.S. A copy of said opinion 7 . An assignment of the note carries the mortgage with it. the latter as an incident. 83 U.S. 21 L. It merged with other unknown notes as a total obligation due to the Investors. Jeffrey Eden Nelson. 16 Wall. 382 Ill. The Note started as a negotiable instrument. but collateral (stock) for a Security as it pertains to Special Purpose Vehicle or MBS Mortgage Backed Security pool under a Common Law Trust structured as a REMIC Real Estate Investment Mortgage Conduit. 28. Carpenter v. 30. the three judge panel of Justice Stewart. Longan.274.L. unanimously ruled that Bayview did not have the right to foreclose a mortgage owned by another entity. Justice Goldenhersh and Justice Spomer. 313 (1872).C. the U. Bayview was merely acting as the loan servicer. like a check.27. In Bayview Loan Servicing L. while assignment of the latter alone is a nullity. The Mortgage Note does not include all intervening endorsements showing a complete chain of title from Originator to the Trustee. vs. The negotiation and enforceability of the Note is governed by UCC 3. It is no longer a negotiable instrument.Ed. App. The Note that was executed with the Mortgage immediately became part of a pool of mortgages losing its individual identity as a note between a lender and borrower. It is well established the Mortgage follows the Note (not the other way around) and the transfer of the security interest (Mortgage) without the debt (Note) is a nullity. 271. There were no Assignments recorded to show a complete chain of title from Originator to the Trustee as described in the Pooling and Servicing Agreement. 271. 2d 1184. The 5th District Appellate Court of Illinois overturned a foreclosure judgment and order of sale on grounds that the plaintiff did not own the mortgage. 29. the former as essential. Supreme Court stated “The note and mortgage are inseparable. 1186 (2008).

Inc. c. see also 735 ILCS 5/15-1208.. 33. In the case of Deutsche Bank National Trust Co. 201 (2008).” Raintree Homes. “[A] party either has standing at the time the suit is brought or it does not. There are no disputes about the relevant facts. 3d 1. 209 Ill. and the issue is thus a purely legal one that was appropriate for disposition by summary judgment. 406 Ill. App.. the holder of an indebtedness secured by a mortgage. See Mortgage Electronic Registration Systems. or the lender.is attached hereto as Exhibit K. We review the grant of summary judgment de novo. 2d 248. 3d 783. is defined as the holder of an indebtedness secured by a mortgage or one claiming through a mortgagee as a successor (735 ILCS 5/15-1208 (West 2006)). Village of Kildeer v. 15-1504(a)(3)(N) (West 2008). Ioerger v. “The doctrine of standing is designed to preclude persons who have no interest in a controversy from bringing suit. 786 (1988). The validity of Deutsche Bank’s foreclosure action against Gilbert rests on one issue: whether DeutscheBank had standing–that is. 232 Ill. Gilbert.” Id. Village of Lake Zurich. v. 7 (2010). the mortgagee. the issues were defined as follows: a. 735 ILCS 5/2-1005(c) (West 2008). App. i. 2012 IL App (2d) 120164. Village of Long Grove. Under the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq. A party’s standing to sue must be determined as of the time the suit is filed. Inc. An action to foreclose upon a mortgage may be filed by a mortgagee. whether it owned the mortgage–on the date that it filed the foreclosure action. 167 Ill. or by an agent or successor of a mortgagee. b. 32. Gilbert’s documentary evidence that Deutsche Bank did not have an 8 .e. (West 2006)). Halverson Construction Co. 262 (2004). v. v. Barnes. 2d 196.

264 (1975)). 2012 IL App (4th) 100956. 366 (2008) (quoting Darling &Co. 28 Ill. Gilbert was entitled to judgment in his favor on the foreclosure. because Deutsche Bank failed to rebut Gilbert’s prima facie case that it 9 . Deutsche Bank is unable to point to any case law supporting such a novel application of section 2-407 to cure a plaintiff’s lack of standing. d. Wirtz Corp. Wexler v. 167 Ill. Village of Kildeer. “ ‘A “prima facie” defense is sufficient at law unless and until rebutted by other evidence. Gilbert was entitled to summary judgment in his favor on this issue. Construction Systems. Inc. 3d 258. Deutsche Bank argues that its amendment of the complaint. Pollution Control Board. it is well established that a party may not rely on the allegations of its pleadings to contradict evidence produced by the movant that would entitle it to judgment. v. Inc.. As Deutsche Bank lacked standing at the time of filing.’ ” Cordeck Sales. v. standing must exist when the suit is filed. acted as a “joinder” of itself in a new capacity–as the now-undisputed owner of the loan. As Deutsche Bank produced no competent evidence rebutting Gilbert’s prima facie showing that the bank lacked standing at the time of filing. 2d 18. App.. which attached the recently executed Assignment. the foreclosure action was defective and could not be maintained. 3d at 786. e. To the contrary. Moreover. App. 22 (2004) (a plaintiff’s lack of standing negates his cause of action and requires dismissal of the proceedings).interest in the mortgage (the mortgage and the note. 211 Ill. Triple R Development. f. and an assignment executed after the date of filing. In summary. which did not show that the assignment occurred before the date of filing) constituted prima facie evidence of lack of standing. 3d 334. Not surprisingly. ¶ 12. 382 Ill. DeutscheBank could not cure this defect by “joining” the suit as a proper party at a later date. App.

N. Baber. Bank National Ass’n v. Ct. Mary A. 739 N. ¶ 16. 2012 VT 19.W. g. 385 (Mich.A.S. Riley By: _______________________________________ Attorney for Defendant Daryl R.lacked standing to bring that foreclosure. v. see also Wells Fargo Bank Minnesota. “It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note. 2007) (foreclosure must be vacated where bank “did not yet own the indebtedness that it sought to foreclose”) Wherefore. and to have the proper supporting documentation on hand when filing suit. 2012 OK 55. App. Respectfully submitted. 382 Ill.2d 383. L. 2d 1184. Berry Atty. v. the defendant moves that this Honorable Court dismiss this cause of action and enter judgment in favour of the defendant.: 22828 Attorney for Defendant 2609 West 79th Street Chicago.C. Davenport v. Bayview Loan Servicing.” U. ¶ 6. Nelson. 46 A. 1186 (2008).3d 905. App. Illinois 60652 773-737-0007 10 . Rouleau.2d 956. HSBC Bank USA. 280 P. No. *** so that the defendant is duly apprised of the rights of the plaintiff.L.

Berry. an attorney. Berry Daryl R. hereby certify that I served a copy of the attached Motion to Dismiss on The Wirbicki Law Group. 33 West Monroe St. Daryl R. Illinois 60603 by electronic service and personally on July 17.: 22828 Attorney for Defendant 2609 West 79th Street Chicago. ____________________________________ Daryl R. No.. Chicago.CERTIFICATE OF SERVICE I. 2013. Suite 1140. Illinois 60652 773-737-0007 11 . Berry Atty.

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EXHIBIT A 13 .

EXHIBIT B 14 .

EXHIBIT C 15 .

EXHIBIT D 16 .

EXHIBIT E 17 .

EXHIBIT F 18 .

EXHIBIT G 19 .

EXHIBIT H 20 .

EXHIBIT I 21 .

EXHIBIT J 22 .

EXHIBIT K 23 .

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