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IN THE COMMON PLEAS COURT

OF FRANKLIN COUNTY, OHIO


____________________________________
) CASE NO. 07 CV 003604
HSBC BANK USA NA )
) Judge Laurel Beatty
Plaintiff, )
v. ) Daniel L. McGookey (Reg. No. 0015771)
) Richard Barry Hardy III (Reg. No. 0068067)
) Lauren E. McGookey (Reg. No. 0086407)
) McGOOKEY LAW OFFICES, LLC
Santana Cline, ) 225 Meigs Street, Sandusky, OH 44870
) Phone: 419-502-7223 Fax: 419-502-0044
Defendant. ) Counsel for Defendant
____________________________________) Santana Cline

MOTION FOR RELIEF FROM JUDGMENT, MEMORANDUM IN SUPPORT, AND


REQUEST FOR A HEARING

Now comes the Defendant, Santana Cline (“Defendant”) by and through Counsel, and

hereby submits her Motion for Relief from Judgment, Memorandum in Support, and Request for

Hearing as follows:

MOTION FOR RELIEF FROM JUDGMENT

The Defendant moves the Court, pursuant to Civ. R. 60(B)(5), for relief from the

judgment and orders entered herein on or around January 24, 2008. The grounds for this Motion

are fully stated in the following Memorandum:

MEMORANDUM IN SUPPORT

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I. BACKGROUND FACTS

Defendant executed a promissory note (the “Note”) and mortgage (the “Mortgage”) in

favor of CBSK Financial Group, Inc. (“CBSK”) on April 5, 2006. Mortgage Electronic

Registration Systems, Inc. (“MERS”) was listed as nominee of the lender, CBSK in the

Mortgage. MERS was not listed at all in the Note. After a dispute arose in the payments on the

loan, on March 13, 2007, Plaintiff, HSBC Bank USA N.A. filed the Complaint. The Complaint

had a copy of the Mortgage attached to it, but did not have a copy of the Note attached to it.

There were no assignments of the Mortgage attached, meaning that there was no connection

whatsoever in the exhibits to the Complaint between Plaintiff and the mortgage obligation.

On December 28, 2007, Plaintiff filed its Motion for Summary Judgment. In that

Motion, Plaintiff alleged it was the “holder” of the Note. Attached to that Motion were several

Affidavits, both supposedly executed by one Jessica Dybas (“Dybas”). The first Affidavit, titled

“Affidavit in Support of Motion for Summary Judgment,”(“ASJ”)1 stated in part:

“3….copies of the Promissory Note and Mortgage Deed attached


to Plaintiff’s Complaint are true and accurate copies of the original
instruments held by Plaintiff;…

5 That Affiant has examined and has personal knowledge of the


loan account of Santana Cline;…”(emphasis added)

Despite the above assertion, no copy of the Note was even attached to the Complaint.

The second Affidavit was called “Affidavit as to Lost Note” (“ALN”).2 This Affidavit,

supposedly signed by Dybas over a month before the ASJ, stated:

“…Affiant further states that they (OCWEN) have personal


knowledge of the history of said loan…Affiant further states that,
as a result of mishandling the document, the whereabouts of the
original promissory note is unknown…” (emphasis added)

1
For ease of reference, a copy of this Affidavit is attached hereto as “Exhibit A”.
2
A copy of this Affidavit is attached hereto as “Exhibit B”.

2
Obviously, this statement is in irreconcilable conflict with the statement made by Dybas in the

ASJ, swearing that the original note was in Plaintiff’s possession.

Also attached to the Motion for Summary Judgment was an Assignment of Mortgage

supposedly signed by one Scott Anderson (“Anderson”) as “Vice President” of MERS on March

14, 2007, a day after the Complaint was filed (“the First Assignment”). 3 The First Assignment

was recorded by the Franklin County Recorder on April 13, 2007. The First Assignment

purportedly assigned the Mortgage, along with the Note, from MERS to Plaintiff.

However, a conflicting Assignment of Mortgage (“the Second Assignment”) 4 was

produced in connection by the Plaintiff in Defendants bankruptcy case.5 Interestingly, the

Second Assignment was supposedly signed by Anderson on January 5, 2009, but allegedly was

entered into almost three (3) years earlier, on May 14, 2006.

Of course, the effective date of the Second Assignment predates the filing of the

Complaint, yet was not executed until years later. In all other respects, the Two Assignments are

the same. These facts lead one to wonder if the purpose of the Second, backdated Assignment

was made to eliminate any question regarding the Court’s jurisdiction to hear this case since the

First Assignment was not executed, with an effective date after the filing of the Complaint

herein.6

3
A copy of this Assignment is attached hereto as “Exhibit C”.
4
A copy of this Assignment is attached hereto as “Exhibit D”.
5
See Affidavit of Counsel attached hereto as “Exhibit E”
6
It is noteworthy that the Second Assignment was filed for record on March 9, 2009, the
same day as the Cuyahoga County Court of Appeals decided Wells Fargo v. Jordan, 2009-
Ohio-, holding that a foreclosing party must demonstrate that it is the real party in interest
at the time the complaint is filed in order to invoke the jurisdiction of the court.

3
The Second Assignment (again, only produced long after the foreclosure judgement was

rendered) is noteworthy for purpose here for yet another reason. That is because Anderson

supposedly signed it almost three (3) years after it was entered into. This fact is another

indication that Anderson is a robo signer, and that the Assignments are fraudulent!

Finally, on or about December 27, 2007, Plaintiff filed its Motion to Incorporate

Mortgage Note. In that Motion, Plaintiff stated that; “…counsel recently obtained the Mortgage

Note…”7 The attached Note showed no endorsements on it or allonges attached to it assigning it

from CBSK to any other party. Based on this evidence, the Court granted Summary Judgment in

Plaintiff’s favor on January 24, 2008.

However, the information only recently coming to light, it appears that Dybas and

Anderson were “robo-signers.” Robo-signers are individuals whose sole job responsibility is to

sign affidavits, assignments of mortgage and other legal documents used in foreclosures en

masse so that homeowners can be removed from their homes by banks as quickly and cheaply as

possible. Affidavit of Counsel, “Exhibit E”. Robo-signers may sign thousands of such

documents per month, including affidavits attested to be made of personal knowledge. Id.

Because they are required to sign so many documents in order to effectuate cost savings

for the banks, robo-signers do not even read documents containing critical statements in the

documents that they sign. Id. Rather, the typical robo-signer simply attests under oath that he or

she has personal knowledge of the statements made, and swears that those statements are true

and accurate without even having read the document. Id. In addition, in the rush to generate

these documents, the robo-signer will generally sign the document outside the presence of the

notary who later notarizes them. Id.

7
A copy of this Motion is attached hereto as “Exhibit F”.

4
In a case involving GMAC, a Maine Court recently found that the use of a robo-signer in

a foreclosure action constituted a “high volume and careless approach” toward the judicial

system. That Court disregarded the subject affidavit, and ordered sanctions against GMAC. See

Federal National Mortgage Association v. Bradbury, Bridgton, Maine District Court Docket No.

BRI-RE-09-65, Order of September 24, 2010, attached hereto as “Exhibit G.” Even more

recently, the Ohio Attorney General filed an Action on behalf of the Citizens of Ohio in the

Lucas County, Common Pleas Court seeking injunctive relief and damages on account of these

same practices. A copy of that Complaint, without attachments, is attached hereto as “Exhibit

H.”

The belief that Dybas and Anderson are robo-signers is supported by, among other

things, a decision rendered by the New York Supreme Court in another case involving HSBC

and Ocwen. In HSBC Bank USA, N.A. v. Valentin, 2008 NY Slip Op 52167(U) [21 Misc 3d

1124(A)],8 Judge Arthur Shack stated:

“Plaintiff submitted an affidavit, dated March 14, 2008, by Scott


Anderson, who purports to be ‘Senior Vice President of
Residential Assets at Ocwen Loan Servicing, LLC (Ocwen) [¶
2].’…

Further, Mr. Anderson claims, in ¶ 7, claims that the Valentin loan


was transferred ‘to the Trust on September 30, 2005,’ and, in ¶ 10,
‘the loan was transferred to the Trust in September 2005 when it
was a performing loan. The loan remained in the name of MERS
as nominee in title, but the holder changed from Delta to HSBC
Bank, USA, N.A. as Trustee.’ If these statements are true, then Mr.
Anderson lied in executing the May 1, 2007 assignment of the
Valentin loan from MERS to HSBC, which was recorded on June
13, 2007 at New York City's Office of the City Register, City
Register File Number 2007000306260.

The May 1, 2007 recorded assignment was executed by the same


Mr. Anderson, wearing his hat as Vice President of MERS, at
Ocwen’s office, located at 1661 Worthington Road, Suite 100,
8
A copy of this decision is attached hereto as “Exhibit I”.

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West Palm Beach, Florida 33409, and sworn to before Doris
Chapman, a Florida Notary Public. The Court is troubled that Mr.
Anderson acted as both assignor of the instant mortgage loan, and
then as the Vice President of Ocwen, assignee HSBC’s servicing
agent. He admits to this conflict, in ¶ 13, stating that ‘[w]hen the
loan went into default and then foreclosure in 2007, Ocwen, in it
capacity as servicer, elected to remove the loan from the MERS
system and transfer title to HSBC.’ The stockholders of HSBC
and the noteholders of the Trust probably are not aware that Mr.
Anderson, on behalf of the servicer, Ocwen, claims to have the
right to as sign ‘toxic’ nonperforming mortgage loans to them. It
could well be that Ocwen’s transfer of the instant nonperforming
loan, as well as others, is part of what former Federal Reserve
Board Chairman Alan Greenspan referred to in his October 23,
2008 testimony, before the House Oversight Committee, as ‘a once
in a century credit tsunami.’ (emphasis added).

In addition, no officer of HSBC, in violation of my January 30,


2008 order, executed an affidavit explaining why plaintiff
purchased a nonperforming loan and why HSBC shares office
space ‘at Suite 100, 1661 Worthington Road, West Palm Beach,
Florida 33409, with Ocwen Federal Bank FSB, Mortgage
Electronic Registration Systems, Inc., Deutsche Bank and
Goldman Sachs.’

An earlier order filed in the same case stated:

“Plaintiff’s application, upon the default of all defendants… is


denied without prejudice. The ‘affidavit of merit’ submitted in
support of this application for a default judgment is not by an
officer of the plaintiff or someone with a power of attorney from
the plaintiff.
Leave is granted to plaintiff, HSBC BANK USA, N.A…to renew
its application for an order of reference upon presentation to the
Court of compliance with the statutory requirements of CPLR §
3215(f), with ‘an affidavit of facts’ executed by someone who is an
officer of HSBC or has a valid power of attorney from HSBC.
…Further, the Court, upon renewal of the application for an order
of reference requires a satisfactory explanation to questions with
respect to: the assignment of the instant nonperforming mortgage
loan from the original lender, Delta Funding Corporation to HSBC
Bank; the employment history of one Scott Anderson, who
assigned the instant mortgage to HSBC, yet in a case I decided last
month, HSBC Bank, N .A. v. Cherry, 18 Misc.3d 1102(A), swore
in an affidavit to be HSBC’s servicing agent; and the relationship

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between HSBC, Ocwen Federal Bank, FSB (OCWEN), Deutsche
Bank and Goldman Sachs, who all seem to share office space at
1661 Worthington Road, Suite 100, West Palm Beach, Florida
33409 (Suite 100).
…Plaintiff’s moving papers for an order of reference fails to
present an “affidavit made by the party,” pursuant to CPLR §
3215(f). The application contains an April 23, 2007-affidavit by
Jessica Dybas, who states that she is “a Foreclosure Facilitator of
OCWEN LOAN SERVICING, LLC, servicing agent and attorney
in fact to the holder of the bond and mortgage sought to be
foreclosed herein.” On that date, the note and mortgage were still
held by MERS, as nominee of Delta Funding Corporation. For
reasons unknown to the Court, MERS, as nominee of Delta
Funding Corporation, or plaintiff HSBC failed to provide any
power of attorney authorizing OCWEN to go forward with the
instant foreclosure action.
Further, even if HSBC authorized OCWEN to be its attorney in
fact, Ms. Dybas is not an officer of OCWEN. She is a ‘Foreclosure
Facilitator,’ a job title unknown to this Court. Therefore, the
proposed order of reference must be denied without prejudice.
…Additionally, plaintiff HSBC must address a third matter if it
renews its application for an order of reference. In the instant
action, as noted above, Scott Anderson, as Vice President of
MERS, assigned the instant mortgage to HSBC on May 1, 2007.
Doris Chapman, the Notary Public, stated that on May 1, 2007,
‘personally appeared Scott Anderson, of 1661 Worthington Road,
Suite 100, West Palm Beach, Florida 33409.’ In HSBC Bank,
N.A. v. Cherry, at 3, I observed that: Scott Anderson, in his
affidavit, executed on June 15, 2007, states he is Vice President of
OCWEN. Yet, the June 13, 2007 assignment from MERS to HSBC
is signed by the same Scott Anderson as Vice President of MERS.
Did Mr. Anderson change his employer between June 13, 2007 and
June 15, 2007. The Court is concerned that there may be fraud on
the part of HSBC, or at least malfeasance. Before granting an
application for an order of reference, the Court requires an
affidavit from Mr. Anderson describing his employment history for
the past three years. Lastly, the court notes that Scott Anderson, in
the MERS to HSBC assignment gave his address as Suite 100.
This is also the address listed for HSBC in the assignment. In a
foreclosure action that I decided on May 11, 2007 (Deutsche Bank
Nat. Trust Company v. Castellanos, 15 Misc.3d 1134[A] ),
Deutsche Bank assigned the mortgage to MTGLQ Investors, L.P. I
noted, at 4-5, that MTGLQ Investors, L.P.: According to Exhibit
21.1 of the November 25, 2006 Goldman Sachs 10-K filing with
the Securities and Exchange Commission … is a “significant
subsidiary” of Goldman Sachs…. [T]he January 19, 2007

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assignment has the same address for both the assignor Deutsche
Bank and the assignee MTGLQ Investors, L.P., at 1661
Worthington Road, Suite 100, West Palm Beach, Florida 33409.
The Court will not speculate about why two major financial
behemoths, Deutsche Bank and Goldman Sachs share space in a
West Palm Beach, Florida office suite In the instant action, with
HSBC, OCWEN and MERS, joining with Deutsche Bank and
Goldman Sachs at Suite 100, the Court is now concerned as to why
so many financial goliaths are in the same space. The Court
ponders if Suite 100 is the size of Madison Square Garden to house
all of these financial behemoths or if there is a more nefarious
reason for this corporate togetherness.
If HSBC seeks to renew its application for an order to reference,
the Court needs to know, in the form of an affidavit, why Suite 100
is such a popular venue for these corporations.
…Plaintiff has failed to submit ‘proof of the facts’ in ‘an affidavit
made by the party.’ The affidavit is submitted by Jessica Dybas, ‘a
Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC,
servicing agent and attorney in fact to the holder of the bond and
mortgage sought to be foreclosed herein.’ There must be an
affidavit by an officer of HSBC or a servicing agent, possessing a
valid power of attorney from HSBC for that express purpose.
Additionally, if a power of attorney is presented to this Court and it
refers to pooling and servicing agreements, the Court needs a
properly offered copy of the pooling and servicing agreements, to
determine if the servicing agent may proceed on behalf of plaintiff.
(EMC Mortg. Corp. v. Batista, 15 Misc.3d 1143(A) [Sup Ct, Kings
County 2007]; Deutsche Bank Nat. Trust Co. v. Lewis, 14 Misc.3d
1201(A) [Sup Ct, Suffolk County 2006] ).
The Court will grant plaintiff HSBC an order of reference when it
presents: an affidavit by either an officer of HSBC or someone
with a valid power of attorney from HSBC, possessing personal
knowledge of the facts; an affidavit from Scott Anderson clarifying
his employment history for the past three years and what
corporation he serves as an officer; and, an affidavit by an officer
of HSBC explaining why HSBC would purchase a nonperforming
loan from Delta Funding Corporation, and why HSBC, OCWEN,
MERS, Deutsche Bank and Goldman Sachs all share office space
in Suite 100.” (emphasis added) HSBC Bank USA, N.A. v.
Valentin Slip Copy, 18 Misc.3d 1123(A), 2008 WL 239932
(N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U) (emphasis added).9

Further supporting the belief that Anderson is a robo-signer, is the response to the

plaintiff’s request for admission in Davis v. Home American Credit, Inc., Case No. 1:09-cv-
9
A copy of this decision is attached hereto as “Exhibit J”.

8
1462-TCB (United States District Court for the Northern District of Georgia), wherein Ocwen

admitted that Anderson often did not sign the documents that he was purported to have; rather,

other Ocwen employees did.10 These requests and responses read as follows:

“1) Scott Anderson did not personally place his signature or mark
on the Assignment of deed to secure debt attached as Exhibit A.

Response: Defendant objects to this Request on the grounds that it


is irrelevant and not reasonably calculated to lead to the discovery
of admissible evidence. Without waiving its objections, Defendant
admits that Mr. Anderson did not sign Exhibit A. However,
Exhibit A was signed by an employee of Ocwen duly authorized
by Anderson to sign his name.

2) The mark placed on the assignment of deed to secure debt


attached as Exhibit A as Scott Anderson is not Scott Anderson's
signature.

Response: Defendant objects to this Request on the grounds that it


is irrelevant, not reasonably calculated to lead to the discovery of
admissible evidence and is redundant. Without waiving its
objections, Defendant admits that Mr. Anderson did not sign
Exhibit A. However, Exhibit A was signed by an Employee of
Ocwen duly authorized by Mr. Anderson to sign his name.

3) The mark placed on the assignment of deed to secure debt


attached as Exhibit A as Scott Anderson replaced by another
employee of your company, not Scott Anderson.

Response: Defendant objects to this Request on the grounds that it


is irrelevant and not reasonably calculated to lead to the discovery
of admissible evidence. Without waiving its objections, Defendant
admits that Exhibit A was signed by employee of Ocwen duly
authorized by Mr. Anderson to sign his name.” (emphasis added)

Thus it appears that this entire Action was contaminated by the fraud. As a result of that

fraud, Plaintiff obrtained an order of foreclosure against the Residence. As demonstrated below,

not only in the interests of justice and fairness to Defendant, but also in protecting its own

10
A copy of these requests for admission are attached hereto as “Exhibit K”.

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integrity, this Court cannot permit Plaintiff to benefit from its own fraud, and must se the

foreclosure order aside.

II. LAW AND ARGUMENT

A. THE CIV. R. 60(B) STANDARD


Ohio Civ. R. 60(B) provides parties against whom judgment has been entered relief upon

certain conditions. Ohio Civ. R. 60(B) reads in relevant part as follows:

RULE 60. Relief From Judgment or Order …


… (B) Mistakes; inadvertence; excusable neglect; newly
discovered evidence; fraud; etc. On motion and upon such terms as
are just, the court may relieve a party or his legal representative
from a final judgment, order or proceeding for the following
reasons…
…(5) any other reason justifying relief from the judgment.

In order to prevail on a motion for relief from judgment pursuant to the foregoing Rule, a movant

must demonstrate the following: the existence of a meritorious claim or defense, entitlement to

relief under one of the grounds stated in Civ. R. 60(B)(1) through (5), and timeliness of the

motion. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146.

Even though Ohio courts are granted broad discretion in deciding Civ R. 60(B) motions,

they must be mindful of the long-standing admonition that cases are to be decided on their merits

and not on procedural grounds. Marion Production Credit Association v. Cochran, 40 Ohio St.

3d 265, 271; 533 N.E.2d 325; 1988 Ohio LEXIS 458. As demonstrated below, each of the

elements under the GTE Automatic Electric Rule have been satisfied, and therefore, Defendant’s

Motion for Relief from Judgment should be granted. Further, if “the movant files a motion for

relief from judgment and it contains allegations of operative facts which would warrant relief

under Civil Rule 60(B), the trial court should grant a hearing to take evidence and verify these

facts before it rules on the motion.” Coulson v. Coulson (1983), 5 Ohio.St.3d 12, 16. See Also,

10
U.B.S. – Real Estate Securities, Inc. v. Teague, 2010-Ohio-5634 (C.A. Second Dist, dec.

11/19/10).

B. DEFENDANT HAS A MERITORIOUS DEFENSE

1. THE MERITORIOUS DEFENSE STANDARD

In considering whether a party has a meritorious defense, one necessarily must consider

whether there are any grounds which may have prevented judgment under an established legal

doctrine, that is, whether a defense goes “to the merits, substance, or essentials of the case.”

Wayne Mut. Ins. Co. v. Marlow (June 5, 1998), Montgomery App. No. 16882, citing Black’s

Law Dictionary, abridged (6 Ed. Rev. 1991). Further, Defendant is only required to allege the

existence of such a defense; she is not required to demonstrate that she will succeed on the merits

of said defense. State v. Yount, 175 Ohio.App.3d 733, 2008-Ohio-1155, ¶ 10

In determining whether Defendant can demonstrate that she has a meritorious defense to

this Action, it is necessary to consider whether Plaintiff met its burden of demonstrating that

there is no issue of material fact with regard to whether it was the proper party to assert the claim

in the first place; in other words, whether it had standing. The Ninth District Court of Appeals

recently had the opportunity to speak again as to the well recognized standard by which a trial

court must review a summary judgment motion. In that case, U.S. Bank, N.A. v. Richards, 2010

– Ohio – 3981(Ct. App. 9th Dist., dec. 8/25/10), the Court stated:

“…’Pursuant to Civ. R. 56(c), summary judgment is appropriately


rendered when ‘(1) [n]o genuine issue as to any material fact
remains to be litigated; (2) the moving party is entitled to judgment
as a matter of law; and (3) is appears from the evidence that
reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the
motion for summary judgment is made, that conclusion is adverse
to that party.’” Id. at paragraph 11.

11
Applying this standard, the Richards Court reversed the trial court’s award of summary

judgment ordering foreclosure against the defendant-homeowner’s property. Based on the newly

discovered fraud perpetuated by the Plaintiff in the form of the crucial documents allegedly

signed by Dybas and Anderson, this Court is compelled to act likewise and grant Defendant’s

Motion for Relief from Judgment.

2. IT IS NOW KNOWN THAT THE DYBAS AFFIDAVITS COULD NOT


PROPERLY BE CONSIDERED BY THE COURT.

When ruling on a motion for summary judgment, a court may consider evidence that

complies with Civ.R. 56. Civ.R. 56(C) provides that “pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and

written stipulations of fact” are properly considered when a court rules on a motion for summary

judgment. With regard to affidavits, Civ.R. 56(E) provides that “affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.”

Further, sworn or certified copies of all papers referred to in an affidavit shall be attached to or

served with the affidavit.” See, also, Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d

314, 2002-Ohio-2220, 767 N.E.2d 707, ¶26.

Thus, the Rule sets forth three (3) distinct requirements which must be met before a Court

can properly consider an affidavit in connection with a summary judgment motion. 1) it must be

made on personal knowledge; 2) it must set forth facts admissible in evidence (i.e. non-hearsay);

and 3) it must affirmatively show that the affiant is qualified to testify.

Here, Plaintiff submitted two Affidavits of Jessica Dybas, a purported “Foreclosure

Facilitator” for Ocwen. The “ASJ” stated in part:

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“3….copies of the Promissory Note and Mortgage Deed attached
to Plaintiff’s Complaint are true and accurate copies of the original
instruments held by Plaintiff;…

5 That Affiant has examined and has personal knowledge of the


loan account of Santana Cline;…”(emphasis added)

Contrary to Dybas’ statement in Pargraph 3, no copy of the Note was attached to the Complaint,

clearly indicating that she did not even look at the document she was trying to authenticate.

Further her statement in Paragraph 5 that she had personal knowledge of the facts to which she

was attesting. The ALN only adds to the mystery. Therein, Dybas states as follows:

“…Affiant further states that they (OCWEN) have personal


knowledge of the history of said loan…Affiant further states that,
as a result of mishandling the document, the whereabouts of the
original promissory note is unknown…” (emphasis added)

This Affidavit, indicating that the Note has been lost, was signed by Dybas a month and a half

before the AST, wherein she unequivocally stated that Plaintiff held the original Note.

These two Affidavits are clearly irreconcilable with each other. Under Civ.R. 56(E),

Affidavits are to be made on personal knowledge. Further, under the Rule, it is the duty of the

Plaintiff to “show affirmatively that affiant is competent to testify to the matters stated in the

affidavit.” Because the two Affidavits supposedly signed by Dybas that were submitted to the

Court clearly contradict each other, Dybas’s testimony was speculative, and should have been

correctly disregarded by the trial court. See Carter v. U-Haul Internatl., 10th Dist. No. 09AP-

310, 2009-Ohio-5358, ¶10.

More importantly for purposes here, given the recent news about behemoth financial

institutions such as Plaintiff’s regular use of robo-signers, it has been discovered that Dybas’

Affidavit was disregarded by a Court in New York because her testimony was considered

13
inadequate to prove that HSBC was the proper party to bring that foreclosure action. The Court

stated that:

…Plaintiff has failed to submit ‘proof of the facts’ in ‘an affidavit


made by the party.’ The affidavit is submitted by Jessica Dybas, ‘a
Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC,
servicing agent and attorney in fact to the holder of the bond and
mortgage sought to be foreclosed herein.’ There must be an
affidavit by an officer of HSBC or a servicing agent, possessing a
valid power of attorney from HSBC for that express purpose.
Additionally, if a power of attorney is presented to this Court and it
refers to pooling and servicing agreements, the Court needs a
properly offered copy of the pooling and servicing agreements, to
determine if the servicing agent may proceed on behalf of plaintiff.
(EMC Mortg. Corp. v. Batista, 15 Misc.3d 1143(A) [Sup Ct, Kings
County 2007]; Deutsche Bank Nat. Trust Co. v. Lewis, 14 Misc.3d
1201(A) [Sup Ct, Suffolk County 2006] ). HSBC Bank USA,
N.A. v. Valentin Slip Copy, 18 Misc.3d 1123(A), 2008 WL
239932 (N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U)

As with the Court in New York, given the recently discovered information regarding Dybas’

proclivity to sign affidavits wearing a number of corporate hats it now appears likely that, as a

“Foreclosure Facilitator” of Ocwen, Dybas did not have the “personal knowledge” required

under Rule 56(E), and that she was not “competent to testify to the matters stated in the

affidavit.”

Because the Affidavit now appears to have been improperly considered by the Court,

summary judgment should not have been rendered. This is so since unauthenticated materials

are inadmissible. Evid.R. 901(A); see, also, U.S. Bank N.A. v. Richards, 9th Dist. No. 25052,

2010-Ohio-3981. Thus, all Notes, Mortgages, or Assignments presented with or referred to in

Dybas’s affidavits did not properly come into evidence. Absent this evidence, Plaintiff failed to

meet its burden of proving that it was the holder of the Note and Mortgage, and therefore that it

was the real party in interest. Thus Defendant has demonstrated a meritorious defense on this

ground alone.

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3. THE RECENTLY DISCOVERED SECOND ASSIGNMENT VITIATES THE
EFFECTIVENESS OF FIRST ASSIGNMENT, WHICH WAS CONSIDERED
BY THE COURT IN GRANTING SUMMARY JUDGMENT.

Under Civ.R. 56(C),

“Summary judgment shall be rendered forthwith if the pleadings,


depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact,
if any, timely filed in the action, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law… A summary judgment shall not be
rendered unless it appears from the evidence or stipulation, and
only from the evidence or stipulation, that reasonable minds can
come to but one conclusion and that conclusion is adverse to the
party against whom the motion for summary judgment is made,
that party being entitled to have the evidence or stipulation
construed most strongly in the party’s favor…(emphasis added)

Here, Plaintiff submitted the First Assignment, supposedly signed by Anderson as “Vice

President” of MERS on March 14, 2007, one (1) day after the Complaint was filed. Only

recently did the Second Assignment surface. That Assignment, backdated to a day before the

Complaint was filed, was supposedly signed by Anderson almost three (3) years after its

effective date. Here again, it appears that a critical document leading the foreclosure order, the

First Assignment, was not properly considered by this Court, constituting yet another meritorious

defense.

In addition, Ocwen admitted in a deposition that other people signed Scott Anderson’s

names to Assignments of Mortgages. “Exhibit ___”, supra. There are several different

variations of Scott Anderson’s signature, which further establishes that several people signed

documents as Scott Anderson. See Exhibits------. Scott Anderson’s Assignments of Mortgage

were executed in Florida. Under Florida Statute 701.02(2), the rule states:

“This section also applies to assignments of mortgages resulting


from transfers of all or any part or parts of the debt, note or notes
secured by mortgage, and none of same is effectual in law or in

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equity against creditors or subsequent purchasers for a valuable
consideration without notice, unless a duly executed assignment be
recorded according to law.”

This rule is similar to that in Ohio. Under O.R.C. 5301.01, the rule states:

(A) A deed, mortgage, land contract… shall be signed by the


grantor, mortgagor, vendor, or lessor in the case of a deed,
mortgage, land contract, or lease or shall be signed by the trustee in
the case of a memorandum of trust. The signing shall be
acknowledged by the grantor, mortgagor, vendor, or lessor, or by
the trustee, before a judge or clerk of a court of record in this state,
or a county auditor, county engineer, notary public, or mayor, who
shall certify the acknowledgement and subscribe the official’s
name to the certificate of the acknowledgement.”

If Scott Anderson did not sign either of the Assignments of Mortgage purporting to transfer the

Mortgage from MERS to Plaintiff, then the Assignments were not properly executed. As stated

above, a mortgage shall be signed before a notary public “who shall certify the

acknowledgment.” Thus, if Scott Anderson did not sign the Assignment of Mortgages in

question, those Assignments are void because they were not signed by Anderson in a notary’s

presence. It is Plaintiff’s duty to establish that Anderson actually signed the Assignments in

question. Since Plaintiff’s own agent, OCWEN, publically admitted that Anderson did not sign

his own name, both Assignments appear to be invalid, and could not have been considered by th

Court in rendering summary judgment.

Further, it appears that OCWEN, Plaintiff’s servicing agent, violate notary laws in its

robo signing approach with Anderson. Under Chapter 117.05(5) of the 2010 Florida Statute

reads,

“A notary public may not notarize a signature on a document


unless he or she personally knows, or has satisfactory evidence,
that the person whose signature is to be notarized is the individual
who is described in and who is executing the instrument. A notary
public shall certify in the certificate of acknowledgment or jurat
the type of identification, either based on personal knowledge or

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other form of identification, upon which the notary public is
relying.” (emphasis added)

Ohio law is similar. Under the O.R.C. 147.53, the rule states:

“the person taking an acknowledgment shall certify that: (A) The


person acknowledging appeared before him and acknowledged he
executed the instrument; (B) The person acknowledging was
known to the person taking the acknowledgment, or that the person
taking the acknowledgment had satisfactory evidence that the
person acknowledging was the person described in and who
executed the instrument.” (emphasis added)

Again, this forms yet another meritorious defense justifying relief from the summary judgment.

4. GIVEN ANDERSON’ APPARENT ROBO SIGNING STATUS, THERE IS A


SERIOUS QUESTION WHETHER HE HAD THE CAPACITY TO SIGN THE
ASSIGNMENTS.

In the case cited above, HSBC Bank USA, N.A. v. Valentin, Slip Copy, 18 Misc.3d

1123(A), 2008 WL 239932 (N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U). the Court stated:

…Additionally, plaintiff HSBC must address a third matter if it


renews its application for an order of reference. In the instant
action, as noted above, Scott Anderson, as Vice President of
MERS, assigned the instant mortgage to HSBC on May 1, 2007.
Doris Chapman, the Notary Public, stated that on May 1, 2007,
‘personally appeared Scott Anderson, of 1661 Worthington Road,
Suite 100, West Palm Beach, Florida 33409.’ In HSBC Bank,
N.A. v. Cherry, at 3, I observed that: Scott Anderson, in his
affidavit, executed on June 15, 2007, states he is Vice President of
OCWEN. Yet, the June 13, 2007 assignment from MERS to HSBC
is signed by the same Scott Anderson as Vice President of MERS.
Did Mr. Anderson change his employer between June 13, 2007 and
June 15, 2007. The Court is concerned that there may be fraud on
the part of HSBC, or at least malfeasance. Before granting an
application for an order of reference, the Court requires an

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affidavit from Mr. Anderson describing his employment history for
the past three years. (emphasis added)

Robo-signers working for different entities has become a concern in several other courts. In

Bank of NY v. Mulligan, 2008 NY Slip Op 31501 (June 3, 2008). In that case, the court stated:

“...Additionally, plaintiff BNY must address a third matter if it


renews its application for an order of reference. In the instant
action, as noted above, Ely Harless, as Vice President of MERS,
assigned the instant mortgage to BNY on October 9, 2007. Then,
as Vice President of COUNTRYWIDE, on March 20, 2008, he
executed the affidavit in this action. Is Mr. Harless the Vice
President of MERS or the Vice President of COUNTRYWIDE?
Did he change his employment between October 9, 2007 and
March 20, 2008?
The Court is concerned that Mr. Harless might be engaged in a
subterfuge, wearing various corporate hats. Before granting an
application for an order of reference, the Court requires an
affidavit from Mr. Harless describing his employment history for
the past three years...”

This view was repeated in HSBC Bank USA v. Perboo, 2008 NY Slip Op 51385 (U), 20

Misc 3d 1117(A). In that case, the court stated:

“Further, plaintiff must address a second matter if it renews its


application for an order of reference upon compliance with CPLR
§ 3215 (f). In the instant action, as noted above, Victor F. Parisi, in
his affidavit, dated December 14, 2007, states he is Vice President
of EQUITY ONE. Yet, the September 28, 2007 assignment from
MERS as nominee for PEOPLE'S CHOICE to HSBC is signed by
the same Victor F. Parisi, as Vice President of MERS. In my
November 20, 2007 decision and order in HSBC BANK USA,
NATIONAL ASSOCIATION AS TRUSTEE FOR NOMURA
HOME EQUITY LOAN, INC. ASSET-BACKED
CERTIFICATES SERIES 2006-FM2 v SANDOVAL, Index
Number 8758/07, the same Victor F. Parisi assigned the underlying
mortgage and note as Vice President of MERS to HSBC on March
13, 2007, and then signed the affidavit of merit as Vice President
of EQUITY ONE, authorized servicer for HSBC, the next day,
March 14, 2007. Did Mr. Parisi change his employment from

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March 13, 2007 to March 14, 2007, and again from September 28,
2007 to December 14, 2007? The Court is concerned that Mr.
Parisi might be engaged in a subterfuge, wearing various corporate
hats. Before granting an application for an order of reference, the
Court requires an affidavit from Mr. Parisi describing his
employment history for the past three years.” (emphasis added)

Because Anderson signed the recorded Previous Assignment on behalf of MERS on March 14,

2007, yet on June 15, 2007 signed on behalf of Ocwen as Vice President (as stated in the case

above), a serious question exists as to whether Anderson had the legal capacity to sign the

Assignments. This question constitutes another basis for finding that Defendant has established

a meritorious defense.

5. IN ORDER TO PROVE STANDING A FORECLOSING PARTY MUST PROVE


IT IS THE HOLDER OF THE PROMISSORY NOTE.

In a thorough analysis of the law in this area, Franklin County Court of Appeals

addressed the proof needed for a foreclosing party to establish standing. In that case, Everhome

Mortgage Company v. Rowland, 2008 – Ohio – 1282 (Ct. App. 10th Dist, dec. 3/20/08), the

Court stated:

“In foreclosure actions, the real party in interest is the current


holder of the note and mortgage. Chase Manhattan Mtge. Corp. v.
Smith, Hamilton App. No. C-061069, 2007-Ohio-5874, at ¶18;
Kramer v. Millott (Sept. 23, 1994), Erie App. No. E-94-5 (because
the plaintiff did not prove that she was the holder of the note and
mortgage, she did not establish herself as a real party in interest).
A party who fails to establish itself as the current holder is not
entitled to judgment as a matter of law. First Union Natl. Bank v.
Hufford (2001), 146 Ohio App.3d 673, 677, 679-680. Thus, in
Hufford, the Third District Court of Appeals reversed a grant of
summary judgment where a purported mortgagee failed to produce
sufficient evidence explaining or demonstrating its right to the note
and mortgage at issue. In that case, the record contained only
‘inferences and bald assertions’ and no ‘clear statement or
documentation’ proving that the original holder of the note and
mortgage transferred its interest to the appellee. Id. at 678. The
failure to prove who was the real party in interest created a genuine

19
issue of material fact that precluded summary judgment. Id. at
679-680.
Similarly, in Washington Mut. Bank, F.A. v. Green (2004),
156 Ohio Appp.3d 461, the Seventh District Court of Appeals
reversed the trial court’s finding of summary judgment where the
plaintiff failed to prove that it was the holder of the note and
mortgage. There the defendant executed a note and mortgage in
favor of Check ‘n Go Mortgage Services, not Washington Mutual
Bank, F.A. Although Washington Mutual Bank, F.A. submitted an
affidavit alleging an interest in the note and mortgage, it did not
state how or when it acquired that interest. Id. at 467. The court
concluded that this lack of evidence defeated the purpose of Civ.R.
17(A) by exposing the defendant to the danger that multiple
‘holders’ would seek foreclosure based upon the same note and
mortgage. Id.
In the case at bar, the note and mortgage identify
TrustCorp– not Everhome–as the lender. Therefore, Everhome
needed to present the trial court with other evidence to prove its
status as the current holder of the note and mortgage. To
accomplish this, Everhome relied upon the affidavit testimony of
Becky North, an Everhome officer. In her affidavit, North stated
that ‘the copies of the Promissory Note and Mortgage Deed
attached to Plaintiff’s Complaint are true and accurate copies of the
original instruments held by Plaintiff.’ (Emphasis added.) Beyond
this tangential reference, North’s affidavit contains no further
averments regarding Everhome’s interest in the note and mortgage.
We conclude that North’s testimony is insufficient to
establish that Everhome is the current holder of the note. First,
Everhome failed to attach the note to its complaint. Thus, North’s
statement does not prove anything with regard to the note, much
less that Everhome currently holds the note. Second, North does
not specify how or when Everhome became the holder of the note
and mortgage. Without evidence demonstrating the circumstances
under which it received an interest in the note and mortgage,
Everhome cannot establish itself as the holder.” Id. at pp. 4-5.
(emphasis added)

Without qualified evidence establishing it was the holder of the Note, Plaintiff could not

have made the requisite showing that it was the holder of the Note. In turn, without that

evidence, Plaintiff should not have been awarded summary judgment. Thus, Defendant has

established a meritorious defense, and has met the first prong of the GTE Automatic test.

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C. DEFENDANT IS ENTITLED TO RELIEF UNDER THESE GROUNDS SET
FORTH IN CIV. R. 60(B)(5)

Ohio Civ. R. 60(B)(5) provides a party against whom a judgment has been entered a

remedy in instances when there is “any other reason [not listed under Ohio Civ. R. 60(B)(1)

through Ohio Civ. R. 60(B)(4)] justifying relief from judgment.” Ohio Courts have interpreted

this rule as a “catch-all provision that reflects the inherent power of a Court to relieve a party

from the unjust operation of a judgment.” Caruso-Ciresi Inc. v. Lohman (1983) 5 Ohio St.3d

64). Further the Courts have reasoned that Civ. R. 60(B)(5) “is only utilized ‘in an extraordinary

and unusual case when the interests of justice warrant it.’” Adomeit v. Baltimore (1974), 29

Ohio App. 2d 97, 105. One of the situations where justice warrants relief from judgment under

the catch-all provision is fraud on the court.

In Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15, the Supreme Court of Ohio

distinguished “fraud” from “fraud on the court” stating:

“’Fraud upon the court’ is an elusive concept. The distinction


between ‘fraud’ on the one hand and ‘fraud on the court’ on the
other is by no means clear, and most attempts to state it seem to us
to be merely compilations of words that do not clarify. Toscano v.
Commr. of Internal Revenue (C.A. 9, 1971), 441 F.2d 930, 933.
One commentator, however, had provided this definition:
‘Fraud upon the court’ should, we believe, embrace only that
species of fraud which does or attempts to, defile the court itself, or
is a fraud perpetrated by the officers of the court so that the judicial
machinery can not perform in the usual manner its impartial task of
adjudging cases that are presented for adjudication. ‘Fraud, inter
parties, without more, should not be a fraud upon the court, but
redress should be left to a motion under 60(B)(3) or to the
independent action.’ 7 Moore’s Federal Practice (2 Ed.1971) 515,
Paragraph 60.33. See Serzysko v. Chase Manhattan Bank (C.A. 2,
1972), 461 F.2d 699; Kupferman v. Consolidated Research & Mfg.
Corp. (C.A. 2, 1972), 459 F.2d 1072, 1078; Kenner v. Commr. of
Internal Revenue (C.A. 7, 1968), 387 F.2d 689, 691. Accord
Hartford v. Hartford (1977), 53 Ohio App.2d 79, at pages 83-84.

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‘It is generally agreed that.. [a]ny fraud connected with the
presentation of a case to a court is a fraud upon the court, in a
broad sense.’ 11 Wright & Miller, Federal Practice and Procedure
(1973) 253, Section 2870. Thus, in the usual case, a party must
resort to a motion under Civ. R. 60(B)(3). Where an officer of the
court, e.g., an attorney, however, actively participates in
defrauding the court, then the court may entertain a Civ. R. 60(B)
(5) motion for relief from judgment. See Toscano,
supra.”(emphasis added).

This distinction is critical for purposes of a Civ.R. 60(B) analysis. In Coulson, supra, the

Supreme Court of Ohio expressly held that when the alleged fraud occurred between the parties,

Civ.R. 60(B)(3) is the only ground by which a party can seek relief from a prior judgment.

However, in relation to a fraud perpetrated upon the trial court, the Coulson court held that such

a fraud can be a proper basis for seeking relief from judgment under Civ.R. 60(B)(5).

Here, Plaintiff submitted Affidavits and an Assignment of Mortgage which were clearly

meant to convince the Court it had the right to foreclose on Defendant’s residence and take away

her ownership rights. This “high volume and careless approach” should no more be

countenanced by this Court than it was by the court in Bradbury Budgton.. From the evidence

that has recently come to light, it appears the Affidavits and Current Assignment presented in

this case were illegal, and fraudulent. These new facts place this matter squarely in the category

where the judicial machine has been disrupted, and are “extraordinary and unusual.” Certainly

these facts constitute grounds whereby the interests of justice not only justify, but demand, relief.

This Court should not allow fraud to be committed on it, and certainly should not permit Plaintiff

to be rewarded on account of its own with their fraud. Thus, the second prong of the GTE

Automatic test has been met.

D. DEFENDANT’S MOTION IS TIMELY.

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The Civ.R. 60(B) one-year limitation does not apply to a motion made under subsection

(B)(5); instead, a motion made under that provision is allowable if it is made within a reasonable

time. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146. The judgment from

which Defendant seeks relief was granted on November 13, 2008. However, only recently when

all the news about robo-signers came to light did the world, much less Defendant, become aware

that false and fraudulent documents were regularly being used by securitized lenders such as

Plaintiff to prosecute foreclosures in machine gun-like fashion.

Further, it was only when OCWEN made the damaging admission that other people

signed documents for Anderson did anyone outside Plaintiff’s walls knew it employed

systematic fraud in prosecuting foreclosures. To allow the judgment to stand on the issue of

timeliness would in effect be allowing Plaintiff to benefit from its own fraud. Clearly, under

these circumstances, Defendant has acted within a reasonable time in bringing this Motion, and

the third and final prong of the GTE Automatic test has been satisfied.

III. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Relief from Judgment should be

granted.

/s/ Richard B. Hardy III_____________


Daniel L. McGookey (Reg. No.
0015771) Richard Barry Hardy III
(Reg. No. 0068067) Lauren McGookey
(Reg. No. 0086407) McGOOKEY LAW
OFFICES, LLC Counsel for
Defendant Santana Cline

REQUEST FOR HEARING

Defendant hereby requests an evidentiary hearing in this matter. Under Ohio law, if a

“movant files a motion for relief from judgment and it contains allegations of operative facts

23
which would warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take

evidence and verify these facts before it rules on the motion.” Coulson v. Coulson (1983), 5

Ohio.St.3d 12, 16, quoting Adomeit, 39 Ohio App.2d at 105. Here, Defendant has filed the

instant Motion containing allegations of operative facts, each of which would warrant relief,

under Ohio Civ. R. 60(B). Therefore, Defendant should be granted a hearing to present

witnesses and argue the merits of her Motion for Relief from Judgment.

___________________________________
Daniel L. McGookey (Reg. No.
0015771) Richard Barry Hardy III (Reg. No.
0068067) Lauren McGookey (Reg. No.
0086407) McGOOKEY LAW OFFICES, LLC
Counsel for Defendant
Santana Cline

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Motion for Relief was served on this ____ th

day of March, 2011:

___________________________________
Daniel L. McGookey (Reg. No. 0015771)
Richard Barry Hardy III (Reg. No. 0068067)
Lauren McGookey (Reg. No. 0086407)
McGOOKEY LAW OFFICE, LLC
Counsel for Defendant
Santana Cline

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