SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION, ESSEX COUNTY _____________________________________________X

Deutsche Bank National Trust Company, as Trustee of Argent Securities, Inc. Asset-Backed Pass Through Certificates, Series 2004-PW1

Docket No.: F-20060-08

Plaintiff, v.

Paulette A. Dennis, et. al.

Defendant(s). ______________________________________________X

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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Comes Now, Defendant, Paulette A. Dennis, by and through her attorney, Farrel Donald, and pursuant to Rule 4:46-2(b), hereby submits her Response in Opposition to Plaintiffs Motion for Summary Judgment. SUMMARY STATEMENT Plaintiff has filed a Motion for Summary Judgment which relies on factually inapplicable decisional law; ignores the threshold issue of legal standing; fails to justify the striking of Defendants contesting Answer and denials; and purports to be supported by a Certification of Proof of Amounts Due for Plaintiff which is not made on personal knowledge and which is in fact based on incompetent hearsay. Plaintiff has failed to demonstrate the absence of genuine issues of material fact and has failed to sustain its burden to be entitled to the entry of summary judgment. Plaintiff’s own submissions and admissions therein demonstrate that there are issues of material fact before this court. In this case, the Plaintiff has submitted various allegations as to its ownership status of the subject Note and Mortgage which are highly conflicting in nature. For instance in the complaint, the Plaintiff does not even allege ownership of the Note and Mortgage, it merely alleges that an Assignment from Argent Mortgage
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Company, LLC to the Plaintiff was somewhere in existence and “in the process of being recorded.” In a subsequent “Certification of Amount Due” filed on or about October 10, 2008, the servicer for the Plaintiff alleged that the Plaintiff is “still the holder and owner of the aforesaid obligation and mortgage.” Then, in the Plaintiffs Motion for Summary Judgment, the Plaintiff merely alleges that it is the “holder of the Note and Mortgage by the aforementioned Assignment of record.” It is one thing to be a “holder” and yet another thing to be an “owner and holder.” These various allegations conflict with one another and alone present issues of material fact to this court. The Plaintiff is relying solely on an un-authenticated Assignment and a new Note it has recently submitted and is alleging to be the original, unaltered Note. Defendant specifically denies that this new copy of a Note Plaintiff has submitted is authentic and bears her actual, original signature. One thing is crystal clear: The Assignment produced by the Plaintiff/Trustee in this case specifically contradicts the governing documents for this Trust. Whether the Defendant’s mortgage loan is/was a part of this Trust has not even by established with documentary evidence but the
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Plaintiff/Trustee has already violated the operative agreements of this Trust by creating and filing a fraudulent assignment of mortgage with this court and has also placed a cloud on the title of the Defendant’s property.

RESPONSE TO PLAINTIFF’S MOTION 1. Defendant does not dispute that she obtained a mortgage from Argent Mortgage Company in the amount of $126,000.00 and signed a Note payable to Argent Mortgage Company, LLC and a Mortgage. 2. The Defendant has specifically and repeatedly disputed that the Note and Mortgage were in fact assigned to Plaintiff, at a minimum, in the manner and method presented to this court by virtue of the Assignment dated May 16, 2008 the Plaintiff has filed. The Defendant specifically disputes that Tamara Price has any lawful authority to execute this Assignment on behalf of Argent Mortgage Company, LLC; especially since the Assignment was executed on May 16, 2008 nearly one year AFTER Argent Mortgage Company ceased all operations and also because the Plaintiff attaches no documentation supporting Tamara Price’s authority to execute on behalf of Argent Mortgage
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Company, LLC. 3. The Defendant specifically denies that any amount or payments are due to the Plaintiff and Plaintiff has completely failed to provide any evidence that its demands for payment have any merit whatsoever. To date, Plaintiff has only submitted certain “hearsay” evidence that Defendant is even in default. 4. Defendant disputes that Plaintiff has legal standing to pursue this cause of action. Plaintiff has failed to document that it has any financial interest at stake in this matter and has failed to document that the Defendant’s Note is shown to be an asset of the Plaintiff. Plaintiff does not have a sufficient stake in the outcome of this action and has shown no economic injury or otherwise due to the alleged default by Defendant. Defendant specifically denies that the latest Note presented by the Plaintiff is the original Note signed by Defendant and denies that the Note presented by Plaintiff and alleged to the original Note bears her actual, original signature. 5. Defendant specifically disputes that Plaintiff is in possession of the Original Note and therefore lacks the standing to foreclose. A mortgage
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cannot be delinquent, only a Note can be delinquent. The Plaintiff is merely alleging that the Note is bearer paper and has not sufficiently demonstrated such. If the Note is found to be un-authentic or not the original, then Plaintiff is merely in possession of a worthless piece of paper. 6. Defendant specifically disputes Plaintiffs allegations in ¶6 of its Motion for Summary Judgment. 7. Defendant specifically disputes that the Assignment is authentic and contends that the Plaintiff fabricated this Assignment as a means to “prop up” its allegations as the owner and holder of the Note and Mortgage so that it could rely on such document to attempt to defeat Defendant’s argument and defense that it lacks standing. Plaintiff contends that the Assignment was in its possession prior to the filing of the Complaint however Plaintiff failed to attach the Assignment to its complaint but rather it merely references the existence of such a document. If the Assignment was authentic and it truly was in possession of the document prior to the filling of the complaint then it would be plausible that Plaintiff would have been able to simply attach
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the Assignment to its complaint. Furthermore, the Assignment produced by Plaintiff DIRECTLY CONFLICTS WITH THE GOVERNING DOCUMENTS THAT PLAINTIFF IS CONTROLLED BY IN ITS CAPACITY AS TRUSTEE FOR ARGENT SECURITIES, INC. ASSET BACKED PASS THROUGH CERTIFICATES SERIES 2004-PW1. 8. Defendant specifically denies Plaintiffs allegation that there are no material issues of fact and to the contrary, the Defendant has and continues to show this court that serious issues of fact do exist which go to the heart of this cause of action. MEMORANDUM OF LAW 9. Plaintiff’s view of the scope of Chancery litigation is as wrongfully

narrow as that found by the court in Leisure Technology-Northeast, Inc. v. Klingbiel Holding Company, 137 N.J.Super. 353, 349 A.2d 96 (N.J. Super A.D. 1975), wherein it was held that “R.4:6-2 requires that every defense to an action ‘legal or equitable, in law or in fact” be asserted in an answer, and that one of the purposes of the adoption of the Judicial Article of the 1947 Constitution was to permit the resolution of all aspects of a controversy between parties to be resolved in a single forum, whether the claims be legal
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or equitable in nature. 137 N.J.Super. at 357. 10. The Courts of New Jersey have apparently not addressed the

specific factual situation in this case. In instances where there is no New Jersey case “on point”, the Courts of New Jersey have utilized opinions from other jurisdictions for guidance. (See, e.g., Greate Bay Hotel & Casino, Inc. v. City of Atlantic City, 264 N.J.Super. 213, 217-218, 624 A.2d 102 (N.J. Super L. 1993)(analysis of treatment of business trusts as distinct legal entities by various other jurisdictions including California, New York, and Michigan where no New Jersey case explicitly dealt with types of trusts in case); Gregory v. Allstate Insurance Company, 315 N.J.Super. 78, 82-83, 716 A.2d 573 (N.J.Super.L. 1997)(analyzing split of authority in jurisdictions which considered issue of whether victim of unintentional auto collision was covered by uninsured motorist coverage). The Courts of the State of New York have been repeatedly presented with the legal standing issues in foreclosure actions raised in this case, and have consistently held that when there is no proof that the foreclosing party had the requisite legal interest in the mortgage and note at the time that it filed the foreclosure action that dismissal of the action was proper.

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11.

In mortgage foreclosure actions (as in all actions), the foreclosing

party must have standing to bring the action. Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is blocked, the pathway to the courthouse is blocked. …Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request….If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. IndyMac Bank v. Bethley, 2009 NY Slip Op 50186(U)(N.Y .Sup.Ct. 2/6/2009), citing Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]; Caprer v. Nussbaum, 36 AD3d 176, 181 [2d Dept 2006]; Stark v. Goldberg, 297 A2d 203 [1st Dept 2002]. 12. Where there is no evidence that the plaintiff, prior to

commencing a foreclosure action, is the holder of the mortgage and note or took physical delivery of the mortgage and note or that same were conveyed by valid written assignment, the plaintiff did not have standing to institute the action. New Century Mortgage Corporation v. Durden et al., 2009 NY Slip Op 50175(U) (N.Y Sup. Ct. 2/2/09), citing Deutsche Bank Trust Co. Ams. V. . Peabody, 20 Misc. 3d 1108A (Sup.Ct. Saratoga County 2008) and
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Countrywide Home Loans, Inc. v. Taylor, 17 Misc. 3d 595 (Sup.Ct. Suffolk County 2007) and additional cases cited therein. 13. A plaintiff has no foundation in law or fact to foreclose upon a

mortgage in which the plaintiff has no legal or equitable interest, or where an assignment of the mortgage post-dates the filing of the complaint, the plaintiff does not have the requisite ownership interest at the time of filing. As a foreclosure of a mortgage may not be brought by one who has no title to it and absent a legally effective transfer of the debt, the (post-filing) assignment of the mortgage is a legal nullity. U.S. Bank National Association v. Kosak et al., 2007 NY Slip Op 51680(U)(N.Y Sup.Ct. 9/4/2007), citing Katz . v. East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998] and Kluge v. Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dpet 1988]. STATEMENT OF FACTS 14. In addition to the disputed issues of material fact set forth in the

Defendant’s Statement of Material Facts filed simultaneously herewith, the Defendant has propounded a First Request for Production, First Request for Admissions, and First Set of Interrogatories upon Plaintiff, none of which have been responded to as of the date of this Response other than to summarily
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object to nearly all of the discovery as “overly burdensome. These discovery requests seek information as to the Plaintiff’s legal standing including the chain of title to the mortgage and note which are factual issues material to not only the Plaintiff’s claim but also the affirmative defense of the Defendant and which relate specifically to the subject Note and Mortgage. As there is a dispute as to the absence of factual issues at this early stage of the proceedings where the case is not fully developed, summary judgment is inappropriate. Velantzas v. Colgate-Palmolive Company, Inc., 109 N.J. 189, 193, 536 A.2d 237 (N.J. 1987): 15. Generally, we seek to afford “every litigant who has a bona fide

cause of action or defense the opportunity for full exposure of his case”, and “When “critical facts are peculiarly within the moving party’s knowledge,” it is especially inappropriate to grant summary judgment when discovery is incomplete. 109 N.J. at 193, citing United Rental Equip.Co. v. Aetna Life and Casualty Ins. Co., 74 N.J. 92, 99, 376 A.2d 1183 (1977)(citing Robins v. Jersey City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957), and Martin v. Educational Testing Serv., Inc., 179 N.J. Super 317, 326, 431 A.2d 868 (Ch.Div.1981). In cases where a suit is in an early state and not fully developed, the
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standard by which a court ought to review a judgment terminating it now is from the standpoint of whether there is any basis upon which the plaintiff should be entitled to proceed further. Velantzas, supra at 193, citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 193, 188 A.2d 24 (1963). 16. Plaintiff also attempts to support its Motion for Summary

Judgment with the Certification of Proof of Amount Due by an unnamed and unrecognizable person claiming to be a “Litigation Specialist” but who is not an officer or director of the Plaintiff and who failed to fully identify himself and who exactly he is employed by. The subject Certification is not made on personal knowledge, jumps to several legal conclusions which this person cannot simply make and admits that it is based on a “review of the records of the plaintiff”. As the Certification is not based on personal knowledge, the statements in the Certification can only be based on information and belief. The Plaintiff also failed to attach to its Certification any of the documents the Affiant referred to in his statements. 17. Rule 1:6-6 requires that Certifications in support of Motions be

made on personal knowledge. Personal knowledge excludes matters based on information and belief. See., e.g., Wang v. Allstate Ins. Co., 125 N.J. 2, 16
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(1991); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 153 (1988). The Certification, which is based on a “review of computerized records” (which are per se incompetent hearsay) by someone without personal knowledge, is thus incompetent to support the Plaintiff’s Motion for Summary Judgment as a matter of law and New Jersey procedure. The Certification also makes reference to and attaches the Assignment (was attached as Exhibit “C” to the Certification). This Assignment is the very document demonstrating a substantial issue of material fact in that this Assignment directly conflicts with specific provisions in the Pooling and Servicing Agreement that the Plaintiff attaches as Exhibit “D” to their Motion for Summary Judgment (only the first page of the Pooling and Servicing Agreement was attached by Plaintiff). 18. Article II of the Pooling and Servicing Agreement, attached as

Exhibit B to this Response clearly states on page 77 that “the Depositor... does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse... all the right, title and interest of the Depositor, in and to the Mortgage Loans identified in the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan
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Purchase Agreement, all other assets included or to be included in the REMIC I and the Cap Contracts.” The Depositor for this Trust and under this specific Pooling and Servicing Agreement is “Argent Securities, Inc.” and is clearly not the Assignor, Argent Mortgage Company, LLC, on the Assignment produced by Plaintiff. 19. Argent Securities, Inc. is a specific, separate entity and this

entity is NOT Argent Mortgage Company, LLC. Plaintiff produced an Assignment after filing its Complaint that alleges to assign the Subject Note and Mortgage from ARGENT MORTGAGE COMPANY, LLC TO DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE OF ARGENT SECURITIES, INC ASSET BACKED PASS THROUGH CERTIFICATES, SERIES 2004-PW1.” This Assignment DIRECTLY CONFLICTS WITH THE POOLING AND SERVICING AGREEMENT GOVERNING THIS TRUST and raises genuine issues of material facts as to when (if ever) Plaintiff came into any ownership rights of either the Note or the Mortgage. The Pooling and Servicing Agreement Conveyance clauses on page 77 also specifically reference the “Mortgage Loan Schedule” and the “Mortgage Loan Purchase Agreement.” Neither of these documents has been
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attached by the Plaintiff to conclusively demonstrate the Defendant’s Note and Mortgage have ever been or ever were deposited into and/or assigned to this Trust, and even if so, specifically, when that happened. 20. Additionally, the Prospectus and the Pooling and Servicing

Agreement clearly stipulate that the Closing Date for this Trust was “on or about June 7, 2004 – see Exhibit C to this Response for the pertinent parts of the Prospectus. In the case of a Mortgage-Backed Securitized Trust, it is always necessary for the Trust to establish an “unbroken chain” of transfers of the mortgage notes from the Originator to the Trust. The objective of the securitization process is to make the mortgage notes as “bankruptcy remote” as is legally possible from any claims against the Originator, Sponsor or Master Servicer. The operative document for the mandatory note transfer rules in connection with the mortgage notes is the Pooling and Servicing Agreement (PSA) or sometimes referred to as the Pooling Agreement or the Servicing Agreement. The applicable statutory laws include Articles 3 and 9 of the Uniform Commercial Code and any local statutes related to real estate law. 21. To the point, the Section 2.01(iv) of the Pooling and Servicing
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Agreement (Exhibit C) for the Trust that this loan was deposited into says that “In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents (iv) the original recorded intervening Assignments of the Mortgage showing a complete chain of assignments from the Originator to the person assigning the mortgage to the Trustee...” (emphasis mine). 22. Exhibit A of this Response clearly demonstrate the Chain of

Title and Ownership of the Mortgage Loans for the specific Trust the Plaintiff is acting as Trustee for. 23. The Originator – normally the party who wrote and funded the

original mortgage transaction for the consumer. In this transaction, it was Argent Mortgage Company, LLC. 24. The Warehouse Lender – generally the entity that provides the

“interim” funding for the originator (the warehouse lender normally just files a UCC-1 financing statement as to the notes or claims perfection by possession and always claims a security interest in the Note and Mortgage until it is made whole. The Warehouse Lender in this transaction has not yet
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been disclosed by the Plaintiff but there was a Warehouse Lender present in this transaction since Argent Mortgage Company was not a bank and therefore could not monetize a Note without the assistance of a bank or warehouse lender. 25. The Seller and Master Servicer – the party who organized the

securitization of the mortgage and submitted the original registration statements to the Securities and Exchange Commission (often times, the Sponsor also assumes the role of “Master Servicer” or “Servicer”). The Seller and Master Servicer in this transaction is/was Ameriquest Mortgage Company and, if the Defendant’s loan was part of this trust and securitization process as the Plaintiff alleges, then Ameriquest definitely took possession and ownership of the Note and Mortgage from Argent Mortgage Company. 26. The Depositor – is the last party in the chain to own the Note

before it is transferred to the Trust. In this trust, the Depositor is Argent Securities, Inc. 27. The Trustee – through a named trust is the entity that owns the

notes for the benefit of the parties who invested in the various tranches of
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bonds issued by the Trust. In this trust, the Trustee is Deutsche Bank National Trust Company. 28. Since there were so many missing elements to the Plaintiffs

complaint along with huge leaps in allegations, Defendant initiated a discovery process to put the Plaintiff on notice that it needed to prove up its claims of owner and holder of her Note and Mortgage, not merely allege it and then produce an un-authenticated Assignment AFTER THE FACT to create the illusion of ownership when this same Assignment directly conflicts with the governing documents of the Trust it is acting as a Trustee for. ELECTION BY TRUST TO BE TREATED AS A REMIC 29. A REMIC (Real Estate Mortgage Investment Conduit) is a

corporation, trust, partnership or a segregated pool of assets that qualifies for special tax treatment under the Internal Revenue Code of 1986 (as amended, the “IRC”). 30. The principal advantage of forming a REMIC’s for the sale of

mortgage-backed securities is that REMIC’s are treated as pass-through vehicles for tax purposes helping avoid double-taxation. For instance, in most mortgage-backed securitizations, the owner of a pool of mortgage loans (the
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Sponsor or Master Servicer usually) sells and transfers such loans to a special purpose entity, usually a trust, that is designed specifically to qualify as a REMIC, and, simultaneously, the special purpose entity issues securities that are backed by cash flows generated from the transferred assets to investors in order to pay for the loans along with a certain return. If the special purpose entity or the assets transferred qualify as a REMIC, then any income of the REMIC is “passed through” and taxable to the certificate holders of the REMIC Regular Interests and Residual Interests. 31. According to the Prospectus (Exhibit C), page 10, under the

Section Heading “Federal Income Tax Consequences,” the Argent Securities, Inc., Asset Backed Pass Through Certificates, Series 2004-PW1 Trust that this loan was allegedly deposited into is electing to be treated as a REMIC, which provides for pass-through tax treatment of the income generated by the Trust assets, thus the name Mortgage Pass Through Certificates, Series 2004PW1. 32. According to 26 CFR § 1.860D-1 (a) Definition of a REMIC, “A

real estate mortgage investment conduit (or REMIC) is a qualified entity, as defined in paragraph (c)(3) of this section, that satisfies the requirements of
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section 860D(a).” 33. According to 26 CFR § 1.860D-1 (c) (2) Identification of

assets. Formation of the REMIC does not occur until—(i) The sponsor identifies the assets of the REMIC, such as through execution of an indenture with respect to the assets; and (ii) The REMIC issues the regular and residual interests in the REMIC. 34. In other words, the REMIC is not officially formed until the

Sponsor/Seller identifies the specific assets of the REMIC (the specific loans) and the REMIC subsequently issues the regular and residual interests in the REMIC. 35. The Prospectus and PSA specifically identify a Closing Date which

is the last day that an asset (mortgage loan) can be “identified” for inclusion in the Trust/REMIC. The Closing Date also serves as the Startup Day for the REMIC. According to Internal Revenue Code, Section 860, “All of a REMIC’s loans must be acquired on the startup day of the REMIC or within three months thereafter.” Any contribution of an asset (other than cash) that is contributed to the REMIC after the Startup Day is deemed an “unqualified contribution” and can cause the entire REMIC Trust to lose its
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tax-free status which would be catastrophic to the Trust and all the individual shareholders or certificateholders because the Trust would then be subjected to double-taxation. 36. The Closing Date/Startup Day for this Trust/REMIC was: on

or about June 7, 2004 37. In order for the Trust to qualify as a REMIC, all steps in the

“contribution” and transfer process (of the notes) must be true and complete sales between the parties and within the three month time limit from the Startup Day. Therefore, every transfer of the Note(s) for inclusion in the Trust must be a true purchase and sale, and, consequently the Note must be endorsed from one entity to another and the corresponding mortgages must be assigned in the same chain. Any mortgage note/asset identified for inclusion in a Trust seeking a REMIC status MUST be deposited into the Trust within the three month time period calculated from the official Startup Day of the REMIC as per Section 860 of the Internal Revenue Code. There is no alternative option. 38. The assignments of mortgage must follow the same chain of

ownership to avoid de-linking the Note from the Mortgage. According to
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Section 2.01 of the PSA, “the depositor will cause the mortgage loans... to be assigned to the trustee.” According to the Prospectus and PSA for this Trust, the Note ownership Chain goes from: Originator to the Seller (Argent Mortgage Company, LLC to Ameriquest Mortgage Company) Seller to the Depositor (Ameriquest Mortgage Company to Argent Securities, Inc.) Depositor to the Trustee on behalf of the Trust (Argent Securities, Inc. to Deutsche Bank) 39. In a securitized transaction involving mortgage loans, the

Depositor is always the last party in the chain to own the note before it is sold and transferred (deposited into) the Trust. See also Exhibit A – Chain of Ownership Map. 40. According to two REMIC experts, Jeff Steiner and James Butler,

“The REMIC rules require that REMIC pools be static--subject to very limited exceptions, they cannot be expanded, or significantly altered once formed.
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Failure to strictly observe these rules is the tax equivalent of Armageddon for REMIC investors, servicers and other participants, because the loss of REMIC status is a catastrophic event in terms of double taxation, and even penalty taxes, on pool income.” Thus, one would logically conclude that no party in the ownership chain of the Notes, especially the Servicer or the Trustee, would do anything that could possibly jeopardize the REMIC status of the Trust. 41. Assuming full IRS and SEC Compliance on this contribution and

transfer process of the subject loan along with all other loans included in this Trust, the subject Note needed to have gone through the complete chain of ownership and deposited into the Trust by the Depositor, Argent Securities, Inc. by the date of September 7, 2004. 42. The assignment that the Plaintiff produced in the instant case

shows an Assignment of Mortgage from the Originator (Argent Mortgage Company, LLC) to the Trustee (Deutsche Bank National Trust Company). However, the corresponding Prospectus and PSA clearly indicate that no loan in this Trust followed that chain of ownership (from Originator directly to Trustee thus skipping the Seller and the Depositor). It also shows that the
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Assignment was completed on May 16, 2008, nearly FOUR YEARS after the mandatory expiration period for loans to be deposited into this Trust and which is clearly outside of the three-month window from the Startup Day disclosed to the Securities and Exchange Commission. 43. Additionally, originators of residential loans do not deal with

Trustees in their normal course of business. In a securitized transaction, originators always sell the Notes and transfer ownership to a Master Servicer or a Seller/Sponsor who subsequently sells the Notes and transfers ownership to the Depositor and subsequently to the Trustee for the benefit of the Trust. 44. These are all genuine issues of material fact in this case which go

to the heart of the Plaintiff allegations that it has the Standing to bring this cause of action. Since there are many issues of fact plainly enumerated in this case and due to the fact that there is still outstanding discovery specific and material to this case and Plaintiffs allegations, Plaintiff’s Motion for Summary Judgment must thus be denied. CONCLUSION 45. Again, one thing is crystal clear: The Assignment produced
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by the Plaintiff/Trustee in this case specifically contradicts the governing documents for this Trust. Whether the Defendant’s mortgage loan is/was a part of this Trust has not even been established with documentary evidence but the Plaintiff/Trustee has already violated the operative agreements of this Trust by creating and filing a fraudulent assignment of mortgage with this court and has also placed a cloud on the title of the Defendant’s property. 46. The Defendant specifically disputes that the mere copy of what

the Plaintiff alleges to be the original note is in fact authentic and disputes that it is her actual signature on this Note that the Plaintiff has recently filed and which is different than a copy of the Note the Plaintiff originally filed with this court. 47. Plaintiff has, by its very submissions and admissions,

demonstrated that there are genuine issues of material fact as to its status and when, if ever, Plaintiff came into any ownership interest in either the Note or Mortgage. Plaintiff’s refusals to comply with Defendant’s discovery requests are improper. Summary judgment for Plaintiff is thus inappropriate. 48. The Plaintiff has failed to show conclusively and with

documentary evidence that it will suffer any injury due to the alleged default
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of the Defendant and has failed to document that the mortgage loan in this case is an Asset on its books and ledgers. If the Plaintiff has not and will not suffer any economic or other injury that it has failed to show that is a real party in interest. 49. The Certification of Proof of Amount Due, which consists of

incompetent hearsay, is legally inadmissible and does not in any way support the entry of summary judgment for Plaintiff. WHEREFORE, Defendant, Paulette A. Dennis, by and through her attorney, Farrel Donald, prays that this honorable court will find that genuine issues of material fact exist, recognize her due process right to discovery and find in Defendant’s favor and deny the Plaintiff’s Motion for Summary Judgment.

Respectfully Submitted,

_________________________________
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Farrel Donald, Esq. (NY No. 4671575) Attorney for Defendant 242 Fountain Ave. Brooklyn, NY 11208 Phone: (347) 278-2509 Facsimile: (718) 341-6873

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document has been furnished by US Mail to Fein, Such, Kahn & Shepard, P.C. located at 7 Century Drive, Suite 201, Parsippany, NJ 07054, on this _____ day of ____________, 2010.

Respectfully Submitted,

By: ____________________________

Joshua Sears, Esq. Fein, Such, Kahn & Shepard, P.C. Attorneys for Plaintiff
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7 Century Drive, Suite 201 Parsippany, NJ 07054 Phone: (973) 538-4700 Facsimile: (973) 538-8234

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