Preview
. (of tina
COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHIO
US. Bank, N.A,, as Trustee for the Structured i Case No. 2007 CV 9571
Asset Securities Corporation Mortgage Loan i
Trust, 2006- NC1, | Judge Jeffrey E. Froelich
Plaintiff,
| PLAINTIFF'S MOTION TO LIFT STAY
ws | OF SALE
Wesley A. Quinn, et al.,
Defendants.
Plaintiff, U.S. Bank, N.A., as Trustee for the Structured Asset Securities
Corporation ("SASCO") Mortgage Loan Trust, 2006- NC1 (“Plaintiff”) has established
beyond dispute that it acquired the Note and Mortgage that are the subject of this
foreclosure action by negotiation and transfer prior to commencement of these
foreclosure proceedings. The evidence and testimony before this Court is irrefutable
and establishes that the originator of the subject mortgage loan to Defendants Wesley A.
Case No. 2007 CV 9571
LSR #200725626Quinn and Marion L. Quinn, New Century Mortgage Corporation, sold the Loan to
Lehman Brothers who sold and transferred the Loan, for immediate resale, to
Structured Asset Securities Corporation, Depositor to the SASCO Mortgage Loan Trust,
2006- NCI. See, Affidavit of Bailee of Original Master Custodial File, which is being filed
contemporaneously herewith.
Defendants, by comparison, argue in vain that the copy of the Note attached to
Plaintiffs Complaint was not the endorsed Note and that such is somehow evidence
that Plaintiff was not the owner and holder of the Note as of the date it filed its
foreclosure action. Defendants make much ado about nothing. It is generally
understood and known that the loan original file, and the Custodial File, are distinct
records. The loan origination file is maintained by the records custodian, typically the
servicer of the loan, and the Custodial File is held by the Custodial Agent for the
Plaintiff Trustee. The Custodial File contains the original Note and Mortgage, among
other documents. When Plaintiff filed its Complaint for Foreclosure, it attached a copy
of the Note obtained from the loan origination file. This does not invalidate or
legitimately call into question Plaintiff's ownership of the loan.
Plaintiff has filed the Affidavit of Bailee of Master Custodial File attaching a
duplicate copy of the Original Note, as contained in the Custodial File, which bears the
blank endorsement of New Century Mortgage Corporation. The Bailee has offered to
produce for the Court’s and defense counsel’s inspection the Master Custodial File.The Master Custodial File is conclusive evidence that the subject Loan to Defendants
Wesley A. Quinn and Marion L. Quinn is part of the SASCO Mortgage Loan Trust,
2006-NC1. But additionally, Plaintiff has filed with this Court public records
maintained by a federal Executive Agency, the Securities and Exchange Commission,
pursuant to federal mandate, including the Mortgage Loan Trust Agreement, Mortgage
Loan Sale and Assignment Agreement for SASCO Mortgage Loan Trust 2006-NC1, the
Securitization Subservicing Agreement for SASCO Mortgage Loan Trust 2006-NC1 and
the Redacted Loan Schedule to the Securitization Subservicing Agreement.
In response to the comprehensive and irrefutable evidence and testimony before
this Court establishing Plaintiff as owner and holder of the subject Note and Mortgage,
as of June 2006, Defendants argue that the recorded mortgage assignment somehow
divested Plaintiff of its right, title and interest in and to the subject Note and Mortgage,
and then re-vested title in and to the Note and Mortgage in Plaintiff as of January 17,
2008, or possibly February 1, 2008. While imaginative, this argument is wholly without
legal support. The law in Ohio is that the creation of and interests in and to promissory
notes, being negotiable instruments, are governed by Article 3 of the Uniform
Commercial Code, codified in Ohio in Title 13, Chapter 1303 of the Ohio Revised Code.
“A promissory note, as a negotiable instrument, is freely transferable and provides the
holder with the right to demand money or bring suit to recover money on the note.”Midland Title Sec., Inc. v. Carlson (2007), 171 Ohio App.3d 678, 684, 872 N.E.2d 968,973.
See also R.C. §§1303.22(A).
Negotiation and transfer of a promissory note is defined in O.R.C. §§ 1303.21 and
1303.22, respectively. It is by negotiation and/or transfer that one acquires an interest in
a promissory note. Kernohan v. Manss (1895), 53 Ohio St. 118, 41 N.E. 258 (“Where a
promissory note is secured by a mortgage, the note, not the mortgage, represents the
debt. The mortgage is, therefore, a mere incident, and an assignment of such incident
will not, in law, carry with it a transfer of the debt. On the other hand, a transfer of the
note by the owner, so as to vest legal title in the indorsee, will carry with it equitable
ownership of the mortgage.”). Thus, the mortgage assignment filed February 1, 2008
providing record notice to the third-parties of the transfer of the subject Mortgage to
Plaintiff was not legally operative to divest Plaintiff of its ownership and status as
holder in due course of the subject Note and the mortgage incident thereto. id.
As Plaintiff has conclusively established that it was owner and holder of the
subject Note and Mortgage as of June 2006, a year and a half prior to filing the within
foreclosure action, Plaintiff was.the real party in interest with standing to bring this
foreclosure action. Defendants putative defense of lack of standing has been disproved;
thus, Defendants have no “meritorious defense” to Plaintiff's Judgment and Decree of
Foreclosure. Furthermore, Defendants’ Motion to Vacate Default Judgment, pursuant toCiv.R. 60(B), was filed out of time. Therefore, Defendants’ Motion to Vacate Default
Judgment must be denied.
Wherefore, Plaintiff hereby moves this honorable Court for an Order Vacating
the Order Staying Sheriff's Sale so that Plaintiff may immediately proceed with re-
setting the Sale.
Respectfully submitted,
Deanna C. Stoutenborough (# 0069761) ? 2
Rick D, DeBlasis, Esq. (# 0012992)
Romi T. Fox, Esq. (# 0037174)
LERNER, SAMPSON & ROTHFUSS
Attorney for Plaintiff
120 E. Fourth St., 8th Floor
Cincinnati, OH 45202
Ph.: (513) 412-6093
Fx.: (513) 362-3592
Deanna.stoutenborough@lsrlaw.comCERTIFICATE OF SERVICE
This is to certify that a true.and exact copy of the foregoing hasffeen duly served
upon the following by ordinary U.S. mail, postage prepaid, this, ay of December,
2009:
Colette S. Carr, Esq.
Asst. Prosecuting Attorney
301 West Third Street
5th Floor
Dayton, OH 45402
Attorney for Defendant, Montgomery County Treasurer
Randall J. Smith, Esq.
Miami Valley Fair Housing Center, Inc
21-23 East Babbitt Street
Dayton, OH 45405
Attorney for Defendants, Wesley and Marion Quinn
Chase Home Finance LLC successor
10790 Rancho Bernardo Road
San Diego, CA 92127
Defendant
Deanna C. Stoutenbrofigh, Esq.
Preview
. (of tina COURT OF COMMON PLEAS MONTGOMERY COUNTY, OHIO US. Bank, N.A,, as Trustee for the Structured i Case No. 2007 CV 9571 Asset Securities Corporation Mortgage Loan i Trust, 2006- NC1, | Judge Jeffrey E. Froelich Plaintiff, | PLAINTIFF'S MOTION TO LIFT STAY ws | OF SALE Wesley A. Quinn, et al., Defendants. Plaintiff, U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corporation ("SASCO") Mortgage Loan Trust, 2006- NC1 (“Plaintiff”) has established beyond dispute that it acquired the Note and Mortgage that are the subject of this foreclosure action by negotiation and transfer prior to commencement of these foreclosure proceedings. The evidence and testimony before this Court is irrefutable and establishes that the originator of the subject mortgage loan to Defendants Wesley A. Case No. 2007 CV 9571 LSR #200725626Quinn and Marion L. Quinn, New Century Mortgage Corporation, sold the Loan to Lehman Brothers who sold and transferred the Loan, for immediate resale, to Structured Asset Securities Corporation, Depositor to the SASCO Mortgage Loan Trust, 2006- NCI. See, Affidavit of Bailee of Original Master Custodial File, which is being filed contemporaneously herewith. Defendants, by comparison, argue in vain that the copy of the Note attached to Plaintiffs Complaint was not the endorsed Note and that such is somehow evidence that Plaintiff was not the owner and holder of the Note as of the date it filed its foreclosure action. Defendants make much ado about nothing. It is generally understood and known that the loan original file, and the Custodial File, are distinct records. The loan origination file is maintained by the records custodian, typically the servicer of the loan, and the Custodial File is held by the Custodial Agent for the Plaintiff Trustee. The Custodial File contains the original Note and Mortgage, among other documents. When Plaintiff filed its Complaint for Foreclosure, it attached a copy of the Note obtained from the loan origination file. This does not invalidate or legitimately call into question Plaintiff's ownership of the loan. Plaintiff has filed the Affidavit of Bailee of Master Custodial File attaching a duplicate copy of the Original Note, as contained in the Custodial File, which bears the blank endorsement of New Century Mortgage Corporation. The Bailee has offered to produce for the Court’s and defense counsel’s inspection the Master Custodial File.The Master Custodial File is conclusive evidence that the subject Loan to Defendants Wesley A. Quinn and Marion L. Quinn is part of the SASCO Mortgage Loan Trust, 2006-NC1. But additionally, Plaintiff has filed with this Court public records maintained by a federal Executive Agency, the Securities and Exchange Commission, pursuant to federal mandate, including the Mortgage Loan Trust Agreement, Mortgage Loan Sale and Assignment Agreement for SASCO Mortgage Loan Trust 2006-NC1, the Securitization Subservicing Agreement for SASCO Mortgage Loan Trust 2006-NC1 and the Redacted Loan Schedule to the Securitization Subservicing Agreement. In response to the comprehensive and irrefutable evidence and testimony before this Court establishing Plaintiff as owner and holder of the subject Note and Mortgage, as of June 2006, Defendants argue that the recorded mortgage assignment somehow divested Plaintiff of its right, title and interest in and to the subject Note and Mortgage, and then re-vested title in and to the Note and Mortgage in Plaintiff as of January 17, 2008, or possibly February 1, 2008. While imaginative, this argument is wholly without legal support. The law in Ohio is that the creation of and interests in and to promissory notes, being negotiable instruments, are governed by Article 3 of the Uniform Commercial Code, codified in Ohio in Title 13, Chapter 1303 of the Ohio Revised Code. “A promissory note, as a negotiable instrument, is freely transferable and provides the holder with the right to demand money or bring suit to recover money on the note.”Midland Title Sec., Inc. v. Carlson (2007), 171 Ohio App.3d 678, 684, 872 N.E.2d 968,973. See also R.C. §§1303.22(A). Negotiation and transfer of a promissory note is defined in O.R.C. §§ 1303.21 and 1303.22, respectively. It is by negotiation and/or transfer that one acquires an interest in a promissory note. Kernohan v. Manss (1895), 53 Ohio St. 118, 41 N.E. 258 (“Where a promissory note is secured by a mortgage, the note, not the mortgage, represents the debt. The mortgage is, therefore, a mere incident, and an assignment of such incident will not, in law, carry with it a transfer of the debt. On the other hand, a transfer of the note by the owner, so as to vest legal title in the indorsee, will carry with it equitable ownership of the mortgage.”). Thus, the mortgage assignment filed February 1, 2008 providing record notice to the third-parties of the transfer of the subject Mortgage to Plaintiff was not legally operative to divest Plaintiff of its ownership and status as holder in due course of the subject Note and the mortgage incident thereto. id. As Plaintiff has conclusively established that it was owner and holder of the subject Note and Mortgage as of June 2006, a year and a half prior to filing the within foreclosure action, Plaintiff was.the real party in interest with standing to bring this foreclosure action. Defendants putative defense of lack of standing has been disproved; thus, Defendants have no “meritorious defense” to Plaintiff's Judgment and Decree of Foreclosure. Furthermore, Defendants’ Motion to Vacate Default Judgment, pursuant toCiv.R. 60(B), was filed out of time. Therefore, Defendants’ Motion to Vacate Default Judgment must be denied. Wherefore, Plaintiff hereby moves this honorable Court for an Order Vacating the Order Staying Sheriff's Sale so that Plaintiff may immediately proceed with re- setting the Sale. Respectfully submitted, Deanna C. Stoutenborough (# 0069761) ? 2 Rick D, DeBlasis, Esq. (# 0012992) Romi T. Fox, Esq. (# 0037174) LERNER, SAMPSON & ROTHFUSS Attorney for Plaintiff 120 E. Fourth St., 8th Floor Cincinnati, OH 45202 Ph.: (513) 412-6093 Fx.: (513) 362-3592 Deanna.stoutenborough@lsrlaw.comCERTIFICATE OF SERVICE This is to certify that a true.and exact copy of the foregoing hasffeen duly served upon the following by ordinary U.S. mail, postage prepaid, this, ay of December, 2009: Colette S. Carr, Esq. Asst. Prosecuting Attorney 301 West Third Street 5th Floor Dayton, OH 45402 Attorney for Defendant, Montgomery County Treasurer Randall J. Smith, Esq. Miami Valley Fair Housing Center, Inc 21-23 East Babbitt Street Dayton, OH 45405 Attorney for Defendants, Wesley and Marion Quinn Chase Home Finance LLC successor 10790 Rancho Bernardo Road San Diego, CA 92127 Defendant Deanna C. Stoutenbrofigh, Esq.