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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Friday, January 15, 2010 10:38:00 AM
CASE NUMBER: 2007 CV 09571 Docket ID: 14714430
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
U.S. Bank N.A. as Trustee, CASE NO. 2007-CV-9571
Plaintiff
JUDGE Jeffrey E. Froelich
-v-
DEFENDANTS’ RESPONSE TO
Wesley A. Quinn, et al, PLAINTIFF’S MOTION TO
LIFT STAY OF SALE
Defendants.
Defendants Wesley and Marion Quinn respond to Plaintiff’s Motion to Lift Stay
of Sale. Plaintiff’s latest motion and attached affidavit and Master Custodial File
continue to fail to provide evidence that Plaintiff was the owner of the Note and
Mortgage when the foreclosure was filed. In fact this pleading creates even more doubt
and suspicion of the Plaintiff’s claims regarding possession of having the note. In
support, the Quinns state the following:
In order to have the right to foreclose on the Quinns’ home, Plaintiff needed to
have been the physical holder of the negotiated Note and Mortgage before the
foreclosure was filed. The fact remains that the only dated instrument documenting the
1
transfer of the Note and Mortgage to the Plaintiff is an assignment that was executed
after the foreclosure action was filed.
As shown in the Quinns' Response to Plaintiff’s Brief as to Real Party in Interest,
the copy of the Note that was originally attached to the Plaintiff’s Complaint did not
contain any endorsements. Additionally, this copy of the Note contained a signed stamp
notation in the upper left- hand corner certifying that this Note was the “true and
accurate copy” of the note then possessed by the Plaintiff. This unendorsed Note also
had two black circles at the top indicating that it had been hole-punched.
However once the issue of the lack of an endorsement was raised by the
Defendant, the Plaintiff miraculously has “found” a new real Note which it is now
alleging was the one it had all along. Unlike the one previously filed with this court as
a “true and Accurate copy”, this new note does not have the stamped certification at the
top left-hand corner, nor does it contain any indication of having been hole-punched.
Furthermore, this “new note” now has attached to it the undated allonge, which
although would have to have been attached to and part of the note all along, was
mysteriously absent on the other “true and accurate copy” of the note.
The documentation provided with Plaintiff’s Motion to Lift Stay of Sale still does
not provide a date, or how, when, or whether the Plaintiff actually received the Note and
Mortgage. It only provided an affiant statement about when others possibly received it,
namely LEHMAN. And due to LEHMAN possibly being involved, Plaintiff may have
received the Quinns’ Note and Mortgage at some unknown point. According to the Ohio
law, this is not enough.1 In particular, the Ohio Appellate Court has specifically stated
1
Washington Mutual Bank, F.A. v. Green, 156 Ohio App.3d 461, 467 (7 dist. 2004).
2
that presenting standing evidence through “inferences are inappropriate, insufficient
support.” 2
Specifically, Plaintiff’s Motion asserts that “the Master Custodial File is
conclusive evidence that the subject Loan” to the Quinns’ is part of the SASCO
Mortgage Loan Trust, 2006-NC. Yet, clearly in this Master Custodial File is the Note
containing an undated blank endorsement from New Century Mortgage, the original
lender, and an assignment dated March 3, 2006, from New Century Mortgage to no one
in particular, as the assignee was never filled in.
Furthermore, Plaintiff’s attorney has become a witness in this action, acting as
affiant provided an affidavit with the Master Custodial File stating that she is the “Bailee
of the Plaintiff’s designated Custodial Agent and designated Master Servicer, has
physical possession and custody, under bailment from and for the benefit of the
Plaintiff, of the Custodial Agent’s Master Custodial File containing the operative original
loan documents for the subject loan.” If these are the original loan documents as the
affidavit states, these loan documents fail to provide how and when the Note and
Mortgage made its way to Plaintiff, assuming they even did.
The only reference that possibly allows for an inference that Plaintiff may have
had the Note and Mortgage at the time of the foreclosure filing is the affiant’s
unsupported statement that LEHMAN purchased the Quinns’ Note and Mortgage on
March 22, 2006. LEHMAN is listed as the seller in Plaintiff’s Trust. Even if it is
assumed that LEHMAN purchased the Quinns’ Note and Mortgage, there is no evidence
that this particular Note and Mortgage was then negotiated to Plaintiff. And more
importantly, this statement only says when the Quinns’ Note and Mortgage was sold to
2
Quoting First Union National Bank v. Hufford, 146 Ohio App.3d 673, 679 (3 dist. 2001).
3
LEHMAN, not when, how, or if it was transferred to Plaintiff. LEHMAN is not a party
to this action.
Since Plaintiff has failed to prove that it had standing at the time the foreclosure
action was filed, the Quinns request that this Court deny the Plaintiff’s Motion to Lift the
Stay of Sale. And because of Plaintiff’s lack of standing, justice entitles the Quinns to
relief under Civil Rule 60(B) and the Quinns further request that this Court grants relief
from final judgment and dismiss the above case.
Respectfully submitted,
\s\ Randall J. Smith__________
Randall J. Smith, #0000079
Attorney for Wesley and Marion Quinn
Miami Valley Fair Housing Center Inc.
21-23 E. Babbitt Street
Dayton, Ohio 45405
Phone: (937) 660-8015
Fax: (937) 223-6279
CERTIFICATE OF SERVICE
I hereby certify that on January 15, 2010 I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system which will send notification of such
filing to the following:
DEANNA C. STOUTENBOROUGH COLETTE S. CARR
ATTORNEY FOR PLAINTIFF MONTGOMERY COUNTY TREASURER
LERNER, SAMPSON & ROTHFUSS 451 W. THIRD STREET
P.O. BOX 5480 DAYTON, OH 45422-1475
CINCINNATI, OH 45201-5480
CHASE HOME FINANCE LLC
10790 RANCHO BERNARDO ROAD
SAN DIEGO, CA 92127
\s\ Randall J. Smith__________
Randall J. Smith, #0000079
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Friday, January 15, 2010 10:38:00 AM CASE NUMBER: 2007 CV 09571 Docket ID: 14714430 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION U.S. Bank N.A. as Trustee, CASE NO. 2007-CV-9571 Plaintiff JUDGE Jeffrey E. Froelich -v- DEFENDANTS’ RESPONSE TO Wesley A. Quinn, et al, PLAINTIFF’S MOTION TO LIFT STAY OF SALE Defendants. Defendants Wesley and Marion Quinn respond to Plaintiff’s Motion to Lift Stay of Sale. Plaintiff’s latest motion and attached affidavit and Master Custodial File continue to fail to provide evidence that Plaintiff was the owner of the Note and Mortgage when the foreclosure was filed. In fact this pleading creates even more doubt and suspicion of the Plaintiff’s claims regarding possession of having the note. In support, the Quinns state the following: In order to have the right to foreclose on the Quinns’ home, Plaintiff needed to have been the physical holder of the negotiated Note and Mortgage before the foreclosure was filed. The fact remains that the only dated instrument documenting the 1 transfer of the Note and Mortgage to the Plaintiff is an assignment that was executed after the foreclosure action was filed. As shown in the Quinns' Response to Plaintiff’s Brief as to Real Party in Interest, the copy of the Note that was originally attached to the Plaintiff’s Complaint did not contain any endorsements. Additionally, this copy of the Note contained a signed stamp notation in the upper left- hand corner certifying that this Note was the “true and accurate copy” of the note then possessed by the Plaintiff. This unendorsed Note also had two black circles at the top indicating that it had been hole-punched. However once the issue of the lack of an endorsement was raised by the Defendant, the Plaintiff miraculously has “found” a new real Note which it is now alleging was the one it had all along. Unlike the one previously filed with this court as a “true and Accurate copy”, this new note does not have the stamped certification at the top left-hand corner, nor does it contain any indication of having been hole-punched. Furthermore, this “new note” now has attached to it the undated allonge, which although would have to have been attached to and part of the note all along, was mysteriously absent on the other “true and accurate copy” of the note. The documentation provided with Plaintiff’s Motion to Lift Stay of Sale still does not provide a date, or how, when, or whether the Plaintiff actually received the Note and Mortgage. It only provided an affiant statement about when others possibly received it, namely LEHMAN. And due to LEHMAN possibly being involved, Plaintiff may have received the Quinns’ Note and Mortgage at some unknown point. According to the Ohio law, this is not enough.1 In particular, the Ohio Appellate Court has specifically stated 1 Washington Mutual Bank, F.A. v. Green, 156 Ohio App.3d 461, 467 (7 dist. 2004). 2 that presenting standing evidence through “inferences are inappropriate, insufficient support.” 2 Specifically, Plaintiff’s Motion asserts that “the Master Custodial File is conclusive evidence that the subject Loan” to the Quinns’ is part of the SASCO Mortgage Loan Trust, 2006-NC. Yet, clearly in this Master Custodial File is the Note containing an undated blank endorsement from New Century Mortgage, the original lender, and an assignment dated March 3, 2006, from New Century Mortgage to no one in particular, as the assignee was never filled in. Furthermore, Plaintiff’s attorney has become a witness in this action, acting as affiant provided an affidavit with the Master Custodial File stating that she is the “Bailee of the Plaintiff’s designated Custodial Agent and designated Master Servicer, has physical possession and custody, under bailment from and for the benefit of the Plaintiff, of the Custodial Agent’s Master Custodial File containing the operative original loan documents for the subject loan.” If these are the original loan documents as the affidavit states, these loan documents fail to provide how and when the Note and Mortgage made its way to Plaintiff, assuming they even did. The only reference that possibly allows for an inference that Plaintiff may have had the Note and Mortgage at the time of the foreclosure filing is the affiant’s unsupported statement that LEHMAN purchased the Quinns’ Note and Mortgage on March 22, 2006. LEHMAN is listed as the seller in Plaintiff’s Trust. Even if it is assumed that LEHMAN purchased the Quinns’ Note and Mortgage, there is no evidence that this particular Note and Mortgage was then negotiated to Plaintiff. And more importantly, this statement only says when the Quinns’ Note and Mortgage was sold to 2 Quoting First Union National Bank v. Hufford, 146 Ohio App.3d 673, 679 (3 dist. 2001). 3 LEHMAN, not when, how, or if it was transferred to Plaintiff. LEHMAN is not a party to this action. Since Plaintiff has failed to prove that it had standing at the time the foreclosure action was filed, the Quinns request that this Court deny the Plaintiff’s Motion to Lift the Stay of Sale. And because of Plaintiff’s lack of standing, justice entitles the Quinns to relief under Civil Rule 60(B) and the Quinns further request that this Court grants relief from final judgment and dismiss the above case. Respectfully submitted, \s\ Randall J. Smith__________ Randall J. Smith, #0000079 Attorney for Wesley and Marion Quinn Miami Valley Fair Housing Center Inc. 21-23 E. Babbitt Street Dayton, Ohio 45405 Phone: (937) 660-8015 Fax: (937) 223-6279 CERTIFICATE OF SERVICE I hereby certify that on January 15, 2010 I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: DEANNA C. STOUTENBOROUGH COLETTE S. CARR ATTORNEY FOR PLAINTIFF MONTGOMERY COUNTY TREASURER LERNER, SAMPSON & ROTHFUSS 451 W. THIRD STREET P.O. BOX 5480 DAYTON, OH 45422-1475 CINCINNATI, OH 45201-5480 CHASE HOME FINANCE LLC 10790 RANCHO BERNARDO ROAD SAN DIEGO, CA 92127 \s\ Randall J. Smith__________ Randall J. Smith, #0000079 4