Preview
a
703 GY 185P 3 30
Gat te
IN THE MONTGOMERY COUNTY
COURT OF COMMON PLEAS
U.S. Bank N.A. as Trustee
CASE NO. 2007 CV 9571
Plaintiff
v.
JUDGE: CONNIE S. PRICE
Magistrate David Fuchsman
Wesley A. Quinn et al.
Defendants. RESPONSE TO PLAINTIFF’S BRIEF
AS TO REAL PARTY IN INTEREST
SSS Se Sr ee
Come now Defendants Wesley and Marion Quinn, by and through their attorney,
response to Plaintiff's Brief as to Real Party in Interest and state that all the evidence presented
or alleged to by the Plaintiff shows that Plaintiff was not the owner of the Note and Mortgage at
. the time the Complaint was filed. In support, the Quinns state the following:
SUMMARY OF THE CASE
On February 28, 2006, New Century Mortgage Corporation (“New Century”) executed a
Mortgage and Note with the Quinns. A few months later, on June 1, 2006, a Trust Agreement
was created providing for the issuance of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2006-NC1.Defendants’ Response
2007 CV 09571
Page |2
Under the Trust Agreement, Structured Asset Securities Corporation is the Depositor,
Lehman Brothers Holdings Inc. is the Seller, and U.S. Bank National Association (“Plaintiff”) is
the Trustee. The Trust Agreement’s Preliminary Statement announces:
The Depositor has acquired the Mortgage Loans from the Seller, and at
the Closing Date is the owner of the Mortgage Loans and the other
property being conveyed by it to the Trustee hereunder for inclusion in the
Trust Fund. On the Closing Date, the Depositor will acquire the
Certificates from the Trust Fund, as consideration for its transfer to the .
Trust Fund of the Mortgage Loans and the other property constituting the
Trust Fund. The Depositor has duly authorized the execution and delivery
of this Agreement to provide for the conveyance to the Trustee of the
Mortgage Loans and the other property constituting the Trust Fund.
The Trust Agreement goes on to state:
Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby assign to the Trustee all of its rights and interest
under the Mortgage Loan Sales Agreement, including all rights of the
Seller under the Servicing Agreement and the Transfer Agreement, but
only to the extent assigned under the Mortgage Loan Sales Agreement.
The Trust Agreement’s closing date was June 22, 2006. The Mortgage Loan Sale
Agreement is defined as “The mortgage loan sale and assignment agreement dated as of June 1,
2006, for the sale of the Mortgage Loans by the Seller to the Depositor.” Under the Trust
Agreement, Assignment of Mortgage means:
An assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgage Property is located to reflect the sale of the
Mortgage to the Trustee, which assignment, covering the Mortgage Loans
secured by Mortgage Properties located in the same jurisdiction, if
permitted by law; provided, however, that neither the Custodian nor the
Trustee shall be responsible for determining whether any such assignment
is in recordable form.Defendants’ Response
2007 CV 09571
Page (3
The Trust Agreement defines a Mortgage Loan as “A Mortgage and the related notes or
other evidence of indebtedness secured by cach such Mortgage conveyed, transferred, sold,
assigned or deposited with the Trustee.” The Trust Agreement’s terms provide that the
Mortgage Loan Schedule shall identify each Mortgage Loan. But the Mortgage Loan Schedule
merely states: “[To be retained in a separate binder entitled ‘SASCO 2006-NC1 Mortgage Loan
Schedules’ at McKee Nelson LLP]” There is nothing in the Trust Agreement that would show
that this Schedule includes the Quinns’ Mortgage and Note.
On November 14, 2007, Plaintiff filed a Complaint in Foreclosure based on Quinn’s
Mortgage and Note with New Century. Attached to the Complaint was a copy of the New
Century Mortgage and Note. The copy of the Note did not contain any endorsements.
On January 17, 2008, an assignment of the Quinns’ Mortgage and Note from New
Century to Plaintiff was witnessed and notarized and put in recordable form. The Assignment
specified that it included the Quinns’ Mortgage “together with the Promissory Note”.
On January 31, 2008, Plaintiff filed for Default Judgment.
On February 1, 2008, the aforementioned assignment was recorded. On February 11,
2008, this Court issued the Final and Appealable Judgment and Decree in Foreclosure. On
October 2, 2008, Praecipe for Order of Sale was filed. On October 6, 2008, Order of Sale was
filed and the Sheriff Order of Sale was issued.
At the end of October, 2008, the Quinns contacted the Miami Valley Fair Housing Center
for help. On December 18, 2008, the Quinns filed a Civil Rule 60(B) motion requesting that this
Court vacate the Default Judgment and Decree in Foreclosure and the Order of Sale, because the
Plaintiff did not have standing to file the foreclosure action. Specifically, it argued that there wasDefendants’ Response
2007 CV 09571
Page |4
no evidence that the Plaintiff was the owner of the Note and Mortgage at the time the Complaint
was filed.
On January 28, 2009, Plaintiff filed a Memorandum Contra in response to the 60(B)
Motion. In the Memorandum Contra, the Plaintiff argued that despite the language of the
Assignment, the Note was sold and transferred to it in June 2006 pursuant to the Trust
Agreement. On February 4, 2009, the Quinns filed a Response to the Memorandum Contra
pointing out that there is no evidence that the Plaintiff was sold and transferred the Note and
Mortgage in June 2006 pursuant to the Trust Agreement. The only written documentation of a
transfer of the Note and Mortgage is the Assignment, which was dated after the Complaint was
filed.
On February 17, 2009, the Plaintiff filed another copy of the Note, which now on the last
page contained an undated, stamped blank endorsement from New Century with the stamped
signature of Steve Nagy, “V.P. Records Management”. This endorsement was not on the copy
of the Note that was originally filed with the Complaint.
During this same time, this Court requested that the Plaintiff within two weeks provide an
affidavit detailing when it received the Note and Mortgage. So Far, no affidavit has ever been
provided. On October 23, 2009, Plaintiff, instead, filed Plaintiff's Brief as to Real Part in
Interest, along with sections of the Trust Agreement.
In the Brief, Plaintiff argues that the terms of the Trust Agreement show that it was the
Real Party in Interest at the time of the filing of the Complaint. The Plaintiff specifically argues
that “As transferee of the Note, Plaintiff, upon the endorsement of the Note, succeeded to all the
rights of the transferor, New Century Mortgage Corporation.” And essentially, the Plaintiff isDefendants’ Response
2007 CV 09571
Page [5
asking this Court to ignore the Assignment, which is the only documentation bearing a date and
detailing the transfer of the Mortgage and Note. This Response follows.
ARGUMENT
The adventures of the Quinns’ Note show that the Plaintiff did not have standing to file
the Complaint in Foreclosure and, in turn, had no right to have a Judgment and Decree in
Foreclosure and Order of Sale entered in its favor. A copy of the Quinns’ Note was attached to
the Complaint bearing no endorsement. Then when standing to file the initial foreclosure action
was questioned, the Plaintiff miraculously produced a copy of the Quinns’ Note now with an
undated blank endorsement from New Century stamped to the last page under Mr. Quinn’s
signature. The endorsement and signature of Steve Nagy, a New Century Vice President, were
both done with a stamp. However prior to this, the recorded Assignment specifically referenced
that this Note was transferred at the time of the assignment after the Complaint was filed.
The Plaintiff has continually argued that it received the Note in June of 2006 when the
Trust Agreement was created. The only evidence that the Plaintiff provided to prove this was
sections of the Trust Agreement itself. | However, there is nothing in the Trust Agreement that
would prove the Plaintiff's argument. This in fact actually supports the Quinns’ contention that
the Plaintiff's act of having this Note without an endorsement at the time of filing and then
having one with an endorsement later would have been impossibility if the Quinns’ Note was
actually negotiated to the Plaintiff pursuant to the Trust in June of 2006.
The Trust Agreement, purchase agreement and REMIC regulations specifically required
that the Note be negotiated from the Seller to the Depositor and then to the Trustee. Therefore,
the endorsement from New Century would have to have been on the Note when it was negotiated
to the Seller initially and if the Note were then negotiated to the Trust as a true sale as alleged byDefendants’ Response
2007 CV 09571
Page [6
the Plaintiff in June of 2006, it would have had to have this endorsement on it. In short, if the
Note was truly included as an asset of the Trust in June of 2006, this Note would have already
had the required endorsement on it. This Court has requested that the Plaintiff provided it with an
affidavit detailing when it received the Note and Mortgage. It has failed to do so. Sufficient
time has passed to allow for the Plaintiff to prove that it had the Note and Mortgage at the time
of filing the Complaint and, again, it has failed to do so. As such, the Quinns respectfully
request that this Court grant their 60(B) motion and vacated its Judgment and Decree in
Foreclosure and Order of Sale.
Respectfully submitted,
Miami Valley Fair Housing Center, Inc.
21-23 East Babbitt Street
Dayton, OH 45405-4968
Phone (937) 223-6035
Fax (937) 223-6279
e-mail: randy.smith@mvfairhousing.comDefendants’ Response
2007 CV 09571
Page |7
CERTIFICATE OF SERVICE
I certify that I mailed a copy of this motion by ordinary U.S. Mail on this E day of
November, 2009 to the following parties:
DEANNA C.STOUTENBOROUGH
ATTORNEY FOR PLAINTIFF
LERNER, SAMPSON & ROTHFUSS
P.O. BOX 5480
CINCINNATI, OH 45201-5480
COLETTE S. CARR
MONTGOMERY COUNTY TREASURER
451 W. THIRD STREET
DAYTON, OH 45422-1475
CHASE HOME FINANCE LLC
10790 RANCHO BERNARDO ROAD
SAN DIEGO, CA 92127
Preview
a 703 GY 185P 3 30 Gat te IN THE MONTGOMERY COUNTY COURT OF COMMON PLEAS U.S. Bank N.A. as Trustee CASE NO. 2007 CV 9571 Plaintiff v. JUDGE: CONNIE S. PRICE Magistrate David Fuchsman Wesley A. Quinn et al. Defendants. RESPONSE TO PLAINTIFF’S BRIEF AS TO REAL PARTY IN INTEREST SSS Se Sr ee Come now Defendants Wesley and Marion Quinn, by and through their attorney, response to Plaintiff's Brief as to Real Party in Interest and state that all the evidence presented or alleged to by the Plaintiff shows that Plaintiff was not the owner of the Note and Mortgage at . the time the Complaint was filed. In support, the Quinns state the following: SUMMARY OF THE CASE On February 28, 2006, New Century Mortgage Corporation (“New Century”) executed a Mortgage and Note with the Quinns. A few months later, on June 1, 2006, a Trust Agreement was created providing for the issuance of Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-NC1.Defendants’ Response 2007 CV 09571 Page |2 Under the Trust Agreement, Structured Asset Securities Corporation is the Depositor, Lehman Brothers Holdings Inc. is the Seller, and U.S. Bank National Association (“Plaintiff”) is the Trustee. The Trust Agreement’s Preliminary Statement announces: The Depositor has acquired the Mortgage Loans from the Seller, and at the Closing Date is the owner of the Mortgage Loans and the other property being conveyed by it to the Trustee hereunder for inclusion in the Trust Fund. On the Closing Date, the Depositor will acquire the Certificates from the Trust Fund, as consideration for its transfer to the . Trust Fund of the Mortgage Loans and the other property constituting the Trust Fund. The Depositor has duly authorized the execution and delivery of this Agreement to provide for the conveyance to the Trustee of the Mortgage Loans and the other property constituting the Trust Fund. The Trust Agreement goes on to state: Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Sales Agreement, including all rights of the Seller under the Servicing Agreement and the Transfer Agreement, but only to the extent assigned under the Mortgage Loan Sales Agreement. The Trust Agreement’s closing date was June 22, 2006. The Mortgage Loan Sale Agreement is defined as “The mortgage loan sale and assignment agreement dated as of June 1, 2006, for the sale of the Mortgage Loans by the Seller to the Depositor.” Under the Trust Agreement, Assignment of Mortgage means: An assignment of the Mortgage, notice of transfer or equivalent instrument, in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgage Property is located to reflect the sale of the Mortgage to the Trustee, which assignment, covering the Mortgage Loans secured by Mortgage Properties located in the same jurisdiction, if permitted by law; provided, however, that neither the Custodian nor the Trustee shall be responsible for determining whether any such assignment is in recordable form.Defendants’ Response 2007 CV 09571 Page (3 The Trust Agreement defines a Mortgage Loan as “A Mortgage and the related notes or other evidence of indebtedness secured by cach such Mortgage conveyed, transferred, sold, assigned or deposited with the Trustee.” The Trust Agreement’s terms provide that the Mortgage Loan Schedule shall identify each Mortgage Loan. But the Mortgage Loan Schedule merely states: “[To be retained in a separate binder entitled ‘SASCO 2006-NC1 Mortgage Loan Schedules’ at McKee Nelson LLP]” There is nothing in the Trust Agreement that would show that this Schedule includes the Quinns’ Mortgage and Note. On November 14, 2007, Plaintiff filed a Complaint in Foreclosure based on Quinn’s Mortgage and Note with New Century. Attached to the Complaint was a copy of the New Century Mortgage and Note. The copy of the Note did not contain any endorsements. On January 17, 2008, an assignment of the Quinns’ Mortgage and Note from New Century to Plaintiff was witnessed and notarized and put in recordable form. The Assignment specified that it included the Quinns’ Mortgage “together with the Promissory Note”. On January 31, 2008, Plaintiff filed for Default Judgment. On February 1, 2008, the aforementioned assignment was recorded. On February 11, 2008, this Court issued the Final and Appealable Judgment and Decree in Foreclosure. On October 2, 2008, Praecipe for Order of Sale was filed. On October 6, 2008, Order of Sale was filed and the Sheriff Order of Sale was issued. At the end of October, 2008, the Quinns contacted the Miami Valley Fair Housing Center for help. On December 18, 2008, the Quinns filed a Civil Rule 60(B) motion requesting that this Court vacate the Default Judgment and Decree in Foreclosure and the Order of Sale, because the Plaintiff did not have standing to file the foreclosure action. Specifically, it argued that there wasDefendants’ Response 2007 CV 09571 Page |4 no evidence that the Plaintiff was the owner of the Note and Mortgage at the time the Complaint was filed. On January 28, 2009, Plaintiff filed a Memorandum Contra in response to the 60(B) Motion. In the Memorandum Contra, the Plaintiff argued that despite the language of the Assignment, the Note was sold and transferred to it in June 2006 pursuant to the Trust Agreement. On February 4, 2009, the Quinns filed a Response to the Memorandum Contra pointing out that there is no evidence that the Plaintiff was sold and transferred the Note and Mortgage in June 2006 pursuant to the Trust Agreement. The only written documentation of a transfer of the Note and Mortgage is the Assignment, which was dated after the Complaint was filed. On February 17, 2009, the Plaintiff filed another copy of the Note, which now on the last page contained an undated, stamped blank endorsement from New Century with the stamped signature of Steve Nagy, “V.P. Records Management”. This endorsement was not on the copy of the Note that was originally filed with the Complaint. During this same time, this Court requested that the Plaintiff within two weeks provide an affidavit detailing when it received the Note and Mortgage. So Far, no affidavit has ever been provided. On October 23, 2009, Plaintiff, instead, filed Plaintiff's Brief as to Real Part in Interest, along with sections of the Trust Agreement. In the Brief, Plaintiff argues that the terms of the Trust Agreement show that it was the Real Party in Interest at the time of the filing of the Complaint. The Plaintiff specifically argues that “As transferee of the Note, Plaintiff, upon the endorsement of the Note, succeeded to all the rights of the transferor, New Century Mortgage Corporation.” And essentially, the Plaintiff isDefendants’ Response 2007 CV 09571 Page [5 asking this Court to ignore the Assignment, which is the only documentation bearing a date and detailing the transfer of the Mortgage and Note. This Response follows. ARGUMENT The adventures of the Quinns’ Note show that the Plaintiff did not have standing to file the Complaint in Foreclosure and, in turn, had no right to have a Judgment and Decree in Foreclosure and Order of Sale entered in its favor. A copy of the Quinns’ Note was attached to the Complaint bearing no endorsement. Then when standing to file the initial foreclosure action was questioned, the Plaintiff miraculously produced a copy of the Quinns’ Note now with an undated blank endorsement from New Century stamped to the last page under Mr. Quinn’s signature. The endorsement and signature of Steve Nagy, a New Century Vice President, were both done with a stamp. However prior to this, the recorded Assignment specifically referenced that this Note was transferred at the time of the assignment after the Complaint was filed. The Plaintiff has continually argued that it received the Note in June of 2006 when the Trust Agreement was created. The only evidence that the Plaintiff provided to prove this was sections of the Trust Agreement itself. | However, there is nothing in the Trust Agreement that would prove the Plaintiff's argument. This in fact actually supports the Quinns’ contention that the Plaintiff's act of having this Note without an endorsement at the time of filing and then having one with an endorsement later would have been impossibility if the Quinns’ Note was actually negotiated to the Plaintiff pursuant to the Trust in June of 2006. The Trust Agreement, purchase agreement and REMIC regulations specifically required that the Note be negotiated from the Seller to the Depositor and then to the Trustee. Therefore, the endorsement from New Century would have to have been on the Note when it was negotiated to the Seller initially and if the Note were then negotiated to the Trust as a true sale as alleged byDefendants’ Response 2007 CV 09571 Page [6 the Plaintiff in June of 2006, it would have had to have this endorsement on it. In short, if the Note was truly included as an asset of the Trust in June of 2006, this Note would have already had the required endorsement on it. This Court has requested that the Plaintiff provided it with an affidavit detailing when it received the Note and Mortgage. It has failed to do so. Sufficient time has passed to allow for the Plaintiff to prove that it had the Note and Mortgage at the time of filing the Complaint and, again, it has failed to do so. As such, the Quinns respectfully request that this Court grant their 60(B) motion and vacated its Judgment and Decree in Foreclosure and Order of Sale. Respectfully submitted, Miami Valley Fair Housing Center, Inc. 21-23 East Babbitt Street Dayton, OH 45405-4968 Phone (937) 223-6035 Fax (937) 223-6279 e-mail: randy.smith@mvfairhousing.comDefendants’ Response 2007 CV 09571 Page |7 CERTIFICATE OF SERVICE I certify that I mailed a copy of this motion by ordinary U.S. Mail on this E day of November, 2009 to the following parties: DEANNA C.STOUTENBOROUGH ATTORNEY FOR PLAINTIFF LERNER, SAMPSON & ROTHFUSS P.O. BOX 5480 CINCINNATI, OH 45201-5480 COLETTE S. CARR MONTGOMERY COUNTY TREASURER 451 W. THIRD STREET DAYTON, OH 45422-1475 CHASE HOME FINANCE LLC 10790 RANCHO BERNARDO ROAD SAN DIEGO, CA 92127