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THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DIVISION
WELLS FARGO BANK N.A., AS TRUSTEE, Case No. CA 0231236
Plaintiff
Vs. Judge:
JOHN L. REED_______________,Defendant
Amended Motion To Appeal Ruling of The
Lower Court by Vacating a Void Judgment
and to Rule on the Following
Counterclaims:
Part I. INTRODUCTION
1. Now comes Defendant John A. Reed pro se to enter
this Motion to Vacate a Void Judgment of the Courts Decision and
Entry Rendered on the 1st Day of October, 2008, on the grounds that the Plaintiff
has committed fraud by bringing into this court fabricated, forged and fraudulent
documents.
2. Specifically, Plaintiffs Affidavit of status of Account and military
Affidavit (exhibit A2) which purports to show Plaintiffs ownership interest and
validity of the alleged subject Mortgage & Note & Plaintiffsexhibit A
Assignment from Option One to Wells Fargo with which Plaintiff purports to
prove Plaintiffs ownership of the alleged Mortgage & Note at time of foreclosure
initiation dated March 7th, 2008.
A void judgment which includes judgment entered by a courtwhich lacks jurisdiction over the parties or the subject matter, orlacks inherent power to enter the particular judgment, or anorder procured by fraud (emphasis added), can be attacked atany time, in any court, either directly or collaterally, provided thatthe party is properly before the court, Long v. ShorebankDevelopment Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).
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Please see attached Brief in Support of Void Judgments
(Authorities 12)
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DEFENDANTS SUPPLEMENTANL AFFIRMATIVE DEFENSES
AFFIRMATIVE DEFENSE I
2. With regard to all counts of the Complaint, the Plaintiffs claims are barred
in whole or in part, because at the time this Complaint was filed, the Plaintiff was
not the owner or the holder of the Promissory Note in question.
AFFIRMATIVE DEFENSE II
3. With regard to all the counts of the Complaint, the Plaintiffs claims are
barred in whole or in part, because at the time the Complaint was filed, the Plaintiff
was not authorized to bring this action by any person who had an interest in the
Promissory Note in question.
AFFIRMATIVE DEFENSE III
4. With regard to all the counts of the Complaint, the Plaintiffs claims are
barred in whole or in part, because at the time the Complaint was filed, the Plaintiff
was not authorized to bring this action by any person who was an owner or holder
of the Promissory Note in question.
AFFIRMATIVE DEFENSE IV
5. With regard to all the counts of the Complaint, the Plaintiffs claims are
barred in whole or in part, because at the time the Complaint was filed, the Plaintiff
was not authorized to bring or maintain this action by all of the people who had an
interest in the Promissory Note in question.
AFFIRMATIVE DEFENSE V
6. With regard to all of the counts of the Complaint, the Plaintiffs claims are
barred in whole or in part, because the Plaintiff lacks standing.
AFFIRMATIVE DEFENSE VI
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7. With regard to all of the counts of the Complaint, the Plaintiffs claims are
barred in whole or in part, because the Plaintiff lacked standing when the Complaint
was filed.
ARGUMENT & HISTORY
8. Plaintiff Wells Fargo Bank and/or their assigns (hereinafter
Bank and/or Plaintiff), while lacking Legal Standing to initiate
suit, and that same lack of standing having been previously
identified to the court1, did cause to be filed against the wrong
Defendant, a Mr. John L. Reed, in violation of Due Diligence, a
foreclosure suit on February 27th, 2008 ultra vires. See Wells Fargo
Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603.,
9. Plaintiff Wells Fargo Bank NA., claims to have become the
alleged possessor or Holder of the alleged Note and Mortgage
through an assignment see (exhibit A)2 which is post dated after
their initiation of this foreclosure action.
10. Plaintiffs assignment fromOption One to Wells Fargo
(exhibit A), was received from a questionable Holder in Due
Course, specifically, Option One.
11. As a requirement of New Yorks Trust law, the TRUST is
required to be the physical holder of the Note & Mortgage and the
TRUSTs represeentative in this case is the Plaintiff Wells Fargo
Bank as Trustee for and NOT Option One.
1(() Memorandum In Opposition To Plaintiff's Motion ForSummary judgment" August 15th, 2008 line 1 & sect. 1, 2, & 3 )2( 9/26,2008 Plaintiff's Notice of Filing of Assignment &Assignment 1st Copy)
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12. Option One allegedly received this Note & Mortgage from an
unknown and unverified holder who, it is unclear but a holder who
allegedly received it from another unverified and unknown
questionable holder in due course. Explained more fully below, see
below Tracking The Mortgage Chronology.
10. Upon Plaintiffs Counsels discovery of their own
inconsistent, invalid and improperly perfected alleged Mortgage
and Note used to foreclose against the wrong Defendant, Plaintiffs
counsel did then act mens rea to set out to prove, beyond the
scope of the original pleading, that the real owner of the property,
Defendant John A. Reed, was in fact the actual creator of the
aforesaid alleged Note and Mortgage, and not the alleged John L.
Reed evidenced upon the Note & Mortgage.
it is a well known canon of contract construction thatambiguities in a contract are to be construed against the partywho drafted said contract. Pursue Energy Corp. v. Perkins, 558
So.2d 349 (Miss. 1990).
11. Defendant John A. Reed neither affirmed nor denied his
position as signor of the alleged Note and/or Mortgage, instead
relying upon his rights of Burden of Proof .
12. Defendant John A. Reed did affirm that the Principal named
on the alleged Note and Mortgage as the Creator of same,
Defendant John L. Reed, was in fact not the property owner at the
time of the alleged Mortgage and Note.
13. The Courts then found, and Plaintiff has agreed, that the Principal named on
the alleged Note and Mortgage as the Creator of the alleged Mortgage and Note,
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Defendant John A. Reeds Father, Defendant John L. Reed, was in fact not the
property owner at the time of alleged Mortgage and Note creation nor the creator
of the alleged Mortgage and Note.
Plaintiffs Assertions of Forgery
14. Plaintiffs Counsel, within his privileged position, has stated
as fact in Pleadings (libel per se)3, and Defendant has denied, that
Defendant John A. Reed had both altered any Federal Documents
and forged his Fathers name.
15. Plaintiffs Counsels pleadings have damaged Defendant
John A. Reed good name and character on numerous occasions
through defamation of the character and/or libel per se, mens
rea, , and done so in the most public manner, in writing (per se),
that has since been disseminated irretrievably and globally,
stating, as fact, that Defendant John A. Reed had both forged
his Fathers signature and altered Federal documents.
Defendants Distinctions Previously Earned.
29. Here are a few of the distinctions earned above and
beyond his exemplary performance of his regular tasks,
attendance and duties while employed as Consultant to
ODHS/BNS.
30. Such distinctions earned include;
3(see: Wells Fargo Bank Motion For Summary Judgment pg. 2,line 14 & pg. 7 line 4., Plaintiff's reply to Def JARsMemorandum in Opposition to Motion for Summary Judgment8/19/ 2008 pg. 2, lines 6. & 26., Plaintiffs Combined motionto Strike JAR's motion for Summary judgment & Memorandum inopposition to JAR's Motion for Summary Judgment pg 3, lines 14,& 24)
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a. being the very 1st person to ever identify and stop this
States first computer virus infection (Ameritech Bldg.,
1995 (Neuroquila virus)),
b. of his identifying the need for and then becoming the sole
Creator of this States File backup and Restoration Dept.
(all 35,000 PCs and 255 servers),
c. of his identifying the need for and then being the sole
author of this States very first Intranet site and
d. subsequently creating the Intranet Department
resulting in the States Intranet Site Construction and
Maintenance Department and
e. of also being the driving force which instigated the
formation of (and becoming a founding member of) this
States Disaster Resumption Team & Plan.
31. This is to name but a few of Defendants past
accomplishments, but they do also solidify the validity to
Defendants position of Plaintiffs intentional and malicious Global
Defamation of Defendants Character per se.
32. Defendants Education and good Character was
earned at a time BEFORE formal education was even available and
earned only through self educating involving hundreds, if not
thousands of hours of constant study and research, extensive
monetary investments, hundreds of hours of actual hard work and
which collectively show and prove through accomplishment,
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Defendants exercise within his own chosen profession of honesty
and constant PROPER DUE DILIGENCE.
Defendants Causes of Action
15. Plaintiffs allegations carry imputations and aspersions of
criminal conduct and allegations injurious to defendant.
16. As is evidenced on all of Plaintiffs alleged loan creation
documentation, all documents were typed and created at H&R
Block Offices located in Tampa Florida (yet they are notarized in
Ohio?) to which Defendant could have had no access.
18. Plaintiff and/or any other person or entity has never even
proffered any reason whatsoever why or even how Defendant
John A. Reed would or could profit ifDefendant John A. Reed
would have substituted his Fathers name on the alleged (typed)
mortgaged property note for his own name, as would be necessary
to substantiate Plaintiffs other libelous per se claims of forgery, as
statements of fact,. 4
21. These entirely unsubstantiated claims are libelous, and were
maliciously created and committed with unbridled malice, entirely
in an attempt to defame, steal the good identity of and lower the
value of the Defendant in the Courts eyes and have served only to
4(see: Wells Fargo Bank Motion For Summary Judgment pg. 2,line 14 & pg. 7 line 4., Plaintiff's reply to Def JARMemorandum in Opposition to Motion for Summary Judgment8/19/ 2008 pg. 2, lines 6. & 26., Plaintiffs Combined motionto Strike JAR's motion for Summary judgment & Memorandum inopposition to JAR's Motion for Summary Judgment pg 3, lines 14,& 24),) of Defendant John A. Reeds alleged forgery (libel per se2nd count)
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cause harm to the good name, character and reputation of the
Defendant.
22. As Defendants viability in his chosen and previously
distinguished profession, of Microsoft & Novell Networking
Consultant (hourly rate $100 per hr.), requires a Top Security
Clearance to perform, Plaintiffs Counsel has effectively stripped
Defendant of any chance of employment within his chosen
profession, in perpetuity.
24. Plaintiffs Counsel committed this offense mens re,
attempting only to bias the Courts opinion of the Defendant to
one of a lesser value and in so doing attempting to prejudice the
Court against Defendant.
25. In so doing, Plaintiff did cause to be published onto the
Internet the charges indicated above and in the information
technology age we now live in, that same information was almost
instantaneously disseminated globally by data mining companies
world wide, ie. Lexis-Nexus and many others and as such is now
unalterable.
26. As is witnessed by Montgomery Countys own Pro Legal
websites (changed weeks AFTER this Defendants submitted brief
referencing Data Mining as being problematic) new opening page
disclosure with data mining reference, and their own new site
admission requirement (type in these 3 characters). Defendant's
record is now global, and is now, also, unalterable.
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27. Defendant states that changing the record, even now, would not restore
Defendants Employability because of Defendants age and reduced work
experience caused by plaintiffs misinformation keeping him from work now.
33. Further, although it is the act of Defamation of Character
per se by libel, Sayyed v. Wolpoff & Abramson, No. 06-1458 (4th
Cir.)., it is also equivalently identity theft as it changes my
identitys good character to one of an individual with ulterior
motives and actions and as such is in violation of the PERSONAL
DATA PRIVACY AND SECURITY ACT OF 2007; which calls for
penalties under section 4 which reads; The bill also contains
strong civil enforcement provisions. The bill authorizes the Federal
Trade Commission (FTC) to bring a civil enforcement action for
violations of the data security program requirements in the bill
and to recover a civil penalty of not more than $5,000 per
violation, per day and a maximum penalty of $500,000 per
violation. 14. In addition, the bill authorizes State Attorneys
General, or the U.S. Attorney General, to bring a civil enforcement
action against violators of the notice requirements in the bill and
to recover a civil penalty of not more than $1,000 per individual,
per day and a maximum penalty of $1,000,000 per violation,
unless the violation is willful or intentional. Double penalties
may be recovered for intentional or willful violations of this
provision.
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34. Subsequent with the Court's ruling that Defendant John A.
Reed was the Creator of the Note & Mortgage; the Court, with
Judicial fiat, did then change;
a. the alleged Mortgage & Promissory Note,
b. in so doing effectively destroying the original
Mortgage and Note and their representations of
fact
c. to represent that Defendant John A. Reed was
the true owner and responsible party for the
alleged Mortgage and Note.
in violation of ORCP RULE 25. (C)5U.S. Statute ofFrauds, the U.S.
Law of Contracts and Civ.R. 17(A),
35. Then, without any formal notice of suit directly against
Defendant John A. Reed, as the Court proceeded to collectively
and summarily change Ownership of the Note & Mortgage, they
also immediately foreclose on same, effectively denying
Defendant John A. Reed of any proper recourse through Due
Process.
36. "Every action shall be prosecuted in the name of the real
party in interest." CivR. (17(A) A real party in interest is one who is
directly benefited or injured by the outcome of the case. 6 Please
see attached Authorities 1 & Authorities 3
5Ohio Rule of Civil Procedure 25.(C) Substitution of Parties Transfer of interest. In case of any transfer of interest, theaction may be continued by or against the original party, unless the court upon motion directs the person to whom the interestis transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as providedin subdivision (A) of this rule. emphasis added6Article III, Section (4)(B) of the Ohio Constitution, Shealy v. Campbell(1985), 20 Ohio St.3d 23, 24., Dallman v. Court ofCommon Pleas (1973), 35 Ohio St.2d 176, 298 N.E.2d 515
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37. Based primarily upon the biased testimony of the Plaintiffs
paid handwriting witness, Hand Writing Expert witness Vickie
Willard, and in spite of the fact that handwriting in and of itself has
been held by other Ohio Courts as a pseudo science, which fails
the required Daubert test (no statistical rate of success/failure) for
legal admissibility (please see attached authorities 7 and filed
transcript of Plaintiffs Hand Writing Expert witness Vickie
Willard under cross examinations testimony concerning her rate of
inaccuracies see transcript lines 1275-1278 ), her testimony
goes directly against CivR 1002 by her use of only copies to
identify Defendants signature and as such whos testimony should
be stricken in its entirety.
38. Plaintiffs other only witness, Mr. Dale Sugimoto, President of
Option One Mortgage Co., testified that he was NOT employed by
Plaintiff Wells Fargo Bank NA. NOR the TRUST (see transcript lines
808 811), NOR Barclay's Bank, NOR MortgageRamp Corp. and as
such could only offer hearsay testimony supposedly laying some
sort of a foundation that Plaintiff's own documentation proves is
false. Mr. Sugimoto also testified that the Plaintiff's Settlement
statement (trial exhibit 12) took place in Tampa, Florida
(transcript line 709) yet was notarized by an Ohio Notary
(transcript line 728) and also testified to not being present at
Mortgage creation (transcript lines 887 - 888), and as such, same
testimony is in it's entirety, hearsay and should also be stricken
from the record.
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39. Plaintiffs counsel then did proceed to foreclose against
Defendant John A. Reed, seeking the property sold at Public
Auction and unspecified damages, which the Court did award.
II. SUMMARY OF ARGUMENT AND ISSUES PRESENTED
40. On October the 15th 2008 Defendant John A. Reedpro se filed his response
to the Complaint.
41. On July 25th, 2008 Plaintiff filed its Motion for Summary Judgment in the
foreclosure action stating as fact that Son John A. Reed had forged his
Father John L. Reeds signature on the mortgage documents and that
somehow and for some unknown reason it was somehow wrong for Son to
effect a transfer of the property into his own name before seeking the
alleged financing with H&R Block and that they, Wells Fargo Bank NA
(Plaintiff) had now the right to foreclose on the property.
42. On Aug 15th, 2008 Defendant John A Reed filed his Memorandum in
Opposition to Plaintiffs Motion for Summary Judgement and request for Trial By
Jury (which Defendant was denied) stating clearly that the Plaintiff had lack
of standing to proceed with the case.
43. On August 26th 2008 the Court denied Wells Fargos Summary Judgment,
stating The Court cannot say, at this time, that John A. Reed and/or John L. Reed
are not liable for the mortgage and/or note, or that Plaintiff is entitled to foreclose
on the property until the disputes of fact are resolved.
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44. On August 26th, 2008 Plaintiff caused an Affidavit to be filed. The
Affidavit is titled; Affidavit of Status of Account and Military Affidavit A copy
of the Affidavit is attached hereto asExhibit A2.
45. The Affidavit was allegedly signed by Ms Topako Love, who claimed to be
an Assistant Secretary for Option One Mortgage Corporation as servicing agent for
Wells Fargo Bank, National Association as Trustee for Securitized Asset backed
receivables LLC 2006-OP1 Mortgage Pass-Through Certificates, Series 2006-
OP1.Pleasesee below
46. In Paragraph 11 of the Original complaint Wells Fargo NA (Plaintiff) stated
that it is holder of the Note and mortgage.
47. Upon information and belief, this statement was false, and was known to be
false by Plaintiff and Plaintiffs Counsel at the time it was made in that Plaintiff was
not the owner of the Note; instead, the Note and Mortgage were securitized or
owned by another party. Thus, the securitization, Trust or other party, was the
owner, if not also the holder of the note.
48. In Paragraph 23 of the complaint, Wells Fargo Bank NA (plaintiff) stated it
was the holder of the Mortgage.
49. For the reasons stated above, upon information and belief, this statement is
false, and was known by Plaintiff to be false.
50. Defendant John A. Reedpro se wishes to bring the Courts Judicial notice
of the fabricated, forged and fraudulent Documents Plaintiff has entered into this
Court in their attempt to prove their ownership and subsequent standing right to
foreclose on the alleged Mortgage and Note. Specifically,
a. The above mentioned Affidavit exhibit A2 and
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b. the Assignment of Mortgage exhibit A1purporting to transfer or
Assign the or sell, assign, transfer and set over unto Wells Fargo
Bank, National Association as Trustee. . the owndership of the
alleged Note & Mortgage.
51. The Supreme Court of Ohio has held that An affidavit must appear, on
its face, to have been taken before the proper officer and in compliance with all
legal requisites. A paper purporting to be an affidavit, but not to have been sworn to
before an officer, is not an affidavit.In re Disqualification of Pokorny (1992), 74
Ohio St.3d 1238 (citation omitted). Accord,Pollock v. Brigano (1998), 130 Ohio
App.3d 505, 509.
52. Referring to the Affidavit exhibit A2, the same one filed with the Courts on
August 26th, 2008, filed fully 6 months after foreclosure initiation, please note the
signature and the date ofMs Topako Love at the bottom to be February 28th,
2008 and same document Notarized by and in the presence of a one Matthew Allen
Banaszewski.
52. In referring to the Assignment exhibit A1, filed with the Courts on August
26th, 2008, again a full 6 months after foreclosure initiation, please note the date of
signature of One Ms Topako Love at the bottom to be March 7th, 2008.
53. Now please see the Assignmentexhibit A1 which is Notarized by and in the
presence of one James C. Morris. Please notice the document was created by the
Plaintiffs own, original, first, Law Firm, Lerner, Sampson & Rothfuss. Also please
recognize the document purports to transfer the alleged note FROM OPTION
ONE Mortgage Co. to Wells Fargo Bank.
54. Although specifically requested by Defendant, Plaintiff offers NO PROOF
that Option One has the authority to do so.
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Robo-Signers Forgery & Fraud
55. It is now well documented that since 2007 Wells Fargo has used so-called
robo-signers in its mortgage servicing division to expedite foreclosures. See the
depositions of David Abshier page 1, 4, 361 & 363, Exhibit B1, of Erica Johnson
Seck pages 7, 8, Exhibit B2, Xee Moua (Wells Fargo Employee) Exhibit B3page 8,
15 and more, and deposition of Tamara Savery (Wells Fargo Employee) Exhibit B4
page 5, 6, 7, 8, and throughout.
56. 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. Robo-signers may sign 10,000 or more such
documents per month, including affidavits attested to be made of personal
knowledge.
57. Because these Robo-Signers are required to sign so many documents in
order to effectuate cost savings for the banks, robo-signers, as testified in the above
referenced depositions, do not even read the documents containing critical
statements, 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.
58. In addition, in the rush to generate these documents, the robo-signer will
generally sign the documents outside the presence of the notary who later notarizes
them.
59. The above practices fail to comport with legal requirements, thereby
rendering the documents fraudulent and invalid.
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60. In a case involving GMAC, as well as BOFA, 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. The 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 B4
61. Even more recently,, the Attorney General of Ohio has filed an Action on
behalf of the Citizens of Ohio in 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 ***********
62. Within the last month, Bank Of America (BOFA) belatedly acknowledged
that its regular use of robo-signers constituted an abuse of the legal system and a
violation of the rights of homeowners, by halting foreclosures in all 50 states.
63. Within the past month of this writing Plaintiff Wells Fargo Bank has
alsopublicly admitted to perjury in the Courtsof this nation in approximately
55,000 foreclosure cases.
Known Robo-Signer Ms. Topako Love
64. In the case at bar, the signor of the Affidavit of Status of Account and
Military Affidavit referenced above as exhibit A2, is one Ms. Topako Love.
65. Ms. Love is one of many robo-signers used by Wells Fargo Bank NA. see
Exhibit B5. Ms. Love is a known employee of professional contract FORGER and
PERJURERFIS Foreclosure Solutions, Inc., of Mendota Heights, MN., Ms
LOVE has been employed by FIS Foreclosure Solutions, Inc., and/or its prior
incarnations Fidelity National Default Solutions, Inc. since March 2003.
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66. In the course of her employment for FIS Foreclosure Solutions Inc., she
regularly executes affidavits, assignments and other legal documents necessary to
foreclosures as quickly and efficiently as possible for a number of different
companies.
67. To accomplish this objective, Ms. Love does not read the affidavits she
signs or make any inquiry as to whether the statements made therein are true and
accurate.
68. Ms. Loves robo-signer status is documented by Defendants Exhibits
FraudDigest1,Love Exhibit L1, Montgomery County Topako Love Docs 1
69. These documents all prove to demonstrate that:
1. Ms. Love is a Corporate Character that wears way too many hats and
2. This problem isnt just somewhere in the Nation but right here in
Montgomery County and
3. Ms. Love, whereas having the Title of Asst. Secretary is enlightening, an
Assistant Secretary has not the capacity, within the standard corporate
hierarchy, to transfer Corporate Assets and
4. since only with specific and documented Authority, which can be given
ONLY by one properly (Legally & Lawfully) authorized to do so, and
that same authority properly memorialized can ANYONE have the
capacity to transfer Corporate Assets,
5. and since same referenced documentation was requested in Defendants
Discovery Request and yielded no such representations from Plaintiff,
then
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6. Ms. Love, without same said documented authority, could not have
Legally & Lawfully transferred the asset as it is purported on the
Assignment of Mortgage.
70. I am attaching an example ofan affidavit given by Ms. Topako LOVE in
another Ohio case heard and dismissed in Federal Court (Deutsche Bank National
Trust Company v. JACKSON). In this affidavit, Ms. LOVE represented that she
was a servicing agent of Deutsche Bank National Trust Company.
71. In the affidavit at bar, Ms. LOVE avers that she is acting on behalf of
Option One as the "duly appointed officer of Option One Mortgage Corporation.
72. I am also attaching an affidavit in which Ms. LOVE avers that she is the
"Assistant Secretary" of Option One Mortgage (HSBC Bank USA NA v BROYLES).
In this latter state court case from Summit County, she avers that Option One is the
servicing agent for HSBC Bank USA NA.
73. In a third attached affidavit, Ms. Topako LOVE also avers that she is the
"Assistant Secretary" of Option One Mortgage Corporation as servicing agent for
Wells Fargo Bank NA.
74. Finally, I have attached the unpublished opinion of Justice Karen MURPHY
in a Nassau New York case. You will find that this NY Justice DENIED an order
of reference (foreclosure) when Topaka LOVE was shown to be an officer of
Option One but where NO POWER OF ATTORNEY FOR OPTION ONE and NO
POWER OF ATTORNEY TO REPRESENT DEUTSCHE BANK WAS
PLEADED.
75. Im also attaching an exhibit of Ms. Loves signature on documents where
she attests she is the;
1. Assistant Secretary for Mortgage Electronic Registration Systems, Inc.,(MERS) as nominee forThe Money Tree Financial Corporation
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2. Asst Secretary for Mortgage Electronic Registration Systems, Inc.,(MERS) as nominee forIndymac Bank FSB (1)
3. Asst. Secretary for Mortgage Electronic Registration Systems, Inc.,(MERS) as nominee forIndymac Bank FSB (2)
4. Asst. Secretary for Mortgage Electronic Registration Systems, Inc.,(MERS) as nominee for Cana Blanca Mortgage Inc., D/B/ ShearsonMortgage
5. Asst. Secretary for Mortgage Electronic Registration Systems, inc.,(MERS) as nominee forMortgaget, Inc.
6. Assistant Secretary for Mortgage Registration Systems, Inc., (MERS) asnominee for Impac Funding Corporation DBA Impac Lending Group
7. as a duly appointed officer ofOption One Mort. Corp. as Attorney in
Fact working for same in the mortgage and foreclosure relatedservices to Deutsche Bank National Trust Co.
76. As noted earlier In addition, in the rush to generate these documents, the
robo-signer will generally sign the documents outside the presence of the notary
who later notarizes them.
Notary Forgery & Fraud
77. Defendant John A. Reedpro se wishes to bring to the Courts Judicial
notice of the fabricated, forged, fraudulent Documents Plaintiff has entered into this
Court in their attempt to prove their ownership and subsequent right to
foreclose on the alleged Mortgage and Note.
78. On the Affidavit of Status of Account and Military Affidavit (exhibit
A2) and located below Ms. Loves signature, is the signature of the Notary who
has supposedly witnessed Ms. Loves signature to the document.
79. On the above referenced Affidavit, signed by Ms. Topako Love, the notary
listed is one Matthew Allen Banaszewski.
80. Mr. Banaszeski is another employee of FIS Foreclosure Solutions, Inc of
Mendota Heights, MN.
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81. Attached to this Pleading I have included several samples of Mr.
Banasweskis signatures from other documents he attests to have signed, including
his State of Minnesota Notary Signature Card, these include;
1. Massachusetts Foreclosure Deed (Jan. 9th
, 2009) by Corporation whereon page 2 we see Mr Banaszewskis signature. Exhibit Bana 1
2. Assignment of Mortgage, January 3rd, 2008 Exhibit Bana 2
3. Affidavit of Laura Hescott, December 26 th,Exhibit Bana 3
4. Assignment of Mortgage, 4209 San Marcos Rd. Exhibit Baba 4
5. Minnesota Notary Matthew Allen Banaszewskis Signature Page whichI have compiled from the docs included and which contains 15 separate
signatures of Mr. Banaszewski that even the most inexperienced eye cantell were crafted by as many different people! Exhibit Bana 5
6. Affadavit of Gary Wait, Kentucky case # 07Ci368 containing Mr.Banaszewskis State of Minnesota Notary Signature Card, otherexamples ofsignatures, and the statement of Mr. Gary Wait as to hissignatures authenticity. Exhibit Wait 1
82. The conclusion reached, when comparing the Signatures of both Ms.
Topaka Love and Mr. Banaszewski signature within these Court filings is both
shocking and revealing as even an untrained eye can clearly discern these signatures
were, in both cases, not made by the same peoples and therefore are forgeries.
83. At least one court has found that filing affidavits that falsely claim personal
knowledge is a violation of the Ohio Consumer Sales Practices Act when filed in
connection with consumer transactions. Midland Funding, LLC v. Brent, 644 F.
Supp. 2d 961, 977 (N.D. Ohio, 2009)
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III. LAW AND ARGUMENT
84. Defendant, the State of Ohio, and its Citizens interests are best preserved by
assuring that the parties to the action are the proper parties. According to the
Supreme Court of Ohio a judgment rendered by a court lacking subject matter
jurisdiction is void ab initio. Patton v. Diemer (1988), 35 Ohio St.3d 68, 70, 518
N.E.2d 941. As a result, if the Court were to enter judgment without jurisdiction or
without proper parties, the State of Ohio would be prejudiced by having to
participate in judicial proceedings to set aside the sale and then re-litigate hundreds,
even thousands of foreclosures. it is a well known canon of contract construction
that ambiguities in a contract are to be construed against the party who drafted
said contract. PursueEnergy Corp. v. Perkins, 558 So.2d 349 (Miss. 1990).
IV. HOLDER IN DUE COURSE
85. The Holder in Due Course Defense is well-established in bankruptcy
practice. To quote (and incorporate as if my own) Bert Ely, a longtime analyst of
the financial services industry and a scholar at the Conservative Cato Institute who
was among the first to predict the S&L scandal of the 1980s:
this is well-established in bankruptcy practice, that you have to properlyperfect the security interest, and if you havent, youre screwed.
Securitization ostensibly provides a source of capital so that more home loansare available to borrowers. However, the series of corporate and bankingtransactions that make up securitization cannot be permitted to avoid liability bythose who are actually providing the funding _ and often controlling thetransaction. See Kurt Eggert, Held up in Due Course: Predatory Lending,Securitization, and the Holder in Due Course Doctrine, 35 Creighton L.
Rev. 503 (2002).
86. With the process of the securitization of a mortgage loan, it is essential for
the true sale and bankruptcy-remote/FDIC-remote analysis that the Depositor
maintains its own corporate existence separate from the Sponsor and the Trust and
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observes the formalities of this corporate separateness at all times. The Elephant in
the Room in all structured financial transactions is the mandatory requirement to
create at least two true sales of the notes and mortgages between the Originator
and the Trustee for the Trust so as to make the assets of the Trust both bankruptcy
and FDIC remote from the originator.
87. And, these true sales must be documented by representations and
attestations signed by the parties; by attorney opinion letters; by asset purchase and
sale agreements; by proof of adequate and reasonably equivalent consideration for
each purchase; by true sale reports from the three major ratings agencies
(Standard & Poors, Moodys, and Fitch) and by transfer and delivery receipts for
mortgage notes endorsed in blank, none of which Plaintiff produces in their
documents of evidence.
88. Both when the Plaintiff filed its Complaint and when the Court granted
judgment in favor of the Plaintiff, the documents before the Court demonstrate that
an entirely different party was the holder of the note.
89. Plaintiff Wells Fargo Bank NA was not the holder of the note, had no
interest in the note, suffered no injury from any nonpayment on the note, and had no
standing to pursue foreclosure.
90. The Courts judgment in favor of a party without standing is void ab initio
as a matter of law because the Court lacked jurisdiction over the case.
91. If such basic legalities arent adhered to, a homeowner could pay his or her
way out of a foreclosure jam only to wind up in another when a new plaintiff
emerges claiming to own the debt. Mortgage lending and servicing is a matter of
dotting the Is and crossing the Ts. Thats what puts the discipline in the
process. Bert Ely.
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92. Plaintiff, Wells Fargo Bank NA., attaches documents to its complaint and
documents produced through Discovery conflict with the allegations of material
facts in the complaint in which the plaintiff claims that it owns the Note and
Mortgage by virtue of a post-created and post-recorded assignment.
93. These allegations conflict with the alleged mortgage and note attached to the
complaint that identifies Option One Mortgage Corporation, as the lender with the
original security interest.
94. This interest, according to Plaintiffs submitted documentation was
purportedly transferred in whole, to Barclays Bank, there to be Securitized,
allegedly transferred back to Option One as Depositor and then given in its
entirety, with all rights and privileges into the TRUST, which is a publicly owned
entity.
95. These allegations and the misrepresentations that Plaintiff have brought into
this Court with the aforementioned Assignment and Affidavit, therefore constitute
serious misrepresentations and forgery and should be construed as a fraud
brought upon the court.
96. Further, Plaintiffs own exhibits, fully scrutinized, show many instances of
no actual legal transference of the Mortgage and Note at all.
97. Within Plaintiffs exhibits, the transference dates purported could not have
existed within the Timeline represented, as it is not within a consistent a linear
timeline.
98. Upon a complete Mortgage Document scrutinization, these discretions are
easily seen.
99. Knowing failure to disclose material information necessary to prevent
statement(s) from being misleading, or making representation(s) despite knowledge
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that it has no reasonable basis in fact, are actionable as fraud under law. Rubinstein
v. Collins, 20 F.3d 160, 1990.
V. FRAUD IN THE INDUCEMENT
100. First: Upon information and belief Defendant states Plaintiffs have already
been paid in full for any securitized notes they held by the Taxpayers of the Unites
States. Upon information and belief Defendant asserts the lenders and holders of
the notes were paid in full. That is, they have no economic damage from the
default (!) due to the way they structured the deals.
101. Second: Upon information and belief Defendant statesthat there was fraud
in the inducement in all of these securitized loans, the case at bar included, in that
there is an implied duty of dealing in good faith in all contracts that was violated
by the Plaintiff who made knowingly bad loans which there is now have sworn
testimonyon.While this is not settled by any means, there is currently pending
litigation on this point.
102. Third: Upon information and belief Defendant alleges that the banks were
not stupid they knew the mathematics (as we all do now) and intentionally
crashed the market. That just compounds the second point.
103. Fourth: Upon information and belief Defendant states, because of the way
that these Securitized assets were structured, the lenders/banks have suffered
no economic damage. As they:
a. first created/structured the Trust(s) in their securitization scheme,
b. THEN they sold off securities based on contemplated future assets
on the then asset-less Trust(s) to Investors and
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c. THEN used THAT money to finance the mortgages that were
eventually included into the Securitizations that were used to finally
fund the Trust(s).
104. In the above scenario, which we now know to be true, they suffer absolutely
no direct OR indirect financial economic damage. Indeed, the only real financial
damage they would suffer is if the mortgages were paid in full, as it would then
remove their servicing rights from that individual, cutting off their income flows
from penalties and servicing fees.
105. There was institutional fraud committed in the inducement of this alleged
loan.
106. Any contract between any entities bears with it an implied dealing of in
good faith that was violated by the Plaintiff when they knowingly, purposely and
with premeditation made a bad loan.
107. As is now quite evident, all the major Banks, including Plaintiff Wells Fargo
Bank NA., purposely went out to find loans that were guaranteed to fail.
108. Only by using guaranteed to fail mortgages to fill the securitizations, which
made up the Trust(s) Deposits, were they guaranteed to recoup unjust riches by
profiting from the insurance policies they had created both through derivative
contracts and also from the other insurers such as AIG when those securitizations
failed.
109. Let me be clear on this position:This entire bubble was
predicated on fraud up and down the line. Ill simply quote Prof. Willaim K.
Black (ex. Federal Regulator), ********************
since hes more concise than I can be:
Nothing short of removing all senior officers who directed, committed, oracquiesced in fraud can be effective against control fraud. We repeat: Foreclosure
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fraud is the necessary outcome of the epidemic of mortgage fraud that began earlythis decade. The banks that are foreclosing on fraudulently originated mortgagesfrequently cannot produce legitimate documents and have committed fraud in theinducement. Now, only fraud will let them take the homes. Many of the requireddocuments do not exist, and those that do exist would provide proof of the fraud thatwas involved in loan origination, securitization, and marketing. This in turn wouldallow investors to force the banks to buy-back the fraudulent securities. In otherwords, to keep the investors at bay the foreclosing banks must manufacture fakedocuments. If the original documents do not exist the securities might be ruled nogood. If the original docs do exist they will demonstrate that proper underwriting was
not done so the securities might be no good. Foreclosure fraud is the only thingstanding between the banks and Armageddon.
The entire robo-signing thing is part and parcel of the industrysinability to produce factual documentation right up front. There are only tworeasons not to produce the original paperwork, properly endorsed, instead of all thisrobo garbage:
1. You dont have it because you never got it, and youre trying to cover thatup.
2. You dont have it because you intentionally destroyed it or are hiding it,
as producing it would document that you did something fraudulentearlier on in the process (like at origination, for instance) , and youretrying to cover that up.
In short, there is no other explanation. A few lost pieces of paper here andthere? Sure. A system that cant produce any of the paperwork, properlyendorsed over? Thats not accident its an intentional act. Period.Forgery is not a procedural issue. Its a felony act of perjury.Mocking the rule of law is not a procedural matter it goes to the veryheart of our legal system, not to mention The Constitution. There is thispesky thing called The 5th Amendment. No person shall be deprived of
Life, Liberty, or property, Without Due Process Of Law.
The TRUST
110. The MBS Trust was organized under NY Trust Law. NY Trust Law
requires that delivery be made "in as perfect a form as possible." Intentionally not
delivering anything is so far removed from this requirement that it is a near-
certainty that the Trusts are in fact legally void.
111. IRS REMIC rules (IRS statutes 856-859 which govern REITS) require that the
trusts contain a static pool of loans, and that they all be in the trust as of the
certification date. This is typically 90 days post-closing of the trust (the 90 days is
to allow a few late deliveries.) If REMIC rules are not followed the entire trust
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loses its tax passthrough preference and back taxes are due on the operations of
the trust back to the point of violation - in this case, back to the founding. The
holders of the certificates could become held financially responsiblefor these
taxes - at the corporate rate.
112. The Pooling and Servicing Agreements all contain certifications that the
formalities of transfer were complied with, including all intervening
assignments and delivery to the Trust. These are not certifications of something to
be done prospectively, they are certifications of fact that have allegedly
occurred. If in fact no transfers took place then the entire MBS chain is arguably
void as there are no mortgages in the securities.
113. With the above in mind
TRACKING THE MORTGAGE CHRONOLOGY
Please carefully notice all dates!
114. H&R Block Originates the alleged Mortgage Dated; June 9th, 2005
Plaintiff ERROR #1 Here is where the confusion/obfuscation begins.
115. In the Document titled CORPORATION ASSIGNMENT OF OPEN-END
MORTGAGE exhibit B dated June 9th, 2005 purports, along with the 1st
Allonge (which is not attached to the original note as is required by Ohio Law), to
transfer the alleged Mortgage & Note from H&R Block to Option One Mortgage
Corp., yet fails in its requirement to display just WHERE it recorded same, reading
and recorded as Document No. _________ on, ________ day of __________ in
book _________, page __________, of Official Records and attested to by a one
Kristi Canizio (the Lady of many hats) and Roseann Infusio . Clearly in violation of
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U.C.C., true sale obligations and other SEC., O.R.C. Rules & Regulations, and
Contract & Securities Laws stated elsewhere within this pleading.
116. Later, in an Assignment (Exhibit F) dated 10/27/05 and recorded on
11/22/05 Plaintiff wants us to believe it again transfers the very same Note &
Mortgage from the very same entity (H&R Block) to the very same above
mentioned entity (Option One). When exhibits are inconsistent with the plaintiff s
allegations of material fact as to whom the real party in interest is, such allegations
cancel each other out.
117. On June 9th, 2005, the same day of the creation of the alleged Mortgage &
Note we see the first appearance of one Ms. Kristy Canizio. Ms Canizio signs the
following documents, acting in many different positions, wearing many different
hats, and acting on behalf of, and of necessity to positions held, employed by both
H&R Block & Option One Mortgage Corporation. She signs first ;
6/9/05 Allonge (exhibit K1) to Note as Assistant Secretary for Option One
Mortgage Corp.(INVESTORS)
6/9/05 Allonge (exhibit K2) to Note as Assistant Secretary for H&R
Block (HRBMC)
6/9/05 Corporation Assignment of Open End Mortgage as duly authorized
attestor exhibit B
6/9/05 as Funding/Closing Department Contact exhibit K4
6/13/05 (my personal favorite) Employment Verification Funder/AM
Signature (4 days AFTER loan closing!) exhibit K9 (Due Diligence?)
6/14/05 as Reviewer/Closer on HDMA Audit Sheet exhibit K5
6/14/05 as Data Integrity Verifier on Data Integrity Audit sheet 1 exhibit
K6
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6/14/05 as Data Integrity Verifier on Data Integrity Audit Sheet 2 exhibit
K7
6/14/05 Document preparer for 049-8566 Wiring Instructions exhibit K8
118. Probably most interesting is that Ms Canizio holds the position of Assistant
Secretary simultaneously to 2 (two) separate Corporate Entities and also lets
pass, until 4 days AFTER the alleged Mortgage Loan closing, the alleged
verification of the income of the Defendant. The same Defendant who had no
income. see attachedEmploymentVerification exhibit K9!
119. The very same employment verification purportedly taking place 3 days
AFTER the below titled Execution Copy has already allegedly sold the alleged, but
now certified as properly vetted by Option One Mort. and Ms. Canizio, as good and
fraud free, Mortgage and Note to Barclays Bank
120. Plaintiff introduces as evidence Plaintiffs exhibit no 25, Titled
EXECUTION COPY RE: Purchase Price and Terms Agreement Dated As of
June 10, 2005 One day after the alleged Mortgage creation! Demonstrating how
Barclays Bank has agreed to buy, but has not bought, the alleged Mortgage Note
and debt from Option One after Option One had combined that same note and debt
into one of two pools of fixed and adjustable rate, first and second lien residential
mortgage loans.
121. Next, please notice that the alleged Mortgage has yet to be assigned to
Option One in the 1st place.
122. That assignment does not occur for another 140 days (over 4 months!), (its
either that or Plaintiff has brought fraud into the Courts with its Assignment of
Mortgage to Option One from H&R Block! )
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123. It should also be noted that Plaintiffs exhibit 25 (exhibit E) lacks any
signatures or authentication (indorsement ads per RC 1303.24) by either Buyer
or Seller which is in violation of U.C.C., SEC., O.R.C. Rules & Regulations and
Contract & Securities Laws presented elsewhere within this pleading and as such
represents NOT a legally binding Contract or even Agreement as previously noted.
124. Plaintiff ERROR #2 Plaintiffs exhibit 26 (exhibit G) titled
EXECUTION COPY :
FLOW AMENDED AND RESTATED MORTGAGE LOAN PURCHASE
AND WARRANTIES AGREEMENT exhibit G
125. Dated August 15th, 2005 (2 Months and 5 days after the above referenced
Plaintiffs exhibit 25 and which lacks any reference to Plaintiffs the specific
TRUST Securitized Asset Backed Receivables LLC 2006-OP1 Mortgage
Pass-Through Certificates, Series 2006-OP1, and is dated months before the
Assignment from H&R Block (alleged Mortgage Originator) to Option One.
Plaintiffs exhibit 10(exhibit F)
126. This document catalogs the alleged purchase of certain conventional and
adjustable and fixed rat B/C, residential, first and second lien mortgage loans (The
Mortgage Loans) on a servicing retained basis which shall be delivered in
pools of whole loans from the Company & Seller Option One Mortgage to the
Purchaser, Barclays Bank, PLC.
127. Again, it should be noted that Plaintiffs exhibit 26 lacks any referenace
to the specific Trust at bar, and lacks ANY proper signatures or
authentication (indorsements) (see exhibits G2 thru G7) by Seller clearly in
violation of U.C.C., SEC., O.R.C. Rules & Regulations and Contract & Securities
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Laws presented elsewhere within this pleading and as such fails to represent a
legally binding Contract.
25. Plaintiffs ERROR # 3 plaintiffs exhibit 27 titled EXECUTION COPY
ASSIGNMENT AND CONVEYANCE (defendants exhibit H1,H2andH3)
dated August 19th, 2005.
126. This document does purportedly represent the Assignment and Conveyance
of the the Mortgage Loans from (Seller) Option One to Barclays Bank PLC.
Again, it should be noted that Plaintiffs exhibit 27 (Assignment and
Conveyance) lacks any proper signatures (indorsements) (see exhibit H1,
H2 and H3) or authentication by either Buyer or Seller clearly in violation
of U.C.C., SEC, O.R.C., and Contract & Securities Laws as stated elsewhere within
this pleading and as such represents NOT a legally binding Contract as previously
noted.
OF SPECIAL NOTICE ALL OF THE ABOVE OCCURRED BEFORE
THE FIRST ASSIGNMENT DATE to OPTION ONE!
127. H&R Block Assigns Note & Mortgage to Option One see assignment dated:
October 27, 2005 & Recorded November 22nd, 2005 plaintiffs exhibit 10-
Defendants exhibit F
128. Plaintiffs ERROR # 4 Plaintiffs exhibit 28 ( attached exhibit I) titled
EXECUTION COPY BILL OF SALE dated January 26th, 2006.
127. Here we have a Bill of Sale that represents that BARCLAYS BANK PLC
(the Seller), in consideration of (i) the sum of $1,214,208,.30
129. Let me write that out. One Million, two hundred and fourteen thousand,
two hundred and eight dollars (I guess) then a coma(!) and then a decimal point (I
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guess) and 30 cents (I guess) dollars. This NOT a typographical error on my part
(see Plaintiffs exhibit 28).
130. This Document purportedly Names Option One as the Servicer, Mortgage
Ramp, Inc. as loan performance advisor and Wells Fargo Bank, National
Association , as trustee as of January 26, 2006. to be paid to it in immediately
available funds by SECURITIZED ASSET BACKED RECEIVABLES LLC (the
Purchaser) and (ii) the Class X, Class P and Class R Certificates issued pursuant
to a Pooling and Servicing Agreement, dated as of January 1, 2006 (the Pooling
and Servicing Agreement) (Plaintiffs exhibit 18) .
131. The Pooling and Servicing Agreement (PSA) is a public document on file
and online at http://www.secinfo.com and the entire pooling and servicing
agreement is incorporated herein, among the Purchaser, as Depositor, Option One
Mortgage Corporation, as servicer and responsible party, MortgageRamp, Inc., as
loan performance advisor, and Wells Fargo Bank, National Association, as trustee,
does as of January 26, 2006, hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser without recourse, all the Sellers right, title and interest in
and to the Mortgage Loans described on Exhibit A attached hereto and made a part
hereof, including all interest and principal received by the Seller on or with respect
to the Mortgage Loans.
132. Defendant states that if this were a check he had to cash, it wouldnt be
cashable and it is signed and/or endorsed and/or authenticated (indorsed) by NO
ONE!
133. In Summary; theoretically, Barclays Bank PLC resells the Mortgage Loans
from the Trust to SECURITIZED ASSET BACKED RECEIVABLES LLC as
Purchaser & Depositor, to Option One Mortgage Corporation, as servicer and
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responsible party, AND to MortgageRamp, Inc., as loan performance advisor, AND
to Wells Fargo Bank, National Association, as trustee, as of January 26, 2006 for an
undecipherable amount and for Class X, P & R Certificates issued pursuant to a
Pooling and Servicing Agreement (they dont specify which one) and then divides
ownership between the four in some ethereal undisclosed manner .. as again, it
does not specify.
134. Please note this next, the Pooling and Servicing Agreement document is
accompanied by an undated, un-referenced and unspecified signature page (does it
belong to this document?) which is signed by one Paul Menefee Director from
SECURITIZED ASSET BACKED RECEIVABLES LLC, and one John Cuccoli
(probably misspelled but close!), Managing Director of BARCLAYS BANK PLC,
and that there is no indorsement, no authentication given for either signatures
power to enter into this contract and also no Power of Attorney Stamp and Seal
accompanying this document which also has no signature date, clearly in violation
of U.C.C., SEC., O.R.C. rules & Regulations and Contract & Securities Laws as
previously stated elsewhere within this pleading and as such represents NOT a
legally binding Contract.
135. Please note also the date of January 26th, 2006 as the day of this transaction.
As per Pooling & Servicing Agreement. On occurrence of a Credit Event
Trust Transfers Mortgage BACK to Option One
136. As per Pooling & Servicing Agreement section; 2:03 (d) Within 30 days of
the earlier of either discovery by or notice to the Responsible Party that any
Mortgage Loan does not conform to the requirements.of any breach of a
representation or warranty.that materially and adversely affects the value of
any Mortgage Loan the Responsible Party shall.. remove such Mortgage
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Loan (a Deleted Mortgage Loan) from the Trust and substitute in its place a
Substitute Mortgage Loan..
137. Contractually, according to the alleged Pooling & Servicing Agreement
supplied by Plaintiff ( exhibit J) , 30 days after the alleged default, which
occurred September, 2007 as of Plaintiffs exhibit 20 (Payment History) ,
hereinafter stated as October 2007, Option One, contractually was supposed tohave
regained sole possession of the Note and Mortgage.
138. There is no assignment or any other authentication or recordation provided
by Plaintiff attesting to same transfer and necessary to prove proper and Legal
Chain of Title.
139. Option One was supposed tosupply a substitute Note & Mortgage to take
the Note & Mortgage at Bars place.
140. Plaintiffs offers only a forged and fraudulent sworn evidentiary
production of the Assignment from Option One Mortgage Corporation
to Wells Fargo Bank N.A. exhibit A (Plaintiffs exhibit 11) dated
March 3, 2008 and recorded March 27th, 2008, 141.
141. This creates multiple problems with Plaintiffs assertions:
a. the date of recordation occurs AFTER recordation of Foreclosure
action and as such proves Plaintiffs lack of standing at the time of suit
initiation to initiate this suit and/or
b. If accepted as a valid assignment, then it also voids Plaintiff Wells
Fargo Bank as Trustee for the TRUSTs argument of Holder of the Note
& Mortgage because Plaintiff is not Option One Mortgage Corp., who in
Plaintiffs proposed scenario is the entity that has assigned the rights to
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Wells Fargo Bank to initiate this suit and not the TRUST that Wells Fargo
Bank NA is acting as Trustee within the suit at Bar.
142. Defendant John A. Reedpro se wishes to bring the Courts Judicial notice
that the signatory page(s) located within the of the Pooling & Servicing Agreement,
each contain only but ONE signature, with empty signatory spaces for each other
and that there is no one Signatory page containing all signatures, no authentication,
or indorsements of any signatures, no dates of signatures and no certification of any
signatures by Power of Attorney clearly in violation of U.C.C., SEC., O.R.C. Rules
& Regulations and Contract & Securities Laws previously stated elsewhere within
this pleading, and as such represents NOT even a legally binding Contract.
143. Please note date of supposed Re-Possession of Mortgage Note to Option
One as October 2007.
As per Pooling & Servicing Agreement section; 203(d).
February 27th , 2008 Foreclosure Action is filed
144. On March 27th, 2008, through the above mentioned forged and fraudulent
Assignment of Mortgage, Option One then purportedly assigns the Note &
Mortgage to Wells Fargo to act as Foreclosure Special Servicer.
145. But we must remember, as per the Trust's Pooling & Servicing Agreement
and all supplied documentation from Plaintiff, Wells Fargo is supposedly the
Servicer for "The Trust" NOT for Option One! See Assignment (exhibit A)
Plaintiffs exhibit 11 dated; March 7th, 2008 and recorded March 27th, 2008.
Signed by the above noted Ms Topaka Love who purporting herself as assistant
Secretary, and who personally appeared for signature in Minnesota, and that the
document was prepared by Plaintiffs Counsel LERNER, SAMPSON &
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ROTHFUSS located in Cincinnati, Ohio and notarized by the above mentioned
Matthew Allen Banaszewski (Notary of many signatures).
146. Further, the alleged Mortgage & note was allegedly assigned from Option
One to Wells Fargo Bank for NO CONSIDERATION. Contract Law states there is
no value established unless there is a meeting of the minds and consideration is
passed, so once again, no legal contract is established, as no value has been
established because no consideration has been passed. Again we see, there is no
valid Legal Contract.
147. In Conclusion, while keeping in mind that with each and every step of this
alleged Mortgage & Note transference, each and every entity bears the
requirement by law of proper Due Diligence.
148. Realizing that all of the alleged loan origination papers, including the Credit
report, bear a Social Security number (over a dozen times all together) that does not
correspond with the stated name on the Mortgage Document.
149. Add to that the inconsistencies that are within almost all of the loan
origination documents are easily identified with minimal effort, especially by
schooled and learned professionals, such as Plaintiffs and their assigns purport to
be.
150. In fact and deed, Plaintiffs own exhibits prove only so many irregularities
and illegalities that unless each and every one is proved, and proved within a
chronology that actually CAN exist, then the Plaintiff Wells Fargo Bank can NOT
ever be deemed the Holder in Due Course of the subject Mortgage and
Promissory Note.
151. In fact, Plaintiffs exhibits show not only that Plaintiffs have a near total
disregard for US Federal, State & Local Law, Rules and Regulations, as previously
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indicated, as they apply to Securities Transfer and documentation, but also that they
didnt ever have the proper documentation to bring this case to court in the first
place.
153. So, Defendant through knowledge and belief states that Plaintiff threw a bunch
of documents into a pile, and hiring willing Counsel to do their bidding, they laid
them upon the Court, with Counsel testifying under oath as to their validity, hoping
the Courts would allow them to steam roll right over the Defendant and use the
Court as they deem fit.
154. Concurrently, they also demonstrate either utter incompetence, collusion
and/or criminal pre-meditated intention and execution.
RICO
155. To Defendants belief and knowledge, Plaintiff Wells Fargo Bank NA. has
foreclosed on tens of thousands of properties within the borders of Ohio and the
United States using these same tactics and practices on a regular basis (see
authorities 4 ) even despite previous court sanctions for these very same actions
(see authorities 5 ).
156. The Plaintiffs have demonstrated, in the case at bar, and created by exhibits
provided, a well-documented and clear history of violating every aspect of Due
Diligence AND the Clean Hands Doctrine.
157. Plaintiffs own exhibits prove not only Plaintiffs Lack of Standing in the
subject case at hand, but also their eager willingness to bring forgery, fraud, greed
and incompetence to the Courts in their attempts at unjust enrichment.
158. Plaintiffs Counsel also clearly demonstrate their own lack of performance
of Due Diligence in Representing Plaintiff before a thorough investigation of same
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and his attestation to authenticity of now known forged, fraudulent and
fabricated documents are themselves grounds for this Courts sanction.
159. Plaintiff Wells Fargo Bank Na. brings fraud into the Court with its
allegations of ownership of alleged Mortgage & Note as per Legal
requirement which states U.C.C. - 3-203 (b) which reads;
Transfer of an instrument, whether or not the transfer is a negotiation, vests in the
transferee any right of the transferor to enforce the instrument, including any right as a
holder in due course, but the transferee cannot acquire rights of a holder in due course by
a transfer, directly or indirectly, from a holder in due course if the transferee engaged in
fraud or illegality affecting the instrument.
40. As stated in Buckeye Federal Sav. & Loan Assn v. Garlinger (1991), 62
Ohio St. 3d 312, 315 (stating promissory notes are negotiable instruments under
R.C 1303.3(A). According to Ohio Revised Code, in order for a negotiable
instrument to be properly transferred, it must be negotiated. R.C. 1303.21(B).
41. Negotiation includes not only the physical transfer of the instrument but
also the indorsement, U.C.C 3-201, RC 1303.24, by the holder to transferee, which
of course, must be in writing. Id.; R.C. 1303.22.
42. The Assignments and other documentation submitted by the Plaintiff
fails to establish all of the necessary links between the original lender and the
Plaintiff to effectuate proper Chain of Title. In just one instance of this case,
Plaintiff submitted an Assignment of the alleged Mortgage (exhibit A)(assigned to
Plaintiff post foreclosure initiation) which allegedly transferred the alleged Note from
Option One Mortgage Corp. to Plaintiff Wells Fargo Bank NA..
43. Per the Purchasing and Servicing Agreement presented by Plaintiff, at
time of default, the Lender (Option One) takes back the alleged Mortgage & Note
(contractually through the Pooling & Servicing Agreement) and then,post
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foreclosure initiation, the Lender purportedly assigns that alleged Note &
Mortgage to Plaintiff Wells Fargo Bank N.A..
44. Plaintiff fails to produce any evidence that in each and every occurrence
of transfer of the alleged note & mortgage that there was ever ANY proper
recordation, indorsement, OR proper negotiation for the alleged Note & Mortgage
as per R.C. 1303.22, therefore, Plaintiff Wells Fargo Bank N.A. not only lacks
Legal standing to initiate suit for reason ofpost assignment of note, Plaintiff
Wells Fargo Bank N.A. also lacks standing to initiate this suit because Plaintiff
Wells Fargo Bank Na. was never the rightful holder in Due Course of the alleged
Note & Mortgage.
45. The Courts previous decision fails to acknowledge the missing links of
negotiation, ie., lack of indorsements R.C 1303.24 and lack of Assignments of
the Note at issue prior to Plaintiff initiating suit and the lack of proper assignment
and/or transference of the alleged Mortgage & Note through each and every
purported step of this alleged Note & Mortgages entire chronology, from birth to
death.
46. Plaintiffs and Plaintiffs Counsels lack of due diligence as defined by
the Securities and Exchange Act of 1934 SEC. 10A (a)(1)(2)(3), was detrimental
and damaging to Defendant as found in Securities and Exchange Act of 1934 SEC.
9(a) (1)(A)(B)(C), (2), (4), (6)(b)(1)(2)(3), (6)(c),(d)(e), and subsequently, while it
may be true that an unrecorded mortgage can be an effective transfer; the
assignment must be executed in writing, from the true holder in Due Course of the
alleged Mortgage & Note prior to filing the Complaint and before the Plaintiff can
establish that it has standing to invoke the jurisdiction of the Court. Standing is a
necessary prerequisite to establish a courts jurisdiction to hear a case. Cain v.
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Calhoun (1979), 61 Ohio A.. 2d 240, 242 fn. 2 (citintg State ex rel. Dallman v.
Court of Common Pleas (1973), 35 Ohio St.2d 176). see Authorities 6 Negotiable
instruments
47. Therefore, as raised by Defendant in each and every pleading and from
the initial proceedings ( ANSWER OF DEFENDANT John A. Reed, sect. 11, line 8., sect 13,
sect 14, ), the appropriate time to establish that the Plaintiff is the holder of the
alleged Note and Mortgage is at the time of filing the Complaint, not at the time of
judgment rendered on the Complaint. Merely alleging it is the holder of the alleged
Note and Mortgage is insufficient where there is no written proof of the alleged
interest in the Note and supplying post documentation representing a falsity is
fraud.
VI. PLAINTIFF SHOWS LACK OF STANDING THROUGH
SEPERATION
48. Plaintiffs allege, that the alleged Mortgage and Note,
after its alleged creation on June 9th, 2005, had been sold by
Option One to Barclays Bank and there was disassembled,
without the written permission of the Defendant, separating all
risk associated with the mortgage & note from all interest
proceeds gained through ownership of same, is in violation of any
contractual agreement as is represented upon the alleged Note.
49. The alleged Mortgage and Note was SEPARATED and
then repackaged, with interest income proceeds being re-directed
to the Securitized Trust Shareholders, but with all risk purportedly
still owned by Option One Mortgage Co., (thereby, without
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insurance licensure, or even the ability to obtain insurance
licensure, insuring the Note.
50. Documentation provided by Plaintiff proves that not
only through lack of signatures, dates, authentication and
indorsements on each document (per Section R.C. 1335.04,
1303.21, 1303.22, 5301.01 ORC (A), 5301.25, 5309.79 and UCC
Article 3 & S.E.C. true sale obligations and others 9(a) (1)(A)(B)(C),
(2), (4),6)(b)(1)(2)(3), (6)(c),(d)(e)) & SEC. 10A (a)(1)(2)(3)
1303.24 Indorsement - UCC 3-204. (See Authorities 1 On Standing &
Due Process and Authorities 3 Parties In Interest Case Law ) purporting to
seperate the alleged Mortgage & note between one entity to
another, not only evidences a non-viable Legal & Lawful sequence
of events that would support Plaintiffs allegations of Holder in Due
Course by a proper and legally & lawfully permissible transfer of
the alleged Mortgage and Note but same evidence also voids the
Note & Mortgage in their entirety.
51. Defendant alleges that Plaintiff is attempting through
subterfuge, deception, fraudulent misrepresentation, and outright
fraud, to confuse the Courts. But once fully scrutinized, Plaintiffs
documentation clearly demonstrates their lack of Standing to
initiate this suit from its inception (see below Tracking the
Mortgage Chronology). When exhibits are inconsistent with the
plaintiff s allegations of material fact as to whom the real party in
interest is, such allegations cancel each other out.
ASSIGNMENT AND RECORDATION
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52. R.C. 1335.04. Ohio law holds that when a mortgage is
assigned, moreover, the assignment is subject to the recording
requirements of R.C. 5301.25. Creager v. Anderson (1934), 16
Ohio Law Abs. 400i (interpreting the former statute, G.C. 8543).
Thus, with regards to real property, before an entity assigned an
interest in that property would be entitled to receive a distribution
from the sale of the property, their interest therein must have
been recorded in accordance with Ohio law. In re Ochmanek, 266
B.R. 114, 120 (Bkrtcy.N.D. Ohio 2000) (citing Pinney v. Merchants
National Bank of Defiance, 71 Ohio St. 173, 177 (1904).1
53. Information contained on most of the rest of Plaintiffs
alleged transferences of the alleged Mortgage and Note in their
entirety (see below Tracking the Mortgage Chronology), has only
unsigned places for signaturesno datesno authenticationand
no proper indorsements upon them as required by U.C.C, S.E.C
Rules and Regulations and Ohio Revised Code R.C. 1303.21(B) &
1303.24 Indorsement - UCC 3-204.
54. Consequently, no legal &/or lawful transference took
place of the alleged Mortgage and/or note between each and
every Plaintiffs named entities and/or co-conspirators.
55. Plaintiff demonstrates near total disregard for UCC and
SEC Rules and Regulations and Ohio Revised Code, as they apply
to Securities Transfer and documentation.
56. Plaintiffs demonstrate the sales of securities based on
NO underlying Securitized assets actually held, and/or utter
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incompetence, and/or premeditated criminal intention and
execution.
57. To Defendants belief and knowledge, Plaintiff Wells
Fargo Bank NA. has foreclosed on tens of thousands of properties
within the borders of Ohio and the United States using these same
tactics and practices on a regular basis (see attached authorities 2
)
Lack ofStanding Article III
58. Plaintiff Wells Fargo Bank, National Association As Trustee For
Securitized Asset Backed Receivables LLC 2006-OP1 Mortgage Pass-Through
Certificates, Series 2006-OP1 is, as its name implies, merely a conduit, and a
conduit can never suffer a loss or injury as is required by the Real Party In Interest
Rule.
59. A Conduit can never suffer a loss or be injured as it must
immediately pass gains or losses to Investors who are (if there are to be any at all)
the true injured partynot the Servicer, not the Trustee and not the Pass-Through
Trust itself, and as such, not the Plaintiff Wells Fargo Bank NA.
60. Plaintiff fails to satisfy the U.S. Constitution Article IIIs standing
requirements that a plaintiff must show:
(a) it has suffered an injury in fact that is concrete and particularized and
actual or imminent, not conjectural or hypothetical;
(b) the injury is fairly traceable to the challenged action of the
defendant; and
(c) it is likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
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61. The minimum constitutional requirements for standing are: proof of
injury in fact, causation, and redress ability (Valley Forge, 454 U.S. at 472). In
addition, the plaintiff must be a proper proponent, and the action a proper vehicle,
to vindicate the rights asserted. [Coyne, 183 F. 3d at 494, quoting Pestrak v. Ohio
Elections Commn, 926 F. 2d 573, 576 (6th Cir. 1991)].
62. To satisfy the requirements of Article III of the United States
Constitution, the plaintiff must show he has personally suffered some actual injury
as a result of the illegal conduct of the defendant (emphasis added) (Coyne, 183 F.
3d at 494; Valley Forge, 454 U.S. at 472).
63. In each of the above-noted complaints, the named Plaintiff alleges it is
the holder and owner of the alleged Note and Mortgage. However, the attached
alleged Note and Mortgage identify the alleged mortgagee and promisee as other
than Defendant John A. Reed, and the original lending institution as other than the
named Plaintiff.
64. When exhibits are inconsistent with the plaintiff s allegations of
material fact as to whom the real party in interest is, such allegations cancel each
other out. Once again Plaintiff demonstrates their Lack of Standing to initiate this
foreclosure action. SeeAuthorities 6 Negotiable instruments
65. Because Plaintiffs did not demonstrate, nor could they demonstrate, that
their members have suffered or were likely to suffer an injury in fact, they fail to
meet Article III standing requirements.
66. Without standing, the Court did lack subject-matter jurisdiction.
67. Lack of jurisdiction may not be waived and may be raised, by a party or
sua sponte by the court, at any time.
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68. Without jurisdiction, the court must grant Defendants Motion and
dismiss this case.
69. Further, Plaintiffs wish the Court to believe that it does in fact have
possession of the Original Note and Mortgage. When confronted with request of
delivery of each Black ink, ball point pen signed, original, Plaintiff brings only a
copy (against EvidR 1002 of Best Evidence) of the Note and a forged Mortgage
Document.
70. Upon inspection of the alleged Original Mortgage Document, and the
signature which it bears, the signature appears to have been placed on the
document, or copy & pasted. Defendants signature, which lacks any physical
impression into the document, as is common when physical signing has actually
occurred, appears to have been placed using a computer and ink jet printer.
71. This red signature is in direct opposition to every other original
document produced by Plaintiff through Discovery, which are all allegedly signed
at the same place and time with a black ink ball point pen and as such, the red
signature is also in direct violation of Plaintiffs own Closing Agents explicit
instructions that All closing documents must be signed with a black ink ball point
pen. See Exhibit K4c.
72. Plaintiffs and Plaintiffs Counsels lack of due diligence as defined by
the Securities and Exchange Act of 1934 SEC. 10A (a)(1)(2)(3), was detrimental
and damaging to Defendant as found in Securities and Exchange Act of 1934 SEC.
9(a) (1)(A)(B)(C), (2), (4), (6)(b)(1)(2)(3), (6)(c),(d)(e), and subsequently, while it
may be true that an unrecorded mortgage can be an effective transfer; the
assignment must be executed in writing, from the true holder in Due Course of the
alleged Mortgage & Note prior to filing the Complaint and before the Plaintiff can
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establish that it has standing to invoke the jurisdiction of the Court. Standing is a
necessary prerequisite to establish a courts jurisdiction to hear a case. Cain v.
Calhoun (1979), 61 Ohio A.. 2d 240, 242 fn. 2 (citintg State ex rel. Dallman v.
Court of Common Pleas (1973), 35 Ohio St.2d 176).
73. The Lower Courts decision fails to incorporate prior rulings of this
Court on identical issues. In fact, several of Ohios District Court Judges and the
States Supreme Court have all ruled on numerous cases in favor of this
Defendants position within the past 16 months (see authorities1(On Standing, Due
Process & Indorsement), 2, (Previous Ohio Judgments on Lack of Standing only;) 3(Real
Party in Interest Case Law References), 4(Previous Ohio Cases Ruled against Wells Fargo Bank
N.A. for Lack of Standing).
74. This Court should not ignore precedent from this very Court in nearly
identical cases.
CONVERSELY
75. Conversely, should this Court find that in fact Wells Fargo Bank DOES
have the right, even though;
a. the bulk and greater weight of the evidence presented within this
case clearly prove Plaintiffs lacking standing to foreclose on
Defendant John A. Reed and
b. in light of Plaintiffs Public admission of 55,000 cases of perjury
and fraud,
then Defendant must bring attention to the Mortgage, Note and loan creation
documents which contain many fraudulent and actionable misrepresentations to
whit;
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(A) John L. Reed is represented as the party in interest upon the alleged
subject Mortgage and Note.
Note: Court has held and Plaintiff has agreed that Defendant John A.
Reeds Father, John L. Reed, had no interest or involvement in the
creation of t
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