template answer opposition otsc

8/3/2019 Template Answer Opposition OTSC

1/31

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF QUEENS-------------------------------------------------------------------------X INDEX #DEUTSCHE BANK NATIONAL TRUST COMPANY AS Date: Filed 05-30-2008

AS TRUSTEE FOR REGISTERED HOLDERS OF

GSAMP TRUST 2006-NC2 MORTGAGE PASS- REPLY TOPLAINTIFFSTHROUGH CERTIFICATES, SERIES 2006-NC2 AFFIRMATION

IN

OPPOSITION TO

DEFENDANTS THIRDPlaintiff,

ORDER TO SHOW CAUSE

-against-

JOHN DOE & JANE DOEDefendant(s)

---------------------------------------------------------------------X

. __________________., an attorney duly licensed to practice law in the

State of New York, and being the attorney for the Defendants hereby affirms the following under

the penalty of perjury pursuant to CPLR 2106:

1. I am the principal of the Law Offices of ________, Esq., attorneys for the

defendants John Doe and Jane Doe (hereinafter referred to as defendants) and as such, I am

fully familiar with the facts and circumstances of this litigation and make this reply in support

of Defendants reply with a Temporary Restraining Order: (i) vacating the Judgment of

Foreclosure and Sale of March 9, 2009 entered on March 24, 2009, The Foreclosure Sale of

October 23, 2009, the Judgment of May 3, 2011, the Order of October 11, 2011 due to Plaintiffs

counsel reliance upon documentary evidence containing a plethora of elements of extrinsic and

extrinsic fraud as per CPLR 5015(a)(2)(3); (ii) dismissing the herein Summons and Complaint

of May 30, 2008 in its entirety, with prejudice, base upon documentary evidence as per CPLR


2/31

3211(a)(1) including a Securitization Audit Report (iii) that this court exercise its discretion in

not only enjoining Plaintiff for evicting Defendants, but also exercise its discretion in

rescinding said mortgage and promissory note as a remedy of fraud, in accordance with the UCC

2-721, returning all payments made by Defendants back to the Defendants in full (iv) the

issuance of a Permanent Injunction against Putative Plaintiff staying the eviction until this court

issues a determination on the instant Order to Show Cause and Defendants Reply to Plaintiffs

Opposition until this court issues a determination on this instant Order to Show Cause and the

matters stated therein, and such other further relief that may be just and proper to the court.

2. The statements that follow are solidly anchored on fact and information and belief.

The sources of the information and ground for my belief reflected in this reply are from

conversation with Defendants, examination of the court file pertaining to the case at bar, the

different papers filed with this proceeding, my personal investigation into this matter, the

applicable statutes and several court decisions, the Pooling and Servicing Agreement of June 1,

2006 as well as the Prospectus Supplement to Prospectus dated March 31, 2006

DISCUSSION

3. The alleged Defendants default at law is not a default. Because the

assignment of mortgage can be shown to be fraudulent, the defendant has established a

meritorious defense for vacatur of the Judgment of Foreclosure and Sale. Moreover, the

misrepresentations by Plaintiff in this regard (which Defendants assumed to be true) constitute

extrinsic fraud in that it deprived Defendant of an opportunity to fully and fairly litigate this

matter. As such, Defendants do not need to show a reasonable excuse for his default in the

litigation. (Shaw v Shaw, 97AD2d 403 [2d Dept. 1983].

4. It is in those cases, like ours, wherein the Defendants advance specific and


3/31

substantiated allegations that the Plaintiff or its agents engaged in acts constituting extrinsic

fraud, that is, wrongful acts of trickery or deceit which allegedly induced the moving defendants

into defaulting or otherwise wrongfully deterred him or her from litigating the plaintiff's claims

and demonstrates justifiable reliance thereon, will avacatur of a default in answering be excused

as reasonable (see CPLR 5015[a] [31; Midfirst Bank vAl-Rahman, 81 AD3d 797, 917 NYS2d

871 [2d Dept 2011]; Tribeca Lending Corp. v. Crawford, 79 A.D3d 1018, 916 NYS2d 116 [2d

Dept 2010]; Bank of New York v. Stradford, 55 AD3d 765, 869 N.YS2d 554 [2d Dept 2008],

supra; Wells Fargo v Linzenberg, 50 AD3d 674, 853 NYS.2d 912 [2d Dept 2008], Aames

Capital Corp. v Davidsohn, 24 AD3d 474, 808 NYS.2d 229 [2d Dept 2005], American Shoring,

Inc. v D.C.A. Constr., Ltd., 15 AD3d 431, 789 NYS2d 722, 789 N.Y.S.2d 722 [2d Dept 2005],

supra; Miller v Lanzisera, 273 AD2d 866, 709 NYS2d 286 14th Dept 2000]).

5. In 7 Plaintiff states in relevant part: Defendants second Order to Show

Cause was marked off by the Court on October 11, 2011 due to the failure of Defendants

Counsel to appear at the return date for same.Plaintiff continues in 10: Defendants counsel

fails to even present any excuse for why he failed to appear at the return date held on October 11,

2011. Defendants counsel apologizes to Plaintiff and to the court. The non appearance was due

to an unfortunate calendar error in the office.

6. The Courts in the First and Second Departments have been uniform on the issue

of reasonable excuse for default in cases of law office failure. In cases such as this, where party

fails to appear at the calendar call and a default for failure to appear is entered, the Defednant

must establish pursuant to CPLR 50515, a reasonable excuse for the failure to appear and a

meriterious defense. SeeDeshler v East West Renovatators, Inc, 259 AD 2nd

251, 687 N.Y.S.2d

65 (1st Dept 1999)Reices v Catholic Medical Center Brooklyn, 306 AD 2d 394, 761 NYS2d 2A5


4/31

(2nd

Dept 2003) Mita v Bianchi, 286 AD2d 376, 728 NYS2d 710 (1st

Dept 2001), Harwood v

Chaliha 291 AD2d 737 NYS2d 359 (1st Dept 2002) DAniello v T.E.H. Slopes Inc 301 AD2d

301 AD2d 156, 756 N.Y.S.2d 54 (2nd

Dept 2003) Polir Construction Inc v Etingin 297 AD2d

509509 747 N.Y.S.2d 220 (1st Dept 2002).

7. The law office failure needs to be substantiated. See Matter ofELRAC, Inc v

older, 31 A.D.3d 636, 817 N.Y.S.2d 916 (2006). Here the law office is substantiated by an

attorneys affirmation admitting that he missed the calendar call to a scheduling error in the

office.

8. Therefore, Defendants request that the Court exercise its discretion in the

interest of justice to excuse Defendants attorney calendar error in this action as law office

failure pursuant to CPLR 2005, particularly in light of the numerous meritorious defenses

Defendants have to this action that warrants a vacatur of all default judgments granted herein

pursuant to CPLR 5015,

Upon an application satisfying the requirement of subdivision (d) of section3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be

precluded from exercising its discretion in the interest of justice to excuse delay

or default resulting from law office failure. CPLR 2005(a) On motion. The court which rendered a judgment or order may relieve a

party from it upon such terms as may be just, on motion of any interested

person with such notice as the court may direct, upon the ground of:1. excusable default, if such motion is made within one year after

service of a copy of the judgment or order with written notice of its

entry upon the moving party, or, if the moving party has enteredthe

judgment or order, within one year after such entry; or

2. newly-discovered evidence which, if introduced at the trial, would

probably have produced a different result and which could not havebeen

discovered in time to move for a new trial under section 4404; or

3. fraud, misrepresentation, or other misconduct of an adverse party;or

4. lack of jurisdiction to render the judgment or order; or

5. reversal, modification or vacatur of a prior judgment or order upon


5/31

which it is based.

9. Defendant asserts the default judgments granted in this action should be

vacated as per CPLR 5015(a)(2)(3) base on discovered evidence and/or misrepresentation and

misconduct, respectively. Specifically putative Plaintiff, Plaintiff agents, and/or Plaintiffs

counsel allegedly utilized both extrinsic and intrinsic fraud to wrongfully obtain default

judgment against the Defendants. Therefore, Defendants urge the court to vacate all Default

Judgments granted in this action based on Newly Discovered Evidence and fraud pursuant to

CPLR 5015(a)(2)(3).

10. After this court granted the Default Judgments in this action, Defendant

discovered new chocking documentary evidence which illustrates the calculated frauds utilized

by Plaintiff, Deutsche Bank National Trust Company as Trustee For the Registered Holders of

GSAMP Trust 2006-NC2, Ocwen Loan Servicing LLC (Ocwen), Scott W Anderson, New

Century Mortgage Corporation with the approval of Plaintiffs counsel Shapiro, DiCaro &

Barack LLC (Shapiro & DiCaro), in deceiving the Court to knowingly, willingly and wrongfully

to grant a Default Judgment and Judgment and Foreclosure and of March 9, 2009.

11. In order for the court to appreciate and understand the magnitude of the fraud

(extrinsic and intrinsic) engineered by Deutsche Bank, Ocwen and/or Shapiro & DiCaro it is

useful to have a chronological picture of the pertinent fact and documentary evidence before us.

12. On or about May 30, 2008 putative Plaintiff filed a Summons and

Complaint against Defendants. In 11 of the Complaint putative Plaintiff states: The Plaintiff

is the true and lawful owner of the said bon/note and mortgage. Astonishingly a quick

inspection of the documentary evidence verifies that this statement is 100% false for reasons not

limited to the following:


6/31

13. On or about April 25, 2008 the invalid assignment 1 states that the note was also

assigned with the mortgage: Together with the bond and note(s) or obligation(s) described

Therefore Defendants proffer the following indisputable documentary evidence which serves as

the first to tenth instances of Deutsche Bank, Ocwen New Century Corporation and/or Shapiro &

DiCaros usage and reliance upon intrinsic as well as extrinsic fraud for wrongfully obtaining

judgment against the Defendants in blatant violation of the Conveyance requirement of the

Pooling and Servicing Agreement of June 1, 2006. Contrary to Plaintiffs allegation 38:

Without evidence that Defendant is even entitled to enforce any provisions of the PSA. Yes

because by so doing it violated New York Estate and Power Trust Law 7-2.4 In a Court Order

the Hon Albert L. Johnson says in a similar case:

Plaintiff Horace is a third party beneficiary of the Pooling and Servicing Agreement

created by the defendant trust (LaSalle Bank National Association). Indeed without suchPooling and Servicing Agreement Plaintiff Horace and other mortgagors similarly

situated would never had been able to obtain financing

Consequently, Plaintiffs motion for Summary Judgment is granted to the extent thatdefendant trust (LaSalle Bank National Association) is permanently enjoined from

foreclosing on the property. Hon Albert L. Johnson Circuit Judge March 25, 2001 in

case Phylis Horace v LaSalle BankNA 57-CV-2008-000362.00 in the Circuit Court of

Russel County Alabama

14. In 10 Plaintiff states: Defendant still does not dispute the longstanding,

severe and continuing default in payment under the term of the subject note and mortgage.

From the onset no proof of default has been introduced before the court by the presentment of a

certified copy of the ledger that would verify the alleged default. Without a certified copy of the

1The Congressional Oversight Panel of November 16, 2010 specifically pages 16-19 attached

by reference as Exhibit A spelled out in crystal clarity how the assignment must be carried out

regardless if Defendants are part to it or not. This also flies in the face of Plaintiff 38 and the

Phyllis Horace case referenced supra.


7/31

ledger before the court the idea of default is another inadmissible hearsay that the court cannot

consider. Plaintiff also allude to default in 20.

15. If there is default the money is not and could not be for the wrong party in

interest. Plaintiff is not the creditor. Furthermore, there is provision in the Form 424(b)(5) for

credit default swap, credit enhancement, and other insurance scheme associate with the

securitization of Defendants mortgage loan: payments have been made on this account by third

party. Therefore, Plaintiff must verify that Defendants mortgage loan was not the recipient of

any payment from any third party before talking about default.

14. First, as for Plaintiff first instance of fraud upon the Court, Plaintiff cannot

explain how in the securitization of Defendants mortgage loan why the servicer New Century

Mortgage Corporation assigned the mortgage directly to Deutsche Bank National Trust

Company although the Pooling and Servicing Agreement Section 2.01 reserved this task

exclusively to the Depositor GS Mortgage Securities Corp

15. Second on 10/4/2007 Preston DuFauchard California Corporation

Commissioner revoked New Century License according to the following Order Revoking

Residential Mortgage Lender and Residential Loan Servicing license. Therefore the assignment

dated April 25, 2008

is not and could not be validhttp://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdf

16. Third, furthermore New Century was also in 2007 in Chapter 11 bankruptcy.

Therefore to assign the note and the mortgage New Century should have to secure an

authorization by the bankruptcy trustee. This document is missing from the court record making

this assignment suspicious at the very least if not felonious

17. Fourth, the assignment was made by New Century Mortgage Corporation
http://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdfhttp://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdfhttp://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdfhttp://www.corp.ca.gov/ENF/pdf/n/newcentury_revoke-order.pdf


8/31

by its Attorney-in-Fact Ocwen Loan Servicing LLC with a Power of attorney recorded in April

26, 2006 with instrument # 2006-000233313. After trying unsuccessfully to locate this document

online my office contacted the Palm Beach County Clerk for help. My office then learned that

not only such power of attorney does not exist but also the document number has 13 digits and

that the document number used by the county has only 11 digits. In addition, the referenced

power of attorney is not attached with the assignment.

19. The following diagram illustrates the various parties involved in the

transaction

-------------------------------------

| NC Capital Corporation |

| (Responsible Party) |

| |

-------------------------------------

| Loans

\ /

-------------------------------------

| Goldman Sachs Mortgage Company | ----------------------------

| (Sponsor) | |Deutsche Bank National Trust

| | | Company

------------------------------------- /| (Trustee)

| Loans / ----------------------------

\ / /

------------------------------------- / /----------------------------| | / / | Wells Fargo Bank, N.A.

| GS Mortgage Securities Corp. | / / | (Master Servicer and

| (Depositor) | / / | Securities Administrator)

| | / / ----------------------------

------------------------------------- / /

| Loans / /

\ / / /

-------------------------------------/ /

| | /

| GSAMP Trust 2006-NC2 | / ----------------------------

| (Issuing Entity) |/ | Ocwen Loan Servicing, LLC

| |------------| (Servicer)

-------------------------------------\ ----------------------------

\

\

\

\ ----------------------------

------|Goldman Sachs Mitsui Marine

|

| Derivative Products, L.P.

|

(Interest Rate Swap Provider)


9/31

----------------------------

and their functions and verifies that New Century Mortgage Corporation did not assign anything

to the GSAMP Trust 2006-NC2 as falsely alleged. The chart id from p. 7 of the Form 424(b)(5)

18. No power of attorney has been found, filed or produced by Plaintiff. If such

document exist it must be notarized before New Century filed for Chapter 11 bankruptcy and

which all New Century Mortgage Corp matters were transferred to bankruptcy trustee Defendant

and the court need to see this document. Plaintiff must also explain to the court how it did it

although without a license since October 4, 20072.

20. As for further documentary evidence of the well known robo signing

activities of Scott W. Anderson The Defendants urge the court to consider Anderson false

signature as yet another instance of intrinsic fraud utilized by the Plaintiff and Plaintiffs counsel

as and for their respective modus operandi in obtaining unlawful judgments against the

Defendants see Lyn Szymoniak Affidavit for countless version of Anderson signature enclosed

by reference as

Exhibit A

21. As for Plaintiff fifth fraud upon the court Defendant will now evidence to

the court the fact that Shapiro & DiCaro knowingly and willingly committed a felony, in and

through the construction, execution and filing of the assignment.

22. Upon information and belief, Shapiro & DiCaros office created the

2The company, once the second-biggest U.S. subprime-mortgage lender, engaged in

accounting fraud in 2005 and 2006 before filing forbankruptcyin April 2007, according to the

581-page report by court examinerMichael J. Missalunsealed today: from Bloomberg website

on March 26, 2008

http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aXebBOZ3eBjQ
http://www.bloomberg.com/apps/quote?ticker=NEWCQ:UShttp://www.bloomberg.com/apps/quote?ticker=NEWCQ:UShttp://www.bloomberg.com/apps/quote?ticker=NEWCQ:UShttp://search.bloomberg.com/search?q=Michael+J.+Missal&site=wnews&client=wnews&proxystylesheet=wnews&output=xml_no_dtd&ie=UTF-8&oe=UTF-8&filter=p&getfields=wnnis&sort=date:D:S:d1http://search.bloomberg.com/search?q=Michael+J.+Missal&site=wnews&client=wnews&proxystylesheet=wnews&output=xml_no_dtd&ie=UTF-8&oe=UTF-8&filter=p&getfields=wnnis&sort=date:D:S:d1http://search.bloomberg.com/search?q=Michael+J.+Missal&site=wnews&client=wnews&proxystylesheet=wnews&output=xml_no_dtd&ie=UTF-8&oe=UTF-8&filter=p&getfields=wnnis&sort=date:D:S:d1http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aXebBOZ3eBjQhttp://www.bloomberg.com/apps/news?pid=newsarchive&sid=aXebBOZ3eBjQhttp://www.bloomberg.com/apps/news?pid=newsarchive&sid=aXebBOZ3eBjQhttp://search.bloomberg.com/search?q=Michael+J.+Missal&site=wnews&client=wnews&proxystylesheet=wnews&output=xml_no_dtd&ie=UTF-8&oe=UTF-8&filter=p&getfields=wnnis&sort=date:D:S:d1http://www.bloomberg.com/apps/quote?ticker=NEWCQ:US


10/31

assignment out of thin air. The court will notice the fact that on top left of the assignment shows:

Closing USA LLC Attn Default 250 Mile Crossing Blvd Suite 4 Rochester NY 14624 the

same information is also on the cover page enclosed by reference as Exhibit B. Upon

information and belief, CLOSING is a wholly owned subsidiary company of Shapiro & DiCaro

and shares the same office space as Shapiro & DiCaro. See attached as Exhibit C a print out of

the New York Department of State verifies Defendant allegation.

23. Upon evaluating the New York State Department pertaining to Closing

the court can easily see that Shapiro & DiCaro has personally created, executed and filed a

fraudulent assignment pertaining to this action, in so doing upon information and belief Shapiro

& DiCaro may have violated NYCRR 130-1.1(c) as well as NYS Penal Law 175.35

175.35 Offering a false instrument for filing in the first degree.

A person is guilty of offering a false instrument for filing in thefirst degree when, knowing that a written instrument contains a false

statement or false information, and with intent to defraud the state or

any political subdivision, public authority or public benefit

corporation of the state, he offers or presents it to a public office,public servant, public authority or public benefit corporation with the

knowledge or belief that it will be filed with, registered or recorded

in or otherwise become a part of the records of such public office,

public servant, public authority or public benefit corporation. Offeringa false instrument for filing in the first degree is a class E felony.

24. Upon information and belief, having caused the creation and/or

production, execution, filing and recording of the fraudulent and invalid assignment in the public

record of the New York City Recorder Office as well as included said knowingly false

assignment as a part of the pleading and/or motion in the public authority of the New York State

Supreme Court of the County of Queens.

25. The fraud at the inner core of the assignment verifies that Deutsche Bank

Trust Company was not the originator of the referenced mortgage and note and is not the proper


11/31

owner of Defendants mortgage and note as it is not the real party in interest. Deutsche Bank is

usually and merely and appointed trustee The corporate trust office of the trustee is located at

1761 East St. Andrew Place, Santa Ana, California 92705-4934, and its telephone number is

(714) 247-6000. Therefore the address of the Trustee C/o Ocwen Loan Servicing LLC West

Palm Beach Florida 33409 the sixth fraud perpetrated against the court.

26. Upon diligent research, the Defendants have been able to locate the

Pooling and

Servicing Agreement as well as the Prospectus Supplement to Prospectus dated March 31, 2006

at:http://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txt

27. The Trust i.e. GSAMP Trust 2006-NC2 Mortgage Pass-Through

Certificates

Series 2006-NC2, which alleges ownership of Defendants mortgage and note is governed by a

document called the Pooling and Servicing Agreement of June 1, 2006 said PSA is governed by

the New York Estate and Power Trust law 7-2.4. The PSA has 371 pages and therefore to

voluminous to be attached with this reply but it could be accessed to the SEC website at:

http://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txt

28. The above links are integral part of Defendants evidence of material fact.

Said PSA has not been introduced before the court by Plaintiff for the only reason that it would

single out the magnitude of the fraud perpetrated by Plaintiff against the court and Defendant by

verifying that all the action taken by Plaintiff are inaccurate frivolous and indubitably fraudulent.

29. Defendant would like to draw the courts attention to the fact that the PSA

is the official document, filed under oath with the Securities and Exchange Commission, which

governs all matter of the Trust which claims to own Defendants mortgage and note according to
http://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txthttp://www.sec.gov/Archives/edgar/data/1366182/000112528206003776/b413822_424b.txt


12/31

New York State Law.

Section 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED INACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE

STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE

PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS

AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS

SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

30. As for assistance in understanding the complexities of mortgage

backed securities, the Defendant provides the Court the following which has been penned

by Richard F. Kessler, Esq., who is a nationally recognized authority on 'foreclosures

and the mortgage backed securitization process, as an attempt to clarify the complexities of

legal standing when purported by trustees of securitized assets:

"In the mortgage securitization process, collateralized securities are issued by, and

receive payments from, mortgages collected in a collateralized mortgage pool. The

collateralized mortgage pool is treated as a trust. This trust is organized as a special

purpose vehicle ("SPV") and a qualified special purpose entity

("QSPE") which

receives special tax treatment. The "SPV" is organized by the securitizer and parties

who manage it. This shielding is described as making the assets "bankruptcy

remote "To avoid double taxation of both the trust and the certificate

holders, mortgages are held in Real Estate Mortgage Investment Conduits ("REMIC")'s.

To qualify for the single taxable event, all interest in the mortgages and notes are

transferred forward to the end bond, stock, and certificate holders. The legal basis ofREMIC" was established by the Tax Reform Act of 1986 (100 Stat. 2085, 26 USCA 47,

1042), which eliminated double taxation from these securities. The principal advantage

of forming a "REMIC" for the sale of mortgage backed securities is that "REMIC"'s are

treated as pass-through vehicles for tax purposes helping avoiddouble taxation."

"If the special purpose entity, or the assets transferred, qualify as a "REMIC ", then

any income of the "QSPE" is `passed through " and, therefore, not taxable until the

income reaches the holders of the "REMIC", also known as the beneficiaries of

the "REMIC" trust. In order for one of these investment trusts to qualify for the

`pass through" tax benefit of a "REMIC", ALL LEGAL AND EQUITABLEINTEREST IN THE MORTGAGES HELD IN THE NAME OF THE TR UST

ARE VESTED IN THE INVESTORS, NOT IN ANYONE ELSE, AT ANY TIME.

If legal and/or equitable interest in the mortgages held in the name of the trust are

claimed by anyone other than the individual investors, those that are asserting claims, if

other

than the individual investors, are knowingly and intentionally defrauding the

investors,


13/31

the homeowners, and the court."

The 15 page document is at:http://4closurefraud.org/2010/08/31/explanation-of-securitization/

31. The above quotations are verify by page 61 of the Form 424(b)(5) that

states in relevant part:

ASSIGNMENT OF THE MORTGAGE LOANS

Pursuant to a certain mortgage loan purchase and warranties agreement (the "SALEAGREEMENT"), the responsible party sold the mortgage loans, without recourse,to GSMC. Pursuant to the pooling and servicing agreement, GSMC will sell and

convey the mortgage loans, including all principal outstanding as of, and interestdue and accruing after, the close of business on the cut-off date, without recourse,

to the depositor on the closing date. Pursuant to the pooling and servicing agreement,

the depositor will sell, without recourse, to the trust, all right, title and interest in and

to each mortgage loan, including all principal outstanding as of, and interest due after,the close of business on the cut-off date. Each such transfer will convey all right, title

and interest in and to (a) principal outstanding as of the close of business on the cut-off

date (after giving effect to payments of principal due on that date, whether or notreceived) and (b) interest due and accrued on each such mortgage loan after the cut-off

date. However, GSMC will not convey to the depositor, and will retain all of its right,

title and interest in and to (x) principal due on each mortgage loan on or prior to the

cut-off date and principal prepayments in full and curtailments (i.e., partial prepayments)received on each such mortgage loan on or prior to the cut-off date and (y) interest due

and accrued on each mortgage loan on or prior to the cut-off date.

DELIVERY OF MORTGAGE LOAN DOCUMENTS

In connection with the sale, transfer, assignment or pledge of the mortgage loans to

the trust, the depositor will cause to be delivered to the trustee, on or before the closingdate, the following documents with respect to each mortgage loan, which documents

constitute the mortgage file:

(a) the original mortgage note, endorsed without recourse in blank by

the last

endorsee, including all intervening endorsements showing a complete chain ofendorsement from the originator to the last endorsee (except for less than 0.18%

of the mortgage loans for which there is a lost note affidavit and a copy of the

mortgage note);
http://4closurefraud.org/2010/08/31/explanation-of-securitization/http://4closurefraud.org/2010/08/31/explanation-of-securitization/http://4closurefraud.org/2010/08/31/explanation-of-securitization/


14/31

(b) the original of any guaranty executed in connection with themortgage

note;

(c) the related original mortgage and evidence of its recording or, incertain

limited circumstances, a copy of the mortgage certified by the originator, escrow

company, title company, or closing attorney;

(d) the originals of any intervening mortgage assignment(s), showing a

complete chain of assignment from the originator of the related mortgage loanto the last endorsee or, in certain limited circumstances, (i) a copy of the

intervening

mortgage assignment together with an officer's certificate of the responsible

party

(or certified by the title company, escrow agent or closing attorney) stating thatof such intervening mortgage assignment has been dispatched for recordation

andthe original intervening mortgage assignment or a copy of such intervening

mortgage assignment certified by the appropriate public recording office will be

promptly delivered upon receipt by responsible party, or (ii) a copy of theintervening mortgage assignment certified by the appropriate public recording

office to be a true and complete copy of the recorded original;

32. Therefore, the Trustee Deutsche Bank National Trust Company, and the

other parties servicing the trust, Ocwen have absolutely and positively no legal standing or

equitable interest in the securitized mortgage and note. Thus, any servicer or Trustee who alleged

that they are or they have the right or have been assigned the right of foreclosure is stating a legal

impossibility. Any argument containing such an allegation would be a knowingly false and

fraudulent statement and in direct violation of 22 BYCRR 130-1.1(c).

33. In order to fully ascertain the allegations made by the Plaintiff that

Deutsche Bank National Trust Company is the owner and holder of Defendants mortgage and

note it is extremely critical to analyze the specific text of the PSA

ARTICLE II

CONVEYANCE OF MORTGAGE LOANS;


15/31

REPRESENTATIONS AND WARRANTIES

Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,

concurrently with the execution and delivery hereof, hereby sells, transfers,

assigns, sets over and otherwise conveys to the Trustee for the benefit of the

Certificateholders, without recourse, all the right, title and interest of theDepositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,

hereby accepts the Trust Fund.

(b) In connection with the transfer and assignment of each Mortgage

Loan, the Depositor has delivered or caused to be delivered to the Trustee for

the benefit of the Certificateholders the following documents or instrumentswith respect to each Mortgage Loan so assigned:

(i) the original Mortgage Note (except for up to 0.18% of the

Mortgage Notes for which there is a lost note affidavit and a copy of the

Mortgage Note) bearing all intervening endorsements, endorsed "Pay to theorder of _________, without recourse" and signed in the name of the last

endorsee. To the extent that there is no room on the face of the MortgageNotes for endorsements, the endorsement may be contained on an allonge

unless the Trustee is advised by the Responsible Party that state law does

not so allow. If the Mortgage Loan was acquired by the Responsible Partyin a merger, the endorsement must be by "[last endorsee], successor by

merger to [name of predecessor]". If the Mortgage Loan was acquired or

originated by the last endorsee while doing business under another name,

the endorsement must be by "[last endorsee], formerly known as [previousname]";

(ii) the original of any guarantee executed in connection with

the mortgage note, if provided;

(iii) the original Mortgage with evidence of recording thereon or

a certified true copy of such Mortgage submitted for recording. If inconnection with any Mortgage Loan, the Responsible Party cannot deliver or

cause to be delivered the original Mortgage with evidence of recording

thereon on or prior to the Closing Date because of a delay caused by thepublic recording office where such Mortgage has been delivered for

recordation or because such Mortgage has been lost or because such public

recording office retains the original recorded Mortgage, the Responsible

Party shall deliver or cause to be delivered to the Trustee, a photocopyof such Mortgage, together with (A) in the case of a delay caused by the

public recording office, an Officer's Certificate of (or certified by) the

Responsible Party (or certified by the title company, escrow agent, orclosing attorney) stating that such Mortgage has been dispatched to the

appropriate public recording office for recordation and that the original

recorded Mortgage or a copy of such Mortgage certified by such public


16/31

recording office to be a true and complete copy of the original recorded

Mortgage will be promptly delivered to the Trustee upon receipt thereof bythe Responsible Party; or (B) in the case of a Mortgage where a public

recording office retains the original recorded Mortgage or in the case

where a Mortgage is lost after recordation in a public recording office, a

copy of such Mortgage certified by such public recording office to be atrue and complete copy of the original recorded Mortgage;

(iv) the originals of all assumption, modification, consolidationor extension agreements, if any, with evidence of recording thereon or a

certified true copy of such agreement submitted for recording;

(v) the original Assignment of Mortgage for each Mortgage Loan

endorsed in blank and in recordable form;

(vi) the originals of all intervening assignments of mortgage (if

any) evidencing a complete chain of assignment from the originator to thelast endorsee with evidence of recording thereon, or if any such

intervening assignment has not been returned from the applicable recordingoffice or has been lost or if such public recording office retains the

original recorded assignments of mortgage, the Responsible Party shall

deliver or cause to be delivered to the Trustee, a photocopy of suchintervening assignment, together with (A) in the case of a delay caused by

the public recording office, an Officer's Certificate of (or certified by)

the Responsible Party (or certified by the title company, escrow agent, or

closing attorney) stating that such intervening assignment of mortgage hasbeen dispatched to the appropriate public recording office for recordation

and that such original recorded intervening assignment of mortgage or a

copy of such intervening assignment of mortgage certified by the

appropriate public recording office to be a true and complete copy of theoriginal recorded intervening assignment of mortgage will be promptly

delivered to the Trustee upon receipt thereof by the Responsible Party; or

(B) in the case of an intervening assignment where a public recordingoffice retains the original recorded intervening assignment or in the case

where an intervening assignment is lost after recordation in a public

recording office, a copy of such intervening assignment certified by suchpublic recording office to be a true and complete copy of the original

recorded intervening assignment;

34. A rigorous analysis of the PSA and Prospectus Supplement quotations

reveals that if the Plaintiff is in fact the owner and holder of Defendants mortgage and note

(what Defendants deny) then the ownership of said mortgage and note would have been first


17/31

sold, transferred or assigned from the Sponsor Goldman Sachs Mortgage Company (GSMC) to

the Depositor GS Mortgage Securities Corporation To the Trustee Deutsche Bank National

Trust Co. Herein lies documentary evidence of Deutsche Bank, Ocwen and/Shapiro & DiCaro

seventh fraud upon the court in which Plaintiff has not provided the court with any evidence of

an unbroken chain of assignment, endorsements and/or allonge showing the PSA mandated

chain of ownership from GSMC to GS Mortgage Securities Corp.

35. It is crystal clear that the mandate of the PSAs Conveyance Requirement

have been ignored in the case at bar. If Defendants mortgage and note were property of Plaintiff

then the original note and mortgage would have to be sold, assigned transferred and endorsed to

the Trust on or before the closing date of June 29, 2006.

36. The closing date is extremely critical in the securitization of any mortgae

loan. Upon information and belief every trust which qualifies as a Real Estate Mortgage

Investment Conduit (REMIC) must have a closing date, in which said closing date signifies; (i)

the date the trust is closed and no longer able and willing to sell, assign, transfer and/or receive

any more assets such as Defendants mortgage. (ii) the closing date is also the start up date of the

REMIC that keeps the trust in compliance with the Federal Tax Standards, as they are defined by

prohibited transaction under Section 860(a)(1)/860G(d) of the IRC of 1986.

37. The Trust, which is suing through its trustee, is a New York Corporate

Trust formed to act as a "REMIC" trust (Real Estate Mortgage Investment Conduit) pursuant to

the U.S. Internal Revenue Code ("IRC"). Pursuant to the terms of the Trust and the applicable

Internal Revenue Service ("IRS") Regulations adopted and incorporated into the terms of the

Trust, the "closing date" of the Trust (June 29, 2006) is also the "Startup Day" for the Trust

under the REMIC provisions of the Internal Revenue Code IRC. The Startup Day is extremely


18/31

significant because the IRC ties the limitations upon which a REMIC Trust may receive its assets

to this date. The relevant portion of the IRC addressing the definition of a REMIC is:

(a) General rule. For purposes of this title, the terms `real estate mortgage

investment conduit' and `REMIC' mean any entityto which an election to be treated as a REMIC applies for the taxable year and

all prior taxable years,

all of the interests in which are regular interests or residual interests,which has 1 (and only 1) class of residual interests (and all distributions, if any,

with respect to such interests are pro rata),

as of the close ofthe 3rd month beginning after the startup dayandat alltimes thereafter, substantially all of the assets of which consist of qualified

mortgages and permitted investments.

26 U.S.C.S. 860D(emphasis added).

38. The IRC also provides definitions of prohibited transactions and

prohibited contributions which are relevant to this case as well. In the context of this case, the

relevant statute is the definition ofprohibited contributions which is as follows:

26 U.S.C. 860G(d)(1) states:

Except as provided in section 860G(d)(2), "if any amount is contributed to a

REMIC after the startup day, there is hereby imposed a tax for the taxable year

of the REMIC in which the contribution is received equal to 100 percent of theamount of such contribution."

26 U.S.C. 860G(d)(2) states:

(2) Exceptions. Paragraph (1) shall not apply to any contribution which is made

in cash and is described in any of the following subparagraphs:

Any contribution to facilitate a clean-up call (as defined in regulations) or a

qualified liquidation.Any payment in the nature of a guarantee.

Any contribution during the 3-month period beginning on the startup day .

Any contribution to a qualified reserve fund by any holder of a residualinterest in the REMIC.

Any other contribution permitted in regulations.

39. The PSA addresses these sections of the IRC by obliging the parties to

the Trust to avoid any action which might jeopardize the tax status of any REMIC and/or

impose any tax upon the Trust for prohibited contributions or prohibited transactions. The PSA

provisions are important to the court's analysis of the facts in this case because of the interplay

between the New York trust law, the IRC's REMIC provisions, and the PSA's incorporation of


19/31

the IRC REMIC provisions.

40. The closing date for this trust is on or about June 29, 2006 according to the

Prospectus Supplement page S-8.

41. Scott Andersons assignment is dated April 25th 2008 or about 22 months

late in blatant violation of THE PSA. In addition, Plaintiff provided no supporting documentary

evidence complying with the Conveyance Requirement for this securitized mortgage loan in

violation of the PSA and New York Estate and Power Law 7-2.4: the note does not verify and

unbroken chain of endorsements and the mortgage does not verify an unbroken chain of title of

ownership.

42. The claim that Plaintiff is the holder and owner of Defendants note and

mortgage is already preposterous, invalid and fraudulent as per the specific test of the PSA as

well as the Congressional Panel of November 16, 2010 enclosed by reference as Exhibit A and

the Securitization Audit Report enclosed by reference as Exhibit Band Richard Kesslers article.

43. Plaintiff willingly and knowingly violated the internal Revenue Code

Section 860, its own PSA closing date requirement and UCC 3-201, 3-204 and 3-302

dealing with endorsements of negotiable instruments evidence eighth fraud upon the court which

was utilized in obtaining unlawful judgments against Defendants.

44. Upon further scrutiny in the filings with the SEC, Defendants have been

able to identify a astonish truth that should shock the integrity of the court: However, DBNTC's

proprietary document tracking system will show the location within DBNTC's facilities of each

mortgage file and will show that the mortgage loan documents are held by the Trustee on behalf

of the trust. Prospectus Supplement p. S-55. In this astonishing text, the truth is revealed to the

court that in fact Plaintiff cannot be the owner of Defendants note and mortgage.

45. As such every single allegation, affidavit, affirmation provided by


20/31

Deutsche

Bank, Ocwen, Scott W Anderson, Shapiro & DiCaro are not only false and frivolous, but

arguably felonious in that not any one of these parties could honestly say they have first hand

knowledge or possession of the original mortgage and note being that if in fact Defendants

mortgage and note were held by Plaintiff it would be so exclusively for the benefit of the

certificatedholders.

46. Upon reviewing all of the documentary evidence provided herein

Defendants urge the court to consider the meritorious defenses stated and evinced therein, as

well as consider the following pertinent case law.

47. In order to commence a foreclosure action, Plaintiff must gave a legal or

equitable interest in the mortgage see Wells Fargo Bank, NA v Marchione, 2009 NY Slip Op

07624 (2d Dept 2009).

48. To establish aprima facie case in an action to foreclose a mortgage, the

Plaintiff must establish the existence of the mortgage and note, ownership of the mortgage and

Defendants default in payment. See Campaign v Barba, 23 AD3d 327 (2d Dept 2005).

49. Where there is no evidence that Plaintiff, prior to commencing foreclosure

action, was the holder of the mortgage and note, took physical delivery of the mortgage and note,

or was conveyed the mortgage and note by written assignment [this] is insufficient to establish

Plaintiffs requisite standing. SeeBankers Trust Co v Hoovis, 263 AD2d 937 (3d Dept 1999); see

alsoDeutsche Bank v Eisenberg, 24 Misc. 3d 1205A (NY Sup. Ct Suffolk County 2009) citing

Kluge v Fugazy, 145 AD2d 537 (2d Dept 1988).

50. Where there is no evidence that Plaintiff, prior to the filing of this action is

the holder and owner of the mortgage and note by taking physical delivery of the original


21/31

mortgage and note as required by the PSA the Plaintiff did not and does not have the requisites to

start this foreclosure action. SeeNew Century Mortgage Corporation v Durden et al 2009 Slip

Op 50175 (U) N.Y. Sup Ct. 2009)

51. Ownership of the note and mortgage may be established by the lending

documents themselves or by proof that the Plaintiff is the owner of the note and mortgage by

reason of an assignment of both the note and the mortgage by the owner thereof to the Plaintiff

or by the owners endorsement of the note and its written assignment of mortgage to Plaintiff.

See the Federal National Mortgage Association v Youkelsone, 303 AD2d 546 755 NYS2d 730.

52. The note secured by the mortgage is a negotiable instrument (UCC 3-104)

which required endorsements on the instrument itself or on a paper so firmly affixed thereto as to

become a part thereof UCC 3-202(2) in order to effectuate a valid assignment of the entire

instrument see Slutsky v Blooming Grove Inn Inc, 147 AD2d 208, 542 NYS2d 721 (2nd Dept

1989).

53. Upon information and belief a negotiable instrument can only be in one of

two states after undergoing securitization, not both at the same time. It can either be a loan or a

stock. Once the instrument is traded as a stock, it is forever a stock and therefore regulated, as

this loan was, by the SEC as a stock.

54. More specific to the well documented frauds and false affidavits and

violation of the New York State Penal Law 175.35 and the PSA Articles II and XII perpetrated

by Deutsche Bank, Ocwen, Scott W Anderson, and Shapiro & DiCaro the following law applies.

55. A Plaintiff has no foundation in fact or law to foreclose in which Plaintiff

has no legal or equitable interest, and where an assignment is a fraudulent document. A

foreclosure of a mortgage may not be brought by one who has no title to it and absent a legally


22/31

effective transfer of the debt; the assignment of mortgage is a legal nullity. Us Bank National

Association v Kosaket al; 2007 NY Slip Op 51680 (U)(N.Y. Sup. Ct. Sufolk Co 2007), citing

Katz v. East-Ville Realty Co; 249 AD2d (1st

Dept. 1998) Carpenter v. Longan, 16 Wall. 271, 83

U.S. 271, 274, 21 L.Ed. 313 (1872),

56. Fraud ninth: in fact the Trust and the Trustee are governed by the laws of

the state of New York according the PSA Section 12.03. The New York Trust law says every

sale, conveyance or other act of the trustee in contravention of the trust is void NY CLS EPTL

7-2.4, Application of Muratori, 183 Misc 967, 970 (N.Y. Sup. Ct. Queens Co. 1944). See also

Dye v Lewis, 67 Misc. 2d 426 (N.Y.Sup Ct Monroe Co 1971)

57. Upon information and belief, there is no trust under the common law until

there is a valid delivery of the asset in question to the trust. Until the delivery to the trustee is

performed by the settlor, or until the securities are definitely ascertained by the declaration of the

settlor, when he himself is the trustee, no rights of the beneficiary in a trust created without

consideration ariseRiegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of

Gurlitz [Lynde], 105 Misc 30, affd 190 App Div 907; Marx v Marx, 5 Misc 2d 42) as cited in

Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dep't 1978). In reviewing the

documents for this loan I note that there is no documentary evidence that verifies a valid transfer

of the mortgage on the closing date of June 29, 2006 as per the PSA Article II and Section 12.03:

that means that the mortgage loan must be assigned from: the Sponsor Goldman Sachs Mortgage

Co to Depositor GS Mortgage Securities Corp

58. Furthermore, when the trust fails to acquire the property on the closing

date, (on 06/29/2006) then there is no trust over that property that may be enforced. Kermani v.

Liberty Mut. Ins. Co., 4 A.D.2d 603 (N.Y. App. Div. 3d Dept 1957)


23/31

59. New York's law is so well-settled regarding the limitations of a trustee's

power to

act that New York's Estates Powers and Trust Law Section 7-2.4 states: If the trust is

expressed in the instrument creating the estate of the trustee, every sale, conveyance or other

act of the trustee in contravention of the trust, except as authorized by this article and by any

other provision of law, is void.

60. "Under New York Trust Law there are four essential elements of a valid trust

of personal property,: (i) A designated beneficiary; (ii) a designated trustee, who must not be the

beneficiary; (iii) a fund or other property sufficiently designated or identified to enable title

thereto to pass to the trustee; and (iv) the actual physical delivery of the fund or other property,

or of a legal assignment thereof to the trustee, with the intention of passing legal title thereto to

him as trustee."Brown v.Spohr, 180 N.Y. 201, 209-210 (N.Y. 1904).There is absolutely no trust

under the common law until there is a valid physical delivery of the asset in question to the

Trust. Until the delivery to the trustee is performed by the settlor, or until the securities are

definitely ascertained by the declaration of the settlor, when he himself is the trustee, no rights of

the beneficiary in a trust created without consideration ariseRiegel v. Central Hanover Bank &

TrustCo., 266 App. Div. 586; Matter of Gurlitz [Lynde], 105 Misc 30, affd 190 App. Div. 907,

Marx v. Marx, 5 Misc 2d 42) as cited in Sussman v. Sussman, 61A.D.2d 838 (N.Y. App. Div. 2d

Dept 1978).

61. Tenth fraud the note has been separated from the security instrument3

making the note an unsecured debt precluding any foreclosure action Carpenter v. Longan, 16

3 Allegedly the mortgage has been assigned to the trust on April 25, 2008 although the trust

closed on June 29, 2006 date the note allegedly was assigned to the trust.


24/31

Wall. 271, 83 U.S. 271, 274, 21 L.Ed. 313 (1872), the U.S. Supreme Court stated: The note and

the mortgage are inseparable; the former as essential, the latter as an incident. An assignment of

the note carries the mortgage with it, while an assignment of the latter alone is a nullity. The

security cannot be separated from the debt, and exist independently of it. This is the necessary

legal conclusion." (Merritt v Bartholick, 36 NY 44, 45 [1867].

62. Plaintiff is a trustee working on behalf of the GSAMP Trust 2006-NC2

Mortgage Pass-Through Certificates Series 2006-NC2. If this is true we have a problem because

the closing date was on or about June 29, 2006. A trusteeDeutsche Bank-cannot act in a way

prohibited by the instrument creating the Trust unless it has the consent of the beneficiaries.

63. It is well settled that the duties and powers of a trustee are defined by the

terms of the Trust Agreement and are tempered only by the fiduciary obligation of loyalty to the

beneficiaries (see, United States Trust Co. v First Natl City Bank, 57 A.D.2d 285, 295-296, affd

45 NY2d 869; Restatement [Second] of Trusts 186, comments a, d). See In re IBJ Schroder

Bank & TrustCo., 271 A.D.2d 322 (N.Y. App. Div. 1st Dept 2000) If the Trustee acts without

this written consent the Trustee act is void. There is an instrument creating the Trust and the

Trust can only acquire asset from the Depositor to wit: the assignment of 04/25/2008 is a fraud

according to the above.

64. In 46 Plaintiff raises the issues ofRes Judicata but Res Judicata does not

apply to void judgment or judgment obtains by fraudulent means Allcock v. Allcock437 N.E. 2d

392 (Ill. App. 3 Dist. 1982) The doctrine ofres judicata, in a New York state court's judgment is

not given preclusive effect by the federal court if the judgment was procured by collusion or

fraud. See Kelleran v. Andrijevic, 825 F.2d 692, 694 (2d Cir.1987), cert. denied, 484 U.S. 1007,

108 S.Ct. 701, 98 L.Ed.2d 652 (1988); Goddard, 2006 WL 842925, at *7; In re Slater, 200 B.R.


25/31

491, 495 (E.D.N.Y.1996); County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1387,

1393 (E.D.N.Y.1989). New York law permits collateral attacks on judgments obtained by

extrinsic fraud, Slater, 200 B.R. at 496 (citing Altman v. Altman, 150 A.D.2d 304, 542 N.Y.S.2d

7, 9 (N.Y.App. Div.1989))

65. In the context of mortgage-backed securitization, it is clear that registration of

the notes and mortgages in the name of the trustee for the trust is necessary for effective transfer

to the trust. Within the Statutes of New York governing Trusts, Estates Powers and Trusts Law

(EPTL) section 7-2.1(c) authorizes investment trusts to acquire real or personal property "in the

name of the trust as such name is designated in the instrument creating said trust." Further, the

actual contracts of the parties, which include the custodial agreements, the mortgage loan

purchase agreements, and the trust instrument known as the "Pooling and Servicing Agreement,"

prescribes a very specific method of transfer of the notes and mortgages to the Trust. Because the

method of transfer is set forth in the Trust instrument, it is not subject to any variance or

exception.

66. Courts may neither ignore the actual provisions of transaction documents

nor create contractual remedies that were omitted from the governing contracts by the

contracting parties. See Schmidt v. Magnetic Head Corp., 468 N.Y.S.2d 649, 654 (N.Y. App.Div.

1983) (It is fundamental that courts enforce contracts and do not rewrite them . . .An obligation

undertaken by one of the parties that is intended as a promise . . . should be expressed as such,

and not left to implication. (Citations omitted));Morlee Sales Corp. v. Manufacturers Trust Co.,

172 N.E.2d 280, 282 (N.Y. 1961) ([T]he courts may not by construction add or excise terms . . .

and thereby make a new contract for the parties under the guise of interpret[ation]. (quoting

Heller v. Pope, 250 N.E. 881, 882 (N.Y. 1928))


26/31

65. A the root of the case at bar with the plethora of knowingly fraudulent or

false documents, allegations, sworn statements provided by Deutsche Bank, Ocwen, Scott W

Anderson and or Shapiro & DiCaro Defendants respectfully request that this court to use its

equitable powers to vacate the Judgment of Foreclosure and Sale and Order of Reference the lis

penden the summons and the complaint. The courts should not be made parties to, or perpetuate,

frauds. See Argent Mortgage Co LLC v Mentesana, 23 Musc3d 1116A (NYSup Ct Kings Co

2009).

66. In light of the foregoing information, a temporary Restraining Order

staying the eviction of Defendants from the property at 132-18 109

th

South Ozone Park NY is

warranted. The above information in crystal clarity verifies willingness from Deutsche Bank,

Ocwen, Scott W Anderson and Shapiro & DiCaro reliance upon intrinsic and extrinsic frauds as

their modus operandi in filing, obtaining and securing unlawful judgments against Defendants.

67. Defendants face the immediate threat of losing their property for ever when

it appears that the fact, documentary evidence, case law and legal precedents that Plaintiff was

not is not and could not be the real party in interest entitled to the judgment of Foreclosure and

Sale and the Order of Reference due to Defendants excusable default; Plaintiff not only is not the

real party in interest having equity in the note its lack of standing is present in the four corners of

its pleadings. But most importantly the elusive presence of fraud (common law fraud, fraud by

concealment of material fact, violation of the PSA, violation of New York Estate and Power

Trust Law 7-2.4 violation of the NYS Penakl Law 175.35 etc Fraud vitiates the most solemn

contracts, documents, and even judgments U.S. V. Throckmorton, 98 US61. Fraud destroys

the validity of everything into which it enters Nudd V. Burrows, 91 U.S. 426

68. Unless Defendants obtain a Temporary Restraining Order to stay the


27/31

eviction from their home in order that the case must be litigate on the merit law annd facts

Defendants run the risk of being evicted from their home under color of law causing immediate

and irreparable injury, harm and damage to Defendants.

69. It is well settled in the law that to be entitled to preliminary injunctive

relief, a movant must establish (i) the likelihood of success on the merits (ii) irreparable injury

absent the granting of the preliminary injunction, and (iii) a balancing of the equities in the

movants favor. W.T. Grant Co v Sgroi, 52 NY2d 496, 517 (1981); Petervary v Algie Bubnis, et

al, 30 AD3d 498 (2d Depart 2006). Defendants are entitled to immediate injunctive relief

because they satisfy all three enumerated criterion.

70. First of all Defendants will likely succeed on the merits because they prove

excusable default; Plaintiff lack standing; and Deutsche Bank, Ocwen, Scott W Anderson and

Shapiro & DiCaro repeated usage and reliance upon intrinsic and extrinsic fraud as their modus

operandi in obtaining unlawful judgment against Defendants.

71. Then, it is further undisputed that the Defendants will be immediately,

permanently and irreparably injured and/or damaged if a temporary restraining order and/or

Permanent injunction is not granted before Plaintiff evicts Defendants from their home prior to

this court rendering a determination in this matter on the merit of the case. Further any eviction

granted in favor of putative Plaintiff will be ineffective if a temporary restraining order and/or an

injunction are not immediately granted to stay the eviction in this matter until the court ca issue a

determination on the merits of this case.

72. The balancing of equity in light of Deutsche Bank, Ocwen, Scott Anderson

and Shapiro & DiCaros evidenced and proven fraud and repeated usage and reliance upon

intrinsic and extrinsic frauds as their respective modus poerandi in obtaining unlawful (void)


28/31

judgments against the Defendants and proof that the Defendants proffer in the action concerning

their excusable default leans heavily on Defendants favor. Deutsche Bank National Trust

Company cannot complaint of being prejudiced should the court vacate all judgments granted

herein when it is clear that Plaintiff develops and perfection fraud to its zenith. In addition

Defendants have more to lose than Plaintiff in the action if the court does not issue an immediate

temporary order and/or injunction staying all actions in this matter until the court ruled on the

merit of the case.

73. For the reasons outline in this reply, with the Defendants ability to (i)

establish the likelihood of success on the merits (ii) irreparable injury absent the requested relief

and (iii) a balancing of the equities Defendants are requesting that the court stop any

contemplated eviction

CONCLUSION74. The Assignment produced by the Plaintiff/Trustee in this case specifically

contradicts the governing documents for this Trust. Whether the Defendants mortgage loan

is/was a part of this Trust has not even been established with documentary evidence but the

Plaintiff/Trustee has already violated the operative agreements of this Trust by creating and

filing a fraudulent assignment of mortgage with this court and has also placed a cloud on the title

of the Defendants property.

75. The Defendant specifically disputes that the mere copy of what the Plaintiff

alleges to be the original note is in fact authentic and disputes that it is her actual signature on

this Note that the Plaintiff has recently filed and which is different than a copy of the Note the

Plaintiff originally filed with this court.

76. Plaintiff has, by its very submissions and admissions, demonstrated that there are

genuine issues of material fact as to its status and when, if ever, Plaintiff came into any


29/31

ownership interest in either the Note or Mortgage. Plaintiffs refusals to comply with

Defendants discovery requests are improper. Summary judgment for Plaintiff is thus

inappropriate.

77. The Plaintiff has failed to show conclusively and with documentary evidence that

it will suffer any injury due to the alleged default of the Defendant and has failed to document

that the mortgage loan in this case is an Asset on its books and ledgers. If the Plaintiff has not

and will not suffer any economic or other injury that it has failed to show that is a real party in

interest.

78. The Certification of Proof of Amount Due, which consists of incompetent

hearsay, is legally inadmissible and does not in any way support the entry of summary judgment

for Plaintiff.

Dated: November 15, 2011

Duly affirmed by:

______________________________

mmmmmmmmmmmmm, EsqAttorney for

the Defendants

259-44 148th

Avenue

Rosedale,

New York 11422Tel # 646-

395-0458

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS-------------------------------------------------------------------------X INDEX #


30/31

DEUTSCHE BANK NATIONAL TRUST COMPANY AS Date: Filed 05-30-2008

AS TRUSTEE FOR REGISTERED HOLDERS OFGSAMP TRUST 2006-NC2 MORTGAGE PASS-

THROUGH CERTIFICATES, SERIES 2006-NC2

Plaintiff,

-against-

_________________________

Defendant(s)-------------------------------------------------------------------------X

AFFIRMATION OF MAILING

____________, an attorney duly admitted to practice before the Courts of the State of

New York hereby certifies that on ______________________, 2011, I mailed a copy of the

foregoing answer upon the Shapiro & Barack LLC by depositing a true copy of the answer in a

post-paid, sealed envelope, under the exclusive custody and control of the United States Postal

Service.

Dated: This ______day of November, 2011 Rosedale New York11422

_______________________

------------------, Esq.

259-44 148th

Avenue

Rosedale New York 11422646-395-0458

Attorneys for Plaintiff

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS-------------------------------------------------------------------------X INDEX #DEUTSCHE BANK NATIONAL TRUST COMPANY AS Date: Filed 05-30-2008AS TRUSTEE FOR REGISTERED HOLDERS OF


31/31

GSAMP TRUST 2006-NC2 MORTGAGE PASS-

THROUGH CERTIFICATES, SERIES 2006-NC2

Plaintiff,

-against-

--------------------------------------------------Defendant(s)

DEFENDANTS OPPOSITION

Law Offices of -------------

Attorneys for Defendant______________________________________________________________________________

TO:

Attorneys for Plaintiff

Signature, Rule 130-1.1-a

________________________________

-------------------, Esq.

Service of the within John Doe and Jane Does opposition is hereby admitted.

______________________________ Date: ____________________________Attorney for

template answer opposition otsc

Documents