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EXHIBITS 4 & 5 ARE FILED UNDER SEAL


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MONTGOMERY COUNTY, PENNSYLVANIA,
RECORDER OF DEEDS, by and through NANCY
J. BECKER, in her official capacity as the Recorder
of Deeds of Montgomery County, Pennsylvania, on
its own behalf and on behalf of all others similarly
situated,
Plaintiff,
v.

CIVIL ACTION
NO. 11-6968

MERSCORP, INC., and MORTGAGE


ELECTRONIC REGISTRATION SYSTEMS,
INC.,
Defendants.
MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION
TO UNSEAL REPORT OF MARIE MCDONNELL
I.

STATEMENT OF PROCEDURAL HISTORY AND FACTS

This lawsuit concerns whether the MERS system violates 21 P.S. 351 by failing to
record mortgage assignments. This Court certified its summary judgment ruling of July 1, 2014
for interlocutory appeal pursuant to 28 U.S.C. 1292(b), and the Third Circuit agreed to accept
the appeal. The case is now before the Third Circuit. MERS filed its opening merits brief on
January 30, 2015. Plaintiff Ms. Beckers merits brief is due March 16, 2015. Because an issue
has arisen under this Courts protective order which requires this Courts adjudication, Ms.
Becker has filed the present motion, requesting resolution (if the Courts calendar permits) prior
to the due date of her appellate brief.
By way of background, Plaintiff Ms. Becker retained an expert in tracking land records,
Marie McDonnell, to demonstrate concretely to this Court how the MERS system operated. Ms.
McDonnell chose one note and mortgage for illustrative purposes. It pertained to a Kathryn
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Farkas. She executed a promissory note for $151,650 and attendant mortgage in June, 2005.
That was a matter of public record. Ms. McDonnell then traced the trail of that promissory note
through the MERS system, showing the different occasions it had been bought and sold among
banks that were MERS members. Plaintiffs contention in this lawsuit is that each of those
negotiations should have generated a corresponding mortgage assignment which should have
been publicly recorded pursuant to 21 P.S. 351. (This Court agreed, in granting partial
summary judgment to Ms. Becker). Instead, the banks kept this information to themselves, and
claimed no mortgage assignments were generated that needed to be recorded.
When MERS furnished to Ms. McDonnell in discovery the data upon which she based
her Farkas analysis, MERS designated the data confidential under the stipulated protective
order (docket 64). (For convenience, that Order is Ex. 1 hereto). Therefore, plaintiff was
constrained to file the pertinent portion of the McDonnell report and corresponding page from
plaintiffs legal memorandum under seal on November 5, 2013 in connection with her summary
judgment cross-motion. Attached to the present memorandum are:

A redacted version of the McDonnell analysis as publicly filed at Docket 81-30


(Ex. 2);

The redacted page of Ms. Beckers summary judgment memorandum, filed at


Docket 81 (Ex. 3);.

The unredacted McDonnell analysis that was filed under seal on November 5,
2013 in connection with plaintiffs summary judgment submission (Ex. 4);

The unredacted page of plaintiffs summary judgment memorandum that was


filed under seal on November 5, 2013 (Ex. 5);

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Transmittal letters to the Clerk and to Your Honor copies of the unredacted report
and plaintiffs memorandum (Ex. 6).

When the Court adjudicated the parties cross motions for summary judgment on July 1,
2014, it made specific reference to and relied upon the McDonnell report:
In addition, Plaintiff has produced reports from two of its proposed
expert witnesses with experience in forensic analysis of chain of
title issues and real estate lawMarie T. McDonnell and Charles
W. Proctor, III. Ms. McDonnell reported on her analysis of a
MERS mortgage for a residential property in Montgomery County
which was originated with Countrywide Home Loans, Inc. in June,
2005, was securitized in late August, 2005, sold at least three times
and foreclosed in March, 2013. (See, Plaintiff's Exhibit G, pp. 3
5). Throughout the process, Ms. McDonnell found that there were
five missing assignments that should have been recorded with the
Montgomery County Recorder of Deeds, that the MERS
Milestones data was incomplete and in contradiction to the
securitization deal documents, and that title to the property had
been corrupted by MERS' failure to record a complete chain of
title. (Exhibit G, p. 7).
Montgomery Cnty., Pa. v. MERSCORP, Inc., 16 F.Supp.3d 542, 562 (E.D. Pa. July 1, 2014).
The Court referred specifically to pp. 3-5 and 7 of the McDonnell analysis.
When MERS designated the contents of the appellate appendix in November, 2014, it
designated inclusion of the McDonnell report. When MERS filed the joint appendix on January
31, 2015, it filed only the redacted version (i.e. Ex. 2). A copy of the McDonnell analysis as it
presently appears in the joint appellate appendix is Ex. 7. That is the only version currently in
the record before the Third Circuit. As this Court can see, the pages to which this Court referred
in its opinion (pp. 3-5 and 7) are heavily redacted, and frankly make the report largely
unintelligible. This Court had the unredacted report before it when entering the summary
judgment ruling. (Ex. 6).
This Courts summary judgment opinion, quoted above, was considering the record
evidence concerning plaintiffs claims for unjust enrichment and to quiet title. See 16 F.Supp.3d
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at 561. MERS summary judgment motion sought summary judgment as to those claims. This
Court was analyzing whether the record evidence did or did not warrant granting MERS motion.
In its appellate brief filed January 31, 2015, MERS claims this Court erred, and that the
record evidence is insufficient to support plaintiffs claims. See MERS merits brief filed at
Third Circuit docket number 14-4315. MERS argues at pp. 50-55: The Recorder Introduced No
Evidence To Support Her Unjust Enrichment Claim and The Recorder Introduced No
Evidence to Support Her Quiet Title Claim. (For convenience, the Table of Contents of MERS
brief is attached as Ex. 8).
Hence, MERS has placed squarely at issue this Courts analysis of the record evidence
supporting plaintiffs claims. That includes this Courts analysis of the McDonnell report.
However, it will not be possible for the Judges of the Third Circuit to understand this Courts
statements about the McDonnell reportor the McDonnell analysis itselffrom the redacted
version that appears in the joint appendix (Ex. 7) because that is largely unintelligible.
Ms. Becker believes the unredacted McDonnell analysis should now be of public record,
so that it can be: (1) included as a supplemental appendix to the Third Circuit when she files her
merits brief on March 16, 2015; and (2) so that a chart substantially in the form of Ex. 5 can be
included in her merits brief.
The protective Order (Ex. 1) at 9-10 provides mechanisms for relief from
confidentiality designations. Paragraph 10 permits any party [to move] the Court for an order
relieving the party of the effect of the order.
Undersigned counsel sought to resolve this dispute without the need for Court
intervention (as 9 of the protective order contemplates), and accordingly emailed MERS
counsel on February 3, 2014two business days after MERS filed its appendix containing only

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the redacted McDonnell analysisrequesting the public filing of the McDonnell analysis.
Undersigned counsel cited the controlling Third Circuit decision on the right of public access to
documents that were part of a summary judgment adjudication.. (See Ex. 9, email
correspondence attempting to amicably resolve issue). However, no amicable resolution was
effected (counsel set a deadline of the close of business on Tuesday, February 10, but received
no substantive response from MERS, either by way of letter, email, or telephone call before or
after that deadline). Accordingly, Ms. Becker now moves pursuant to 10 of the protective order
to unseal the McDonnell analysis of the Farkas loan.
II.

ARGUMENT

Here, the record shows: (1) this Court relied upon the McDonnell analysis of the Farkas
loan as record evidence warranting denial of MERS motion for summary judgment; (2) MERS
is challenging that ruling on appeal; (3) MERS has included in the record before the Third
Circuit a version of the McDonnell analysis that is largely unintelligible because of redactions
MERS insisted upon in an earlier stage of the litigation, whereas this Court had the full
unredacted version when ruling; (4) the McDonnell analysis of the Farkas loan contains no
current competitively sensitive informationit is simply a list of which banks once owned one
homeowners promissory notice, a note which is no longer in existence; and (5) where plaintiffs
counsel requested that MERS voluntarily rectify this matter and MERS has declined.
MERS is misusing the protective order. Protective orders are designed to protect data
from public disclosure on a showing that disclosure will work a clearly defined and serious
injury to the party seeking closure. The injury must be shown with specificityBroad allegations
of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good
cause showing. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (emphasis
supplied). Protective orders are not designed to confer a litigation advantage upon one party.
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MERS is misusing the protective order to try to gain such a strategic advantage on appeal.
In a series of decisions that control this motion, the Third Circuit has held that documents
such as the McDonnell analysis which are filed of record are accorded a presumptive common
law right of public access. Leucadia Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157
(3d Cir. 1993); Republic of Philippines v. Westinghouse Electric Corp., 949 F.2d 653 (3d Cir.
1991); Littlejohn v. Bic Corp., 851 F.2d 673 (3d Cir. 1988).
Westinghouse held that there was a presumptive common law right of public access to all
documents that were filed in connection with a summary judgment motion, even where the
motion was denied. 949 F.2d at 659-662. [T]he public holds a common law right of access to
judicial proceedings and judicial records [which] is firmly accepted in this circuit. Id. at 659.
The publics exercise of its common law access in civil cases promotes public confidence in the
judicial system. Id. at 660, quoting Littlejohn, 851 F.2d at 678. Under Westinghouse,
McDonnells analysis should be unsealed.
In a case which Westinghouse cites with approval, the Second Circuit explained:
documents used by parties moving for, or opposing, summary
judgment, should not remain under seal absent the most
compelling reasonsAt the adjudication stage, however, very
different considerations apply. An adjudication is a formal act of
government, the basis of which should, absent exceptional
circumstances, be subject to public scrutiny.
Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) cert. den. 460 U.S. 1051 (1983), cited by
Westinghouse, 949 F.2d at 661.
That reasoning has special force here. Westinghouse and North held that all summary
judgment exhibits were considered judicial records because they were filed at the
adjudication stage and therefore should not remain sealed absent compelling reasons. Here,
this Court actually cited to and relied upon the McDonnell report in adjudicating the summary

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judgment cross motions. Therefore, the McDonnell analysis can more correctly be termed an
adjudicatory document, i.e. one on which the Court relied in adjudicating a dispositive motion.
Therefore, it should be accorded an even higher presumption of access.
Leucadia extended this common law right to access to all documents that were filed in
connection with any pretrial motion (excluding discovery motions). In Leucadia, one competitor
accused the other of misappropriating its trade secrets. Plaintiff filed a motion for preliminary
injunction, which motion was settled before the PI hearing. A non-party (Burstein) sought to
obtain all material that had been filed under seal in the case, including all documents filed in
connection with: (1) the PI hearing; (2) a motion to dismiss or more definite statement; (3)
exhibits to the first amended complaint; and (4) defendants motion for exclusion of evidence. Id.
at 163-164. The Court held that the common law presumption of public access applied to all
such sealed documents:
We believe that our earlier decisions and those in other courts lead
ineluctably to the conclusion that there is a presumptive right of
public access to pretrial motions of a nondiscovery nature, whether
preliminary or dispositive, and the material filed in connection
therewith.
Id. at 164 (emphasis supplied).
Once the presumption attaches, the burden shifts to the party seeking to maintain the
document under seal to rebut the presumption. Westinghouse, 949 F.2d at 662. The party
seeking continued sealing must present specific evidence showing how release of those
materials would result in competitive harm at this time. Id. at 663. Westinghouse held there
was no such showing as to bribes allegedly paid to foreign governments, because while these
were potentially damaging to Westinghouses public image, they did not constitute competitive
harm. Leucadia framed the issue as whether there was a particularized showing of the need for
continued secrecy, and re-emphasized that the party favoring continued secrecy bore the
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burden. 998 F.2d at 166-167. Pansy framed the issue as whether the party favoring sealing (here
MERS) can show a clearly defined and serious injurywith specificity. 23 F.3d at 786.
Leucadia also emphasized that in the first instance this analysis should be made by the
District Court. 998 F.2d at 168. Therefore, Ms. Becker has correctly filed this motion with this
Court. See also F.R.App. P. 10(c)-(e) (District Court should resolve disputes about record on
appeal).
The materials at issue in the McDonnell analysis cannot possibly meet the test for a
particularized showing of competitive harm. The information is simply about which banks
once bought and sold one homeowners loan which is no longer in existence (it went into default
in April, 2013).
Westinghouse, after finding a presumption of public access and no countervailing proof
of particularized current competitive harm, emphasized the public interest at stake, including:
Finally, we note that by opening the judicial process to greater
public scrutiny, access to the judicial process reinforces the
democratic ideals of our society. Public access provides greater
opportunities for the public to become educated about the
workings of the civil judicial process. In addition, access to
judicial proceedings and records helps to impart legitimacy to the
pronouncements of our rather insulated federal judiciary.
949 F.2d at 664.
Because Ms. Becker seeks to file publicly the McDonnell analysis as a supplemental
appendix with her merits brief, and to include in her merits brief (due March 16, 2015) a chart
similar to Ex. 5, Ms. Becker is moving for an expedited briefing schedule on this motion. There
is no unfairness to having MERS respond to this motion in seven (7) days. MERS has been on
notice since February 3, 2015two business days after it filed its appellate appendixof Ms.
Beckers intention to have the McDonnell report of public record, either by consent, or failing
that, by motion. See. Ex. 9.
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CONCLUSION
For the foregoing reasons, the Court should unseal the McDonnell analysis of the Farkas
loan.

Dated: February 13, 2015

Respectfully submitted,

William H. Lamb
James C. Sargent
Maureen M. McBride
LAMB MCERLANE PC
24 E. Market Street
West Chester, PA 19381
(610) 430-8000

/s/ Robert J. LaRocca


Joseph C. Kohn
Robert J. LaRocca
William E. Hoese
Craig W. Hillwig
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107-3304
(215) 238-1700

Gary E. Mason
Jason S. Rathod
WHITEFIELD BRYSON & MASON LLP
1625 Massachusetts Ave., NW, Suite 605
Washington, DC 20036
(202) 429-2290

Jeffrey D. Schaffer
COOPER & SCHAFFER, LLC
1525 Locust Street, 13th Floor
Philadelphia, PA 19102
(215) 545-7777
Jonathan W. Cuneo
CUNEO GILBERT & LADUCA LLP
507 C Street, NE
Washington, D.C. 20002
(202) 789-3960

Attorneys for Plaintiff and the Class

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IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MONTGOMERY COUNTY, PENNSYLVANIA,
RECORDER OF DEEDS, by and through NANCY
J. BECKER, in her official capacity as the Recorder
of Deeds of Montgomery County, Pennsylvania, on
its own behalf and on behalf of all others similarly
situated,
Plaintiff,
v.

CIVIL ACTION
NO. 11-6968

MERSCORP, INC., and MORTGAGE


ELECTRONIC REGISTRATION SYSTEMS,
INC.,
Defendants.

EXHIBITS TO MEMORANDUM IN SUPPORT OF PLAINTIFFS


MOTION TO UNSEAL REPORT OF MARIE MCDONNELL
1

Stipulated Protective Order (Docket 64)

Redacted version of the McDonnell analysis as publicly filed (Docket 81-30)

Redacted page of Ms. Beckers summary judgment memorandum (Docket 81)

Unredacted McDonnell analysis that was filed under seal on November 5, 2013 [FILED
UNDER SEAL]

Unredacted page of plaintiffs summary judgment memorandum that was filed under seal
on November 5, 2013 [FILED UNDER SEAL]

Transmittal letters to the Clerk and Court with copies of the unredacted report and
plaintiffs memorandum

Copy of the McDonnell analysis as it presently appears in the joint appellate appendix

Table of Contents to MERS Merits Brief in the Third Circuit, January 30, 2015

Email correspondence attempting to amicably resolve issue

Case 2:11-cv-06968-JCJ Document 152-2 Filed 02/13/15 Page 1 of 15

Exhibit 1

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IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MONTGOMERY COUNTY,
PENNSYLVANIA, RECORDER OF DEEDS,
by and through NANCY J. BECKER, in her
official capacity as the
Recorder of Deeds of Montgomery County,
Pennsylvania, on its own behalf and on behalf
of all others similarly situated,

Civil Action No. 11-6968


Judge J. Curtis Joyner
Filed Electronically

Plaintiff,

vs.
MERSCORP, INC., and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC.,
Defendants.

CONSENT PROTECTIVE ORDER


Plaintiff, Nancy J. Becker, in her official capacity as the Montgomery County,
Pennsylvania, Recorder of Deeds, and Defendants MERSCORP Holdings, Inc ("MERSCORP")
and Mortgage Electronic Registration Systems, Inc. ("MERS" and together the "MERS
Defendants") (each individually "a party" and collectively "the parties"), having stipulated that a
Protective Order should be entered pursuant to Federal Rule of Civil Procedure 26(c) to maintain
the confidentiality of certain information and materials to be exchanged between the parties, and
it appearing to the Court that such an Order is necessary and appropriate and that it will facilitate
discovery;
IT IS THEREFORE ORDERED that:
I.

Designation of "CONFIDENTIAL MATERIALS." Each party may identify discovery

materials produced by it or by a third party, including documents and things, answers to

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interrogatories, responses to requests for production, responses to requests for admission,


deposition exhibits, and transcripts of depositions or hearings (or portions of such transcripts)
("Discovery Materials"), as "CONFIDENTIAL MATERIALS" by affixing thereto the legend:
"CONFIDENTIAL." A party may designate Discovery Materials as "CONFIDENTIAL MATERIALS" to
the extent that the party, through counsel, believes such Discovery Materials are confidential
because they include:
(a)

confidential business or technical information;

(b)

trade secrets;

(c)

proprietary business methods or practices;

(d)

personal information, including without limitation personal (non-public)


financial information, about a party or any of the parties' employees,
borrowers, account holders, customers, or applicants;

(e)

any other competitively sensitive confidential information; and/or

(f)

any other information that counsel for a party reasonably believes should
be designated as "CONFIDENTIAL MATERIALS,"

and that the designation is otherwise consistent with the governing legal standards in this Circuit.
In the alternative, a party may designate discovery materials produced by it or by a third
party, including initial disclosures, documents and things, answers to interrogatories, responses
to requests for production, responses to requests for admission, and deposition exhibits, and all
or portions of deposition or hearing transcripts, as "ATTORNEYS' EYES ONLY" by affixing thereto
the legend: "ATTORNEYS' EYES ONLY." A party may designate discovery materials, including
discovery materials of a non party in a party's possession, as "ATTORNEYS' EYES ONL y" to the
extent that such discovery materials fall within the above categories designated as trade secrets
and the party, through counsel, believes such discovery materials are especially sensitive and
could cause significant competitive harm if disclosed to an unauthorized party and that the

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designation is otherwise consistent with the governing legal standards in this Circuit. A party
shall not designate Discovery Materials as "CONFIDENTIAL" or" ATTORNEYS' EYES ONL y" to the
extent that such Discovery Materials previously were publicly disclosed in any other litigation or
similar proceeding.
2.

Definition of"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY."

"CONFIDENTIAL MATERIALS" and "ATTORNEYS' EYES ONL y" materials shall be those items
designated under Paragraph 1, any notes, work papers, or other documents derived from or based
upon such "CONFIDENTIAL MATERIALS" and "ATTORNEYS' EYES ONLY" materials to the extent
that they are so derived or based, and all copies, portions, summaries, or abstracts of such
"CONFIDENTIAL MATERIALS" and "ATTORNEYS' EYES ONL y" materials.
3.

Certification of Confidentiality. Affixing the legend "CONFIDENTIAL" or

"ATTORNEYS' EYES ONLY" to Discovery Materials produced by a party constitutes a certificate


by the party that it has read the Discovery Material and that, to the best of its knowledge,
information, and belief, formed after reasonable inquiry, the Discovery Material is confidential
under the definition of"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y" and is not
interposed for any improper purpose such as to harass or cause unnecessary delay and/or
needless increase in the cost of the Litigation.
4.

Definition of "Litigation." As used herein, "Litigation" shall mean the above

captioned proceeding only.


5.

Limitations on Disclosure of"CONFIDENTIAL MATERIALS" and "ATTORNEYS'

EYES ONL y" Materials. Discovery Materials designated "CONFIDENTIAL MATERIALS" shall be
maintained in confidence by the party to whom such materials are produced or given, shall not
be used for any business, commercial, competitive, or personal purpose, shall be used only for

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the prosecution or defense of the Litigation (and not for other present or future cases or disputes),
and shall not be disclosed to any person except the following qualified recipients:
(a)

The Court and its officers and employees;

(b)

Counsel ofrecord for the parties and employees of counsel of record for
the parties;

(c)

In-house counsel for the parties;

(d)

The parties;

(e)

Outside consultants and experts retained by counsel or the parties to assist


in this Litigation, provided that each such consultant or expert has been
provided a copy of this Order and has signed the Acknowledgement
attached hereto as Exhibit A;

(f)

Other persons, provided that (1) the producing party has consented in
writing to disclosure to such other person (or has consented orally on the
record, in the case of a deposition or court proceedings), and (2) such
other person has been provided a copy of this Consent Protective Order
and has signed the Acknowledgement attached hereto as Exhibit A;

(g)

Witnesses in depositions in this Litigation, provided that such witnesses


are employees or representatives of the producing party or otherwise
previously had lawful access to the "CONFIDENTIAL MATERIALS" being
disclosed, and also provided that any "CONFIDENTIAL MATERIALS"
disclosed at depositions shall be subject to the provisions of Paragraphs 12
through 14 of this Order;

(h)

Court reporters, video operators, and their supporting personnel who are
retained for the purpose of transcribing depositions in this Litigation; and

(i)

Any copy services or other service providers engaged by counsel or the


parties to assist in this Litigation.

Discovery Materials designated "ATTORNEYS' EYES ONL v" shall be maintained in


confidence by the party to whom such materials are produced or given, shall not be used for any
business, commercial, competitive, personal or other purpose, shall be used only for the
Litigation (and not for other present or future cases or disputes), and shall not be disclosed to any
person except the following qualified recipients:
(j)

The Court and its officers;


4

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6.

(k)

Outside consultants and experts retained by counsel or the parties to assist


in this Litigation, provided that each such consultant or expert has been
provided a copy of this Order and has signed the Acknowledgement
attached hereto as Exhibit A;

(I)

Witnesses in depositions in this Litigation, provided that such witnesses


are employees or representatives of the producing party or otherwise
previously had lawful access to the "ATTORNEYS' EYES ONLY" being
disclosed, and also provided that any "ATTORNEYS' EYES ONLY" disclosed
at depositions shall be subject to the provisions of Paragraphs I 2 through
I 4 of this Order;

(m)

Court reporters, video operators, and their supporting personnel who are
retained for the purpose of transcribing depositions in this Litigation; and

(n)

Any copy services or other service providers engaged by counsel or the


parties to assist in this Litigation.

(o)

Counsel of record and employees of counsel of record; and

(p)

In-house counsel.

(q)

Other persons, provided that (I) the producing party has consented in
writing to disclosure to such other person (or has consented orally on the
record, in the case of depositions or court proceedings), and (2) such other
person has been provided a copy of this Consent Protective Order and has
signed the Acknowledgement attached hereto as Exhibit A

Notice of Disclosure. All persons to whom "CONFIDENTIAL MATERIALS" or

"ATTORNEYS' EYES ONLY" materials are provided shall be subject to this Order and shall
maintain such information in confidence, shall not use such information for any purpose other
than the prosecution or defense of this Litigation, and shall not disclose such information to any
other person except in accordance with Paragraph 5 of this Order.
7.

Retention of Receipts. Counsel for a party who discloses "CONFIDENTIAL

MATERIALS" or "ATTORNEYS' EYES ONLY" materials to a person authorized to receive


"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y" materials pursuant to Paragraph 5 of
this Order shall keep in their files the originals of the signed Acknowledgements required by this
Order.

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8.

Limitation of Disclosure. "CONFIDENTIAL MATERIALS," or "ATTORNEYS' EYES

ONL y" materials, or copies thereof, bearing the identification specified in Paragraph I, or
portions, summaries, or abstracts thereof, shall not be made public by the party to whom they are
disclosed, unless such "CONFIDENTIAL MATERIALS," or "ATTORNEYS' EYES ONLY" materials, or
copies thereof, become a part of the public record of this Litigation through no fault of the party
to whom they are disclosed.
9.

Challenge to Designation. This Order is without prejudice to the right of any

party to contest a designation of "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y" as


inappropriate. In the event a party receiving "CONFIDENTIAL MATERIALS" or "ATTORNEYS'
EYES ONL y" materials believes that certain material has been improperly so designated, it shall
communicate that fact to counsel for the producing party by identifying the material at issue in
writing. If a party communicates a challenge to a designation of "CONFIDENTIAL MATERIALS,"
or "ATTORNEYS' EYES ONLY" materials, the parties shall thereafter promptly confer in good faith
in an attempt to resolve the challenge to the designation. If the parties are unable to resolve the
challenge, the challenging party may then submit the challenged materials to the Court for an
adjudication of the confidentiality of the materials at issue. All materials at issue shall be treated
as "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY" materials under the terms of this
Order until the Court rules otherwise.
I 0.

Supplemental Orders. This Order shall not foreclose any party from moving the

Court for an order relieving the party of the effect of the Order or from applying to the Court for
further or additional protective orders. In addition, the parties may agree among themselves to
modification of this Order, subject to the approval of the Court.

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11.

Return of"CONFIDENTJAL MATERIALS" or "ATTORNEYS' EYES ONLY" Materials.

Within twenty (20) days after the final

te~mination

of this Litigation, including any appeals, each

counsel shall either return all "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY"
materials in his, her, or its possession, custody, or control, and all copies, portions, summaries, or
abstracts thereof, to counsel for the disclosing party, or shall certify destruction thereof.
12.

Use of "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y" materials at

Depositions. If counsel for a party believes that a question put to a witness being examined in
pretrial deposition will disclose "CONFIDENTIAL MATERIALS," or that the answer to any question
or questions require such disclosure, or if documents to be used as exhibits during the
examination contain such "CONFIDENTIAL MATERIALS," such counsel shall have the option to so
notify requesting counsel and insist that the deposition be taken in the presence only of counsel,
supporting personnel identified in Paragraph 5, the parties, the court reporter, video operator, and
their supporting personnel, and any other persons permitted to receive "CONFIDENTIAL
MATERIALS" pursuant to Paragraph 5. Failure to invoke this option shall not destroy, infringe, or
erode the confidential nature of such information, nor shall it prevent counsel from later
designating that portion of the deposition transcript as "CONFIDENTIAL MATERIALS."
The parties shall confer in good faith prior to any pretrial deposition to the extent that
counsel for a party believes that a question to be put to a witness at depositions will disclose
"ATTORNEYS' EYES ONLY" materials, to arrange for procedures for protection of such materials
consistent with this Paragraph and with Paragraph 5. The parties shall seek the Court's
assistance if such procedures cannot be mutually agreed on.
13.

Designation of Transcripts of Depositions. Transcripts of depositions shall be

treated as "CONFIDENTIAL MATERIALS," or "ATTORNEYS' EYES ONL y" materials, provided that

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(a) they or portions thereof are designated as "CONFIDENTIAL MATERIALS" during the course of
the subject deposition, or (b) they or portions thereof are designated as "CONFIDENTIAL
MATERIALS" or "ATTORNEYS' EYES ONLY" materials in writing by counsel for the party
requesting such treatment within twenty (20) days after counsel's receipt of a copy of the
transcript of the subject deposition. In those cases where all or portions of a deposition transcript
are designated as "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y" materials pursuant
to (b) above, only those portions so designated shall thereafter be treated as "CONFIDENTIAL
MATERIALS" or "ATTORNEYS' EYES ONLY" materials. Further, all deposition transcripts shall be
treated as "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y" materials until twenty (20)
days after their receipt by outside counsel for the parties, unless otherwise agreed by the parties
in writing.
14.

Use of Transcripts of Depositions. Transcripts of any deposition taken by any

party that are designated in whole or in part as containing "CONFIDENTIAL MATERIALS" or


"ATTORNEYS' EYES ONLY" materials shall be prepared for or furnished by the reporter only to
outside counsel for the parties, who may then provide copies only to the persons identified in
Paragraph 5 under the circumstances specified therein.
15.

No Modification of Privileges. Nothing in this Protective Order shall modify the

law regarding the attorney-client privilege, the attorney work-product privilege, or trade secret or
other confidential research, development, or commercial information, or other applicable
privileges.
16.

Use of"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY" materials in

Discovery, Motions, and Trial. "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y"
materials may be used in support of or in opposition to any motion, at any motion hearing, to

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prepare for and conduct discovery, and to prepare for trial, all subject to the provisions of this
Order or any further order regarding confidentiality as this Court may enter.
17.

Filing Under Seal. Any party seeking to file "CONFIDENTIAL MATERIALS" or

"ATTORNEYS' EYES ONL y" materials with the Court must contact the producing party to: (i)
provide the producing party with notice that it seeks to file "CONFIDENTIAL MATERIALS" or
"ATTORNEYS' EYES ONL y" materials with the Court; (ii) pursuant to Local Rule 5.1.5, provide
the basis for filing the "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY" materials
under seal; and (iii) meet and confer in good faith to determine whether a redacted version of the
"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY" materials can be filed with the
Court. In the event no agreement is reached for the filing of a redacted version, the party seeking
to file such "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y" materials shall file such
material in accordance with Local Rule 5.1.5.
18.

Inadvertent Disclosure of"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES

ONL y" Materials. If a party or any of its representatives, including but not limited to its counsel,
outside consultants, and experts, inadvertently discloses any information or documents
designated as "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY" materials pursuant to
this Order to persons who are not authorized to use or possess such "CONFIDENTIAL MATERIALS"
or "ATTORNEYS' EYES ONLY" materials, the party shall provide immediate written notice of the
disclosure to the party whose "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y"
materials were inadvertently disclosed. Similarly, in the event a party has actual knowledge that
"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY" materials are being used or
possessed by a person not authorized to use or possess "CONFIDENTIAL MATERIALS" or
"ATTORNEYS' EYES ONLY" materials pursuant to this Order, regardless of how the

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"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY" materials were disclosed or obtained


by such person, the party shall provide immediate written notice of the unauthorized use or
possession to the party whose "CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONLY"
materials are being used or possessed. No party shall have an affirmative obligation to inform
itself regarding such possible use or possession.
19.

Notice of Court Subpoena or Order. If another court or administrative agency

subpoenas or orders production of information or documents designated "CONFIDENTIAL


MATERIALS" or "ATTORNEYS' EYES ONLY" materials which a party has obtained under the terms
of this Order, such party shall promptly notify the attorneys of record of the party or other person
who designated the information or documents as "CONFIDENTIAL MATERIALS" or "ATTORNEYS'
EYES ONL y" materials of the pendency of such subpoena or order, and shal I furnish those
attorneys of record with a copy of said subpoena or order.
20.

Agreements and Local, State, and Federal Laws Regarding "CONFIDENTIAL

MATERIALS" or "ATTORNEYS' EYES ONLY" materials. No party may be deemed to violate any
federal, state, or local laws or agreements governing the disclosure of confidential, personal, or
proprietary information by producing any such information in this Litigation, and compliance
with this Order and governing discovery rules shall provide complete immunity to the producing
party from any claim of violation of law or breach of contract (or related claims).
21.

Material and Information Otherwise Obtained. Nothing in this Order shall apply

to documents, information, material, or any portion thereof obtained by any party by any lawful
means other than production from the other party in the discovery process in this Litigation. In
addition, nothing in this Order shall prevent a party from disclosing its own "CONFIDENTIAL
MATERIALS" or "ATTORNEYS' EYES ONLY" materials.

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22.

No Waiver of Rights. Nothing in this Order shall be deemed a waiver of any of

the parties' rights to oppose any discovery on any grounds, to object to the designation of
"CONFIDENTIAL MATERIALS" or "ATTORNEYS' EYES ONL y" materials, or to object on any ground
to the admission in evidence at any motion hearing or the trial of this Litigation of any matter
discovered.
23.

Effect on Scope of Discovery. Nothing in this Order shall in any way limit or

expand the permissible scope of discovery in this Litigation.


24.

Third Parties. A third party responding to a subpoena or other process in

connection with this Litigation can obtain the protections afforded by this Order by stating in
writing that it is has reviewed this Order, agrees to be bound by its terms, and is producing
materials subject to the protections provided by this Order.
IT IS SO ORDERED:
This the

A{-,C day of:~~~~~~'' 2013.

11

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AGREED AS TO SUBSTANCE AND FORM


AND ENTRY REQUESTED BY:
MERSCORP, Inc. nlk/a MERSCORP
Holdings, Inc. and MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.

MONTGOMERY COUNTY,
PENNSYLVANIA, RECORDER OF DEEDS

By: Isl Craig W. Hillwig


Craig W. Hillwig
By: Isl Kristofor T. Henning
Kristofor T. Henning
Craig W. Hillwig
Joseph C. Kohn
Robert J. Larocca
KOHN SWIFT & GRAF, P.C.
One South Broad Street
Suite 2100
Philadelphia, PA 19107
215-238-1700
Fax: 215-238-1968
Email: chillwig@kohnswift.com
Email: jkohn@kohnswift.com
Email: rlarocca@kohnswift.com

Kristofor T. Henning
Franco A. Corrado
MORGAN LEWIS & BOCKIUS LLP
1701 Market St.
Philadelphia, PA 19103-2921
215-963-5120
Fax: 215-963-5001
Email: khenning@morganlewis.com
Email: fcorrado@morganlewis.com
Robert M. Brochin (pro hac vice)
MORGAN, LEWIS & BOCKIUS LLP
200 South Biscayne Boulevard
Suite 5300
Miami, Florida 33131
305.415.3000 Telephone
305.415.3001 Facsimile
rbrochin@morganlewis.com

Gary E. Mason
Jason S. Rathod (pro hac vice)
WHITFIELD BRYSON & MASON LLP
1625 Massachusetts Ave., NW
Suite 605
Washington, DC 20036
202-429-2290
Email: gmason@wbmllp.com
Email: jrathod@wbmllp.com
W. Cuneo
CUNEO GILBERT & LADUCA LLP
507 C Street, NE
Washington, DC 20002
202-789-3960
Fax: 202-789-1813
Email: jonc@cuneolaw.com

Dated: August 30, 2013

12

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MONTGOMERY COUNTY,
PENNSYLVANIA, RECORDER OF DEEDS,
by and through NANCY J. BECKER, in her
official capacity as the
Recorder of Deeds of Montgomery County,
Pennsylvania, on its own behalf and on behalf
of all others similarly situated,

Civil Action No. 11-6968


Judge J. Curtis Joyner
Filed Electronically

Plaintiff,
vs.
MERSCORP, INC., and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC.,
Defendants.

ACKNOWLEDGEMENT
I,

, hereby certify under the pains and penalties of perjury that I

~~~~~~~~~

have received a copy of, read, and reviewed the Consent Protective Order in this Litigation, and
that I agree to be bound by it and its terms. I further agree that I shall not disclose to others,
except in accordance with the Consent Protective Order, any "CONFIDENTIAL MATERIALS" that I
may receive or be given access to, and that such information or documents shall be used only for
the purposes of the prosecution or defense of this Litigation. I further agree and attest to my
understanding that my obligation to honor the confidentiality of such "CONFIDENTIAL
MATERIALS" will continue even after the termination of this Litigation. I further agree and attest
to my understanding that, in the event that I fail to abide by the terms of the Consent Protective
Order, I may be subject to sanctions, including sanctions by way of contempt of court, imposed

13

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by the Court, for such failure. I further agree to the exercise of personal jurisdiction over me by
this Court with respect to the enforcement of this Acknowledgement.

By:

Address:

Date:

14

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Exhibit 2

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McDonnell Property Analytics

Analysis of the Farkas Mortgage Loan

EXHIBIT 2
Kathryn Farkas
MIN #1000157-0005072177-4
237 Montgomery Avenue
Haverford, Montgomery County, PA 19041

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Table of Contents

TABLE OF CONTENTS .............................................................................................................................. 2


SUMMARY .................................................................................................................................................. 3
SUBJECT ........................................................................................................................................................ 3
MONTGOMERY COUNTY LAND RECORDS ........................................................................................... 3
MERS WEBSITE............................................................................................................................................ 4
MERS MIN SUMMARY................................................................................................................................ 4
MERS MILESTONES .................................................................................................................................... 4
SECURITIZATION ANALYSIS ................................................................................................................... 6
ASSIGNMENT ANALYSIS .......................................................................................................................... 7
CONCLUSIONS ............................................................................................................................................. 7

RESEARCH.................................................................................................................................................. 8
TRANSACTION DETAILS ........................................................................................................................... 8
LOAN LEVEL DETAILS .............................................................................................................................. 8
SECURITIZATION DETAILS ...................................................................................................................... 8
LOOKUP REFERENCES............................................................................................................................... 9
BLOOMBERG RESEARCH .......................................................................................................................... 9
MERS WEBSITE.......................................................................................................................................... 10
TITLE DOCUMENTS RECORDED ........................................................................................................... 10
MERS TRANSFER BENEFICIAL RIGHTS .............................................................................................. 10
ASSIGNMENT ANALYSIS ........................................................................................................................ 11

Property Analytics Kathryn Farkas


MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

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Summary
SUBJECT
On June 28, 2005 (Settlement Date), Kathryn Farkas (Farkas) entered into a consumer
mortgage transaction with Countrywide Home Loans, Inc. (Countrywide) to obtain
financing in the amount of $151,650.00. Farkas executed a Note and granted a Mortgage in
her property located at 237 Montgomery Avenue, Haverford, Pennsylvania 19041. An
Adjustable Rate Rider and a Condominium Rider amend and supplement the Mortgage and
were filed of record with the Montgomery County Recorder of Deeds (Recorder of Deeds)
on July 15, 2005, at Bk. 11522, Pg. 0396.
Mortgage Electronic Registration Systems, Inc. (MERS) is described in Definition (C) of
the Mortgage as a separate corporation that is acting solely as a nominee for Lender and
Lenders successors and assigns. MERS is the mortgagee under this Security
Instrument. (emphasis in original). The Mortgage was registered into the MERS System
under MIN #1000157-0005072177-4.
On October 28, 2011, Debra Lyman and Marti Noriega, signing as Vice President and
Assistant Vice President, respectively, of Mortgage Electronic Registration Systems, Inc. as
nominee for Countrywide Home Loans, Inc. (Assignor), executed an Assignment of
Mortgage (Assignment) transferring the Mortgage and the indebtedness secured thereby
from the Assignor to The Bank of New York Mellon f/k/a The Bank of New York as Trustee
for the Certificateholders of the CWABS, Inc. Asset-Backed Certificates, Series 2005-08
(Assignee). The Assignment was recorded on November 14, 2011, at Bk. 13186, Pg.
01685.
Apparently, the Mortgage was placed in foreclosure and on March 27, 2013, the
Montgomery County Sheriff sold the Property to The Bank of New York Mellon f/k/a The
Bank of New York, as Trustee for CWABS, Inc., Asset-Backed Certificates, Series 2005-8.
The Sheriffs Deed was filed with the Recorder of Deeds on May 9, 2013, at Bk. 5872, Pg.
02209.
MONTGOMERY COUNTY LAND RECORDS
In preparation for this examination, I researched and downloaded certified copies of the
following documents from the Montgomery County Recorder of Deeds:




07/13/2005
11/14/2011
05/09/2013

Mortgage
Assignment of Mortgage
Sheriffs Deed

Property Analytics Kathryn Farkas


MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

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MERS WEBSITE
I performed a search on MERS public access website and found that MIN #10001570005072177-4 is Inactive which means that it was either conveyed out of the MERS
System, or it was terminated through a payoff or a foreclosure.
The first seven digits of the MIN Number represent the identity of the MERS Member who
registered the Mortgage within the MERS System. I performed a search for Org. ID #
1000157 1 and found that it now belongs to Bank of America, N.A.2
MERS reports that Ocwen Loan Servicing, LLC was the Servicer when the loan was
deactivated. I was unable to perform a search that would identify the Investor i.e., the
owner of the subject Mortgage Loan because MERS requires the Borrowers full 9-digit
Social Security Number to obtain that information which was not supplied.
MERS MIN SUMMARY
I examined the MIN Summary provided to us for review and found that the MERS System
reports that the Farkas loan was securitized, and that the identity of the Servicer and Investor
as follows:
ORG. ID

ROLE

MERS MEMBER

1000223
1000579

Securitization CWABS 2005-8


Servicer
Ocwen Loan Servicing, LLC
Investor
The Bank of New York Mellon

What this tells us is that Ocwen Loan Servicing, LLC was the Servicer of the Farkas
Mortgage Loan when it was deactivated from the MERS System.
The
The Bank of New York Mellon serves as the Trustee of the securitization
denoted above as CWABS 2005-8.3 (See Securitization Details and Lookup References in
the Research section of this report.)
MERS MILESTONES
I examined the MERS Milestones for MIN #1000157-0005072177-4 (Milestone Report)
and found that with respect to the purchase and sale of ownership rights in the Farkas Note,
the following transfers were registered in the MERS System.

To perform a MERS Member search, type in the Org. ID # here at: http://www.mersinc.org/aboutus/member-search.
2

Jan. 11, 2008 (Bloomberg) -- Bank of America Corp., the biggest U.S. bank by market value, agreed to
buy Countrywide Financial Corp. for about $4 billion, taking over the largest mortgage lender during the worst
housing slump in more than two decades. (See
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aqKE9kRcKDEw)
3

CWABS 2005-8 is an acronym for CWABS Asset-Backed Certificates Trust 2005-8.


Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

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TRANSFER OF BENEFICIAL RIGHTS


TRANSFER DATE

REGISTER DATE

FROM

TO

08/31/2005

09/02/2005

09/28/2007

10/01/2007

01/28/2011

01/28/2011

Bank of America, N.A.


(1000157)4
The Bank of New York
Mellon (1000579)
Ocwen Loan Servicing,
LLC (FL) (1000246)

The Bank of New York


Mellon (1000579)5
Ocwen Loan Servicing,
LLC (FL) (1000246)
The Bank of New York
Mellon (1000579)

None of these transfers was memorialized in a written assignment of mortgage recorded with
the Montgomery County Recorder of Deeds.
In contrast, the one (1) Assignment that was recorded on 11/14/2011, purports to transfer the
Farkas Mortgage together with the indebtedness secured thereby, from Mortgage
Electronic Registration Systems, Inc., as nominee for Countrywide Home Loans, Inc. to The
Bank of New York Mellon, N.A. f/k/a/ The Bank of New York as Trustee for the
Certificateholders of the CWABS, Inc. Asset-Backed Certificates, Series 2005-08.
This Assignment is both untimely (six years after the Closing Date of the Trust on August
30, 2005), and it does not accurately reflect the manner in which the mortgage loans were to
be securitized. (See Securitization Analysis below)
With respect to the deactivation date, the Milestone report states as follows:
DESCRIPTION

DATE

Deactivate 04/05/2013
Assigned from
MERS for
Default or
Bankruptcy

INITIATING ORGANIZATION/USER

MILESTONE INFORMATION

1000223 Ocwen Loan


Servicing, LLC6

MIN Status: DeactivationAssigned from MERS for


Default or Bankruptcy

I observe here the Sheriffs Deed indicates that the Farkas Property was foreclosed on March
27, 2013. Therefore, the deactivation of the Mortgage Loan in the MERS System appears to
be timely.

I am unable to ascertain the identity of the MERS Member who was originally assigned MERS Org. ID
#1000579. Presently, this is one of 5 Org. ID numbers used by The Bank of New York Mellon.
6

I note here that Ocwen Loan Servicing, LLC operated under MERS Org ID #1000223; whereas, Ocwen
Loan Servicing, LLC (FL) uses MERS Org ID #1000246.
Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

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SECURITIZATION ANALYSIS
To understand who was involved in securitizing7 the Farkas Mortgage Loan into the CWABS
Asset-Backed Certificates Trust 2005-8 (CWABS 2005-8), I researched the Prospectus,
Prospectus Supplement, and Pooling and Servicing Agreement (Deal Documents) filed
with the Securities and Exchange Commission in conjunction with this public securities
offering.8
I also examined various other exhibits attached to the 8-K Report filed with the SEC on
March 28, 2006 that enabled me to reconstitute the chain of title9 to the Farkas Property
assuming, that is, that all required transfers necessary to securitize the Mortgage Loan
actually occurred.
The table below summarizes the true sale conveyances outlined in the Deal Documents
which also form the basis for the representations and warranties made to investors who
purchased securities allegedly backed by the mortgage loans transferred to the Trust Fund.
Further, the mortgage loans had to be conveyed to the Trustee for the Trust on the Closing
Date of August 30, 2005.
True Sale Transfers and Assignments Involved in Securitization
FROM

TO

Countrywide Home Loans, Inc.


(Lender/Seller)


#1

CWABS, Inc.
(Depositor)

CWABS, Inc.
(Depositor)


#2

The Bank of New York as Trustee for CWABS


Asset-Backed Certificates Trust 2005-8
(Trust Fund/Issuing Entity)

I found that neither of these transfers were logged into the MERS System; nor were written
mortgage assignments recorded with the Montgomery County Recorder of Deeds.

Securitization is the financial practice of pooling various types of contractual debt such as residential
mortgages, commercial mortgages, auto loans or credit card debt obligations and selling said consolidated debt
as bonds, pass-through securities, or collateralized mortgage obligation (CMOs), to various investors. The principal
and interest on the debt, underlying the security, is paid back to the various investors regularly. Securities backed
by mortgage receivables are called mortgage-backed securities (MBS), while those backed by other types of
receivables are asset-backed securities (ABS).
Critics have suggested that the complexity inherent in securitization can limit investors' ability to monitor
risk, and that competitive securitization markets with multiple securitizers may be particularly prone to sharp
declines in underwriting standards. Private, competitive mortgage securitization is believed to have played an
important role in the U.S. subprime mortgage crisis.[1] (See http://en.wikipedia.org/wiki/Securitization)
8

See the Research section of this report which contains references and hyperlinks to the Deal Documents.

Pennsylvania is a title theory state.


Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

Case
Case2:11-cv-06968-JCJ
2:11-cv-06968-JCJ Document
Document81-30
152-3 Filed
Filed11/05/13
02/13/15 Page
Page20
8 of
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24
ASSIGNMENT ANALYSIS
When all of the available information collected from the Recorders Office, MERS and the
SEC is compiled and integrated, I found that there are five (5) missing assignments that
should have been recorded with the Montgomery County Recorder of Deeds as follows:
1. From Countrywide Home Loans, Inc. to CWABS, Inc. (SEC);
2. From CWABS, Inc. to The Bank of New York as Trustee for CWABS Asset-Backed
Certificates Trust 2005-8 (SEC);
3. From Bank of America, N.A. to The Bank of New York Mellon (MERS);
4. From The Bank of New York Mellon to Ocwen Loan Servicing, LLC (FL) (MERS);
5. From Ocwen Loan Servicing, LLC (FL) to The Bank of New York Mellon (MERS).
When analyzed together, the MERS data and the SEC data reveal redundancies, gaps and
contradictions. For example, the SEC data shows that Countrywide Home Loans, Inc. sold
the Farkas Mortgage Loan to CWABS, Inc. on August 30, 2005, and subsequently, CWABS,
Inc. conveyed the Mortgage Loan to The Bank of New York as Trustee for CWABS AssetBacked Certificates Trust 2005-8. On the other hand, MERS states that Bank of America,
N.A. (rather than Countrywide) sold the Mortgage Loan directly to the Trustee, The Bank of
New York Mellon on August 31, 2005 (who was not the Trustee at the time).
CONCLUSIONS
Based on all of the data to which I had access concerning transfers of the Farkas Mortgage
Loan, I make the following conclusions:

 There are five (5) unrecorded assignments of mortgage that should have been filed
with the Montgomery County Recorder of Deeds.

 The MERS Milestones data is incomplete. Two (2) transfers reflected in the
securitization Deal Documents are not contained in the Milestones Report for the
Farkas Mortgage Loan.

 The MERS Milestones data contradict the securitization Deal Documents, suggesting
that Countrywide/Bank of America transferred the Mortgage Loan twice.

 The Assignment of Mortgage recorded on November 14, 2011 with the Montgomery
County Recorder of Deeds is untimely; the Closing Date for the CWABS AssetBacked Certificates Trust 2005-8 was August 30, 2005.

 In addition, the Depositor, CWABS, Inc. and only the Depositor was authorized
by the Pooling and Servicing Agreement to convey the Mortgage Loan into the Trust.

 Title to the Property has been corrupted by the failure to record a complete chain of
title by Mortgage Electronic Registration Systems, Inc.

Property Analytics Kathryn Farkas


MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

Case
Case2:11-cv-06968-JCJ
2:11-cv-06968-JCJ Document
Document81-30
152-3 Filed
Filed11/05/13
02/13/15 Page
Page21
9 of
of12
24

Research
TRANSACTION DETAILS
Source Documents:
Settlement Date:
Borrower:
Lender:
Nominee:
Principal Amount:
Maturity Date:
Address:
Zip Code:
Parcel ID:
Riders:

Mortgage; Adjustable Rate Rider


June 28, 2005
Kathryn Farkas
Countrywide Home Loans, Inc.
Mortgage Electronic Registration Systems, Inc.
$151,650.00
July 1, 2035
237 Montgomery Avenue, Haverford, PA
19041-1849
40-00-4000-02-8
Adjustable Rate Rider; Condominium Rider

LOAN LEVEL DETAILS


Loan Number:
Initial Interest Rate:
Type of Loan:
Source Documents:
Index:
1st Rate Change:
Reset Intervals:
Life Rate Cap:
Life Rate Floor:
Adjustable Cap:
Margin
Neg. Am. Limit:

00010873603306005
7.875%
3/27 Hybrid Adjustable Rate Mortgage (HARM)
Mortgage; Adjustable Rate Rider
6-Month LIBOR
July 1, 2008
and on that day every sixth month thereafter
14.875%
7.875%
1.500%
7.375%
Not Applicable

SECURITIZATION DETAILS
Source Documents:
Lender:
Originator:
Seller/Sponsor:
Depositor:
Issuing Entity:

Rule 424(b)(5) Prospectus & Prospectus Supplement


Countrywide Home Loans, Inc.
Countrywide Home Loans, Inc.
Countrywide Home Loans, Inc.
CWABS, Inc.
CWABS Asset-Backed Certificates Trust 2005-8
Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

Case 2:11-cv-06968-JCJ Document 152-3


81-30 Filed 02/13/15
11/05/13 Page 10
22 of 12
24

Trustee:
Delaware Trustee:
Master Servicer:
Custodian:
Underwriter:
Cut-Off Date:
Closing Date:
LOOKUP REFERENCES
Source Documents:
Trust I.D.:
EDGAR Website:

SEC Info Website:


Trust Agreement:
Prospectus: 424B5
PSA:
Form 8-K:
MLPA:
Loan Schedule:
Governing Law:
BLOOMBERG RESEARCH
Source Documents:
Loan ID
Pay History

Original Balance
Geographics
MSA
Zip Code
Credit Score
Loan Type

The Bank of New York


Not Applicable
Countrywide Home Loans, Inc.
The Bank of New York Trust Company, N.A. (Co-Trustee)
Countrywide Securities Corporation & Lehman Brothers
August 1, 2005
August 30, 2005

Bloomberg RMBS Database; EDGAR Website; SEC Info Website


CWABS Asset-Backed Certificates Trust 2005-8
http://www.sec.gov/cgi-bin/browseedgar?CIK=1338051&Find=Search&owner=exclude&action=getco
mpany
http://www.secinfo.com/$/SEC/Registrant.asp?CIK=1338051
See Pooling and Servicing Agreement
http://www.secinfo.com/dsvrn.z5G5.htm
http://www.secinfo.com/drjtj.z59m.d.htm#1stPage
http://www.secinfo.com/$/SEC/Documents.asp?CIK=1338051&Part
y=BFO&Type=8-K&Label=Current+Reports+--+Form+8-K
Not Available
See Exhibit F to the Pooling and Servicing Agreement
State of New York (See Section 10.03 of the PSA)

Bloomberg Professional Service


108736033
RRRRRFFFFFFF9999FFFFFF999999999999999999999999
9999963^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^C
(Bloomberg Notations: R stands for Real Estate Owned;
F stands for Foreclosure; 9 represents a 90-day
delinquency; 6 means 60-days late; 3 means 30-days late;
and C stands for Current)
$151,650.00
PA
Philadelphia-Camden-Wilmington PA-NJ-DE-MD
19041
593
ARM
Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

Case 2:11-cv-06968-JCJ Document 152-3


81-30 Filed 02/13/15
11/05/13 Page 11
23 of 12
24

ARM Index
Gross Coupon
ARM Lifetime Cap
ARM Lifetime Floor
ARM Periodic Rate Cap
ARM Periodic Rate Floor
ARM Margin
MERS WEBSITE
Source Documents:
MOM:
MIN Number:
Lender I.D.:
Servicer I.D.:
Investor I.D.:
Status:

US0006M
7.875%
14.875%
7.875%
1.5%
1.5%
7.375%

Mortgage; MERS Website at: https://www.mers-servicerid.org/sis/


Yes
1000157-0005072177-4
Bank of America, N.A. (Assumed Org. ID from Countrywide)
Ocwen Loan Servicing, LLC
(Requires Borrowers Social Security Number)
Inactive

TITLE DOCUMENTS RECORDED


MONTGOMERY COUNTY RECORDER OF DEEDS, PENNSYLVANIA
EXECUTION
DATE

RECORDING
DATE

06/28/2005
10/28/2011
04/18/2013

07/13/2005
11/14/2011
05/09/2013

DOCUMENT

Bk. 11522, Pg. 0396


Bk. 13186, Pg. 01685
Bk. 5872, Pg. 02209

INSTRUMENT

Mortgage
Assignment of Mortgage
Sheriffs Deed

MERS TRANSFER BENEFICIAL RIGHTS


MERS MILESTONE REPORT
TRANSFER DATE

REGISTER DATE

06/29/2005

06/29/2005

08/31/2005

09/02/2005

09/28/2007

10/01/2007

01/28/2011

01/28/2011

04/05/2013

04/05/2013

FROM

Bank of America, N.A.


(1000157)
Bank of America, N.A.
(1000157)
The Bank of New York
Mellon, N.A. (1000579)
Ocwen Loan Servicing,
LLC (FL) (1000246)
Ocwen Loan Servicing,
LLC (1000223)

TO

Registered in MERS
The Bank of New York
Mellon, N.A. (1000579)
Ocwen Loan Servicing,
LLC (FL) (1000246)
The Bank of New York
Mellon, N.A. (1000579)
Deactivation Assigned from
MERS for Default or Bk.

Property Analytics Kathryn Farkas


MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

10

Case 2:11-cv-06968-JCJ Document 152-3


81-30 Filed 02/13/15
11/05/13 Page 12
24 of 12
24
ASSIGNMENT ANALYSIS
INTEGRATE REGISTRY, MILESTONE & SEC DATA
DATE

SOURCE

08/30/2005

SEC

08/30/2005

SEC

08/31/2005

MERS

TRANSFERS REQUIRING RECORDATION

09/28/2007
MERS
01/28/2011
MERS
10/28/2011

Recorders
Office

Countrywide Home Loans, Inc. to


CWABS, Inc.
CWABS, Inc. to The Bank of New York as
Trustee for CWABS Asset-Backed
Certificates Trust 2005-8
Bank of America, N.A. (1000157) to The
Bank of New York Mellon, N.A.
(1000579)
The Bank of New York Mellon, N.A.
(1000579) to Ocwen Loan Servicing, LLC
(FL) (1000246)
Ocwen Loan Servicing, LLC
(FL)(1000246) to The Bank of New York
Mellon, N.A. (1000579)
Mortgage Electronic Registration Systems,
Inc., as nominee for Countrywide Home
Loans, Inc. to The Bank of New York
Mellon, N.A. f/k/a The Bank of New York
as Trustee for the Certificateholders of the
CWABS, Inc. Asset-Backed Certificates,
Series 2005-08

NOTES

Missing
Missing

Missing

Missing

Missing

Inconsistent &
Untimely10

10

The 10/28/2011 recorded Assignment is inconsistent because it does not reflect the transfers set
forth in the Deal Documents for the securitization filed with the SEC. It is untimely because this Assignment
purports to assign the Mortgage Loan to the Trust more than 6 years after the Closing Date of August 30, 2005
established by the Deal Documents.
Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

11

Case 2:11-cv-06968-JCJ Document 152-4 Filed 02/13/15 Page 1 of 2

Exhibit 3

Case
Case 2:11-cv-06968-JCJ
2:11-cv-06968-JCJ Document
Document 152-4
81 Filed
Filed
11/05/13
02/13/15Page
Page
23 2ofof462

where a mortgage and note are placed into a securitization trust, to enable selling of mortgagebacked securities to the public, see Montgomery County, 904 F. Supp. 2d at 439-440).
Her Analysis is attached to her Declaration, which is attached hereto as Exhibit G.
Below is a summary of her conclusions, with the word Missing showing what was not
reflected in the Montgomery County public record chain of title:
(1)

Montgomery County Land Records (Recorded Documents)

Transaction

Status

07/13/05 Mortgage to MERS, as Nominee For


Countrywide Home Loans, Inc. (Countrywide);

FILED

11/14/11 MERS (as nominee for Countrywide) assigns to


Bank of New York Mellon (BNY Mellon);

FILED

05/09/13 Sheriffs Deed in foreclosure

FILED

(2)

MERS Internal Records (Note Transfers Reported To MERS)11

Transaction

Status
REDACTED

MISSING

REDACTED

MISSING
MISSING

REDACTED
(3)

Securitization Documents (Transfers Recited In SEC Filings)

Transaction

Status

08/30/05 Countrywide to CWABS, Inc.

MISSING

08/30/05 CWABS, Inc. to BNY Mellon

MISSING

Declaration of Marie T. McDonnell (Exhibit G), at Exh. 2, p. 11.

11

This information is from Defendants database. Defendants have designated this information
Confidential under the Protective Order, and required it to be filed under seal. Therefore
Plaintiff has redacted it in the publicly filed version of this brief.
17

Case 2:11-cv-06968-JCJ Document 152-5 Filed 02/13/15 Page 1 of 1

Exhibit 4
Filed Under Seal Pursuant to Protective Order

Case 2:11-cv-06968-JCJ Document 152-6 Filed 02/13/15 Page 1 of 1

Exhibit 5
Filed Under Seal Pursuant to Protective Order

Case 2:11-cv-06968-JCJ Document 152-7 Filed 02/13/15 Page 1 of 3

Exhibit 6

Case 2:11-cv-06968-JCJ Document 152-7 Filed 02/13/15 Page 2 of 3

Case 2:11-cv-06968-JCJ Document 152-7 Filed 02/13/15 Page 3 of 3

Case 2:11-cv-06968-JCJ Document 152-8 Filed 02/13/15 Page 1 of 12

Exhibit 7

Case:
Case
Case
14-4315
2:11-cv-06968-JCJ
2:11-cv-06968-JCJ
Document: 003111867951
Document
Document81-30
152-8Page:
Filed
Filed
139
11/05/13
02/13/15
DatePage
Page
Filed:14
202/04/2015
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McDonnell Property Analytics

Analysis of the Farkas Mortgage Loan

EXHIBIT 2
Kathryn Farkas
MIN #1000157-0005072177-4
237 Montgomery Avenue
Haverford, Montgomery County, PA 19041

JA 482

Case:
Case
Case
14-4315
2:11-cv-06968-JCJ
2:11-cv-06968-JCJ
Document: 003111867951
Document
Document81-30
152-8Page:
Filed
Filed
140
11/05/13
02/13/15
DatePage
Page
Filed:15
302/04/2015
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Table of Contents

TABLE OF CONTENTS .............................................................................................................................. 2


SUMMARY .................................................................................................................................................. 3
SUBJECT ........................................................................................................................................................ 3
MONTGOMERY COUNTY LAND RECORDS ........................................................................................... 3
MERS WEBSITE............................................................................................................................................ 4
MERS MIN SUMMARY................................................................................................................................ 4
MERS MILESTONES .................................................................................................................................... 4
SECURITIZATION ANALYSIS ................................................................................................................... 6
ASSIGNMENT ANALYSIS .......................................................................................................................... 7
CONCLUSIONS ............................................................................................................................................. 7

RESEARCH.................................................................................................................................................. 8
TRANSACTION DETAILS ........................................................................................................................... 8
LOAN LEVEL DETAILS .............................................................................................................................. 8
SECURITIZATION DETAILS ...................................................................................................................... 8
LOOKUP REFERENCES............................................................................................................................... 9
BLOOMBERG RESEARCH .......................................................................................................................... 9
MERS WEBSITE.......................................................................................................................................... 10
TITLE DOCUMENTS RECORDED ........................................................................................................... 10
MERS TRANSFER BENEFICIAL RIGHTS .............................................................................................. 10
ASSIGNMENT ANALYSIS ........................................................................................................................ 11

Property Analytics Kathryn Farkas


MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 483

Case:
Case
Case
14-4315
2:11-cv-06968-JCJ
2:11-cv-06968-JCJ
Document: 003111867951
Document
Document81-30
152-8Page:
Filed
Filed
141
11/05/13
02/13/15
DatePage
Page
Filed:16
402/04/2015
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Summary
SUBJECT
On June 28, 2005 (Settlement Date), Kathryn Farkas (Farkas) entered into a consumer
mortgage transaction with Countrywide Home Loans, Inc. (Countrywide) to obtain
financing in the amount of $151,650.00. Farkas executed a Note and granted a Mortgage in
her property located at 237 Montgomery Avenue, Haverford, Pennsylvania 19041. An
Adjustable Rate Rider and a Condominium Rider amend and supplement the Mortgage and
were filed of record with the Montgomery County Recorder of Deeds (Recorder of Deeds)
on July 15, 2005, at Bk. 11522, Pg. 0396.
Mortgage Electronic Registration Systems, Inc. (MERS) is described in Definition (C) of
the Mortgage as a separate corporation that is acting solely as a nominee for Lender and
Lenders successors and assigns. MERS is the mortgagee under this Security
Instrument. (emphasis in original). The Mortgage was registered into the MERS System
under MIN #1000157-0005072177-4.
On October 28, 2011, Debra Lyman and Marti Noriega, signing as Vice President and
Assistant Vice President, respectively, of Mortgage Electronic Registration Systems, Inc. as
nominee for Countrywide Home Loans, Inc. (Assignor), executed an Assignment of
Mortgage (Assignment) transferring the Mortgage and the indebtedness secured thereby
from the Assignor to The Bank of New York Mellon f/k/a The Bank of New York as Trustee
for the Certificateholders of the CWABS, Inc. Asset-Backed Certificates, Series 2005-08
(Assignee). The Assignment was recorded on November 14, 2011, at Bk. 13186, Pg.
01685.
Apparently, the Mortgage was placed in foreclosure and on March 27, 2013, the
Montgomery County Sheriff sold the Property to The Bank of New York Mellon f/k/a The
Bank of New York, as Trustee for CWABS, Inc., Asset-Backed Certificates, Series 2005-8.
The Sheriffs Deed was filed with the Recorder of Deeds on May 9, 2013, at Bk. 5872, Pg.
02209.
MONTGOMERY COUNTY LAND RECORDS
In preparation for this examination, I researched and downloaded certified copies of the
following documents from the Montgomery County Recorder of Deeds:




07/13/2005
11/14/2011
05/09/2013

Mortgage
Assignment of Mortgage
Sheriffs Deed

Property Analytics Kathryn Farkas


MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 484

Case:
Case
Case
14-4315
2:11-cv-06968-JCJ
2:11-cv-06968-JCJ
Document: 003111867951
Document
Document81-30
152-8Page:
Filed
Filed
142
11/05/13
02/13/15
DatePage
Page
Filed:17
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MERS WEBSITE
I performed a search on MERS public access website and found that MIN #10001570005072177-4 is Inactive which means that it was either conveyed out of the MERS
System, or it was terminated through a payoff or a foreclosure.
The first seven digits of the MIN Number represent the identity of the MERS Member who
registered the Mortgage within the MERS System. I performed a search for Org. ID #
1000157 1 and found that it now belongs to Bank of America, N.A.2
MERS reports that Ocwen Loan Servicing, LLC was the Servicer when the loan was
deactivated. I was unable to perform a search that would identify the Investor i.e., the
owner of the subject Mortgage Loan because MERS requires the Borrowers full 9-digit
Social Security Number to obtain that information which was not supplied.
MERS MIN SUMMARY
I examined the MIN Summary provided to us for review and found that the MERS System
reports that the Farkas loan was securitized, and that the identity of the Servicer and Investor
as follows:
ORG. ID

ROLE

MERS MEMBER

1000223
1000579

Securitization CWABS 2005-8


Servicer
Ocwen Loan Servicing, LLC
Investor
The Bank of New York Mellon

What this tells us is that Ocwen Loan Servicing, LLC was the Servicer of the Farkas
Mortgage Loan when it was deactivated from the MERS System.
The
The Bank of New York Mellon serves as the Trustee of the securitization
denoted above as CWABS 2005-8.3 (See Securitization Details and Lookup References in
the Research section of this report.)
MERS MILESTONES
I examined the MERS Milestones for MIN #1000157-0005072177-4 (Milestone Report)
and found that with respect to the purchase and sale of ownership rights in the Farkas Note,
the following transfers were registered in the MERS System.

To perform a MERS Member search, type in the Org. ID # here at: http://www.mersinc.org/aboutus/member-search.
2

Jan. 11, 2008 (Bloomberg) -- Bank of America Corp., the biggest U.S. bank by market value, agreed to
buy Countrywide Financial Corp. for about $4 billion, taking over the largest mortgage lender during the worst
housing slump in more than two decades. (See
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aqKE9kRcKDEw)
3

CWABS 2005-8 is an acronym for CWABS Asset-Backed Certificates Trust 2005-8.


Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 485

Case:
Case
Case
14-4315
2:11-cv-06968-JCJ
2:11-cv-06968-JCJ
Document: 003111867951
Document
Document81-30
152-8Page:
Filed
Filed
143
11/05/13
02/13/15
DatePage
Page
Filed:18
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TRANSFER OF BENEFICIAL RIGHTS


TRANSFER DATE

REGISTER DATE

FROM

TO

08/31/2005

09/02/2005

09/28/2007

10/01/2007

01/28/2011

01/28/2011

Bank of America, N.A.


(1000157)4
The Bank of New York
Mellon (1000579)
Ocwen Loan Servicing,
LLC (FL) (1000246)

The Bank of New York


Mellon (1000579)5
Ocwen Loan Servicing,
LLC (FL) (1000246)
The Bank of New York
Mellon (1000579)

None of these transfers was memorialized in a written assignment of mortgage recorded with
the Montgomery County Recorder of Deeds.
In contrast, the one (1) Assignment that was recorded on 11/14/2011, purports to transfer the
Farkas Mortgage together with the indebtedness secured thereby, from Mortgage
Electronic Registration Systems, Inc., as nominee for Countrywide Home Loans, Inc. to The
Bank of New York Mellon, N.A. f/k/a/ The Bank of New York as Trustee for the
Certificateholders of the CWABS, Inc. Asset-Backed Certificates, Series 2005-08.
This Assignment is both untimely (six years after the Closing Date of the Trust on August
30, 2005), and it does not accurately reflect the manner in which the mortgage loans were to
be securitized. (See Securitization Analysis below)
With respect to the deactivation date, the Milestone report states as follows:
DESCRIPTION

DATE

Deactivate 04/05/2013
Assigned from
MERS for
Default or
Bankruptcy

INITIATING ORGANIZATION/USER

MILESTONE INFORMATION

1000223 Ocwen Loan


Servicing, LLC6

MIN Status: DeactivationAssigned from MERS for


Default or Bankruptcy

I observe here the Sheriffs Deed indicates that the Farkas Property was foreclosed on March
27, 2013. Therefore, the deactivation of the Mortgage Loan in the MERS System appears to
be timely.

I am unable to ascertain the identity of the MERS Member who was originally assigned MERS Org. ID
#1000579. Presently, this is one of 5 Org. ID numbers used by The Bank of New York Mellon.
6

I note here that Ocwen Loan Servicing, LLC operated under MERS Org ID #1000223; whereas, Ocwen
Loan Servicing, LLC (FL) uses MERS Org ID #1000246.
Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 486

Case:
Case
Case
14-4315
2:11-cv-06968-JCJ
2:11-cv-06968-JCJ
Document: 003111867951
Document
Document81-30
152-8Page:
Filed
Filed
144
11/05/13
02/13/15
DatePage
Page
Filed:19
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SECURITIZATION ANALYSIS
To understand who was involved in securitizing7 the Farkas Mortgage Loan into the CWABS
Asset-Backed Certificates Trust 2005-8 (CWABS 2005-8), I researched the Prospectus,
Prospectus Supplement, and Pooling and Servicing Agreement (Deal Documents) filed
with the Securities and Exchange Commission in conjunction with this public securities
offering.8
I also examined various other exhibits attached to the 8-K Report filed with the SEC on
March 28, 2006 that enabled me to reconstitute the chain of title9 to the Farkas Property
assuming, that is, that all required transfers necessary to securitize the Mortgage Loan
actually occurred.
The table below summarizes the true sale conveyances outlined in the Deal Documents
which also form the basis for the representations and warranties made to investors who
purchased securities allegedly backed by the mortgage loans transferred to the Trust Fund.
Further, the mortgage loans had to be conveyed to the Trustee for the Trust on the Closing
Date of August 30, 2005.
True Sale Transfers and Assignments Involved in Securitization
FROM

TO

Countrywide Home Loans, Inc.


(Lender/Seller)


#1

CWABS, Inc.
(Depositor)

CWABS, Inc.
(Depositor)


#2

The Bank of New York as Trustee for CWABS


Asset-Backed Certificates Trust 2005-8
(Trust Fund/Issuing Entity)

I found that neither of these transfers were logged into the MERS System; nor were written
mortgage assignments recorded with the Montgomery County Recorder of Deeds.

Securitization is the financial practice of pooling various types of contractual debt such as residential
mortgages, commercial mortgages, auto loans or credit card debt obligations and selling said consolidated debt
as bonds, pass-through securities, or collateralized mortgage obligation (CMOs), to various investors. The principal
and interest on the debt, underlying the security, is paid back to the various investors regularly. Securities backed
by mortgage receivables are called mortgage-backed securities (MBS), while those backed by other types of
receivables are asset-backed securities (ABS).
Critics have suggested that the complexity inherent in securitization can limit investors' ability to monitor
risk, and that competitive securitization markets with multiple securitizers may be particularly prone to sharp
declines in underwriting standards. Private, competitive mortgage securitization is believed to have played an
important role in the U.S. subprime mortgage crisis.[1] (See http://en.wikipedia.org/wiki/Securitization)
8

See the Research section of this report which contains references and hyperlinks to the Deal Documents.

Pennsylvania is a title theory state.


Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 487

Case:
Case
Case
14-4315
2:11-cv-06968-JCJ
2:11-cv-06968-JCJ
Document: 003111867951
Document
Document81-30
152-8Page:
Filed
Filed
145
11/05/13
02/13/15
DatePage
Page
Filed:20
802/04/2015
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of12
24
ASSIGNMENT ANALYSIS
When all of the available information collected from the Recorders Office, MERS and the
SEC is compiled and integrated, I found that there are five (5) missing assignments that
should have been recorded with the Montgomery County Recorder of Deeds as follows:
1. From Countrywide Home Loans, Inc. to CWABS, Inc. (SEC);
2. From CWABS, Inc. to The Bank of New York as Trustee for CWABS Asset-Backed
Certificates Trust 2005-8 (SEC);
3. From Bank of America, N.A. to The Bank of New York Mellon (MERS);
4. From The Bank of New York Mellon to Ocwen Loan Servicing, LLC (FL) (MERS);
5. From Ocwen Loan Servicing, LLC (FL) to The Bank of New York Mellon (MERS).
When analyzed together, the MERS data and the SEC data reveal redundancies, gaps and
contradictions. For example, the SEC data shows that Countrywide Home Loans, Inc. sold
the Farkas Mortgage Loan to CWABS, Inc. on August 30, 2005, and subsequently, CWABS,
Inc. conveyed the Mortgage Loan to The Bank of New York as Trustee for CWABS AssetBacked Certificates Trust 2005-8. On the other hand, MERS states that Bank of America,
N.A. (rather than Countrywide) sold the Mortgage Loan directly to the Trustee, The Bank of
New York Mellon on August 31, 2005 (who was not the Trustee at the time).
CONCLUSIONS
Based on all of the data to which I had access concerning transfers of the Farkas Mortgage
Loan, I make the following conclusions:

 There are five (5) unrecorded assignments of mortgage that should have been filed
with the Montgomery County Recorder of Deeds.

 The MERS Milestones data is incomplete. Two (2) transfers reflected in the
securitization Deal Documents are not contained in the Milestones Report for the
Farkas Mortgage Loan.

 The MERS Milestones data contradict the securitization Deal Documents, suggesting
that Countrywide/Bank of America transferred the Mortgage Loan twice.

 The Assignment of Mortgage recorded on November 14, 2011 with the Montgomery
County Recorder of Deeds is untimely; the Closing Date for the CWABS AssetBacked Certificates Trust 2005-8 was August 30, 2005.

 In addition, the Depositor, CWABS, Inc. and only the Depositor was authorized
by the Pooling and Servicing Agreement to convey the Mortgage Loan into the Trust.

 Title to the Property has been corrupted by the failure to record a complete chain of
title by Mortgage Electronic Registration Systems, Inc.

Property Analytics Kathryn Farkas


MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 488

Case:
Case
Case
14-4315
2:11-cv-06968-JCJ
2:11-cv-06968-JCJ
Document: 003111867951
Document
Document81-30
152-8Page:
Filed
Filed
146
11/05/13
02/13/15
DatePage
Page
Filed:21
902/04/2015
of
of12
24

Research
TRANSACTION DETAILS
Source Documents:
Settlement Date:
Borrower:
Lender:
Nominee:
Principal Amount:
Maturity Date:
Address:
Zip Code:
Parcel ID:
Riders:

Mortgage; Adjustable Rate Rider


June 28, 2005
Kathryn Farkas
Countrywide Home Loans, Inc.
Mortgage Electronic Registration Systems, Inc.
$151,650.00
July 1, 2035
237 Montgomery Avenue, Haverford, PA
19041-1849
40-00-4000-02-8
Adjustable Rate Rider; Condominium Rider

LOAN LEVEL DETAILS


Loan Number:
Initial Interest Rate:
Type of Loan:
Source Documents:
Index:
1st Rate Change:
Reset Intervals:
Life Rate Cap:
Life Rate Floor:
Adjustable Cap:
Margin
Neg. Am. Limit:

00010873603306005
7.875%
3/27 Hybrid Adjustable Rate Mortgage (HARM)
Mortgage; Adjustable Rate Rider
6-Month LIBOR
July 1, 2008
and on that day every sixth month thereafter
14.875%
7.875%
1.500%
7.375%
Not Applicable

SECURITIZATION DETAILS
Source Documents:
Lender:
Originator:
Seller/Sponsor:
Depositor:
Issuing Entity:

Rule 424(b)(5) Prospectus & Prospectus Supplement


Countrywide Home Loans, Inc.
Countrywide Home Loans, Inc.
Countrywide Home Loans, Inc.
CWABS, Inc.
CWABS Asset-Backed Certificates Trust 2005-8
Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 489

Case:
Case
14-4315
2:11-cv-06968-JCJ
Document: 003111867951
Document 81-30
152-8Page:
Filed147
11/05/13
02/13/15
DatePage
Filed:22
10
02/04/2015
of 24
12

Trustee:
Delaware Trustee:
Master Servicer:
Custodian:
Underwriter:
Cut-Off Date:
Closing Date:
LOOKUP REFERENCES
Source Documents:
Trust I.D.:
EDGAR Website:

SEC Info Website:


Trust Agreement:
Prospectus: 424B5
PSA:
Form 8-K:
MLPA:
Loan Schedule:
Governing Law:
BLOOMBERG RESEARCH
Source Documents:
Loan ID
Pay History

Original Balance
Geographics
MSA
Zip Code
Credit Score
Loan Type

The Bank of New York


Not Applicable
Countrywide Home Loans, Inc.
The Bank of New York Trust Company, N.A. (Co-Trustee)
Countrywide Securities Corporation & Lehman Brothers
August 1, 2005
August 30, 2005

Bloomberg RMBS Database; EDGAR Website; SEC Info Website


CWABS Asset-Backed Certificates Trust 2005-8
http://www.sec.gov/cgi-bin/browseedgar?CIK=1338051&Find=Search&owner=exclude&action=getco
mpany
http://www.secinfo.com/$/SEC/Registrant.asp?CIK=1338051
See Pooling and Servicing Agreement
http://www.secinfo.com/dsvrn.z5G5.htm
http://www.secinfo.com/drjtj.z59m.d.htm#1stPage
http://www.secinfo.com/$/SEC/Documents.asp?CIK=1338051&Part
y=BFO&Type=8-K&Label=Current+Reports+--+Form+8-K
Not Available
See Exhibit F to the Pooling and Servicing Agreement
State of New York (See Section 10.03 of the PSA)

Bloomberg Professional Service


108736033
RRRRRFFFFFFF9999FFFFFF999999999999999999999999
9999963^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^C
(Bloomberg Notations: R stands for Real Estate Owned;
F stands for Foreclosure; 9 represents a 90-day
delinquency; 6 means 60-days late; 3 means 30-days late;
and C stands for Current)
$151,650.00
PA
Philadelphia-Camden-Wilmington PA-NJ-DE-MD
19041
593
ARM
Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 490

Case:
Case
14-4315
2:11-cv-06968-JCJ
Document: 003111867951
Document 81-30
152-8Page:
Filed148
11/05/13
02/13/15
DatePage
Filed:23
11
02/04/2015
of 24
12

ARM Index
Gross Coupon
ARM Lifetime Cap
ARM Lifetime Floor
ARM Periodic Rate Cap
ARM Periodic Rate Floor
ARM Margin
MERS WEBSITE
Source Documents:
MOM:
MIN Number:
Lender I.D.:
Servicer I.D.:
Investor I.D.:
Status:

US0006M
7.875%
14.875%
7.875%
1.5%
1.5%
7.375%

Mortgage; MERS Website at: https://www.mers-servicerid.org/sis/


Yes
1000157-0005072177-4
Bank of America, N.A. (Assumed Org. ID from Countrywide)
Ocwen Loan Servicing, LLC
(Requires Borrowers Social Security Number)
Inactive

TITLE DOCUMENTS RECORDED


MONTGOMERY COUNTY RECORDER OF DEEDS, PENNSYLVANIA
EXECUTION
DATE

RECORDING
DATE

06/28/2005
10/28/2011
04/18/2013

07/13/2005
11/14/2011
05/09/2013

DOCUMENT

Bk. 11522, Pg. 0396


Bk. 13186, Pg. 01685
Bk. 5872, Pg. 02209

INSTRUMENT

Mortgage
Assignment of Mortgage
Sheriffs Deed

MERS TRANSFER BENEFICIAL RIGHTS


MERS MILESTONE REPORT
TRANSFER DATE

REGISTER DATE

06/29/2005

06/29/2005

08/31/2005

09/02/2005

09/28/2007

10/01/2007

01/28/2011

01/28/2011

04/05/2013

04/05/2013

FROM

Bank of America, N.A.


(1000157)
Bank of America, N.A.
(1000157)
The Bank of New York
Mellon, N.A. (1000579)
Ocwen Loan Servicing,
LLC (FL) (1000246)
Ocwen Loan Servicing,
LLC (1000223)

TO

Registered in MERS
The Bank of New York
Mellon, N.A. (1000579)
Ocwen Loan Servicing,
LLC (FL) (1000246)
The Bank of New York
Mellon, N.A. (1000579)
Deactivation Assigned from
MERS for Default or Bk.

Property Analytics Kathryn Farkas


MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 491

10

Case:
Case
14-4315
2:11-cv-06968-JCJ
Document: 003111867951
Document 81-30
152-8Page:
Filed149
11/05/13
02/13/15
DatePage
Filed:24
12
02/04/2015
of 24
12
ASSIGNMENT ANALYSIS
INTEGRATE REGISTRY, MILESTONE & SEC DATA
DATE

TRANSFERS REQUIRING RECORDATION

SOURCE

08/30/2005

SEC

08/30/2005

SEC

08/31/2005

MERS

09/28/2007
MERS
01/28/2011
MERS
10/28/2011

Recorders
Office

Countrywide Home Loans, Inc. to


CWABS, Inc.
CWABS, Inc. to The Bank of New York as
Trustee for CWABS Asset-Backed
Certificates Trust 2005-8
Bank of America, N.A. (1000157) to The
Bank of New York Mellon, N.A.
(1000579)
The Bank of New York Mellon, N.A.
(1000579) to Ocwen Loan Servicing, LLC
(FL) (1000246)
Ocwen Loan Servicing, LLC
(FL)(1000246) to The Bank of New York
Mellon, N.A. (1000579)
Mortgage Electronic Registration Systems,
Inc., as nominee for Countrywide Home
Loans, Inc. to The Bank of New York
Mellon, N.A. f/k/a The Bank of New York
as Trustee for the Certificateholders of the
CWABS, Inc. Asset-Backed Certificates,
Series 2005-08

NOTES

Missing
Missing

Missing

Missing

Missing

Inconsistent &
Untimely10

10

The 10/28/2011 recorded Assignment is inconsistent because it does not reflect the transfers set
forth in the Deal Documents for the securitization filed with the SEC. It is untimely because this Assignment
purports to assign the Mortgage Loan to the Trust more than 6 years after the Closing Date of August 30, 2005
established by the Deal Documents.
Property Analytics Kathryn Farkas
MIN #1000157-0005072177-4
11/05/2013 McDonnell Property Analytics, All Rights Reserved

JA 492

11

Case 2:11-cv-06968-JCJ Document 152-9 Filed 02/13/15 Page 1 of 4

Exhibit 8

Case:
Case
14-4315
2:11-cv-06968-JCJ
Document: 003111863444
Document 152-9Page:
Filed102/13/15
Date Filed:
Page01/30/2015
2 of 4

No. 14-4315
_________________________________________
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________________________________
MONTGOMERY COUNTY, PENNSYLVANIA, RECORDER OF DEEDS, by
and through NANCY J. BECKER, in her official capacity as the Recorder of
Deeds of Montgomery County, Pennsylvania, Plaintiff-Appellee,
v.
MERSCORP, INC., and MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., Defendants-Appellants.
________________________________________
Appeal from the United States District Court for the Eastern District of
Pennsylvania Civil Action No. 11-CV-06968 (Honorable Curtis Joyner)
_________________________________________
OPENING BRIEF FOR APPELLANTS
AND JOINT APPENDIX VOLUME I (JA 1 to JA 109)
_______________________________________
Joseph B. G. Fay
Franco A. Corrado
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103

Robert M. Brochin
Brian M. Ercole
MORGAN, LEWIS & BOCKIUS LLP
200 S. Biscayne Boulevard, Suite 5300
Miami, FL 33131-2339
Peter Buscemi
MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Attorneys for Appellants-Defendants

Case:
Case
14-4315
2:11-cv-06968-JCJ
Document: 003111863444
Document 152-9Page:
Filed302/13/15
Date Filed:
Page01/30/2015
3 of 4

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ..............................................................................1
JURISDICTIONAL STATEMENT .........................................................................5
ISSUES PRESENTED..............................................................................................6
STATEMENT OF RELATED CASES AND PROCEEDINGS .............................7
STATEMENT OF THE CASE.................................................................................7
SCOPE AND STANDARD OF REVIEW.............................................................15
SUMMARY OF THE ARGUMENT .....................................................................15
ARGUMENT ..........................................................................................................18
I.

II.

PENNSYLVANIA LAW DOES NOT IMPOSE A DUTY TO


RECORD ......................................................................................................18
A.

The Text Of Section 351, Read As A Whole, Does Not


Mandate Recording ............................................................................21

B.

The Purpose Of Section 351 Confirms That Pennsylvania Law


Imposes No Duty To Record..............................................................27

C.

The History Of Pennsylvanias Land Recording Acts Confirms


That There Never Has Been A Mandatory Duty To Record .............28

D.

There Is No Duty To Record Because The Pennsylvania


Supreme Court Has Made Clear That Unrecorded Deeds And
Assignments Remain Valid................................................................30

E.

Requiring The MERS Defendants To Record Under Section


351 Would Raise Serious Questions About The Statutes
Constitutionality .................................................................................31

EVEN IF THERE WERE A DUTY TO RECORD UNDER


SECTION 351, THAT DUTY WOULD NOT APPLY TO
PROMISSORY NOTE TRANSFERS .........................................................32
A.

Transfers Of Promissory Notes Do Not Convey Any Lands


Under Section 351 ..............................................................................33

B.

Transfers Of Promissory Notes Do Not Result In An


Instrument Of Writing Under Section 351 .....................................38

-i-

Case:
Case
14-4315
2:11-cv-06968-JCJ
Document: 003111863444
Document 152-9Page:
Filed402/13/15
Date Filed:
Page01/30/2015
4 of 4

TABLE OF CONTENTS
(continued)
Page
C.

III.

Requiring The Recording Of Promissory Note Transfers Under


Section 351 Is Inconsistent With The Purpose Of
Pennsylvanias Recording Statute And Pennsylvania Law ...............40

NO RIGHT OF ACTION EXISTS UNDER SECTION 351, AND


THE RECORDER CANNOT USE COMMON LAW CLAIMS AS A
MEANS OF CIRCUMVENTING THE LEGISLATURES INTENT .......41
A.

Section 351 Contains No Express Right Of Action...........................41

B.

No Basis Exists For Implying A Right Of Action Under Section


351 ......................................................................................................43

C.

The Recorder Cannot Circumvent The Legislatures Intent By


Using Common Law Claims To Enforce Section 351.......................45

IV.

IN ANY EVENT, THE MERS DEFENDANTS WERE NOT THE


PROPER PARTIES TO BE SUED..............................................................47

V.

EVEN IF THE RECORDER COULD PURSUE HER UNJUST


ENRICHMENT AND QUIET TITLE CLAIMS, SHE CANNOT
SATISFY THE ELEMENTS OF THOSE CLAIMS ...................................50
A.

The Recorder Introduced No Evidence To Support Her Unjust


Enrichment Claim...............................................................................50

B.

The Recorder Introduced No Evidence To Support Her Quiet


Title Claim..........................................................................................52

CONCLUSION.......................................................................................................55

-ii-

Case 2:11-cv-06968-JCJ Document 152-10 Filed 02/13/15 Page 1 of 6

Exhibit 9

Case 2:11-cv-06968-JCJ Document 152-10 Filed 02/13/15 Page 2 of 6

Case 2:11-cv-06968-JCJ Document 152-10 Filed 02/13/15 Page 3 of 6

Case 2:11-cv-06968-JCJ Document 152-10 Filed 02/13/15 Page 4 of 6

Case 2:11-cv-06968-JCJ Document 152-10 Filed 02/13/15 Page 5 of 6

Case 2:11-cv-06968-JCJ Document 152-10 Filed 02/13/15 Page 6 of 6