IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DIVISION

Wells Fargo Bank NA. as Trustee for Securitized

C.A. Case No. 023136

Asset Backed Receivables LLC 2006-OP1

Mortgage Pass-Through Certificates,
Series 2006 OP1
Plaintiff,
v.
John A. Reed, et al.
Defendant

DEFENDANTS MOTION TO VACATE FOR LACK OF SUBJECT

MATTER JURISDICTION
Now comes Defendant John A. Reed (Defendant), for this motion to
vacate this Courts November 13th 2008 judgment entry granting Plaintiff
Wells Fargo Bank NA. as Trustee for Securitized Asset Backed Receivables
LLC 2006-OP1 Mortgage Pass-Through Certificates, Series 2006 OP1
(Plaintiff) motion of judgment on the basis of the State of Ohios Supreme
Courts October 31, 2012 holding in Federal Home Loan Mortgage
Corporation v. Schwartzwald, 2012-Ohio-5017.

Respectfully
submitted,
________________________
John
A. Reed

40 Maple Ave..
Centerville, Ohio 45459
937-890-2576

Yotraj@Yahoo.comSERVICE
A true and exact copy of the foregoing has been served this 16th day
of August, 2010 via email as follows:
Attys for Plaintif
Amelia A. Bower (0013474)
and
David Van Slyke (0077721)
300 East Broad St., Suite 590
Columbus, Ohio 43235
Via email @ abower@plunkettcooney.com
And dvanslyke@plunkettcooney.com
and
Sara M. Petersmann 0055402
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201-5480
Via email @ attyemail@lsrlaw.com
Atty for Defendant John L. Reed
Thomas W. Kendo
7925 Paragon Rd.
Dayton, Ohio 45459
Via email @ tkendo@midam-title.com

CERTIFICATE OF SERVICE
THE UNDERSIGNED HEREBY CERTIFIES that a true and correct
copy of the foregoing has been forwarded, via U,

Introductory Statement
As an initial matter, Defendant freely acknowledges that Plaintiff filed
this lawsuit in 2008, and much litigation has since ensued, including an
appeal and motion for relief from judgment pursuant to Civ. R. 60(B). This
does not, however, change the fact that the Court did not have jurisdiction
to hear this matter, nor was Plaintiff Wells Fargo Bank N.A. as Trustee the
real party in interest entitled to enforce the note and mortgage on February
27th, 2008, the date Plaintiff filed the foreclosure complaint, nor can it be at
any point thereafter, without Plaintiff having first been properly assigned or
otherwise been legally vested as the true Holder in Due Course of the note
& mortgage in question. Defendant submits that Plaintiff was and is not
now.
Plaintiff Wells Fargo Bank N.A. as Trustee lacked standing to bring this
action because it was not, nor can it ever be the holder of the note or the
assignee of the mortgage at the time it filed suit. If a party does not have
standing at the time the complaint is filed, it is a jurisdictional problem that
cannot later be cured.
The question of standing is a threshold question of whether the party has
a personal stake in the outcomeand if that personal stake does not exist
when the lawsuit is filed, the suit should be dismissed. Plaintiff Wells Fargo
Bank N.A. as Trustee had no legal interest at the time it filed the complaint,
and standing cannot exist without a legal right or claim.
Since the foreclosing bank relied on an after-acquired interest in the
note and mortgage to establish its right to enforce the agreements, then I
Move the Court to vacate the judgment. I need not proceed under Civ.R.
60(B) because the judgment is void. The Schwartzwald decision states that
standing has to exist at the time the case is filed, and if it doesnt exist, the
jurisdiction of the common pleas court was not invoked. A court without
jurisdiction cannot enter any judgment (except one dismissing the case for

lack of jurisdiction). A motion to vacate a void (as opposed to a voidable)

judgment is not based on Civ. R. 60(B), it invokes the courts inherent
power. Patton v. Diemer, 35 Ohio St. 3d 68 (1988).
WFB, according to the binding case law in the State of Ohio and
Montgomery County, was not entitled to judgment as a matter of law
because they were not and could never be the real party in interest. The
judgment is void ab initio. Res judicata cannot be a bar to judgment that is
void ab initio.

I.

Relevant Factual Background

1. On February 27th, 2008 (Ex. A) , Plaintiff filed the foreclosure
complaint in this action.
2. As of March 6th, 2008 the note & mortgage at issue had not been
assigned from whoever the previous holder/owner was, to Plaintiff
herein.
3. On August 26th, 2008 Plaintiff filed a Notice of Assignment of
Mortgage (which contains therein also an Assignment of Note) (Exh
C), which contained a copy of a recorded assignment of
Defendants note & mortgage to Plaintiff. (The Assignment,
attached hereto as Exh. B).
4. Plaintiff recorded the Assignment on March 27th, 2008 or 29 days
after the foreclosure lawsuit filing.
5. On November 13th, 2008 the Court granted Plaintiffs judgment and
entered a decree of foreclosure against Defendant.

Defendant has continuously held that Plaintiff in the case at Bar

lacked the capacity to evoke the jurisdiction of the court in this action;1
hence Plaintiff lacked standing to initiate this suit.2

II.

Law and Argument

It is imperative here that the Court understands that Plaintiff is not

challenging the structure of the trust itself. Plaintiff trusts participants are
held both contracturally and by Law to adhere to very specific and
mandated legal requirements that are an issue for they alone. In deed and
in fact it is these very legal requirements that, if lawfully adhered to, would
have prevented Defendant from the necessity of defending the clear and
unsullied condition of the title of the property at issue herein, as is stated is

1 August 15, 2008, Memorandum in Opposition to Plaintiffs Motion for Summary Judgment October 15, 2008, Reply to
Complaint
November 21,2008, Motion to Vacate a Void Judgment
December 1, 2008, Memorandum in Opposition to Plaintiffs Memorandum in Opposition to Defendant John A. Reed's Motion to
Vacate
January 16, 2009, Motion for Reconsideration
April 1,2010, Amended Motion to Appeal Ruling of the Lower COUl1
April 30, 2010, Application for Emergency Reconsideration
February 14,2011, Motion to Vacate Judgment Entry

2 Civ.R. 10(D) requires attachment to the pleading of a copy of the written account or any other written instrument when a claim
or defense is founded on those documents.Fed. Home Loan Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017. (Standing is required
to invoke the jurisdiction of the common pleas court, and it is determined as of the filing of the complaint.)
Wells Fargo v. Burrows, 2012-Ohio-5995 (9th Dist.)(A plaintiff must attach documents evidencing the right to enforce both the
note and the mortgage to the complaint to show standing, or be subject to dismissal.)
HSBC Bank USA, N.A. v. Sherman, 2013-Ohio-4220 (1st Dist.)(Determination of standing should be made based on attachments
to a complaint, but standing in a foreclosure action can be established by showing the right to enforce either the note or mortgage.
Also adopted in the Second, Fifth, Eleventh, and Twelfth Districts.)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (To survive a motion for summary judgment for lack of standing, a party
must set forth by affidavit or other evidence specific facts to support its claim.)

a requirement of the Defendant on page there are more issues with the post
dated assignment than just those addressed in the Schwartzwald Decision.
The POST DATED ASSIGNMENT issue # 1.
As is evidenced in Plaintiffs alleged Assignment from Option One
Mortgage Corp. to The Trust, the date of the transference or
Assignment of both the Note & Mortgage did not occur until after the suit
to foreclose had already been filed.
In Federal Home Loan Mortgage Corporation v. Schwarzwald, et
al., a case recently decided by the Ohio Supreme Court, plaintiff
bank brought a foreclosure lawsuit before it obtained an
assignment of mortgage securing defendant homeowners loan.
Defendants maintained that plaintiff lacked standing to sue (much
as Defendant previously contended in this case) because the
assignment of mortgage had not been recorded prior to the filing of
the lawsuit. Plaintiff was assigned the mortgage via formal
assignment, as here, only after the filing of the lawsuit. The trial
court entered a judgment in favor of plaintiff, and the Second
District Court of Appeals affirmed.
The Supreme Court reversed, holding that standing is a
jurisdictional requirement that must be satisfied to even initiate a
foreclosure lawsuit:
We recognized that standing is a jurisdictional
requirement in State ex rel. Dallman v. Franklin Cty. Court
of Common Pleas (1973), 35 Ohio St. 2d 176, and we stated:
It is an elementary concept of law that a party lacks
standing to invoke the jurisdiction of the court unless he
has, in an individual or representative capacity, some real
interest in the subject matter of the action. (Emphasis
added by the Court).
(Schwarzwald, attached hereto as Exh. D at para. 22).
Further, the Court stated,

Because standing to sue is required to invoke the

jurisdiction of the common pleas court, standing is to be
determined as of the commencement of suit. Id. At para.
24 Invoking jurisdiction of the court, thus, depends on the
state of things at the time the action is brought, and not
after. Id. At para. 25.
In reversing the Second District, the Supreme Court included:
The lack of standing at the commencement of a foreclosure
action requires dismissal of the complaint[.]
Id. At para. 40 (Emphasis added).
Hence, in accordance with the ruling of the Supreme Court of the
State of Ohio, when Plaintiff filed this lawsuit on February 27th 2008,
Plaintiff lacked the capacity to invoke the jurisdiction of the court or in
other words, Plaintiff did not have standing to invoke the jurisdiction of the
court because Plaintiff debt collector had not yet been assigned the
mortgage and note, and for reasons stated in specificity below it could not
then nor can it ever cure this lack of standing through a later filing of the
mortgage assignment as it attempted to do on March 27th, 2008.
HISTORY as alleged by Plaintif.
Plaintiff Trustee for Trust brought this action to foreclose on an
alleged mortgage, dated June 9th, 2005, which secured an alleged loan of
$100,000 issued to the Defendant by H&R Block Mortgage Corporation, a
Massachusetts Corporation, (H&RB). On June 9th, 2005, H&RB assigned
the note and mortgage to Option One Mortgage Corporation, (Option
One). Option One then alleges to have assigned the note and mortgage to
Plaintiff by assignment executed March 7th, 2008. Plaintiff is the debt
collector trustee for a securitized trust titled Securitized Asset Backed
Receivables LLC 2006-OP1 Mortgage Pass-Through Certificates, Series
2006 OP1, (the Trust).

HISTORY as alleged by the EVIDENCE

Plaintiff brought this action to foreclose on an alleged mortgage,
dated June 9th, 2005, which secured an alleged loan of $100,000 issued to
the Defendant by H&R Block Mortgage Corporation, a Massachusetts
Corporation, (H&RB).
On June 9th, 2005, H&RB (Entity A) (exhibit **)assigned all of their
rights to the note and mortgage to Option One Mortgage Corporation
(Entity B), (Option One).
Option One(entity B) then allegedly (there is no assignment proffered
by Plaintiff for this action), through 2 unsigned and unauthenticated
documents,
1. titled Purchase Price and Terms Agreement (Ex..**) and
2. Titled EXECUTION COPY FLOW AMENDED AND RESTATED
MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT,
we are lead to believe without proof that Option One does
assign/sells/transfers3 all of their rights to the NOTE & Mortgage to
Barclays Bank (Entity C)(Sponsor) who then bundles the Note & Mortgage
along with approximately 5,000 other like kind investments and uses the
entire bundle to create a new financial instrument called a Special Purpose
Vehicle (SPV), which is designed to be deposited into a REMIC Trust.
3 As with almost all of Plaintiffs document submissions, the documents Plaintiff submits that
are to be representative of the transfer of the Note & Mortgage from Option One to Barclays
Bank are all unsigned and unauthenticated so no true method of transfer is even represented.
BUT, the controlling Law (IRS & NY. EPTL) both require full sales and transfer of all rights and
ownership before a true securitization of the notes and mortgages into the trust can exist and the
Trusts controlling document, the PSA also mandates a complete evidentiary trail of all transfers
and/or assignments of both the note and mortgage before being allowed to be deposited into the
trust.

Barclays Bank (Entity C) then, we are lead to believe, sells4 (without a

physical assignment, transfer, proof of negotiation, etc.) and transfers all of
their rights to the contents of the SPV containing Defendants alleged Note
& Mortgage to the securitized trusts Depositor,5 Securitized Asset Backed
Receivables LLC(Entity D) (SABR) who then deposits and transfers all of
their rights and interest to the notes and mortgages in the SPV6 to the
Trust (Entity E).

The above steps with complete transfer of all interests and rights to
the notes & mortgages to be placed into a REMIC Trust (excepting of
course in the case at Bar of the missing documentation) are the proper
steps mandated by IRS code, the Trusts Indenture and controlling Law (N.Y.
E.P.T.L) in the creation of a REMIC Trust.
Option One (Entity B) then alleges to have (unlawfully) assigned the
note and mortgage to Plaintiff (Entity E) by an assignment of mortgage (and
note) executed March 7th, 2008.
Plaintiff is the debt collector trustee for a securitized REMIC trust
entitled Securitized Asset Backed Receivables LLC 2006-OP1 Mortgage
Pass-Through Certificates, Series 2006 OP1, (the Trust).
ARGUMENT
As referenced above, the lack of proper transfer(s) of the alleged note
& mortgage (A B, B C, C D and D E) and in fact, the improper
4 Same as Footnote 3 above no signed or authenticated contract.
5 Same as Footnote 3 above no signed or authenticated contract.
6 Same as Footnote 3 above no signed or authenticated contract.
7 It is important here to note that in each transaction listed above, Plaintiff also produces no
receipts, no delivery acceptance, nothing whatsoever to show proof of conveyance or transfer or
negotiation or sale of, in the end, an alleged $5 Billion worth of financial instruments from any
party to any other party whatsoever.

transfers ( as in the case at Bar where Plaintiffs Assignment alleges

transfer from Entity B to E), to others creates a series of document defects
and deficiencies that can include, but are not limited to the following:
a) Broken endorsement chains (where ? represents missing
assignment/transfer):
1. (A B, B ? (C - Barclays)
2. C - ? (D - Depositor)
3. D ? (E Plaintiff Trust),
b) Original Notes without signatures on endorsements;
c) Notes with skipping endorsements;
d) Notes with endorsements on unattached allonges;
e) Allonges unattached to their original wet-ink notes;
f) Allonges copies and taken from other notes and placed onto a
different note ;
g) Allonges unattached to original notes with blank endorsements;
h) Notes never endorsed;
i) Allonges never dated;
j) Allonges in blank and pre-executed and undated for later fill-ins by
unknown parties;
k) Double pledges of the same note and/or loan to different parties;
l) Post-dated assignments of mortgages and notes;
m) Robo-signed assignments of mortgages and notes;
n) Post-dated assignments of mortgages and notes;
o) Assignments executed with no lawful authority;
p) Assignors assigning to themselves;

q) Two different parties claiming the ownership of the same note/loan.

In the case at Bar, it is the Trustee for the Trust that is bringing the
foreclosure suit. Plaintiff Trustee offers no proof of any transfer of any
ownership, or rights or authority from the Trust to the Trustee of/or
pertaining to the Note and/or the Mortgage.
Within the PSA at section 3.15 we also find that by contractual
agreement it is not the Trustees position to engage in any foreclosing
activities, it is instead the Servicers obligation. Setion 3.15 reads:
Section 3.15 Realization upon Defaulted Mortgage Loans. The Servicer shall use its best efforts,
consistent with Accepted Servicing Practices, to foreclose upon or otherwise comparably convert (which
may include an acquisition of REO Property) the ownership of properties securing such of the Mortgage
Loans as come into and continue in default emphasis mine

Again, lacking a proper Assignment of the Note and/or mortgage that

is the subject of this action, and lacking any authority given by the trusts
governing document (indenture), the PSA, Plaintiff Trustee lacked the
capacity to invoke the jurisdiction of this court therefore Plaintiff lacked
standing to initiate suit.
The question of standing is a threshold question of whether the party
has a personal stake in the outcomeand if that personal stake does not
exist when the lawsuit is filed, the suit should be dismissed. Plaintiff had
no legal interest at the time it filed the complaint, and standing cannot exist
without a legal right or claim.
Standing is a threshold issue. Without standing to invoke, no further
mutterings or protestations of the Plaintiff can be heard for they are moot.
THE TRUST
The Trust was formed as a vehicle for purchasing mortgage backed
securities. The Trust is subject to the terms of the trust indenture
(controlling document) memorialized in a document titled the Pooling and
Servicing Agreement, (the PSA). The PSA was signed by 1.) the

Depositor, Securitized Asset Backed Receivables LLC (SABR), by 2.) the

Servicer, Option One, and by 3.) the Trustee, WELLS FARGO BANK, NA,
and is dated January 1, 2006.
The PSA sets forth the manner in which mortgages would be
purchased by the trust, as well as the duties of the trustee and the servicer.
It is the trusts own controlling document, its indenture.
Section 2.01, subsection 1 of the PSA requires that transfer and
assignment of mortgages must be effected by hand delivery, for deposit with
the Trustee with the original note endorsed in blank.
Section 2.05 of the PSA requires that the Depositor transfer all right,
title, interest in the mortgages to the Trustee, on behalf of the trust, as of
the Closing Date. The Closing Date as provided in the PSA is
January 26th, 2006.
The Date of the Assignment of Mortgage (and Note) referenced infra,
was over 2 years past the date allowed for deposits into the trust. If the
trust does not perfect legal title by taking physical possession of the notes
and mortgages, the Internal Revenue Code, specifically 26 U.S.C.
860G(d)(1), provides for a 100 percent tax penalty on those non-complying
cash flows.
As listed in the PSA, the Depositor in the case at Bar was Securitized
Asset Backed Receivables LLC ("SABR"). Within the schema of a
securitized REMIC trust, the Depositor is the necessary entity in the title
chain that provides the Bankruptcy remoteness necessary to the Notes and
the Mortgages deposited into the trust, so that the trust can gain a AAA
rating with the securities ratings agencies and also a necessity for
compliance with IRS rule 860
depositor to the trust.

The Depositor is also the designated sole

In the case at Bar, Plaintiff shows not 1 iota of proof that said
Sponsor, Barclays Bank (Entity C), ever received Defendants Note and/or
Mortgage.
In the case at Bar, Plaintiff shows not 1 iota of proof that said
Depositor (Entity D) ever received Defendants Note and/or Mortgage OR
the alleged and previously allegedly created SPV (from Sponsor Barclays
Bank) containing Defendants alleged Note and/or Mortgage.
In the case at Bar, Plaintiff shows not 1 iota of proof that said
Depositor (SABR) ever deposited the alleged Mortgage and/or Note or the
allegedly created SPV which allegedly contained Defendants alleged note
&/or mortgage into the Plaintiff Trust.
In the case at Bar, Plaintiff shows not 1 iota of proof that said Plaintiff
Trust ever transferred the alleged Mortgage and Note to the Plaintiff
Trusts Trustee, Wells Fargo Bank N.A. who is the Plaintiff in this case.
Plaintiff who, in fact, as per section 3.15 of the trusts indenture clearly
states is not the proper entity to act as the foreclosing agent. Section 3.15
reads:
Section 3.15 Realization upon Defaulted Mortgage Loans. The Servicer shall use its best efforts,
consistent with Accepted Servicing Practices, to foreclose upon or otherwise comparably convert (which
may include an acquisition of REO Property) the ownership of properties securing such of the Mortgage
Loans as come into and continue in default emphasis mine

It is essential for the courts to understand that before the alleged note
& mortgage could be placed within any REMIC trust, each of these steps
was mandated by N.Y. E.P.T.L, I.R.C. requirements AND by the contractual
terms found within the PSA which was signed and agreed upon by the
participants of the securitization. The rules for the deposit of all of the

Notes & Mortgages allegedly held within the pool of assets owned by the
trust are strict and are mandated to be adhered to punctiliously.
As stated in the NYSBA NY Business Law Journal |Summer 2012 |Vol.
16 |No. 1 pg. 77;
The Mortgage Securitization Transaction In 1986, Congress changed the tax code. One of these
changes was the creation of the Real Estate Mortgage Investment Conduit (REMIC). A REMIC
or special purpose vehicle (SPV) is an entity that is created for the specific purpose of being a
tax-free pass-through for interest income generated by pooled mortgages. This allowed investors
to purchase shares or certificates in a mortgage pool that was only taxed once at the investor
level. The REMIC rules allowed the mortgage pools to collect interest income from the pool and
disburse that income to the certificate holders tax-free at the pool level. Prior to the REMIC,
interest income from pooled mortgage investments were taxed twice, once at the pool level and
again at the investor level.
REMIC rules are very specific,8 and to qualify as a REMIC under federal and state tax codes,
the SPV had to meet very stringent requirements. With respect to RMBS the controlling trust
document is known as the Pooling and Servicing Agreement (PSA). One function of the PSA is
to establish the rules governing the trust such that the trusts activities and management conform
to IRC 860. If the trust did not conform, it could lose its REMIC status and its tax-free passthrough status.9
NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 pg. 77

The Trusts agreement (known as the Pooling and Servicing

Agreement (PSA)), the trusts indenture10, sets forth in its entirety how the
trust acquires and is allowed to acquire its assets and the Trust agreement
sets forth both powers and the limits of the powers of the Trust.

8 IRC 860 requires that, among other things, the REMIC trust be a closed entity and bankruptcy remote. New Yorks Estate
Powers & Trust laws were chosen by RMBS sponsors (in the PSAs) as the controlling statutes to govern REMIC trusts, as the
EPTLs rules and concomitant common law establish common law trusts that conform the REMIC tax free pass-through
requirements. NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 end note 7

9 If a tax-free pass-through trust lost its REMIC status, the tax penalties to an investor that purchased certificates would be
devastating. It would also trigger an event called a put back. There was considerable argument over whether these trusts were
business trusts or common law trusts, but the trend appears to be a judicial recognition that they are in fact common law trusts.
NYSBA NY Business Law Journal |Summer 2012 |Vol. 16 |No. 1 end note 8

10 Blacks 9th. trust indenture. 1. A document containing the terms and conditions governing a
trustee's conduct and the trust beneficiaries' rights. - Also termed indenture of trust. [Cases:
Trusts C=> 19-29.] 2. See deed of trust under DEED.

The PSA11 requires that each party to the sale of the mortgage loans
endorse each promissory note to the next party in the chain of title until
the promissory note is endorsed to the Trustee for the benefit of the Trust.
This requirement is included in the PSA and is found at Section 2.10.

According to the requirements set forth in the Trust Agreement (PSA)

there must be a series of endorsements of the promissory note reflective of
each party who had an ownership interest in the promissory note
culminating with a blank endorsement from the depositor at the very
minimum.

This chain of endorsements, or rather the lack thereof, in order to

comply with this Trusts PSA, would have had to be complete on or before
the closing date of the trust specified within the PSA of this securitization
but in no event more than 90 days from the closing date of the trust
pursuant to section 2.02(a) of the PSA. The absence of these endorsements
on this promissory note is not only very compelling proof of lack of note
holder status, but also proof of Plaintiffs fraud in the production of the
Assignment of Mortgage (Exhibit E) which by the terms of the trusts own
governing document (PSA) cannot and does not legally exist.

Under either the terms of the trust, the contracts between the parties,
or UCC 9 in the case at Bar, there are unmet requirements for the chain of
title by the foreclosing entity to be qualified as a PETE (person entitled to
enforce). In other words, single endorsements in blank, and claiming that
11 The Trusts Pooling and Servicing Agreement is a Public Document available here
http://www.secinfo.com/dRSm6.v8h.d.htm

any party in possession of a note, can enforce a note, even a thief, does not
work.
The evidence in the collateral file shows an utter and complete failure
of the parties to this alleged securitization to actually convey this alleged
promissory note to this Trust as was articulated by the Defendant in each
and every previous pleading. The plaintiff Trust has offered no proof of
ownership and the collateral file proffered by the Plaintiff through Discovery
clearly demonstrates that this loan was not securitized nor was it ever
transferred to this Trust.
The Court should also be aware that Sections 2.07 d., e., h., 3.01 c.,
3.17 (h), 5.02, c, 8.11 of the PSA are all specific to the case at bar which set
forth further explicit restrictions on the powers of the Trustee, Depositor
and the Servicer of the trust and which prohibits the Trustee, Depositor
and the Servicer from taking any action which would jeopardize the REMIC
status of the Trust. The production of the post dated, forged and fabricated
Assignment of Mortgage is itself a prohibited action. These types of
limitations are common and are present in this or a similar form in every
pooling and servicing agreement which seeks to create a securitized trust
that can claim the tax benefits of REMIC status under the US Tax Code.
Any attempt to accept a transfer of this alleged Promissory note after
the January 26, 2006, 90 day closing date of the trust would have violated
both SEC code 424 & 1122 and the REMIC provisions of the IRS tax code 26
USC 860 A thru F -for a number of reasons.
a. First, the alleged loan is in default at this time. Therefore the
alleged loan cannot be a qualified mortgage loan under the IRS
tax code because a qualified mortgage loan is a performing
mortgage loan.

b. Second, an attempted transfer to the trust is now at a point in

time after the closing day of the Trust and after the certificates
were issued, in effect, the Plaintiff would be claiming to have
transferred an asset to a trust that had by its own terms been
closed for more than 2 years at the time the alleged transfer took
place.
c. Third, the alleged promissory note was never endorsed to the
trust by the depositor and as such is devoid of the required chain of
endorsements required within the PSA and which any reasonable
market participant would expect to be present for the purposes of
establishing the series of true sales set forth in the PSA to establish
a whole and complete chain of title of the promissory note for the
purposes of bankruptcy remoteness.
d. Fourth, The claim that the alleged note has been transferred to
the Trust when it is endorsed in blank simply flies in the face of the
mandatory terms of the PSA and is an extreme deviation from the
industry standards, customs and practices which prevailed at all
times material to this transaction and which prevail today.
e. Fifth, any transfer allowed to be accepted into the trust past the
trusts own cut-off date of deposits invokes the rather draconian
IRS mandate of taxing the REMIC trusts assets not at the favorable
rate of 0% that they now enjoy, but at the rate of 100% of the value
of their assets causing, massive financial losses to the Certificate
Holder Investors.
Equally, by allowing a Deposit into the trust after the trusts closing
date as Plaintiffs Assignment of Mortgage alleges, Plaintiff Wells Fargo
Bank as Trustee again violates the plain language found within the PSA at
section 8.11 titled Tax Matters section (j) para. 6 which reads in part;

Neither the Servicer nor Trustee shall (i) permit the creation of any interests in any Trust
REMIC other than the regular and residual interests set forth in the Preliminary Statement,
or (iii) otherwise knowingly or intentionally take any action, cause the Trust Fund to
take any action or fail to take (or fail to cause to be taken)any action reasonably within its
control and the scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (A) endanger the status of any
Trust REMIC as a REMIC or (B) result in the imposition of a tax upon any Trust REMIC or
the Trust Fund (including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a Trust REMIC set forth in
Section 860G(d) of the Code, or the tax on "net income from foreclosure property") unless the
Trustee receives an Opinion of Counsel (at the expense of the party seeking to take such
action or, if such party fails to pay such expense, and the Trustee determines that taking such
action is in the best interest of the Trust Fund and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund or any Trust REMIC created hereunder,
endanger such status or, unless the Trustee determines in its sole discretion to indemnify the
Trust Fund against such tax, result in the imposition of such a tax).

To Summarize, (The closing date of this trust was January 26, 2006.
The creation date of Plaintiffs Assignment of Mortgage is March 7, 2008
or 25+ Months past the trusts closing date) and as such is in violation of
the trusts own controlling document, the Pooling and Servicing Agreement
(PSA), I.R.C. regulations and the trusts controlling law, N.Y. E.P.T.L.
Plaintiffs and Plaintiffs counsel clearly show scienter by having acted in
contravention to the trust by;
1. creating or manufacturing, (forgery with intent to defraud)
2. attempting the use of (distribution) and (intent to fraud)
3. actually submitting (selling) false, forged and fraudulent
documents within this very Court of Law and Equity, evidenced
not only by their late creation date as it concerns legal standing
to invoke the jurisdiction of the Court, but also in contravention
of IRS REMIC Law as explained above and again within the PSA
at Section 8.11 Tax Matters (g) which reads;

(g) not knowingly or intentionally take any action or omit to

take any action that would cause the termination of the REMIC
status of any Trust REMIC created hereunder;
4. Making false statements to the Court

One can only give/assign and/or transfer what one has to give/assign
and/or transfer. Only the legitimate rights of the transferor can be
transferred to the transferee.
There is no trust if the trust fails to acquire the property. Kermani v.
Liberty Mut. Ins. Co., 4 A.D. 2d 603 (N.Y. App. Div. sa Depart. 1957).
In so doing the above, in violation of the law, codes, rules &
regulations articulated above, Plaintiff also acted in violation of the Fair
Debt Collection Practices Act. The allegations above are re-alleged and
incorporated herein by reference.