In Re Peter Harry Koufos

Case 11-01185 Doc 1 Filed 06/06/11 Entered 06/06/11 15:04:14 Desc Main
Document Page 1 of 54
FORM 104 (10/06)
ADVERSARY PROCEEDING NUMBER

(Court Use Only)
U.S. Bank, N.A., as Trustee on Behalf of the Holders of the CSFB Mortgage Pass-Through
Certificates, Series 2005-CFl
Peter H. Koufos Select Portfolio Services
Lender Processing Services
Lender Processing Services, Delimit Solutions
New Century Mortgage Corporation, and Ablitt & Scofield, P.C.
(Firm Name, Address, and Telephone No.) (If Known)

Glenn F. Russell, Jr.
38 Rock Street, Suite 12
Fall River, MA 02720
PARTY (Check One Box Only) PARTY (Check One Box Only)
[&]Debtor D U.S. Trustee/Bankruptcy Admin 0Debtor D U.S. Trustee/Bankruptcy Admin
Dcreditor D Other Dcreditor [&] Other
0Trustee DTrustee
CAUSE OF ACTION (WRITE A BRIEF STATEMENT OF CAUSE OF ACTION, INCLUDING ALL U.S. STATUTES INVOLVED)
!!-Recovery of money/property - §542 turnover of property

D 61-Dischargeability- §523(a)(5), domestic support
12-Recovery of money/property- §547 preference 0 68-Dischargeability- §523(a)(6), willful and malicious injury
13-Recovery of money/property- §548 fraudulent transfer D 63-Dischargeability- §523(a)(8), student loan
14-Recovery of money/property- other D 64-Dischargeability- §523(a)(15), divorce or separation obligation (other
than domestic support)
7001(2)- Validity, Priority or Extent of Lien
21-Validity, priority or extent oflien or other interest in property
D 65-Dischargeability- other
7001(7) -Injunctive Relief
7001(3)- Approval of Sale of Property
71- Injunctive relief- reinstatement of stay
31-Approval of sale of property of estate and of a co-owner- §363(h)
72-Injunctive relief- other
7001(4)- Objection/Revocation of Discharge
7001(8) Subordination of Claim or Interest
41-0bjection I revocation of discharge - §727(c),( d),(e)
81-Subordination of claim or interest
7001(5) -Revocation of Confirmation 7001(9) Declaratory Judgment
91-Declaratory judgment
7001 (6) - Discharges bility 7001(10) Determination of Removed Action
66-Dischargeability- §523(a)(1),(14),(14A) priority tax claims 01-Determination of removed claim or cause
62-Dischargeability- §523(a)(2), false pretenses, false representation,

actual fraud D SS-SIPA Case- 15 U.S.C. §§78aaa et.seq.
67-Dischargeability- §523(a)(4), fraud as fiduciary, embezzlement, larceny
(continued next column)
liJ 02-0ther (e.g. other actions that would have been brought in state court if
Check if this case involves a substantive issue of state law D Check if this is asserted to be a class action under FRCP 23
Check if a jury trial is demanded in complaint

Relief Sought
FORM 104 (10/06), Page 2
QANKRUPl'C'f C:ASE lN WHICH TH(S ADVERSARY PRoCEEDiNG ARISU

' '' ' - . ' ' ' . ' . ' .,. /. ,,,, .. ' "'" ! . . . '~ . .
NAME OF DEBTOR
Koufos, Peter, H.
DISTRICT IN WHICH CASE IS PENDING DIVISIONAL OFFICE

Massachusetts Eastern
PLAINTIFF DEFENDANT
ISTRICT IN WHICH ADVERSARY IS PENDING DIVISIONAL OFFICE
PRINT NAME OF ATTORNEY (OR PLAINTIFF)

June6,2011 Glenn F. Russell, Jr.
INSTRUCTIONS
The filing of a bankruptcy case creates an "estate" under the jurisdiction of the bankruptcy court which consists of
all of the property of the debtor, wherever that property is located. Because the bankruptcy estate is so extensive and
the jurisdiction of the court so broad, there may be lawsuits over the property or property rights of the estate. There also
may be lawsuits concerning the debtor's discharge. If such a lawsuit is filed in a bankruptcy court, it is called an adversary
proceeding.
A party filing an adversary proceeding must also complete and file Form 104, the Adversary Proceeding Cover
Sheet, if it is required by the court. In some courts, the cover sheet is not required when the adversary proceeding
is filed electronically through the court's Case Management/Electronic Case Files (CMIECF) system. (CMIECF captures
the information on Form 104 as part of the filing process.) When completed, the cover sheet summarizes basic
information on the adversary proceeding. The clerk of court needs the information to process the adversary proceeding
and prepare required statistical reports on court activity.
The cover sheet and the information contained on it do not replace or supplement the filing and service of
pleadings or other papers as required by law, the Bankruptcy Rules, or the local rules of court. The cover sheet, which is
largely self-explanatory, must be completed by the plaintiffs attorney (or by the plaintiff if the plaintiff is not represented
by an attorney). A separate cover sheet must be submitted to the clerk for each complaint filed.
Plaintiffs and Defendants. Give the names of the plaintiffs and the defendants exactly as they appear on the complaint.
Attorneys. Give the names and addresses of the attorneys, if known.
Party. Check the most appropriate box in the first column for the plaintiffs and in the second column for the
defendants.
Demand. Enter the dollar amount being demanded in the complaint.
Signature. This cover sheet must be signed by the attorney of record in the box on the second page of the form. If the
plaintiff is represented by a law firm, a member of the firm must sign. If the plaintiff is pro se, that is, not represented by
an attorney, the plaintiff must sign.
UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF MASSACHUSETTS
___________________________________
)
In Re: )
)
PETER HARRY KOUFOS )
)
Debtor ) CHAPTER 13
) No. 10-23579 - JNF
________________________ )
)
PETER HARRY KOUFOS )
)
Plaintiff )
v. )
)
U.S. BANK, N.A., AS TRUSTEE ON )
BEHALF OF THE HOLDERS OF THE CSFB )
MORTGAGE PASS-THROUGH CERTIFICATES,)
SERIES 2005-CF1, ) ADVERSARY PROCEEDING
SELECT PORTFOLIO SERVICING, )
LENDER PROCESSING SERVICES, )
LENDER PROCESSING SERVICES )
DEFAULT SOLUTIONS, )
NEW CENTURY MORTGAGE CORPORATION, )
ABLITT & SCOFIELD, P.C. )
)
Defendants )
___________________________________)
COMPLAINT
INTRODUCTION
1. Plaintiff brings this action to formally Object to the
Proof of Claim submitted by U.S. Bank, N.A., as Trustee on
Behalf of the holders of the CSFB Mortgage Pass-Through
Certificates Series 2005-CF1 (―the Trust‖).
2. Plaintiff bases his Objection in part upon the Trust‘s

lack of standing as a real party in interest to enforce the
Plaintiff‘s promissory note, which Defendant U.S. Bank has
made a proffer in its proof of claim, of a purported copy of
a negotiable instrument made payable specifically to New
Century Mortgage Corporation,
3. Plaintiff also bases his objection upon the Defendants
proffer of a purported copy of an Allonge to the Plaintiff‘s
1
promissory note executed specifically to the trust, on the

grounds that, as it was proffered some 2 months after its
original proof of claim is indicative of the fact that this
purported Allonge is not ―firmly affixed‖ to the Debtor‘s
original promissory note, and thus legally deficient and
void under G.L. C. 106 §3-204(a).
4. Plaintiff additionally bases his Objection in part upon

the Trust‘s complete lack of standing as a real party in
interest to enforce the Plaintiff‘s security instrument,
which Defendant U.S. Bank has proffered in its proof of
claim, a copy of Plaintiff‘s mortgage contract, stating NOT
A TRUE COPY, entered into by Plaintiff with New Century
Mortgage Corporation, now claimed to be held by way of
―assignment‖.
5. Plaintiff further bases his Objection in part upon the

Defendant(s) complete lack of standing as a real party in
interest to enforce the Plaintiff‘s security instrument,
which states that New Century made a direct assignment of
Plaintiff‘s mortgage to the Trust on April 09, 2009. New
Century Mortgage Corporation had filed for Bankruptcy
protection under Chapter 11 of the United States Bankruptcy
Code in April of 2007.
6. Further, the evidence will show that New Century

divested all of its Mortgage Assets on June 29, 2007, as a
DIP, and therefore the purported April 09, 2009 ―assignment‖
to the Defendant trust is a legal impossibility.
7. Plaintiff seeks a determination from this court that

the Trust and/or the named and unnamed Defendant(s) have no
colorable right to claim standing to the Plaintiff‘s note,
or the Plaintiff‘s mortgage as a real party in interest.
8. Necessarily, an examination of the sufficiency of the

the Trust‘s standing to enforce the Plaintiff‘s promissory
note and mortgage involves two completely distinct areas of
the law.
9. The Plaintiff‘s promissory note is governed by the

Uniform Commercial Code, which is codified in Massachusetts
under G.L. c. 106.
10. The Plaintiff‘s mortgage is governed by traditional

contract law, as well as the Massachusetts statutes
governing the alienability of land, as Massachusetts is a
―title-theory‖ jurisdiction.
11. Plaintiff additionally seeks redress for Defendant(s)

actions with regards to the solicitation, sale, and wrongful
collection of a legally enforceable debt, as well as the
accompanying threats to enforce a non-exstent right to the
2
Plaintiff‘s mortgage by threatening ―pay or else‖.
12. The Plaintiff further seeks redress from this court for
the willfully deceptive actions undertaken by the
Defendant(s) to deceive this court, by creating the
appearance that they have a colorable claim of standing to
enforce the power of sale in the Plaintiff‘s mortgage as
security for the underlying debt obligation, as a real party
in interest.
PARTIES AND JURIDICTION
13. Plaintiff Peter H. Koufos (―Plaintiff‖) is the Debtor

in pending Chapter 13 Bankruptcy Case No. 10-23579, who
resides at 19 Skyline Drive, Medway, MA 02053 (―the
Property‖).
14. Defendant, U.S. Bank, N.A., as Trustee on Behalf of the

holders of the CSFB Mortgage Pass-Through Certificates
Series 2005-CF1, who has a registered agent located at One
Federal Street, 3rd Fl. Boston, MA 02110.
15. The Defendant, Select [Portfolio Servicing, is a

Mortgage Servicing Company, and successor in interest to
Fairbanks Captial, with a business mailing address of PO Box
65250, Salt Lake City, UT 84165
16. The Defendant New Century Mortgage Company, (―New

Century‖) was the originating lender which purportedly is
the payee on the Plaintiff‘s promissory note, which is also
purportedly secured by the mortgage given to New Century,
who has a principal address of 18400 Von Karman, Avenue,
Irvine CA 92612
17. The Defendant, Lender Processing Services, Inc.

(―LPS‖). LPS is a publicly traded corporation that provides
mortgage services to various parties in the mortgage
industry. LPS has its principal place of business at 601
Riverside Avenue Jacksonville, Florida 32204. LPS does
business by agent or employee in the Commonwealth and
specifically in Norfolk County. This Defendant may be served
by delivering service of process to Jeffery S. Carbiener,
President and CEO, at the address of this Defendant listed
above.
18. The Defendant LPS Default Solutions. This party

is a wholly owned subsidiary of LPS. LPS Default Solutions
has its principal place of business at 601 Riverside Avenue
Jacksonville, Florida 32204. LPS Default Solutions provides
management of mortgage loans as a subservicer to various
national mortgage servicers when a consumer' s loan reaches
a predetermined state of default under the contracts between
3
LPS Default Solutions and its clients (the mortgage

servicers) as will be more fully set out herein. LPS
Default Solutions may be served by serving process upon
Jeffery S. Carbiener, President and CEO, at the address of
this Defendant listed above. LPS Default Solutions does
business by agent or employee in the Commonwealth and
specifically in Norfolk County. This party will be referred
to in the balance of this pleading as "LPS Default".
19. The Defendant, Ablitt Scofield, P.C., has a principal

business mailing address of 304 Cambridge Road, Woburn, MA
01801.
20. The relief sought by the complaint generally affects

the debtor creditor relationship and therefore is a core
proceeding within the meaning of 28 U.S.C. §157(b)(2), and
to the extent that this proceeding involves any non-core
matters, the Plaintiff hereby consents to the entry of final
orders by the Bankruptcy Judge.
21. An Adversary Proceeding is also required by Fed. R.

Bankr. P.7001, because the Debtor is seeking, inter alia to
recover monetary damages, as well as to object to the proof
of claim submitted by the Trust or any other named, or
unnamed, Defendant.
FACTS
History of the Loan Transaction and Background
22. On January 28, 2005, the Plaintiff undertook a mortgage

refinancing on the Property, by executing a promissory note
made specifically payable (as ―order paper‖) to the Lender,
New Century Mortgage Corporation. (―New Century‖).
23. On January 28, 2005, the Plaintiff also entered into,
and executed, a separate mortgage contract with New Century,
pledging the Property as security for the underlying
promissory note made payable to New Century.
24. On February 02, 2005, the Plaintiff‘s mortgage was then

recorded with the Norfolk Registry of Deeds at Book 22055,
Page 495.
25. Due to a downturn in the economy, Plaintiff‘s income

declined during 2008, and into 2009.
26. On January 05, 2008, Select Portfolio Servicing (―SPS‖)

initiated foreclosure proceedings by filing an action
through its attorney Ablitt & Scofield, P.C. (―Ablitt‖),
under the Servicemembers Civil Relief Act in the Land Court,
4
1
under case number 08 MISC 370828 .
27. Plaintiff diligently attempted workouts from this point

forward, entering into numerous ―mortgage modifications‖,
all of which ―conveniently‖ for SPS, never worked out.
28. SPS, began threatening the Plaintiff that a foreclosure

would occur, if the Plaintiff did not bring his account
current, then stated that Plaintiff had to pay $24,000.00 in
one lump sum to bring the account ―current‖, which2 would
then remove him from being in ―foreclosure status‖ .
29. Plaintiff repeatedly tried to comply with SPS‘ demands

to provide the requested documentation for the
―modification‖ process, however, and invariably, there was
always a response from SPS that Plaintiff ―failed to provide
the requested information‖. These statements were made
despite the Plaintiff supplying every document requested.
30. In a further good-faith effort to comply with the above

stated SPS demand Plaintiff thereafter proffered the
requested amount of $24,000.00, to effectuate a workout with
the Trust, through SPS.
31. Plaintiff attempted to send the required payment by

Western Union, who limited the amount of money that could be
wired per transaction.
32. SPS, without ever recognizing that the payments sent

serially by Plaintiff would total the amount requested, sent
correspondence for each installment sent that the amount
sent was deficient, and therefore would be returned to the
Plaintiff.3
33. SPS has previously been found to have not applied the
borrowers payments to principal and interest due and owning
on a purported obligation, and in fact entered into a
Modified Stipulated Final Judgment and Order ("Modified
Order") by this Court, without trial or adjudication of any
issue of fact or law4.
34. In fact, under information and belief, SPS never

intended to work out a payment arrangement on the
Plaintiff‘s loan, as SPS, and the enterprise stood to
receive a much greater financial windfall through proceeds
received from the foreclosure auction of the Plaintiff‘s
home.
1
See Exhibit A
2
See Exhibit B
3
Please see Exhibit B
4
See Exhibit B-1-A
5
35. SPS and the Enterprise have no ―skin in the game‖, as

any monies that purportedly funded the Plaintiff‘s mortgage
loan were purportedly borne from Investors, not New Century,
SPS, or the enterprise.
36. SPS maintains that it was collecting payments on behalf

of the Defendant trust, long before the purported April 9,
2009 assignment to the Defendant trust.
37. Plaintiff respectfully queries this court as to exactly

where his payments have been credited, were they sent to the
New Century Bankruptcy Estate? Or to the Trust prior to it
ever having the purported right to do so?
38. Under information and belief, SPS and the enterprise

seek to create the appearance of a right to enforce non-
existent standing rights to the Plaintiff‘s loan.
39. In Defendant(s) proof of claim, they proffer a
purported Assignment of the Plaintiff‘s Mortgage,
purportedly received directly from New Century Mortgage
Corporation on April 09, 2009, a point in time some two (2)
years after it filed for protection for bankruptcy, and also
at a point in time almost two (2) years after it divested
itself of all Mortgage Assets owned as a ―DIP‖.
40. As part of the Plaintiff rescission, he sent

correspondence to New Century, stating that he had exercised
his right to rescind5.
41. On January 14, 2010, New Century responded by

correspondence, stating that: ―Our records show that the
above-referenced loan was sold and service released to
Select Portfolio Servicing on 7-13-05.‖6
Article 3 of the U.C.C., codified in Massachusetts G.L. c. 106

42. In Defendants proof of claim, on March 22, 2011, they
proffered a purported copy of the Plaintiff‘s promissory
note made payable specifically to New Century Mortgage
Corporation.
43. G.L. c. 106 recites only one exception for not

proffering the Debtor‘s original note, which can be located
at G.L. c.106 §3-309. None of the Defendant(s) has claimed
this exception, and Plaintiff states that under G.L. c.106
§3-309(b) he is not adequately protected from others seeking
5
See Exhibit C
6
See Exhibit C-1-A
6
to enforce the same instrument
44. Under information and belief, even this attempt to

place a fraud upon this court missed its mark, as a direct
assignment from New Century to the Trust on April 09, 2009,
violates its terms.
45. In recent months, substantial evidence has come to

light that Affidavits, as well as other documentary
―evidence‖, such as the purported Allonge and purported
―Assignment‖ of the Debtor‘s mortgage here, submitted in
Judicial proceedings by the Defendant(s) in other matters
have revealed the complete lack of veracity contained in
these proffers, with regards to what they were being offered
for (such as swearing under oath that the Affiant has seen
the original note).
46. Additionally, it has also come to light that these same
individuals submitting Affidavits on behalf of the same
Defendants named in this complaint, lack any personal
knowledge of the documents attested to, which directly go to
the truth of the matter asserted, which of course is
hearsay.
47. Only at the Motion to Lift Stay hearing did the

Defendant(s) mysteriously, and suddenly, proffer a purported
copy of an undated Allonge to the Plaintiff‘s promissory
note.
48. Again the necessity of the original is required, as an

Allonge must be ―firmly affixed‖ to the original negotiable
instrument, (See lines 162-168 below, and also please
reference, In re Lillia Shapoval Docket 10-30175 (2010))
New Century Mortgage Corporation Bankruptcy

49. It is incontrovertible by Defendants that New Century
Mortgage Corporation filed for Bankruptcy protection on
April 2, 2007.
50. It is also indisputable that 100% of New Century

Mortgage Corporation‘s business entailed ―wholesale
origination‖ of mortgage loans, which supplied mortgages to
the secondary ―securitized mortgage market, in which New
Century‘s ―ownership‖ interest‖ was divested approximately
three (3) months after the origination of the borrowers
loan.
51. It is further indisputable that the only mortgage loans

that New Century purportedly still had any ―ownership
interest‖ in (as opposed to Servicing interest) as of the
date of the filing for bankruptcy in April of 2007, were
7
loans identified internally as ―Loans Not Financed Anywhere‖

(―LNFA‖).
52. This court has already opined that New Century Mortgage
Corporation was a Debtor in Possession (―DIP‖) and can take
Judicial Notice that the DIP could have carried on with its
affairs after the inception of the filing of its bankruptcy
petition. Respectfully, the only aspect of its affairs that
New Century was still carrying on with as a DIP, after the
inception of its bankruptcy, was the servicing aspect of its
business, as it no longer held any mortgage loans outside of
the LNFA loans.
53. Indeed, in the July 2, 2008 Opinion on Confirmation

issued by the Honorable Judge Kevin J. Carey, he discusses
the fact that all of the mortgage assets held by the debtor
(New Century Mortgage Corporation, et. al.) at the time of
bankruptcy were limited to the LNFA loans, and that a
―bidding procedures‖ protocol had been established, in order
for the DIP to divest its interests in all mortgage assets
held by the debtor7.
54. Thus DIP status clearly is not availing on New Century

Mortgage Corporation, in order for the Defendant trust to
satisfy its burden of standing here.
55. In the Debtor‘s (New Century, et. al.) April 2, 2007

Asset Purchase Agreement drafted between New Century and
Greenwich Capital Financial Products, Inc., at page 4,
defines the only mortgage loan assets held by New Century,
as LNFA Mortgage Loans.8
56. Indeed, in the New Century Mortgage Corporation

Bankruptcy hearing on April 3, 2007, at page 57 of the
hearing transcript, the Attorney representing New Century
Mortgage Corporation states on the record that the ―mortgage
assets‖ that New Century Mortgage Corporation had retained
with regards to mortgage loans were grouped into categories
Loans Not Financed Anywhere (LNFA) and ―Residuals‖, which
entailed cash received by New Century from the Securitized
Trust Pools, as proceeds from the mortgage backed securities
sales.9 The Plaintiff‘s loan does not fit either of these
criteria.
57. At Article 8, of the Asset Purchase Agreement described

at line 50 above,, at page 17, describes the fact that the
LNFA loans were sold on a ―servicing released‖ basis,
meaning that the purchaser of the ―ownership interests‖ in
the LNFA loans, involved a separate transaction from the
7
See Exhibit D
8
See Exhibit E
9
See Exhibit F
8
sale of New Century‘s servicing platform business asset.

Article 8 further recites the fact that up and until the
―Servicing Transfer date‖, New10Century would remain the
―servicer‖ for the LNFA loans.
58. On April 2, 2007, New Century submitted an Emergency

Motion of Debtors and Debtors in Possession for Interim
Orders Pursuant to U.S.C. §§ 105, 362 and 364, and Federal
Rules of Bankruptcy Procedure 2002, 4001,11and 9014(A)
Approving Debtor In Possession Financing.
59. At Page 6, Line 16 of the above referenced Emergency

Motion submitted by New Century, states as follows:
―The need for stability is particularly critical since

the Debtors largely operate a servicing business‖
60. At page 7, Line 18 of the above referenced Emergency
―This Motion does not seek the approval of a

large DIP loan, certainly not in comparison
to the billions of dollars in financing the
Debtors utilized [prepetition. The DIP loan
proposed herein is a scaled down facility
designed to allow the Debtors to quickly
auction their business and to maintain these
operations in a stable condition pending the
completion of these sales‖.
61. At page 8, Line 20, of the above referenced Emergency

―This is not a defensive DIP loan proposed by

a group of existing pre-petition lenders.
Rather, the proposed DIP loan is a stand-
alone facility provided by one lender, CIT,
as an independent business matter, and by one
other member of the DIP lending syndicate,
Greenwich, as an independent loan and in
order to help finance the Debtors as an
ongoing concerns so that Greenwich can make a
bid for certain of the Debtors‘ assets‖.

10
See Exhibit E
11
See Exhibit G
9
―Tranche A is a revolving loan facility with

a borrowing base keyed to a variety of
Debtors‘ unencumbered assets—(i) a pool of
mortgage loans with a face principal amount
of approximately $173 Million, (ii) various
residual interests in mortgage loan
securitization trusts (i.e. mortgage backed
securities), (iii) state and Federal Incom
Tax refunds that Debtors are seeking in an
amount of $113 Million, (iv) a limited
partnership interest in Carrington Investment
Partners (US), LP (―Carrington‖), and (iv)
the Debtors‘ rights to service mortgage loans
for a variety of securitization trusts and
third party wholesale loans purchased on
mortgage loans originated by Debtors and
subsequently sold to these purchasers‖.
Motion submitted by New Century, describes very clearly that
the Tranche B piece, deals solely with DIP financing to
solely maintain the New Century servicing business as a DIP.
64. On February 2, 2008, New Century submitted an Amended

Disclosure Statement for the Joint Liquidation of the
Debtors and The Official Committee of Unsecured Creditors.12
65. On document page 29, of the above referenced Amended

Disclosure Statement submitted by New Century, at Section
III(C)(6) Asset Sales, discusses the events that transpired,
with regards to New Century‘s divestment of its ―owned‖
assets (as opposed to its servicing assets).
66. On document page 29, at Subsection (a), of Section

III(C)(6), describes ―The First Sale of LNFA and Residuals‖.
This section very clearly describes that there were
approximately only 2,000 residential mortgage loans ―owned‖
by the Debtors.
―These loans, either because of quality or
timing, were not subsequently the subject of
a repurchase transaction and are generally
referred to as ―LNFA‖ or ―loans not financed
anywhere‖. Other loans in this pool were
originated by the Debtors but were never
financed under a repurchase agreement or
disposed of in a loan sale in the secondary
market. The Mortgage Asset Bid Procedures
Motion Proposed that Greenwich‘ Agreement to
purchase the Mortgage Assets for $50 Million
12
See Exhibit H
10
would serve as the stalking horse bid‖.
67. On document page 30, at Subsection (a), of Section

III(C)(6), describes ―The First Sale of LNFA and Residuals‖
states the following:
―On April 12, 2007, the Bankruptcy Court

entered an Order approving the Mortgage
Assets Bid Procedures, including a breakup
fee of $945,000 to be paid to Greenwich in
the event that Greenwich was not the
successful bidder for the mortgage assets
[Docket No. 226]. The auction for the
Mortgage Assets was concluded on May 2, 2007.
After nine rounds of bidding, the winning
bidder for the Mortgage Assets was Ellington
Capital Management Group, L.L.C. on behalf of
its clients‘ funds (―Ellington‖). NCFC, and
NC Asset holding (together the ―Mortgage
Asset Sellers‖), on one hand and Ellington,
on the other hand, entered into an Asset
Purchase Agreement (―the Ellington
Agreement‖) dated as of May 2, 2007 and
approved by the Bankruptcy Court by Order
dated May 7, 2007 (the Mortgage Asset Sale
Order‖), pursuant to which Ellington agreed
to purchase the Mortgage Assets for
approximately $58.0 Million [Docket No. 566]‖
68. Further, the Court stated at document

page 30:
―On May 18, 2007, the sale of the Mortgage

Assets to Ellington Closed. After giving
effect to certain closing adjustments, the
net purchase price paid by Ellington was
approximately $57.9 Million, including
approximately $2.6 Million deposited by
Ellington into an escrow account to indemnify
Ellington for claims made under the Ellington
Agreement, and payment of the Greenwich
break-up fee.‖
69. Further document page 30 recites that on June 25, 2007,

the Mortgage Asset Sellers and Ellington entered into a
Supplement No. 1 to the original Ellington agreement
(―Supplement 1), pursuant to which Ellington agreed to
purchase certain additional mortgage loans originated by the
Mortgage Asset Sellers (―the Additional Mortgage Loans‖) for
approximately $4.4 Million. The Bankruptcy Court entered an
order approving this Additional Mortgage Loan Sale on June
27, 2007 [Docket No. 1715]. The closing of this sale
occurred on June 29, 2007.
11
70. On document page 34, of the above document, at

subsection (f.) ―Sale of Additional LNFA (Including Ohio
Loans)‖, describes the sale of the remaining 46 Mortgage
Loan Assets held by New Century, that were subject to
―complications related to the State of Ohio, or because work
was required to clear title to the loans.‖ 41 of these
remaining 46 loans were purchased by GRP Financial Services
Corp. (―GRP‖), and the purchase was approved by the
Bankruptcy Court on January 9, 2008, [Docket Nos. 4361,
4556].
71. Therefore, based upon the New Century Bankruptcy

docket, ALL of the Mortgage Assets held by the DIP were sold
and completely divested as of January 9, 2008. And in fact,
save the 46 ―Ohio loans‖, the New Century Estate was
completely divested of all other loans as of June 29, 2007.
72. Therefore, the Defendant(s) legal position with regards

to obtaining a legally valid ―assignment‖ of the Debtor‘s
note and mortgage on April 9, 2009 directly from New Century
Mortgage Corporation is legally impossible, and under
information and belief was willfully submitted by the
enterprise in order to deceive this court as to the
Defendant(s) trust‘s true status with regards to is standing
as a real party in interest to be able enforce the Debtor‘s
note and its security interest.
73. One of the reasons for this situation to have occurred

is that it is the common practice of entities such as
involved here, to rely on the Servicer (SPS and/or LPS) to
direct the law firm to create and draw up legal documents to
supply ―missing‖ intermediary assignments.
74. In U.S. Bank v. Ibanez 456 Mass. 637 (2011), Walter

Porr, of the very same Ablitt law firm here, states on the
record, during a hearing conducted on February 11, 2009, at
page 495 of the transcript13.
―Typically the foreclosure referral will give

us a -foreclosed in the name of- information,
okay, now, again, in some of my affidavits I
provided the Court with some of that
documentation. As I am sure the Court
appreciates _ in the brave new world of
securitized mortgages' and securitized,
you know, mortgage lending. Invariably, 99
percent of these mortgages leave the hands of
the originator within days if not hours of
having been originated, and wind their way
into the hands of some securitized trust some
13
See Exhibit I, at transcript page 495 (top of page)
12
place. The paperwork lags behind that process

to some extent. And then weeks, months, years
later when the mortgage goes into
foreclosure, the securitized industry has
been sitting on their assignments. They have
their original collateral file with their
endorsed notes and all that. They direct the
loan servicer, of course, to foreclose under
the various, you know, master servicing
agreements and those relationships, and _ we
get the referral. The loan servicer already
knows who the trustee - - what particular
trust owns this note and they tell us that in
the referral and tell us to foreclose in that
name.‖
75. Attorney Porr continues, by explaining that his firm

(Ablitt) creates and draws up the assignment of mortgage:
―Well, what happens is we prepare the

assignment. We get the referral and we do
that initial title and that takes a week or
10 days to come back in. And we do actually.
check that, and we will see invariably that
low and behold ABC Mortgage Company
originated this mortgage we're now being
instructed by the servicer that [it] goes in
the name of this particular trust, we will
prepare the assignment from ABC to the
trust‖.
76. Further on page 497 of the hearing transcript:
―NOW, I will tell you and I think this is

perhaps somewhat obvious that original note,
which typically gets Indorsed in the blank
may or may not have an original assignment
prepared that goes with that note and that
may have passed through three or four hands
on its way to the ultimate assignee. And
invariably we end up preparing the
assignment, we may not know how many
intermediate hands touched it, but ultimately
the servicer has the ability to go back to
the originating mortgagee if, in fact,
there's been no intermediate assignment and
get that assignment.‖
77. The statements of Attorney Porr in this hearing are

quite telling, and in fact indicative of Ablitt‘s business
model, whereby the Ablitt firm (while being incentivized by
LPS) takes these foreclosure referrals from LPS and/or SPS,
and is given direction to blindly follow their lead. In
13
essence, SPS and/or LPS is directing Ablitt in the practice

of law.
78. At line 75, Walter Porr as a representative of Ablitt,

appears to be perfectly content with the fact that a
mortgagor‘s promissory note may have passed through ―three
or four hands, but ultimately the ‗servicer‘ has the ability
to go back to the originating mortgagee if in fact there‘s
been no intermediate assignment, and get that assignment‖.
79. First, the above didn‘t contemplate the originating

―lender‖ going bankrupt, such as the case here with New
Century, and secondly, does not take into account that an
attorney submitting documents to the court swears under the
penalties of Rule 11, that he has fully investigated the
claim, and has reviewed the documents, and based upon such
review, signs the complaint under Rule 11 mandates.
80. Plaintiff states that an old familiar phrase from a
late great baseball player (Yogi Berra), comes to mind here,
same Ablitt law firm, and like Ibanez, it‘s like ―déjà vu
all over again‖.
81. Here, like Ibanez, apparently Ablitt is being directed

to ―create‖ ―assignments‖ or file them under the direction
of SPS and or LPS, including Defendants recently minted
purported and undated ―Allonge‖, without any legal
authorization to do so (New Century is bankrupt, and the
DIP retains not mortgage assets), and only to obfuscate the
fatal deficiencies in the Defendant(s) standing to enforce
the Debtor‘s note and mortgage.
82. Indeed, in the response letter from New Century, to the

Debtor‘s rescission notice, New Century, quite candidly
admits that it’s records show that the Debttor’s loan was
sold and servicing released to SPS on 07-13-05‖ .14
83. Here the evidence appears to indicate that the

―Servicer‖ (SPS) never went back to the ―originating lender‖
to obtain approval (how could it?), as it was legally
impossible for the Defendant(s) here to do so, rather
Defendant(s) turned to their trusty default servicer, LPS
and/or SPS, who directed its attorney (Ablitt) to
conveniently create the documents needed to fill in the
missing ―intermediary assignments‖.
84. The ―New Century purported assignment issue‖ was also

addressed in New Century Mortgage v. Braxton 18 LCR 36
14
Please see Exhibit C-1-A
14
15
(2010)
85. The Braxton case involved an action to reform two

mortgages given to New Century by Shauann N. Braxton and
Kenya D. Nickerson-Braxton. The court found that:
―In April of 2007, New Century TRS Holdings,
Inc., of which the plaintiff (New Century
Mortgage Corporation) is an affiliate or
subsidiary, filed chapter 11 bankruptcy
proceedings. Pursuant to those proceedings,
by order of the Bankruptcy Court, on August
1, 2008, a liquidating trust was created with
Alan M. Jacobs as trustee, and all of New
Century‘s Assets were distributed to the
liquidating trust.‖ Braxton at 38.
86. The Braxton court went on to discuss the

challenge to New Century‘s standing by the
Defendant in that matter:
―On March 31, 2009 New Century executed
and recorded a document purporting to assign
the First Mortgage to Consumer Solutions REO,
with an ‗effective date‘ of June 2, 2007‖
Braxton at 39.
Further, the Braxton court stated:
―All of the recorded assignments out from
New Century took place during the pendency
of the bankruptcy proceedings in Delaware
(which commenced in April of 2007). The
terms of the August 13, 2009 Order of this
court [Land Court] required the plaintiff
(New Century) to show how New Century could
assign the subject mortgages, or maintain
this action, in light of the bankruptcy
proceedings....‖ Braxton at 39.
87. In Braxton, New Century never proffered any of the

court requested indicia to provide an evidentiary foundation
to support under what legal authority it could make an
assignment of any mortgage loan while it was in bankruptcy,
precisely the issue before this court, and this case was
dismissed as against New Century‘s claims.
88. Like Braxton, Defendants here seek to solely rely upon
a fatally defective, and under information and belief
fraudulent drafted and executed, purported assignment of
15
See Exhibit J
15
Plaintiff‘s mortgage, to provide them with a purported

colorable claim of standing as a real party in interest to
be able to enforce the Plaintiff‘s promissory note under
G.L. c. 106, and its security instrument (mortgage) under
Massachusetts conveyancing and real property laws, and G.L.
c. 244 § 14, and G.L. c. 183 § 21.
The Trust is Required To Follow Its Own Terms With Regards To

The Conveyance of The Corpus To The Trust
89. In order for the trust to have standing as a real party

in interest with regards to the enforcement of the purported
secured mortgage debt, it would also have to show that the
Plaintiff‘s note and mortgage made the circuitous route
required by the trust‘s Security and Exchange Registration
documents, the Pooling and Servicing Agreement (―PSA‖), and
its accompanying Prospectus Supplement.
90. This court has seen this precise issue previously in,
In re: Hayes 393 B.R. 259 (Bkrtcy.D.Mass. 2008).
91. The Plaintiff will seek the Defendants ―securitization
documents‖ in discovery
92. The requirements of these registration documents are
not merely contractual agreements between the parties to the
securitization ―contract‖ (the spin in which the financial
industry has created), rather it must always be remembered
that this entity is a Trust, and as such, must follow its
own terms with regards to the conveyance of the corpus,
which can be found in its ―governing instruments‖ (the PSA
and Prospectus Supplement).
93. Failure to convey the corpus (the underlying mortgage

loans) to the trust according to its own terms is a
―prohibited transaction‖, which vitiates the Trust‘s
interest in the Plaintiff‘s loan.
94. Further, under information and belief, the Trust‘s

governing instrument prohibits a conveyance of a defaulted
loan as part of the corpus.
95. On April 09, 2009, the date of the purported

―assignment‖ of the Plaintiff‘s mortgage by the trust, the
Plaintiff‘s loan was already in default.
96. Here, under information and belief, the Plaintiff

Trust‘s governing instrument only authorizes one party to
make the conveyance of the Plaintiff‘s note and mortgage to
the Trust, a specific entity named the ―Depositor‖, not New
Century Mortgage Corporation.
16
97. Indeed, this very court recognized this principal in,

In re Hayes, at page 268, ―[Deutsche Bank] failed to prove
that the mortgage executed by the Debtor and her mother in
favor of Argent Mortgage Company, LLC was ever assigned to
an entity by that name or to Argent Securities Inc., the
Depositor under the PSA‖. Further this court stated, ―Thus,
consistent with the holdings in In re Maisel, 378 B.R. at
22, and In re Parrish, 326 B.R. 708, 719 (Bankr.N.D.Ohio
2005), the Court finds that Deutsche Bank failed to
adequately trace the loan from the original holder, Argent
Mortgage Company, LLC, to it. See also In re Foreclosure
Cases, No. 1:07CV2282, 2007 WL 3232430 (N.D.Ohio Oct.31,
2007). Id at page 268.
98. The Trust‘s governing instruments, under information

and belief, also required that the conveyance of the
Plaintiff‘s note and mortgage take place by a date certain,
the ―Closing Date‖. The necessity of the conveyance of the
corpus to the Trust by this date certain is due to the fact
that the ―Closing Date‖ coincides with the Issuance, or
―Startup date‖ of the securities (bonds or mortgage backed
securities) that are in theory ―backed‖ by the underlying
mortgage loans. Therefore if the corpus has not been
conveyed to the Trust on or prior to the date certain
(Closing Date), the underlying securities would be issued
upon non-existent underlying mortgage assets.
99. Additionally, under information and belief, the Trust‘s

terms, prohibit any such conveyance after the ―Closing Date‖
or ―Startup Date‖, and constitutes a ―prohibited
transaction‖. Although not relevant to the standing issue
presented by Plaintiff, it is interesting to note that the
defalcation of the Trust to comply with the conveyance to
the Trust on or prior to the ―Closing Date‖, also subjects
the Trust to a 100% tax penalty for each loan conveyed to
the Trust subsequent to this date certain under the Real
Estate Mortgage Investment Conduit (REMIC) provisions of the
United States Tax code under §860D.
100. The Closing date, by industry custom, general occurs on

or approximately thereabout, 3 months after origination of
the loan. April 09, 2009, is over four (4) years after the
origination of the Plaintiff‘s loan.
101. The Trust has failed to articulate the succinct legal

evidentiary foundational grounds that provide it the present
right to enforce the Plaintiff‘s promissory note or mortgage
as security therefore, as its very own proffers indicate
that it is legally impossible for the Trust to have received
any ownership interest in the Plaintiff‘s note or mortgage
from New Century Mortgage Corporation on April 9, 2009.
17
Questionable Signatures on The Purported “Assignment” of The

Plaintiff’s Mortgage.
102. The purported ―assignment‖ of the Plaintiff‘s mortgage

proffered by Defendant(s), is further fatally defective in
that the signature of one ―Bill Koch‖ purports to act as
―Document Control Officer‖ under SPS, as ―Attorney In Fact‖
for New Century Mortgage Corporation on April 14, 2009. As
discussed New Century Mortgage Corporation filed for
bankruptcy protection in April 2007.
103. Bill Koch has been identified as a ―robo-signer‖, and

it is interesting to note that the purported ―signature‖ of
this ―individual‖ consists of a single letter ―B‖.
104. Therefore, in addition to the already supremely

questionable nature of this purported legal document as a
purported ―assignment‖ of the Plaintiff‘s mortgage, these
additional serious questions provide evidence of intent by
Defendant(s) to defraud this court.
105. To add insult to injury, the purported signature of the

―notary‖ who ―witnessed‖ Mr. Koch‘s ―one letter signature‖
to this ―assignment‖, one ―Shirley Tuitupou‖, has
significant variations in her notarial executions, and
therefore the Plaintiff questions all of the signatures on
the grounds that this purported ―assignment‖ of the
Plaintiff‘s mortgage appears to be inextricably tainted with
fraud.16
106. Under information and belief, all of the Defendant(s)

above actions were intentionally undertaken with scienter of
their wrongfulness, due to the fact that the securitization
process was an ill devised, and thinly disguised, criminal
enterprise that requires the production of fraudulent
documents to fill in the fatal gaps and defects in the chain
of title to the Plaintiff‘s mortgage and note to create the
appearance of standing to enforce the power of sale contract
under G.L. c. 244 §14 against the Plaintiff.
Lender Processing Services
107. To help facilitate this enterprise, under information

and belief, SPS uses the ―default servicing company‖ Lender
Processing Services (―LPS‖) who is yet another undisclosed
entity directing the attempted expedient wrongful
liquidation of the Plaintiff‘s home.
108. LPS Default has recently come under very close

governmental scrutiny for its actions, and was recently
16
See Exhibit K
18
sanctioned in a Louisiana Bankruptcy proceeding in, In re:

Ron Wilson, LaRhonda Wilson, U.S. Bankruptcy Court for the
Eastern District of Louisiana, case no. 07-11862, for
proffering false affidavits and documents to fill in the
dire gaps in the record of title, in order to foreclose on
the debtors property.17
109. LPS was also recently sanctioned by the United States

Government for its role in the highly questionable tactics
involved with supplying apparently fraudulent documents to
facilitate the expeditious foreclosure of borrowers homes,
under what has become known as the practice of ―robo-
signing‖18.
110. One of the prime reasons for the foreclosure industry

to keep the ―meat grinder‖ fired up, is that in many cases
(as is the case here before this court) the borrower was not
qualified for the loan based upon their income, rather the
loan was made only based upon the liquidation value of the
―collateral‖ (the home).
111. The attorney representing SPS in this matter (Ablitt

Law Offices, P.C. [―Ablitt‖]), is a confirmed LPS Default
―Network Attorney‖, who, under information and belief, takes
direction from LPS as part of the LPS ―desktop‖ and LPS
Default Solutions (LPSDS) Systems and programs, formerly
named FIS Default Solutions.
112. LPS is the subject of class action lawsuits in the

southeast for illegal fee splitting and illegal practice of
law, as these lawsuits make claims related to the fact that
borrowers are charged ―legal fees‖ a portion of which are
then forwarded to LPS
113. Indeed, as evidence that LPS Default Network Attorneys

face the ―wrath‖ of LPS, for failure to failure to maintain
―expediency‖ in the liquidation of borrowers homes, the
Plaintiff offers Exhibits N and O.
114. For the Third Quarter of 2007, in the FIS Default
Solutions (now currently named LPS Default) publication ―The
Summit‖, Ablitt & Charlton (now Ablitt Scofield, P.C.)
received an ―Attorney Performance Recognition‖ award, as a
―top performing firm‖ in Bankruptcy actions.19
115. LPS Default offers ―incentives‖ for its Network

attorneys (Ablitt included) of $20.00 per file, and also
maintains an ―attorney scorecard‖ on Network Attorney
17
See Exhibit L
18
See Exhibit M
19
See Exhibit O at Page 8
19
20
―performance‖ (APR) .
116. For the Third Quarter of 2006 ―The Summit‖ magazine

states at page 9, (Exhibit N), ―Failure to achieve a
passing audit from tis final sampling will result in
consequences up to and including removal from the APR
scorecard system and notification of audit results to
clients‖. Further on page 9-11, ―The Attorney Performance
report (APR) is an important reference tool for firms,
clients, and for Fidelity, and the Quality Assurance team
appreciates your assistance in protecting its integrity. On
the following two pages (10-11), the ―Incentive Winners‖ law
firms are recognized and applauded for their ―efforts‖ to
expeditiously remove homeowners from their residences.
117. In Exhibit O at page 17, and Exhibit N at page 15,

there is a discussion about the ―APR Performance Report‖ ,
and how Network Attorneys, such as Ablitt are ―incentivized‖
to maintain the conveyor belt on the ―meat grinder‖ to keep
the process rolling, ―or else‖.
118. Exhibit N at page 15, also discusses the ―NewTrak

System‖ utilized by LPS, ―When a servicer needs the fees and
costs on a file, a requester opens a fees and costs request
in NewTrak This automatically generates a request on all
active processes on that loan to the vendor assigned to each
process (Foreclosure, Bankruptcy, BPO, Vacancy, etc.)‖.
119. Indeed, in U.S. Bank v. Ibanez 456 Mass. 637 (2011,

Walter Porr, of the very same Ablitt law firm here, states
on the record how the foreclosure process works in
Massachusetts, and quite candidly admits that for law firms
dealing with the prosecution of non-judicial foreclosure
actions in Massachusetts, ―time is money‖.21 Mr. Porr also
makes the candid admission that his firm utilizes the
―NewTrak‖ foreclosure system.
―So what happens is when that referral comes
in through the vendor's communication's
management system. I think ―Vendorscape‖,
―Newtrak‖ ..., I identified a couple of
them in my affidavits, it really kicks off a
very automated process.
120. Therefore, Mr. Porr has made an admission that Ablitt,

is indeed an LPS Network Attorney, and also has admitted
that Ablitt is substantially ―incentivized‖ to keep the
liquidation process moving along smartly, or risk facing the
wrath of being removed from the ―scorecard system‖, thus
missing out on an opportunity to reap a $20.00 per file
20
See Exhibit N at page 11, 15. (APR Incentive Winners).
21
See Exhibit I, at Page 495 of the Transcript.
20
commission, per file, for landing in the top ten firms, as

Ablitt did in 2007, and under information and belief, many
more times than that.
121. With the avalanche of foreclosure filings, it turns the

stomach to ruminate upon the thought of the Ablitt firm
being incentivized (at $20.00 per file) to quickly remove a
homeowner from their residence, while reaping a significant
―commission‖ in addition to the fees it already generates.
122. NewTrak, a very automated process indeed.

interestingly, on page 16 of Exhibit N, appears to be an
internal admission by LPS of it‘s scienter, and in fact
acceptance of, the practice that has recently reared its
ugly head, that America has now colloquially deemed ―robo-
signing‖ documents.
123. Even more curious is the fact that in the Defendant
Trust‘s proof of claim, it states that the Pre-Petition
Arrearages date back to December 8, 2008, at point in time
some five months prior to the purported ―assignment‖ it
received on April 9, 2009. (See Proof of Claim at page 2).
124. The Defendant(s) Servicemembers complaint file

submitted by Defendant(s) indicates that the enterprise
asserted that the Defendant trust was the ―holder‖ of the
Plaintiff‘s mortgage on 01/05/2008, some sixteen (16) months
prior, to it ever receiving a purported ―assignment‖ of the
Plaintiff‘s mortgage on April 19, 200922.
125. Under information and belief, this is exactly why the

enterprise, through either LPS, or Ablitt, at the direction
of either LPS and/or SPS, drafted an ―assignment‖ containing
a fictitious ―effective‖ date, in order to create the
appearance that the Defendant trust held the Plaintiff‘s
mortgage as of the 01/05/2008 filing of its Complaint in the
Land Court, under the Servicemembers Act.
126. Quite clearly Ablitt takes direction from LPS and or
SPS in this matter, based upon the testimony of Walter Porr
in the Motion for default hearing in Ibanez.
127. The Ablitt law firm is no stranger to facing sanctions

in proceedings for blindly ―following‖ the marching orders
given by its Servicer master, (under information and belief,
co-conspirator, and co-RICO enterprise member) such as
currently before this court. See In re Nosek Civil Action
st 23
No. 08-40095-WGY (D.Mass 1 Cir. 2009)
22
See Exhibit A
23
See Exhibit P
21
128. Indeed, Judge Young states the principal applicable to

the case before this very court, ―It is in Ablitt‘s utter
disregard of its own internal files that the actionable
violation of Rule 9011 is to be found. Surely, had the
Ablitt firm reviewed its own files, it would have been on
inquiry notice that more was required than an uncritical
acceptance of Ameriquest‘s statements. Those statements
simply were not ‗objectively reasonable‘, standing alone, in
light of the prior foreclosure proceeding on behalf of Wells
Fargo. Accordingly, the imposition of sanctions against the
Ablitt firm was well within the discretion of the Bankruptcy
Court and will be upheld‖. In re Nosek at page 16
129. ―In the specific circumstances of this case, Ablitt

acted unreasonably in relying on Ameriquest for the factual
claims in its filings. Therefore, it was not an abuse of
discretion for the Bankruptcy Court to sanction Ablitt‖. In
re Nosek at page 19.
130. Evidently the $25,000.00 sanction imposed upon the

Ablitt law firm, by Judge Young, was not a strong enough
message to deter the same future conduct here.
131. How reasonable was it for Ablitt to rely (even if it

really did so) upon the assertion of SPS/LPS to foreclose in
the name of a trust that purportedly received an
―assignment‖ from a bankrupt entity? How reasonable
(especially in light of Judge Boroff‘s recent ruling in, In
re Lillia Shopval), was it for Ablitt to submit a copy of an
untethered purported undated Allonge to the Plaintiff‘s
note?
132. Plaintiff states that in totality, the actions of

Defendant(s) here are not mere ―sloppiness‖ on their part;
rather it is evidence of intentional acts committed as part
of a systemic conspiratorial enterprise, which has committed
predicate acts proximately causing Plaintiff injury under
RICO, that are ongoing.
133. The Plaintiff prays that this court take an extremely

close review of the documents submitted here by
Defendant(s), as well as the intentional predicate acts of
all Defendant(s) in this matter, which, under information
and belief, were all carried out and intentionally conceived
in order to deceive this court in order to expeditiously
liquidate the Plaintiff‘s residence to provide a financial
windfall to the enterprise.
134. The Plaintiff also respectfully requests that this

court send an extremely painful monetary message to the
Defendant(s) and the financial industry, that such actions
as against the Plaintiff here, absolutely will not be
tolerated in this Commonwealth, or any civilized community.
22
SPS Receipt of Plaintiffs Mortgage Payments Not Reflected in

the Defendant’s Proof of Claim
135. The Defendants Proof of Claim fails to reflect payments

made by the Plaintiff, and therefore the Plaintiff
necessarily demands an24 accounting as to where and how his
payments were applied.
136. Equally troubling is the fact that SPS was collecting

mortgage payments from Plaintiff, prior to the date of the
purported ―assignment‖ to the Trust, which was submitted in
Defendant(s) proof of claim.
137. Therefore, even if the Trust did not receive the

purported assignment until April 9, 2009, who was SPS
collecting the Plaintiff‘s mortgage payments for? New
Century, a bankrupt entity? Certainly it was not for the
Trust as this point in time was antecedent to the purported
receipt of the ―assignment‖ from the bankrupt New Century.
138. Under what precise legal theory can SPS claim that it
was legally collecting payments on behalf of New Century
Mortgage Corporation after April 2, 2007, and prior to the
purported April 9, 2009 ―assignment‖, when the New Century‘s
bankruptcy docket conclusively establishes that any payments
purportedly accepted on behalf of New Century by SPS after
April 2, 2007, would be to New Century as a DIP.
139. The New Century bankruptcy docket also conclusively

establishes that the only loans owned by New Century after
the filing of its bankruptcy were the ―LNFA‖ loans, all of
which25 were completely divested from the DIP on June 29,
2007.
140. This leaves the period of time between April 2, 2007,

and April 9, 2009, completely unaccounted for, even if the
purported ―assignment‖ was legally valid.
141. Under information and belief, the Plaintiff believes

that the Plaintiff‘s mortgage payments were being retained
by the enterprise as fictitious ―fees‖ (profits), which were
shared amongst the enterprise, and not applied to the
Plaintiff‘s outstanding loan balance, or reported to the
Investors of the Trust
24
The Plaintiff will send copies of transactional sheets, providing evidence of SPS collection of monies from the
Plaintiff, which do not seem to have been applied to either his outstanding principal balance, or accruing interest.
25
Not counting the 46 Ohio loans, which were divested and sold to GRP Financial Services, Corp. on January 9,
2008
23
142. Plaintiff wishes to state that under information and

belief, that these actions on behalf of the Defendants
(named and unnamed) creates the appearance of serious
malfeasance, that indicate a criminal enterprise, which is
managed and operated as an association in fact enterprise
committing serial predicate acts proximately causing the
Plaintiff, as well as many other members of the Commonwealth
great financial injury.
143. It is Plaintiff‘s counsel‘s experience that Defendant‘s

counsel in these matters such as these, quickly seek to
point to the fact that the borrower undertook an obligation
and is now a ―deadbeat‖ for not paying that obligation he or
she undertook. This has been the successful, ―shift blame as
the best defense to create the appearance of an offense‖
strategy for these type Defendants in order to obfuscate the
esoteric malignancy, and fatal defects associated with
securitized mortgage lending.
144. Plaintiff‘s counsel‘s response to the views expressed

by Defendants counsel in line 142 above is as follows; the
Plaintiff here fully recognizes that he undertook a mortgage
loan from New Century Mortgage Corporation on January 26,
2005, that is of course undisputable.
145. Plaintiff‘s query lies not with the fact that he took a
mortgage loan out from New Century Mortgage Corporation,
rather the Plaintiff‘s succinct challenge here, is that,
while it is true that he had an obligation to New Century
Mortgage Corporation, New Century Mortgage Corporation is
not currently here before this court attempting to bodily
remove him from his residence. Based upon this fact a party
purportedly receiving an ―assignment‖ of this obligation,
such as Defendant(s), must show that it has met
constitutional and prudential standing to assert standing as
real party in interest in this matter.
Plaintiff’s Rescission of The Loan at Issue
146. The discussion of the facts under this section, by no

means are an admission that any of the Defendant(s) have
rights to any current standing with regards to the
Plaintiff‘s loan. This section merely describes the
originating entities actions with regards to the
underwriting, and the eventual loan product sold to the
Plaintiff.
147. Plaintiff enlisted the services of a ―mortgage loan

auditor‖ (Marie McDonnell) to conduct an examination of his
mortgage loan, and some of the findings are summarized in
24
the following paragraphs.
148. At the time of origination, the disclosure statement

failed to provide all of the required material disclosures
attendant to the Plaintiff‘s loan correctly, including, but
not limited to, the undisclosed prepaid finance charges
indicated on Plaintiff‘s HUD-1 Statement as follows:
Line 1101 – Settlement Fee of $510.00

Line 1112 – Messenger fee of $60.00
Line 1113 – Recording Fee of $75.00
Line 1114 – Escrow Fee of $75.00
149. On December 16, 2010, and prior to the Plaintiff‘s

filing of the instant bankruptcy petition, the Plaintiff
submitted a formal rescission notice under G.L. c. 140D,
(The Massachusetts Consumer Credit26Cost Disclosure Act),
detailing the above transgressions .
150. On January 6, 2010, Attorney Jeana Kim Reinbold, of the

Ablitt & Scofield, P.C. law firm, responded by flatly
denying that the Plaintiff had any right to rescind the
instant loan transaction27. The exact wording was as follows,
―Our client declines the purported

rescission, given that the letter fails to
properly identify any basis for doing so, and
the mortgagor is outside the statute of
limitations for filing such a claim‖.
Further this same letter goes on to state

that:
―Plaintiff‘s rescission notice fails to

identify how any such material disclosures
were not properly provided and therefore the
right to rescind expired on midnight of the
third business day following the loan
consummation, 12 C.F.R. § 226.23(A)(1); see
also 15 U.S.C. § 1635‖.
151. Ablitt‘s response to the Plaintiff‘s rescission notice

also intentionally attempts to pre-emptively engraft a
future position by this court, which is legally incorrect,
where Attorney Kim-Reinbold states; ―the majority of circuit
courts have the equitable power to condition rescission on
tender by the borrower‖. First unlike the majority of
26
See Exhibit C
27
See Exhibit Q
25
circuits, rescission in this Commonwealth is governed by the

state requirements under G.L. c. 140D §10, and its
implementing regulations‖28.
152. Secondly, and apparently, Ablitt is accustomed to

merely brushing aside legitimate rescission claims made by
Massachusetts‘ mortgagors. Ablitt‘s January 6, 2011 response
letter to Plaintiff intentionally creates the appearance
that the tender requirement (in the bankruptcy context here)
was addressed by Judge Hillman‘s ruling in, In re:
Jaaskelainen, 407 B.R. 449 (D.Mass. 2009). In Jaaskelainen,
Judge Hillman made a clear distinction, and in fact drew a
bright line rule, addressing the tender obligation in
bankruptcy, and non-bankruptcy contexts. Judge Hillman
stated as follows:
―I previously held that rescission by an

obligor is not conditioned by tender or
payment in the context of a bankruptcy case.
In Myers, I relied on the following passage
by Judge Deitz explaining the difference
between cases where the obligor is subject to
a bankruptcy proceeding and those where the
obligor is not: In a non-bankruptcy setting,
the rights and duties of the parties upon
TIL[A]rescission are clear and absolute. Each
party must make the other as whole as he
would have been had the contract never been
entered into. In the absence of bankruptcy,
there is no legal impediment to either party
doing what is required to restore the status
quo ante. Consequently, the creditor's
statutory duty to perform first merely
establishes the order of performance; it does
not alter the ultimate effect on the remedy.‖
153. Ablitt therefore acted with scienter, and in a

willfully deceptive and commercially unreasonable manner, in
its ―reasoning‖ of its January 6, 2011 denial of Plaintiff‘s
rescission demand (a point in time after Plaintiff had filed
bankruptcy), in an effort to discourage the Plaintiff from
pursuing his meritorious right to rescind the purported
mortgage at issue.
154. While the statements of Ablitt ―on an island‖

potentially could be true outside the bankruptcy context,
Ablitt blatantly ignored the plain language of the very
holding it cited, of Judge Hillman in Jaaskelanien, which
28
TILA, is not the law in Massachusetts as the Board of Governors of the Federal Reserve System exempted credit
transactions within Massachusetts subject to the CCCDA from chapters two and four of TILA. See 48 Fed. Reg.
14882, 14890 (1983); Fidler v. Cent. Coop. Bank (In re Fidler), 226 B.R. 734, 736 (Bankr. D. Mass. 1998); Desrosiers
v. Transamerica Fin. Corp. (In re Desrosiers), 212 B.R. 716, 722 n.6 (Bankr. D. Mass. 1997).
26
clearly and specifically stated that in this circuit the

debtor‘s tender requirement as a condition precedent, does
not apply in the Bankruptcy context.
155. Ablitt, by also making the blanket statement that

Plaintiff is ―outside the statute of limitations‖ to make a
rescission claim under G.L. c. 140D, acted with scienter, by
intentionally ignoring this very court‘s holding in, In re
Fidler, 226 B.R. at 736, where this court found that claims
made in recoupment (as by Plaintiff here defensively under
the threat of foreclosure) are not subject to the four year
statute of limitations attendant to G.L. c. 140D, as
Massachusetts has ―opted out‖ of the Federal scheme, which
this court correctly relied upon the Holding of the United
States Supreme Court in Beach v. Ocwen. 692 So. 2d 146
(1998), at footnote 6.
156. The securitized mortgage lending industry was initially

developed to allow institutions to not be shackled to being
limited to being able to lend out as a percentage of the
deposits a bank held.
157. While, appearing to have a public benefit by increasing

the amount of available liquidity for mortgage lending, thus
providing many more people with an opportunity to obtain the
―American dream‖ of home ownership, it appears that the
facially beneficent objectives of this development, was only
a façade that obfuscated the malignancy behind its creation.
158. The truly insidious part of the Defendant(s) actions

here, is that in a non-judicial foreclosure jurisdiction,
(such as Massachusetts), Defendant(s), such as the
enterprise here, act with impunity as the foreclosure
process plays out extra-judicially.
159. Adding to the fact that a court will never review the
foreclosure process, this court must take into account who
the rare opponent of a ―foreclosure mill‖ law firm would be
against a law firm such as Ablitt? The answer? A hopelessly
overwhelmed pro-se litigant.
160. Because of the above, Ablitt, and the rest of the

enterprise operates with utter impunity, knowing that there
never is any serious challenge to their fatally defective
documents.
161. In the rush to satisfy the insatiable demand for

mortgage backed securities, ―players‖ like New Century
exploited homeowners, whose signatures were ―monetized‖.
Once the borrower signed the dotted line, New Century and
the enterprise quickly divested any ownership interest in
the loan, and its attendant default risk, yet securing a
percentage of the borrowers monthly payments under its
27
―servicing business platform‖. While reaping an untold

fortune, the enterprise, caring not that they left the
helpless Plaintiff consumer homeowner strapped to a ticking
time bomb that New Century, as well as the rest of the
enterprise knew would ultimately detonate, as they ―kicked
the can down the road‖, because it was going to be ―someone
else‘s mess to clean up‖.
CLAIMS
COUNT I
Declaratory Judgment
That Defendant(s) Does Not Have Standing
As The Holder of The Plaintiff’s Promissory Note
As A Real Party In Interest Under G.L. c. 106
162. Plaintiff repeats the allegations set forth in
paragraphs 1-161, as if fully set out herein.
163. Standing is a "threshold question in every federal

case, determining the power of the court to entertain the
suit." Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45
L.Ed.2d 343 (1975). Hence, "a defect in standing cannot be
waived; it must be raised, either by the parties or by the
court, whenever it becomes apparent." U.S. v. AVX Corp., 962
F.2d 108, 116 n. 7 (1st Cir.1992). The inquiry into standing
"involves both constitutional limitations on federal-court
jurisdiction and prudential limitations on its exercise."
Warth, 422 U.S. at 498, 95 S.Ct. 2197, 45 L.Ed.2d 343. " In
its constitutional dimension, standing imports
justiciability, whether the plaintiff has made out a 'case
or controversy' between himself and the defendant within the
meaning of Art. III." In re Hayes, 393 B.R. 259, 265
(Bkrtcy. D.Mass. 2008.
164. The issue of standing involves both ―constitutional

limitations on federal court jurisdiction and prudential
limitations on its exercise.‖Warth v. Seldin, 422 U.S. 490,
498(1975). Constitutional standing concerns whether the
plaintiff‘s personal stake in the lawsuit is sufficient to
have a ―case or controversy‖ to which the federal judicial
power may extend under the Constitution‘s Article III. Id.
at 498-99; Pershing Park Villas, 219 F.3d at 899; Lujan v.
Defenders of Wildlife, 504 U.S.555, 559-60 (1992).
165. Additionally, the prudential doctrine of standing ―is

comprised of both judicially-created limitations, such as
the prohibition on third-party standing . . . and
statutorily-imposed limitations, such as the [Fed. Rule Civ.
P.] Rule 17(a) requirement‖ that suits be maintained by the
real party in interest. Gilmartin v. City of Tucson, 2006 WL
5917165 *4 (D. Ariz. 2006), citing Lee v. Deloitte & Touche
28
LLP,428 F.Supp.2d 825, 831 (N.D. Ill. 2006).
166. "Generally, the 'real party in interest' is the one

who, under the applicable substantive law, has the legal
right which is sought to be enforced or is the party
entitled to bring suit." In re Comcoach Corp., 698 F.2d 571,
573 (2nd Cir.1983) (citations omitted). While Comcoach has
been criticized as unduly restrictive in the interpretation
of "party in interest" , its general principle that "party
in interest standing does not arise if a party seeks to
assert some right that is purely derivative of another
party's rights in the bankruptcy proceeding" survives. In re
Refco, 505 F.3d 109, 115 fn. 10 (2nd Cir.2007). Woodberry,
383 B.R. at 379‖. In re Hayes, 393 B.R. 259, 266 (Bkrtcy.
D.Mass. 2008)
167. The Trust seeks to enforce the Plaintiff‘s promissory

note, and as such is bound by the requirements of G.L. c.
106.
168. There are no dates associated with any of the proffered

copies of the purported Plaintiff‘s note, however the
purported ―assignment‖ of the Plaintiff‘s mortgage proffered
by Defendant(s) indicates a date of April 9, 2009, a point
in time when the Plaintiff had already been in default on
the note.
169. In its original proof of claim on March 22, 2011, the

Defendant Trust (through Ablitt) only proffered a purported
copy of a note that is made payable directly and solely to
170. Plaintiff wishes to state that a copy of a negotiable

instrument does not meet the requirement of ―possession‖
under G.L. c. 106.
171. A promissory note is a negotiable instrument that is

specifically governed by Article 3 of the Uniform Commercial
Code, which is codified in Massachusetts under G.L. c. 106.
This statute does not allow for ―copies‖ of negotiable
instruments to be entered into evidence, save for the one
exception stated in G.L. c. 106 §3-309. The Defendant(s) has
never claimed this exception, and therefore under G.L. c.
106, it must produce the original promissory note executed
by the Debtor.
172. The Defendant(s) is also subject to the restriction

stated under G.L. c. 106 §3-309(b), that the debtor must
have adequate assurance that he is not subject to others
potentially seeking to enforce the same instrument.
173. In the alternative, Plaintiff wishes to affirmatively

state in his pleading, and for the record, that under G.L.
c. 106-308(a), he is pre-emptively challenging the validity
29
of the signatures placed upon the copy of his purported note

produced in the Defendant‘s proof of claim, based upon the
lack of any evidentiary foundation that established the
authority granted to these individuals, whether the
signatures are in fact actually made by these individuals
with authority to bind, as well as to when precisely these
purported authorized signatures took place.
174. Specifically, under G.L. c. 106 §3-109, a negotiable

instrument is payable either to order or to bearer:
Section 3-109. (a) A promise or order is payable to bearer
if it:
(1) states that it is payable to bearer or to

the order of bearer or otherwise indicates
that the person in possession of the promise
or order is entitled to payment;
(2) does not state a payee; or
(3) states that it is payable to or to the

order of cash or otherwise indicates that it
is not payable to an identified person.
(b) A promise or order that is not payable to

bearer is payable to order if it is payable
(i) to the order of an identified person or
(ii) to an identified person or order. A
promise or order that is payable to order is
payable to the identified person.
(c) An instrument payable to bearer may

become payable to an identified person if it
is specially indorsed pursuant to subsection
(a) of section 3-205. An instrument payable
to an identified person may become payable to
bearer if it is indorsed in blank pursuant to
subsection (b) of section 3-205.
175. The term ―Bearer‖ is defined in G.L. c. 106 §

1=201(5) as:
(5) ―Bearer‖ means the person in possession

of an instrument, document of title, or
certificated security payable to bearer or
indorsed in blank.
176. The term ―Order‖ is defined above in G.L. c. 106 §3-

109(a)(1).....is payable to bearer or to the order of bearer
or otherwise indicates that the person in possession of the
promise or order is entitled to payment;
30
177. Here the proffer of the purported copy of the

Plaintiff‘s promissory note is made specifically payable to
New Century Mortgage Corporation, not the Trust, nor in
―blank‖.
178. Therefore, the purported copy of the Plaintiff‘s

promissory note is ―order paper‖, and as such there must be
a proper ―negotiation‖ of an instrument payable from an
identified person (here "New Century"), which requires the
holder's (―New Century‘s‖) written counter-endorsement on
the instrument itself, or on a separate piece of paper that
is firmly affixed to the promissory Note (Allonge).
179. Only forty five minutes prior to the Motion to Lift

Stay Hearing, did Defendant(s) suddenly proffer yet another
copy, this time it was of a purported, and undated, Allonge
to the Plaintiff‘s note, purportedly executed by SPS as
attorney-in-fact for the bankrupt New Century Mortgage
Corporation directly to the Trust.
180. Interestingly this ―Allonge‖ is undated, and was

proffered completely untethered from the Debtor‘s original
promissory note. The mere fact that the original copy was
proffered on March 22, 2011, without the recent conveniently
proffered copy of the purported Allonge is evidence that the
Allonge was never ―firmly affixed‖ to the debtor‘s original
note, even if it really existed.
181. The proffer by Defendant of the purported Allonge at

Document 57-1 references that it is only one of three pages.
This is further evidence that this purported Allonge is not
―firmly affixed‖ to the Debtor‘s original promissory note.
182. Under information and belief, Select Portfolio

Services, after being confronted with the challenge made by
the Plaintiff here, that the purported copy of the debtor‘s
note proffered in the Defendant‘s proof of claim was only
made specifically payable to New Century Mortgage
Corporation, merely took it upon itself to just quickly
―create‖ an Allonge, in order to fill in a missing gap in
the chain of the assignment of the Debtor‘s note.
183. Just this past November 19, 2010, Judge Boroff of this
court, was confronted with a similar issue involving a copy
of a purported Allonge. In, In re Lillia Shapoval Docket 10-
30175, a Motion to Lift Stay Hearing.
184. Judge Boroff stated that, ―it is well settled that the
1998 amendment (to Article 3) maintained the requirement
that an Allonge be ―firmly affixed‖ to the original
instrument (see opinion at page 4). Further, ―This court
holds that, pursuant to G.L. c. §3-204, the indorsement of a
note set forth in an Allonge is not valid if the Allonge is
31
not firmly affixed to the note.‖ (see opinion at page 5).
185. The Plaintiff here, hereby states that under G.L. c.

106, there is absolutely no exception for Defendants not to
produce the Debtor‘s original note. The reasons are two
fold, first, G.L. c. 106 requires physical possession of the
instrument, unless making claims under G.L.c. 106 § 3-309.
Secondly, how is one to gauge how ―affixed‖ the purported
―Allonge‖ is, without viewing the original physical
instrument.
186. The Plaintiff also wishes to reserve the right to

forensically examine any purported ―original‖ note proffered
by Defendant, if it suddenly and ―miraculously‖ locates the
purported original Debtor‘s note.
187. The Plaintiff also wishes to pre-emptively challenge

all of the signatures on any purported ―original‖ note
proffered by Defendant(s), under G.L. c. 106 §3-308(a) on
the basis that, (i) any signatures were authorized, (ii) and
if so that the signatures were actually made by those so
authorized, (iii) and whether the Debtor‘s signature was
forged, or (iv) the Debtor‘s signature was electronically
manipulated in some manner, and therefore an examination
utilizing a counterfeiting protocol would be necessitated to
determine the validity and type of ink on the purported
document.
188. When confronted with an issue where a transfer of a

Note that is "order paper", Massachusetts courts have
opined, "Article 3 provides that where a negotiable
instrument is payable to an identified person, the transfer
of the ownership of the instrument requires endorsement by
the holder, and transfer of possession of the instrument. In
Re: Gavin, 319 B.R. 27, 31 (quoting G.L. c. 106 § 3-201).
189. Article 3 also provides that an instrument is

"transferred" when it is delivered by the Holder for the
purpose of giving the recipient the right to enforce the
instrument." Gavin at 31 (quoting G.L. c. 106 § 3-
203(―Proper transfer of the instrument vests in the
recipient any rights of the transferor to enforce the
instrument"). Gavin at 31 (quoting G.L. c. 106 § 3-203(―and
the transferor cannot transfer greater enforcement rights
than it holds‖ (See Id.).
190. In Gavin there was a question as to a Note specifically

indorsed to Fleet, which was being sought to be enforced by
a subsequent transferee. "With the Note in question payable
to Fleet, any assignment of ownership of the Note requires
transfer of possession of the physical Note." Gavin at 32.
The Gavin court went on to explain that there may be a
relief or savings clause under Article 3 for a creditor not
32
currently in possession of properly endorsed Note. (Quoting

G.L. c.106 § 3-309).
191. G.L. c. 106, provides only one exception to produce the

original physical instrument, which can be found in G.L. c.
106 § 3-309 Enforcement of Lost, Destroyed, or Stolen
Instrument:
Section 3-309. (a) A person not in possession

of an instrument is entitled to enforce the
instrument if (i) the person was in
possession of the instrument and entitled to
enforce it when loss of possession occurred,
(ii) the loss of possession was not the
result of a transfer by the person or a
lawful seizure, and (iii) the person cannot
reasonably obtain possession of the
instrument because the instrument was
destroyed, its whereabouts cannot be
determined, or it is in the wrongful
possession of an unknown person or a person
that cannot be found or is not amenable to
service of process.
(b) A person seeking enforcement of an

instrument under subsection (a) must prove
the terms of the instrument and the person‘s
right to enforce the instrument. If that
proof is made, section 3-308 applies to the
case as if the person seeking enforcement had
produced the instrument. The court may not
enter judgment in favor of the person seeking
enforcement unless it finds that the person
required to pay the instrument is adequately
protected against loss that might occur by
reason of a claim by another person to
enforce the instrument. Adequate protection
may be provided by any reasonable means.
192. The Gavin court continued, ―Here, Premier has produced

the original Note as executed with Fleet, and the assignment
of the Note by Sovereign to Premier, but failed to produce
any evidence of an assignment of the Note by Fleet to
Sovereign. Moreover, Premier failed to produce either
evidence of the endorsements required to establish its
ownership of the Note or substitute evidence permitted under
applicable state law. To the contrary, Premier admitted at
trial and at oral argument that it had no direct evidence of
an assignment of the Note from Fleet to Sovereign. Absent
such evidence, Premier has failed to establish title to the
Note, and thus has no enforceable obligation against the
Debtor. Without an enforceable obligation Premier has no
33
claim, and therefore is not a creditor for purposes of

Bankruptcy Rule 4007(a).‖ Gavin at page 32
193. As the Defendant Trust was not the original payee on

the Plaintiff‘s promissory note, the Trust must demonstrate
that there was a proper ―negotiation‖ of the Plaintiff‘s
negotiable instrument under the requirements of G.L. c. 106
§ 3-201 from New Century directly to the Trust, which also
requires the Defendant(s) to proffer the physical paper
instrument, as it is claiming holder status for order paper:
Section 3-201. (a) ―Negotiation‖ means a

transfer of possession, whether voluntary or
involuntary, of an instrument by a person
other than the issuer to a person who thereby
becomes its holder.
(b) Except for negotiation by a remitter, if

an instrument is payable to an identified
person, negotiation requires transfer of
possession of the instrument and its
indorsement by the holder. If an instrument
is payable to bearer, it may be negotiated by
transfer of possession alone.
194. Therefore, in order for Defendant(s) to claim it is the

current ―holder‖ (as that term is defined in G.L. c. 106 §1-
201(20)) of the Plaintiff‘s promissory note, it must comply
with the above mandates of the Uniform Commercial Code,
codified in Massachusetts under G.L. c. 106, in that it must
produce the physical instrument, and demonstrate that it
received a proper negotiation from New Century, at a point
in time when New Century was in bankruptcy.
195. Additionally, as the Defendant trust, is a ―securitized

business trust‖, the conveyance of the Plaintiff‘s note and
mortgage as part of the trust‘s corpus, must have taken
place in compliance with the Plaintiff trust‘s governing
instruments, the pooling and servicing agreement (―PSA‖) and
prospectus supplement. See generally Hecht v. Malley, 265
U.S. 144 (1923).
196. Upon information and belief, it is impossible for

Defendant(s) to comply with the mandates set forth in G.L.
c. 106, in order for it to claim any colorable right to
standing as a real party in interest to legally enforce the
Plaintiff‘s note as a holder, as the securitization process
of the Plaintiff‘s note has forever left the instrument
unenforceable by the Trust or any other named or unnamed
Defendant.
197. Upon information and belief, it is also impossible for
Defendant(s) to comply with the mandates set forth in the
34
Trust‘s own governing instruments, with regards to the

conveyance of the Plaintiff‘s note and/or mortgage to the
Trust.
198. The Plaintiff respectfully requests that this court

find that the purported ―Allonge‖ submitted by the Defendant
is defective by reason that, a) it is only a copy, and b) it
was not firmly affixed to the debtor‘s original promissory
note, and thus under G.L. c. 106 §3-204(a) is therefore
invalid
199. The Plaintiff therefore respectfully states that as a

result of the above, this court is now left with a proffer
by Defendant of a copy of the Plaintiff‘s promissory note
made specifically payable to New Century, not the Trust, or
in blank, and therefore the Plaintiff respectfully requests
that this court find that the Defendant(s) have not
proffered sufficient evidence that they are the holder of
the Plaintiff‘s promissory note under the requirements of
G.L. c. 106.
200. Therefore, the Plaintiff respectfully requests that

this court make a finding that in fact that neither the
Trust, or any other named or unnamed Defendant in this
action, possesses any colorable right to claim standing as a
real party in interest to legally enforce the Plaintiff‘s
promissory note.
COUNT II
Declaratory Judgment
That Defendant(s) Does Not Have Standing
To Enforce The Plaintiff’s Security Instrument
(Mortgage Contract) As A Real Party In Interest
201. Plaintiff repeats the allegations set forth in

paragraphs 1-200, as if fully set out herein.
202. The Defendant Trust is not the original mortgagee;

therefore a proffer must be made indicating exactly how an
―assignment‖ of the Plaintiff‘s mortgage was made to the
Defendant Trust directly from New Century Mortgage
Corporation on April 19, 2009.
203. The Defendant Trust seeks to rely only upon the

purported ―assignment‖ of the Plaintiff‘s mortgage it
―received‖ directly from New Century Mortgage Corporation,
at a time when New Century Mortgage Corporation was under
the protection of Chapter 11 of the United States Bankruptcy
Code.
35
204. Under information and belief, the Trust‘s Governing

Instrument authorizes only one entity to convey the
Plaintiff‘s note and mortgage to the Trust (the Depositor,
not New Century), as well as the fact that this conveyance
must be performed by a date certain (the Closing Date), the
failure to do so permanently vitiates the Trust‘s claim to
standing, as anything conveyed to the Trust after this date
certain is a ―prohibited transaction‖. The Defendant Trust
seeks to rely only upon the purported ―assignment‖ of the
Plaintiff‘s mortgage it ―received‖ directly from New Century
Mortgage Corporation after the Closing Date.
205. The Trust‘s Governing Instruments, the Pooling and

Servicing Agreement (―PSA‖), and Prospectus Supplement, are
not merely contractual agreements between the parties to
this ―securitization agreement‖, rather it is the terms of
the Trust which must be followed with regards to the
conveyance of the Plaintiff‘s note and mortgage, in order
for the Trust to validly claim standing as a real party in
interest to enforce the Plaintiff‘s security instrument as a
secured creditor, as well as be in possession of the
Plaintiff‘s note under the requirements of the Governing
Instruments, to even to be able to claim standing as a real
party in interest as an unsecured creditor.
206. Under information and belief, the failure to convey the

Debtor‘s note and mortgage to the trust by the Closing Date
permanently vitiates the Trust‘s claim to standing, as
anything conveyed to the Trust after this date certain is a
―prohibited transaction‖.
207. This Commonwealth‘s Supreme Judicial Court has recently

spoken to the requirements necessary in a securitized
mortgage lending transaction, requiring the Trustee to
proffer evidence that the only entity authorized by the
Trust to convey the corpus to the Trust, in fact ever held
any interest to the mortgage loan corpus, and specifically
the loan at issue. See: U.S. Bank Nat. Ass'n v. Ibanez, 458
Mass. 637, 640-645 (2011)29.
―Moreover, Wells Fargo provided the judge

with no document that reflected that the ABFC
(depositor) held the LaRace mortgage that it
was purportedly assigning in the PSA.‖ Ibanez
at 650.
208. Additionally, the Plaintiff would like to point out

that as Massachusetts is a title theory jurisdiction, an
assignment of mortgage is an assignment of an interest in
land, which is subject to defeasance by the satisfaction of
29
Plaintiff’s counsel represented the LaRace family in this action.
36
the underlying debt obligation.
209. Assignments of mortgage in the Commonwealth do not have

to be recorded to be effective (which the securitization
process relies upon), however as an assignment of mortgage
is an assignment to an entitlement to land, in order to be
able to provide a clear chain of title, all purported off
record assignees would need to be identified in order for
the Trust to claim that it has received the title to the
Plaintiff‘s property by way of his mortgage, which then
would create privity of contract between the Plaintiff and
the Defendant Trust sufficient enough for the Defendant(s)
to exercise the power of sale contract contained in the
Plaintiff‘s mortgage contract, if it was legally entitled to
enforce the Plaintiff‘s note under G.L. c. 106.
210. There are many problems with the Defendant Trust‘s

claiming that it received a direct ―assignment‖ of the
Plaintiff‘s mortgage from New Century on April 9, 2009,
which include but are not limited to the following:
First, New Century had filed for bankruptcy as of April 2007
Second, New Century generally divested ownership in loans

originated for securitized trusts such as Defendant here,
within 3 months after origination. In fact the Debtor has
obtained correspondence from New Century indicating that
this is precisely what occurred with his loan. Further, the
Plaintiff is in possession of correspondence from New
Century of conflicting information stating that New Century
divested its ownership of the Plaintiff‘s loan on July 13,
2005, apparently either this never happened, or the
enterprise sought to collect twice on the same obligation
Third, the purported assignment of mortgage appears to

contain fraudulent signatures made by person or person(s)
without any authority to bind its principal, who was in fact
bankrupt, and not in possession of the Plaintiff‘s loan.
Fourth, Defendant(s) own proofer in its proof of claim
provide evidence that the purported conveyance of the
Plaintiff‘s mortgage did not take place according to the
terms of the Trust‘
Fifth - The Plaintiff was already in default on April 9,

2009.
Sixth, Defendant(s) cannot establish that they are entitled

to enforce the underlying Debtor‘s promissory note as a
―holder‖, under G.L. c. 106, as the proffered purported
instrument is only a copy, and further Defendant(s) have now
submitted a copy on a completely untethered purported
Allonge, and therefore any security purportedly held by
Defendant would be worthless, as it would bear no relation
37
to the underlying debt.
211. Based upon the foregoing, the Plaintiff respectfully

requests that this court make a finding that, in fact, the
Defendant Trust, or any named or unnamed Defendant, lacks
any indicia of possessing any colorable right of standing to
claim that it is a secured creditor of the Plaintiff to
enforce the terms of the mortgage, as a real party in
interest.
COUNT III
RICO
212. Plaintiff realleges all prior paragraphs 1-211 as if

set out here in full.
213. The Racketeer Influenced and Corrupt Organizations Act
(―RICO‖) prohibits certain conduct involving a ―pattern of
racketeering activity‖ 18 U.S.C. §1962, and makes a private
right of action available to ―any person injured in his
business or property by reason of a violation of RICO‘s
substantive restrictions, 18 U.S.C. §1964(c), provided that
the alleged violation was the proximate cause of the injury,
Holmes V. Securities Investor Protection Corporation, 503
U.S. 258, 268 (1992).
214. Proper interpretation of 18 U.S.C. §1964(c) requires

consideration of the statutory history, which revealed that
―Congress modeled §1964(c) on the civil action provision of
federal antitrust laws, §4 of the Clayton Act‖ Holmes at
267. In Associated Gen. Contractors of Cal., Inc. v.
Carpenters, 459 U.S. 519 (1983), the United States Supreme
Court held that a Plaintiff‘s right to sue under §4 required
a showing that the Defendant‘s violation was not only a ‗but
for‘ cause of his injury, but was the proximate cause as
well‖ Holmes at 268 (Citing Associated Gen. Contractors,
supra at 534).
215. RICO‘s substantive liability provisions are found in 18

U.S.C. §1962, which has four labeled sections; (a), (b),
(c), and (d).
216. §1962(a) generally makes it unlawful for a person to

use an enterprise to launder money generated by a pattern of
racketeering activity, Lightening Lube, Inc. v. Witco Corp.,
4 F.3d 1153, 1188 (3d. Cir. 1993).
217. §1962(b) makes it unlawful for a person to acquire or

maintain an interest in an enterprise through a pattern of
racketeering activity.
38
218. §1962(c) prohibits any Defendant person from operating

or managing an enterprise through a pattern of racketeering
activity. The elements necessary to establish a §1962(c)
claim, the Plaintiff must prove
a. That a Defendant person (defined by statute to include

a business organization).
b. was employed by or associated with an enterprise.
c. was engaged in, or affected interstate commerce, and
d. that Defendant person operated or managed the
enterprise,
e. through a pattern of,
f. racketeering activity, and
g. the Plaintiff was injured in its business or property
by reason of the pattern of racketeering activity.
219. As to the first element, all of the Defendants are

―persons‖ as defined under the RICO Act.
220. Next, to establish liability under any subsection of

§1962, a Plaintiff must allege the existence of an
―enterprise‖.
221. In Boyle v. United States, 129 S.Ct. 2237 (2009), the

United States Supreme Court clarified the characteristics of
an actionable ―association in fact enterprise‖. The Supreme
Court stated that an association in fact enterprise
possesses three characteristics; (1) a purpose, (2)
relationships among those associated with the enterprise,
(3) longevity sufficient to permit these ‗associates‘ to
pursue the enterprise‘s purpose. The Supreme Court further
explained:
―Such a group need not have a hierarchical

structure or a chain of command; decisions
may be made on an ad hoc basis and by any
number of methods by majority vote,
consensus, a show of strength, etc. Members
of the group need not have fixed roles;
different members may perform different roles
at different times. The group need not have a
name, regular meetings, dues, established
rules and regulations, disciplinary
procedures, or induction or initiation
ceremonies. While the group must function as
a continuing unit and remain in existence
long enough to pursue a course of conduct,
noting in RICO exempts an enterprise whose
associates engage in spurts of activity
punctuated by periods of quiescence. Nor is
the statute limited to groups whose crimes
are sophisticated, diverse, complex, or
unique, for example a group that does nothing
but engage in extortion through old
39
fashioned, unsophisticated, and brutal means

may fall squarely within the statute‘s reach‖
Boyle at 2245-2246. See also Jay E. Hayden
Foundation v. First Neighbor Bank, N.A.,
2010 WL 2485679 *6 (7th Cir.2010).
222. Defendants‘ enterprise was the procurement, sales, and
servicing, of mortgage loan products for ultimate sale into
the secondary market. Defendants were involved in two
different fronts of the mortgage market:
a. Defendants were engaged in, or affected interstate

commerce, through the solicitation of mortgage
borrowers,
b. Defendants are engaged in the billing, and enforcement

of the foreclosure of the Plaintiff‘s residence, in
which they receive significant ongoing remuneration,
while maintaining complete immunity for debtor credit
default loss
c. Defendants are intimately involved in the processes

involved with the securitization of mortgage loans to
be sold as ―investments‖ to investors who ultimately
fund the underlying mortgage loans, leaving Defendants
completely insulated from credit default risk of
mortgagor foreclosure. Yet at the same time through the
deceptive acts undertaken and directed by the
enterprise towards both ends of the mortgage
securitization spectrum, Defendants enterprise was
intimately involved with interstate commerce.
223. Under information and belief, Defendants represent an

―association in fact enterprise‖, as they are a group that
was formed to carry out illegal acts through the use of the
United States wires and Postal System. Although there is no
hierarchal structure or chain of command, and Members of the
group may not have fixed roles; and different members
perform different roles at different times, it was (and
still is) in existence to carry out its illegal purpose.
224. Defendants ‗operated and managed‘, the enterprise.
225. §1962(c), also requires that the Defendants conduct or

participate, directly or indirectly, in the conduct of such
enterprise‘s affairs. The United States Supreme Court has
interpreted this language to mean that a Defendant must
‗operate and manage‘ the enterprise, Reeves v. Ernst &
Young, 507 U.S. 170, 183 (1993).
226. Under information and belief, Defendants all operated

and managed the enterprise, by participating in a joint
enterprise to willfully induce Plaintiff to enter into a
loan transaction that Defendants knew or should have known
40
would result in default.
227. At origination, New Century ―qualified‖ the Plaintiff

through underwriting that was based solely, and only, upon
the liquidation value of his home, therefore Defendants
actions indicate scienter that they knew the loan would
default.
228. SPS, as the mortgage servicing member of the

enterprise, billed and accepted mortgage payments from the
Plaintiff on an obligation that neither SPS, nor any other
member of the enterprise has any ownership of, and has not
applied the Plaintiff‘s mortgage payments to either the
outstanding principal balance or accruing interest on the
loan in question..
229. SPS, as the mortgage servicer of the enterprise, also

manages the collection process of delinquent loans in
conjunction with ―default servicers‖ (companies who
specialize in the foreclosure process, under information and
belief Lender Processing Services).
230. LPS Default utilizes its ‖desktop‖ software system,

which ―automates‖ the ―decision making‖ in the foreclosure
process. and also ―creates‖ documents to expedite the
liquidation of the borrowers home by the foreclosing law
firm, here Ablitt.
231. All members of the enterprise have garnered significant

remuneration at the expense of the Plaintiff, and the
Investors of the securities purportedly ―backed‖ by
Plaintiff‘s loan.
232. Each Defendant may have had different roles in this

enterprise, however it continues today through the
enterprise‘s attempt to foreclose on the Plaintiff‘s home
without any indicium of ownership of this obligation.
233. Defendants have all received significant remuneration
from these actions.
234. The United Supreme Court has spoken to the meaning of

‗to manage or operate‘ an enterprise:
―An enterprise is ‗operated‘ not just by upper

management, but also by lower-rung participants in the
enterprise who are under the direction of upper
management. An enterprise also may be ‗operated‘ or
‗managed‘ by others associated with the enterprise who
exert control over it as, for example by bribery.‖
Reeves at 184.
235. In H.J. Inc. v. Northwestern Bell, 492 U.S. 229 (1989),
The United States Supreme Court determined that the factors
41
of relatedness and continuity combine to produce a ―pattern

of racketeering‖. As a result of the U.S. Supreme Court‘s
decision in H.J., Inc., the statutory definition of
―pattern‖ (18 U.S.C. § 1961(5) has been rendered
meaningless.
236. ―To be related, the criminal actions that form the

pattern must ―have the same or similar purposes, results,
participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing
characteristics.‖ H.J. Inc 492 U.S. at 240.
237. Here, all of the Defendants sought the same result,

which was the ultimate purpose of their concerted actions;
to induce Plaintiff to undertake the mortgage loan from New
Century Mortgage Corporation, based only upon the
liquidation value of the home, and which all knew had a
significant risk of failure.
238. Defendants undertook these actions with scienter, and

primarily based upon the enterprise design, which was to
remove all Defendants risk of default from the Plaintiff‘s
loan, and pass this loss on to the ultimate investor, with
scienter of it wrongfulness.
239. Defendants intentionally sought to create the

appearance that the purported assignment of Plaintiff‘s loan
though the enterprise to the ultimate investor was legally
sufficient, to the Plaintiff and now this court.
240. Under information and belief, to carry out the

objectives of the enterprise, it turned to Lender Processing
Services, working in unison with SPS and Ablitt & Scofield,
P.C., to draft, execute, and file fraudulent documents on
the Norfolk Registry of Deeds, as well as the Massachusetts
Land Court, and now with the United States Bankruptcy Court,
to deceive the public and the judiciary in order to
obfuscate the actual fatal defects of gaps in title to the
Plaintiff‘s note and mortgage.
241. Under information and belief, these same Defendants

are currently carrying out this ongoing enterprise against
other residents of the Commonwealth, as well as nationally.
242. ―A party alleging RICO violations may demonstrate

continuity over a closed period by proving a series of
related predicates extending over a substantial period of
time‖. H.J. Inc., 492 U.S at 242.
243. ―Open ended continuity exists when the criminal conduct

is specifically threatened to be repeated or to extend
indefinitely in the future‖. H.J. Inc, at 242-243.
42
244. Defendants in the action before this court meet both

tests, as the specific conduct demonstrated here was carried
out by a series of related predicates, such as:
a. Under information and belief, the enterprise‘s

inducement, the New Century Mortgage Company, of
Plaintiff to sign the mortgage contract that was based
solely upon the liquidation value of the home, and thus
was purposely made with scienter that the loan would
default.
b. Under information and belief, the Plaintiff‘s loan was

purposely underwritten by the Defendant enterprise with
scienter that the loan would default, however each
member of the enterprise would be paid immediately and
significantly, and continually even in default, with
the added ―bonus‖ that the risk of loss on Plaintiff‘s
defaulted loan would ultimately be borne by the
Investors who ultimately would purchase the ―right‖ to
Plaintiff‘s monthly principal and interest payments in
the form of bonds backed by these payments.
c. Under information and belief, Defendants purposely left

the original mortgage on record upon the Norfolk
Registry of Deeds, to purposely to carry out the
enterprise‘s illegal purposes of the collection of an
unenforceable debt, and through the illegally attempt
to foreclosure of Plaintiff‘s home.
d. Under information and belief, the Plaintiff states that

there is a distinct possibility that the documents
proffered by Defendant(s) are evidence that the
Plaintiff‘s loan was sold more than one time as an
―asset‖ for sale as part of ―Asset Backed Securities‖
offerings.
e. Defendants purposely attempted to create the appearance

of a direct assignment of the originating lender (New
Century) to the Trust, in order to deceive this court
as to the identity of the purported holder of the
Plaintiff‘s loan, the Trust, in order to carry out the
attempted legally deficient foreclosure of the
Plaintiff‘s home under G.L. c. 244 § 14.
f. Defendants intentionally sought to create the

appearance of a complete chain of title to the mortgage
on Plaintiff‘s home, in order to satisfy the
requirements of G.L. c. 244 § 14.
g. Under information and belief, such conduct by the

enterprise is ―threatened to be repeated or to extend
indefinitely into the future‖, as the enterprise is
involved in many other such schemes involving other
43
borrowers in the Commonwealth.
245. A RICO claim may be predicated on not only numerous

criminal violations, but also violations of certain state
criminal laws. With regards to state crimes, the RICO Act
states that a violation can be predicated upon, ―any act or
threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, illegal immigration, obscenity,
obstruction of justice, interstate transport of stolen
property, and criminal infringement of intellectual property
rights.
246. A RICO claim may also be predicated upon state criminal

laws. The RICO Act states that a violation may be predicated
upon, ―any act or threat involving murder, kidnapping,
gambling, arson, robbery, bribery, extortion which is
chargeable under State law and punishable by imprisonment of
more than one year.‖
247. 18 U.S.C. §§ 1341, 1343, states that it is a criminal

act to for anyone to use the U.S. Mail or wires to advance a
scheme to defraud. The fraudulent statements themselves need
not be transmitted by mail or wire, it is only required that
that the scheme to defraud be advanced by the U.S. Mail or
wires, See 18 U.S.C. §§ 1341, 1343.
248. Under information and belief, the Plaintiff has been

defrauded out of his monthly mortgage payments and the
attendant costs associated with the loan he has undertaken
from the Defendant enterprise, which, under information and
belief is based upon a legally unenforceable debt, and for
which the Defendant(s) have no status as a real party in
interest.
249. Under information and belief, the scheme to defraud

Plaintiff that was advanced by the enterprise (consisting of
the named and unnamed Defendants), made extensive use of the
United States Mails and wires to advance its illicit purpose
of inducing Plaintiff to undertake the mortgage loan
transaction at issue. Further, these uses of the U.S. Mails
and wires to advance the enterprise are currently ongoing.
250. The deceptive conduct that forms the basis of

Plaintiff‘s RICO claim relates to the criminal use of the
U.S. Mails and wires, as it relates to the fact that he was
fraudulently induced to undertake the mortgage loan in
question, and further that continuing correspondence was
sent to her through the U.S. Mails for this purpose.
251. Further, Defendant(s) continue to send Plaintiff

mortgage payment requests, and foreclosure notices through
the United States Mails and Wires, when evidence proffered
by Defendant(s) themselves, fails to identify that any of
the Defendants actually are entitled to any ownership claim
44
to Plaintiff‘s note, or can enforce its security instrument,

the mortgage.
252. Therefore, Defendants have defrauded Plaintiff out of

monies sent as ―mortgage payments‖ that were wrongfully
accepted by Defendants for a loan that Defendants do not
actually have any legal or equitable ownership in
whatsoever.
253. 18 U.S.C. § 1344. Bank fraud

Whoever knowingly executes, or attempts to
execute, a scheme or artifice—
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds,

credits, assets, securities, or other
property owned by, or under the custody or
control of, a financial institution, by means
of false or fraudulent pretenses,
representations, or promises; shall be fined
not more than $1,000,000 or imprisoned not
more than 30 years, or both.
254. Under 18 U.S.C. § 1344(2), bank fraud arises even if a
victim is not a bank and even if the bank did not lose any
of its own property pursuant to a scheme to defraud. Bank
fraud occurs whenever a scheme to defraud enables the
perpetrators to obtain any funds ―under the custody and
control of‖ a bank.
255. Therefore, under information and belief, Defendants

scheme to defraud the Plaintiff into procuring the mortgage
loan transaction, as well as its acquisition of funds that
Plaintiff had placed in the ―custody and control of‖ his
lending institution, includes the predicate act of bank
fraud, and thus Plaintiff has satisfied all of the elements
to establish her RICO claim as against Defendants.
256. Plaintiff further argues that yet another predicate act

is an integral ongoing predicate act being committed by the
enterprise, namely extortion, in that the enterprise makes
continued threats directed towards Plaintiff to pay a
legally unenforceable obligation, and failure to do will
result in the sale of his home.
257. As a home is the most significant asset, and most

critical component of maintaining the family unit integrity,
borrowers (Plaintiff included) will do anything to prevent
such a horrific occurrence.
258. Seizing upon this fear, SPS (as the purported servicing
member of the enterprise) commonly makes threats that it
will foreclose if Plaintiff does not comply with the demand
45
for payment of this legally unenforceable debt.
259. These threats are akin to Tony Soprano "making an offer

that you can‘t refuse". One can only imagine an H&B
Louisville Slugger being brandished about by the enterprise,
while these threatening letters and phone calls were being
made to the Plaintiff.
260. Therefore based upon the foregoing, Plaintiff has

suffered a direct injury that was proximately caused by the
furtherance of the enterprise, which was carried out through
the use of the United States Mail and wires.
261. The additional predicate acts committed by Defendants

was the fraudulent inducement of Plaintiff to relinquish
funds that were in the custody and control of his lending
institution, and extortion based upon the enterprises‘
continuing threat to collect upon a legally unenforceable
debt, and threatening to conduct a legally deficient
foreclosure auction under G.L. c. 244 § 14, for failure to
pay.
262. Plaintiff seeks all damages allowable to him under the

RICO Act, including, but not limited to, triple damages,
attorney fees, and costs.
COUNT IV
Violation of Chapter 93A and

Its Implementing Regulations
263. Plaintiff repeats and realleges all paragraphs 1-262

above as if set forth fully herein.
264. Defendants have violated G.L. c. 93A and its

implementing regulations by utilizing terms and practices
that were unfair, deceptive, and/or unconscionable. These
violations included, without limitation:
a. Making a loan on terms that were unfair and

deceptive in light of its hidden advantages to
Defendants due to its basing the issuance of the loan
solely upon the liquidation value of the residence,
create a hidden advantage to Defendants, to the
detriment of Plaintiff, in the origination of
Plaintiff‘s loan in violation of 940 C.M.R. §§ 3.04,
3.05, 3.13, and 6.05, M.G.L. c. 183 § 63 and c. 93A §
2;
b. Failing to make disclosures that comply with 940
C.M.R. § 8.05(2).
46
265. Defendants conduct was willful or knowing within the

meaning of c. 93A, § 2.
266. Plaintiff was injured and suffered damages by virtue of

these violations.
267. The demand letter requirement under c. 93A § 9 does not

apply to the Defendant Trust, or the other Defendants
because Plaintiff is asserting his claims defensively
against the foreclosure action.
268. The demand letter requirement under c. 93A § 9 also

does not apply to the Defendant Trust, or the other
Defendant(s), because the Defendant Trust, and/or Defendants
do not maintain a place of business and/or do not keep
assets within the Commonwealth.
269. The demand letter requirement under c. 93A § 9 does not

apply to Defendant Trust, or the other Defendant(s), because
Plaintiff is making claims under G.L. c. 140D.
270. Under G.L. c. 140D §34, a violation of G.L. c. 140D is

an automatic violation of G,L, c. 93A
COUNT V
Civil Conspiracy
271. Plaintiff realleges all prior paragraphs 1-270 above as

if set out here in full
272. Massachusetts recognizes two types of Civil Conspiracy.
273. The first type is commonly known as 'true conspiracy',

which occurs when the conspirators, acting in unison,
exercise a peculiar power of coercion over the Plaintiff
that they would not have had they acted alone" See Metro.
Prop. And Cas. Ins. Co. v. Boston Regional Physical Therapy,
Inc. F. Supp. 2d 199, 202 (D. Mass. 2008).
274. The second form of conspiracy recognized in

Massachusetts is the tort-based civil conspiracy is more akin
to a theory of common law joint liability in tort ... Id.
275. For liability to attach with respect to the second form

of conspiracy there must be an agreement between two or more
people to do a wrongful act and proof of some tortuous act
in furtherance of the agreement. Id.
276. This second type of civil conspiracy derives from

concerted action, 'whereby liability is imposed on one
individual for the tort of another." Kurker v. Hill, 689
N.E.2d 833, 836 (Mass App. Ct. 1998 (Citing Aetna, 43 F.3d
47
at 1564).
277. By acting in unison, Defendants exercised a peculiar

power of coercion over Plaintiff, in that Ablitt & Scofiled,
P.C., as attorney for SPS and LPS, on behalf of the
Defendant Trust, prepared and filed all relevant documents
with reference to the attempted wrongful foreclosure of the
Plaintiff‘s mortgage, something that the other Defendants
could not have accomplished on their own.
278. New Century Mortgage Corporation willfully induced

Plaintiff to undertake the mortgage loan in question based
solely upon the liquidation value of Plaintiff‘s residence,
something the other Defendants could not have accomplished
on their own.
279. Defendant SPS purportedly billed and serviced, and

accepted payments for Plaintiff‘s loan on behalf of
entity(s) that has no legal right to any claim of ownership
of Plaintiff‘s loan, something the other Defendants could
not have accomplished on their own.
280. SPS, and LPS are also apparently directing the illegal
non-judicial foreclosure action through Ablitt & Scofiled,
P.C., something the other Defendants could not have
accomplished on its own.
281. Therefore Defendant(s) meet the requirements to

establish the first type of conspiracy recognized in the
Commonwealth.
282. With regards to the second type of civil conspiracy

recognized in Massachusetts, the actions of Defendant(s)
also appear to imply they acted in concert to induce
Plaintiff to enter into the mortgage loan transaction with
scienter that it would default.
283. All Defendants have acted in concert to seek wrongful

collection on a mortgage loan that is not owned by any of
the Defendants.
284. There was an agreement between at least 2 parties (some

undisclosed) to perform an act that is at least malum
prohibitum, if not malum in se, and the tortuous act would
be the wrongful collection, and conversion of, Plaintiff's
monthly mortgage payments, and the current foreclosure
action, based upon the fact that all parties acted with
scienter that Defendants lack standing to claim any
ownership of Plaintiff's note, or mortgage, and therefore
lacked the legal right to foreclose.
285. The affirmative steps in the furtherance of the
conspiracy were
48
a. New Century Mortgage Corporation's fraudulent

inducement of Plaintiff to undertake the mortgage loan
transaction
b. SPS‘s wrongful collection of Plaintiff‘s monthly

mortgage payments (in which this entity was paid
handsomely in fees that were extracted from Plaintiff's
monthly payments).
c. Ablitt & Scofield, SPS, and LPS‘ willful creation, and

execution of legally deficient documents (such as the
fatally defective purported ―assignment‖ of the
Plaintiff‘s mortgage, and fatally defective purported
Allonge) in order to deceive the public and the
judiciary, and to purposely mask the dire gaps in title
to the Plaintiff‘s note and mortgage.
d. the purported U.S. Bank as Trustee's purported wrongful
receipt of Plaintiff‘s monthly payments on behalf of
the Trust,
e. SPS‘s prosecution of the wrongful foreclosure action as

against Plaintiff through its wrongful filing of a
complaint to foreclose in the Land Court.
f. All of these actions were undertaken, when Defendants

own evidence appears to establishes that it is
factually and theoretically impossible for any of the
Defendants to ever claim ownership to the Plaintiff's
note or mortgage.
286. Liability should be imposed on all Defendants for the

torts perpetrated by each.
287. Therefore, the requirements for the second type of

civil conspiracy recognized in Massachusetts have been met
as well.
COUNT VI
Unjust Enrichment
288. Plaintiff repeats and re alleges all prior paragraphs

1-287 above as if set forth fully herein.
289. By their wrongful acts and omissions, including but not

limited to making, servicing, and litigating the foreclosure
thereof; the predatory and unfair mortgage loan described
herein, All Defendants have been unjustly enriched at the
expense of Plaintiff, and thus Plaintiff has been unjustly
deprived.
290. By reason of the foregoing, Plaintiff seeks restitution
from Defendants, and an order of this Court disgorging all
49
profits, benefits, and other compensation obtained by all

Defendants from their wrongful conduct.
COUNT VII
Violation of G.L. c. 140D

1-290 above as if set forth fully herein
292. Defendants did not adequately make required disclosures

to Plaintiff as mandated under G.L. c. 140D § 12, and its
implementing Regulation 209 CMR 32.00, et seq.
293. Under G.L. c. 140D § 34, and violation of G.L. c. 140D,

is an automatic violation of G.L. c. 93A.
294. Plaintiff seeks redress from the Defendants violation
of this statute and seeks all available remedies from this
court that it deems just and proper.
COUNT VIII
Declaratory Judgment That the Plaintiff

Is Entitled to Rescind His Mortgage By Way of Recoupment

1-294 above as if set forth fully herein
296. New Century Mortgage Corporation failed to make

required disclosures to the Plaintiff at origination.
297. The enterprise initiated a foreclosure action against

the Plaintiff under G.L. c. 244 § 14.
298. On December 16, 2010, the Plaintiff sent a formal

notice of rescission to the Defendant(s).
299. On January 6, 2011, the Defendant enterprise, though

Ablitt & Scofield, P.C. responded by flatly denying the
Plaintiff‘s attempt to exercise his right of extended
rescission by way of recoupment under G.L. c. 140 D § 10.
300. The Defendant enterprise, through Ablitt & Scofield,

P.C., intentionally misstated the law, with regards to the
process of rescission, and in particular the tender
requirement, in the context of bankruptcy in order to
discourage the Plaintiff from pressing his rights under G.L.
c. 140 D § 10.
301. The Defendant enterprise, through Ablitt & Scofield,
P.C., also intentionally misstated the law with regards to
50
the statute of limitations for raising his right of

rescission by way of recoupment in order to discourage the
Plaintiff from pressing his rights under G.L. c. 140 D § 10.
302. New Century Mortgage Corporation, as the originating

member of the enterprise, failed to disclose certain fees
from the Plaintiff‘s HUD-1 on the Truth In Lending
Disclosure statement, thus violating G.L. c. 140 D, and its
implementing regulation.
303. The Plaintiff is raising his right to rescind by way of

recoupment defensively as a shield against the foreclosure
action brought by the Defendant enterprise.
304. Therefore the Plaintiff respectfully requests that this

court find that this purported mortgage obligation has been
rescinded.
COUNT VIII
Intentional and Negligent

Infliction of Emotional Distress

1-304 above as if set forth fully herein.
306. The Defendant(s) intended to inflict emotional distress

or in the alternative the defendant, knew or should have
known that emotional distress was likely to result from
the collective enterprise‘s conduct; involving the continued
threats to collect upon and enforce a legally unenforceable
debt.
307. Through the enterprise‘s drafting and executing legally

deficient documents to deceive this court of its standing in
this matter, the Defendant(s) conduct was extreme and
outrageous, was beyond all possible bounds of decency, and
was utterly intolerable in a civilized community;
308. The defendant‘s conduct caused the Plaintiff great

emotional distress, and
309. The Plaintiff‘s emotional distress suffered was severe

and of such a nature, that no reasonable person could be
expected to endure it.
310. The Plaintiff respectfully requests that this court

provide redress to Plaintiff in an amount that it deems
fair, just and proper in these extremely outrageous
circumstances.
51
WHEREFORE, Plaintiff respectfully requests this court to

provide the requested legal and equitable relief and any other
such relief this court deems as just and proper, including but
not limited to:
a. Declaratory Judgment that the neither the Defendant Trust,

or any other named or unnamed Defendant in this action,
possess any sufficient evidentiary indicia that provide
standing as a real party in interest to enforce the
Plaintiff‘s note under G.L. c. 106.
b. Declaratory Judgment that the neither the Defendant Trust,

or any other named or unnamed Defendant in this action,
possess any sufficient evidentiary indicia that provides
standing as a real party in interest to enforce the
Plaintiff‘s mortgage
c. That the Defendant enterprise acted collectively and
intentionally through predicate acts that proximately caused
injury to the Plaintiff
d. All other legal and equitable claims made in the above

paragraphs
e. All of Plaintiff‘s reasonable attorney fees, and attendant

costs with defending the Defendant(s) legally deficient
proof of claim in this matter, as well as its legally
deficient Motion to Lift Stay hearing.
f. All other equitable and legal remedies that this court deem
just and proper.
Respectfully Submitted,
Plaintiff
Peter H. Koufos
By his Attorney
/s/ Glenn F. Russell, Jr.

June 06, 2011 Glenn F. Russell, Jr.
52

In Re Peter Harry Koufos

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Case 11-01185 Doc 1 Filed 06/06/11 Entered 06/06/11 15:04:14 Desc Main

FORM 104 (10/06)

ADVERSARY PROCEEDING NUMBER

(Firm Name, Address, and Telephone No.) (If Known)

!!-Recovery of money/property - §542 turnover of property

66-Dischargeability- §523(a)(1),(14),(14A) priority tax claims 01-Determination of removed claim or cause

62-Dischargeability- §523(a)(2), false pretenses, false representation,

Check if a jury trial is demanded in complaint

FORM 104 (10/06), Page 2

QANKRUPl'C'f C:ASE lN WHICH TH(S ADVERSARY PRoCEEDiNG ARISU

DISTRICT IN WHICH CASE IS PENDING DIVISIONAL OFFICE

ISTRICT IN WHICH ADVERSARY IS PENDING DIVISIONAL OFFICE

PRINT NAME OF ATTORNEY (OR PLAINTIFF)

Attorneys. Give the names and addresses of the attorneys, if known.

Demand. Enter the dollar amount being demanded in the complaint.

UNITED STATES BANKRUPTCY COURT

2. Plaintiff bases his Objection in part upon the Trust‘s

promissory note executed specifically to the trust, on the

4. Plaintiff additionally bases his Objection in part upon

5. Plaintiff further bases his Objection in part upon the

6. Further, the evidence will show that New Century

7. Plaintiff seeks a determination from this court that

8. Necessarily, an examination of the sufficiency of the

9. The Plaintiff‘s promissory note is governed by the

10. The Plaintiff‘s mortgage is governed by traditional

11. Plaintiff additionally seeks redress for Defendant(s)

Plaintiff‘s mortgage by threatening ―pay or else‖.

PARTIES AND JURIDICTION

13. Plaintiff Peter H. Koufos (―Plaintiff‖) is the Debtor

14. Defendant, U.S. Bank, N.A., as Trustee on Behalf of the

15. The Defendant, Select [Portfolio Servicing, is a

16. The Defendant New Century Mortgage Company, (―New

17. The Defendant, Lender Processing Services, Inc.

18. The Defendant LPS Default Solutions. This party

LPS Default Solutions and its clients (the mortgage

19. The Defendant, Ablitt Scofield, P.C., has a principal

20. The relief sought by the complaint generally affects

21. An Adversary Proceeding is also required by Fed. R.

History of the Loan Transaction and Background

22. On January 28, 2005, the Plaintiff undertook a mortgage

24. On February 02, 2005, the Plaintiff‘s mortgage was then

25. Due to a downturn in the economy, Plaintiff‘s income

26. On January 05, 2008, Select Portfolio Servicing (―SPS‖)

27. Plaintiff diligently attempted workouts from this point

28. SPS, began threatening the Plaintiff that a foreclosure

29. Plaintiff repeatedly tried to comply with SPS‘ demands

30. In a further good-faith effort to comply with the above

31. Plaintiff attempted to send the required payment by

32. SPS, without ever recognizing that the payments sent

34. In fact, under information and belief, SPS never

35. SPS and the Enterprise have no ―skin in the game‖, as

36. SPS maintains that it was collecting payments on behalf

37. Plaintiff respectfully queries this court as to exactly

38. Under information and belief, SPS and the enterprise

40. As part of the Plaintiff rescission, he sent

41. On January 14, 2010, New Century responded by

Article 3 of the U.C.C., codified in Massachusetts G.L. c. 106

43. G.L. c. 106 recites only one exception for not

to enforce the same instrument

44. Under information and belief, even this attempt to

45. In recent months, substantial evidence has come to

47. Only at the Motion to Lift Stay hearing did the

48. Again the necessity of the original is required, as an

New Century Mortgage Corporation Bankruptcy