HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley

8/2/2019 HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley

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COMMONWEALTH OF MASSACHUSETTSSUPREME JUDICIAL COURT

_____________________

NO. SJC-11101________________________________

HSBC BANK USA, N.A. & ACE SECURITIES CORP.HOME EQUITY LOAN TRUST SERIES 2005-HE4

Plaintiff-Appellee,

V.

JODI B. MATT

Defendant-Appellant,

_________________________________

ON APPEAL FROM AN ORDER OF FINALJUDGMENT FROM THE LAND COURT

________________________________________

AMICUS CURIAE OF ROBERT P. MARLEY______________________________________________

Robert P. Marley Pro-se18 Lakeview DriveLynnfield, MA [email protected]

March 6, 2012
mailto:[email protected]:[email protected]


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TABLE OF CONTENTS

I. TABLE OF AUTHORITIES.iii, iv, v & viII. STATEMENT OF INTEREST OF AMICUS CURIAE1III. STATEMENT OF THE ISSUES.....2IV. ARGUMENT..2

A) Examination Of Standing Begins And HingesAt The Trust Level and Standing Can Only

Derive from the Trust Instruments7

V. A BASIC TENANT OF LAW REQUIRES THATTHE PROPER PARTIES ARE BEFORE A COURT OF LAW,JURISDICTIONALLY AND SUBSTANTIVELY.14

VI. THE APPELLEE TRUST HAS NO STANDING TO BRING ANACTION UNDER THE SERVICEMEMBERS ACTBECAUSE THERE HAS BEEN NO VALID ENFORCEABLEASSIGNMENT TO THE TRUSTEE OF THE TRUST.16

A) The Appellee Trust Is A New York CommonLaw Trust Controlled By New York Law Basedon Its Trust Instruments.16

B) The Trust Instruments Sets Forth AnUnambiguous Time, Method And Manner OfFunding The Trust.21

VII. THE TRUST AGREEMENT PROVIDES THE ONLY MANNERIN WHICH ASSETS MAY BE PROPERLY TRANSFERRED TOTHE TRUST AND ANY ACT IN CONTRAVENTION OF THE

TRUST AGREEMENT IS VOID.23

A) Transfer Of Assets To The Trust MustBe Pursuant To The Trust Instruments23

B) New York Law Governs the MandatoryObligations To Effectively Transfer AnAsset To A Trust.28


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I. TABLE OF AUTHORITIESMASSACHUSETTS CASES

Bello v. South Shore Hospital,384 Mass. 770, 778 (1981).15

285 Lynn Shore Drive Condominium Trust v. AUTOMATICSPRINKLER APPEALS BOARD,

47 Mass. App. Ct. 437, 441 (1999)14

Ginther v. Commissioner of Insurance,427 Mass. 319, 322 (1998).15

US Bank National Association v. Ibanez,458 Mass. 637 (2011).39

NEW YORK CASES

AG Capital Funding Partners, L.P. v. State St. Bank & TrustCo.,

2008 N.Y. Slip Op. 5766, 7 (N.Y. 2008).33

Allison & Ver Valen Co. v. McNee,170 Misc. 144, 146 (N.Y. Sup. Ct. 1939).40

Brown v. Spohr,180 N.Y. 201, 73 N.E. 14, 17 (1904)4, passim

Burgoyne v. James,282 N.Y.S. 18, 21 (1935).29

Corp. v. Bankers Trust Co.,151 Misc. 2d 334, 336 (N.Y. Sup. Ct. 1991)24

Green v. Title Guarantee & Trust Co.,223 A.D. 12, 227 N.Y.S. 252 (1st Dept.), affd, 248N.Y. 627 (1928).33

Gruen v. Gruen,68 N.Y.2d 48, 56 (N.Y. 1986).30


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Hazzard v. Chase National Bank,159 Misc. 57, 287 N.Y.S. 541 (Sup. Ct. 1936)33

Heller v. Pope,250 N.E. 881, 882 (N.Y. 1928).32

In re Becker,2004 N.Y. Slip Op. 51773U, 4 (N.Y. Sur. Ct. 2004)29

In re Doman,68 A.D.3d 862, 890 N.Y.S.2d 632,634(2dDep't2009.4

In re Estate of Plotkin,290 N.Y.S.2d 46, 49 (N.Y. Sur. 1968)29

In Re IBJ Schroder Bank & Trust Co.,271 A.D.2d 322 (N.Y. App. Div. 1st Dept (2000))20,34

In re Natl Commer. Bank & Trust Co.,257 A.D. 868, 869-870(N.Y. App. Div.3d Dept(1939)..37

Kermani v. Liberty Mut. Ins. Co.,4 A.D.2d 603 (N.Y. App. Div. 3d Dept 1957).31

Martin v. Funk,75 N.Y. 134, 141 (1878).4

Morlee Sales Corp. v. Manufacturers Trust Co.,

172 N.E.2d 280, 282 (N.Y. 1961).32

Phillippsen v. Emigrant Indus.Sav. Bank,86 N.Y.S.2d 133, 137-138 (N.Y. Sup. Ct. 1948).36

Schmidt v. Magnetic Head Corp.,468 N.Y.S.2d 649, 654 (N.Y. App.Div. 1983).32

Sussman v. Sussman,61 A.D.2d 838 (N.Y. App. Div. 2d Dept 1978).31,35

United States Trust Co. v First Natl City Bank,57 A.D.2d 285, 295-296 (1977).19

Vincent v. Putnam,248 N.Y. 76, 82-84 (N.Y. 1928)36

Wells Fargo Bank v. Farmer,2008 N.Y. Misc Lexis 324831


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Wells Fargo Bank, N.A. v. Farmer,2008 NY Slip Op 51133U, 6 (N.Y. Sup. Ct. 2008).31,35

HSBC BANK USA, NA v. SENE,

2012 NY Slip Op 50352 - NY: Supreme Court (2012)42

FEDERAL CASES

Agudas Chasidei Chabad of U.S. v. Gourary,833 F.2d 431, 434 (2d Cir.1987).4

In re Dreier LLP,452 BR 391 Bankr. Court, SD New York (2011).5

LFD Operating, Inc. v. Ames Dep't Stores, Inc. (In re AmesDep't Stores, Inc.),

274 B.R. 600, 623 (Bankr.S.D.N.Y.2002).4

Mayfield v. First Natl Bank of Chattanooga,137 F.2d 1013 (6th Cir. 1943).29

Meckel v. Continental Resources,758 F.2d 811, 816 (2d Cir. 1985).33

MISCELLANEOUS CASES

Grant Trust & Savings Co. v. Tucker,49 Ind. App. 345, 353, 96 N.E. 487, 489 (1911).37

Furenes v. Eide, 109 Iowa,511, 80 NW 539 (1899).37

Dickeschied v. Exchange Bank,28 W. Va. 340, 368 (1886).37

Love v. Francis,63 Mich. 181(1886).37

STATUTORY LAW


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MASSACHUSETTS GENERAL LAWSC. 266 Section 35A.12

New York Estates, Powers & Trusts,(EPTL)Part 2 - 7-2.411, passim

New York Estates, Powers & Trust,7-2.1(c).31,38

Servicemembers Civil Relief Act,50 U.S.C. App. 501 et seq.(ACT).14

USC : TITLE 26 - INTERNAL REVENUE CODE PART IV - REALESTATE MORTGAGE INVESTMENT CONDUITS SECTION 860 A Gpassim

OTHER AUTHORITIES

Comptroller of the Currency of the United States Treasury,Safety and SoundnessHand-Book (Asset Securitization)http://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdf....6

Pooling & Servicing Agreement Dated June 1, 2005

http://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txt10, passim

Prospectus Supplement Dated June 23, 2005http://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txt10, passim

Mortgage Loan Purchase Agreement (MLPA) Dated Feb 1, 2006from series 2006-HE1http://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htm25
http://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdf


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II. STATEMENT OF INTEREST OF AMICUS CURIAEThis is the second time your Amicus has been

compelled to file a Brief as a Friend of the Court.

Yourpro-se Amicus is a lifelong resident of

Massachusetts and he has studied and investigated the

matter of Securitization of Asset Backed Securities

extensively for the past three years. Your Amicus

believes this Brief would be desirable to this

Honorable Court because it explains and simplifies the

issues of a Securitized REMIC Trusts, the road the

note and mortgage must traverse, what laws control,

and whether those laws were tracked, as it relates to

the securitization of the note and mortgage at issue

that would grant or deny the Appellees in the above

captioned matter, legal standing in any Massachusetts

Court of Law.

As a concerned citizen and homeowner embroiled in

the current foreclosure crisis which has sparked a

Nationwide Controversy, your Amicus has an interest in

the instant action. Your Amicus respectfully submits

this Brief without hyperbole or rhetoric.


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III. STATEMENT OF THE ISSUESThis Brief focuses on the ramifications of late

Assignment of Jodi B Matts (Appellant) Note and

Mortgage and limited issues of the REMIC Trust, HSBC

BANK USA, N.A as Trustee and ACE Securities Corp. Home

Equity Loan Trust Series 2005-HE4, collectively

(Appellee Trust), the Trust Instruments, New York

Statutory and Black Letter Law, and the IRS Code.

Further, what is required to insure the Trust legally

possesses the Note and Mortgage (Asset), which would

give the Appellee Trust or any party bound by the

Trust Instruments, a legal, enforceable right in the

Note or Mortgage whereby the parties to the Trust

Instruments could have standing in any legal action

whatsoever.

The combined Trust Instruments are well over a

thousand pages therefore, the references made herein

are the bare minimum required to demonstrate the

Appellee Trust never owned the Asset in the instant

matter and never will.

IV. ARGUMENTThis Honorable Court has solicited amicus briefs

on whether the Land Court Judge correctly concluded


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that a bank had standing to commence an action to

determine whether the defendant (alleged to be in

breach of her mortgage obligations) was entitled to

the benefits of the Servicemembers Civil Relief Act on

the ground that the bank had a contractual right to

become the holder of the note and mortgage.

To give standing to the Appellee Trust on future,

unattainable rights, was erroneous and respectfully,

the Land Court (Long, J.) needed to look no further

than the late assignment of mortgage CREATED on

November 6, 2007 and recorded on November 16, 2007 in

the Norfolk County Registry of Deeds.

Notwithstanding any other law, the Final

Authorityas it relates to the assignment of the note

and the conveyance of the mortgage to the Securitized

Trust created under the Laws of New York are New York

Laws and the Pooling & Servicing Agreement (PSA) dated

June 1, 2005. See PSA 2.10 Establishment of the

Trust:

The Depositor does hereby establish,

pursuant to the further provisions of thisAgreement and the laws of the State of New

York, an express trust to be known, for

convenience, as "ACE Securities Corp., Home

Equity Loan Trust, Series 2005-HE4" and does

hereby appoint HSBC Bank USA, National


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Association as Trustee in accordance with

the provisions of this Agreement.1

See also PSA 12.04. Governing Law: This

Agreement shall be construed in accordance

with the laws of the State of New York and

the obligations, rights and remedies of the

parties hereunder shall be determined in

accordance with such laws without regard to

conflicts of laws principles thereof.

Under New York law, "[a] valid express trust

requires (1) a designated beneficiary, (2) a

designated trustee, (3) a fund or other property

sufficiently designated or identified to enable title

of the property to pass to the trustee, and (4) actual

delivery of the fund or property, with the intention

of vesting legal title in the trustee." In re Doman,

68 A.D.3d 862, 890 N.Y.S.2d 632, 634 (2d Dep't 2009)

(citing Brown v. Spohr, 180 N.Y. 201, 73 N.E. 14, 17

(1904)). An express trust may be created orally or in

writing; no particular form of words is necessary.

Agudas Chasidei Chabad of U.S. v. Gourary, 833 F.2d

431, 434 (2d Cir.1987) (citing Martin v. Funk, 75 N.Y.

134, 141 (1878)). See also LFD Operating, Inc. v. Ames

Dep't Stores, Inc. (In re Ames Dep't Stores, Inc.),

274 B.R. 600, 623 (Bankr.S.D.N.Y.2002) ("An express

1 Referenced in Article II of the PSA


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trust is a fiduciary relationship with respect to

property, subjecting the person by whom the title to

property is held to equitable duties to deal with the

property for the benefit of another person, which

arises as a result of a manifestation of an intention

to create it. Generally, four elements comprise an

express trust: (i) a designated beneficiary; (ii) a

designated trustee who is not the beneficiary; (iii) a

fund or other property sufficiently designated or

identified to enable title thereto to pass to the

trustee; and (iv) the actual delivery of the fund or

other property, or the legal assignment thereof to the

trustee, with the intention of passing legal title

thereto to him or her as trustee.") (internal

quotation marks omitted) (quoting RESTATEMENT (SECOND)

OF TRUSTS 2 (1959)). In re Dreier LLP, 452 BR 391

Bankr. Court, SD New York (2011)

No standing or rights ascribes to the Appellee

Trust whereas, the terms set forth in the Trust

Instruments were violated and the mere fact the New

Century Mortgage createdthe above assignment in 2007

is evidence one did not exist in 2005 as set forth

more fully infra.


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Your Amicus does not brief the issues based on a

Third Party Beneficial Interest to the Contracts and

merely points out that the Parties are duty bound by

the Trust Instruments and must adhere to those

Instruments and if they do not, then New York Law,

inter alia, deems the Partys action void. The rights

and duties bestowed on the Parties of the Trust only

derived from the Trust Instruments and to shed light

on whether these Rights exist, we must refer to the

Instruments of the Trust.

Alternatively, all Borrowers are Third Party

Beneficiaries to the Trust and Trust Instruments.

Your Amicus would refers this Honorable Courts

attention to the, Office of the Comptroller of the

Currency of the United States Treasury, Safety and

Soundness Hand-Book (Asset Securitization).2

Particularly stated, Borrowers benefit from the

increasing availability of credit on terms that

lenders may not have provided had they kept the loans

on their balance sheets. (Benefits of Asset

Securitization), @ p. 4.

2http://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdf
http://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdfhttp://www.occ.treas.gov/publications/publications-by-type/comptrollers-handbook/assetsec.pdf


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These benefits, which may increase the soundness

and efficiency of the credit extension process, can

include a more efficient origination process, better

risk diversification, and improved liquidity. A look

at the roles played by the primary participants in the

securitization process will help to illustrate the

benefits. (Parties to the Transaction) @ p. 7, see

also, Chart on p. 8, where borrowers reside at the top

of the food chain. Borrowers are the intended third

party beneficiaries of the freed up cash flow from the

trusts whereas, without the trusts, there would be no

money for the borrowers as is the stated intention of

the Securitization Players.

Your Amicus respectfully request that the

Honorable Justices take Judicial Note of the Public

Records from the various Government entities cited

herein the footnotes.

A) Examination Of Standing Begins And Hinges At TheTrust Level And Standing Can Only Derive From The

Trust Instruments

With all due respect to the Land Court (Long,

J.), your Amicus submits that it was Error of Law, to

consider the future contractual rights of HSBC BANK


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USA, N.A. and ACE Securities Corp. Home Equity Loan

Trust Series 2005-HE4 (Appellee Trust).

To determine standingwithout first considering

and determiningif delivery and acceptance of the

Asset perfected and dominion and control over the

Assets was relinquished by the giver of the Asset

pursuant to the Law thereby giving the Trust control

over the Asset.

To give standing on a future, unattainable right

that is Expressly Prohibitedby Local law, PSA and the

IRS Code, was erroneous.

The Vault Door to the Appellee Trust was Welded

shut on September 27, 2005 to the loan at issue

whereas, the Affidavit filed by Sharon Mason states

the loan at issue was purchased on September 6, 2005,

albeit without proof. See Supplemental Affidavit of

Sharon Mason, dated May 13, 2010, @ p. 2, 4 attached

to the Appellants record (A-96). Even more

inexplicable is that the evidence submitted to the

Land Court suggested that the Asset at issue was in

ACE Securities Corp. Home Equity Loan Trust Series

2005-HE2 and Not in Series 2005-HE4 as claimed. See

Appellants Record (A-191,195).


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If there were a legal assignment of the Asset to

the Appellee Trust on September 6, 2005, then the need

to create one on November 6, 2007, would not have been

required. Most telling is that in the mortgage

assignment of November 6, 2007, is that New Century

Mortgagenotwithstanding the fact was in bankruptcy

also assigned the Note, clearly indicating, the

Appellee Trust never legally possessed [it] on or

before September 27, 2005. See Mortgage Assignment

attached to the Appellants record as A-26.

The Appellee Trust in the instant action lost

their rights in the Asset when they violated New York

Law, inter alia, and therefore, had no standing in the

Massachusetts Land Court.

The Land Court was on the right track, yet did

not go far enough in its inquiry related to the Trust,

and what was required for the Trust too legally

acquire the Assets. Had the Court gone further, it

would have realized, it needed go no further than the

late assignment createdon November 6, 2007.

The Memorandum and Order (Memo) of the Land

Court, in the above captioned matter, states in

pertinent part, the record clearly shows that HSBC

has a contractual right to become that holder,


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conferred by the ACE Securities Corp. Home Equity Loan

Trust, Series 2005-HE4 Asset Backed Pass-Through

Certificates Pooling and Servicing Agreement (Jun. 1,

2005). See Section 2.01 (Conveyance of the Mortgage

Loans to Ace Securities Corp. Home Equity Loan Trust,

Series 2005-HE4) and the associated loan schedules

(which include the Matt loan and mortgage). (Emphasis

added).

The Assignment or Mortgage dated November 6,

2007, to the Appellee Trust was an Unlawful

Assignment. There is no legal, valid, enforceable

assignment of the note and conveyance of the mortgage

to the Appellee Trust, unless it complies with the

mandates of Trust Instruments, IRS 860A-G and New York

Law as explained more fully infra.

The Appellee Trust was created by the terms set

forth in the Trust Instruments, Pooling & Servicing

Agreement (PSA),3 dated June 1, 2005, with the

closing date of June 29, 2005, and the Prospectus

Supplement (PS) dated June 23, 2005.4 All the Assets

3http://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txt4http://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txt
http://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1063292/000093041305004629/c37978_424b5.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txthttp://www.sec.gov/Archives/edgar/data/1331559/000088237705001857/d348511.txt


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Must have be assigned to the Trust on the Closing

Date. See PS @ S-2. On the closing date, the

trust will contain 6,429 conventional, one- to

four-family, first and second lien fixed-rate and

adjustable-rate mortgage loans on residential real

properties (the "Initial Mortgage Loans").

The evidence is clear that the above-mentioned

assignment was not created and executed within the

permitted period. Accordingly, no rights derived from

the Appellee Trust and as a result, the Appellee Trust

has no rights in the note and mortgage and therefore,

no standing whatsoever in any action at law.

Contrary to New York Law and IRS 860 the Appellee

Trust exercised a prohibited act on November 6, 2007

and the above assignment was contrary to the Trust

Instruments and therefore Void pursuant to IRS 860A-G

and New York Estates, Powers & Trusts - Part 2 - 7-

2.4. Any action which deviates from the Trust

documents is void. 7-2.4 Act of trustee in

contravention of trust If the trust is expressed in

the instrument creating the estate of the trustee,

every sale, conveyance or other act of the

trustee in contravention of the trust, except as


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authorized by this article and by any other provision

of law, is void.

No possession of the Asset exists until there has

been a delivery and an acceptance of the Asset and the

giver of the Asset has relinquished all dominion and

control over the Asset signifying a true sale of the

Asset to the Appellee Trust thereby making the Asset,

inter alia, bankruptcy remote and securely within the

Trust Vault.

The failure of New Century Mortgage to timely

assign the Asset to the Appellee Trust and the

Appellee Trust to discover this Fact, makes any future

attempts after the closing date had past, void

pursuant to New York Law, and the late assignment was

a prohibited act pursuant to IRS 860G as not being a

qualified mortgage. Moreover, the parties Knew they

had no authority to alter the composition of the Trust

as demonstrated infra and the late assignment further

violated M.G.L. c. 266 35A.

A threshold matter to determine that the Appellee

Trust had standing in the Land Court was to determine

whether the Appellee Trust legally possessed the

Asset. Clearly, the record dictates the Trust did not,

as evidenced by the unlawful assignment two plus years


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after the closing date of the Trust. Moreover, the

Land Court acknowledges in the Memo at p. 2, Indeed,

it is not clear from the record that HSBC is the

current holder of either the note or the mortgage.

Further stating, But a plaintiff need not be the

current holder of the note or the mortgage to have

standing in a Servicemembers case. It is sufficient

if the plaintiff satisfies the general requirements of

standing.

It is axiomatic to standing to have an

enforceable right under the note and mortgage, without

such, there is no reason to file under the

Servicemembers Act. Whereas, there is no justiciable

controversy in that, the Appellee Trust has no rights

because those rights do not exist whereas they do not

own or hold the note and mortgage or have an

enforceable right under such therefore, Appellee Trust

cannot suffer harm and no jurisdictional issue arises.

Therefore, the Appellee Trust could not invoke the

subject matter jurisdiction of the Land Court.

In a securitized mortgage, the rights of the

parties derive from the Trust Instruments created

under New York Law. If the Appellee Trust has violated

the terms of the Trust Instruments, then they have no


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rights because New York Law voids any action, which

contravenes the Trust Instruments.

Accordingly, in light of the evidence in the

record from the Land Court, logically, Appellees were

one, claiming to be that of which they were not,

making them charlatans without standing and not a

proper party before a court of law as set forth more

fully infra.

V. A BASIC TENANT OF LAW REQUIRES THAT THEPROPER PARTIES ARE BEFORE A COURT OF LAW,

JURISDICTIONALLY AND SUBSTANTIVELY

A precursor to a foreclosure action in

Massachusetts is the filing of a civil complaint in

accordance with the Servicemembers Civil Relief Act 50

U.S.C. App. 501 et seq. (ACT). In any action at law,

only the proper party may bring a Legal Action. In

law, the proper party is the one who actually

possesses the substantive right being asserted and has

a legal right to enforce the claim (under applicable

substantive law).

A party has standing when it can allege an

injury within the area of concern of the statute or

regulatory scheme under which the injurious action has

occurred. 285 Lynn Shore Drive Condominium Trust v.


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AUTOMATIC SPRINKLER APPEALS BOARD, 47 Mass. App. Ct.

437, 441 (1999).

Even if there is an actual controversy, a

plaintiff must demonstrate the requisite legal

standing to secure its resolution. Bello v. South

Shore Hospital, 384 Mass. 770, 778 (1981).

We treat standing as an issue of subject matter

jurisdiction. See Doe v. The Governor, 381 Mass. 702,

705 (1980). "The question of standing is one of

critical significance. `From an early day it has been

an established principle in this Commonwealth that

only persons who have themselves suffered, or who are

in danger of suffering, legal harm can compel the

courts to assume the difficult and delicate duty of

passing upon the validity of the acts of a coordinate

branch of government.' " Tax Equity Alliance v.

Commissioner of Revenue, 423 Mass. 708, 715 (1996),

quoting Doe, supra at 704, Ginther v. Commissioner

of Insurance, 427 Mass. 319, 322 (1998).

Accordingly, as a threshold matter, the party

bringing the action under the ACT would have to

demonstrate a legal right to the debt and demonstrate

they have suffered harm. If an agent on behalf of

owner, proof of agency; how the party came by the


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right to enforce the debt (Note); proof of such right

by way of assignment, indorsement and proof of

delivery and acceptance of the note and conveyances of

the mortgage pursuant to the statutes of fraud. The

Late Assignment of mortgage dated November 6, 2007 is

clear evidence the Appellee Trust had no standing in

the Land Court as set forth infra.

If the moving party cannot demonstrate these

threshold relationships and proof of said

relationships through an unbroken chain of title,

then, such as the Appellee Trust here in the instant

action, it has no legal standing to bring an action

under the ACT.

VI. THE APPELLEE TRUST HAS NO STANDING TO BRING ANACTION UNDER THE SERVICEMEMBERS ACT BECAUSE THERE

HAS BEEN NO VALID ENFORCEABLE ASSIGNMENT TO THE

TRUSTEE OF THE TRUST

A) The Appellee Trust Is A New York Common LawTrust Controlled By New York Law Based On

Its Trust Instruments

Because Jodi B. Matts (Appellant) loan

securitized in 2005it must stand that when the

Appellee Trust filed under the ACTthey filed as the

purported legal owner and holder of the note and had a

legal right to enforce the mortgage. The Trust is not


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the originator of the mortgage, the servicer, or even

a bank. Instead, this entity is a New York Common Law

Trust created by an agreement known as the Pooling

and Service Agreement (PSA). Purportedly, the

Appellants loan, along with 8,553 other loans, were

pooled into a REMIC Trust and converted into

residential mortgage-backed securities (RMBS) that are

bought and sold by investorsa process known as

securitization, as certificates. See PS @ S-2 Mortgage

Loans.

The PSA also incorporates by reference @ 2.01,

a separate document called the Mortgage Loan Purchase

Agreement (MLPA). These documents, and the acquisition

of the mortgage assets for the Trust, are controlled

by New York Law pursuant to PSA 12.04 & 12.10 supra.

REMICs are widely used securitization vehicles for

mortgages and are governed by sections 860A through 860G of

the Internal Revenue Code Section 860D (a) (4) of the Code

provides that an entity qualifies as a REMIC only if, among

other things, as of the close of the third month beginning

after the startup day and at all times thereafter,

substantially all of its assets consist of qualified

mortgages and permitted investments.


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This asset test is satisfied if the entity owns no

more than a de minimis amount of other assets. See

1.860D1(b) (3) (i) of the Income Tax Regulations. As a

safe harbor, the amount of assets other than qualified

mortgages and permitted investments is de minimis if the

aggregate of the adjusted bases of those assets is less

than one percent of the aggregate of the adjusted bases of

all the entitys assets. 1.860D1 (b) (3) (ii).

With limited exceptions, a mortgage loan is not a

qualified mortgage unless it is transferred to the REMIC on

the startup day in exchange for regular or residual

interests in the REMIC. See 860G (a) (3) (A) (i).

See PSA @ 11.01 (b): The Closing Date is hereby

designated as the "Startup Day" of each Trust REMIC within

the meaning of Section 860G(a)(9) of the Code.

The legislative history of the REMIC provisions

indicates that Congress intended the provisions to apply

only to an entity that holds a substantially fixed pool of

real estate mortgages and related assets and that has no

powers to vary the composition of its mortgage assets. S.

Rep. No. 99313, 99th Cong., 2d Sess. 79192; 19863 (Vol.

3) C.B. 79192. Section 860F (a) (1) imposes a tax on a

REMIC equal to 100 percent of the net income derived from

prohibited transactions. The disposition of a qualified


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mortgage is a prohibited transaction unless the disposition

is pursuant to (i) the substitution of a qualified

replacement mortgage for a qualified mortgage; (ii) a

disposition incident to the foreclosure, default, or

imminent default of the mortgage;(iii) the bankruptcy or

insolvency of the REMIC; or (iv) a qualified liquidation.

Section 860F (a) (2) (A).

The underlying promissory notes of every mortgage

purportedly held by the Appellee Trust serve to

generate a potential income stream for investors. The

Trust, purportedly holding the Appellants note and

mortgage was created on June 1, 2005, and by its

terms, set a cut off date at June 1, 2005 and

closing date of June 29, 2005. The terms of the

Trust are contained in the PSA, which creates the

Trust and defines the rights, duties and obligations

of the parties to the Trust Agreement.

It is settled that the duties and powers of a

trustee are defined by the terms of the trust

agreement and are tempered only by the fiduciary

obligation of loyalty to the beneficiaries. See,

United States Trust Co. v First Natl City Bank, 57

A.D.2d 285, 295-296 (1977), affd 45 NY2d 869 (1978);

Restatement [Second] of Trusts 186, comments a, d).


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See, In Re IBJ Schroder Bank & Trust Co., 271 A.D.2d

322 (N.Y. App. Div. 1st Dept (2000)).

The PSA was filed under oath with the Securities

and Exchange Commission. The Trust, suing through its

Trustee (HSBC), is a New York Corporate Trust formed

to act as a REMIC Trust pursuant to the U.S.

Internal Revenue Code (IRC). Pursuant to the terms of

the Trust and the applicable Internal Revenue Service

(IRS) regulations adopted and incorporated into the

terms of the Trust, the closing date of the Trust

(June 29, 2005) is also the Startup Day for the

Trust under the REMIC obligations of the IRC. The

Startup Day is important because the IRC authorizes

how and when a REMIC Trust may receive its assets on

this date.5

The PSA adopts these sections of the IRC by

requiring the parties to the Trust to avoid any action

that might jeopardize the tax status of any REMIC

and/or impose any tax upon the Trust for prohibited

contributions or prohibited transactions. These PSA

provisions are important to the courts analysis of

5 See, PSA Article XI. 11.01 REMIC Administration(b) The Closing Date is hereby designated as the"Startup Day" of each Trust REMIC within the meaningof Section 860G(a)(9) of the Code. However, see entiresection for prohibited transactions.


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transfers of assets from the depositor to the Trust.8

Thus, for an asset to become an Asset of the Trust, it

MUSThave transferred to the Trust within the time set

forth in the PSA and PS.

The extra 90 days in the timeline requirement

incorporated from the REMIC stipulations of the IRC is

to provide a clean-up period for a REMIC to complete

the documents associated with the transfers of assets

to a REMIC after the startup day (which is also the

Trust closing date). Consequently, according to the

plain terms of the Trust Instruments in this case,

the closing date/startup date was June 29, 2005 and

the last day for transfer of assets into the Appellee

Trust was the fixed date of September 27, 2005.

However, for the Appellee Trust to have legally

obtained the Asset and for the Trust to create

certificates based on that Asset, a legal assignment

of the note and mortgage to the Trust was required by

the closing date of June 29, 2005. That means that,

as a matter of law there had to be an indorsement from

the first assignee to the last without a break in the

chain of title. There is no bona fide purchase unless

8 These requirements is found @ ARTICLE XI, 11.01.REMIC Administration (a) through (k)


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the transfer to the Appellee Trust complied with the

statutes of fraud. No such assignment is evident in

the record and the record indicates there was never a

legal enforceable assignment within the prescribed

period set forth in the Trust Instruments and

therefore, the late assignment dated November 6, 2007

is void, as it violates the terms of the Trust

Instruments, IRS 860 et seq., and New York Law deems

it Void.

VII. THE TRUST AGREEMENT PROVIDES THE ONLY MANNER INWHICH ASSETS MAY BE PROPERLY TRANSFERRED TO THE

TRUST AND ANY ACT IN CONTRAVENTION OF THE TRUST

AGREEMENT IS VOID

A) Transfer Of Assets To The Trust Pursuant To TheTrust Instruments

Generally, the underlying assets of the Trust,

specifically the individual promissory notes, may be

transferred or conveyed by several methods. A Trusts

ability to transact is restricted to the actions

authorized by its Trust Instruments. In this case, the

Trust Instruments permit only one specific method of

transfer to the Trust. That method is set forth in

Section 2.01 of the PSA:

Section 2.01: The Depositor, concurrently

with the execution and delivery hereof, does

hereby transfer, assign, set over and

otherwise convey to the Trustee, on behalf


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of the Trust, without recourse, for the

benefit of the Certificateholders, all the

right, title and interest of the Depositor,

including any security interest therein for

the benefit of the Depositor, in and to the

Mortgage Loans identified on the Mortgage

Loan Schedule, the rights of the Depositor

under the Mortgage Loan Purchase Agreement

(including, without limitation the right to

enforce the obligations of the other parties

thereto thereunder) and the Subsequent

Mortgage Loan Purchase Agreement, such

assets as shall from time to time be

credited or are required by the terms of

this Agreement to be credited to the Pre-

Funding Account, and all other assets

included or to be included in REMIC I.

Such assignment includes all interest and

principal received by the Depositor and the

Servicers and the Interim Servicer on or

with respect to the Mortgage Loans (other

than payments of principal and interest due

on such Mortgage Loans on or before the Cut-

off Date). The Depositor herewith deliversto the Trustee and each Servicer an executed

copy of the Mortgage Loan Purchase

Agreement.

The analysis of this transfer language requires

the Court to consider each part. The affirmative

language of the Trust PSA places a Duty on the

depositor to make a valid legal transfer in the terms

required by the Trust instrument. The Mortgage Loan

Purchase Agreement (MLPA) is incorporated by reference

into section 2.01 of the PSA. However, it is not


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attached as an exhibit to the PSA in the instant

matter and the parties did not start attaching the

MLPA to the PSA until 2006 therefore, Your Amicus will

refer this Honorable Courts attention to the

boilerplate MLPA in a subsequent filing on the US

Securities and Exchange Commissions web-site. See

MLPA below, marked as Exhibit F in the PSA. 9

See In Particularly SECTION 4. Transfer of the

Mortgage Loans:

(a) Possession of Mortgage Files: The Sellerdoes hereby sell to the Purchaser, withoutrecourse but subject to the terms of thisAgreement, all of its right, title andinterest in, to and under the Mortgage Loans,including the related Prepayment Charges. Thecontents of each Mortgage File not deliveredto the Purchaser or to any assignee,transferee or designee of the Purchaser on orprior to the Closing Date are and shall be

held in trust by the Seller for the benefitof the Purchaser or any assignee, transfereeor designee of the Purchaser. Upon the saleof the Mortgage Loans, the ownership of eachMortgage Note, the related Mortgage and theother contents of the related Mortgage Fileis vested in the Purchaser and the ownershipof all records and documents with respect tothe related Mortgage Loan prepared by or thatcome into the possession of the Seller on orafter the Closing Date shall immediately vest

in the Purchaser and shall be deliveredimmediately to the Purchaser or as otherwisedirected by the Purchaser.

9http://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htm
http://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htmhttp://www.sec.gov/Archives/edgar/data/1353171/000088237706001569/d444644_ex4-1.htm


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second lien on the Mortgaged Propertyrepresented therein as a fee interest vestedin the Mortgagor;

(vii) the original of any guarantee executed

in connection with the Mortgage Note, if any;and

(viii) the original of any securityagreement, chattel mortgage or equivalentdocument executed in connection with theMortgage, if any.

Accordingly, there must be a complete, unbroken

chain of assignments and endorsements in order to

divest allprior to entering the TRUST of Pooled

Assetsof dominion and control over the assets, the

Note and Mortgage. The only party which could maintain

any rights in the note and mortgage, would be the

Trust, however, because there was no lawful assignment

to the Appellee Trust in the instant matter, it has no

enforceable rights under the Note and Mortgage.

The foregoing requirement demonstrates clearly

that while the parties to the securitization Trust

made provisions whereby promissory notes for this

Trust might be delivered in blank to the Trustee;

there were two requirements that weremandatory.

First, all notes sold to the Trust were required to

have an unbroken chain of endorsements from the

original payee to the person endorsing it to the


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Trustee. This requirement stems from a particular

business concern in securitization, namely to evidence

that there was in fact a true sale of the

securitized assets and that they are in no way still

property of i.e., the originator, sponsor, or

depositor, and thus not subject to the claims of

creditors of the originator, sponsor, or depositor.

Second, there was a requirement that ultimately,

on or before the Trust closing date, the actual

promissory note must be endorsed over to the trustee

for the specific trust to effectively transfer the

asset into the Trust and therefore, make the

Appellants promissory note Trust property. This

requirement finds support in logic and law and is, in

fact, the prehistoric and settled Law of New York on

this issue. The fact that the November 6, 2007

assignment of mortgage also assigns the note evidences

that the note was never timely or legally assigned to

the Appellee Trust.

B) New York Law Governs The Mandatory Obligations ToEffectively Transfer An Asset To A Trust

It is settled law that securitization trusts,

such as the Appellees, are subject to the common law


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of New York.10New Yorks Trust Law is ancient and

settled. There are a few principles of New York Trust

Law that are particularly important to the analysis of

whether any particular asset is an asset of a given

Trust. Under New York Law, the analysis of whether an

asset is Trust property is determined under the law of

gifts.11 In order to have a valid inter vivos gift,

there must be a delivery of the gift (either by a

physical delivery of the subject of the gift) or a

constructive or symbolic delivery (such as by an

instrument of gift) sufficient to divest the donor of

dominion and control over the property12and what is

10 As early as 1935, in Burgoyne v. James, 282 N.Y.S.

18, 21 (1935), the New York Supreme Court recognizedthat business trusts, also known as Massachusetts

trusts, are deemed to be common law trusts. See alsoIn re Estate of Plotkin, 290 N.Y.S.2d 46, 49 (N.Y.Sur. 1968) (characterizing common stock trust funds ascommon law trust[s]). Other jurisdictions are in

accord. See, e.g., Mayfield v. First Natl Bank ofChattanooga, 137 F.2d 1013 (6th Cir. 1943) (applyingcommon law trust principles to a pool of mortgageparticipation certificate holders).

11

In the case of a trust where there is a trustee

other than the grantor, transfer will be governed bythe existing rules as to intent and delivery (theelements of a gift)In re Becker, 2004 N.Y. Slip Op.51773U, 4 (N.Y. Sur. Ct. 2004).

12 (see, Matter of Szabo, 10 NY 2d 94 NY (1961);Speelman v. Pascal, 10 N.Y.2d 313, 318-320 (1961);Beaver v. Beaver, 117 N.Y. 421, 428-429 (1889); Matter


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sufficient to constitute delivery must be tailored to

suit the circumstances of the case.13 The delivery

rule requires that [the] delivery necessary to

consummate a gift must be as perfect as the nature of

the property and the circumstances and surroundings of

the parties will reasonably permit.14

Under New York law there are four essential elements

of a valid trust of personal property: (1) A

designated beneficiary; (2) a designated trustee, who

must not be the beneficiary; (3) a fund or other

property sufficiently designated or identified to

enable title thereto to pass to the trustee; and (4)

the actual delivery of the fund or other property, or

of a legal assignment thereof to the trustee, with the

intention of passing legal title thereto to him as

trustee.15 There is no trust under the common law

until there is a valid delivery of the asset in

of Cohn, 187 App. Div. 392, 395 (1919) as cited inGruen v. Gruen, 68 N.Y.2d 48, 56 (N.Y. 1986).

13 (Matter of Szabo, supra, at p. 98).

14 (id.; Vincent v Rix, 248 N.Y. 76, 83(1928); Matterof Van Alstyne, supra, at p 309; see, Beaver v.Beaver, supra, at p 428) as cited in Gruen v. Gruen,68 N.Y.2d 48, 56-57 (N.Y. 1986).

15 Brown v. Spohr, 180 N.Y. 201, 209-210 (N.Y. 1904).


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question to the Trust.16 If the trust fails to acquire

the property, then there is no trust over that

property which may be enforced.17An attempt to convey

to a trust will fail if there is no designated

beneficiary in the conveyance.18

In the context of mortgage-backed securitization,

it is clear that registration of the notes and

mortgages in the name of the trustee for the Trust is

necessary for effective transfer to the Trust. Within

the Statutes of New York governing Trusts, Estates

Powers and Trusts Law (EPTL) section 7-2.1(c)

16 Until the delivery to the trustee is performed bythe settlor, or until the securities are definitelyascertained by the declaration of the settlor, when hehimself is the trustee, no rights of the beneficiary

in a trust created without consideration arise (cf.Riegel v. Central Hanover Bank & Trust Co., 266 App.Div. 586; Matter of Gurlitz [Lynde], 105 Misc 30,affd 190 App. Div. 907, supra; Marx v. Marx, 5 Misc

2d 42) as cited in Sussman v. Sussman, 61 A.D.2d 838(N.Y. App. Div. 2d Dept 1978).

17 In an action against the individual defendant astrustee, based on the theory of breach of fiduciaryobligation, the complaint was properly dismissed onthe ground that he had acquired no title or separatecontrol of the goods and, hence, there was no actualtrust over the property to breach. Kermani v. LibertyMut. Ins. Co., 4 A.D.2d 603 (N.Y. App. Div. 3d Dept

1957).

18 Wells Fargo Bank v. Farmer, 2008 N.Y. Misc Lexis3248, Wells Fargo Bank, N.A. v. Farmer NY Slip Op51133 - NY: Supreme Court (2008).


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authorizes investment trusts to acquire real or

personal property in the name of the trust as such

name is designated in the instrument creating said

Trust. Further, the actual contracts of the parties,

which include the custodial agreements, the MLPA, and

the Trust Instrument known as the PSA, demand a very

specific method of transfer of the notes and mortgages

to the Trust. Because the method of transfer is set

forth in the Trust instrument, it is not subject to

any variance or exception.19 The Trust documents

require that the promissory notes and mortgages be

transferred to the Trustee, which under New York trust

law requires valid delivery. The question then

arisesWhat constitutes valid delivery to the

Trustee?

19 Courts may neither ignore the actual provisions oftransaction documents nor create contractual remediesthat were omitted from the governing contracts by thecontracting parties. See Schmidt v. Magnetic HeadCorp., 468 N.Y.S.2d 649, 654 (N.Y. App.Div. 1983)(It is fundamental that courts enforce contracts and

do not rewrite them . . . An obligation undertaken by

one of the parties that is intended as a promise . . .should be expressed as such, and not left toimplication. (citations omitted)); Morlee SalesCorp. v. Manufacturers Trust Co., 172 N.E.2d 280, 282(N.Y. 1961) ([T]he courts may not by constructionadd or excise terms . . . and thereby make a new

contract for the parties under the guise ofinterpret[ation]. (quoting Heller v. Pope, 250 N.E.881, 882 (N.Y. 1928))


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When the mandates of transfer to the trustee are

viewed in the context of the corporate or business

trust indenture, more information about compliance

with these requirements becomes apparent. It is

important to point out that,

[t]he corporate trustee has very little incommon with the ordinary trustee . . . .Thetrustee under a corporate indenture . . . hashis [or her] rights and duties defined, notby the fiduciary relationship, butexclusively by the terms of the agreement.His [or her] status is more that of astakeholder than one of a trustee.20

Undeniably, [a]n indenture trustee is unlike the

ordinary trustee. In contrast with the latter, some

cases have confined the duties of the indenture

trustee to those set forth in the indenture.21 The

indenture trustee, it has been said, resembles a

stakeholder whose obligations are defined by the terms

of the indenture agreement.22Moreover, [i]t is

20 AG Capital Funding Partners, L.P. v. State St. Bank& Trust Co., 2008 N.Y. Slip Op. 5766, 7 (N.Y. 2008)

21

Green v. Title Guarantee & Trust Co., 223 A.D. 12,227 N.Y.S. 252 (1st Dept.), affd, 248 N.Y. 627(1928); Hazzard v. Chase National Bank, 159 Misc. 57,287 N.Y.S. 541 (Sup. Ct. 1936), affd, 257 A.D. 950,14 N.Y.S.2d 147 (1st Dept.), affd, 282 N.Y. 652,

cert. denied, 311 U.S. 708 (1940).

22 See Meckel v. Continental Resources, 758 F.2d 811,816 (2d Cir. 1985) as cited in Ambac Indem. Corp. v.


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settled that the duties and powers of a trustee are

defined by the terms of the trust agreement and are

tempered only by the fiduciary obligation of loyalty

to the beneficiaries.23

The clear significance of these cases and

statutes is that the delivery of an asset to a trustee

under the terms of a corporate indenture requires

strict acquiescence with the mandatory transfer terms

of the trust indenture. Thus, the Trustee in this case

can only take delivery in strict compliance with the

terms of the PSA/Trust Instrument.

Further, given that New York Estates Powers and

Trusts Law section 7-2.1(c) authorizes a trustee to

acquire property in the name of the Trust as such


trust property, there should be little doubt that

for transfer to a trustee to be effective, the

property must be registered in the name of the trustee

forthe particular trust. Trust property cannot beas

Bankers Trust Co., 151 Misc. 2d 334, 336 (N.Y. Sup.Ct. 1991).

23See, United States Trust Co. v First Natl CityBank, 57 A.D.2d 285, 295-296, affd 45 NY2d 869;Restatement [Second] of Trusts 186, comments a, d)as cited in In re IBJ Schroder Bank & Trust Co., 271A.D.2d 322 (N.Y. App. Div. 1st Dept (2000).


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(2) The delivery necessary to consummate a gift

must be as perfect as the nature of the property and

the circumstances and surroundings of the parties will

reasonably permit; there must be a change of dominion

and ownership; intention or mere words cannot supply

the place of an actual surrender of control and

authority over the thing intended to be given.26

It is the consummation of the donors intent to

give that completes the transaction. Intention alone,

no matter how fully established, is of no avail

without the consummated act of delivery.27

How could one logically argue that delivering a

promissory note endorsed in blank (making it bearer

paper) into a trustees vault is delivery beyond the

authority and control of the donor when the vault is

managed by the agent of the donor? If the donor were

to claim that the promissory note were its property,

not the trustees, there would be no evidentiary basis

for the trustee to claim ownership. Consequently, New

York law expressly requires that for property to be

26 Vincent v. Putnam, 248 N.Y. 76, 82-84 (N.Y. 1928).

27 Phillippsen v. Emigrant Indus.Sav. Bank, 86 N.Y.S.2d133, 137-138 (N.Y. Sup. Ct. 1948). (Beaver v. Beaver,supra,117 N.Y. 421, 428, 22 N.E. 940, 941, 6 L.R.A.403, 15 Am.St.Rep. 531).


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validly delivered to a trust, the property must pass

completely out of the control of the donor (and its

agents):

If the donor delivers the property to

the third person simply for the purpose of

his delivering it to the donee as the agent

of the donor, the gift is not complete until

the property has actually been delivered to

the donee. Such a delivery is not absolute,

for the ordinary principle of agency

applies, by which the donor can revoke the

authority of the agent, and resume

possession of the property, at any time

before the authority is executed.28

Another case addressing this issue holds that In

order that delivery to a third person shall be

effective, he must be the agent of the donee. Delivery

to an agent of the donor is ineffective, as the agency

could be terminated before delivery to the intended

donee.29

Trustees for securitizations often occupy many

roles concurrently and conflictingly both as document

custodians and as trustees for myriad thousands of

28 (See, also, Grant Trust & Savings Co. v. Tucker, 49

Ind. App. 345, 353, 96 N.E. 487, 489 (1911); Furenesv. Eide, 109 Iowa 511, 80 NW 539 (1899); Dickeschiedv. Exchange Bank, 28 W. Va. 340, 368 (1886); Love v.Francis, 63 Mich. 181(1886).

29In re Natl Commer. Bank & Trust Co., 257 A.D. 868,869-870 (N.Y. App. Div. 3d Dept (1939) citing Vincentv. Rix, supra v. Rix, supra; Bump v. Pratt, 84 Hun,201.


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securitizations as well as for various parties who are

active in the securitization process including

originators, servicers, sponsors and depositors.

Accordingly, it is unimaginable that anything other

than registration into the name of the trust as such


trust property30 could ever qualify as delivery to any

particular securitization trust. Absent such

registration, there would be nothing that would

indicate which of thousands of trusts in the care of a

trustee a particular promissory note might belong to

or if it were the personal property of the trustee

itself. Absent such registration, a promissory note

would simply be bearer paper, and thus the property of

anyone who obtained possession of it. Further, if

anything less constituted delivery, why are our courts

overwhelmed with robo-signed mortgage assignments and

affidavits expressing, outrageous legally impossible

transfers into the specific trusts long afterthe

trusts have closed for funding?

This point was recently slammed home to the

public consciousness in a watershed decision by this

30 EPTL 7-2.1(c)


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Further, the failure to convey to the Appellee

Trust per the controlling Trust Instruments is not a

matter that may be cured by the breaching party. New

York Law is unflinchingly clear that a trustee has

only the authority granted by the instrument under

which he holds; either Deed or Will. This fundamental

rule has existed from the beginning and is still law.31

To the extent that the Note and Mortgage at issue

was not conveyed to the Appellee Trust as required and

when required by the Trust instrument, they are not

assets of the Trust and the Appellee trust could not

correct this deficiency in 2007since the funding

period provided in the Trust instruments passed two-

plus years prior.

Any attempts to acquire assets by the Trust,

which violate the terms of the Trust Instruments are

void. Therefore, late assignments, improper chains of

title, late endorsements, and improper chains of title

in the endorsements are just a number of the many

examples of actions, which are voidif taken by a

party to the indenture who is attempting to transfer

31 Allison & Ver Valen Co. v. McNee, 170 Misc. 144, 146(N.Y. Sup. Ct. 1939).


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property to the Trustee for the Trust in violation of

the Trust Instrument.

Under New York Law, there is no Trust over

property that has not been properly transferred to a

Trust.

Any attempt by the parties, to transfer the

promissory note to the Trust on November 6, 2007 would

fail for numerous reasons, not the least of which is

that the closing date of June 29, 2005 had come and

gone prior to the assignment to the Trust.

By the terms of the Trust and the applicable

provision of the Internal Revenue Code incorporated

into and a part of the Trust agreement, the promissory

note could not and cannot be transferred to the Trust.

The uncontroverted evidence in the instant action is

that the Appellants loan was never been legally

assigned or conveyed to the Trust and a conveyance to

the Trust in 2007 is void as violating the terms of

the PSA inter alia, and therefore, the Court is left

with one clear and inescapable proposition. The Trust

has never owned theAppellants promissory note or the

mortgage and the Trustcan never own theAppellants

promissory note leaving it with no enforceable right

under the mortgage.


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Subsequently, Standing will forever escape the

Appellee trust, and no want of trying will ever change

this fact. Certainly, there may be a proper Plaintiff

to bring a civil complaint under the ACT however; it

certainly is not the Appellee Trust. A Proper and

Legal demonstration of standing begins and ends with

the TRUST in any securitized mortgage and the late

assignment in the instant matter dated November 6,

2007 is clear evidence that one never took place in

2005.

The last case Your Amicus would cite which, will

give this Honorable Court a clear understanding of how

pervasive the deception and the abuses perpetrated on

Courts across the Nation in all matters involving the

Appellee Trust are; See HSBC BANK USA, NA v. SENE, NY

Slip Op 50352 , NY Supreme Court (2012), were the

Court stated: This Court is further reporting the

matter to the District Attorney, Kings County, the

Attorney General of the State of New York and the U.S.

Attorney for the Eastern District of New York. Copies

of the two notes are annexed hereto and made a part

hereof. This constitutes the decision and order of the

Court.


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CONCLUSION

In light of the foregoing, based on the law, the

terms of the Pooling and Service Agreement inter alia,

and the uncontroverted facts related to the November

6, 2007 Assignment of the Note and Mortgage, clearly

there were not enough facts in evidence before the

Land Court to determine a future right under the note

and mortgage. The evidence suggests completely the

opposite whereas the Appellee Trust, HSBC BANK USA,

N.A as Trustee and ACE Securities Corp. Home Equity

Loan Trust Series 2005-HE4 will never have standing as

it relates to Jodi B. Matts note and mortgage. If

there was no timely assignment to the Trustee within

the proscribed period as set forth above, there can

never be one.

Your Amicus concludes, with all due respect to

the Land Court (Long, J.), that for the Land Court to

proffer and hold that the Appellee Trust couldbecome

the owner and holder of the note and mortgage and

therefore, had standing, was clear error of law, when

clearly it cannot have standing, as it is prohibited

by New York Law and IRS 860A-G.


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Therefore Your Amicus respectfully request that

this Honorable Court reverse the Land Court's Rulings,

or alternatively, remand the case back to the Land

Court for a factual determination that Appellee Trust

lacks any evidentiary foundation to support its claim

of standing as it is not the current holder of

Appellants Note and Mortgage. Further, for a

determination as to whether or not the Appellee Trust

and their Counsel deliberately committed Fraud upon

the Land Court (Long, J).

Respectfully Submitted

/s/Robert P. Marley

________________________Robert P. Marley, Pro-se18 Lakeview DriveLynnfield, MA 01940781-844-3044

[email protected]

Dated: March 6, 2012
mailto:[email protected]:[email protected]


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Certification

I, Robert P. Marley, hereby certify that I complied,

to the best of my abilities, with Mass. R. A. P Rule

16 (k) and further, hereby certify that I have served

two copies of the herewith Amicus Brief on the partys

attorney of record by sending the same by US regular

mail and by e-mail on this 6 day of March, 2012.

Signed under the pains and penalties of perjury on

this 6 day of March, 2012.

/s/Robert P. Marley

_____________________________

Robert P. Marley

Documents

HSBC, et al vs Jodi Matt - Amicus Curiae of Robert P. Marley