DEFENDANTS-APPELLANTS REPLY CHALLENGE TO
PLAINTIFF-RESPONDENT'S ARGUMENT
POINT II
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WELLS FARGO HAS PROPER STANDING TO
BRING THIS ACTION BECAUSE IT IS THE HOLDER
OF THE CONSOLIDATED LOAN
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their stated caption:
Plaintiff-Respondent uses the play on words switching between
consolidated loan and consolidated mortgage, and only a mortgage
secures an interest in property to support a foreclosure action.
Plaintiff-Respondent agrees with this as stated in their Brief
for POINT I, page 10 paragraph 2 where they state "The consolidated
mortgage gave Wells Fargo rights in the property located at..."
Plaintiff's foreclosure action is purely based upon the 1995
$162,000,00 mortgage, and nowhere has Plaintiff shown a consolidated
mortgage, or that Plaintiff filed a consolidated mortgage and paid a
mortgage tax for such a filing.
All the exhibits and Affidavits submitted by Plaintiff clearly
show that this foreclosure action is upon the 1995 Mortgage, and
their following statements to this Court are false, such as:
"Contrary to the Webster's assertion, Wells Fargo is not
foreclosing on the 1995 loan. Wells Fargo is foreclosing
on the consolidated loan, for which it was the original
lender."
(Plaintiff-Respondent's Brief, page 12 3rd paragraph)
"Wells Fargo also is the plaintiff in this action.
A lender who holds the note and mortgage is the
proper plaintiff in a foreclosure action."
(Plaintiff-Respondent's Brief, page 12 4th paragraph)
Again, Plaintiff-Respondents never claimed or swore that they
held the original signed note and mortgage for the 1995 Mortgage
prior to the filing of the Complaint. Plaintiff's Brief further
states:
"The Websters take issue with the assignment of the
1995 loan from MERS as nominee for Wells Fargo Home
Mortgage, Inc. to Wells Fargo ... because it was executed
and recorded after the complaint was filed. As a result
of this, the Websters argue, Wells Fargo does not have
standing to bring this action. Even if Wells Fargo
was foreclosing on the 1995 loan, which it is not..."
(Plaintiff-Respondent's Brief, page 13 2nd paragraph)
Again, this is not true, they clearly are suing on the 1995
mortgage, as is presented in Defendants-Appellants' Brief - see
Point V page 2. Plaintiff did not file a foreclosure on the
consolidated mortgage, which it witheld from the Lower Court.
Defendants submitted the consolidted mortgage as an exhibit in their
Cross Motion (R. A-194 - A-213)
On Plaintiff-Respondent's Brief, page 13 4th paragraph states:
"Under New York law, an assignee of a mortgage is the
proper party to bring a foreclosure action when the
assignment, though executed and recorded after the date
of the action was commenced, was dated retroactively
to a date before commencement of the action, provided
that the assignee had possession of the note and
mortgage before the complaint was filed."
Respondents submit and cite in the Deutsche Bank and Trust Co. v
Peabody, that:
"There, the court interperted Bankers Trust co. as requiring
physical possession of the note and mortgage prior to the
filing of the complaint and retroactively dated assignment.
The court held that ''[a] retroactive effective date for a
written mortgage is valid provided...the note and mortgage
were previously physically delivered to the assignee."
Defendants-Appellants draw the Court's attention to the case
cited in Respondent's Brief in "Deutsche Bank Trust Co. v Peabody
that was decided as recently as June 6, 2008, from the Supreme Court
of Saratoga County, that has not been affirmed by any appellate
review, and is merely a decision of a concurrent court, and is not
controlling case at this appellate level.
Again, nowhere in any of Respondent's Affidavits or exhibits,
does Plaintiff ever make a showing or sworn statement that they held
in their POSSESSION the 1995 Mortgage being foreclosed upon and only
submitted the 2005 gap mortgage for $380,346.00 (R. A-107 - A-133)
at time of filing the Complaint. Nowhere in Respondent's Brief do
they show that in any of the Indexed Record that they claim that
they had possession.
There is no credible evidence to support Respondent's claim that
it held in its possession the 1995 $162,000.00 mortgage prior to
filing the foreclosure action, no credible evidence that Respondent
even held the 2005 $380,346.31 in its possession at the time of
filing the foreclosure, or that it actually held in its possession
of the 2005 consolidated mortgage, and therefore Respondent's vague
claim that it had met the requirements in their carefully cited
cases must fail for lack of positive and conclusive proof.
The Notice of Pendens (R. A-43) filed by Plaintiff never
mentions a "consolidated mortgage" and no mortgage tax was ever paid
by Plaintiff for a consolidated mortgage. In a letter written by
Wells Fargo's own closing attorney, Dominick Penzetta dated August
13, 2007, in responding to Appellants request for various answers
he states:
"If the Exhibit D were indeed an additional mortgage
as you had understood it, then you would have not only
paid the mortgage tax on the new money mortgage, by
also paid a mortgage tax on ... That did not happen.
A county clerk will not record a mortgage without
receiving mortgage tax. Exhibit D is not an actual
mortgage."
This letter was not put into the record as it had not been a
part of the litigation before the Lower Court. Appellants have now
attached it to the end of our Reply Brief, as Respondents have never
up to this point, or ever claimed to be foreclosing on the
Consolidated Mortgage which Appellants had been originally lured
into believing to be the only true mortgage, and the reason for
asserting a defense of fraud in the answer to the foreclosure
complaint.
Additionally, it was this letter which triggered Respondents'
request to the Lower Court to amend the law of the case original
Decision and Order, a few days later.
It is clear from the above, and the papers submitted by
Plaintiff, that they clearly never had the 1995 Mortgage in their
actual possession when they filed the Complaint. Actually they have
not even asserted in any of their submitted papers that they still
have the 2005 $380,346.31 mortgage still in their possession, or the
original of the consolidated mortgage still in their possession.
Common knowledge in the subprime lending market is that many,
perhaps as much as 50% of mortgages, have been bundeled and sold on
the market as "securities" by many of the lenders.
Lastly on this subject Respondent's Brief page 16, paragraph 2,
they make the incredible statement "... the 1995 loan was assigned
to MERS as nominee for Wells Fargo Home Mortgage, Inc. in 2001. In
or around 2004, and long before this action was commenced, Wells
Fargo Home Mortgage, Inc. merged with Wells Fargo. (R. at A-102).
At that point in time, Wells Fargo became the successor by merger to
Wells Fargo Home Mortgage, Inc., and became the holder of the 1995
loan." If that statement was true, then there would have been no
need for the assignment filed January 10, 2007, that was backdated
to December 1, 2006 and notarized December 20, 2006, after the
filing of the Complaint.
Clearly, Plaintiff-Respondent has not proven that it was the
acutal holder of the original signed 1995 mortgage being sued upon,
and that Plaintiff's totally untrue statement on their POINT I, page
11, paragraph 1 which states "The consolidated mortgage was recorded
in the Putnam County Clerk's Office on June 20, 2005 (R. A-94 -
A-142)." This is false, Plaintiff never recorded the consolidated
mortgage with the County Clerk, nor did they pay a mortgage tax, so
no matter which mortgage Plaintiff pleads, Plaintiff therefore never
achieved standing, ab initio.
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