NJ - Response in Opposition to MSJ + Memorandum of Law

8/6/2019 NJ - Response in Opposition to MSJ + Memorandum of Law

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SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION, ESSEX COUNTY

_____________________________________________X

Deutsche Bank National Trust Company, Docket No.: F-20060-08

as Trustee of Argent Securities, Inc. Asset-Backed

Pass Through Certificates, Series 2004-PW1

Plaintiff,

v.

Paulette A. Dennis, et. al.

Defendant(s).

______________________________________________X

DEFENDANTS RESPONSE IN OPPOSITION TO

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

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Comes Now, Defendant, Paulette A. Dennis, by and through her

attorney, Farrel Donald, and pursuant to Rule 4:46-2(b), hereby submits her

Response in Opposition to Plaintiffs Motion for Summary Judgment.

SUMMARY STATEMENT

Plaintiff has filed a Motion for Summary Judgment which relies on

factually inapplicable decisional law; ignores the threshold issue of legal

standing; fails to justify the striking of Defendants contesting Answer and

denials; and purports to be supported by a Certification of Proof of Amounts

Due for Plaintiff which is not made on personal knowledge and which is in

fact based on incompetent hearsay. Plaintiff has failed to demonstrate the

absence of genuine issues of material fact and has failed to sustain its

burden to be entitled to the entry of summary judgment.

Plaintiffs own submissions and admissions therein demonstrate that

there are issues of material fact before this court. In this case, the Plaintiff

has submitted various allegations as to its ownership status of the subject

Note and Mortgage which are highly conflicting in nature. For instance in the

complaint, the Plaintiff does not even allege ownership of the Note and

Mortgage, it merely alleges that an Assignment from Argent Mortgage

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Company, LLC to the Plaintiff was somewhere in existence and in the

process of being recorded. In a subsequent Certification of Amount Due

filed on or about October 10, 2008, the servicer for the Plaintiff alleged that

the Plaintiff is still the holder and owner of the aforesaid obligation and

mortgage. Then, in the Plaintiffs Motion for Summary Judgment, the Plaintiff

merely alleges that it is the holder of the Note and Mortgage by the

aforementioned Assignment of record. It is one thing to be a holder and

yet another thing to be an owner and holder. These various allegations

conflict with one another and alone present issues of material fact to this

court.

The Plaintiff is relying solely on an un-authenticated Assignment and a

new Note it has recently submitted and is alleging to be the original,

unaltered Note. Defendant specifically denies that this new copy of a Note

Plaintiff has submitted is authentic and bears her actual, original signature.

One thing is crystal clear: The Assignment produced by the

Plaintiff/Trustee in this case specifically contradicts the governing documents

for this Trust. Whether the Defendants mortgage loan is/was a part of this

Trust has not even by established with documentary evidence but the

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Plaintiff/Trustee has already violated the operative agreements of this Trust

by creating and filing a fraudulent assignment of mortgage with this court

and has also placed a cloud on the title of the Defendants property.

RESPONSE TO PLAINTIFFS MOTION

1. Defendant does not dispute that she obtained a mortgage from Argent

Mortgage Company in the amount of $126,000.00 and signed a Note

payable to Argent Mortgage Company, LLC and a Mortgage.

2. The Defendant has specifically and repeatedly disputed that the Note

and Mortgage were in fact assigned to Plaintiff, at a minimum, in the

manner and method presented to this court by virtue of the

Assignment dated May 16, 2008 the Plaintiff has filed. The Defendant

specifically disputes that Tamara Price has any lawful authority to

execute this Assignment on behalf of Argent Mortgage Company, LLC;

especially since the Assignment was executed on May 16, 2008 nearly

one year AFTER Argent Mortgage Company ceased all operations and

also because the Plaintiff attaches no documentation supporting

Tamara Prices authority to execute on behalf of Argent Mortgage

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Company, LLC.

3. The Defendant specifically denies that any amount or payments are

due to the Plaintiff and Plaintiff has completely failed to provide any

evidence that its demands for payment have any merit whatsoever. To

date, Plaintiff has only submitted certain hearsay evidence that

Defendant is even in default.

4. Defendant disputes that Plaintiff has legal standing to pursue this

cause of action. Plaintiff has failed to document that it has any

financial interest at stake in this matter and has failed to document

that the Defendants Note is shown to be an asset of the Plaintiff.

Plaintiff does not have a sufficient stake in the outcome of this action

and has shown no economic injury or otherwise due to the alleged

default by Defendant. Defendant specifically denies that the latest

Note presented by the Plaintiff is the original Note signed by Defendant

and denies that the Note presented by Plaintiff and alleged to the

original Note bears her actual, original signature.

5. Defendant specifically disputes that Plaintiff is in possession of the

Original Note and therefore lacks the standing to foreclose. A mortgage

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cannot be delinquent, only a Note can be delinquent. The Plaintiff is

merely alleging that the Note is bearer paper and has not sufficiently

demonstrated such. If the Note is found to be un-authentic or not the

original, then Plaintiff is merely in possession of a worthless piece of

paper.

6. Defendant specifically disputes Plaintiffs allegations in 6 of its Motion

for Summary Judgment.

7. Defendant specifically disputes that the Assignment is authentic and

contends that the Plaintiff fabricated this Assignment as a means to

prop up its allegations as the owner and holder of the Note and

Mortgage so that it could rely on such document to attempt to defeat

Defendants argument and defense that it lacks standing. Plaintiff

contends that the Assignment was in its possession prior to the filing of

the Complaint however Plaintiff failed to attach the Assignment to its

complaint but rather it merely references the existence of such a

document. If the Assignment was authentic and it truly was in

possession of the document prior to the filling of the complaint then it

would be plausible that Plaintiff would have been able to simply attach

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the Assignment to its complaint. Furthermore, the Assignment

produced by Plaintiff DIRECTLY CONFLICTS WITH THE GOVERNING

DOCUMENTS THAT PLAINTIFF IS CONTROLLED BY IN ITS CAPACITY AS

TRUSTEE FOR ARGENT SECURITIES, INC. ASSET BACKED PASS

THROUGH CERTIFICATES SERIES 2004-PW1.

8. Defendant specifically denies Plaintiffs allegation that there are no

material issues of fact and to the contrary, the Defendant has and

continues to show this court that serious issues of fact do exist which

go to the heart of this cause of action.

MEMORANDUM OF LAW

9. Plaintiffs view of the scope of Chancery litigation is as wrongfully

narrow as that found by the court in Leisure Technology-Northeast, Inc. v.

Klingbiel Holding Company, 137 N.J.Super. 353, 349 A.2d 96 (N.J. Super A.D.

1975), wherein it was held that R.4:6-2 requires that every defense to an

action legal or equitable, in law or in fact be asserted in an answer, and

that one of the purposes of the adoption of the Judicial Article of the 1947

Constitution was to permit the resolution of all aspects of a controversy

between parties to be resolved in a single forum, whether the claims be legal

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or equitable in nature. 137 N.J.Super. at 357.

10. The Courts of New Jersey have apparently not addressed the

specific factual situation in this case. In instances where there is no New

Jersey case on point, the Courts of New Jersey have utilized opinions from

other jurisdictions for guidance. (See, e.g., Greate Bay Hotel & Casino, Inc. v.

City of Atlantic City, 264 N.J.Super. 213, 217-218, 624 A.2d 102 (N.J. Super L.

1993)(analysis of treatment of business trusts as distinct legal entities by

various other jurisdictions including California, New York, and Michigan where

no New Jersey case explicitly dealt with types of trusts in case); Gregory v.

Allstate Insurance Company, 315 N.J.Super. 78, 82-83, 716 A.2d 573

(N.J.Super.L. 1997)(analyzing split of authority in jurisdictions which

considered issue of whether victim of unintentional auto collision was

covered by uninsured motorist coverage). The Courts of the State of New

York have been repeatedly presented with the legal standing issues in

foreclosure actions raised in this case, and have consistently held that when

there is no proof that the foreclosing party had the requisite legal interest in

the mortgage and note at the time that it filed the foreclosure action that

dismissal of the action was proper.

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11. In mortgage foreclosure actions (as in all actions), the foreclosing

party must have standing to bring the action. Standing to sue is critical to

the proper functioning of the judicial system. It is a threshold issue. If

standing is blocked, the pathway to the courthouse is blocked. Standing to

sue requires an interest in the claim at issue in the lawsuit that the law will

recognize as a sufficient predicate for determining the issue at the litigants

request.If a plaintiff lacks standing to sue, the plaintiff may not proceed in

the action. IndyMac Bank v. Bethley, 2009 NY Slip Op 50186(U)(N.Y.Sup.Ct.

2/6/2009), citing Saratoga County Chamber of Commerce, Inc. v. Pataki, 100

NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]; Caprer v. Nussbaum,

36 AD3d 176, 181 [2d Dept 2006]; Stark v. Goldberg, 297 A2d 203 [1 st Dept

2002].

12. Where there is no evidence that the plaintiff, prior to

commencing a foreclosure action, is the holder of the mortgage and note or

took physical delivery of the mortgage and note or that same were conveyed

by valid written assignment, the plaintiff did not have standing to institute

the action. New Century Mortgage Corporation v. Durden et al., 2009 NY Slip

Op 50175(U) (N.Y. Sup. Ct. 2/2/09), citing Deutsche Bank Trust Co. Ams. V.

Peabody, 20 Misc. 3d 1108A (Sup.Ct. Saratoga County 2008) and

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Countrywide Home Loans, Inc. v. Taylor, 17 Misc. 3d 595 (Sup.Ct. Suffolk

County 2007) and additional cases cited therein.

13. A plaintiff has no foundation in law or fact to foreclose upon a

mortgage in which the plaintiff has no legal or equitable interest, or where an

assignment of the mortgage post-dates the filing of the complaint, the

plaintiff does not have the requisite ownership interest at the time of filing.

As a foreclosure of a mortgage may not be brought by one who has no title

to it and absent a legally effective transfer of the debt, the (post-filing)

assignment of the mortgage is a legal nullity. U.S. Bank National Association

v. Kosak et al., 2007 NY Slip Op 51680(U)(N.Y. Sup.Ct. 9/4/2007), citing Katz

v. East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998] and

Kluge v. Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dpet 1988].

STATEMENT OF FACTS

14. In addition to the disputed issues of material fact set forth in the

Defendants Statement of Material Facts filed simultaneously herewith, the

Defendant has propounded a First Request for Production, First Request for

Admissions, and First Set of Interrogatories upon Plaintiff, none of which have

been responded to as of the date of this Response other than to summarily

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object to nearly all of the discovery as overly burdensome. These discovery

requests seek information as to the Plaintiffs legal standing including the

chain of title to the mortgage and note which are factual issues material to

not only the Plaintiffs claim but also the affirmative defense of the

Defendant and which relate specifically to the subject Note and Mortgage. As

there is a dispute as to the absence of factual issues at this early stage of

the proceedings where the case is not fully developed, summary judgment is

inappropriate. Velantzas v. Colgate-Palmolive Company, Inc., 109 N.J. 189,

193, 536 A.2d 237 (N.J. 1987):

15. Generally, we seek to afford every litigant who has a bona fide

cause of action or defense the opportunity for full exposure of his case, and

When critical facts are peculiarly within the moving partys knowledge, it

is especially inappropriate to grant summary judgment when discovery is

incomplete. 109 N.J. at 193, citing United Rental Equip.Co. v. Aetna Life and

Casualty Ins. Co., 74 N.J. 92, 99, 376 A.2d 1183 (1977)(citing Robins v. Jersey

City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957), and Martin v. Educational

Testing Serv., Inc., 179 N.J. Super 317, 326, 431 A.2d 868 (Ch.Div.1981).

In cases where a suit is in an early state and not fully developed, the

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standard by which a court ought to review a judgment terminating it now is

from the standpoint of whether there is any basis upon which the plaintiff

should be entitled to proceed further. Velantzas, supra at 193, citing Bilotti v.

Accurate Forming Corp., 39 N.J. 184, 193, 188 A.2d 24 (1963).

16. Plaintiff also attempts to support its Motion for Summary

Judgment with the Certification of Proof of Amount Due by an unnamed and

unrecognizable person claiming to be a Litigation Specialist but who is not

an officer or director of the Plaintiff and who failed to fully identify himself

and who exactly he is employed by. The subject Certification is not made on

personal knowledge, jumps to several legal conclusions which this person

cannot simply make and admits that it is based on a review of the records of

the plaintiff. As the Certification is not based on personal knowledge, the

statements in the Certification can only be based on information and belief.

The Plaintiff also failed to attach to its Certification any of the documents the

Affiant referred to in his statements.

17. Rule 1:6-6 requires that Certifications in support of Motions be

made on personal knowledge. Personal knowledge excludes matters based

on information and belief. See., e.g., Wang v. Allstate Ins. Co., 125 N.J. 2, 16

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(1991); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 153 (1988). The

Certification, which is based on a review of computerized records (which

areper se incompetent hearsay) by someone without personal knowledge, is

thus incompetent to support the Plaintiffs Motion for Summary Judgment as

a matter of law and New Jersey procedure.

The Certification also makes reference to and attaches the Assignment

(was attached as Exhibit C to the Certification). This Assignment is the very

document demonstrating a substantial issue of material fact in that this

Assignment directly conflicts with specific provisions in the Pooling and

Servicing Agreement that the Plaintiff attaches as Exhibit D to their Motion

for Summary Judgment (only the first page of the Pooling and Servicing

Agreement was attached by Plaintiff).

18. Article II of the Pooling and Servicing Agreement, attached as

Exhibit B to this Response clearly states on page 77 that the Depositor...

does hereby transfer, assign, set over and otherwise convey to the

Trustee without recourse... all the right, title and interest of the

Depositor, in and to the Mortgage Loans identified in the Mortgage

Loan Schedule, the rights of the Depositor under the Mortgage Loan

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Purchase Agreement, all other assets included or to be included in

the REMIC I and the Cap Contracts.

The Depositor for this Trust and under this specific Pooling and

Servicing Agreement is Argent Securities, Inc. and is clearly not

the Assignor, Argent Mortgage Company, LLC, on the Assignment

produced by Plaintiff.

19. Argent Securities, Inc. is a specific, separate entity and this

entity is NOT Argent Mortgage Company, LLC. Plaintiff produced an

Assignment after filing its Complaint that alleges to assign the Subject Note

and Mortgage from ARGENT MORTGAGE COMPANY, LLC TO DEUTSCHE BANK

NATIONAL TRUST COMPANY AS TRUSTEE OF ARGENT SECURITIES, INC ASSET

BACKED PASS THROUGH CERTIFICATES, SERIES 2004-PW1. This Assignment

DIRECTLY CONFLICTS WITH THE POOLING AND SERVICING AGREEMENT

GOVERNING THIS TRUSTand raises genuine issues of material facts as to

when (if ever) Plaintiff came into any ownership rights of either the Note or

the Mortgage. The Pooling and Servicing Agreement Conveyance clauses on

page 77 also specifically reference the Mortgage Loan Schedule and the

Mortgage Loan Purchase Agreement. Neither of these documents has been

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attached by the Plaintiff to conclusively demonstrate the Defendants Note

and Mortgage have ever been or ever were deposited into and/or assigned to

this Trust, and even if so, specifically, when that happened.

20. Additionally, the Prospectus and the Pooling and Servicing

Agreement clearly stipulate that the Closing Date for this Trust was on or

about June 7, 2004 see Exhibit C to this Response for the pertinent parts

of the Prospectus.

In the case of a Mortgage-Backed Securitized Trust, it is always necessary for

the Trust to establish an unbroken chain of transfers of the mortgage notes

from the Originator to the Trust. The objective of the securitization process is

to make the mortgage notes as bankruptcy remote as is legally possible

from any claims against the Originator, Sponsor or Master Servicer. The

operative document for the mandatory note transfer rules in connection with

the mortgage notes is the Pooling and Servicing Agreement (PSA) or

sometimes referred to as the Pooling Agreement or the Servicing Agreement.

The applicable statutory laws include Articles 3 and 9 of the Uniform

Commercial Code and any local statutes related to real estate law.

21. To the point, the Section 2.01(iv) of the Pooling and Servicing

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Agreement (Exhibit C) for the Trust that this loan was deposited into says

that In connection with such transfer and assignment, the

Depositor does hereby deliver to, and deposit with, the Trustee the

following documents (iv) the original recorded intervening

Assignments of the Mortgage showing a complete chain of

assignments from the Originator to the person assigning the

mortgage to the Trustee... (emphasis mine).

22. Exhibit A of this Response clearly demonstrate the Chain of

Title and Ownership of the Mortgage Loans for the specific Trust the Plaintiff

is acting as Trustee for.

23. The Originator normally the party who wrote and funded the

original mortgage transaction for the consumer. In this transaction, it was

Argent Mortgage Company, LLC.

24. The Warehouse Lender generally the entity that provides the

interim funding for the originator (the warehouse lender normally just files

a UCC-1 financing statement as to the notes or claims perfection by

possession and always claims a security interest in the Note and Mortgage

until it is made whole. The Warehouse Lender in this transaction has not yet

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been disclosed by the Plaintiff but there was a Warehouse Lender present in

this transaction since Argent Mortgage Company was not a bank and

therefore could not monetize a Note without the assistance of a bank or

warehouse lender.

25. The Seller and Master Servicer the party who organized the

securitization of the mortgage and submitted the original registration

statements to the Securities and Exchange Commission (often times, the

Sponsor also assumes the role of Master Servicer or Servicer). The

Seller and Master Servicer in this transaction is/was Ameriquest

Mortgage Company and, if the Defendants loan was part of this

trust and securitization process as the Plaintiff alleges, then

Ameriquest definitely took possession and ownership of the Note

and Mortgage from Argent Mortgage Company.

26. The Depositor is the last party in the chain to own the Note

before it is transferred to the Trust. In this trust, the Depositor is Argent

Securities, Inc.

27. The Trustee through a named trust is the entity that owns the

notes for the benefit of the parties who invested in the various tranches of

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bonds issued by the Trust. In this trust, the Trustee is Deutsche Bank

National Trust Company.

28. Since there were so many missing elements to the Plaintiffs

complaint along with huge leaps in allegations, Defendant initiated a

discovery process to put the Plaintiff on notice that it needed to prove up its

claims of owner and holder of her Note and Mortgage, not merely allege it

and then produce an un-authenticated Assignment AFTER THE FACT to create

the illusion of ownership when this same Assignment directly conflicts with

the governing documents of the Trust it is acting as a Trustee for.

ELECTION BY TRUST TO BE TREATED AS A REMIC

29. A REMIC (Real Estate Mortgage Investment Conduit) is a

corporation, trust, partnership or a segregated pool of assets that qualifies

for special tax treatment under the Internal Revenue Code of 1986 (as

amended, the IRC).

30. The principal advantage of forming a REMICs for the sale of

mortgage-backed securities is that REMICs are treated as pass-through

vehicles for tax purposes helping avoid double-taxation. For instance, in most

mortgage-backed securitizations, the owner of a pool of mortgage loans (the

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Sponsor or Master Servicer usually) sells and transfers such loans to a

special purpose entity, usually a trust, that is designed specifically to qualify

as a REMIC, and, simultaneously, the special purpose entity issues securities

that are backed by cash flows generated from the transferred assets to

investors in order to pay for the loans along with a certain return. If the

special purpose entity or the assets transferred qualify as a REMIC, then any

income of the REMIC is passed through and taxable to the certificate

holders of the REMIC Regular Interests and Residual Interests.

31. According to the Prospectus (Exhibit C), page 10, under the

Section Heading Federal Income Tax Consequences, the Argent Securities,

Inc., Asset Backed Pass Through Certificates, Series 2004-PW1Trust that this

loan was allegedly deposited into is electing to be treated as a REMIC, which

provides for pass-through tax treatment of the income generated by the

Trust assets, thus the name Mortgage Pass Through Certificates, Series 2004-

PW1.

32. According to 26 CFR 1.860D-1 (a) Definition of a REMIC, A

real estate mortgage investment conduit (or REMIC) is a qualified entity, as

defined in paragraph (c)(3) of this section, that satisfies the requirements of

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section 860D(a).

33. According to 26 CFR 1.860D-1 (c) (2) Identification of

assets. Formation of the REMIC does not occur until(i) The sponsor

identifies the assets of the REMIC, such as through execution of an indenture

with respect to the assets; and (ii) The REMIC issues the regular and residual

interests in the REMIC.

34. In other words, the REMIC is not officially formed until the

Sponsor/Seller identifies the specific assets of the REMIC (the

specific loans) and the REMIC subsequently issues the regular and

residual interests in the REMIC.

35. The Prospectus and PSA specifically identify a Closing Date which

is the last day that an asset (mortgage loan) can be identified for inclusion

in the Trust/REMIC. The Closing Date also serves as the Startup Day for the

REMIC. According to Internal Revenue Code, Section 860, All of a REMICs

loans must be acquired on the startup day of the REMIC or within

three months thereafter. Any contribution of an asset (other than cash)

that is contributed to the REMIC after the Startup Day is deemed an

unqualified contribution and can cause the entire REMIC Trust to lose its

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tax-free status which would be catastrophic to the Trust and all the individual

shareholders or certificateholders because the Trust would then be subjected

to double-taxation.

36. The Closing Date/Startup Day for this Trust/REMIC was: on

or about June 7, 2004

37. In order for the Trust to qualify as a REMIC, all steps in the

contribution and transfer process (of the notes) must be true and complete

sales between the parties and within the three month time limit from the

Startup Day. Therefore, every transfer of the Note(s) for inclusion in the Trust

must be a true purchase and sale, and, consequently the Note must be

endorsed from one entity to another and the corresponding mortgages must

be assigned in the same chain. Any mortgage note/asset identified for

inclusion in a Trust seeking a REMIC status MUST be deposited into

the Trust within the three month time period calculated from the

official Startup Day of the REMIC as per Section 860 of the Internal

Revenue Code. There is no alternative option.

38. The assignments of mortgage must follow the same chain of

ownership to avoid de-linking the Note from the Mortgage. According to

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Section 2.01 of the PSA, the depositor will cause the mortgage loans... to

be assigned to the trustee.

According to the Prospectus and PSA for this Trust, the Note ownership Chain

goes from:

Originator to the Seller (Argent Mortgage Company, LLC to Ameriquest

Mortgage Company)

Seller to the Depositor (Ameriquest Mortgage Company to Argent Securities,

Inc.)

Depositor to the Trustee on behalf of the Trust (Argent Securities, Inc. to

Deutsche Bank)

39. In a securitized transaction involving mortgage loans, the

Depositor is always the last party in the chain to own the note before it is

sold and transferred (deposited into) the Trust. See also Exhibit A Chain

of Ownership Map.

40. According to two REMIC experts, Jeff Steiner and James Butler,

The REMIC rules require that REMIC pools be static--subject to very limited

exceptions, they cannot be expanded, or significantly altered once formed.Page 22 of 22


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Failure to strictly observe these rules is the tax equivalent of Armageddon for

REMIC investors, servicers and other participants, because the loss of REMIC

status is a catastrophic event in terms of double taxation, and even penalty

taxes, on pool income.

Thus, one would logically conclude that no party in the ownership

chain of the Notes, especially the Servicer or the Trustee, would do anything

that could possibly jeopardize the REMIC status of the Trust.

41. Assuming full IRS and SEC Compliance on this contribution and

transfer process of the subject loan along with all other loans included in this

Trust, the subject Note needed to have gone through the complete chain of

ownership and deposited into the Trust by the Depositor, Argent Securities,

Inc. by the date of September 7, 2004.

42. The assignment that the Plaintiff produced in the instant case

shows an Assignment of Mortgage from the Originator (Argent Mortgage

Company, LLC) to the Trustee (Deutsche Bank National Trust Company).

However, the corresponding Prospectus and PSA clearly indicate that no loan

in this Trust followed that chain of ownership (from Originator directly to

Trustee thus skipping the Seller and the Depositor). It also shows that the

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Assignment was completed on May 16, 2008, nearly FOUR YEARS after the

mandatory expiration period for loans to be deposited into this Trust and

which is clearly outside of the three-month window from the Startup Day

disclosed to the Securities and Exchange Commission.

43. Additionally, originators of residential loans do not deal with

Trustees in their normal course of business. In a securitized transaction,

originators always sell the Notes and transfer ownership to a Master Servicer

or a Seller/Sponsor who subsequently sells the Notes and transfers

ownership to the Depositor and subsequently to the Trustee for the benefit of

the Trust.

44. These are all genuine issues of material fact in this case which go

to the heart of the Plaintiff allegations that it has the Standing to bring this

cause of action. Since there are many issues of fact plainly enumerated in

this case and due to the fact that there is still outstanding discovery specific

and material to this case and Plaintiffs allegations, Plaintiffs Motion for

Summary Judgment must thus be denied.

CONCLUSION

45. Again, one thing is crystal clear: The Assignment produced

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by the Plaintiff/Trustee in this case specifically contradicts the governing

documents for this Trust. Whether the Defendants mortgage loan is/was a

part of this Trust has not even been established with documentary evidence

but the Plaintiff/Trustee has already violated the operative agreements of this

Trust by creating and filing a fraudulent assignment of mortgage with this

court and has also placed a cloud on the title of the Defendants property.

46. The Defendant specifically disputes that the mere copy of what

the Plaintiff alleges to be the original note is in fact authentic and disputes

that it is her actual signature on this Note that the Plaintiff has recently filed

and which is different than a copy of the Note the Plaintiff originally filed with

this court.

47. Plaintiff has, by its very submissions and admissions,

demonstrated that there are genuine issues of material fact as to its status

and when, if ever, Plaintiff came into any ownership interest in either the

Note or Mortgage. Plaintiffs refusals to comply with Defendants discovery

requests are improper. Summary judgment for Plaintiff is thus inappropriate.

48. The Plaintiff has failed to show conclusively and with

documentary evidence that it will suffer any injury due to the alleged default

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of the Defendant and has failed to document that the mortgage loan in this

case is an Asset on its books and ledgers. If the Plaintiff has not and will not

suffer any economic or other injury that it has failed to show that is a real

party in interest.

49. The Certification of Proof of Amount Due, which consists of

incompetent hearsay, is legally inadmissible and does not in any way

support the entry of summary judgment for Plaintiff.

WHEREFORE, Defendant, Paulette A. Dennis, by and through her attorney,

Farrel Donald, prays that this honorable court will find that genuine issues of

material fact exist, recognize her due process right to discovery and find in

Defendants favor and deny the Plaintiffs Motion for Summary Judgment.

Respectfully Submitted,

____________ ___________________ __

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Farrel Donald, Esq. (NY No. 4671575)

Attorney for Defendant

242 Fountain Ave.

Brooklyn, NY 11208

Phone: (347) 278-2509

Facsimile: (718) 341-6873

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

document has been furnished by US Mail to Fein, Such, Kahn & Shepard, P.C.

located at 7 Century Drive, Suite 201, Parsippany, NJ 07054, on this _____ day

of ____________, 2010.

Respectfully Submitted,

By: ____________ ______________ __

Joshua Sears, Esq.

Fein, Such, Kahn & Shepard, P.C.

Attorneys for Plaintiff

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7 Century Drive, Suite 201

Parsippany, NJ 07054

Phone: (973) 538-4700

Facsimile: (973) 538-8234

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Documents

NJ - Response in Opposition to MSJ + Memorandum of Law