COMMONWEALTH OF MASSACHUSETTS

HAMPDEN, SS. LAND COURT DEPARTMENT

CA. NO.:

_________________________________________
)
MARK A. LARACE )
TAMMY L. LARACE )
)
Plaintiffs )
vs. )
)
WELLS FARGO BANK, N.A., AS TRUSTEE )
FOR ABFC 2005-0PTI TRUST, ABFC ASSET )
BACKED CERTIFICATES, SERIES 2005-OPTI )
AND THE CERTIFICATEHOLDERS THEREOF, )
OCWEN LOAN SERVICING, LLC, F/K/A )
HOMEWARD REDIENTIAL, F/K/A AHMSI, )
FIKIA OPTION ONE MORTGAGE CORP., )
BLACK KNIGHT FINANCIAL SERVICES, INC. )
F/K/A LENDER PROCESSING SERVICES, F/K/A )
FIDELITY NATIONAL FORECLOSURE )
SOLUTIONS, AND/OR FIDELITY )
INFORMATION SERVICES, INC., )
ASSURANT FIELD ASSET SERVICES F/K/A )
FIELD ASSET SERVICES, INC., )
ABLITT & SCOFIELD P.C., F/K/A )
ABLITT LAW OFFICES, P.C., F/K/A )
ABLITT & CHARLTON, P.C. and )
MARTY'S REAL ESTATE, )
)
Defendant )
__________________________________________ )

PLAINTIFFS’ RESPONSE TO DEFENDANTS’

CONCISE STATEMENT OF MATERIAL FACTS

Subject to Plaintiffs’ Motion to Strike under the requirements attendant to Land Court

Rule 4, Plaintiffs’ herein submit their responses to the Defendants 12th hour filing of its Concise

Statement of Material Facts.

1
 1. Plaintiffs, Mark A. Larace and Tammy L. Larace ("Plaintiffs"), acquired equitable
title to the property located at 6 Brookburn Street, Springfield, Massachusetts ("the Property")
pursuant to a quitclaim deed dated May 16, 2005. (See Deed recorded with the Hampden County
Registry of Deeds ("Registry") on May 19, 2005, in Book 15029, Page 504; Plaintiffs' Verified
Complaint ("Compl.") 1.)

Plaintiffs’ Response No. 1 Plaintiffs, Mark A. Larace and Tammy L. Larace

("Plaintiffs"), purchased the property located at 6 Brookburn Street, Springfield,
Massachusetts ("the Property") pursuant to a quitclaim deed dated May 16, 2005.

2. To purchase the Property, the Plaintiffs borrowed $103,200.00 from Option One
Mortgage Corporation ("Option One") as evidenced by an Adjustable Rate Note ("Note") dated
May 19, 2005, secured by a mortgage also dated May 19, 2005, granted in favor of Option One
encumbering the Property ("Mortgage"). The Mortgage was recorded at the Registry on May 19,
2005 at Book 15029, Page 507 (The Note and Mortgage together shall hereinafter be referred
to as the "Loan."). (See Affidavit of Ocwen Loan Servicing, LLC ("Ocwen Affidavit"), I 0, Ex.
I; Affidavit of Jordan S. O'Donnell ("O'Donnell Affidavit"), Ex. A.)

Plaintiffs’ Response No. 2 To purchase the Property, the Plaintiffs executed two
promissory notes, 1) for $103,200.00 that was specifically payable to Option One Mortgage
Corporation ("Option One") as evidenced by an Adjustable Rate Note ("Note") dated May 19,
2005, [see Defendants’ Affidavit of Ocwen Loan Servicing, LLC at Exhibit 1], secured by a
mortgage also dated May 19, 2005, granted in favor of Option One encumbering the Property
("Mortgage"), [see Defendants’ Affidavit In Support at Exhibit A] and 2) a second Note for
$25,800.00 also specifically payable to Option One Mortgage Corporation by a mortgage also
dated May 19, 2005, recorded on the Hampden County Registry of Deeds at Book 15029,
Page 517, [see Affidavit of Attorney Glenn F. Russell, Jr., at Exhibit B]

3. After the Plaintiffs defaulted on their obligations under the Loan, Wells Fargo as
Trustee attempted a nonjudicial foreclosure sale of the Property on July 5, 2007 ("2007
Foreclosure"). (Compl. 38 & Exs. A, E & F; Ans.38.)

Plaintiffs’ Response No. 3: Denied as to Defendant Wells Fargo as Trustee. Wells Fargo
as Trustee has never established that it possesses a perfected secured interest in the right to
payment from Plaintiffs’ promissory Note. Additionally, Wells Fargo as Trustee has provided
no document that it was a proper party to have “Accelerated” Plaintiffs’ First Note, as evidenced
by it seeking its remedy under the ‘acceleration clause’ of the Mortgage recorded at Book 15029,
Page 507, through enforcement of the Power of Sale, at paragraph 21 [see Defendants’
Affidavit In Support at Exhibit A, at p. 5, ¶21].

4. At the sale, Wells Fargo as Trustee purchased the Property. (ld.)

Plaintiffs’ Response No. 4 Denied. As there is no document within the Summary

Judgment record that would support Defendants’ Claim that it was a proper party to have
conducted a statutorily proper auction sale under G.L. c. 244, §14.. Further, Defendants rely

2
upon purported “Affidavits” submitted uder the specific R. 56 context to prove the tuth of the
matter asserted in which the Affiant(s) rely upon documents outside the record upon Summary
Judgment, and as such are hearsay and should be stricken.

5. On May 7, 2008, Wells Fargo as Trustee executed a foreclosure deed and

affidavit of sale, and Option One executed an assignment of the Mortgage to Wells Fargo as
Trustee ("2008 Assignment"). (Compl. 38 & Exs. A, E & F; Ans. 38; O'Donnell Aff., Ex. B.)

Plaintiffs’ Response No. 5 On May 07, 2008, a document is executed purporting that
Option One assigned all of the right, title, interest in and to and that certain Mortgage dated
May 19, 2005 to Wells Fargo as Trustee, However stating on its face that it had an ‘effective
date’ of April 18, 2007, which thereafter on May 12, 2008 was recorded upon Plaintiffs’ title
at Book 17291 Page 84. [see Defendants’ Affidavit In Support at Exhibit B].

6. The assignment was recorded at the Registry on May 12, 2008, and contained an
effective date of April 8, 2007. (Compl. 50 &Ex. G; Ans. 50; O'Donnell Aff., Ex. B.)

Plaintiffs’ Response No. 6: Plaintiffs’ agree that this purported “assignment” contains
a purported “effective date” of April 08, 2007. However when presented with interrogatory
questions related to when the purported “assignment” took place, the Defendants specifically
denied that any transfer or assignment was contemporaneous with May 12, 2008 or April 18,
2007, [see also Defendants Memorandum Summary Judgment at p, 16].

7. On March 7, 2012, Sand Canyon Corporation f/k/a Option One Mortgage

Corporation executed a Confirmatory Assignment of the Mortgage to Wells Fargo as Trustee
("Confirmatory Assignment"). (O'Donnell Aff., Ex. C.)

Plaintiffs’ Response No. 7 Denied as being “confirmatory” or having took place

contemporaneously with the execution on such purported document.. The SJC in Ibanez
clearly stated that an assignment described as “confirmatory” could only confirm an earlier
legally valid assignment, see Ibanez at p. 654. Defendants have provided no document within
its summary judgment record that establishes any earlier valid transfer took place for this
purported March 24, 2012 assignment to confirm. Indeed, Defendants deny that any
contemporaneous transfer took place under the May 18, 2008, or its purported effective date of
April 18, 2007, [see Defendants Memorandum Summary Judgment at p, 16]. Defendants
specifically refer to a March 26, 2005 date when the Plaintiffs’ Mortgge was ‘effectively
transferred’ under the PSA, [see Id.]. The only document within the summary judgment record
bearing the date of March 26, 2005, is the document attached to Plaintiffs’ Affidavit In
Support of their Opposition at p., 1, ¶E, and Exhibit E attached thereto. Therefore, the
purported March 24, 2012 “confirmatory” assignment did not confirm any earlier assignment.
The purported Assignor admits that it owned no mortgage loan, or did not service any
mortgage loan as of March 18, 2009. See Plaintiffs’ Affidavit In Support of their Opposition at
p., 1, ¶H, and Exhibit H attached thereto Therefore, Defendants have failed to meet their
burden that the Plaintiffs’ Mortgage was assigned to Defendants on April 18, 2007, May 12,
2008, or March 24, 2012. Defendants only rely upon the purported March 26, 2005
“assignment in blank”. See Plaintiffs’ Affidavit In Support of their Opposition at p., 1, ¶H, and
Exhibit H attached thereto. The SJC very clearly identified that sch a purported claimed

3
“assignment in blank would be vid and convey nothing, see Ibanez, at p. 643, and p. 652.

8. The Confirmatory Assignment specifically states it is "intended to clarify the

assignor in the" 2008 Assignment. The Confirmatory Assignment was recorded at the Registry
on March 24, 2012. (Id.)

Plaintiffs’ Response No. 8 Denied as being “confirmatory” or having took place

contemporaneously with the execution on such purported document. The SJC in Ibanez clearly
stated that an assignment described as “confirmatory” could only confirm an earlier legally
valid assignment, and could not take place for “the first time”; see Ibanez at p. 654. Defendants
have provided no document within its summary judgment record that establishes any earlier
valid transfer took place for this purported March 24, 2012 assignment to confirm. Indeed,
Defendants deny that any contemporaneous transfer took place under the May 18, 2008, or its
purported effective date of April 18, 2007, [see Defendants Memorandum Summary Judgment at
p, 16]. Defendants specifically refer to a March 26, 2005 date when the Plaintiffs’ Mortgage
was ‘effectively transferred’ under the PSA, [see Id.]. The only document within the summary
judgment record bearing the date of March 26, 2005, is the document attached to Plaintiffs’
Affidavit In Support of their Opposition at p., 1, ¶E, and Exhibit E attached thereto. Therefore,
the purported March 24, 2012 “confirmatory” assignment did not confirm any earlier
assignment. The purported Assignor admits that it owned no mortgage loan, or did not service
any mortgage loan as of March 18, 2009. See Plaintiffs’ Affidavit In Support of their
Opposition at p., 1, ¶H, and Exhibit H attached thereto Therefore, Defendants have failed to
meet their burden that the Plaintiffs’ Mortgage was assigned to Defendants on April 18, 2007,
May 12, 2008, or March 24, 2012. Defendants only rely upon the purported March 26, 2005
“assignment in blank”. See Plaintiffs’ Affidavit In Support of their Opposition at p., 1, ¶H, and
Exhibit H attached thereto. The SJC very clearly identified that sch a purported claimed
“assignment in blank would be vid and convey nothing, see Ibanez, at p. 643, and p. 652.

9. In October 2008, Wells Fargo as Trustee brought an action in this Court to quiet
title to the Property under Civil Action No. 08 MISC 386755. (See Land Court Docket, Case No.
08 MISC 386755; Compl. 44, 62 & Ex. H; Ans.44, 62.)

Plaintiffs’ Response No. 9 In October 2008, Wells Fargo as Trustee brought an action in
this Court to quiet title to the Property under Civil Action No. 08 MISC 386755. [see, Exhibits
to Plaintiffs’ complaint at Ex. H, I, J, and M, and Affidavit of Attorney Glenn F. Russell, Jr., at
Exhibit C]

10. On March 26, 2009, the Court entered judgment against Wells Fargo as Trustee,
declaring the 2007 Foreclosure invalid. (See Land Court Docket, Case No. 08 MISC 386755;
Compl. 44, 66 & Exs. H & I; Ans. 44, 66.)

Plaintiffs’ Response No. 10 On March 26, 2009, this Court entered judgment against
Wells Fargo as Trustee (Long, J.), declaring the 2007 Foreclosure invalid because the notice of
foreclosure sale named Wells Fargo as Trustee as the holder of the Mortgage without providing
any writing that supported the specific assignment of Plaintiffs’ mortgage to Wells Fargo as
Trustee, [see Affidavit of Attorney Glenn F. Russell, Jr., at Exhibit C, ]

4
 11, The judgment was upheld on appeal. (See US. Bank National Association
v. Ibanez, 458 Mass. 637 (2011); Compl. 72 & Ex. R; Ans.72.)

Plaintiffs’ Response No. 11 The SJC upheld the Land Court decision on Appeal. The
SJC opined that the same Defendant Wells Fargo as Trustee before this Court claimed that the
‘securitization documents’ they submitted ‘established’ valid assignments that made them the
holder of the LaRace mortgage prior to the 2008 notice of sale and the 2008 foreclosure sale; see
Ibanez at p. 643, and Affidavit of Glenn F. Russell, Jr. in Support, at Exhibit D, bates LRCE-
0098]. Further, in their Record Appendix before the SJC, the same Defendants Wells Fargo as
Trustee produced an earlier un-recorded purported assignment bearing an execution date
of May 26, 2005, stating that Option One assigned Plaintiffs’ mortgage, but which named
no assignor, [see Plaintiffs’ Affidavit of Glenn F. Russell, Jr. in Support, at Exhibit E].

On appeal before the SJC, the Court noted that the same Defendant Wells Fargo as
Trustee initially contended that the assignment of Plaintiffs’ mortgage in blank executed by
Option One, [identifying an assignor but no assignee], not only "evidenced and confirmed the
assignments that occurred by virtue of the securitization agreements," but "was an effective
assignment in its own right." But in its reply brief to the Court the same Defendant Wells Fargo
as Trustee conceded that the assignment in blank of Plaintiffs’ mortgage did not constitute a
lawful assignment, which the Court confirmed in finding that under long held precedent that a
conveyance of real property such as a mortgage, that does not name the assignee conveys
nothing and is void; citing, Flavin v. Morrissey, 327 Mass. 217, 219 (1951); Macurda v. Fuller,
225 Mass. 341, 344 (1916). See also G. L. c. 183, § 3, [also see Ibanez, at p. 652, and Plaintiffs’
Affidavit in Support., at Exhibit D, bates LRCE-0107]

The Defendants continue to to rely upon a May 26, 2005 “assignment” of Plaintiffs’
mortgage, The Defendants admit that, like its previous action that ended up before the SJC in
Ibanez, that they continue to solely rely upon the PSA itself to have ‘effectively transferred’
Plaintiffs’ mortgage from Option One to the Defendant Wells Fargo as Trustee, on March 26,
2005 [see Defendants Motion for Summary Judgment, at p. 16, at n. 3], but see the ruling from the
SJC in Ibanez at p. 654, [confirmatory assignment cannot confirm an earlier assignment that was
not validly made], see also Plaintiffs Affidavit of Glenn F. Russell, Jr. in Support at 55, and Exhibit
D, LRCE-0108 to 0110. In responses to materially relevant discovery requests, Defendants
responded that they Denied in form the question posed as to whether the original assignment of
Plaintiffs Mortgage took place on March 26, 2005, [see Affidavit of Attorney Glenn F. Russell,
Jr., at Exhibit H, at First Request for Admission, Request No. 3, No. 6, No. 7, and at First Request
for Interrogatory at No. 10]. Yet, in their Motion for Summary Judgment at p. 16, Defendants
state that their position is that Plaintiffs’ Mortgage was ‘effectively transferred’ to Wells
Fargo as Trustee on or about March 26, 2005’, pursuant to the PSA. The only document within
the instant record upon summary Judgment referencing the March 26, 2005 date, is the assignment
in blank [see Plaintiffs’ Affidavit of Glenn F. Russell, Jr. in Support, at Exhibit E]. Defendants
also disclaim that the purported assignment of Plaintiffs mortgage took place contemporaneously
uder either the recorded assignment of 2008, or 2012, but rely specifically on a March 26, 2005

5
“effective transfer under the PSA”.

The SJC also found that, where mortgage loans are pooled together in a trust and
converted into mortgage-backed securities, the underlying promissory notes serve as
financial instruments generating a potential income stream for investors, but the mortgages
securing these notes are still legal title to someone's home or farm and must be treated
as such, [see Ibanez, at p. 649, and Plaintiffs’ Affidavit in Support., at Exhibit D, bates LRCE-
0104].

The Defendants have proffered in their “Supplemental” record a purported “portion of the
mortgage loan schedule” [that was turned over to Plaintiffs 1 month after the Defendants
decided that their record on Summary Judgment was finalized as evidenced by Plaintiffs filing of
their Opposition on February 15, 2019]., Plaintiffs’ further object to the evidentiary nature of
such portion of the “mortgage loan schedule as it lacks any indicia of reliability.

However, as with the Defendants’ previous presentation of this same document to the
SJC, it continues its failure to not identify LaRace family, or the specific mortgage loan at issue.
Indeed, on appeal before the SJC, the Court stated that the mortgage loan schedule Wells
Fargo submitted failed to identify with adequate specificity the LaRace mortgage as one of
the mortgages assigned under the PSA. See Ibanez, at pp. 644-645.

Nor does such proffer satisfy the SJC’s admonition of satisfying the second step of the
analysis, “However, there must be proof that the assignment was made by a party that itself
held the mortgage. See In re Samuels, 415 B.R. 8, 20 (Bankr. D. Mass. 2009), [see Ibanez, at p.
651, and Plaintiffs’ Affidavit in Support., at Exhibit D, bates LRCE-0106]. Moreover, the SJC
found Wells Fargo provided the judge with no document that reflected that the ABFC
(depositor) held the LaRace mortgage that it was purportedly assigning in the PSA, [see
Ibanez, at p. 644, and Plaintiffs’ Affidavit in Support., at Exhibit D, bates LRCE-0099]

The SJC also stated that like a sale of land itself, the assignment of a mortgage is a
conveyance of an interest in land that requires a writing signed by the grantor, citing G. L. c.
183, § 3; Saint Patrick's Religious, Educ. & Charitable Ass'n v. Hale, 227 Mass. 175, 177 (1917),
[see Ibanez, at p. 649, and Plaintiffs’ Affidavit in Support., at Exhibit D, bates LRCE-0104]

As with the instant action before this Court, on appeal before the SJC, Wells Fargo as
Trustee also claimed that in 2007, before it issued the foreclosure notice, it was assigned the
LaRace mortgage under the PSA, [see Ibanez, at p. 643, and Plaintiffs’ Affidavit in Support., at
Exhibit D, bates LRCE-0098]

On appeal before the SJC, the Defendants initially argued that the May 07, 2008
assignment was sufficient to establish its authority to foreclose, but then later argued in the
alternative that the May 07, 2008 post-sale assignment was sufficient when taken in conjunction
with the evidence of a presale assignment under the PSA, Ibanez at 653, [see Plaintiffs’ Affidavit
In Support, at Exhibit D, bates LRCE-0108]

6
 The SJC rejected the Defendants reliance upon any valid pre-sale assignment’ under the
PSA, and based on the record before the Land Court Judge [Long], the Defendants failed to
prove that they ever obtained any earlier valid written assignment of the LaRace mortgage under
the PSA before the foreclosure publication. Therefore, the SJC found that the May 07, 2008 post
foreclosure assignment was not confirmatory of any earlier valid assignment. See Ibanez at
654, [see Plaintiffs’ in Support, at Exhibit D, at Exhibit D, bates LRCE-0108 to 0110].

Like their presentation in Ibanez, the Defendants have again submitted no document that
identifies any earlier writing constituting a valid assignment of Plaintiffs’ mortgage that the May
07, 2008 assignment or March 07, 2012 confirmatory assignment purportedly “confirms”. In fact
the face of the May 07, 2008 assignment clearly recites its reliance upon an April 18, 2008
‘effective date’. The Defendants again, as they did in their Quiet Title action in 2008, continue
to rely upon the PSA itself to have assigned the Plaintiffs’ mortgage to Wells Fargo as Trustee,
and specifically disclaim any contemporaneous transfer under the documents recorded upon
Plaintiffs title, [see Defendants Motion for Summary Judgment, at p. 16].

In Ibanez, the SJC clearly rejected Wells Fargo as Trustee’s reliance on the PSA where
there were no writings evidencing the specific transfer of the LaRace mortgage as such
assignment represents a transfer of an interest in Land in this Commonwealth, see Ibanez at p.
649, Plaintiffs’ Affidavit in Support at Exhibit D, bates LRCE-0104 to 0107.

In Defendants’ Motion for Summary Judgment here, they admit that there were three
assignments of Plaintiffs’ mortgage; 1) a July 28, 2005 ‘assignment’ of Plaintiffs’ Mortgage
from Option One to Bank of America under a “sale and servicing agreement; 2) A October 01,
2005 ‘assignment’ of Plaintiffs’ Mortgage from Bank of America to ABFC (depositor) in a
‘mortgage loan purchase agreement’; and 3) ‘as part of PSA [sic] ABFC ‘pooled the mortgage
[lower case letter “m”] and assigned it with others to Wells Fargo as Trustee”. [see Defendants
Motion for Summary Judgment, at p. 16].

Thus in Defendants for Summary Judgement, at p. 16, they admit that under a purported
July 28, 2005 Flow Sale and servicing ‘agreement’, Option One assigned Plaintiffs’ Mortgage to
Bank of America, but never proffered such document or any writing supporting this statement.

Plaintiffs specifically requested such document under specific discovery request for said
‘agreement’, which also requested the schedule of loans that were sold under such purported
agreement, to wit Defendants responded that such document was ‘not relevant’ [even though
they rely on it here], and that Defendants ‘will produce the requested document’. [see Affidavit
of Attorney Glenn F. Russell, Jr., at Exhibit H, at First Request for Production of Documents, at
Request No. 23, also see Defendants Responses to Plaintiffs’ First Request for Admissions at
Request No. 4, No. 5, No. 6, No. 11, No. 32 [stating document speaks for itself with no proffer of
said document], and at First Request for Interrogatory at Request No. 15, [stating document
speaks for itself with no proffer of said document].

Thus, Defendants continue to rely upon documents not in the record under a R. 56
analysis, and have also failed to provide any evidence that would be admissible at trial relative to
the claim that Defendants’ mortgage was ‘assigned’ by Option One to Bank of America under a

7
July 28, 2005 sale and servicing agreement, where such purported agreement seeks to prove the
truth of the matter herein asserted, as such hearsay as well as offending the best evidence rule.
Thus, Defendants have proffered no documentary indicia of any writing evidencing the
assignment of the interest in Plaintiffs’ land to Bank of America by Option One.

In Defendants Motion for Summary Judgement, at p. 16, they also admit that Bank of
America assigned the Plaintiffs Mortgage to ‘ABFC’ [Depositor] on October 01, 2005, under a
‘mortgage loan purchase agreement’ but also never proffered such document.

Again, Plaintiffs specifically requested production and information related to the

‘mortgage loan purchase agreement that specifically identifies the Plaintiffs’ mortgage as one
being “purchased”, and also requested the schedule of loans thereto, . [see Affidavit of Attorney
Glenn F. Russell, Jr., at Exhibit H, at First Request for Production of Documents, at Request No.
6, to wit Defendants responded that term “Seller” and “Depositor” were ‘vague, [but see
definition section of Plaintiffs’ discovery requests where such terms were clearly defined by
Plaintiffs to mean Option One and Bank of America] further Defendants confusingly stated
that such document was ‘not relevant’ [even though they rely on it here], and that Defendants
‘will produce the requested document’],

Again, such reference to the contents of the ‘mortgage loan schedule’ would not be
admissible at trial, as this purported ‘agreement’ is also outside the record, which seeks to prove
the truth of the matter herein asserted, as such hearsay as well as offending the best evidence
rule. Defendants belated sent over to Plaintiffs’ a portion of the purported mortgage loan
schedule, some thirty (30) days after the summary judgment record was closed. Indeed,
Defendants’ intententionally submitted their Motion, with scienter of the fact that they had not
yet turned over this redacted”, and evidentiary insufficient proffer. In fact, undersigned requested
an extension to submit Plaintiffs’ Opposition, as Defendants only sent a partial response to
discovery approximately one week prior to the Defendants’ filing of its Motion, Defendants
made the intentional decision to submit that record at their peril.

In Defendants Motion for Summary Judgement, at p. 16, they also admit that ‘as part of
the PSA’, ‘ABFC’ [Depositor] assigned the Plaintiffs Mortgage to the Defendant Trustee,
without identifying any date of such purported assignment or what specific writing purportedly
transferred the interest in Plaintiffs’ real property from ABFC to Wells Fargo as Trustee. Again,
such reference would not be admissible at trial, as the contents of such purported ‘agreement is
also outside the record’, which seeks to prove the truth of the matter herein asserted.

Plaintiffs also specifically requested the Mortgage Loan Schedule from the PSA (“as part
of PSA”), [which Plaintiffs clearly defined such term under their requests], but Defendants have
never proffered schedule of loans that were assigned under such purported agreement, even
though Defendants response was “that it will be produced’ [see Affidavit of Attorney Glenn F.
Russell, Jr., at Exhibit H, at First Request for Admission, at No. 11, 34, [stating document speaks
for itself with no proffer of said document], No. 35]. Again only well after Plaintiffs’ had
submitted their Opposition, did Defendants turn over a claimed portion of the mortgage loan
schedule, which still fails to sufficently identify Plaintiffs’ or their mortgage loan, as stated by

8
the SJC in Ibanez

Defendants state in their Motion that the reason for non-inclusion of the above documents
was due to the ‘volume of the referenced documents’, but that we should all rest assured that
these ‘facts’ are discussed [with no proffer of any document] at length in the prior litigation and
those pleadings relied upon in support. Defendant fails to identify specifically where the
‘referenced documents’ were ever produced in any ‘prior litigation’ or were ‘subject to the
precise issue before this Court. [see Defendants Motion for Summary Judgment, at p. 16, at n. 3].
Thus, Defendants have proffered no documentary indicia of any writing evidencing the
assignment of the interest in Plaintiffs’ land from ABFC (depositor) to Wells Fargo Bank as
Trustee.

The Defendant admits that it solely relies upon the PSA itself to have ‘effectively
transferred’ Plaintiffs’ mortgage from Option One to the Defendant Wells Fargo as Trustee, on
March 26, 2005 [see Defendants Motion for Summary Judgment, at p. 16, at n. 3], but see the
ruling from the SJC in Ibanez at p. 654, [confirmatory assignment cannot confirm an earlier
assignment that was not validly made], see also Plaintiffs Affidavit in Support at 55, and Exhibit
D, LRCE-0108 to 0110.

In responses to materially relevant discovery requests, Defendants responded that they

Denied in form the question posed as to whether the original assignment of Plaintiffs Mortgage took
place on March 26, 2005, [see Affidavit of Attorney Glenn F. Russell, Jr., at Exhibit H, at First
Request for Admission, Request No. 3, No. 6, No. 7, and at First Request for Interrogatory at No.
10].

12. On June 6, 2012, the Plaintiffs filed a try title action in this Court pursuant to
M.G.L. c. 240, §§ 1-6, against Wells Fargo as Trustee, Option One, and the prior servicer of the
Loan (American Home Mortgage Servicing, Inc.). (See Land Court Docket, Case No. 12 MISC
465484 ("2012 Try Title Action"); Compl. 77 & Ex. V; Ans.77.)

Plaintiffs’ Response No. 12

The LaRace family filed a Petition under the first step of the try title action, in which they
failed to establish that they could invoke the subject matter jurisdiction of the Land Court,
under the holding enunciated by the SJC in Abate v. Fremont, 470 Mass. 821, 834; at c.
“adverse claimant”. Indeed, at the time of the LaRace family filing of their petition to try-title,
there was never any completed foreclosure auction sale. In fact, the First Circuit cited to
following Abate in it dismissal of the LaRace family appeal.

13. Following removal of the action, the U.S. District Court granted the Defendants'
motion to dismiss on September 24,2013. (See Mark A. Larace, eta/. v. Wells Fargo Bank, NA.,
as Trustee for ABFC 2005-0PTJ Trust, ABFC Asset-Backed Certificates Series 2005-0PTJ, et
a/., C.A. No. 12-cv-11545-MAP, Doc. No. 32 (D. Mass. Sept. 24, 2013); Compl. 81 & Ex. V;
Ans.81.)

Plaintiffs’ Response No. 13 The LaRace family appealed the decision of the U.S. District

9
 Court.

14. On July 21, 2015, the First Circuit Court of Appeals upheld the district court's
decision dismissing the 2012 Try Title Action. (See First Circuit Court of Appeals Docket, Case
No. 13-2316; Compl. 84 & Ex. V; Ans.84.)

Plaintiffs’ Response No. 14 The First Circuit affirmed dismissal, but cited the holding of
the SJC in Abate as the reason therefore.
15. Plaintiffs next filed a Verified Complaint in the Hampden County Superior Court
on January 6, 2014 ("2014 Action") against Wells Fargo as Trustee, Ocwen, and other entities,
seeking a minimum of $7.7 Million in damages for the invalid 2007 Foreclosure. (See Hampden
Superior Court Docket, Civil Action No. 1479cv00012; Compl.85 & Ex. W Ans. 85.)

Plaintiffs’ Response No. 15 Plaintiff filed such Acton in relation to the damages they
incurred solely as to the actions of Defendants in 2008. The instant matter, unlike the matter in 2008
involves a revised interpretation of G.L. c. 244, §14, as well as the fact that at the time of the
January 2014 complaint in this matter there was not threatened foreclosure auction sale of
Plaintiffs’ premises.

16. On July 15, 2016, the Superior Court dismissed the Complaint. (See Hampden
Superior Court Docket, Civil Action No. 1479cv00012; Compl.95 & Ex. W; Ans.95.)

Plaintiffs’ Response No. 16 On July 15, 2016, the Superior Court dismissed the
Complaint, on the basis solely of the facts and circumstances related to the 2008 action, which
never reached the ultimate merits of whether the Defendant Wells Fargo Trustee owned the
right to enforce Plaintiffs’ Note and mortgage, as it only reviewed the utilization of the
statutory procedure of G.L. c. 244, §14 as it existed at that time

17. On February 5, 2018, the Massachusetts Appeals Court affirmed the Superior
Court's dismissal of Plaintiffs' Complaint. (See Larace v. Wells Fargo Bank, NA., 2018 Mass.
App. Unpub. LEXIS 115 (Mass. App. Ct. Feb. 5, 2018); Compl. 105; Ans. 105.)

Plaintiffs’ Response No. 17 On February 5, 2018, the Massachusetts Appeals Court

affirmed the Superior Court's dismissal of Plaintiffs' Complaint, that solely reviewed the
propriety of the actions that occurred under the specific fact pattern before the SJC in Ibanez.

18. The Plaintiffs then sought further appellate review with the Supreme Judicial
Court, which was denied on May 4, 2018. (Comp.106-07; Ans.106-107.)

Plaintiffs’ Response No. 18 The Plaintiffs then sought further appellate review with
the Supreme Judicial Court, regarding the specific 2008 actions of Defendants under the previous
interpretation of G.L. c. 244, §14, which was revised by the SJC under Eaton v. Fed. Nat’l Mortgage
Ass’n, 462 Mass. 569 (2012).

19. After the 2014 Action resolved, Wells Fargo as Trustee moved forward with

10
another foreclosure sale of the Property as the Plaintiffs remained in default on the Loan.
(Compl. 112 & Ex. Y; Ans.112.)

Plaintiffs’ Response No. 19 Wells Fargo as Trustee wrongfully moved forward with
another foreclosure sale of the Property, where it failed to ever receive any valid assignment
of the Plaintiffs’ Note or mortgage.

20. Ocwen mailed the Plaintiffs a 90-Day Right to Cure Your Mortgage Default letter
("Notice of Default") and a Right to Request a Modified Mortgage Loan letter, both dated
February 17,2017. (Ocwen Aff.,11-12, Exs. 2-3.)

Plaintiffs’ Response No. 20 Wells Fargo as Trustee, and its mortgage servicer Ocwen
Loan Servicing wrongfully moved forward with another foreclosure sale of the Property,
where these Defendants never had the statutory or legal authority to do so,

21. After the Plaintiffs failed to cure their default within 90 days, Wells Fargo as
Trustee commenced a proceeding under the Servicemembers Civil Relief Act on August 25,
2017 ("SCRA Proceeding"), where the Land Court issued an Order of Notice on October 26,
2017, and entered judgment in Wells Fargo as Trustee's favor on February 7, 2018. (Ocwen Aff.,
14; O'Donnell Aff., Exs. D-E.)

Plaintiffs’ Response No. 21 Servicemembers actions occur completely separate and apart
from “foreclosure”, and a ruling under the SCRA actions have no bearing on establishing that a
purported “mortgagee” was a proper party to utilize G.L. c. 244, §14, [see HSBC Bank USA v.
Matt, 464 Mass. 193, 204 (2013)].

22. In furtherance of the foreclosure, on August 23, 2017, an Affidavit Regarding

Compliance with M.G.L. c. 244 sec. 35B, ("35B Affidavit") and an Affidavit Regarding
Note Secured by Mortgage to be Foreclosed MGL c. 244 sec. 35C ("35C Affidavit") were
executed and recorded, certifying that Wells Fargo as Trustee complied with those statutes
and was the holder of the Note secured by the Mortgage. (Ocwen Aff. 15; O'Donnell Aff., Exs.
F-G.).

Plaintiffs’ Response No. 22 :While this Affidavit was executed and recorded, the
language within the G.L. c. 244, §35C Affidavit relies upon document(s) outside the R. 56
Record. Indeed, Defendants characterize the G.L. c. 244, §35C “Affidavit” as being submitted
“in furtherance of the foreclosure”. The issue presently before the Court is whether this extra
judicial “submission” satisfies evidentiary muster under the specific R. 56 context presently
before this Court. Reviewing the “35C Affidavit” being submitted to prove the truth of the
matter asserted regarding Defendants’ possession of the right to enforce the Plaintiffs’ Note at
the time of the first publication of auction, the Affiant refers to documents outside the R.56
Record, where the Affiant states, [see Exhibit G attached to Defendants’ Affidavit In Support
of Defendants Motion for Summary Judgment – (“Jordan S. O’Donnell Affidavit”)

2. “ I am familiar with the business records of Ocwen Servicing, LLC as they relate to

11
 servicing of the Mortgage Loan which is the subject of this affidavit. Ocwen Loan
Servicing, LLC’s records are reliable because they are kept in the ordinary course of
business by persons who have a business duty to make such records. The records are
made at or near the occurrence of events so recorded. To the extent records related to
the loan come from another entity, those records were received by Ocwen Loan
Servicing, LLC in the ordinary course of its servicing business, have been incorporated
into and maintained as part of Ocwen Loan Servicing, LLC’s business records, and
have been relied on by Ocwen Loan Servicing, LLC. It is the regular practice of Ocwen
Loan in its mortgage servicing business to make and maintain these records. I have
personal knowledge lf the facts set forth in this affidavit based upon my review of
Ocwen Loan Servicing, LLC,s business records maintained in connection with the
Mortgage and related Mortgage loan account whose payment the Mortgage secures”

3. Based upon my review if the ‘business records’ of Ocwen Loan Servicing, LLC, I certify
that the Foreclosing Mortgagee is:
[X] The holder of the promissory note secured by the above mortgage

It is not subject to credible dispute that Ocwen Loan Servicing, LLC was not the mortgage

Servicer of Plaintiffs’ Mortgage loan during the events that took place during the origination of

Plaintiffs’ Mortgage loan, or during the 2008-2011 previous litigation, which therefore leads to

the conclusion that Ocwen Loan Servicing, LLC, purports to have relied upon records related to

the Plaintiffs’ Mortgage loan that came from another entity. This purported “35C Affidavit”

is executed by one Karen P. Peterkin, “Contract Manager Coordinator”. “Notably, this

Affiant does not state that she reviewed the Note itself, but only reviewed the “business

records of Ocwen Loan Servicing, LLC”. It is also beyond dispute that a “Note” is not a

“business record”. Therefore, the Affiant does not attached the “business record” that

purports to “certify” that the Defendants ever received the right to enforce the Plaintiffs’

Note. Plaintiffs have been deprived of challenged such purported business record, which

was required to be attached to the Jordan Affidavit and/or the 35C Affiidavit, see MRCP, R.

56(e).

23. Both Affidavits were recorded at the Registry on September I, 2017. (O'Donnell
Aff., Exs. F-G.).

12
 Plaintiffs’ Response No. 23 Recordation of documents upon a Registry of Deeds is for
Notice purposes only, and cannot suddenly transform an otherwise legally invalid document to
become viable, see Bevilacqua v. Rodriguez, 460 Mass. 762, 771 (2011)

24. In accordance with G.L. c. 244, § 14, the Notice of the foreclosure sale to be
conducted on July 3, 2018 was mailed to Defendants on June 5, 2018, which attached
a Certificate Relative to Foreclosing Party's Right to Foreclosure Pursuant to 209 C.M.R.
18.21A(2)(c) and a copy of the Note with all endorsements ("Ce1tification"). (Ocwen Aff.
16, Ex. 4.)
Plaintiffs’ Response No. 24 Denied. Defendants’ have failed established their
foundational authority to have been a statutorily proper party to have sent a valid Notice to
Plaintiffs, as the issue is not whether a “notice was sent”, but rather were notices sent in
compliance with G.L. c. 244, §14.

25. The notice of the July 3, 2018 foreclosure sale was also published in The
Springfield Union News-Republican on June 12, 2018, June 19, 2018, and June 26, 2018.
(Ocwen Aff., 17, Ex. 4; O'Donnell Aff., Ex. H.)

Plaintiffs’ Response No. 25 Denied. Defendants’ have failed established their

foundational authority to have been a statutorily proper party to have caused a statutorily proper
publication, as the issue is not whether there was a “publication”, but rather was the publication
in compliance with G.L. c. 244, §14.

26. A foreclosure by power of sale and also by entry were then conducted on July 3,
2018 ("2018 Foreclosure"). (OcwenAff., 18; O'Donnell Aff.,Exs. H-I.)

Plaintiffs’ Response No. 26 Denied. Defendants’ have failed established their

foundational authority to have been a statutorily proper party to have caused a statutorily proper
publication, as the issue is not whether there was an “Entry”, but rather was the Defendants
were proper parties to make Entry in compliance with G.L. c. 244, §1, §2.

27. The Property was sold to Wells Fargo as Trustee for $128,000.00 as evidenced by
a Foreclosure Deed dated August 28, 2018 ("Foreclosure Deed"), recorded at the Registry with
an Affidavit of Sale ("Affidavit of Sale") attesting to Wells Fargo as Trustee's compliance with
all statutory foreclosure requirements and including a copy of the notice of sale. (Ocwen Aff.,
19; O'Donnell Aff., Exs. H-I.)

Plaintiffs’ Response No. 27 Denied. Defendants’ have failed to establish their

foundational authority to have been a statutorily proper party to have caused a statutorily proper
publication, as the issue is not whether there was a “publication”, but rather was the publication
in compliance with G.L. c. 244, §14. Recordation of documents upon a Registry of Deeds is for
Notice purposes only, and cannot suddenly transform an otherwise legally invalid document to
become viable, see Bevilacqua v. Rodriguez, 460 Mass. 762, 771 (2011)

28. After the sale, an Affidavit Regarding Note Secured by Mortgage Being
Foreclosed dated August 14, 2018 ("Post-Foreclosure Affidavit"), was also executed and
recorded, again certifying that Wells Fargo as Trustee was the holder of the Note and Mortgage.

13
 (Ocwen Aff. 20; O'Donnell Aff., Ex. J.

Plaintiffs’ Response No. 28 Denied. Defendants’ have failed established their

foundational authority to support the legal validity of the “Foreclosure Affidavit” or that
Defendants were ever a statutorily proper party to have caused a statutorily proper publication,
as the issue is not whether there was a “publication”, but rather was the publication in
compliance with G.L. c. 244, §14. Further the “Post Foreclosure Affidavit”. Therefore,
Defendants have not proven superior title received from any properly conducted foreclosure
auction sale.

29. An Affidavit of Compliance with Mortgage Notice Provisions and Conditions

Precedent to Acceleration and Sale "Pinti Affidavit" ("Pinti Affidavit") also dated August 14,
2018, was also executed and recorded, certifying that the contents of the Notice of Default to
the. Defendants was in strict compliance with the notice provisions in the Mortgage. (Ocwen
Aff. 21; O'Donnell Aff., Ex. K.)

Plaintiffs’ Response No. 29 Denied. Defendants’ have failed established their

foundational authority to support the legal validity of the “Pinti Affidavit” or that Defendants
were ever a statutorily proper party to have caused a statutorily proper publication, as the issue
is not whether there was a “publication”, but rather was the publication in compliance with G.L.
c. 244, §14. Further the “Pinti Affidavit”. Therefore, Defendants have not proven superior title
received from any properly conducted foreclosure auction sale.

Respectfully submitted,
Plaintiffs
By their Attorney,

Glenn F. Russell, Jr., Esq.

BBO# 656914

38 Rock Street, Suite #12

Fall River, MA 02720
(508) 324-4545
(508) 938-0244

Dated: April 26, 2019

14
 CERTIFICATE OF SERVICE

I, Glenn F. Russell, Jr., hereby certify that on the date below I sent a copy of this document to the
Defendants’ counsel of record by first class mail, postage prepaid, and/or email, on April 26, 2019

____________________________
Glenn F. Russell, Jr.

Jordan s. O’Donnell
Hale Yazicioglu Lake
HINSHAW & CULBERTSON,LLP
53 State Street, 27th Floor
Boston, MA 02109

15