Case 3:08-cv-00104-TCB Document 104

Filed 11/14/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION CINDY LANE ONEAL and ROBERT ONEAL Husband and Wife, ) ) ) Plaintiffs, ) ) vs. ) ) U.S. BANK, NATIONAL ASSOCIATION, AS ) TRUSTEE FOR THE STRUCTURED ASSET ) SECURITIES CORPORATION MORTGAGE ) LOAN TRUST, 2006-NC1; AMERICAS ) SERVICING COMPANY; and DOES 1-10, ) ) Defendants. ) ________________________________________)

CIVIL ACTION NO: 3:08-cv-104-TCB

DEFENDANTS U.S. BANK AND WELLS FARGOS RENEWED MOTION FOR SUMMARY JUDGMENT COME NOW Defendants U.S. Bank, National Association, as

Trustee for the Structured Asset Securities Corporation Mortgage Loan Trust, 2006-NC1 (hereinafter U.S. Bank) and Wells Fargo Bank, N.A., Successor by Merger to Wells Fargo Home Mortgage, Inc. d/b/a Americas Servicing Company, referred to collectively herein as Defendants, and pursuant to Fed. R. Civ. P. 56, L.R. 56, N.D. Ga., and this Courts September 30, 2011 Order [D.I. # 99] file this Renewed Motion for Summary Judgment. Because

there is no genuine issue as to any material fact in dispute in this matter, Defendants respectfully request that the Court

dismiss Plaintiffs claims in their entirety.

Case 3:08-cv-00104-TCB Document 104

Filed 11/14/11 Page 2 of 4

In its Order entered September 30, 2011, this Court noted that it was not entirely clear from the Declaration of Jennifer Robinson whether Robinson had personal knowledge of the

transaction that led to U.S. Bank holding the Note and Security Deed. [D.I. #99, p. 20]. The Court granted Defendants leave to refile their motion for summary judgment to cure this technical deficiency. [D.I. #99, pp. 21-22].1 In Renewed consideration Motion for of the foregoing, Defendants file this by

Summary

Judgment,

incorporating

herein

reference their Motion for Summary Judgment filed March 22, 2010 [D.I. #64],2 moving the Court to grant its motion upon finding as a matter of law that U.S. Bank is the holder in due course of the Note, and is thereby entitled to enforce all rights under

1 The Court granted Defendants leave to refile to cure the deficiencies described on page twenty-one of the Order, to wit: (1) the assignment to Lehman Brothers Bank, FSB; and (2) the assignment from Lehman Brothers Bank, FSB to Lehman Brothers Holdings, Inc. As discussed in the Supplemental Memorandum, the aforestated transactions involved the contractual assignment of a pool of loans that included the Loan. The Note and Security Deed themselves, however, were only assigned two times, and Defendants offer competent evidence of the assignment of the Note and Security Deed directly from New Century to U.S. Bank. 2 Since Defendants did not confirm the foreclosure sale pursuant to O.C.G.A. 44-14-161, they do not take issue with the Courts analysis of Defendants counterclaim [Order, D.I. #99, Section II(B)] and do not therefore oppose dismissal on this basis. - 2 -

Case 3:08-cv-00104-TCB Document 104

Filed 11/14/11 Page 3 of 4

the Note and Security Deed by virtue of New Century Mortgage Corporations (New Century) indorsement of the Note and

assignment of the Security Deed, and the delivery of the Note, Security Deed, Indorsement and Assignment to Wells Fargo in

trust for U.S. Bank. In support of their Motion, Defendants rely upon their

supporting Statement of Material Facts as to Which There is No Genuine Issue to be Tried [D.I. #64-2], Memorandum [D.I. #64-3], Supplemental Statement of Material Facts as to Which There is No Genuine Issue to be Tried, Supplemental Memorandum in Support of Renewed Motion for Summary Judgment, and supporting evidentiary materials filed previously or simultaneously herewith, including without limitation, the Supplemental Declaration of Jennifer

Robinson filed contemporaneously with this Renewed Motion. This 14th day of November, 2011. Respectfully submitted, s/Gary D. Beelen Joseph C. Chancey Georgia Bar No. 120520 jchancey@deflaw.com Gary D. Beelen Georgia Bar No. 046230 gbeelen@deflaw.com Counsel for Defendants DREW ECKL & FARNHAM, LLP 880 W. Peachtree Street, P.O. Box 7600 Atlanta, GA 30357 Telephone: (404) 885-1400 Facsimile: (404) 876-0992 - 3 -

Case 3:08-cv-00104-TCB Document 104

Filed 11/14/11 Page 4 of 4

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 14, 2011, I

electronically filed this Defendants U.S. Bank and Wells Fargos Renewed using Motion for Summary Judgment will to the with the Clerk of Court email of

the

CM/ECF of

system such

which

automatically following

send

notification record:

filing

attorneys

Peter A. Durham W. Jeff Barnes This 14th day of November, 2011.

s/Gary D. Beelen Gary D. Beelen Georgia Bar No. 046230 gbeelen@deflaw.com Counsel for Defendants DREW ECKL & FARNHAM, LLP 880 West Peachtree Street P.O. Box 7600 Atlanta, Georgia 30357 Telephone: (404) 885-1400 Facsimile: (404) 876-0992
2599144/1 5168-70493

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION CINDY LANE ONEAL and ROBERT ONEAL Husband and Wife, ) ) ) Plaintiffs, ) ) vs. ) ) U.S. BANK, NATIONAL ASSOCIATION, AS ) TRUSTEE FOR THE STRUCTURED ASSETS ) SECURITIES CORPORATION MORTGAGE ) LOAN TRUST, 2006-NC1; AMERICAS ) SERVICING COMPANY; and DOES 1-10, ) ) Defendants. ) ________________________________________)

CIVIL ACTION NO: 3:08-cv-104-TCB

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF RENEWED MOTION FOR SUMMARY JUDGMENT COME Trustee Mortgage NOW for Loan Defendants the U.S. Bank, Assets National Association, as

Structured 2006-NC1

Securities U.S.

Corporation Bank) and

Trust,

(hereinafter

Wells Fargo Bank, N.A., Successor by Merger to Wells Fargo Home Mortgage, Inc. d/b/a Americas Servicing Company, (hereinafter Wells Fargo) (collectively referred to herein as Defendants) and, pursuant to leave granted in the September 30, 2011 Order of this Court [D.I. #99], file this Supplemental Memorandum in Support of Renewed Motion for Summary Judgment, incorporating herein by reference all materials previously filed in support of

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 2 of 14

their Motion for Summary Judgment filed March 22, 2010. [D.I. #64]. I. INTRODUCTION This Supplemental Memorandum is filed for the purpose of clarifying the chain of transactions whereby U.S. Bank, National Association, Corporation as Trustee for the Structured 2006-NC1 Asset Securities U.S.

Mortgage

Loan

Trust,

(hereinafter

Bank) became the lawful and proper assignee of the Note and Security Deed subject of this litigation (collectively, the

Loan). In its Order entered September 30, 2011, this Court noted that it was not entirely clear from the Declaration of Jennifer Robinson whether Robinson had personal knowledge of the transaction that led to U.S. Bank holding the Note and Security Deed. [D.I. #99, p. 20]. The Court granted Defendants leave to refile their motion for summary judgment to cure this technical deficiency.1 [D.I. #99, pp. 21-22].

The Court granted Defendants leave to refile to cure the deficiencies described on page twenty-one of the Order, to wit: (1) the assignment to Lehman Brothers Bank, FSB; and (2) the assignment from Lehman Brothers Bank, FSB to Lehman Brothers Holdings, Inc. As discussed herein, the aforestated transactions involved the contractual assignment of a pool of loans that included the Loan. The Note and Security Deed themselves, however, were only assigned two times, and Defendants offer herein competent evidence of the assignment of the Note and Security Deed directly from New Century to U.S. Bank. - 2 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 3 of 14

The

Court

previously

determined

that

the

Foundation

Financial Group, LLC (FFG) to New Century Mortgage Corporation (New Century) assignment was valid as a matter of law. [Order, D.I. #99, p. 21]. Defendants show herein that U.S. Bank is the lawful and proper assignee of the Note as a matter of law by virtue of New Centurys indorsement in blank of the Assignment of Note Without Recourse (Indorsement), and is the lawful and proper assignee of the Security Deed by virtue of New Centurys execution of the Assignment of Security Deed on March 2, 2006 (Assignment). U.S. Bank became the holder in due course upon

deposit of the Note, Security Deed, Indorsement, and Assignment with Wells Fargo in trust for U.S. Bank pursuant to the terms of the June 1, 2006 Trust Agreement by and between Structured Asset Securities Corporation, Aurora Loan Services, LLC, Risk

Management Group, LLC and U.S. Bank (Trust Agreement) and the June 1, 2006 Securitization Subservicing Agreement by and

between Wells Fargo, Lehman Brothers Holdings, Inc. and Aurora Loan Services, Inc. (Subservicing Agreement). Notwithstanding the series of loan pool transactions

discussed in Defendants Memorandum [D.I. #64-3] and analyzed by the Court in its Order [D.I. #99], U.S. Bank shows that it is

- 3 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 4 of 14

the holder in due course of the Note, and is thereby entitled to enforce all rights under the Note and Security Deed. II. SUMMARY OF RELEVANT FACTS The recitals section of the June 1, 2006 Mortgage Loan Sale and Assignment Agreement between Lehman Brothers Holdings, Inc. and Structured Asset Securities Corporation identify a series of transactions involving loan pools that included the Loan.

[Declaration of Jennifer Robinson (2009 Dec.), D.I. #97, 7 and 8, Exhibits in I and K]. The recitals Bank, FSB include acquired the the

transaction

which

Lehman

Brothers

Loan, as part of a pool of loans, from NC Capital Corporation. The recitals further describe, in turn, the transaction in which Lehman Brothers Bank, FSB conveyed its interest in that same pool of loans to Lehman Brothers Holdings, Inc. In connection with the foregoing transactions, the Note and Security Deed were only assigned twice. assigned the Note and Security Deed to FFG transferred and New Century via the

Assignment of Note Without Recourse dated March 20, 2006. [2009 Dec., Exhibit in C]. blank, New and Century the thereafter and executed the were

Indorsement

Note

Indorsement

deposited with Wells Fargo in trust for U.S. Bank pursuant to 2.01(b)(v) of the Trust Agreement - 4 and the Subservicing

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 5 of 14

Agreement.

[Supplemental

Declaration

of

Jennifer

Robinson

(Supp. Dec.), 8-9, Ex. A; 2009 Dec., Exhibits L and M]. Exhibit Likewise, New Century executed the Assignment [2009 Dec., J], and the Security Deed and Assignment were

deposited with Wells Fargo in trust for U.S. Bank pursuant to the terms of the Trust Agreement and the Subservicing Agreement. [Supp. Dec., 8-9; 2009 Dec., Exhibits B, J, L, and M]. Therefore, though the loan pools that included the Loan were the subject of multiple transactions, the Note and Security Deed were the subject of only 2 actual assignments: the

assignment from FFG to New Century, and the assignment from New Century to U.S. Bank, with the Note, Indorsement, Security Deed, and Assignment being deposited with Wells Fargo in trust for U.S. Bank pursuant to the terms of the Trust Agreement and the Subservicing Agreement.

- 5 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 6 of 14

III. ARGUMENT AND CITATION OF AUTHORITY A. Defendants Counterclaim

Defendants do not take issue with the Courts analysis of the status of their counterclaim subsequent to U.S. Banks

January 4, 2011 foreclosure sale of the Property. [Order, D.I. #99, Section II(B)]. Since the foreclosure sale was not

confirmed pursuant to O.C.G.A. 44-14-161, and in consideration of Plaintiffs bankruptcy discharge, Defendants do not oppose dismissal of their counterclaim. B. U.S. Bank Is the Holder in Due Course of the Note

Wells Fargo took possession of the Note in trust for U.S. Bank for value, in good faith, without notice of any

deficiencies, claims or defenses, and as otherwise required to establish U.S. Bank as a holder in due course under Georgia law. As the holder in due course of the Note, U.S. Bank is also entitled to the benefit of the security attached thereto,

including all rights set forth in the Security Deed. Pursuant to O.C.G.A. 11-3-302, "holder in due course" means the holder of an instrument2 if: (1) the instrument when issued or negotiated to the holder does not bear such apparent evidence
2

of

forgery

or

alteration

or

is

not

otherwise

so

A promissory note is an instrument. O.C.G.A. 11-3-104(b) and (e). - 6 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 7 of 14

irregular

or

incomplete

as

to

call

into

question

its

authenticity; and (2) the holder took the instrument: (i) for value; (ii) in good faith; (iii) without notice that the

instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series; (iv) without notice that the instrument altered; contains without an unauthorized of any signature claim to or the has been

(v)

notice

instrument

described in Code Section 11-3-306; and (vi) without notice that any party has a defense or claim in recoupment described in subsection (a) of Code Section 11-3-305. A bill or note indorsed in blank is transferable by

delivery, and the indorsement, so long as it continues in blank, makes the bill or note in effect payable to bearer. Possession of such a negotiable instrument proves property. Leathers v. Turner, 75 Ga. App. 62, 67 (1947). negotiable instrument establishes a Proof of possession of a prima facia case of

ownership and entitles the holder to recover on it unless the

- 7 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 8 of 14

opposing party establishes a defense.3 James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451, 458 (5th Cir. Ga. 1971) citing Pitillo v. Demetry, 112 Ga.App. 643 (1965). The evidence is undisputed that Wells Fargo has been in possession of the Note, Security Deed, Indorsement, and

Assignment and has held such in trust for U.S. Bank at all times relevant to this litigation, including without limitation prior to Plaintiffs filing of bankruptcy on or about May 27, 2010 and at the time the Security Deed and Property secured thereby were foreclosed upon on January 4, 2011. [Supp. Dec., 12].

Plaintiffs have not identified any evidence that would defeat U.S. Banks holder in due course status with regard to the loan instruments. At the time the Loan Servicing File was delivered to Wells Fargo in trust for U.S. Bank, the Note did not bear any apparent evidence of forgery or alteration and was not otherwise so

Among the jurisdictions that have addressed the issue, the courts have uniformly held that actual possession of an instrument by the agent of a principal is sufficient to establish holder in due course status for the principal. Georg v. Metro Fixtures Contrs., Inc., 178 P.3d 1209, 1214-1216 (Colo. 2008); See also, Farm Credit of Northwest Fla. v. Easom Peanut Co., 2011 Ga. App. LEXIS 817 (2011)(finding that term possession within the context of security interests under O.C.G.A. 11-9-110 includes constructive possession). - 8 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 9 of 14

irregular

or

incomplete

as

to

call

into

question

its

authenticity. [Supp. Dec., 13]. Wells Fargo took possession of the Note in trust for U.S. Bank for value and in good faith without notice that it was overdue or had been dishonored or that there was an uncured default with respect to payment of another instrument issued as part of the same series. [Supp. Dec., 14]. Wells Fargo took possession of the Note in trust for U.S. Bank without notice that it contained any unauthorized signature or had been altered. [Supp. Dec., 15]. Wells Fargo took possession of the Note in trust for U.S. Bank without notice of any claim of a property or possessory right in the Note or its proceeds, including a claim to rescind a negotiation and to recover the Note or its proceeds, or

otherwise under O.C.G.A. 11-3-306. [Supp. Dec., 16] Wells Fargo took possession of the Note in trust for U.S. Bank without notice of any defenses based upon infancy, duress, fraud, discharge through insolvency proceedings, or contract,

claims in recoupment, or any other defense or claim described in O.C.G.A. 11-3-305(a). [Supp. Dec., 17]. Having produced competent evidence establishing that U.S. Bank is the holder in due course of the Note, Defendants have - 9 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 10 of 14

shown as a matter of law that U.S. Bank is the lawful and proper assignee of the Note, entitled to all rights attached thereto. C. U.S. Bank is Entitled to Exercise All Rights Under Security Deed as Holder in Due Course of the Note 10-3-1 provides that the transfer of a note

O.C.G.A.

secured by a mortgage conveys to the transferee the benefit of the security by operation of law. The Note expressly provides that it is subject to transfer and that it is secured by a mortgage. As set forth above, the Note was transferred to U.S.

Bank upon New Centurys execution of the Indorsement and the subsequent delivery of the Indorsement and Note to Wells Fargo in trust for U.S. Bank. In consideration of the foregoing, U.S.

Bank is a holder in due course of the Note, entitled to all rights attached thereto, including those set forth in the

Security Deed. Wells Fargo also holds the original Assignment and Security Deed in trust for U.S. Bank. [Supp. Dec., 11, 12]. Though

the Assignment does not identify an assignee, O.C.G.A. 44-1464 does not require that an assignee be identified for a

transfer to be valid.

Also, though New Century was not a party

to the Trust Agreement, 2.01(b)(v) of that agreement expressly provides that an assignment in blank is one of two permissible methods for assignment. - 10 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 11 of 14

On May 25, 2010, seven months prior to foreclosing upon the Security Deed, Wells Fargo, as attorney-in-fact for U.S. Bank, caused a Missing Assignment Affidavit to be filed at Deed Book 3567, Page 606-614, Coweta County records, averring therein that U.S. Bank was the holder of the Note, the current assignee of the Security Deed, and that it was unable to locate the original assignment or a replacement therefore after repeated attempts. [Supp. Dec., 18, Ex. B].4 By filing this affidavit of

record, which was cross-referenced to the deed book and page where the Security Deed was filed, U.S. Bank provided

constructive notice to all persons that might claim an interest in the Security Deed. O.C.G.A. 44-2-2; Deljoo v. SunTrust

Mortg., Inc., 284 Ga. 438, 439 (2008). Furthermore, U.S. Bank advertised its intent to foreclose upon the Security Deed once a week for 4 weeks in The Newnan Times-Herald prior to conducting the foreclosure on January 4, 2011, thereby providing actual notice. [Supp. Dec., 19]. No person or entity, including New Century, has made a

competing claim upon the Note or Security Deed. [Supp. Dec., 21]. Even if New Century were to assert a claim on the Note or
4

Wells Fargo subsequently located the assignment from FFG to New Century and the Assignment among its business records. [Supp. Dec., 20]. - 11 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 12 of 14

Security Deed, it would be estopped from prevailing upon such because it executed the Assignment in blank. McGlaun v.

Southwest Ga. Prod. Credit Asso, 256 Ga. 648, 649 (1987)(finding that borrowers were estopped, as a matter of law, from asserting that security deed was void because they were aware it was blank when they executed it); State Hwy. Dept. v. Raines, 129 Ga. App. 123, 128 (1973) (If a party signs a contract leaving blanks to be filled in, he implicitly authorizes it to be done by the party to whom it is delivered). IV. CONCLUSION Having offered competent evidence showing that U.S. Bank is the holder in of due the course of the Note, Note, and that it is in

possession

original

original

Security

Deed,

original Indorsement, and original Assignment, Defendants have satisfied their burden in establishing that U.S. Bank is the lawful and proper assignee of the Loan as a matter of law. In

consideration of the foregoing, Defendants respectfully request that their Motion for Summary Judgment be granted and the Court issue an Order dismissing Plaintiffs claims in their entirety.

- 12 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 13 of 14

CERTIFICATION Pursuant complies with to the Local font Rule and 7.1(D), I certify this brief by the

point

selections

approved

court in LR 5.1(C). This 14th day of November, 2011. Respectfully submitted, s/Gary D. Beelen Joseph C. Chancey Georgia Bar No. 120520 jchancey@deflaw.com Gary D. Beelen Georgia Bar No. 046230 gbeelen@deflaw.com Counsel for Defendants DREW ECKL & FARNHAM, LLP 880 W. Peachtree Street P.O. Box 7600 Atlanta, GA 30357 Telephone: (404) 885-1400 Facsimile: (404) 876-0992

- 13 -

Case 3:08-cv-00104-TCB Document 104-1

Filed 11/14/11 Page 14 of 14

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 14, 2011, I

electronically filed this Supplemental Memorandum in Support of Renewed using Motion for Summary Judgment will to the with the Clerk of Court email of

the

CM/ECF of

system such

which

automatically following

send

notification record:

filing

attorneys

Peter A. Durham W. Jeff Barnes

This 14th day of November, 2011.

s/Gary D. Beelen Gary D. Beelen Georgia Bar No. 046230 gbeelen@deflaw.com Counsel for Defendants DREW ECKL & FARNHAM, LLP 880 West Peachtree Street P.O. Box 7600 Atlanta, Georgia 30357 Telephone: (404) 885-1400 Facsimile: (404) 876-0992
3122282/4 5168-70493

Case 3:08-cv-00104-TCB Document 104-2

Filed 11/14/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA NEWNAN DIVISION CINDY LANE ONEAL and ROBERT ONEAL Husband and Wife, ) ) ) Plaintiffs, ) ) vs. ) ) U.S. BANK, NATIONAL ASSOCIATION, AS ) TRUSTEE FOR THE STRUCTURED ASSET ) SECURITIES CORPORATION MORTGAGE ) LOAN TRUST, 2006-NC1; AMERICAS ) SERVICING COMPANY; and DOES 1-10, ) ) Defendants. ) ________________________________________)

CIVIL ACTION NO: 3:08-cv-104-TCB

DEFENDANTS SUPPLEMENTAL STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED COME NOW Defendants U.S. Bank, National Association, as

Trustee for the Structured Asset Securities Corporation Mortgage Loan Trust, 2006-NC1 (hereinafter U.S. Bank) and Wells Fargo Bank, N.A., Successor by Merger to Wells Fargo Home Mortgage, Inc. d/b/a Americas Servicing Company (hereinafter Wells

Fargo), referred to collectively herein as Defendants, and, pursuant to Fed. R. Civ. P. 56, L.R. 56, N.D. Ga., and this Courts September 30, 2011 Order [D.I. #99], and file this

Supplemental Statement of Material Facts as to Which There Is No Genuine Issue to be Tried in support of their Renewed Motion for Summary Judgment, incorporating herein by reference Defendants Statement of Material Facts as to which there exists no genuine

Case 3:08-cv-00104-TCB Document 104-2

Filed 11/14/11 Page 2 of 7

issue

to

be

tried

in

support

of

their

Motion

for

Summary

Judgment filed on March 22, 2010 [D.I. #64-2]. 1. Pursuant Agreement to 2.01(b)(v) Structured of Asset the June 1, 2006 Trust

between

Securities

Corporation,

Aurora Loan Services, LLC, Risk Management Group, LLC and U.S. Bank (Trust Agreement) indorsements and assignments for loans purchased by the Trust were to be deposited with U.S. Bank upon its purchase of the such loans. [Supplemental Declaration of Jennifer Robinson (Supp. Dec.), 5]. 2. Pursuant to the terms of the Trust Agreement, Aurora Loan Services is the Master Servicer for loans in the Trust. [Supp. Dec., 6]. 3. Wells Fargo is a Servicer of loans of the Trust pursuant to the June 1, 2006 Securitization Subservicing Agreement by and between Wells Fargo, Lehman Brothers Holdings, Inc. and Aurora Loan Services, Inc. (Subservicing Agreement). [Supp. Dec., 7]. 4. As required by the Subservicing Agreement the Loan

Servicing File for the Loan, including the original Note, the

- 2 -

Case 3:08-cv-00104-TCB Document 104-2

Filed 11/14/11 Page 3 of 7

original

recorded

Security

Deed,

the

original

Indorsement

in

blank from New Century Mortgage Corporation (Indorsement), and the original Assignment from New Century Mortgage Corporation (Assignment), was delivered to Wells Fargo in trust for U.S. Bank concurrent with the Trusts purchase of the Loan in the ordinary course of Wells Fargos business. [Supp. Dec., 8]. 5. Wells Fargo took possession of the Note, Security Deed, Indorsement and Assignment in trust for U.S. Bank pursuant to the Trust Agreement and the Subservicing Agreement. [Supp. Dec., 9]. 6. In its capacity as servicer of the Loan, Wells Fargo holds the Loan Servicing File in trust for U.S. Bank in the ordinary course of Wells Fargos business. [Supp. Dec., 10]. 7. By virtue of the foregoing, Wells Fargo is in possession of the original Note, original recorded Security Deed, original

Indorsement and original Assignment. [Supp. Dec., 11]. 8. Wells Fargo has been in possession of the Note, Security Deed, Indorsement, and Assignment and has held such in trust for U.S. Bank at all times relevant to this litigation, including

- 3 -

Case 3:08-cv-00104-TCB Document 104-2

Filed 11/14/11 Page 4 of 7

without limitation prior to Plaintiffs filing of bankruptcy on or about May 27, 2010 and at the time the Security Deed and Property secured thereby were foreclosed upon on January 4,

2011. [Supp. Dec., 12]. 9. At the time the Loan was delivered to Wells Fargo in trust for U.S. Bank, the Note did not bear any apparent evidence of forgery or alteration and was not otherwise so irregular or

incomplete as to call into question its authenticity. [Supp. Dec., 13]. 10. Wells Fargo took possession of the Note in trust for U.S. Bank for value and in good faith without notice that it was overdue or had been dishonored or that there was an uncured default with respect to payment of another instrument issued as part of the same series. [Supp. Dec., 14]. 11. Wells Fargo took possession of the Note in trust for U.S. Bank without notice that it contained any unauthorized signature or had been altered. [Supp. Dec., 15]. 12. Wells Fargo took possession of the Note in trust for U.S. Bank without notice of any claim of a property or possessory

- 4 -

Case 3:08-cv-00104-TCB Document 104-2

Filed 11/14/11 Page 5 of 7

right in the Note or its proceeds, including a claim to rescind a negotiation and to recover the Note or its proceeds, or

otherwise under O.C.G.A. 11-3-306. [Supp. Dec., 16]. 13. Wells Fargo took possession of the Note in trust for U.S. Bank without notice of any defenses based upon infancy, duress, fraud, discharge through insolvency proceedings, or contract,

claims in recoupment, or any other defense or claim described in O.C.G.A. 11-3-305(a). [Supp. Dec., 17]. 14. On or about May 25, 2010, Wells Fargo, as attorney-in-fact for U.S. Bank, caused to be filed in the public records of Coweta County, Georgia a Missing Assignment Affidavit averring that U.S. Bank was the holder of the Note, the current assignee of the Security Deed, and that it was unable to locate the original assignment or a replacement therefore after repeated attempts. [Supp. Dec., 18]. 15. On January 4, 2011, after having provided notice to the debtors and advertised the Property once a week for 4 weeks in The Newnan Times-Herald, U.S. Bank foreclosed upon the Security Deed and sold the property secured thereby at foreclosure sale

- 5 -

Case 3:08-cv-00104-TCB Document 104-2

Filed 11/14/11 Page 6 of 7

pursuant to the terms of the Security Deed and in conformance with Georgia law. [Supp. Dec., 19]. 16. After filing the Missing Assignment Affidavit, the original Assignment was located among Wells Fargos business records.

[Supp. Dec., 20]. 17. As of this date, Wells Fargo is not aware of, nor has it received notice of, any person or entity claiming an interest in the Note, Security Deed, Indorsement, or Assignment superior to U.S. Banks interest or otherwise. [Supp. Dec., 21]. Respectfully submitted this 14th day of November, 2011. s/Gary D. Beelen Joseph C. Chancey Georgia Bar No. 120520 jchancey@deflaw.com Gary D. Beelen Georgia Bar No. 046230 gbeelen@deflaw.com Counsel for Defendants DREW ECKL & FARNHAM, LLP 880 W. Peachtree Street P.O. Box 7600 Atlanta, GA 30357 Telephone: (404) 885-1400 Facsimile: (404) 876-0992

- 6 -

Case 3:08-cv-00104-TCB Document 104-2

Filed 11/14/11 Page 7 of 7

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 14, 2011, I

electronically filed this Defendants Supplemental Statement of Material Facts as to Which There is No Genuine Issue to be Tried with the Clerk of Court email using the CM/ECF of system which to will the

automatically

send

notification

such

filing

following attorneys of record: Peter A. Durham W. Jeff Barnes This 14th day of November, 2011.

s/Gary D. Beelen Gary D. Beelen Georgia Bar No. 046230 gbeelen@deflaw.com Counsel for Defendants DREW ECKL & FARNHAM, LLP 880 W. Peachtree Street P.O. Box 7600 Atlanta, GA 30357 Telephone: (404) 885-1400 Facsimile: (404) 876-0992
3126719/1 5168-70493

Case 3:08-cv-00104-TCB Document 104-3

Filed 11/14/11 Page 1 of 7

Case 3:08-cv-00104-TCB Document 104-3

Filed 11/14/11 Page 2 of 7

Case 3:08-cv-00104-TCB Document 104-3

Filed 11/14/11 Page 3 of 7

Case 3:08-cv-00104-TCB Document 104-3

Filed 11/14/11 Page 4 of 7

Case 3:08-cv-00104-TCB Document 104-3

Filed 11/14/11 Page 5 of 7

Case 3:08-cv-00104-TCB Document 104-3

Filed 11/14/11 Page 6 of 7

Case 3:08-cv-00104-TCB Document 104-3

Filed 11/14/11 Page 7 of 7

Case 3:08-cv-00104-TCB Document 104-4

Filed 11/14/11 Page 1 of 2

Case 3:08-cv-00104-TCB Document 104-4

Filed 11/14/11 Page 2 of 2

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 1 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 2 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 3 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 4 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 5 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 6 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 7 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 8 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 9 of 10

Case 3:08-cv-00104-TCB Document 104-5

Filed 11/14/11 Page 10 of 10

Case 3:08-cv-00104-TCB Document 104-6

Filed 11/14/11 Page 1 of 7

Case 3:08-cv-00104-TCB Document 104-6

Filed 11/14/11 Page 2 of 7

Case 3:08-cv-00104-TCB Document 104-6

Filed 11/14/11 Page 3 of 7

Case 3:08-cv-00104-TCB Document 104-6

Filed 11/14/11 Page 4 of 7

Case 3:08-cv-00104-TCB Document 104-6

Filed 11/14/11 Page 5 of 7

Case 3:08-cv-00104-TCB Document 104-6

Filed 11/14/11 Page 6 of 7

Case 3:08-cv-00104-TCB Document 104-6

Filed 11/14/11 Page 7 of 7