IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS CHANCERY DIVISION WELLS FARGO BANK, N.A., Plaintiff, -vs.

MARY RILEY, Defendant. DEFENDANTS MOTION TO STRIKE AND DISMISS COMPLAINT Now comes the defendant, Mary A. Riley, by her attorney, Daryl R. Berry, and moves this Court to strike and dismiss the Complaint of plaintiff, pursuant to [2-615] [2-619] of the Code of Civil Procedure, 735 ILCS 5/2-619, and, in the support of this Motion, states: 1. Section 2-615 of the Code of Civil Procedure provides in pertinent part: (a) All 2011 CH

objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief. 2. Motions for involuntary dismissal pursuant to 735 ILCS 5/2-619 are based upon

certain defects or defenses. The purpose of a motion to dismiss under this statute is to provide litigants with a method of disposing of issues of law and easily proved issues of fact at the beginning of a case, reserving disputed issues of law for trial, if necessary. Van Meter v. Darien Park Dist., 207 Ill. 2d 359 (2003). A defendant may move to dismiss a complaint on a number of different grounds, including: (1) (2) 3. 4. lack of jurisdiction; one or both of the parties do not have legal capacity to sue or be sued;

In the instant matter the Plaintiff does not have legal capacity to sue. The Complaint to Foreclose Mortgage was filed on July 19, 2011, purportedly to 1

enforce rights arising from a Fixed Rate Note dated June 11, 2004 designated as Loan No. 0059515536-9701 [Exhibit A] and a Mortgage of same date [Exhibit B] . 5. The Assignment of Mortgage was executed on July 21, 2011 and recorded in the [Exhibit C]

Office of the Cook County Recorder of Deeds on August 1, 2011.

Accordingly, the Plaintiff was not assigned interest in the subject Mortgage and Note until thirteen (13) days after the Complaint to Foreclose was filed and therefore the Plaintiff did not have standing to sue. That is assuming that the Assignment of Mortgage is actually valid. 6. The Assignment of Mortgage has inconsistent content which raises tangible

questions of fact as to the true Assignee of the Mortgage. This Assignment of Mortgage is fatally flawed. 7. The use of affidavits on motions for summary judgment is governed by Illinois

Supreme Court Rule 191(a) (eff. July 1, 2002). Under that rule, affidavits must set out the facts on which the affiants claims are based, and attach all documents upon which the affiant relies. The subject Assignment of Mortgage contains false statements, misrepresentations, and omission of material facts and is fatally flawed for the following reasons: a. Parent company Citigroup Inc. bought Argent Mortgage Co. LLC and

AMC Mortgage Services in August 2007. The companies were subsidiaries of ACC Holdings, which owned Ameriquest, one of the nations largest and most criticized subprime lenders. The signatories on this document are alleged employees of Bank of America, N.A. (BANA) not Argent Mortgage Company, LLC. There is no documentation reflecting a transaction between Citigroup Inc. and Bank of America NA accompanying the Assignment of Real Estate Mortgage. 2

b.

Amanda Chase is an employee of Bank of America as a Sr. Compliance

Specialist, Global Compliance Risk Manager however she is signing as an Assistant Vice President and as Attorney-In-Fact. c. [Exhibit D]

Amanda Chase works in the San Francisco Bay Area in California. The

Assignment of Mortgage was notarized in Allegheny County, Pennsylvania. {Exhibit D] d. Eric Oyler is an employee of Bank of America Home Loans as an

Assistant Vice President located in the San Francisco Bay Area. e. He is not an employee of Bank of America, N.A as alleged on the

Assignment and defendant demands strict proof thereof; f. Pennsylvania. g. There is no evidence that either signer had the authority to execute this The Assignment of Mortgage was notarized in Allegheny County,

Assignment of Mortgage as an Attorney-In-Fact for Argent Mortgage Company. h. i. There is no Power of Attorney of record. The Notary Jurat states that both signers personally appeared before her

and that they are personally known to her and that they were signing with the authority of its Board of Directors and that the seal affixed to the foregoing instrument is the corporate seal of said entity and that said instrument was signed and sealed on behalf of said entity by the authority of its Board of Directors. j. k. There is no corporate seal affixed to this document. There is no Corporate Board of Resolution and no Power of Attorney

attached to the Assignment or on file with the Cook County Recorder of Deeds. 8. The plaintiff submits the Assignment of Mortgage [Exhibit C] as evidence that 3

the subject Note & Mortgage were transferred to Wells Fargo Bank, N.A., as Trustee for the Benefit of the Certificate Holders of Asset-Backed Pass-Through Certificate Series 2004-WCW2. If that is true, the Trust was not properly funded by the deposit of the Original Mortgage and Note as required by SEC regulations and the prospectus of Park Place Securities Inc., another alleged owner of the Mortgage and Note. 9. Upon multiple searches conducted on various official web sites such as the SEC-

Securities and Exchange Commission as www.sec.gov and New York Corporate Search site http://www.dos.ny.gov/corps/bus_entity_search.html and Delaware Corporate Search site https://delecorp.delaware.gov/tin/GINameSearch.jsp , there is an entity by a similar name that is registered with the Securities and Exchange Commission as: Park Place Securities, Inc., (PPSI) Asset-Backed Pass-Through Certificates, Series 2004-WCW2 CIK#: 0001303122 (see all company filings) SIC: 6189 ASSET-BACKED SECURITIES State location: CA | State of Inc.: DE | 10. [Exhibit E]

That according to Article II, Section 2.01 of the PPSI filings with the Securities

and Exchange Commission [Exhibit F] the Original Mortgage and Note for the subject premises were to have been deposited by PPSI in the offering in addition to any original intervening Assignment or Assignments of the complete chain of assignment. 11. In the prospectus, Park Place Securities, Inc. (PPSI) is identified as the Depositor

required to deposit the Original Mortgage and Note with the Trustee, Wells Fargo Bank, N.A.. as reflected in the Pooling Servicing Agreement. [Exhibits F and G] 12. There is no record of the transfer of the Original Note and Mortgage by PPSI to

Wells Fargo Bank, N.A. in the Office of the Cook County Recorder of Deeds. Also absent is evidence of a relationship between PPSI and Argent Mortgage Company. 13. ABSNetLewtan is the Structured Finance Industry's leading source for asset4

backed securities surveillance and intelligence. PPSIs activity is reflected in the Deal Snapshot. [Exhibit H] 14. Loan No. 0059515536 [Exhibit A] is included as part of PPSI 2004-WCW2 with

Pool Group ID PP04WCW2-3. As such the Note has been converted into a security and is not enforceable through a foreclosure proceeding. [Exhibit I] 15. The Third Party Summary attached hereto further indicates that Wells Fargo is no

longer the Trustee for PPSI, having been replaced at some point by Countrywide Home Loans. As of June 17, 2013 Wells Fargo is listed as Servicer. [Exhibit J] 16. The bifurcation of the Mortgage and Note creates an immediate and fatal flaw in

Title. Landmark Natl Bank v. Kesler, 2009 Kan. LEXIS 834 (Aug 28, 2009). 17. The Mortgage title was never officially transferred. There is no evidence that the

Mortgage Loan was properly assigned a new holder-in-due-course. If such assignment did occur, Riley was never notified of it as he/she should have been according to federal RESPA law, Public Law 111-22 and the Statute of Frauds. 18. Generally, if the Deed of Trust and Note are not together, there can be no legal

enforcement of the Note. The mortgage enforces the Note and provides the capability for the lender to foreclose on the property. Therefore, if the Mortgage and Note are separated, foreclosure legally cannot occur. Saxon vs. Hillery, CA Dec 2008, Contra Costa County Superior Court. 19. No Entity can be a Creditor if they do not hold/own the asset in question. A

Mortgage Pass Through Trust (R.E.M.I.C. as defined in Title 26, Subtitle A, Chapter 1, Subchapter M, Part II 850- 862) cannot hold assets for if they do, their tax exempt status is violated and the Trust itself is void ab initio. Either the Trust has voided its intended Tax Free Status or the asset is not owned by it. 5

20.

Since the loan was sold, pooled and turned into a security, the holder can no

longer claim that it is real party in interest. The original lender was paid in full. 21. After securitization, the Note cannot be re-attached to the Mortgage/Deed of

Trust through adhesion. Under the UCC, the Promissory Note is a one-of-a-kind instrument and any endorsement must be as a permanent fixture onto the original Note, similar to a check. The original Note has the only legally binding chain of title, otherwise the instrument is faulty. 22. Once the Note was converted into a stock, or a stock equivalent, it is no longer a

Note. If both the Note and the stock, or stock equivalent, exist at the same time, that is known as double dipping. Double dipping is a form of securities fraud. 23. Once a loan has been securitized, it forever loses its security component

(Mortgage/DOT) and the right to foreclose through the Mortgage/DOT is lost forever. 24. The Promissory Note has been converted into a stock as a permanent fixture. It is

now a stock and governed as a stock under the rules and regulations of the SEC. This is evidenced by the requirement for filings of the registration statements, pooling and servicing agreements, etc. 25. Under the terms of the Pooling & Servicing Agreements or Trust Agreements, the

Servicer can buy back the Note as a non- performing non-secured debt similar to a collection agency that buys bad credit card debts. Countrywide Home Loans Servicing LP is named as the Master Servicer in the Pooling Servicing Agreement. 26. That would be a purchase of a discharged asset and cannot be re-adhered to the

original Mortgage. The original Note was a one-of-a-kind instrument, not part of a discharged asset. The purchaser of that discharged asset can never be the holder-in-due course of the original note. 6

27.

The Note started as a negotiable instrument, like a check. The negotiation and

enforceability of the Note is governed by UCC 3. 28. The Note that was executed with the Mortgage immediately became part of a

pool of mortgages losing its individual identity as a note between a lender and borrower. It merged with other unknown notes as a total obligation due to the Investors. It is no longer a negotiable instrument, but collateral (stock) for a Security as it pertains to Special Purpose Vehicle or MBS Mortgage Backed Security pool under a Common Law Trust structured as a REMIC Real Estate Investment Mortgage Conduit. 29. The Mortgage Note does not include all intervening endorsements showing a

complete chain of title from Originator to the Trustee. There were no Assignments recorded to show a complete chain of title from Originator to the Trustee as described in the Pooling and Servicing Agreement. 30. It is well established the Mortgage follows the Note (not the other way around)

and the transfer of the security interest (Mortgage) without the debt (Note) is a nullity. Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271,274, 21 L.Ed. 313 (1872), the U.S. Supreme Court stated The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while assignment of the latter alone is a nullity. 31. The 5th District Appellate Court of Illinois overturned a foreclosure judgment

and order of sale on grounds that the plaintiff did not own the mortgage. In Bayview Loan Servicing L.L.C. vs. Jeffrey Eden Nelson, 382 Ill. App. 2d 1184, 1186 (2008), the three judge panel of Justice Stewart, Justice Goldenhersh and Justice Spomer, unanimously ruled that Bayview did not have the right to foreclose a mortgage owned by another entity. Bayview was merely acting as the loan servicer. A copy of said opinion 7

is attached hereto as Exhibit K. 32. Under the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq. (West

2006)), the mortgagee, or the lender, is defined as the holder of an indebtedness secured by a mortgage or one claiming through a mortgagee as a successor (735 ILCS 5/15-1208 (West 2006)). 33. In the case of Deutsche Bank National Trust Co. v. Gilbert, 2012 IL App (2d)

120164, the issues were defined as follows: a. The validity of Deutsche Banks foreclosure action against Gilbert rests

on one issue: whether DeutscheBank had standingthat is, whether it owned the mortgageon the date that it filed the foreclosure action. There are no disputes about the relevant facts, and the issue is thus a purely legal one that was appropriate for disposition by summary judgment. 735 ILCS 5/2-1005(c) (West 2008). We review the grant of summary judgment de novo. Ioerger v. Halverson Construction Co., 232 Ill. 2d 196, 201 (2008). b. The doctrine of standing is designed to preclude persons who have no

interest in a controversy from bringing suit. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262 (2004). A partys standing to sue must be determined as of the time the suit is filed. Village of Kildeer v. Village of Lake Zurich, 167 Ill. App. 3d 783, 786 (1988). [A] party either has standing at the time the suit is brought or it does not. Id. An action to foreclose upon a mortgage may be filed by a mortgagee, i.e., the holder of an indebtedness secured by a mortgage, or by an agent or successor of a mortgagee. See Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 7 (2010); see also 735 ILCS 5/15-1208, 15-1504(a)(3)(N) (West 2008). c. Gilberts documentary evidence that Deutsche Bank did not have an 8

interest in the mortgage (the mortgage and the note, and an assignment executed after the date of filing, which did not show that the assignment occurred before the date of filing) constituted prima facie evidence of lack of standing. A prima facie defense is sufficient at law unless and until rebutted by other evidence. Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill. App. 3d 334, 366 (2008) (quoting Darling &Co. v. Pollution Control Board, 28 Ill. App. 3d 258, 264 (1975)). d. Moreover, it is well established that a party may not rely on the

allegations of its pleadings to contradict evidence produced by the movant that would entitle it to judgment. Triple R Development, 2012 IL App (4th) 100956, 12. As Deutsche Bank produced no competent evidence rebutting Gilberts prima facie showing that the bank lacked standing at the time of filing, Gilbert was entitled to summary judgment in his favor on this issue. e. Deutsche Bank argues that its amendment of the complaint, which

attached the recently executed Assignment, acted as a joinder of itself in a new capacityas the now-undisputed owner of the loan. Not surprisingly, Deutsche Bank is unable to point to any case law supporting such a novel application of section 2-407 to cure a plaintiffs lack of standing. To the contrary, standing must exist when the suit is filed. Village of Kildeer, 167 Ill. App. 3d at 786. As Deutsche Bank lacked standing at the time of filing, the foreclosure action was defective and could not be maintained. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 22 (2004) (a plaintiffs lack of standing negates his cause of action and requires dismissal of the proceedings). DeutscheBank could not cure this defect by joining the suit as a proper party at a later date. f. In summary, Gilbert was entitled to judgment in his favor on the

foreclosure, because Deutsche Bank failed to rebut Gilberts prima facie case that it 9

lacked standing to bring that foreclosure. Bayview Loan Servicing, L.L.C. v. Nelson, 382 Ill. App. 2d 1184, 1186 (2008). g. It is a fundamental precept of the law to expect a foreclosing party to

actually be in possession of its claimed interest in the note, and to have the proper supporting documentation on hand when filing suit, *** so that the defendant is duly apprised of the rights of the plaintiff. U.S. Bank National Assn v. Baber, 2012 OK 55, 6, 280 P.2d 956; see also Wells Fargo Bank Minnesota, N.A. v. Rouleau, 2012 VT 19, 16, 46 A.3d 905; Davenport v. HSBC Bank USA, 739 N.W.2d 383, 385 (Mich. Ct. App. 2007) (foreclosure must be vacated where bank did not yet own the indebtedness that it sought to foreclose) Wherefore, the defendant moves that this Honorable Court dismiss this cause of action and enter judgment in favour of the defendant.

Respectfully submitted, Mary A. Riley

By: _______________________________________ Attorney for Defendant

Daryl R. Berry Atty. No.: 22828 Attorney for Defendant 2609 West 79th Street Chicago, Illinois 60652 773-737-0007 10

CERTIFICATE OF SERVICE I, Daryl R. Berry, an attorney, hereby certify that I served a copy of the attached Motion to Dismiss on The Wirbicki Law Group, 33 West Monroe St., Suite 1140, Chicago, Illinois 60603 by electronic service and personally on July 17, 2013.

____________________________________ Daryl R. Berry

Daryl R. Berry Atty. No.: 22828 Attorney for Defendant 2609 West 79th Street Chicago, Illinois 60652 773-737-0007 11

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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EXHIBIT G

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EXHIBIT H

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EXHIBIT I

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EXHIBIT J

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EXHIBIT K

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