PHOENIX LIGHT SF LIMITED vs J.P. MORGAN SECURITIES LLC et al | NYSC – Offering Documents made no specific representations regarding the means by which loans would be assigned or transferred

Categorized | STOP FORECLOSURE FRAUD

PHOENIX LIGHT SF LIMITED vs J.P. MORGAN SECURITIES LLC et al | NYSC – Offering Documents made no specific representations regarding the means by which loans would be assigned or transferred

PHOENIX LIGHT SF LIMITED vs J.P. MORGAN SECURITIES LLC et al | NYSC – Offering Documents made no specific representations regarding the means by which loans would be assigned or transferred

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

PHOENIX LIGHT SF LIMITED, BLUE HERON
FUNDING II LTD., BLUE HERON FUNDING
V LTD., BLUE HERON FUNDING VI LTD.,
BLUE HERON FUNDING VII LTD., BLUE
HERON FUNDING IX LTD., SILVER ELMS
CDO PLC, SILVER ELMS CDO II LIMITED
and KLEROS PREFERRED FUNDING V PLC,
Plaintiffs,

-against-

J.P. MORGAN SECURITIES LLC, GOLDMAN
SACHS & CO., CREDIT SUISSE SECURITIES
(USA) LLC, MORGAN STANLEY, RBS
SECURITIES, INC., MERRILL LYNCH,
PIERCE, FENNER & SMITH
INCORPORATED, EMC MORTGAGE LLC,
J.P. MORGAN MORTGAGE ACQUISITION
CORP., CHASE HOME FINANCE LLC,
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., CHASE MORTGAGE
FINANCE CORPORATION, J.P. MORGAN
ACCEPTANCE CORPORATION I, BEAR
STEARNS ASSET BACKED SECURITIES I
LLC, JPMORGAN CHASE & CO., THE BEAR
STEARNS COMPANIES LLC, GOLDMAN
SACHS MORTGAGE COMPANY, GS
MORTGAGE SECURITIES CORP., THE
GOLDMAN SACHS GROUP, INC., DLJ
MORTGAGE CAPITAL, INC., CREDIT
SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., ASSET BACKED
SECURITIES CORP., CREDIT SUISSE AG,
MORGAN STANLEY & CO. LLC, MORGAN
STANLEY MORTGAGE CAPITAL
HOLDINGS LLC, MORGAN STANLEY ABS
CAPITAL I, INC., SAXON CAPITAL, INC.,
SAXON FUNDING MANAGEMENT LLC,
SAXON ASSET SECURITIES COMPANY,
MORGAN STANLEY CAPITAL I JNC,
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., RBS ACCEPTANCE PNC,
FINANCIAL ASSET SECURITIES CORP., THE
ROYAL BANK OF SCOTLAND GROUP PLC,
MERRILL LYNCH MORTGAGE LENDING,
INC., FIRST FRANKLIN FrNANCIAL
CORPORATION, MERRILL LYNCH
MORTGAGE INVESTORS, INC. and
MERRILL LYNCH & CO.,
Defendants.

JOINT MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT

.
EXCERPT:
.

5. Plaintiffs Fail to State a Claim Concerning Transfer of Title 

Plaintiffs assert that the Offering Documents misrepresented that the loans at 
issue would be validly assigned and transferred to the issuing trusts (H824-46). But the Offering Documents simply contained a description of the Pooling and Servicing Agreements (“PSA”) that governed such transfers and assignments and explicitly provided for the possibility of related issues by noting that the trustee would “review each mortgage file” and provide notice if any file was “missing or defective”.42   Plaintiffs cannot claim to have been misled about the possibility 

42
 See, e.g.. JPMAC 2006-WMC3 at S-93 to S-94. The Offering Documents also disclosed that 
the mortgages could be assigned in a variety of ways, including that they would be assigned to 
the trustee, or a custodian for the trustee, and that mortgage notes would be endorsed either in 
blank or to the trustee. See, e.g.. LBMLT 2006-1 at 27 (“The depositor will, with respect to each 
mortgage asset, deliver or cause to be delivered to the trustee, or to the custodian, the mortgage
                                                               29

that certain loans would not be properly transferred when the Offering Documents made no specific representations regarding the means by which loans would be assigned or transferred and outlined a procedure for remedying any defects. See Lone Star, 594 F.3d at 389-90; 

Republic Bank. 707 F. Supp. 2d at 710-11. In the face of these extensive disclosures, Plaintiffs’ allegations are not sufficient to support a claim regarding assignments. See W. & S. Life Ins. Co. v. Countrywide Fin. Corp.. No. 2:11-ML-07166-MRP (MANx), ECF No. 246, slip. op. at 7-13 (CD. Cal. June 29, 2012) [Ex. M] (dismissing assignment and transfer claims where offering documents contained explicit disclosures, including “language indicating] that the section is meant as a description of the [PSA] rather than an independent manifestation of present intent”.)
______________________________________________________________________________________
note, an assignment (except as to any mortgage loan registered on the MERS® System) (as 
defined below) and unless otherwise indicated in the applicable prospectus supplement) to the 
tmstee or in blank of the mortgage in a form for recording or filing as may be appropriate in the 
state where the mortgaged property is located.”) 
                                                               28
 . . .

Third, Plaintiffs’ allegation that a significant number of the loans backing the securitizations at issue were not assigned to the securitization trust or were missing intervening assignments does not establish a strong inference of intent. The Complaint is devoid of any non-conclusory allegation that Defendants knew that mortgages would not properly be assigned.43    Plaintiffs’ claim that the alleged improper transfers caused harm to Plaintiffs also is unavailing , as the Complaint does not allege that any defaulted loans 
_________________________________________________
43
 Plaintiffs make their title transfer allegations against Defendants generally, but allege that the 
depositor is responsible for depositing the notes and security instruments into the trust. (199.) 
Thus, those allegations are properly limited to the depositor Defendants only. 
                                                               31
were unable to be restructured or foreclosed upon due to title issues, much less that any losses were caused by such inability.44 
                                                               32
_________________________________________________
44
 In addition Plaintiffs allegations based on unproven allegations from other lawsuits and 
investigations (H 890-1094) are insufficient to allege scienter against Defendants. See, e.g., 
RSM Prod. Corp. v. Fridman. 643 F. Supp. 2d 382, 403 (S.D.N.Y. 2009) (“[P]aragraphs in a 
complaint that are either based on, or rely on, complaints in other actions that have been 
dismissed, settled, or have otherwise not resolved, are, as a matter of law immaterial”); see also 
Me. State Ret. Svs. v. Countrywide Fin. Corp.. 2011 WL 4389689, at *20 (CD. Cal. May 5, 
2011) (“Plaintiffs cannot rely on allegations from complaints in other cases if the Plaintiffs 
themselves have not investigated the allegations.”)

[…]

Down Load PDF of This Case
© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Comments

comments

This post was written by:

- who has written 8572 posts on FORECLOSURE FRAUD | by DinSFLA.

CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

Contact the author

Leave a Reply

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Advertise your business on StopForeclosureFraud.com
Kenneth Eric Trent, www.ForeclosureDestroyer.com

Archives