WELLS FARGO BANK, N.A., AS TRUSTEE FOR
ABFC 2006-OPT3 TRUST,
ABFC ASSET-BACKED CERTIFICATES,
SERIES 2006-OPT3,
Plaintiff–Appellant,

– against –

ROTIMI EROBOBO, et al.
Defendants–Respondent.

Appellate Department Case No. 2013-6986

BRIEF OF AMICI CURIAE ROBERT GARRASI
AND JAMES HUNTER IN SUPPORT OF
DEFENDANT–RESPONDENT ROTIMI EROBOBO

Interest of Amici Curiae

Robert Garrasi and James Hunter request permission to appear as amici curiae in this matter.  Amici’s input in this matter will be very valuable to this Court because of amici’s experience as co-litigants and non-debtor co-defendants in similar cases. Your amici’s brief will shed new light upon Appellant’s heretofore undisclosed motivations and business practices, as well as those of its affiliates, co-venturers, undisclosed third parties and other signatories to their Pooling and Servicing Agreement (“PSA”). The information provided herein applies not only to the present Appellant, but also to other plaintiffs  similarly situated that appear before New York courts in securitized mortgage foreclosure actions. As such, our brief is designed to assist the Court in its public policy considerations regarding these matters.

Our brief focuses on four areas that are the subject matter of this appeal: (1) demonstration that mortgagors in Residential Mortgage Backed Securities (“RMBS’) foreclosure actions are indeed third-party beneficiaries of the PSA’s, and thus have standing to object to a trustee’s ultra vires acts; (2) that EPTL §7-2.4 applies to RMBS trusts in New York making ultra vires transfers void, not voidable; (3) a showing that the subject mortgage notes are never transferred to the trusts; and (4) proving that the investor beneficiaries cannot legally ratify a trustee’s ultra vires acts, thus making the acts void, not voidable.  We also explain why the foreclosing deal principals claim that they have transferred the notes and mortgages to the trusts long after the closing date, and why the alleged transfers are not subject to the Internal Revenue Code’s 100% prohibited contributions tax. Our brief suggests that the New York judiciary has been “had” by the RMBS foreclosing deal principals and their lawyers for at least the last six years.