pltf brief in support of ti 08 06 2010(3)

8/8/2019 Pltf Brief in Support of TI 08 06 2010(3)

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PLAINTIFFS BRIEF IN SUPPORTOF APPLICATION FOR TEMPORARY INJUNCTION 1

Cause Number 2010 - 27263

MAX MEINDL, ET UX, IN THE DISTRICT COURTPlaintiffs,

vs. OF

ARGENT MORTGAGE COMPANY, HARRIS COUNTY, TEXASLLC, ET AL.,

Defendants. 80th JUDICIAL DISTRICT

PLAINTIFFS BRIEF IN SUPPORT

OF APPLICATION FOR TEMPORARY INJUNCTION

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW MAX MEINDL and RACHEL MEINDL, Plaintiffs, and in support of their

Application for Temporary Injunction would respectfully show as follows:

1. This is an action to challenge a threatened foreclosure of a security interest (Deed of

Trust) in the Plaintiffs residential real property. Plaintiffs seek to temporarily enjoin the

foreclosure of their property until a final determination of their rights in this case.

Summary of Argument

2. Because of the securitization of Plaintiffs mortgage, and the resulting problems with

identifying the current owner and holder of the Note and Deed of Trust, Defendants are unable to

demonstrate the right to proceed with the non-judicial foreclosure sale of the Plaintiffs

residential property that secures the Deed of Trust. There are substantial questions of fact and

law as to the identification of the actual owner and holder of the Note and Deed of Trust and


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to allow Defendants to proceed at this time would irreparably injure Plaintiffs, making the entry

of a temporary injunction forestalling the foreclosure sale proper while this litigation proceeds.

Factual Background

3. Plaintiffs Max and Rachel Meindl signed a Note for the purchase of residential real

property, secured by a Deed of Trust in that property, in the principal amount of $200,000.00 on

or about January 21, 2005. That Deed of Trust was appropriately filed of record in Harris

County, Texas, on January 31, 2005. The lender in the transaction was ARGENT MORTGAGE

COMPANY, LLC. The Deed of Trust signed by the MEINDLS contains the power of sale upon

default and after proper notice.

4. Almost immediately, the Note was transferred to AMERIQUEST MORTGAGE

COMPANY, LLC (January 24, 2005), but the transfer or assignment of the Deed of Trust was

not filed.

5. Thereafter, on January 24, 2005, AMERIQUEST MORTGAGE COMPANY, LLC

assigned the Note in blank (not naming an assignee). The assignment of the Deed of Trust

was not filed of record at that time. Allegedly, as Defendants aver, that assignment was filed

of record (e-filed) on February 16, 2009 -- after a long history of unrecorded transfers and

assignments. As is more fully set out below, the Note (and the right to foreclose under the Deed

of Trust) had a much more circuitous route that just that first or second assignment.

6. Defendant DEUTSCHE BANK NATIONAL TRUST COMPANY, as TRUSTEE FOR

ARGENT SECURITIES, INC., ASSET-BACKED PASS THROUGH CERTIFICATES,


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SERIES 2005-W-2) (DEUTSCHE BANK) now claims the ownership of the Note and Deed of

Trust and the right to proceed with foreclosure and has given notice of its intent to do the same.

Procedural Background

7. On April 29, 2010, Plaintiffs,pro se, filed their Original Petition seeking, inter alia, a

temporary restraining order and temporary injunction against the foreclosure.

8. A Temporary Restraining Order was entered on May 14, 2010, and the parties have

subsequently agreed to submit written argument to the Court concerning the entry of a temporary

injunction.

9. Plaintiffs,pro se, have filed their amended Petition on May 17, 2010.

10. This matter is now before the Court on written submission concerning the entry of a

temporary restraining order concerning the Defendants rights to proceed with non-judicial

foreclosure.

Argument and Authorities

11. As an equitable remedy designed to grant relief against the violation or threatened

violation of a right when legal remedies are inadequate, an injunction against non-judicial

foreclosure is appropriate in this case at this point.

12. Plaintiffs seek a prohibitory court order that requires a person to refrain from acting in a

certain fashion. SeeBoston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, 69-70 (1953).

13. The purpose of a temporary injunction -- to preserve the status quo pending trial on the

merits will be served by delaying the non-judicial foreclosure. SeeWalling v. Metcalfe, 863


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S.W.2d 56, 58 (Tex. 1993) ; Trostle v. Trostle, 77 S.W.3d 908, 916 (Tex. App.--Amarillo

2002, no pet.).

14. This Courts equitable power to restrain violation of rights extends through the broad

range of existing rights. Crain v. Firemen's & Policemen's Civil Service Com'n, 495 S.W.2d 20,

24 (Civ. App.--Fort Worth 1973, ref. n.r.e.). And, an injunction is appropriate to protect both the

Plaintiffs individual and property rights. Passel v. Fort Worth Independent School District,

440 S.W.2d 61, 63 (Tex. 1969) ;Covarrubia v. Butler, 502 S.W.2d 229, 230 (Civ. App.--San

Antonio 1973, ref. n.r.e.).

15. It is not necessary for the Plaintiffs to establish that they will finally prevail on the merits

of the case in order to justify the granting of a temporary injunction. Transport Co. of Texas v.

Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). Plaintiffs only have

the burden of proof to make a prima facie case [Henson v. Denison, 546 S.W.2d 898, 901 (Civ.

App.--Fort Worth 1977, no writ)] and a showing of aprobable right to recovery andprobable

injury makes out the necessary prima facie case [Lambda Constr. Co. v. Alice, 729 S.W.2d

377, 380 (Tex. App.--San Antonio 1987, no writ)]. The rationale in Egan v. Woodell, [720

S.W.2d 169, 171 (Tex. App.--San Antonio 1986, den.)] is instructive as the controlling

question is not the merits of cause, but whether the evidence produced now discloses a bona fide

dispute between the parties.

16. Specifically, a debtor such as Plaintiffs may seek temporary or permanent injunctive

relief against a trustee's sale of real property under a deed of trust. On an application for a

temporary injunction, the debtor must show: (1) a cause of action against the creditor, (2) a


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probable right to relief, and (3) a probable injury in the interim if the injunction is not granted.

Lavigne v. Holder, 186 S.W.3d 625, 629 (Tex. App.--Fort Worth 2006, no pet. h.); seeSara-

Nec v. Slape, 546 S.W.2d 703, 707 (Civ. App.--El Paso 1977, no writ); Hutchison v. Bristol

Court Properties, Ltd., 508 S.W.2d 486, 488 (Civ. App.--Fort Worth 1974, no writ).

17. In this case, the Plaintiffs can show that there are substantial questions of law and fact

concerning whether DEUTSCH BANK, or any of the other Defendants, own or hold the

Note and Deed of Trust and whether one or more of them can show the right to proceed with the

non-judicial foreclosure sale. As is set out below, the history of the MEINDLs Note and Deed

of Trust is tortured, to say the least. There are substantial questions of Texas law on the issues of

assignment and holder status which must be addressed before the Plaintiffs should be subjected

to losing their residential real property. Worse, these questions must be addressed and answered

to determine whether the Plaintiffs risk being sued on the Note by more than one party to the

various transactions involving their mortgage.

18. An issue of material fact on the issue of ownership of a note is presented when there is an

unexplained gap in the chain of title. First Gibraltar Bank, FSB, v. Farley, 895 S.W.2d 425,

428-29 (Tex. App.San Antonio 1995, writ denied); Jernigan v. Bank One Tex, N.A., 803

S.W.2d 774 (Tex.App.Houston [14th Dist] 1991, no writ).

19. Contrary to the view of many multi-state lenders and mortgage servicers, when it comes

to real property title issues state law applies unless there is a clear and manifest intent that federal

law should preempt the state law. Matter of T.F. Stone Co., Inc., 72 F.3d 466 (5th Cir. 1995)

and In re Robertson, 203 F.3d 855 (5th Cir. 2000).


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20. There is no presumption of ownership of a note that is held by a noteholder. Tex. Bus. &

Com. Code 3.201(c) and Dillard v. NCNB Texas Nat. Bank, 815 S.W.2d 356 (Tex.App.

Austin 1991, no writ). By definition, the note holder is the person in possession of an

instrument that is drawn, issued, or endorsed to the order of the person or to a bearer in blank.

Tex. Bus. & Com. Code 1.201(20). If the owner of a note materially alters the terms of the debt

without the makers consent, the borrowers obligation is discharged. Tex. Bus. & Com. Code

3.407(b)(1); Oehler v. Scahamel, 242 S.W.2d 403 (Tex.Civ.App.Dallas 1951, writ ref

n.r.e.).

21. Whether the holder of a note can enforce a debt in the holders name, instead of the

owners, is the issue presented in Jernigan v. Bank One Tex, N.A., 803 S.W.2d 774

(Tex.App.Houston [14th Dist] 1991, no writ).Jernigan provides an analysis of the

differences between the owner and holder enforcing a debt in the holders name under Tex. Bus.

& Com. Code 3.301.

22. After considering the Defendants version of events and the exhibits attached to their

Response to the application for temporary injunction, the conveyances of the Note and Deed of

Trust -- with consideration for the Pooling and Servicing Agreement (PSA) which governs the

Trust (see Exhibit A to Defendants Response, as well as footnotes 1 and 1, p. 3, Defendants

Response) can fairly be described as follows:

Argent Mortgage LLC (originator) to Ameriquest Mortgage (seller)

Ameriquest Mortgage (Seller) to Argent Securities (Depositor)

Argent Securities (Depositor) to Trustee for 2005-W2 securitized trust.


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23. There is, in the public record, an assignment of the deed from Argent Mortgage to

Ameriquest Mortgage, which reflects a filing date of 01/24/2005.

24. And, there is an assignment of the Deed of Trust from Ameriquest, in blank, dated

01/24/2005.

25. Then, there is an endorsement of the Note from Argent Mortgage to Ameriquest

Mortgage, and it is undated. There is also an endorsement of the note from Ameriquest

Mortgage, in blank, undated.

26. There is, apparently, a corporate assignment of the Note and Deed of Trust from Citi

Residential Lending as Attorney in fact for Argent Mortgage dated 02/13/209 with an effective

date of 02/11/2009. (However, Argent Mortgage did not own the mortgage in 02/2009 having

previously assigned it in 01/2005.)

27. One of the problems this confusing series of events demonstrates is that, even though it is

required by the PSA, the requisite assignments have not been filed for record in Harris County.

28. A complete chain of title and assignments from Originator to Seller to Depositor to

Trust (all terms defined by the PSA) has not been established and of record in Harris County

according to the requirements of Section 2.01 of the PSA.

29. Additionally, the Texas Local Government Code, Section 192.007 (a) Records of

releases and other actions, requires any transfer, assignment, release or any other action relating

to an instrument (such as, for example, the Deed of Trust), be recorded and filed in that same

office of the county clerk, in this case, Harris County.


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30. The Defendants must, necessarily, depend on the constructive transfer of possession for

the securitization process to work for, literally, thousands and thousands of loans. However,

that process arguably conflicts with Texas law. For example, Texas law requires that [I]f an

instrument is payable to an identified person, negotiation requires transfer of possession of the

instrument and its indorsement by the holder. Tex. Bus. & Comm. Code Ann. 3.201(b);

Jernigan v. Bank One, Tex., N.A., 803 S.W.2d 774, 776 (Tex. App.Houston [14th Dist.]

1991, no writ). This is true because, under our law, if an instrument not in the possession of the

original holder lacks a written indorsement and proof of the chain of title, the person in

possession does not have the status of a holder. See id. at 776-77. A note may be transferred,

however, even if it is not indorsed by the transferee; in that case, the transferee acquires whatever

rights the transferor had in the note, but he does not become the holder. See Tex. Bus. &

Comm. Code Ann. 3.201; Waters v. Waters, 498 S.W.2d 236, 241 (Tex. Civ. App.Tyler

1973, writ refd n.r.e.).

31. There is, at best, a serious and unresolved question as to whether DEUTSCH BANK, as

Trustee, is the actual holder of the Note, entitled to declare it in default, and, thereafter, to avail

itself of the foreclosure remedy set out in the Deed of Trust.

32. Just considering the Note, UCC 3-202 (1) states, in pertinent part, that [i]f the

instrument is payable to order it is negotiated by delivery with any necessary indorsement.

Emphasis added. In addition, UCC 3-202(2) requires that [a]n indorsement must be written

by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to

become a part thereof. Emphasis added.


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33. Here, the purported indorsement of the Note is arguably payable to order, but there is no

evidence of delivery of the note prior to the actions taken by DEUTSCH BANK with regard to

the foreclosure. Furthermore, the alleged indorsement appears to be on a separate page, makes no

specific reference to the subject note, and is, in any event, undated. As such, the so-called

indorsement is, at best, unreliable and fails to support the Defendants claim that the note and

mortgage were assigned by a properly indorsed note prior to the commencement of this action.

34. It is axiomatic that a defendant has no foundation in law or fact to foreclose upon a

mortgage Deed of Trust, unless the defendant has shown it has legal or equitable interest in such

instrument.

35. The Pooling and Servicing Agreement (PSA) includes origination and cut-off dates for

mortgage notes and transfer and delivery dates for the notes to the Trust but:

a. The Trust has no authority to accept an equitable transfer of a note. Since each transfer

must be a true sale for purposes of creating the bankruptcy remote structure, all transfers

must following the steps designated in the structure;

b. The Trust has no authority to claim an equitable interest in a note that has not been

transferred to the Trust pursuant to strict terms and guidelines of the Pooling and

Servicing Agreement;

c. All steps in the transfer process must be true and complete sales between the parties in

order to qualify the Trust for what is called REMIC qualification under the Internal

Revenue Code;


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d. The Trust has no authority to accept a note for no consideration as collateral for a

mortgage loan obligation since each transfer must be a true and bona fide sale between

the parties;

36. In the case at bar, there are substantial and serious questions as to whether the Plaintiffs

Note and Deed of Trust ever became subject to the PSA and, therefore, the Trust. Until those

questions are resolved, no Defendant should be allowed to go forward with a non-judicial

foreclosure.

37. Under the Pooling and Servicing Agreement, the Trust may only purchase the note from

the depositor. (These and other terms are defined in the PSA. See infra.)

38. Since each transfer must constitute a true and complete sale between the parties,

consistent with the Pooling and Servicing Agreement, the Trust must be able to establish an

unbroken chain of transfers and deliveries from the originator to the Trust.

39. These rules apply whether or not the notes are endorsed to a named payee in each

instance or are endorsed in blank at any process in the chain of transfers.

40. In the case at bar, Argent Mortgage Company had no note to transfer to the Trust in 2009,

having sold and assigned the same back in February of 2005.

41. There are two assignments of the Deed of Trust included with the argument submitted by

the Defendants. One is an assignment to Ameriquest Mortgage signed by Ms. Anderson,

stipulated as Agent. For whom she is an agent is unclear, as is her authority. (A principal-

agent relationship is not presumed, and the party asserting the relationship has the burden of

proving it. The party claiming agency must prove the principal has both the right to assign the


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agent's task and the right to control the means and details by which the agent will accomplish the

task. Lyons v. Lindsey Morden Claims Mgmt., Inc., 985 S.W.2d 86, 90 (Tex. App. -- El Paso

1998, no pet.). The question of whether a principal-agent relationship exists under established

facts is a question of law for the court. Ross v. Tex. One Pship, 796 S.W.2d 206, 210 (Tex.

App. -- Dallas 1990, writ denied).)

42. As argued above, when considering the Endorsement in Blank of the note, a person not

identified in a note who is seeking to enforce it as the owner or holder must prove the transfer by

which he acquired the note, and, as argued above, an issue of material fact on the issue of

ownership of a note is presented when there is an unexplained gap in the chain of title. First

Gibraltar Bank, FSB, v. Farley, 895 S.W.2d 425, 428-29 (Tex. App.San Antonio 1995,

writ denied).

The Pooling and Servicing Agreement

43. If the terms of the PSA were not followed in the circuitous transfers of the Note and Deed

of Trust, then there is an obvious gap in the chain of ownership and holdership of the

Note and, consequently, the right to enforce the Deed of Trust. Therefore, it is important to

consider the specific terms of the Pooling and Servicing Agreement (PSA) to accurately track

and determine whether the Defendants can show a valid right to be considered the holder of the

Note and entitled to enforce the Deed of Trust. The PSA is attached to Defendants Response,

and, with emphasis added, Plaintiff now sets out the pertinent parts for the purposes of their

argument:

SECTION 13. Mandatory Delivery; Grant of Security Interest. The sale

and delivery on the Closing Date of the Mortgage Loans described on the


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Mortgage Loan Schedule in accordance with the terms and conditions of thisAgreement is mandatory.

SECTION 8. Closing; Payment for the Mortgage Loans. The closing ofthe purchase and sale of the Mortgage Loans shall be held at the New York City

office of Thacher Proffitt & Wood LLP at 10:00 A.M. New York City time on theClosing Date.

SECTION 9. Closing Documents. Without limiting the generality of Section 8hereof, the closing shall be subject to delivery of each of the followingdocuments:

(a) (i) An Officers Certificate of the Seller and Master Servicer, dated theClosing Date, in form satisfactory to and upon which the Purchaser and the

Underwriters may rely, and attached thereto copies of the certificate ofincorporation, by-laws and certificate of good standing of the Seller and Master

Servicer under the laws of Delaware and stating that the information contained inthe Prospectus Supplement relating to the Mortgage Loans, the Seller and MasterServicer, and the applicable loan portfolio, is true and accurate in all material

respects and does not contain any untrue statement of a material fact or omit tostate a material fact required to be stated therein or necessary to make thestatements therein, in light of the circumstances under which they were made, not

misleading and (ii) if any of the Non-Offered Certificates are offered on theClosing Date pursuant to a private placement memorandum, the Seller shalldeliver an Officers Certificate stating that the same information contained in such

private placement memorandum is true and accurate in all material respects;

(b) An Officers Certificate of the Seller, dated the Closing Date, in formsatisfactory to and upon which the Purchaser and the Underwriters may rely, withrespect to certain facts regarding the sale of the Mortgage Loans by the Seller tothe Purchaser;

(c) An Opinion of Counsel of the Seller and Master Servicer, dated the ClosingDate, in form satisfactory to and addressed to the Purchaser and the Underwriters;

SECTION 2.01. Conveyance of Mortgage Loans

i. In connection with such transfer and assignment, the Depositordoes hereby deliver to, and deposit with, the Trustee the following documents or

instruments with respect to each Initial Mortgage Loan so transferred andassigned, and the Depositor shall deliver or cause to be delivered to the Custodianthe following documents or instruments (a Mortgage File):


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ii. (i) the original Mortgage Note, endorsed in blank, withoutrecourse, or in the following form: Pay to the order of Deutsche Bank

National Trust Company, as Trustee under the applicable agreement,without recourse, with all prior and intervening endorsements showing acomplete chain of endorsement from the originator to the Person so

endorsing to the Trustee

SECTION 13. Mandatory Delivery; Grant of Security Interest. The sale

and delivery on the Closing Date of the Mortgage Loans described on theMortgage Loan Schedule in accordance with the terms and conditions of thisAgreement is mandatory.

ARTICLE I DEFINITIONS

SECTION 1.01.

Defined Terms.

Assignment: An assignment of Mortgage, notice of transfer or

equivalent instrument, in recordable form (excepting therefrom if applicable, themortgage recordation information which has not been returned by the applicablerecorders office and/or the assignees name), which is sufficient under the laws of

the jurisdiction wherein the related Mortgaged Property is located to reflect ofrecord the sale of the Mortgage.

Custodian: A Custodian, which shall initially be Deutsche BankNational Trust Company.

Depositor: Argent Securities Inc., a Delaware corporation, or itssuccessor in interest.

Seller: Ameriquest Mortgage Company, or its successor in interest,

in its capacity as seller under the Mortgage Loan Purchase Agreement.

ARTICLE II, CONVEYANCE OF MORTGAGE LOANS; ORIGINALISSUANCE OF CERTIFICATES

SECTION 2.01.

Conveyance of Mortgage Loans.

The Depositor, concurrently with the execution and delivery hereof,


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does hereby transfer, assign, set over and otherwise convey to the Trustee

without recourse for the benefit of the Certificateholders all the right, title and

interest of the Depositor, including any security interest therein for the benefit ofthe Depositor, in and to the Mortgage Loans identified on the Mortgage LoanSchedule, the rights of the Depositor under the Mortgage Loan Purchase

Agreement, all other assets included or to be included in REMIC I, paymentsmade to the Trustee by the Swap Administrator under the Swap AdministrationAgreement and the Swap Account

Mortgage Loan: Each mortgage loan transferred and assigned to theTrustee pursuant to Section 2.01 or Section 2.03(d) of this Agreement, as held

from time to time as a part of REMIC I, the Mortgage Loans so held beingidentified in the Mortgage Loan Schedule. Mortgage Loan Purchase

Agreement: The agreement between the Seller and the Depositor, regarding

the transfer of the Mortgage Loans by the Seller to or at the direction of the

Depositor, substantially in the form of Exhibit D annexed hereto.

Mortgage Loan Schedule: As of any date, the list of Mortgage Loans

included in REMIC I on such date, separately identifying the Group I MortgageLoans and the Group II Mortgage Loans, attached hereto as Schedule 1 and assupplemented by each schedule of Subsequent Mortgage Loans attached to the

Subsequent Transfer Instrument. The Mortgage Loan Schedule shall set forth thefollowing information with respect to each Mortgage Loan:

Officers Certificate: With respect to the Depositor, a certificate signedby the Chairman of the Board, the Vice Chairman of the Board, the President or a

vice president (however denominated), and by the Treasurer, the Secretary, or one

of the assistant treasurers or assistant secretaries. With respect to the MasterServicer, any officer who is authorized to act for the Master Servicer in matters

relating to this Agreement, and whose action is binding upon the Master Servicer,initially including those individuals whose names appear on the list of authorizedofficers delivered at the closing.

Opinion of Counsel: A written opinion of counsel, who may, withoutlimitation, be salaried counsel for the Depositor or the Master Servicer acceptable

to the Trustee, if such opinion is delivered to the Trustee, acceptable to the NIMsInsurer, if such opinion is delivered to the NIMs Insurer, except that any opinionof counsel relating to (a) the qualification of any Trust REMIC as a REMIC or (b)

compliance with the REMIC Provisions must be an opinion of Independentcounsel.

The Master Servicer (in its capacity as Seller) shall promptly (and in no


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event later than thirty (30) Business Days, subject to extension upon a mutualagreement between the Master Servicer and the Trustee, following the later of (i)

the Closing Date, (ii) the date on which the Seller receives the Assignment fromthe Custodian and (iii) the date of receipt by the Master Servicer of the recordinginformation for a Mortgage) submit or cause to be submitted for recording, at no

expense to the Trust Fund or the Trustee, in the appropriate public office for realproperty records, each Assignment referred to in Sections 2.01(iii) and (iv) aboveand shall execute each original Assignment referred to in Section 2.01(iii) above

in the following form: Deutsche Bank National Trust Company, as Trustee underthe applicable agreement. In the event that any such Assignment is lost orreturned unrecorded because of a defect therein, the Master Servicer (in its

capacity as Seller) shall promptly prepare or cause to be prepared a substituteAssignment or cure or cause to be cured such defect, as the case may be, andthereafter cause each such Assignment to be duly recorded.

On or prior to the Closing Date, the Trustee agrees, for the benefit of the

Certificateholders, to execute and deliver (or cause the Custodian to execute anddeliver) to the Depositor and the NIMS Insurer an acknowledgment of receipt ofthe Mortgage Note (with any exceptions noted), substantially in the form attached

as Exhibit C-3 hereto.

Prior to the first anniversary date of this Agreement the Trustee shall

deliver to the Depositor, the Master Servicer and the NIMS Insurer a finalcertification in the form annexed hereto as Exhibit C-2 (or shall cause theCustodian to deliver to the Trustee, the Depositor, the Master Servicer and the

NIMS Insurer a final certification in the form attached to the CustodialAgreement) evidencing the completeness of the Mortgage Files, with any

applicable exceptions noted thereon, with respect to all of the Initial MortgageLoans and Subsequent Mortgage Loans.

The Trustee acknowledges the assignment to it of the Mortgage Loans and

the delivery to it of the Mortgage Files, subject to the provisions of Section 2.01and Section 2.02, together with the assignment to it of all other assets included inREMIC I, the receipt of which is hereby acknowledged. Concurrently with such

assignment and delivery and in exchange therefor, the Trustee, pursuant to thewritten request of the Depositor executed by an officer of the Depositor, hasexecuted, authenticated and delivered to or upon the order of the Depositor, the

Class R-I Interest in authorized denominations. The interests evidenced by theClass R-I Interest, together with the REMIC I Regular Interests, constitute the

entire beneficial ownership interest in REMIC I. The rights of the Class RCertificateholders and REMIC II (as holder of the REMIC I Regular Interests) toreceive distributions from the proceeds of REMIC I in respect of the Class R-I


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Interest and the REMIC I Regular Interests, respectively, and all ownershipinterests evidenced or constituted by the Class R-I Interest and the REMIC I

Regular Interests, shall be as set forth in this Agreement.

The Depositor, concurrently with the execution and delivery hereof, does

hereby transfer, assign, set over and otherwise convey in trust to the Trusteewithout recourse all the right, title and interest of the Depositor in and to theassets described in the definition of REMIC I for the benefit of the Holders of the

REMIC I Regular Interests (which are uncertificated) and the Class R Certificates(in respect of the Class R-I Interest). The Trustee acknowledges receipt of theassets described in the definition of REMIC I and declares that it holds and shall

hold the same in trust for the exclusive use and benefit of the Holders of theREMIC I Regular Interests and the Class R Certificates (in respect of the Class R-I Interest). The interests evidenced by the Class R-I Interest, together with the

REMIC I Regular Interests, constitute the entire beneficial ownership interest inREMIC I.

SECTION 11.02, Recordation of Agreement; Counterparts, To the extentpermitted by applicable law, this Agreement is subject to recordation in all

appropriate public offices for real property records in all the counties or othercomparable jurisdictions in which any or all of the properties subject to theMortgages are situated, and in any other appropriate public recording office or

elsewhere, such recordation to be effected by the Master Servicer at the expenseof the Certificateholders, but only upon direction of the Trustee accompanied byan Opinion of Counsel to the effect that such recordation materially and

beneficially affects the interests of the Certificateholders.

SECTION 11.09 Grant of Security Interest, It is the express intent of theparties hereto that the conveyance of the Mortgage Loans by the Depositor to theTrustee be, and be construed as, a sale of the Mortgage Loans by the Depositorand not a pledge of the Mortgage Loans by the Depositor to secure a debt or other

obligation of the Depositor or the Seller.

SECTION 8. Closing; Payment for the Mortgage Loans. The closing of

the purchase and sale of the Mortgage Loans shall be held at the New York Cityoffice of Thacher Proffitt & Wood LLP at 10:00 A.M. New York City time on theClosing Date.

The closing shall be subject to each of the following conditions:

(a) All of the representations and warranties of the Seller under this Agreementshall be true and correct in all material respects as of the date as of which they are


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made and no event shall have occurred which, with notice or the passage of time,would constitute a default under this Agreement;

(b) The Purchaser shall have received, or the attorneys of the Purchaser shall havereceived in escrow (to be released from escrow at the time of closing), all Closing

Documents as specified in Section 9 of this Agreement, in such forms as areagreed upon and acceptable to the Purchaser, duly executed by all signatoriesother than the Purchaser as required pursuant to the respective terms thereof;

(c) The Seller shall have delivered or caused to be delivered and released to thePurchaser or to its designee, all documents (including without limitation, the

Mortgage Loans) required to be so delivered by the Purchaser pursuant to Section2.01 of the Pooling and Servicing Agreement; and

(d) All other terms and conditions of this Agreement shall have been compliedwith

.Subject to the foregoing conditions, the Purchaser shall deliver or cause to

be delivered to the Seller on the Closing Date, against delivery and release by the

Seller to the Trustee of all documents required pursuant to the Pooling andServicing Agreement, the consideration for the Mortgage Loans as specified inSection 3 of this Agreement, by delivery to the Seller of the Purchase Price.

SECTION 9. Closing Documents. Without limiting the generality ofSection 8 hereof, the closing shall be subject to delivery of each of the following

documents:

(a) (i) An Officers Certificate of the Seller and Master Servicer, dated theClosing Date, in form satisfactory to and upon which the Purchaser and theUnderwriters may rely, and attached thereto copies of the certificate ofincorporation, by-laws and certificate of good standing of the Seller and Master

Servicer under the laws of Delaware and stating that the information contained inthe Prospectus Supplement relating to the Mortgage Loans, the Seller and MasterServicer, and the applicable loan portfolio, is true and accurate in all material

respects and does not contain any untrue statement of a material fact or omit tostate a material fact required to be stated therein or necessary to make thestatements therein, in light of the circumstances under which they were made, not

misleading and (ii) if any of the Non-Offered Certificates are offered on theClosing Date pursuant to a private placement memorandum, the Seller shall

deliver an Officers Certificate stating that the same information contained in suchprivate placement memorandum is true and accurate in all material respects;


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(b) An Officers Certificate of the Seller, dated the Closing Date, in formsatisfactory to and upon which the Purchaser and the Underwriters may rely, with

respect to certain facts regarding the sale of the Mortgage Loans by the Seller tothe Purchaser;

(c) An Opinion of Counsel of the Seller and Master Servicer, dated the ClosingDate, in form satisfactory to and addressed to the Purchaser and the Underwriters;

(d) Such opinions of counsel from the Purchasers or Sellers counsel as theRating Agencies may request in connection with the sale of the Mortgage Loansby the Seller to the Purchaser or the Sellers execution and delivery of, or

performance under, this Agreement and upon which the Underwriters may rely;

(e) A letter from Deloitte & Touche LLP, certified public accountants, dated the

date hereof and to the effect that they have performed certain specified proceduresas a result of which they determined that certain information of an accounting,

financial or statistical nature set forth in the Prospectus Supplement, under thecaptions Summary of Prospectus Supplement, Risk Factors, The MortgagePool, Yield on the Certificates, Description of the Certificates, Annex II and

Annex III agrees with the records of the Seller and the Master Servicer;

(f) [reserved];

(g) The Seller and Master Servicer shall deliver for inclusion in the ProspectusSupplement under the captions The Mortgage PoolUnderwriting Standards of

the Originator; and Pooling and Servicing AgreementThe Seller and MasterServicer, or for inclusion in other offering material, such publicly available

information regarding its financial condition and its mortgage loan delinquency,foreclosure and loss experience, underwriting standards, lendingactivities and loan sales, production, and servicing and collection practices, andany similar nonpublic, unaudited financial information; and

(h) Such further information, certificates, opinions and documents as thePurchaser or the Underwriters may reasonably request.

SECTION 13. Mandatory Delivery; Grant of Security Interest. The sale anddelivery on the Closing Date of the Mortgage Loans described on the Mortgage

Loan Schedule in accordance with the terms and conditions of this Agreement ismandatory. It is specifically understood and agreed that each Mortgage Loan is

unique and identifiable on the date hereof and that an award of money damageswould be insufficient to compensate the Purchaser for the losses and damagesincurred by the Purchaser in the event of the Sellers failure to deliver the


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Mortgage Loans on or before the Closing Date. The Seller hereby grants to thePurchaser a lien on and a continuing security interest in the Sellers interest in

each Mortgage Loan and each document and instrument evidencing each suchMortgage Loan to secure the performance by the Seller of its obligationhereunder, and the Seller agrees that it holds such Mortgage Loans in custody for

the Purchaser, subject to the Purchasers (i) right, prior to the Closing Date, toreject any Mortgage Loan to the extent permitted by this Agreement and (ii)obligation to deliver or cause to be delivered the consideration for the Mortgage

Loans pursuant to Section 8 hereof. Any Mortgage Loans rejected by thePurchaser shall concurrently therewith be released from the security interestcreated hereby. The Seller agrees that, upon acceptance of the Mortgage Loans by

the Purchaser or its designee and delivery of payment to the Seller, that its securityinterest in the Mortgage Loans shall be released. All rights and remedies of thePurchaser under this Agreement are distinct from, and cumulative with, any other

rights or remedies under this Agreement or afforded by law or equity and all suchrights and remedies may be exercised concurrently, independently or successively.

SECTION 16. Agreement of Parties. The Seller and the Purchaser agreeto execute and deliver such instruments and take such actions as either of the

others may, from time to time, reasonably request in order to effectuate thepurpose and to carry out the terms of this Agreement and the Pooling andServicing Agreement.

44. Plaintiffs would show that, in various ways, the Note (and, consequently, the right to

enforce the Deed of Trust), was not properly assigned or deposited into the Trust.

45. For the Note to be part of the Trust, it must have been deposited into the Trust.

46. The Defendants rely on a purported assignment by Mr. Bly, but Mr. Bly is not authorized

to convey anything to the Trustee since he has no authority for Ameriquest. Mr. Bly apparently

supposedly acted for Argent to assign to Deutsche Bank as Trustee, but he does not have any

authorization from Ameriquest, just Argent Mortgage. (And, the assignments were to be filed of


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1There are also substantial questions concerning Mr. Blys actions as an agent when it comes to his

signature on literally thousands of these types of documents. In a news article from earlier this year: "Our entiresystem of real estate is founded upon the ability of courts to believe in the documents before them,'' says MatthewWeidner, a St. Petersburg lawyer who has a blog on foreclosure issues. "What this (Bly's statement) describes isassembly-line document production with no concern for the facts in front of them.'' When 'Bryan J. Bly' became'NB,' did he know what he was signing? Martin, Susan Taylor, Tampa Bay Times, June 20, 2010. (Found online at:http://www.tampabay.com/news/business/realestate/when-bryan-j-bly-became-nb-did-he-know-what-he-was-signing

/1103508 ; also at: http://www.mfi-miami.com/?p=4253 ; and also at:http://bx.businessweek.com/florida-real-estate/when-bryan-j-bly-became-nb-did-he-know-what-he-was-signing/5975051171454673991-04754ff4d154ebe1efe28b16b51b1fa4/ . This article is reprinted and attached hereto asAppendix A.


record in all jurisdictions where properties were located, but none were filed in Harris County,

Texas.1

47. The Defendants argue that loans are deposited into the Trust. However, according to

the terms of the PSA, loans are not deposited into the Trust, the notes are supposed to be

conveyed via specific requirements set out in the PSA. Section 2.01, PSA, provides that

Depositor, concurrently with the execution and delivery hereof, does hereby transfer,

assign, set over and otherwise convey to the Trustee without recourse for the benefit of

the Certificateholders all the right, title and interest of the Depositor, including any

security interest therein for the benefit of the Depositor. In connection with such transfer

and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the

following documents or instruments with respect to each Initial Mortgage Loan so

transferred and assigned, and the Depositor shall deliver or cause to be delivered to the


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Custodian the following documents or instruments (a Mortgage File):

i) the original Mortgage Note, endorsed in blank, without recourse, or in the

following form: Pay to the order of Deutsche Bank National Trust Company, as

Trustee under the applicable agreement, without recourse, with all prior and

intervening endorsements showing a complete chain of endorsement from the

originator to the Person so endorsing to the Trustee

48. There is no indication that this specific step was undertaken.

49 Defendants further argue that Argent Securities acquired the pool of financial assets

and deposited these assets into the Trust. However, per the PSA, there is no conveyance

documents of record showing the acquisition of any assets by Argent Securities. The reference to

Exhibit D of the PSA, MORTGAGE LOAN PURCHASE AGREEMENT, shows that it was

supposed to be a Mortgage Loan Purchase Agreement (the Agreement), dated September 23,

2005, between Ameriquest Mortgage Company, a Delaware corporation (the Seller), and

Argent Securities Inc., a Delaware corporation (the Purchaser).

50. It is unclear, on or around 1/29/2005, whether it was Argent Mortgage or Argent

Securities which transmitted the unrecorded assignments and the original Note, with

indorsement, undated, one Argent Mortgage to Ameriquest, one Ameriquest to blank.

51. When Defendants argue that Deutsche Bank had continuous ownership, possession and

control since at least 9/27/2005, that is in direct contradiction to the "Corporate assignment

perpetrated by Bryan Bly in 02/2009, which allegedly assigns the Note and Deed of Trust from

Argent Mortgage to the Trust. It is simply unclear in the chain of assignments and ownership.


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52. Defendants argue that the Assignment did not transfer the Meindl Deed of Trust into the

Trust, rather the Meindl Deed of Trust and note were deposited into the trust when the PSA was

formed. First, the Bly assignment specifically conveys to the specific securitized trust and,

second, assets are conveyed to the Trust by very specific protocols, not deposited like a pay

check. At the least, there is evidence in the record that the specific provisions of the PSA were

not followed for transferring ownership of the Note and Deed of Trust to the Trust.

53. The only entity that can deposit assets into the Trust, by specific compliance with the

PSA conveyance of mortgage loans is the depositor, Argent Securities and there does not

appear to be any record of any legal and recorded assignment from Ameriquest to Argent

Securities and, thereafter, Argent Securities to the specific trust at issue.

54. The issues are not only of the failure of this transaction to comport with the PSA, but,

additionally, whether the transfers and assignments are valid under Texas law (as argued supra)

so that the Defendants may now claim to be the valid holders of the Note and Deed of Trust

and entitled to the remedies in the Deed of Trust. In either event, the lack of a valid chain of

title, with the violations of the PSA calling into question the right of DEUTSCH BANK to

exercise any rights under the Deed of Trust, there are valid and substantial grounds to

temporarily enjoin the Defendants from foreclosing the Plaintiffs residential real property.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Court temporarily

enjoin the Defendants, and each of them, from exercising the non-judicial power of sale in the


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APPENDIX A

By Susan Taylor Martin, Times Senior CorrespondentIn Print: Sunday, June 20, 2010

To thousands of homeowners whose loans have been shuttled from one company toanother, the name "Bryan Bly'' is very familiar.

Over the past few years, Bly has signed countless mortgage assignments as either anotary public or "vice president'' of various lenders.

In reality, Bly works for Nationwide Title Clearing, a Palm Harbor company. And he was

recently reprimanded by state regulators after acknowledging in a sworn statement thatNationwide Title had him notarizing so many documents that he scribbled his initialinstead of signing his full name as required by law.

Such a pace, critics say, shows that Bly and other so-called "robo signers'' can'tpossibly be sure that what they're signing is accurate.

"Our entire system of real estate is founded upon the ability of courts to believe in thedocuments before them,'' says Matthew Weidner, a St. Petersburg lawyer who has ablog on foreclosure issues. "What this (Bly's statement) describes is assembly-linedocument production with no concern for the facts in front of them.''

Bly's name has become well known in the foreclosure defense field since the St.Petersburg Times reported last year that he and Crystal Moore signed thousands ofmortgage assignments as officers of Option One and other lenders even though bothwork for Nationwide Title.

Assignments are key in determining who actually owns a mortgage, an all-importantmatter as banks foreclose on loans that were bundled into securities and sold toinvestors. To expedite the processing of mortgage assignments, many banks authorizeBly, Moore and others at Nationwide Title to sign on their behalf.

In a statement Friday to the Times, Nationwide Title said it employs "many people'' invarious departments "to make sure that each and every document is legal, compliantand complete'' when it reaches signers like Bly and Moore.


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The company also said that it serves banks around the country and "is subject to theirdue diligence and quality control audits on a regular basis.''

The 2009 Times story caught the attention of Samuel Smart, a Naples homeownerwhose loan has changed hands twice.

"The real concern I have, if I were to sell my house, who can legitimately sign off on mymortgage?'' Smart said.

Last year, when MoreEquity Inc. transferred his loan to another company, Smartnoticed that the mortgage assignment was signed by Crystal Moore as vice president ofMoreEquity and notarized by Bly. However, Bly signed with only a B and not as "BryanJ. Bly,'' the signature approved by the state.

Florida law says: "Once commissioned, the notary must sign precisely ascommissioned by the state of Florida, in the exact name appearing on your notarial

commission certificate.''Smart complained to Gov. Charlie Crist's office, which regulates notaries. Asked torespond to the complaint, Bly submitted a sworn statement that gave a glimpse into theworkings of Nationwide Title Clearing.

"Depending on the needs of NTC's customers, there were sometimes thousands ofsuch documents to be notarized in a single day,'' Bly's statement said. "On those days, Iwould typically be notarizing documents for many hours.''

Bly said he noticed that other NTC employees whose names appeared on documentsas vice presidents or witnesses were signing "only with their initials and sometimessquiggles that barely approximated initials.''

"Over time,'' Bly continued, "the notarial signature I affixed to those documents becameprogressively shorter and shorter until at last I was merely signing B. I was not, at thetime, aware that this could be characterized as a violation of state law.''

Bly's statement said that on May 5, 2009 two days after the Times story ran Nationwide Title was told by its legal counsel that Florida law prohibits notaries fromsigning with anything but their commissioned signature. Bly said he tried to change hissignature to the shorter B. Bly, but couldn't until his notary commission expires in 2011.

As a result, he said, he was reassigned to a job that doesn't involve notarizingdocuments.

This year, the governor's office notified Bly that it had put a "formal reprimand'' in his filethat would be reviewed "if other complaints are filed against you for notary misconduct.''


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Smart calls it a slap on the wrist.

"It's yet another example that government regulation is lax or totally lacking,'' saidSmart, who owns a glass and mirror company. "The state kind of sanctioned him a littlebit but didn't even pull his license.''

Weidner, the St. Petersburg lawyer, said it is unlikely that an improper notary signatureon a mortgage assignment would be enough to void a final judgment of foreclosure.

But "I think that catching that fact before a judgment is issued is certainly enough toprevent them from getting a judgment,'' he said.

As the foreclosure rate soars, more and more judges are questioning documents putbefore them. According to the transcript of a recent hearing, Pinellas Circuit JudgeAnthony Rondolino noted that the same individual alleged the same set of facts onaffidavits filed in two different foreclosure cases. The only change was that the

individual claimed to be a director of one company on one affidavit and director ofanother company on the second affidavit.

"That really increased my interest in this subject matter,'' Rondolino said, "because Idon't have any confidence that any of the documents the court's receiving on thesemass foreclosures are valid.''

(Rondolino was speaking in general, not referring to Nationwide Title Clearing or anyspecific company.)

In his new job with Nationwide Title, Bryan Bly has signed as "attorney in fact'' for theFederal Deposit Insurance Corp., which took over IndyMac Bank last year and hasbeen assigning its loans to other lenders. Some of Bly's notary duties have beenassumed by colleague Crystal Moore, who got her notary commission in September.

Moore's state-approved signature assures that she can sign quickly but legally. It's justthe initials CM.

Susan Taylor Martin can be contacted at [email protected].