US BANK v. - IBANEZ - . Appellant Wells Fargo Reply Brief3

8/4/2019 US BANK v. - IBANEZ - . Appellant Wells Fargo Reply Brief3

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&upreme PtibiciaI Q m r tFOR T H E COMMONWEALTH OF MASSACHUSETTS

NO.SJC-10694

W.S. BANK NATIONAL ASSOCIATION,AS TRUSTEE FOR TH E STRUCTURED ASSET SECURITIES

CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES2006-2.PLAINTIFF/APPEUANT,

ANTONIO IBXNEZ,DF,FENDAWT/APPELIXE.

WELLS F.%RGO BANK, N.A.,AS TRUSTEE FOR ABFC 2005-OPT 1TRUST,ABFC ASSET BACKED CERTIFICATES SERIES 21iO5-0P7' ,PLAINTIW/AWELLANT.V .

MARK A. LARACEAND TAMMY L. LARACE,DWENDANTS/APPELLEES.

O N APPEAL ROM JUDGMEJ~TOFHE LAND COUli'r

APPELLANTWELLS FARCO RANK, AS TRUSTEE'S REPLY TO TILEBRIEF OF APPELLEESMARK A. LARACE AND TAMMY . LARACER. Bruce Allensworlh (BBO#O15820)Phoebe S. Winder (BBO#S67103)Andrew C.Glass (BBO#638362)Robert W. Sparkes, TI1(BB0#663626)K$L GATES LLPState Street Financial CenterOne Lincoln StreetBoston, Massachusetts02111-2950617.261.3100 (telephone).4f!orneys or Appdlant


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TABLE OF CONTENTSPage

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2111. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A . The Securitization Agreements Assigned TheLaRace Mortgage To Wells Fargo, As TrusteeAnd Vested In it Legal Authority ToForeclose...... . . . . . . . . . . . . . . . . . . . . . . . . . . . 31. T he Securitization Of The LaRaceLoan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 . The Securitization Agreements ComplyWith Massachusetts Law...... . . . . . . . . . 53 . Numerous Courts Have Found ThatSecuritization Agreements EffectuateAssignments O f Mortgage . . . . . . . . . . . . . . I

B. The LaRaces Misunderstand The Relevance OfThe Assignment Of Mortgage In Blank AndOverstate Its Significance . . . . . . . . . . . . . . . .9C. The LaRaces Massachusetts Trust ArgumentIs Meritless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10D. The LaRaces Misinterpret The Law Relating TOConfirmatory Assignments And ImproperlyDiscount The Significance O f The LandCourts Rejection O f REBA Title Standard No.

5 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14E. The LaRaces Challenge To The Documentary

Material Submitted By Wells Fargo, AsTrustee To the Land Court Must Fail.. . . . . 17IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24


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TABLE OF AUTHORITIESPage

FEDERAL CASESIn re Almeida,. . . . . -417 B . R . 140 (Bankr. D. Mass. 2009) . . .11, 13, 14Benhabib v. Hughes Electronics Corp.,~ _ . . I " . _ - -No. CV 04-0095 CAS (VBKx), 2007 WL 4144940 (C.D.Cal. Mar. 30, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19In re DiMare,NO. 08-1046, 2009 WL 5206628 (Bankr. D. Mass.Dec. 22, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18In re Hayes,393 B.R. 259 (Bankr. D. Mass. 2008) . . . . . . . 11, 12In re Hayes,

No.' 07-13967-JNF, rder (Bankr. D. Mass. Jan. 30,2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Livonia Property Holdings, L.L.C. v. 12840-12976Farmington Road. .......H o l d i n q s , L.L.C.,NO. 10-11589,

2010 WL 1956867 (E.D.Mich.June 14, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 1 5Rubijono v. Ameriquest Mortage Co.,No. 07-01076-FJB, Supplemental Order on Motionfor Summary Judgment (Bankr. D. Mass. May 27,2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 , 9In re Samuels,415 B . R . 8 (Bankr.D. Mass. 2009) 7, 11 1 2 14Weingartner Lumber & Supply Co. v. Kadant Composites,LLC. NO. o e - 1 8 1 ; ~ ~ ~ .010 WL 996473 (E.D. KV.I *

Mar. 16, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19STATE CASES

Cousbelis v. Alexander,315 Mass. 729 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


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MacFarlane.... v. Thompson,241 Mass. 486 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Matthews v. Planning--Board of Brewster,72 Mass. App. Ct. 456 (2008) . . . . . . . . . . . . . . . . . . . 3Montague v. Dawes,

94 Mass. 397 (1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Morris v. Holt,

380 Mass. 133 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 17Norfolk & Dedham Mutual" -Fire Insurance Co. v.Morrison, 456 Mass. 463 (2010) . . . . . . . . . . . . . . . . .Powers v. Wilkinson,

3 9 9 Mass. 650 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 17Scaplen v. Blanchard,

187 Mass. 73 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Spinner v . Nutt,

417 Mass. 549 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 11Wooster v . Abdow Corp.,

46 Mass:-App. Ct. 665 (1999). . . . . . . . . . . . . . . . . .17Worcester Mutual Insurance Co.....v . Marnell,_- 398 Mass. 240 (1986) . . . . . . . . . . . . . . . . . . . . . . . 5, 13

STATE STATUTESMassachusetts General Laws,Chapter 183, Section 6B..... . . . . . . . . . . . . . . . . . . . . 6Massachusetts General Laws,Chapter 183, Section 6C . . . . . . . . . . . . . . . . . . . . . . . . 6

Chapter 183, Section 21 . . . . . . . . . . . . . . . . . . . . . . . . 1Chapter 183, Section 28 ......................... 5Chapter 233, Section 76A . . . . . . . . . . . . . . . . . . . . . . 19

Massachusetts General Laws,



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Massachusetts G e n e ra l L a w s ,Chapter 244 , Section 1 4 . . . . . . . . . . . . . . . .1, 7, 8, 9

FEDERAL RULESFedera l Rule of Evidence,Rule 902(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TREATISESARTHUR L ENO, JR. WILLIAM V. HOVEY, T AL., 28B MASSACHUSETTS

PFACTTCE: REAL ESTATE AW, REBA Title StandardNo. 58 (4th d. 2 0 0 8 ) . . . . . . . . . . . . . . . . . . . . . . . pssimWTZ~L IAM G YOUNG , ET AL . , 2 0 MASSACHUSETTS PRACTICE, EVIDENCE,

5 902.9 (4'pHD. 2008). . . . . . . . . . . . . . . . . . . . . . . . . .18

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I. INTRODUCTIONAppellant Wells Fargo Bank, N . A . , as Trustee for

ABFC 2005-OPT 1 Trust, ABFC Asset Backed CertificatesSeries 2005-OPT 1 ("Wells Fargo, as Trustee")respectfully submits the following reply brief inresponse to the brief of Appellees Mark A. LaRace andTammy L. LaRace (the "LaRaces") dated August 17, 2010.

The LaRaces do not dispute that an assignee mayforeclose on a mortgage under the statutory power ofsale set forth in Mass. Gen. L. ch. 183, S 21, andissue notice pursuant to Mass. Gen. L. ch. 244, 5 14.Nwr do the LaRaces address or dispute the issuecentral to this appeal - namely that Wells Fargo, asTrustee became assignee of the LaRaCe mortgage byvirtue of the assignment provisions contained in thesecuritization agreements for the LaRace loan, and asassignee, Wells Fargo, as Trustee had authority toissue notice of foreclosure and to conduct the subjectforeclosure sale. Instead, the LaRaces presentarguments that are off point and merely confuse theissue. In particular, the LaRaces place unwarrantedsignificance on the assignment of mortgage i n blankheld by Wells Fargo, as Trustee, misconstruing WellsFargo, as Trustee's discussion of that instrument.

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Contrary to the LaRaces' assertions, Wells Fargo, asTrustee's possession of the assignment of mortgage inblank, and the original note and original mortgage,merely confirm and evidence the assignment of mortgageeffectuated by the securitization agreements.

Furthermore, while the LaRaces attempt tominimize the significance of the Land Court'srejection of Title Standard No. 5 8 of the Real EstateBar Association for Massachusetts, Inc. ( " R E B A " ) , theyignore the impact the Land Court's rulings would haveon thousands of foreclosures conducted over the pasttwo decades in reliance on the standard. The LandCourt's rejection of Title Standard No. 5 8 was wrongand, if affirmed, must only apply prospectively.11. STANDARD OF REVIEW

Appellees argue that the standard of review fordenial of a motion to vacate judgment i s abuse ofdiscretion. LaRace Br. at 9, 3 6 . This appeal,however, challenges the Land Court's interpretation ofthe contractual materials before it and the legalconclusions on which it affirmed its entry of judgmentagainst Wells Farqo, as Trustee. The Court reviewslegal conclusions de novo. See Norfolk & Dedham Mut.Fire Ins. Co. v. Morrison, 4 5 6 Mass. 4 6 3 , 467 (2010);

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Matthews" - v. Planning Bd. of Brewster, 72 Mass. App.Ct. 456, 462 ( 2 0 0 8 ) .111. ARGTJMENT

A. The Securitization Agreements Assigned TheLaRace Mortgage To Wells Fargo, As TrusteeAnd Vested In It Legal Authority T oFoFeClOSe

Wells Fargo, as Trustee became the assignee ofthe LaRace mortgage by virtue of the securitization ofthe LaRace loan and the assignment of the loan intothe trust. The written securitization agreementsthemselves provided Wells Fargo, as Trustee withauthority to foreclose. The LaRaces offer nothingthat would warrant a contrary finding.

1. The securitization of the LaRace loanThe record contains ample evidence of the

assignment of the LaRace mortgage that ultimatelyvested in Wells Fargo, as Trustee:

First, Option One Mortgage Corporation ("OptionOne") originated the LaRaces mortgage in May 2005.[ A 8 9 0 - 9 4 ] .

Second, Option One sold the loan to Bank ofAmerica pursuant to a Flow Sale and ServicingAgreement dated July 2 8 , 2 0 0 5 . '

1thereby is expressly identified in the Mortgage LoanThis agreement and the assignment effectuated

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Third, Bank o f America sold the loan to Asset-Backed Funding Corporation pursuant to a Mortgage LoanPurchase Agreement ("MLPA") dated October 1, 2005 '[A1709]. The MLPA is in th e record. [A1706-17191,

Fourth, Asset-Backed Funding Corporation pooledand assigned the loan (including the mortgage) toWells Fargo, as Trustee for the ABFC 2005-OPT1 Trust,pursuant to a Pooling and Servicing Agreement datedOctober 31, 2005 ( "PSA" ) . [A1443-1780]. The LaRacePSA is in the record [id.], and contains clearlanguage of assignment. [A1522, 15241.

For instance, S 2.01 of the PSA states that"[tlhe Depositor . . . does hereby transfer, assign, s e tover and convey" to Wells Fargo, as Trustee "a11right, title and interest of the Depositor, includingany security interest therein" to each Mortgage Loan.[A1522]. Similarly, S 2.02 of the PSA states that"the assignment . _ _onstitute[sl a sale of thePurchase Agreement ( 'MLPA" ) between Bank of Americaand Asset-Backed Funding Corporation, dated October 1,2005. [A1706-1708, 17121.Under the MLPA, Bank of America provided that itdid thereby "sell, assign, set over, and otherwiseconvey to [Asset-Backed Funding Corporation1 . . . allif its right, title and interest in and to eachMortgage Loan . . . including any Related Documents."[A17091 The term "Related Documents" expresslyincludes the mortgage for each loan. LA1708, 14911.

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Mortgage Loans and the Related Documents," includingthe "mortgage," to Wells Fargo, as Trustee. [A1523-2 4 1 . This Language o f assignment is immediate andlegally sufficient to effectuate an assignment. SeeMass Gen. L. c. 183. 5 2 8 .

The Land Court's ruling that the above languageof assignment constitutes only a prospective right toobtain an assignment [A11581, was clear error.Rather, the plain language of the securitizationagreements leave no doubt that the agreementsthemselves constitute assignments of the mortgage fromOption One to Wells Fargo, as Trustee. Thus, theCourt should reject any contrary reading of thatlanguage, which would render meaningless the plainterms of these agreements. See Worcester Mut. Ins.Co. v . Marnell, 3 9 8 Mass. 240, 245 (1986).

2. The securitization agreements complywith Massachusetts lawThe LaRace loan securitization agreements satisfy

all of the requirements of Massachusetts law for avalid assignment of mortgage. Massachusetts law doesnot require an assignment of mortgage to be recordedin order to be valid. See MacFarlane v . Thompson, 241Mass. 4 8 6 , 489 (1922); Montague v. Dawes, 94 Mass.

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397, 400 (1866). Nor must an assignment be "inrecordable form" or otherwise comply with therequirements of the recording statute to beenforceable. ~See Mass. Gen. L. ch. 183, S 6C; Mass.Gen. L. ch. 183, 5 6B.

The LaRaces' suggestion that Mass. Gen. L. ch183, 5 6C contains an "internal inconsistency,"(LaRace Br. at 26), rests on the samemisrepresentation of Massachusetts law that the LandCourt relied upon - namely that an assignment ofmortgage must be "in cecordable form" to be valid. Nosuch requirement is found in Massachusetts law. SeeAppellants' Opening Brief ("Apps.' Op. Br.") at 24-26.What the LaRaces view as an inconsistency is the well-established rule that an assignment of mortgage neednot be recorded (or acceptable for recording) to beenforceable.

Similarly, nothing in Massachusetts law supportsthe LaRaces' suggestion that a separate documentspecifically entitled "Assignment of Mortgage" isnecessary to effectuate an assignment (LaRace Br. at16). ~ o ~ s & ~ l i s. Alexander, 315 Mass. 7 2 9 , 730(1944) ("[tlhe form of the memorandum is immaterial,if its contents adequately set forth the agreement").

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3. Numerous courts have found thatsecuritization agreements effectu ateassignments of mortgageThe LaRaces do not dispute that the subject

securitization agreements assigned all interest in thetheir loan (including their mortgage) to Wells Fargo,as Trustee. Nor do the LaRaces meaningfully addressthe substantive body of law that holds securitizationagreements validly assign mortgages to asecuritization trustee. See In re Samuels,_ 415 B.R.8 , 18 (Bankr. D. Mass. 2009); Apps.' Op. Br. at 23-24.

Indeed, since the filing of the Appellants'Opening Brief, the United States Bankruptcy Court forthe District of Massachusetts has reaffirmed theprinciple that a securitization agreement can assign amortgage. See- Rubijono v. Ameriquest Mortqaqe_. C o . , etal.,. No. 07-01076-FJB, Supp. Order on Mot. for S . J . ,at 1 (Bankr. D. Mass. May 27, 2010).3

In Rubi jono , the plaintiff alleged that DeutSCheBank, as the trustee or a securitization trust, wasnot the holder of the plaintiff's mortgage and did nothave the authority to issue notice pursuant to Mass.Gen. L. ch. 244, 14, or to conduct a foreclosure

A copy of the court's Order in Rubijono i sattached in the addendum hereto at Tab A.

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sale. The plaintiff contended that: (1) DeutscheTrust incorrectly represented to the Land Court thatit had the authority to exercise the power o f salebased on an Assignment that was invalid; 2 ) [altthe time Deutsche Trust sent and published statutorilymandated notices . . . , Deutsche Trust did not have avalid written assignment in accordance with theStatute of Frauds; and ( 3 ) [tlhe notices did notmeet the statutory requirements because the noticesincorrectly identified Deutsche Trust as the holder ofthe mortgage.dsecuritization agreements were not valid assignmentsbecause they were not in recordable form.

The plaintiff also argued that the

The court rejected each of the plaintiffsarguments. To the contrary, the court held thatDeutsche Bank, as the trustee of the trust:

became the holder of the note and assignee ofthe mortgage on or around November 5, 2004, byvirtue of the [Mortgage Loan PurchaseAgreement] and the [Pooling and ServicingAgreement] of November 1, 20 [04] DeutscheBank therefore had standing to foreclose themortgage at all times relevant to thisproceeding. No recording of the transfer

Pl.s Second Am. Compl., dated A p r . 29, 2009, at11 186-189, attached in the addendum hereto at Tab B.Pl.s Opp. to Def. Mot. for S.J., dated Mar. 17,2010, at 1 - 8 , attached in the addendum at Tab C.

4

5

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documents was necessary to make the transferbinding and effective against the debtor.As in Rubijono, as a matter of law, the P S A

executed on October 31, 2 0 0 5 acted to validly assignto Wells Fargo, as Trustee the LaRace mortgage. Thisassignment occurred almost two years before WellsFargo, as Trustee issued statutory notices of sale(June 2 0 0 7 ) and conducted the foreclosure sale (July2 0 0 7 ) . Accordingly, Wells Fargo, as Trustee had thelegal authority to issue statutory notice of saleunder Mass. Gen. L. ch. 2 4 4 , 14, and to conduct thesale on the LaRace property.

6

B. The LaRaces Misunderstand The Relevance OfThe Assignment Of Mortgage In Blank AndOverstate Its Significance

The LaRaces argue that an assignment of mortgagein blank is not sufficient to assign a mortgage loanunder Massachusetts law. ~See LaRace Br. at 2 4 - 2 7 , 4 3 ,4 6 - 4 7 . This argument i s beside the point, and, inarguing it, the LaRaces ignore the actual issuepresented and improperly inflate the perceived

importance of the assignment of mortgage in blank.It is not the assignment of mortgage in blank

that acted to assign the LaRace mortgage to Wells

Rubijono, Supp. Order on Mot. for S . J . , at *1.

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Fargo, as Trustee, but the MLPA and the PSA that didso through the plain and unequivocal language ofassignment discussed above. The PSA a l s o required, byits terms and as a record keeping matter, the transferof an "assignment of mortgage" "which may be in blank"and the original note and mortgage to Wells Fargo, asTrustee. LA1522-231. While incidental to the saleand assignment of the mortgage, these documents serveto confirm and evidence the assignment. That the P SAspecified the transfer of these documents to WellsFargo, as Trustee in no way affected the assignment ofthe mortgage conveyed by the PSA.

C. The LaRaces' Wassachusetts Trust" ArgumentIs Meritless

The LaRaces argue without merit that thesecuritization trust is a "Massachusetts Trusttt7 ndthat the conveyance of the LaRace mortgage to thetrust failed to comply with the terms set forth in thePSA. ~See LaRace Br. at 39-49.

Whether the securitization trust is a"Massachusetts Trust," as defined by the LaRaces, isimmaterial to the issue presented and to their actualargument, namely that the parties to thesecuritization did not comply with the terms of therelevant agreement. This argument fails for thereasons discussed below.

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First, the LaRaces lack standing to challengewhether the parties to the PSA, the MLPA, or any othersecuritization agreements acted in accordance with theterms of those agreements. See Spinner v . Nutt,- 417Mass. 549, 555 (1994). The LaRaces are not parties tothose agreements, nor are they intended third-partybeneficiaries of them. [A1600]. See In re Samuels,415 B.R. at 22; In re Almeida, 417 B , R . 140, 149 n.4(Bankr. D. Mass. 2009); Livonia Prop. Holdings, L.L.C.v. 12840-12976 Farmington Road Holdings, L.L.C.,No.10-11589,2010 WL 1956867 (E.D. Mich. June 14, 2010).

Second, the assignments were effectuated incompliance with the terms of the securitizationagreements. The securitization followed a clearchain-of-title as evidenced by the MLPA and the PSA.See Section III.A.l, supra. The LaRaces' reliance onIn re Hayes, 393 B . R . 259 (Bankr. D. MaSS. ZOOS), andIn re Samuels,. 415 B.R. 8 (Bankr. D. Mass. 2009) ismisplaced. LaRace Br. at 47-49. In In re Hayes,while the bankruptcy court initially ruled against thesecuritization trustee, the court later granted amotion for reconsideration and held that the trusteedid have the authority to foreclose pursuant to aconfirmatory assignment and the relevant

~

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8securitization agreements. Similarly, the bankruptcycourt in Samuels found that, as a matter of law,-[t]he PSA itself, in conjunction with the schedule ofmortgages deposited through it into the pool trust,served as a written assignment of the designatedmortgage loans, including the mortgages themselves."In re Samuels, 415 B . R . at 18. The legal holding inboth Samuels and Hayes, that securitization agreementsmay effect a valid assignment of mortgage to thetrustee, applies equally in this case. The LaRacesoffer nothing to support a contrary conclusion.

Third, the LaRaces are incorrect that the PSArequires the transfer of an "assignment of mortgage""in recordable # o m " separate from the assignmenteffectuated by the PSA itself. The PSA contains nosuch requirement. Rather, the PSA provides that theDepositor transfer to Wells Fargo, as Trustee "anoriginal Assignment of Mortgage (which may be inblank), in form and substance acceptable forrecording." [A1522 (emphasis added) . While the

See In re Hayes, Case No. 07-13967-JNF, Order, at~ .4 (Bankr. D. Mass. Jan. 30, 2009) (attached at Tab Dof the addendum); Deutsche Bank, as Trustee's Mem. in

Sup. of Mot. for Reconsid., dated Oct. 31, 2008(attached at Tab E of the addendum).

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LaRaces may prefer to ignore the phrase which may bein blank, the rules of contract interpretationprevent them from doing so. See Marnell, 398 Mass. at245. The only fair reading of this provision is thatthe transfer of an assignment of mortgage in blankis sufficient to satisfy the terms of the PSA. Thetransfer o f the assignment of mortgage in blankalong the chain-of-title from Option One to Wells

Fargo, as Trustee complied with the PSA (creating, sdiscussed above, a record keeping device for theconvenience of the parties).

Fourth, the LaRaces argument that no assignmentof mortgage was conveyed to the trust because theassignment o f mortgage in blank and the post-foreclosure, confirmatory assignment were notconveyed by the proper party - the Depositor (Asset-Backed Funding Corporation (ABFC) is equallywithout merit. LaRace Br. at 43-47. See In reAlmeida, 417 B . R . at 147-49. Neither of thosedocuments i s the operative assignment of the mortgageto the trust. The assignment was carried o u t by thesecuritization agreements themselves, which pass themortgage through ABFC to the Trust. That theassignment of mortgage in blank (evidence of the prior

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assignment) or the post-foreclosure, confirmatoryassignment (confirming, o r the public cecord, theassignment to Wells Fargo, as Trustee) do not derivefrom ABFC is of no moment.

D. The LaRaces Misinterpret Th e Law Relating ToConfirmatory Aesignmenta And ImproperlyDiscount The Significance Of The LandCourt6 Rejection Of REBA Title Standard No.58The LaRaces argue that the confirmatory

assignment, itself, was insufficient to vest in WellsFargo, as Trustee authority to foreclose. This missesthe point. It is undisputed that a confirmatoryassignment does not itself convey the mortgage. ~See-caplen----. Blanchard, 187 Mass. 73, 76 (1904).Rather, such an assignment is evidence of the makingof the former conveyance as of the time when it wasmade ... it is only confirmatory evidence of the titlewhich passed by the original [assignmentl. ~Id.Thus, recording a confirmatory assignment ofmortgage after a foreclosure sale acts to confirm, bymeans of an instrument in a more easily recorded form,the prior assignment that occurred through thesecuritization. See In re Samuels,_ I - 415 B.R. at 2 0 - 2 2 ;In re Almeida. 41 7 B . R . at 149-50. It also serves asa means to update the public record to show the

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assignment from the last assignee of record to theultimate assignee under the securitization agreements.The "confirmatory assignment" is not the conveyance,nor is the recording of such an assignment contrary toMassachusetts law.

9

The LaRaces further argue that Title Standard No.58 is not a "rule of law" and that the Land Court'srejection of the standard does not warrantprospective-only application. LaRace Br. at 2 8 - 3 4 .Even crediting the LaRaces' characterization for thesake of argument, the fact remains that the standardhas served as an authoritative guide for real estatepractitioners since at least 1995." Since then,industry practice has recognized the validity offoreclosures for which assignees have executed and

Massachusetts law does not require that allassignments in the chain-of-title be recorded. TheLand Court recognized as much when it ruled in Rosario[A5801 , that an unrecorded assignment of mortgage,which was indorsed from the last assignee o f record tothe foreclosing entity, was valid. Livonia Prop.,2010 WL 1956867, at *11 ('Notably, even the Ibanezcourt recognized that an assignment to the bank fromthe last assignee of record would be sufficientwithout the necessity to obtain or record assignmentsfor each interim transfer.").Estate Law, REBA Tit. Std. No. 58 (4'h Ed. 2 0 0 8 ) .

9

See Eno & Hovey, 28B Massachusetts Practice: Real0,". I-

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recorded confirmatory assignments after completion offoreclosure sales. [A1084-921

Affirming the Land Court's rejection of TitleStandard No. 5 8 with retroactive effect would havesignificant ramifications for properties sold pursuantto this prior industry practice."especially true with respect to innocent third-partypurchasers who might then own property with arguableclouds on title.

This would be

N o r can the LaRaces credibly argue that WellsFargo, as Trustee is sounding a "siren[] of doom"without any support. LaRace Br. at 3 3 - 3 4 . To thecontrary, the chief of the Boston Housing Authorityhas already encountered the adverse consequences ofthe Land Court's decisions, explaining that thedecisions have:

delay[ed] the city's efforts to clean upareas plagued by abandoned homes . . . [which]holds up quite a bit o f our work inrevitalizing the neighborhoods that havebeen most devastated. 2

The fact that REBA revised Title Standard No. 58in 2008 to add a limited caveat applicable to actionsin the federal bankruptcy courts does not minimize theeffect of the Land Court's wholesale rejection o f theentire standard.See Jenifer B . M c K i m , Rulinq Upheld on Sale ofProperty: Ownership Status_ ..-f Foreclosures Clouded, in

The Boston Globe, dated Oct. 15, 2009, available at12

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Thus, any rejection of REBA Title Standard No. 58and the validity of post-foreclosure confirmatoryassignments must only be applied prospectively. SeePowers v. Wilkinson, 399 MaSS. 6 5 0 , 849 (1987)

E. The LaRaces' Challenges To The DocumentaryMaterial Submitted By Wells Fargo, AsTrustee To The Land Court Must FailThe LaRaces' challenges to the documentation

submitted to the Land Court by Wells Fargo, as Trustee(LaRace Br. at 35-36), do not warrant rejection ofdocuments properly in the record or the affirmance ofthe Land Court's decisions.

First, the LaRaces did not challenge theadmissibility or the authenticity of the PSA, theMLPA, the LaRace collateral file, or any othermaterials submitted by Wells Fargo, as Trustee in theLand Court. Wells Fargo, as Trustee submitted thesematerials for the Land Court's consideration on June8 , 2009. [A744-945]. The LaRaces, thereafter, fileda Memorandum in Support of Opposition to Plaintiff'sMotion for Entry of Default Judgment. [A1095-05].Nowhere in the LaRaces' Memorandum do they questionthe admissibility, authenticity, or reliability ofhttp://www.boston.com/realestate/news/articles/2OO9/10/15/judge-upholds ruling on sa l e s- -f foreclosedjroperties/ (a copy is attached at Tab F to the addendum).

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these materials. Nor did they move to strike thesematerials. They cannot now do so now. See Morris v.~Holt, 380 Mass. 133, 135 n.4 (1980); Wooster v. AbdowCorp., 46 Mass. App. Ct. 665, 666 ( 1 9 9 9 ) .

Second, the authenticating affidavits submittedby Wells Fargo, as Trustee confirm that the originalLaRace collateral file was in fact obtained andproperly submitted to the Land Court. LA1073-77,1080-811 I 3 Notwithstanding the LaRaces' protests tothe contrary, this chain-of-custody evidence issufficient to authenticate the documents therein. 4

Third, with respect to the securitizationagreements and related documents in the record - andin particular the MLPA and the PSA - these documentswere obtained through the Securities and ExchangeCommission's EDGAR Public Search Engine. [A747, 1073-751. As public filings, they are self-authenticating

l3 The Land Court has had possession of the originalcollateral file for the LaRace loan since June 8,2009. [A7511l4 All documents related to commercial paper in thecollateral file, such as the note, the mortgage, theassignment of mortgage in blank, and the confirmatoryassignment are self-authenticating and admissible.

~See William G. Young, et al., 20 Mass. Prac., Evidence5 9 0 2 . 9 ( 2 0 0 8 ) ; see also Fed. R. Evid. 902(9) In reDiMare, No. 08-1046, 2009 WL 5206628, at "7 (Bankr. D.Mass. Dec. 22, 2 0 0 9 ) .

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and contain sufficient indicia o f reliability tosupport their submission to the Court. 5Gen. L. ch. 233, 76A; Weingartner Lumber & SupplyCo. v. Kadant Composites, LLC, No. 08-181-DLB,2010 WL996473, at "7 n.12 ( E . D . Ky. Mar. 16 , 2010) ("Publiclymaintained records downloaded from a governmentwebsite would likely be self-authenticating under Fed.R. Evid. 9 0 2 ( 5 ) . " ) ; Benhabib v. Hughes Elects. Corp.,No. CV 0 4 - 0 0 9 5 CAS ( V B K x ) , 2 0 0 7 WL 4144940, at *3 n.2(C.D. Cal. Mar. 30, 2007) (taking judicial notice of

S E C filings and finding them "capable of accurate andready determination by resort to sources whoseaccuracy cannot reasonably be questioned").

~See Mass.

Finally, the Land Court affirmatively consideredthe securitization agreements, the collateral file,and the other materials submitted by Wells Fargo, asTrustee in disposing of the Motion to Vacate Judgment.[A1147-61]. In doing so, the Land Court assumed thevalidity of those materials [A1147, 1 1 5 0 1 , andl5 The SEC EDGAR Filing Detail sheet included in therecord [A7761 confirms and certifies the source of thesecuritization agreements and the authenticitythereof. See Weingartner Lumber & Supply, 2010 WL996473, at * 7 n.12 (website printouts from SEC publicfilings database self-authenticating, in part, becausethe printouts bear the SEC web address, the date andtitle of each document, and the date and time thedocument was accessed and downloaded).

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rendered judgment, as a matter of l a w , on the effectof those documents. [1147-611. The Court shouldconsider these documents to fully assess the LandCourt's rulings thereon. An alternative result wouldpreclude Wells Fargo, as Trustee from obtainingmeaningful review of the Land Court's erroneousinterpretation of the securitization agreements andits legal conclusions based thereon.IV. CONCLUSION

For the foregoing reasons, as well as thoseraised in its Opening Brief, Appellant Wells Fargo, asTrustee respectfully requests that the Court reversethe Land Court's rulings, vacate the judgment enteredby the Court, and enter judgment in Wells Fargo, asTrustee's favor.

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Respectfully submitted,WELLS FARGO BANK, N.A., as TRUSTEEFOR ABFC 2006-OPT1 TRUST, ABFCASSET-BACKED CERTIFICATES, SERIES2005-OPT1,BY its a t t o r n e y s ,

Phoebe S. Winder (BBO#567103)Andrew C. Glass (BB0#638362)Rober t W. Sp ar k es , I11 (BBO#663626)K&L GATES LLPS t a t e Street Financial. CenterOne Lincoln StreetBoston, Massachusetts 02111-2950617.261.3100 (telephone)617. 261.3175 (facsimile)

September 10, 2010