TILA (NON-JUDICIAL AND JUDICIAL) Rescission Gets Clearer in Most Respects

For further information please call 954-495-9867 or 520-405-1688

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It is becoming crystal clear that with help from a competent attorney the options under the TILA rescission process are (a) different from common law rescission and (b) very effective against “lenders” who can no longer hide behind “presumptions”. LIKE THE PRESUMPTIONS THAT HAVE BEEN STRICTLY APPLIED AGAINST HOMEOWNERS, BUT WHICH ARE REBUTTABLE, TILA RESCISSION IS STRICTLY APPLIED AGAINST “LENDERS.” Just as presumptions force the borrower to take the burden of proof on basic facts in the pretender lender’s case, TILA rescission forces the “lender” to take the burden of proof in the borrower’s loan, establishing that there was no basis for rescission. This article covers the law regarding those legal presumptions AND the effects and mechanics of a TILA rescission.

Amongst the things that are clear now is the plain fact that rescission is a private statutory remedy requiring only a letter to give notice of exercising the TILA right of rescission. If a homeowner wants to file suit to enforce the rescission, there is a one year statute of limitations to collect damages or get any requiring the “lender” to comply. But the effective date of rescission remains the same even if the one year statute has passed. In plain language that means that by operation of law you don’t have a mortgage encumbrance on your property if more than 20 days has passed since the rescission was effective (the day you dropped it in a mailbox).

But if you are looking to recover the financial damages provided by TILA (disgorgement of payments etc.) then you need to file suit within one year of the rescission. If you want to clear title with a quiet title action my opinion is that the one year statute of limitations does not apply — because the act provides that the mortgage and note are void by operation of law. Thus the title issue is cleared as of the date of rescission. As argued by the ACLU and as stated by a unanimous Supreme Court the rescission is effective upon notice. There is no requirement of notice AND a lawsuit. So the suit to clear or quiet title is merely based on removing the mortgage from your chain of title because it is (and has been) void since the day of rescission.

I cannot emphasize enough the importance or reading the ACLU brief below. Too many judges and lawyers have become confused over the various provisions of TILA. A lawsuit based upon rescission to to enforce the rights due to the borrower because the rescission is already effective. The lawsuit is NOT the exercise of the right of TILA rescission. The letter declaring the rescission is the exercise of the right of TILA rescission. This is far different from common law rescission.

FOR REBUTTING PRESUMPTIONS See Franklin Decision

FOR ADMISSIONS REGARDING FABRICATION OF DOCUMENTS THUS REBUTTING PRESUMPTIONS See Wells Fargo Foreclosure_attorney_procedure_manual-1

FOR THOROUGH ANALYSIS AND HISTORY OF TILA RESCISSION SEE jesinoski_v._countrywide_home_loans_aclu_amicus_brief

And see this explanation which is almost entirely accurate —

Read this excerpt from the CFPB Amicus Brief (Rosenfeld v. HSBC):
” If the court finds the consumer was entitled to rescind, it will order the procedures specified by 1635 and Reg. Z, or modify them as the case requires…Accordingly, if the court finds the consumer rescinded the transaction because she properly exercised a valid right to rescind under 1635, the lender must be ordered [by the court] to honor the rescission, even if the underlying right to rescind has expired.”
 
I needn’t go further…this is the CFPB talking…and they are the sole authority to promulgate the rules of rescission by Congress. They (the lender) must act within 20 days, regardless of the consumer’s perception of whether or not the rescission is timely. It would be up to a court to determine the exercise of the right…but the lender must be ordered by the court to follow the rules of rescission under TILA and the attendant time frames contemplated therein.
The rescission process is private, leaving the consumer and lender to working out the logistics of a given rescission.” McKenna, 475 F.3d at 421; accord Belini, 412 F.3d at 25. Otherwise, to leave the creditors in charge of determining timing, the creditors would no doubt stonewall until the time ran after receipt of the notice of rescission. Thus, even valid rescissions would result in creditors claiming that the time to file suit had run out and the statute is then moot. Congress recognized that TILA rescission is necessarily effected by notice and any subsequent litigation must be accomplished within restrictions set against the creditors…not the consumers. This is non-judicial action at its finest. Just like the non-judicial act of foreclosure (in such forums). 
Consummation is a question of fact that would be determined after the creditor performed its required obligations under 1635 (b)…unless suit is brought within 20 days of the notice of rescission…as is required.
“Everyone is a genius, but if one passes judgment on a fish trying to climb a tree, and then continues to tell him that he is stupid, the fish, and everyone else, will believe that, even though his genius has never been discovered.” Albert Einstein.

10 Responses

  1. McIntosh v. Irwin Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003)

    Recent Massachusetts Federal Court Case May Spur Truth In Lending Class Actions Seeking Rescission of Mortgage Loans

    A recent court decision may trigger a new wave of Truth in Lending litigation in Massachusetts. McIntosh v. Irwin Union Bank & Trust Co., 215 F.R.D. 26 (D. Mass. 2003), holds that a suit seeking rescission of a mortgage loan due to Truth in Lending Act (TILA) violations can properly be maintained as a class action. The decision, by Chief Judge Young of the United States District Court for the District of Massachusetts, may well be followed by other judges in that jurisdiction, or even further afield (particularly by other jurisdictions within the First Circuit, such as Rhode Island and Maine).

    Prior to this ruling, the weight of legal authority held that – because rescission is an individualized form of relief – only individual borrowers could sue for rescission. Chief Judge Young, however, rejected that authority, and found that a class action is an appropriate mechanism for declaring loans rescindable.

    While we believe the decision is not correct and it is being appealed, the McIntosh ruling is likely to increase the frequency and magnitude of litigation under the Truth in Lending Act and the Massachusetts correlate, M.G.L. c. 140D. Prior to this, it was relatively well-accepted that only TILA actions for actual and statutory damages could be brought as a class action; the law limited statutory damages to $500,000 for the entire class. The ability to seek rescission on behalf of a class, however, makes TILA violations a more inviting target for the plaintiffs’ bar. Rescission remedies include the requirement that the creditor refund all finance charges it collected – including interest over the loan – and apply to any error within the last three years (four years in Massachusetts). When multiplied across a class of borrowers, the potential exposure associated with a rescission class may be quite significant. In the wake of McIntosh, we expect to see a number of demands for rescission and filings of rescission class actions in federal court in Massachusetts. At least one purported class case has already been filed. This disturbing possibility suggests that Massachusetts lenders take at least two important steps. First, as always, mortgage lenders should pay close attention to compliance with TILA and Chapter 140D. Second, all lenders should treat any loan rescission letters – especially if they are from the law firms of Edelman, Combs & Latturner in Chicago or the Law Offices of Claude Lefebvre & Sons in Rhode Island – as a prelude to a possible lawsuit. These letters need to be investigated and responded to with even greater care than usual, in light of the increased stakes.

    This publication, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin Procter LLP or its attorneys.

  2. so to all my good friends, and to ( Rock,Christine.) I dont know

    any other way to explain THAT THIS IS WHY MR. N.G. AND MYSELF HAVE SAID. THAT ALL AND EVERYONE THAT HAS BEEN
    FORECLOSED ON, HAD TO FILE BK TO SAVE HOME, GET A MOD, AND SO ON AND SO ON.

    THIS GO’S TO HEART OF ALL COMPLAINTS, OR SHOULD BE, FOR TILA,RESPA, AND ANYTHING ELSE YOU CAN PUT IN,

    ALL MORTGAGES/NOTES WERE ASSIGNED PRIOR TO ANY BORROWER SIGNING THE NOTE AND MORTGAGE, TO A
    UNKNOWN PARTY TO TRANSACTION. !!!!!!!!!!!!!!!!!!, THE REAL MONEY. THEY USED YOUR APPLICATION TO GET
    FUNDING IN PLACE, THEN BROUGHT THE NOTE / MORTGAGE, TO THEM, WHO KNOW WHO? , AND THEY BEFORE
    LETTING OUT THE FUNDS TO PAY CLOSING ATTORNEY, THEY ( PERFECTED ) A LIEN/SECURITY INTEREST IN YOUR MORTGAGE AND NOTE.

    SO WERE , PLEASE SHOW ME ROCK/CHRISTINE, WERE ARE THE ( TILA NOTICES, BECAUSE THE WAREHOUSE LENDER DID
    BEFORE YOU SIGN MORTGAGE AND NOTE, WAS THE TRUE OWNER OF THAT NOTE AND MORTGAGE, AS THEY WERE ASSIGN
    IT BY THE FRAUD LENDER TO SECURE THE MONEY.

    SO ALL SHOULD RESCISSION ALL MORTGAGES FROM 2000 TILL NOW. ON TILA.

    RESCIND ALL
    YOU ALL MUST READ. VERY VERY GOOD STUFF. WHAT I SEE HERE IS THAT AGAIN WHO EVER TOOK YOUR APPLICATION, DID USE IT AS COLLACTERAL WITHOUT YOUR PERMISSION,OR CONCENT. I.E USEING YOUR SSN,CREDIT SCORES, AND ALL INFO THAT WAS PROVIDED ON APP. LIKE SAVINGS,IRA,BANK ACCOUNT INFO, ETC,ETC.

    WHAT YOU WANT TO SEE IS THE WORDS, PERFECTED……BEFORE FUNDS ARE GIVIN OUT.
    Warehouse line of credit

    From Wikipedia, the free encyclopedia
    Jump to: navigation, search
    A warehouse line of credit is a credit line used by mortgage bankers. It is a short-term revolving credit facility extended by a financial institution to a mortgage loan originator for the funding of mortgage loans.

    The cycle starts with the mortgage banker taking a loan application from the property buyer.

    Then the loan originator secures an investor (often a large institutional bank) to whom the loan will be sold, whether directly or through a securitization.

    This decision is generally based on an institutional investor’s published rates for various types of mortgage loans, while the selection of a warehouse lender for a particular loan may vary based on the types of loan products allowed by the warehouse provider or investors in the loan approved by the warehouse lender to be on the line of credit.

    After an investor has been selected, the mortgage banker draws on the warehouse line of credit to fund a mortgage and sends the loan documentation to the warehouse credit-providing institution to act as a collateral for the line of credit.

    The warehouse lender, at this stage, perfects a security interest in the mortgage note to serve as collateral.

    When the loan is finally sold to a permanent investor, the line of credit is paid off by wired funds from this permanent investor to the warehouse facility and the cycle starts all over again for the next loan.
    Typical durations that loans are held on the warehouse line, called dwell time, range based on the speed at which investors review mortgage loans for purchase after their submission by mortgage banks. In practice, this length of time is generally between 10-20 days. Warehouse facilities typically limit the amount of dwell time a loan can be on the warehouse line. For loans going over dwell, mortgage bankers are often forced to buy these notes off the line with their own cash in anticipation of a potential problem with the note.
    The International Finance Corporation has set up warehouse lines of credit around the world and has developed a guide on how they work.[1]
    Warehouse lines of credit play an important role in making mortgage loan market more accessible to property buyers since many mortgage bankers would not be able to attract sufficient amount of deposits that are necessary to fund mortgage loans by themselves. Therefore, warehouse funding allows the loan originators to provide mortgages at more competitive rates.[2] Unlike in other types of lending, loan originators earn more profit from origination fees rather than interest rate spread since the closed mortgage loan is sold quickly to an investor.
    The warehouse funding providing institution accepts various types of mortgage collateral, including subprime and equity loans, residential or commercial, including specialty property types. The warehouse lenders in most cases provide the loan for a period of fifteen to sixty days.[3] Warehouse lines of credit are usually priced off 1-month LIBOR plus a spread.[4] Also warehouse lenders typically apply a ‘haircut’ to credit line advances meaning that only 98% – 99% of the face amount of loans are being funded by them; the originating lenders have to provide with the remainder from their own capital.[4]
    Purpose[edit]

    Reasons for using a warehouse line of credit include:
    Permanent Funding: Mortgage lender does not have to draw deposits – the line of credit provides permanent funding for the life of all loans in the program.
    Less Risk: No margin calls – once the asset is funded, there is no additional mark-to-market and posting of collateral.
    Unlimited Loan Volume: Warehouse line of credit program can fund an unlimited loan volume. This enables specialty lenders to enlarge their portfolios for maximum interest income and eliminates the need to manage multiple sources of capital.
    In addition, in this way the warehouse credit institution can manage an exposure to mortgage loans market without building a branch network of its own.
    Other information[edit]

    Warehouse lending can be differentiated between ‘wet funding’ and ‘dry funding’.[5] The difference is related to when the loan originator gets his funds with respect to the time at which the real estate transaction takes place. During ‘wet funding’ the mortgage loan provider gets the funds at the same time as the loan is closed, i.e. before the loan documentation is sent to the warehouse credit provider. ‘Dry funding’ takes place when the warehouse credit provider gets the loan documentation for review before sending the funds.
    An important aspect of the warehouse credit providing business is limiting fraud on warehouse lending. Main risks of fraud include dishonest and collusive mortgage loan originators, title companies, real estate agents and customers themselves, false information in the loan application (especially appraisals), forged signatures on the loan documents, and false documents of title.[6] The ‘Wet funding’ type of warehouse credit is riskier in terms of possible fraud because the credit provider will not be aware of any potential problems until after the funds are sent to the loan originator. Measures that the warehouse lender can take to limit fraud can be a strong screening process for mortgage brokers and mortgage banking companies, making sure the loan originator itself has a strong internal screening process, limiting the amount available for ‘wet funding’, and having separate account for funds coming from sale of loans to investors.[5]
    References[edit]

    Jump up ^ International Finance Corporation – Warehouse Line of Credit
    Jump up ^ Colorado Mortgage Lender’s Association – http://cmla.com/mortgageterms
    Jump up ^ Armstrong, C. L.; McNeill, T. H.; Reynolds, J. E. (2006): “Warehouse Lending Losses Under the Financial Institution Bond”, The Fidelity Law Journal, Vol. 12.
    ^ Jump up to: a b Key Features of Warehouse Lines
    ^ Jump up to: a b Fraud in Warehouse Mortgage lending
    Jump up ^ Schroeder, G. J.; Tomaine, J. J. (2007): Loan Loss Coverage Under Financial Institution Bonds, page 336. Chicago: ABA Publishing.
    Retrieved from “http://en.wikipedia.org/w/index.php?title=Warehouse_line_of_credit&oldid=543893369”
    Categories:
    Mortgage

  3. johngault, on March 14, 2015 at 1:02 am said:
    David, did I get this right? Thanks for the info. This was a stinky, stinky job, so if we ever meet, you’re buying. From david earlier (straightened out) and by the way, where’d you get this?

    all must go on sec.org and get all info on your PSA, and read it cover to cover as i did. word for word, line by line. as i did, over 600 pages, in one, the other psa i have is the one they sold the certificates to investor. with all info on all 1127 mortgages in it, there address and appraisels,credits score, etc,etc
    good stuff. as it also show’s all mortgages in this trust as being paid in full. as of offering certificates for sale. and it also show’s , that they sold all mortgages for the fraud appraisels that were used to inflate the worth of all homes.

    like in my case, refi-mortgage, in the amount of 350,000 dollars, but on the day they sold the certificates, it show on the doc’s that were file under the sec,
    that my mortgage was paid in full …the exact wording as follow,. MORTGAGE BALANCEPAID TO DATE . AND GUESS WHAT THAT AMOUNT WAS.
    YUP, 349,349.78 AS OF 2 FEB 2006,

    now think about this for a moment, got a re-fi in nov-2005 , with first payment do on January 1 2006, so after making 1 payment, this doc show all
    1127 mortgages as being paid in full as of offings of the certificates. and then the doc show them as saying we own all in docs and we can sell all the mortgage s, and they did, for the appraisel prices that were on all property. mine was 500,000 dollars.

    SECTION 4. Record Title and Possession of Mortgage Files. The Seller hereby sells, transfers, assigns, sets over and conveys to the Purchaser, without recourse,

    but subject to the terms of this Agreement and the Seller hereby acknowledges that the Purchaser, subject to the terms of this Agreement,

    shall have all the right, title and interest of the Seller in and to the Mortgage Loans. From the Closing Date,

    but as of the Cut-off Date, the ownership of each Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the related Mortgage File and all rights, benefits, proceeds and obligations arising therefrom or in connection therewith, has been vested in the Purchaser.

    All rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with the Mortgage Loans and all records or documents with respect to the Mortgage Loans prepared by or which come into the possession of the Seller shall be received and held by the Seller in trust for the exclusive benefit of the Purchaser as the owner of the Mortgage Loans.

    On and after the Closing Date, any portion of the related Mortgage Files or servicing files related to the Mortgage Loans (the “Servicing Files”) in Seller’s possession shall be held by Seller in a custodial capacity only for the benefit of the Purchaser. The Seller shall release its custody of any contents of the related Mortgage Files or Servicing Files only in accordance with written instructions of the Purchaser or the Purchaser’s designee

  4. Still drowning in oceans of completely irrelevant BlahBlahBlah… while thoroughly ignoring the B, A, BA of contract and negligence litigation.

    Surreal.

  5. i give ocwen and the others, a month before they call in the cards and fold away under bankruptcy. any takers??????

  6. here is the real and actual mortgage purchase agreement in just one of my psa’s that they sold my mortgage and 1127 others in trust.

    good reading, and the big bold are very good reading. enjoy.

    I know,am at it again, but there is a lot of info, in bold that should be read,

    thank you
    david

    EXECUTION COPY
    MORTGAGE LOAN PURCHASE AGREEMENT

    This is a Mortgage Loan Purchase Agreement (the “Agreement”) dated as of February 27, 2006 by and between GMAC Mortgage Corporation, a Pennsylvania corporation, having an office at 100 Witmer Road, Horsham, Pennsylvania 19044 (the “Seller”) and Residential Asset Mortgage Products, Inc., a Delaware corporation, and having an office at 8400 Normandale Lake Boulevard, Minneapolis, Minnesota 55437 (the “Purchaser”).
    The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase from the Seller certain mortgage loans on a servicing-retained basis as described herein (the “Mortgage Loans”). The following terms are defined as follows:
    Aggregate Principal Balance
    (as of the Cut-Off Date):
    $550,003,046.49 (after deduction of scheduled
    principal payments due on or before the Cut-Off
    Date, whether or not collected, but without
    deduction of prepayments that may have been made
    but not reported to the Seller as of the close
    of business on such date). Closing Date:
    February 27, 2006, or such other date as may be
    agreed upon by the parties hereto.

    Cut-Off Date: February 1, 2006.

    Mortgage Loan:
    A fixed rate, fully-amortizing, first lien,
    residential conventional mortgage loan having a
    term of not more than 30 years and secured by
    Mortgaged Property.

    Mortgaged Property:
    A single parcel of real property on which is
    located a detached or attached single-family
    residence, a two-to-four family dwelling,
    manufactured home, a townhouse, an individual
    condominium unit, or an individual unit in a
    planned unit development, or a proprietary lease
    in a unit in a cooperatively-owned apartment
    building and stock in the related cooperative
    corporation.

    Pooling and Servicing Agreement: The pooling and
    servicing agreement, dated as of February 27,
    2006, among Residential Asset Mortgage Products,
    Inc., as company, GMAC Mortgage Corporation, as
    servicer and Wells Fargo Bank, National
    Association, as trustee (the “Trustee”).

    Repurchase Event:
    With respect to any Mortgage Loan as to which
    the Seller delivers an affidavit certifying that
    the original Mortgage Note has been lost or
    destroyed, a subsequent default on such Mortgage
    Loan if the enforcement thereof or of the
    related Mortgage is materially and adversely
    affected by the absence of such original
    Mortgage Note.

    All capitalized terms used but not defined herein shall have the meanings assigned thereto in the Pooling and Servicing Agreement. The parties intend hereby to set forth the terms and conditions upon which the proposed transactions will be effected and, in consideration of the premises and the mutual agreements set forth herein, agree as follows:

    SECTION 1. Agreement to Sell and Purchase Mortgage Loans. The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase from the Seller certain Mortgage Loans having an aggregate amount equal to the Aggregate Principal Balance as of the Cut-Off Date.

    SECTION 2. Mortgage Loan Schedule. The Seller has provided to the Purchaser a schedule setting forth all of the Mortgage Loans to be purchased on the Closing Date under this Agreement, which shall be attached hereto as Schedule I (the “Mortgage Loan Schedule”).

    SECTION 3. Purchase Price of Mortgage Loans. The purchase price (the “Purchase Price”) to be paid to the Seller by the Purchaser for the Mortgage Loans shall be the sum of (i) $537,891,820.77, (ii) the Class PO Certificates and Class IO Certificates and (iii) a 0.01% Percentage Interest in the Class R Certificates issued pursuant to the Pooling and Servicing Agreement. The cash portion of the purchase price shall be paid by wire transfer of immediately available funds on the Closing Date to the account specified by the Seller.

    The Purchaser and Seller intend that the conveyance by the Seller to the Purchaser of all its right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall be, and be construed as, a sale of the Mortgage Loans by the Seller to the Purchaser.

    It is, further, not intended that such conveyance be deemed to be a grant of a security interest in the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller. However, in the event that the Mortgage Loans are held to be property of the Seller, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that (a) this Agreement shall be and hereby is a security agreement within the meaning of Articles 9 of the Pennsylvania Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be, and hereby is, a grant by the Seller to the Purchaser of a security interest in all of the Seller’s right, title and interest, whether now owned or hereafter acquired, in and to the following: (A) the Mortgage Loans, including (i) with respect to each Cooperative Loan, the related Mortgage Note, Security Agreement, Assignment of Proprietary Lease, Cooperative Stock Certificate, Cooperative Lease, (ii) with respect to each Mortgage Loan other than a Cooperative Loan, the related Mortgage Note and Mortgage and (iii) any insurance policies and all other documents in the related Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms thereof, (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, (D) all accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, goods, letters of credit, letter-of-credit rights, oil, gas, and other minerals, and investment property consisting of, arising from or relating to any of the foregoing and (E) all proceeds of the foregoing; (c) the possession by the Trustee, the Custodian or any other agent of the Trustee of any of the foregoing shall be deemed to be possession by the secured party, or possession by a purchaser or a person holding for the benefit of such secured party, for purposes of perfecting the security interest pursuant to the Pennsylvania Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-313 and 9-314 of each thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of, or persons holding for, the Trustee (as applicable) for the purpose of perfecting such security interest under applicable law.
    The Seller shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were determined to create a security interest in the Mortgage Loans and the other property described above, such security interest would be determined to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Without limiting the generality of the foregoing, the Seller shall prepare and deliver to the Purchaser not less than 15 days prior to any filing date, and the Purchaser shall file, or shall cause to be filed, at the expense of the Seller, all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Purchaser’s security interest in the Mortgage Loans, including without limitation (x) continuation statements, and (y) such other statements as may be occasioned by
    (1) any change of name of the Seller or the Purchaser, (2) any change of type or jurisdiction of organization of the Seller, or (3) any transfer of any interest of the Seller in any Mortgage Loan.

    Notwithstanding the foregoing, (i) the Seller in its capacity as Servicer shall retain all servicing rights (including, without limitation, primary servicing and master servicing) relating to or arising out of the Mortgage Loans, and all rights to receive servicing fees, servicing income and other payments made as compensation for such servicing granted to it under the Pooling and Servicing Agreement pursuant to the terms and conditions set forth therein (collectively, the “Servicing Rights”) and (ii) the Servicing Rights are not included in the collateral in which the Seller grants a security interest pursuant to the immediately preceding paragraph.

    SECTION 4. Record Title and Possession of Mortgage Files. The Seller hereby sells, transfers, assigns, sets over and conveys to the Purchaser, without recourse, but subject to the terms of this Agreement and the Seller hereby acknowledges that the Purchaser, subject to the terms of this Agreement, shall have all the right, title and interest of the Seller in and to the Mortgage Loans. From the Closing Date,

    but as of the Cut-off Date, the ownership of each Mortgage Loan, including the Mortgage Note, the Mortgage, the contents of the related Mortgage File and all rights, benefits, proceeds and obligations arising therefrom or in connection therewith, has been vested in the Purchaser. All rights arising out of the Mortgage Loans including, but not limited to, all funds received on or in connection with the Mortgage Loans and all records or documents with respect to the Mortgage Loans prepared by or which come into the possession of the Seller shall be received and held by the Seller in trust for the exclusive benefit of the Purchaser as the owner of the Mortgage Loans. On and after the Closing Date, any portion of the related Mortgage Files or servicing files related to the Mortgage Loans (the “Servicing Files”) in Seller’s possession shall be held by Seller in a custodial capacity only for the benefit of the Purchaser. The Seller shall release its custody of any contents of the related Mortgage Files or Servicing Files only in accordance with written instructions of the Purchaser or the Purchaser’s designee.

    SECTION 5. Books and Records. The sale of each Mortgage Loan has been reflected on the Seller’s balance sheet and other financial statements as a sale of assets by the Seller. The Seller shall be responsible for maintaining, and shall maintain, a complete set of books and records for the Mortgage Loans which shall be appropriately identified in the Seller’s computer system to clearly reflect the ownership of the Mortgage Loans by the Purchaser.

    SECTION 6. Delivery of Mortgage Notes.
    (a) On or prior to the Closing Date, the Seller shall deliver to the Purchaser or the Custodian, as directed by the Purchaser, the original Mortgage Note, with respect to each Mortgage Loan so assigned, endorsed without recourse in blank, or in the name of the Trustee as trustee, and signed by an authorized officer (which endorsement shall contain either an original signature or a facsimile signature of an authorized officer of the Seller, and if in the form of an allonge, the allonge shall be stapled to the Mortgage Note), with all intervening endorsements showing a complete chain of title from the originator to the Seller. If the Mortgage Loan was acquired by the endorser in a merger, the endorsement must be by “____________, successor by merger to [name of predecessor]”. If the Mortgage Loan was acquired or originated by the endorser while doing business under another name, the endorsement must be by “____________ formerly known as [previous name].” The delivery of each Mortgage Note to the Purchaser or the Custodian is at the expense of the Seller.
    In lieu of delivering the Mortgage Note relating to any Mortgage Loan, the Seller may deliver or cause to be delivered a lost note affidavit from the Seller stating that the original Mortgage Note was lost, misplaced or destroyed, and, if available, a copy of each original Mortgage Note; provided, however, that in the case of Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of delivering the above documents, may deliver to the Purchaser a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loan in the Payment Account on the Closing Date.

    (b) If any Mortgage Note is not delivered to the Purchaser (or the Custodian as directed by the Purchaser) or the Purchaser discovers any defect with respect to a Mortgage Note which materially and adversely affects the interests of the Certificateholders in the related Mortgage Loan, the Purchaser shall give prompt written specification of such defect or omission to the Seller, and the Seller shall cure such defect or omission in all material respects or repurchase such Mortgage Loan or substitute a Qualified Substitute Mortgage Loan in the manner set forth in Section 7.03. It is understood and agreed that the obligation of the Seller to cure a material defect in, or substitute for, or purchase any Mortgage Loan as to which a material defect in, or omission of, a Mortgage Note exists, shall constitute the sole remedy respecting such material defect or omission available to the Purchaser, Certificateholders or the Trustee on behalf of Certificateholders.
    (c) All other documents contained in the Mortgage File and any original documents relating to the Mortgage Loans not contained in the Mortgage File or delivered to the Purchaser, are and shall be retained by the Servicer in trust as agent for the Purchaser.

    In the event that in connection with any Mortgage Loan: (a) the original recorded Mortgage (or evidence of submission to the recording office),

    (b) all interim recorded assignments, (c) the original recorded modification agreement, if required, or (d) evidence of title insurance (together with all riders thereto, if any) satisfying the requirements of clause (I)(ii), (iv),
    (vi) or (vii) of the definition of Mortgage File, respectively, is not in the possession of the Servicer concurrently with the execution and delivery hereof because such document or documents have not been returned from the applicable public recording office, or, in the case of each such interim assignment or modification agreement, because the related Mortgage has not been returned by the appropriate recording office, in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, or because the evidence of title insurance has not been delivered to the Seller by the title insurer in the case of clause
    (I)(vii) of the definition of Mortgage File, the Servicer shall use its best efforts to obtain, (A) in the case of clause (I)(ii), (iv) or (vi) of the definition of Mortgage File, such original Mortgage, such interim assignment, or such modification agreement, with evidence of recording indicated thereon upon receipt thereof from the public recording office, or a copy thereof, certified, if appropriate, by the relevant recording office, or (B) in the case of clause
    (I)(vii) of the definition of Mortgage File, evidence of title insurance.

    (d) If any of the documents held by the Servicer pursuant to clause (c) above are missing or defective in any other respect and such missing document or defect materially and adversely affects the interests of the Certificateholders in the related Mortgage Loan, the Seller shall cure or repurchase such Mortgage Loan or substitute a Qualified Substitute Mortgage Loan in the manner set forth in Section 7.03. It is understood and agreed that the obligation of the Seller to cure a material defect in, or substitute for, or purchase any Mortgage Loan as to which a material defect in or omission of a constituent document exists, shall constitute the sole remedy respecting such material defect or omission available to the Purchaser, Certificateholders or the Trustee on behalf of Certificateholders.

    (e) If any assignment is lost or returned unrecorded to the Servicer because of any defect therein, the Seller shall prepare a substitute assignment or cure such defect, as the case may be, and the Servicer shall cause such assignment to be recorded in accordance with this Section.
    SECTION 7. Representations and Warranties.
    SECTION 7.01. Representations and Warranties of Seller. The Seller represents, warrants and covenants to the Purchaser that as of the Closing Date or as of such date specifically provided herein:

    (a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania and is or will be in compliance with the laws of each state in which any Mortgaged Property is located to the extent necessary to ensure the enforceability of each Mortgage Loan;

    (b) The Seller has the power and authority to make, execute, deliver and perform its obligations under this Agreement and all of the transactions contemplated under this Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement; this Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity) or by public policy with respect to indemnification under applicable securities laws;

    (c) The execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not violate the Seller’s Certificate of Incorporation or Bylaws or constitute a material default (or an event which, with notice or lapse of time, or both, would constitute a material default) under, or result in the material breach of, any material contract, agreement or other instrument to which the Seller is a party or which may be applicable to the Seller or any of its assets;
    (d) No litigation before any court, tribunal or governmental body is currently pending, nor to the knowledge of the Seller is threatened against the Seller, nor is there any such litigation currently pending, nor to the knowledge of the Seller threatened against the Seller with respect to this Agreement that in the opinion of the Seller has a reasonable likelihood of resulting in a material adverse effect on the transactions contemplated by this Agreement;
    (e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement, the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement except for consents, approvals, authorizations and orders which have been obtained;

    (f) The consummation of the transactions contemplated by this Agreement is in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages relating to the Mortgage Loans by the Seller pursuant to this Agreement are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;

    (g) The Seller did not select such Mortgage Loans in a manner that it reasonably believed was adverse to the interests of the Purchaser based on the Seller’s portfolio of conventional non-conforming Mortgage Loans;

    (h) The Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale for reporting and accounting purposes and, to the extent appropriate, for federal income tax purposes;

    (i) The Seller is an approved seller/servicer of residential mortgage loans for Fannie Mae and Freddie Mac. The Seller is in good standing to sell mortgage loans to and service mortgage loans for Fannie Mae and Freddie Mac and no event has occurred which would make the Seller unable to comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac; and
    (j) No written statement, report or other document furnished or to be furnished pursuant to the Agreement contains or will contain any statement that is or will be inaccurate or misleading in any material respect.
    SECTION 7.02. Representations and Warranties as to Individual Mortgage Loans. The Seller hereby represents and warrants to the Purchaser, as to each Mortgage Loan (except as otherwise specified below), as of the Closing Date, as follows:
    (a) The information set forth in the Mortgage Loan Schedule is true, complete and correct in all material respects as of the Cut-Off Date;
    (b) The original mortgage, deed of trust or other evidence of indebtedness (the “Mortgage”) creates a first lien on an estate in fee simple or a leasehold interest in real property securing the related Mortgage Note, free and clear of all adverse claims, liens and encumbrances having priority over the first lien of the Mortgage subject only to (1) the lien of non-delinquent current real property taxes and assessments not yet due and payable, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording which are acceptable to mortgage lending institutions generally, and (3) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage or the use, enjoyment, value or marketability of the related Mortgaged Property;
    (c) The Mortgage Loan has not been delinquent thirty (30) days or more at any time during the twelve (12) month period prior to the Cut-off Date for such Mortgage Loan. As of the Cut-Off Date, the Mortgage Loan is not delinquent in payment more than 30 days and has not been dishonored; there are no defaults under the terms of the Mortgage Loan; and the Seller has not advanced funds, or induced, solicited or knowingly received any advance of funds from a party other than the owner of the Mortgaged Property subject to the Mortgage, directly or indirectly, for the payment of any amount required by the Mortgage Loan;
    (d) There are no delinquent taxes which are due and payable, ground rents, assessments or other outstanding charges affecting the related Mortgaged Property;

    (e) The Mortgage Note and the Mortgage have not been impaired, waived, altered or modified in any respect, except by written instruments which have been recorded to the extent any such recordation is required by applicable law or is necessary to protect the interests of the Purchaser, and which have been approved by the title insurer and the primary mortgage insurer, as applicable, and copies of which written instruments are included in the Mortgage File

    . No other instrument of waiver, alteration or modification has been executed, and no Mortgagor has been released by the Seller, or to the best of Seller’s knowledge, by any other person, in whole or in part, from the terms thereof except in connection with an assumption agreement, which assumption agreement is part of the Mortgage File and the terms of which are reflected on the Mortgage Loan Schedule;

    (f) The Mortgage Note and the Mortgage are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Mortgage Note and the Mortgage, or the exercise of any right thereunder, render the Mortgage Note or Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;

    (g) All buildings upon the Mortgaged Property are insured by a generally acceptable insurer pursuant to standard hazard policies conforming to the requirements of Fannie Mae and Freddie Mac. All such standard hazard policies are in effect and on the date of origination contained a standard mortgagee clause naming the Seller and its successors in interest as loss payee and such clause is still in effect. If the Mortgaged Property is located in an area identified by the Federal Emergency Management Agency as having special flood hazards under the Flood Disaster Protection Act of 1973, as amended, such Mortgaged Property is covered by flood insurance by a generally acceptable insurer in an amount not less than the requirements of Fannie Mae and Freddie Mac. The Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to maintain such insurance at the Mortgagor’s cost and expense and to seek reimbursement therefor from the Mortgagor;

    (h) Each Mortgage Loan as of the time of its origination complied in all material respects with all applicable local, state and federal laws, including, but not limited to, all applicable predatory lending laws;

    (i) The Mortgage has not been satisfied, canceled or subordinated, in whole or in part, or rescinded, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission;

    (j) The Mortgage Note and the related Mortgage are original and genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in all respects in accordance with its terms subject to bankruptcy, insolvency and other laws of general application affecting the rights of creditors.

    All parties to the Mortgage Note and the Mortgage had the legal capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage.

    The Mortgage Note and the Mortgage have been duly and properly executed by such parties.

    The proceeds of the Mortgage Note have been fully disbursed and there is no requirement for future advances thereunder;

    (k) With respect to each Mortgage Loan, (A) immediately prior to the transfer and assignment to the Purchaser, the Mortgage Note and the Mortgage were not subject to an assignment or pledge, except for any assignment or pledge that had been satisfied and released,

    (B) the Seller had good and marketable title to and was the sole owner thereof and (C) the Seller had full right to transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest;

    (l) The Mortgage Loan is covered by an ALTA lender’s title insurance policy or other generally acceptable form of policy of insurance, with all necessary endorsements, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring (subject to the exceptions contained in clause (b) (1), (2) and (3) above) the Seller, its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan. Such title insurance policy affirmatively insures ingress and egress and against encroachments by or upon the Mortgaged Property or any interest therein.

    The Seller is the sole insured of such lender’s title insurance policy, such title insurance policy has been duly and validly endorsed to the Purchaser or the assignment to the Purchaser of the Seller’s interest therein does not require the consent of or notification to the insurer and such lender’s title insurance policy is in full force and effect and will be in full force and effect upon the consummation of the transactions contemplated by this Agreement.

    No claims have been made under such lender’s title insurance policy, and no prior holder of the related Mortgage has done, by act or omission, anything which would impair the coverage of such lender’s title insurance policy;
    (m) To the Seller’s knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event permitting acceleration; and neither the Seller nor any prior mortgagee has waived any default, breach, violation or event permitting acceleration;
    (n) To the Seller’s knowledge, there are no mechanics, or similar liens or claims which have been filed for work, labor or material affecting the related Mortgaged Property which are or may be liens prior to or equal to the lien of the related Mortgage;
    (o) To the Seller’s knowledge, all improvements lie wholly within the boundaries and building restriction lines of the Mortgaged Property (and wholly with the project with respect to a condominium unit) and no improvements on adjoining properties encroach upon the Mortgaged Property except those which are insured against by the title insurance policy referred to in clause (l) above and all improvements on the property comply with all applicable zoning and subdivision laws and ordinances;

    (p) The Mortgage Loan constitutes a “qualified mortgage” under
    Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation
    Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a “qualified mortgage” notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation
    Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9);
    (q) The Mortgage Loan complies in all material respects with all the terms, conditions and requirements of the Seller’s underwriting standards in effect at the time of origination of such Mortgage Loan. The Mortgage Notes and Mortgages are on uniform Fannie Mae/Freddie Mac instruments or are on forms acceptable to Fannie Mae or Freddie Mac;

    (r) The Mortgage Loan contains the usual and enforceable provisions of the originator at the time of origination for the acceleration of the payment of the unpaid principal amount if the related Mortgaged Property is sold without the prior consent of the mortgagee thereunder. The Mortgage Loan has an original term to maturity of not more than 30 years, with interest payable in arrears on the first day of each month. Except as otherwise set forth on the Mortgage Loan Schedule, the Mortgage Loan does not contain terms or provisions which would result in negative amortization nor contain “graduated payment” features or “buydown” features;

    (s) To the Seller’s knowledge, the Mortgaged Property at origination of the Mortgage Loan was and currently is free of damage and waste and, to the Seller’s knowledge, at origination of the Mortgage Loan there was, and there currently is, no proceeding pending for the total or partial condemnation thereof;
    (t) The related Mortgage contains enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby,

    including, (1) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (2) otherwise by judicial foreclosure.

    To the Seller’s knowledge, there is no homestead or other exemption available to the Mortgagor which would interfere with the right to sell the Mortgaged Property at a trustee’s sale or the right to foreclose the Mortgage;

    (u) If the Mortgage constitutes a deed of trust, a trustee, duly qualified if required under applicable law to act as such,

    has been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by the Purchaser to the trustee under the deed of trust, except in connection with a trustees sale or attempted sale after default by the Mortgagor;

    (v) If required by the applicable processing style, the Mortgage File contains an appraisal of the related Mortgaged Property made and signed prior to the final approval of the mortgage loan application by an appraiser that is acceptable to Fannie Mae or Freddie Mac and approved by the Seller. The appraisal, if applicable, is in a form generally acceptable to Fannie Mae or Freddie Mac; (w) To the Seller’s knowledge, each of the Mortgaged Properties consists of a single parcel of real property with a detached single-family residence erected thereon, or a two- to four-family dwelling, a townhouse, an individual condominium unit in a condominium project, an individual unit in a planned unit development or a proprietary lease on a cooperatively owned apartment and stock in the related cooperative corporation. Any condominium unit or planned unit development either conforms with applicable Fannie Mae or Freddie Mac requirements regarding such dwellings or is covered by a waiver confirming that such condominium unit or planned unit development is acceptable to Fannie Mae or Freddie Mac or is otherwise “warrantable” with respect thereto. No such residence is a mobile home or manufactured dwelling;
    (x) The ratio of the original outstanding principal amount of the Mortgage Loan to the lesser of the appraised value (or stated value if an appraisal was not a requirement of the applicable processing style) of the Mortgaged Property at origination or the purchase price of the Mortgaged Property securing each Mortgage Loan (the “Loan-to-Value Ratio”) is not in excess of 95.00%. The original Loan-to-Value Ratio of each Mortgage Loan either was not more than 80.00% or the excess over 80.00% is insured as to payment defaults by a primary mortgage insurance policy issued by a primary mortgage insurer acceptable to Fannie Mae and Freddie Mac;

    (y) The Seller is either, and each Mortgage Loan was originated by, a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution which is supervised and examined by a federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Section 203 and 211 of the National Housing Act;

    (z) The origination, collection and servicing practices with respect to each Mortgage Note and Mortgage have been in all material respects legal, normal and usual in the Seller’s general mortgage servicing activities. With respect to escrow deposits and payments that the Seller collects, all such payments are in the possession of, or under the control of, the Seller, and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made. No escrow deposits or other charges or payments due under the Mortgage Note have been capitalized under any Mortgage or the related Mortgage Note;
    (aa) No fraud or misrepresentation of a material fact with respect to the origination of a Mortgage Loan has taken place on the part of the Seller; and
    (bb) If any of the Mortgage Loans are secured by a leasehold interest, with respect to each leasehold interest: residential property in such area consisting of leasehold estates is readily marketable; the lease is recorded and is in full force and effect and is not subject to any prior lien or encumbrance by which the leasehold could be terminated or subject to any charge or penalty; and the remaining term of the lease does not terminate less than ten years after the maturity date of such Mortgage Loan.
    (cc) None of the Mortgage Loans are subject to the Home Ownership and Equity Protection Act of 1994 (“HOEPA”);
    (dd) No Mortgage Loan is a “High Cost Loan” or a “Covered Loan,” as applicable (as such terms are defined in the then current Standard & Poor’s LEVELS Glossary which is now Version 5.6c Revised, Appendix E);
    (ee) No Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; and
    (ff) No mortgage loan is a high cost loan under the predatory lending law of any jurisdiction in which a mortgaged property is located.

    SECTION 7.03. Repurchase. It is understood and agreed that the representations and warranties set forth in Sections 7.01 and 7.02 shall survive the sale of the Mortgage Loans to the Purchaser and delivery of the related Mortgage Loan documents to the Purchaser or its designees and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller or the Purchaser of a breach of representations and warranties made by the Seller, or upon the occurrence of a Repurchase Event, in either case which materially and adversely affects interests of the Purchaser or its assignee in any Mortgage Loan, the party discovering such breach or occurrence shall give prompt written notice to each of the other parties. If the substance of any representation or warranty has been breached, the repurchase obligation set forth in the provisions of this

    Section 7.03 shall apply notwithstanding any qualification as to the knowledge of the Seller. Following discovery or receipt of notice of any such breach of a representation or warranty made by the Seller or the occurrence of a Repurchase Event, the Seller shall either (i) cure such breach in all material respects within 90 days from the date the Seller was notified of such breach or (ii) repurchase such Mortgage Loan at the related Purchase Price within 90 days from the date the Seller was notified of such breach; provided, however, that the Seller shall have the option to substitute a Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan if such substitution occurs within two years following the Closing Date; and provided further that if the breach or occurrence would cause the Mortgage Loan to be other than a “qualified mortgage” as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the earlier of the date the breach was discovered or receipt of notice of any such breach. In the event that any such breach shall involve any representation or warranty set forth in Section 7.01 or those relating to the Mortgage Loans or a portion thereof in the aggregate, and such breach cannot be cured within ninety days of the earlier of either discovery by or notice to the Seller of such breach,

    all Mortgage Loans affected by the breach shall, at the option of the Purchaser, be repurchased by the Seller at the Purchase Price or substituted for in accordance with this

    Section 7.03. If the Seller elects to substitute a Qualified Substitute Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant to this Section 7.03, the Seller shall deliver to the Custodian with respect to such Qualified Substitute Mortgage Loan or Loans, the original Mortgage Note endorsed as required by
    Section 6, and the Seller shall deliver to the Servicer with respect to such Qualified Substitute Mortgage Loan, the Mortgage, an Assignment of the Mortgage in recordable form if required pursuant to Section 6, and such other documents and agreements as are required to be held by the Servicer pursuant to Section 6. No substitution will be made in any calendar month after the Determination Date for such month. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be retained by the Servicer and remitted by the Servicer to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to the Certificateholders will include the Monthly Payment due on a Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. Upon such substitution, the Qualified Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made the representations and warranties contained in this Agreement with respect to the Qualified Substitute Mortgage Loan or Loans and that such Mortgage Loans so substituted are Qualified Substitute Mortgage Loans as of the date of substitution

    . In furtherance of the foregoing, if the Seller repurchases or substitutes a Mortgage Loan and is no longer a member of MERS and the Mortgage is registered on the MERS(R) System, the Purchaser, at the expense of the Seller and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS’ rules and regulations.

    In the event of a repurchase by the Seller pursuant to this Section 7.03, the Purchaser shall (i) forward or cause to be forwarded the Mortgage File for the related Mortgage Loan to the Seller, which shall include the Mortgage Note endorsed without recourse to the Seller or its designee, (ii) cause the Servicer to release to the Seller any remaining documents in the related Mortgage File which are held by the Servicer, and (iii) an assignment in favor of the Seller or its designee of the Mortgage in recordable form and acceptable to the Seller in form and substance and such other documents or instruments of transfer or assignment as may be necessary to vest in the Seller or its respective designee title to any such Mortgage Loan (or with respect to any Mortgage registered on the MERS(R) System, if the Seller is still a member of MERS, the Purchaser shall cause MERS to show the Seller as the owner of record). The Purchaser shall cause the related Mortgage File to be forwarded to Seller immediately after receipt of the related Purchase Price by wire transfer of immediately available funds to an account specified by the Purchaser.

    It is understood and agreed that the obligation of the Seller to cure such breach or purchase (or to substitute for) such Mortgage Loan as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Purchaser or the Trustee on behalf of the Certificateholders.

    SECTION 8. Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given when deposited, postage prepaid, in the United States mail, if mailed by registered or certified mail, return receipt requested, or when received, if delivered by private courier to another party, at the related address shown on the first page hereof, or such other address as may hereafter be furnished to the parties by like notice.
    SECTION 9. Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable or is held to be void or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof.
    SECTION 10. Counterparts; Entire Agreement. This Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. This Agreement is the entire agreement between the parties relating to the subject matter hereof and supersedes any prior agreement or communications between the parties.

    SECTION 11. Place of Delivery and Governing Law. This Agreement shall be deemed in effect when counterparts hereof have been executed by each of the parties hereto.

    This Agreement shall be deemed to have been made in the State of New York. This Agreement shall be construed in accordance with the laws of the State of New York State of New York, without regard to the conflict of law principles thereof, other than Sections 5-1401 and 5-1402 of the New York General Obligations Law, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.

    SECTION 12. Successors and Assigns; Assignment of Agreement. This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns; provided that this Agreement may not be assigned, pledged or hypothecated by the Seller to a third party without the prior written consent of the Purchaser.

    SECTION 13. Waivers; Other Agreements. No term or provision of this Agreement may be waived or modified unless such waiver or modification is in writing and signed by the party against whom such waiver or modification is sought to be enforced.

    SECTION 14. Survival. The provisions of this Agreement shall survive the Closing Date and the delivery of the Mortgage Loans, and for so long thereafter as is necessary (including, subsequent to the assignment of the Mortgage Loans) to permit the parties to exercise their respective rights or perform their respective obligations hereunder.
    [Signature Page Follows]
    IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the date first above written.
    GMAC MORTGAGE CORPORATION

    By:
    Name:
    Title:
    RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.

    By:
    Name:
    Title:

    SCHEDULE I

    MORTGAGE LOAN SCHEDULE

    (a copy can be obtained from the Trustee)

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  7. Neidermeyer,

    That is one of the reasons it is always good to sue the servicer first: when you try to obtain the info and to bring in the other parties, they put up a hell of a fight.

    If you get a judgment against the servicer, it becomes very easy to reattack and QT because all the arguments against disclosing the other parties is fair game in the second action and… servicer cannot oppose it since he doesn’t have an interest in the house.

  8. Marie McDonnell has been at it quite a while now. Bet a search of her name would bring up lots of goodies.

  9. @ Dave

    Great news for you… It confounds me how we can get all the way to a sale and never have the plaintiff identified… I myself just got a non-answer (again) from OCWEN as to who is the lender , they basically said “screw that ,, just deal with us… we’re not telling” .

    This isn’t going away and Rock will just need to learn to “embrace the suck”.

  10. This is for all our readers, and my friends , rock and Christine.,

    i had a foreclosure sales date, as of 20 march, 2015, a auction at my home scheduled for 12 noon time on that day.

    sent out rescission notice on 5 march 2015, to all party’s to the securitization and party i have found that was at the closing table without our knowledge and or permission to be there.and there were at least 18 letter sent out.

    so guess what i just got, in my email from someone helping me with my securitization reports. and she is number one in business for that.
    Marie McDonnell analistic, look her up, christine,rock . dont take my UN educated guess at how law is law. as you said am a stupid,crazy, nut job.

    WOW, they said the SALE IS CANCELLED. this came from our good friends< OCWEN LOAN SERVICING. JUST ONE OF THE COMPANY THAT GOT MY RESCISSION LETTER.

    so no matter how long it been people send out rescission letters, that is all ng is saying. it's up to them to agree or not to agree in the rescission, and the only way they have to say we dont agree is . THEY THE ( BANK,LENDER, ) MUST FILE SUIT…

    please people this is so simple.

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