HSBC v CARCHI | NYSC - MERS ASMNT FAIL, Youa Vang Affidavit Fail, Cannot Produce EVEN A Copy of Original Note...or Allonge Securely Affixed Thereto

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HSBC v CARCHI | NYSC – MERS ASMNT FAIL, Youa Vang Affidavit Fail, Cannot Produce EVEN A Copy of Original Note…or Allonge Securely Affixed Thereto

HSBC v CARCHI | NYSC – MERS ASMNT FAIL, Youa Vang Affidavit Fail, Cannot Produce EVEN A Copy of Original Note…or Allonge Securely Affixed Thereto

Via Brian M. Levine

NEW YORK SUPREME COURT – QUEENS COUNTY

HSBC BANK USA, N.A. AS TRUSTEE FOR
THE REGISTERED HOLDERS OF THE REN-
AISSANCE HOME EQUITY LOAN ASSET-
BACKED CERTIFICATE, SERIES 2004-4

Plaintiff,

-against-

MARIA CARCHI. ET AL.,
Defendants.

 EXCERPT:

In view of the fact that plaintiff’s counsel served an unsworn response to the notice to admit, which contained several improper objections, said response is a nullity. Plaintiff, therefore, is deemed to have admitted to the genuineness of the documents covered by request 1, 2, and 3, the original note, the original mortgage, and the assignment of the mortgage executed on June 3, 2011. Defendants assert that based upon notice to admit and the documents attached to said notice plaintiff lacks standing to bring this action, because MERS lacked authority to assign the mortgage to plaintiff, and plaintiff cannot establish that it is the holder or assignee of the underlying note. It is noted that lack of standing was asserted as an affirmative defense in the answer.

 

[…]

 

Plaintiff, in opposition to the within motion, has submitted an Affidavit from Youa Vang, an account manager employed by Wells Fargo Bank, National Association, who states that Wells Fargo is the document custodian for the plaintiff and that Wells Fargo’s records show that it was in physical possession of the original note and original mortgage relative to the subject property on July 18, 2011.

Plaintiff counsel states in her opposing affirmation that “the original note and mortgage may be produced on the hearing date of the Defendant’ subject motion for inspection by the Court”. However, she offers no explanation as to why she cannot produce a copy of the original note at this time, and has not establish that said note was endorsed to plaintiff in blank, without recourse, or that there is an allonge securely affixed thereto. The production of the original note is clearly not a matter for in camera review, as defendants have raised the issue of standing and plaintiff is now required to establish that it has standing to commence this action.

[…]

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