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Massive new fraud coverup: How banks are pillaging homes — while the government watches

Massive new fraud coverup: How banks are pillaging homes — while the government watches

Related cases:  Bank of New York v. Romero | NM KICK ASS CASE – BONY did not introduce any evidence demonstrating that it was a party with the right to enforce the Romeros’ note either by an indorsement or proper transfer

Deutsche Bank V. Holden | 9th Dist. Appellate Court in Ohio – Inconsistencies between the (2) different copies of the note and the lack of an explanation based on personal knowledge

JUDGE UPHOLDS $5 MILLION PUNITIVE AGAINST US BANK FOR FRAUD

Salon-

Joseph and Mary Romero of Chimayo, N.M., found that their mortgage note was assigned to the Bank of New York three months after the same bank filed a foreclosure complaint against them; in other words, Bank of New York didn’t own the loan when they tried to foreclose on it.

Glenn and Ann Holden of Akron, Ohio, faced foreclosure from Deutsche Bank, but the company filed two different versions of the note at court, each bearing a stamp affirming it as the “true and accurate copy.”

Mary McCulley of Bozeman, Mont., had her loan changed by U.S. Bank without her knowledge, from a $300,000 30-year loan to a $200,000 loan due in 18 months, and in documents submitted to the court, U.S. Bank included four separate loan applications with different terms.

[SALON]

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Wells Fargo foreclosure manual on trial

Wells Fargo foreclosure manual on trial

We know all the banks have a similar manual. If you have knowledge of any others, please hit the email a tip link above. Thank you.


NY Post-

Wells Fargo is in a federal judge’s hot seat.

America’s largest mortgage servicer just lost the battle to keep its controversial Wells Fargo Home Mortgage Foreclosure Attorney Procedure Manual out of federal court in New York.

At a hearing in lower Manhattan on April 8, Judge Allan Gropper admitted the manual into the bankruptcy case of a local homeowner in foreclosure, and he approved a request by his lawyer to be allowed to dig deeper.

[NEW YORK POST]

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The Toughest Cop on Wall Street You’ve Never Heard Of | How Benjamin Lawsky’s making big banks pay

The Toughest Cop on Wall Street You’ve Never Heard Of | How Benjamin Lawsky’s making big banks pay

New Republic-

In early April, when The New York Times reported that the Justice Department would grant Credit Suisse a deferred prosecution agreement for actively aiding tax evasion, it seemed yet another bank would pay a paltry penalty for major misconduct. Credit Suisse would owe only a fine for helping rich Americans hide their wealth from taxes in Switzerland. And those wealthy clients would get off scot-free, with their Swiss bank accounts still secret.

But a funny thing happened on Credit Suisse’s way to legal impunity: a new inquiry from the relatively obscure New York Department of Financial Services (DFS). Under the direction of former federal prosecutor Benjamin Lawsky, DFS has reportedly requested documents from Credit Suisse and a Senate subcommittee investigation, seeking to learn whether Credit Suisse executives based in New York lied to state regulators about their role in creating offshore tax havens. In the current climate of financial regulation, where investigations rarely impact the individual employees who design and perpetrate misdeeds, this was a bold step—one that could force the Justice Department to toughen up. Imposing a less stringent penalty than a state regulator would humiliate the feds.

[NEW REPUBLIC]

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WELLS FARGO vs EROBOBO | BRIEF OF AMICI CURIAE ROBERT GARRASI AND JAMES HUNTER

WELLS FARGO vs EROBOBO | BRIEF OF AMICI CURIAE ROBERT GARRASI AND JAMES HUNTER

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

– against –

ROTIMI EROBOBO, et al.
Defendants–Respondent.

Appellate Department Case No. 2013-6986

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

Interest of Amici Curiae

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

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

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ATTORNEY LENORE ALBERT, WHO GOT A GOOD RULING FOR HOMEOWNER HELEN GALOPE IN THE NINTH CIRCUIT COURT OF APPEAL AT THE END OF MARCH, DEMANDS A RETRACTION OF LEXIS NEXIS PUBLICATION ABOUT THE CASE!!

ATTORNEY LENORE ALBERT, WHO GOT A GOOD RULING FOR HOMEOWNER HELEN GALOPE IN THE NINTH CIRCUIT COURT OF APPEAL AT THE END OF MARCH, DEMANDS A RETRACTION OF LEXIS NEXIS PUBLICATION ABOUT THE CASE!!

H/T ABBY in CA

letter excerpt…

To the President/CEO of Reed Elsevier,

 

I have sent two emails to Lexis Nexis without response.  Your publications on Lexis Nexis of consumer cases concerning wrongful foreclosure are misleading and downright deceitful.  You have failed to properly train and supervise your employees to ensure as the “Official” reporter for California, that you are giving an unbiased case summary, correct key/head notes, and core terms. However, you have instituted a pattern and practice of yellow flagging all opinions that came out in favor of the consumer. To my HORROR and SHOCK, you have even went so far to proclaim the BANK a winner in a Ninth Circuit win for the homeowner. 

 


This is not only damaging my reputation in the legal community, but also is frustrating my ability to litigate my other cases or use the consumer friendly opinions the way they were intended.

Your corruption has gone too far. Those case summaries and core terms need to change as well as the flags. For example Galope v Deutsche Bank should have a green flag, should include the core term of LIBOR, and at the very least phrase the case summary that the homeowner won. Are you kidding me? I am so furious you are lucky you are in New York or else I would be on your doorstep right now.

FULL LETTER BELOW

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Bank of N.Y. Mellon v Gales | NY Appeals Court – did not demonstrate that the note was physically delivered to it prior to the commencement of the action, and the plaintiff similarly failed to submit a written assignment of the note

Bank of N.Y. Mellon v Gales | NY Appeals Court – did not demonstrate that the note was physically delivered to it prior to the commencement of the action, and the plaintiff similarly failed to submit a written assignment of the note

Decided on April 9, 2014

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
COLLEEN D. DUFFY, JJ.
2012-06443
(Index No. 3727/11)

Bank of New York Mellon, etc., respondent,

v

Traci Gales, et al., appellants, et al, defendants.

John M. Schwarz, Jr., Chestnut Ridge, N.Y., for appellants.
Houser & Allison, APC, New York, N.Y. (Kathleen M.
Massimo of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Traci Gales and Germaine Gales appeal from an order of the Supreme Court, Rockland County (Kelly, J.), entered May 4, 2012, which granted the plaintiff’s motion for summary judgment on the complaint insofar as asserted against them and denied their cross motion to dismiss the complaint for failure to state a cause of action and lack of standing.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff’s motion for summary judgment on the complaint insofar as asserted against the defendants Traci Gales and Germaine Gales, and substituting therefor a provision denying the plaintiff’s motion; as so modified, the order is affirmed, without costs or disbursements.

Contrary to the Supreme Court’s determination, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as it did not submit sufficient evidence to demonstrate that it had standing to commence this action. Where, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242). In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843; see U.S. Bank, N.A. v Collymore, 68 AD3d at 753; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709). ” Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation’” (HSBC Bank USA v Hernandez, 92 AD3d at 844, quoting U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 108). “Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity” (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Merritt v Bartholick, 36 NY 44, 45; Kluge v Fugazy, 145 AD2d 537, 538).

Here, the evidence submitted by the plaintiff in support of its motion did not [*2]demonstrate that the note was physically delivered to it prior to the commencement of the action, and the plaintiff similarly failed to submit a written assignment of the note. Accordingly, the plaintiff failed to establish its entitlement to judgment as a matter of law, and the Supreme Court should have denied its motion for summary judgment.

Contrary to the appellants’ contentions, the Supreme Court properly denied their cross motion to dismiss the complaint, as they did not have standing to assert noncompliance with the subject lender’s pooling service agreement (see Rajamin v Deutsche Bank National Trust Co., 2013 WL 1285160, 2013 US Dist LEXIS 45031 [SD NY, No. 10-Civ-7531 (LTS)]).

The appellants’ remaining contention is without merit.
DILLON, J.P., CHAMBERS, AUSTIN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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C O M P L A I N T and DOCKET | USA {ex rel Fisher} et al v. OneWest Bank, FSB || Unsealed – Accusing OneWest FKA IndyMac, of causing the U.S. government to improperly pay out $206 million under a federal program to help struggling homeowners avoid foreclosure

C O M P L A I N T and DOCKET | USA {ex rel Fisher} et al v. OneWest Bank, FSB || Unsealed – Accusing OneWest FKA IndyMac, of causing the U.S. government to improperly pay out $206 million under a federal program to help struggling homeowners avoid foreclosure

U.S. District Court
Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:12-cv-09352-CM

United States of America et al v. OneWest Bank, FSB
Assigned to: Judge Colleen McMahon
Cause: 31:3729 False Claims Act
Date Filed: 12/21/2012
Jury Demand: Plaintiff
Nature of Suit: 890 Other Statutory Actions
Jurisdiction: U.S. Government Plaintiff
Plaintiff
ABC
TERMINATED: 04/07/2014
Plaintiff
United States of America ex rel. Michael J. Fisher, and Michael J. Fisher Individually represented by Stephen A. Weiss
Seeger Weiss LLP
77 Water Street
26th Floor
New York, NY 10005
(212) 584-0700
Fax: (212) 584-0799
Email: sweiss@seegerweiss.com
ATTORNEY TO BE NOTICED
V.
Defendant
DEF
TERMINATED: 04/07/2014
Defendant
Onewest Bank, FSB

 

Date Filed # Docket Text
12/21/2012 1 ORDER, Case sealed. (Signed by Judge Andrew L. Carter, Jr on 12/21/2012) (nm) (Entered: 01/04/2013)
12/21/2012 CASE REFERRED TO Judge Louis L. Stanton as possibly similar to 1:12-cv-08717. (nm) (Entered: 01/04/2013)
12/21/2012 2 SEALED DOCUMENT placed in vault.(nm) (Entered: 01/04/2013)
01/29/2013 3  NOTICE OF CASE ASSIGNMENT to Judge Colleen McMahon. Judge Unassigned is no longer assigned to the case. (mps) (Entered: 01/29/2013)
01/29/2013 Magistrate Judge James L. Cott is so designated. (mps) (Entered: 01/29/2013)
01/29/2013 4 SEALED DOCUMENT placed in vault.(mps) (Entered: 01/30/2013)
02/14/2013 5 SEALED DOCUMENT placed in vault.(nm) (Entered: 02/14/2013)
09/03/2013 6 SEALED DOCUMENT placed in vault.(mps) (Entered: 09/03/2013)
12/03/2013 7 SEALED DOCUMENT placed in vault.(mps) (Entered: 12/03/2013)
02/28/2014 8 SEALED DOCUMENT placed in vault.(mps) (Entered: 02/28/2014)
04/07/2014 9 ORDER, The Complaint shall be unsealed thirty days after entry of this Order; and, in the event that relator has not moved to dismiss this action, service upon defendant by the relator is authorized as of that date. Except for this Order and the Complaint, all other contents of the Court’s file in this action shall remain under seal and not be made public or served upon the defendant. Upon the unsealing of the Complaint, the seal shall be lifted as to all matters occurring in this action subsequent to the date of this Order. SO ORDERED. (Signed by Judge Colleen McMahon on 02/28/2014) (mps) (Entered: 04/08/2014)
04/07/2014 10 ENDORSED LETTER addressed to Judge Colleen McMahon from Pierre G. Armand, dated 4/4/2014, re: Although the Court issued an Order on February 28, 2014, unsealing this action thirty days of entry of the Order, the Court’s electronic filing system indicates that the case is still under seal. ENDORSEMENT: Clerks unseal the case per my 2/28 Order! (Signed by Judge Colleen McMahon on 4/7/2014) (ja) (Entered: 04/08/2014)
04/08/2014 11 COMPLAINT against Onewest Bank, FSB. Document filed by United States of America ex rel. Michael J. Fisher, and Michael J. Fisher Individually.(This document was previously sealed in envelope #2 and unsealed by doc. #9.)(lmb) (Additional attachment(s) added on 4/9/2014: # 1 Exhibit 2, # 2 Exhibit 3, # 3 exhibit 6, # 4 Exhibit 7, # 5 Exhibit 8, # 6 Exhibit 9) (ca). (Entered: 04/08/2014)
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Bank of N.Y. Mellon v Spero | NYSC – The evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered or assigned to it prior to the commencement of the action.

Bank of N.Y. Mellon v Spero | NYSC – The evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered or assigned to it prior to the commencement of the action.

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK

THE BANK OF NEW YORK MELLON FKA THE
BANK OF NEW YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE,CWMBS INC.,
CI-IL MORTGAGE PASS-TH.ROUGH TRUST 2002-26,
MORTGAGE PASS THROUGH CERTIFICATES,
SERIES 2002-26
Plaintiff,

- against -

JAMES SPERO, MAUREEN KEEFE-SPERO, CHASE
BANK USA, N.A., AMERICAN EXPRESS BANK, FSB,
FAIRFIELD AT RIVERHEAD LLC., JPMORGAN CHASE
BANK, N.A., NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, JOSE ANTONIO PADILLA
NEW YORK ST A TE ON BEHALF OF UNIVERSITY
HOSPITAL IP, UNITED STATES OF AMERICA,
JOHN SPERO,
Defendants.

EXCERPT:

Plaintiff now moves for summary judgment on its complaint contending that defendants Spero failed
to comply with the terms of the loan agreement and mortgage, that their answer raised no issues of fact for
trial and, that no valid affirmative defenses were raised by the defendants. In support of its motion, plaintiff
submits among other things: the sworn affidavit of Jay Robert Karnes, assistant vice president of Bank of
America, N.A., as successor by merger to BAC Home Loans Servicing, LP (BANA); the affirmation of
Mark Golab, Esq.; the affirmation of Peter Dinsmore, Esq. pursuant to the Administrative Order of the Chief
Administrative Judge of the Courts (A0/431/11 ); the pleadings; the note, mortgage, corrective assignment
of mortgage; a notice of default; notices pursuant to RP APL§§ 1320, 1303 and 1304; affidavits of service
for the summons and complaint; an affidavit of service of the instant summary judgment motion upon the
attorneys for defendants Spero; and a proposed order appointing a referee to compute. Defendants Spero
cross-move seeking an order dismissing plaintiffs complaint or in the alternative, a denial of plaintiffs
summary judgment application. Plaintiff in reply opposes defendants’ cross-motion.
“(l]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the
production of the mortgage, the unpaid note, and evidence of default” (Republic Natl. Bank of N. Y. v
O’Kane, 308 AD2d 482, 764 NYS2d 635 [2d Dept 2003]; see Argent Mtge. Co., LLC v Mentesana, 79
AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). Once a plaintiff has made this showing, the burden then
shifts to defendant to establish by admissible evidence the existence of a triable issue of fact as to a defense
(see Washington Mut. Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]).

Where, as here, standing is put into issue by the defendant, the plaintiff is required to prove it has
standing in order to be entitled to the reliefrequested (see Deutsche Bank Natl. Trust Co. v Haller, 100
AD3d 680, 954 NYS2d 551 [2d Dept 2011]; US Bank, NA v Collymore, 68 AD3d 752, 890 NYS2d 578
[2d Dept 2009]; Wells Fargo Bank Minn., NA v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept
2007]). In a mortgage foreclosure action “[a] plaintiff has standing where it is the holder or assignee of both
the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA
v Hernandez. 92 AD3d 843, 939NYS2d 120 [2d Dept 2012]; US Bank, NA v Collymore, 68 AD3d at 753;
Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]).

Here, plaintiff has failed to establish,primafacie, that it had standing to commence this action. The
evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically
delivered or assigned to it prior to the commencement of the action. The affidavit from BANA’s assistant
vice president, Jay Robert Karnes, did not provide any factual details of a physical delivery or assigm11ent
of the note and thus. failed to establish possession of the note prior to commencing this action (HSBC Bank
USA v Hernandez, 92 AD3d 843; Citimortgage, Inc. v Stose/, 89 AD3d 887, 934 NYS2d 182 [2d Dept
2011 ]). Conclusory boiler plate statements such as “[p ]laintiff is the holder of the note” will not suffice
when standing is raised as a defense (see Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636, 931
NYS2d 630 [2d Dept 2011]; Aurora Loan Services, LLC v Weis bl um, 85 AD3d 95, 923 NYS2d 609 [2d
Dept 2011 ]).

Furthermore. the submissions before the court do not establish through competent evidence the
authority or Jay Robert Karnes, an assistant vice president to BANA, a non-party to this mortgage
foreclosure action. to act on behalf of plaintiff Bank of New York in this matter (see HSBC v Betts, 67
AD3d 735. 888 NYS2d 203 [2d Dept 2009]). Similarly, the submissions fail to establish through competent
evidence that BANA is the servicing agent for plaintiff Bank of New York. Moreover, the affidavit of Jay
Robert Karnes erroneously states that he is ” … authorized to sign this affidavit on behalf of plaintiff, Bank
of America, N .A … ” (emphasis added). Thus, plaintiff has also failed to present evidence sufficient to
support the entry of an order for the relief requested.

Lastly. plaintiffs application is procedurally defective for failure to comply with CPLR 3215 (g)(l)
and CPLR 321 ‘i (g)(3}(i) as same applies to those defaulting defendants who were served and have neither
appeared nor answered.

Since defendants’ cross-motion (002) has successfully raised an issue of fact as to standing,
 plaintiffs motion for summary judgment against defendants Spero, to strike their answer and for an order
or reference is denied. Defendants’ cross-motion is granted solely to the extent provided for herein.
The foregoing constitutes the decision and order of the court.

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GUDEMAN v. SAXON MTGE SERV | OPINION AND ORDER DENYING MOTION TO DISMISS | (Or. . . “…that since the note has been “discharged” by Morgan Stanley, this means that the Mortgage is “satisfied” and is voluntarily extinguished… “)

GUDEMAN v. SAXON MTGE SERV | OPINION AND ORDER DENYING MOTION TO DISMISS | (Or. . . “…that since the note has been “discharged” by Morgan Stanley, this means that the Mortgage is “satisfied” and is voluntarily extinguished… “)

 

BARBARA R. GUDEMAN and EDWARD J. GUDEMAN, Plaintiffs,
v.
SAXON MORTGAGE SERVICES, INC., OCWEN FINANCIAL CORPORATION and MORGAN STANLEY PRIVATE BANK, N.A., Defendants.

Civil Action No. 13-13341.
United States District Court, E.D. Michigan, Southern Division.
March 28, 2014.

OPINION AND ORDER DENYING MOTION TO DISMISS and SETTING SCHEDULING CONFERENCE

DENISE PAGE HOOD, District Judge.

I. BACKGROUND

This matter was removed from the Oakland County Circuit Court, State of Michigan on August 5, 2013. Plaintiffs Barbara R. Gudeman and Edward J. Gudeman filed an action against Defendants Morgan Stanley Private Bank, N.A. f/k/a Morgan Stanley Dean Witter Credit Corporation (“Morgan Stanley”), Saxon Mortgage Services, Inc. (“Saxon”), and Ocwen Financial Corporation (“Ocwen”) (collectively, “Defendants”) alleging: Breach of Contract (Count I); Slander of Title(Count II); and, Specific Performance (Count III).

The property at issue is located in Bloomfield Township, Michigan. On December 27, 1999, a Mortgage was obtained from Morgan Stanley which was recorded in the Oakland County Register of Deeds on January 27, 2000. (Comp., ¶ 4) Saxon serviced the Mortgage. (Comp., ¶ 5) Ocwen is an Assignee and Purchaser of the Mortgage as recorded in the Oakland County Register of Deeds. (Comp., ¶ 6) Plaintiffs assert that the Mortgage was fully satisfied, leaving a zero balance for the loan securing the Mortgage. (Comp., ¶ 7) Notwithstanding the satisfaction of the loan and Mortgage, Defendants have failed to provide Plaintiffs with a discharge of the Mortgage, despite numerous requests by Plaintiffs. (Comp., ¶ 8) Plaintiffs are unable to refinance and refusal to discharge the Mortgage is a breach of the conditions of the Mortgage. (Comp., ¶¶ 9-10)

This matter is now before the Court on Ocwen’s Motion to Dismiss. Morgan Stanley and Saxon joined in the motion. A response and reply have been filed.

II. ANALYSIS

A. Standard of Review

Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to dismiss based on failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff’s obligation to provide the `grounds’ of his `entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.] Factual allegations must be enough to raise a right to relief above the speculative level….” Id. at 555 (internal citations omitted). Although not outright overruling the “notice pleading” requirement under Rule 8(a)(2) entirely, Twombly concluded that the “no set of facts” standard “is best forgotten as an incomplete negative gloss on an accepted pleading standard.” Id. at 563. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of `entitlement to relief.’” Id. at 557. Such allegations are not to be discounted because they are “unrealistic or nonsensical,” but rather because they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). In sum, for a complaint to survive a motion to dismiss, the non-conclusory “factual content” and the reasonable inferences from that content, must be “plausibly suggestive” of a claim entitling a plaintiff to relief. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not shown that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint may also be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).

B. Discharge/Satisfaction of Mortgage

This matter involves a second mortgage on the property at issue granted by Plaintiffs to Morgan Stanley on December 27, 1999. On June 28, 2007, Edward Gudeman filed a Voluntary Petition for chapter 7 bankruptcy. (Ex. 2, Motion) On December 20, 2007, Edward Gudeman’s debts were discharged. (Ex. 5, Motion) Saxon thereafter sent a letter to Edward Gudeman indicating the loan was charged off on April 29, 2011, and a 1099-C Cancellation of Debt form indicating that the $207,910.07 debt was cancelled by Morgan Stanley. (Ex. 6, Motion) On June 14, 2012, the Mortgage was transferred to Ocwen for servicing.

Defendants argue that Plaintiffs have failed to state a claim upon which relief may be granted since the Mortgage has not been discharged and that Defendants have no duty to discharge the Mortgage. They assert that all three claims alleged by Plaintiffs against the Defendants must be dismissed since they have no duty under Michigan or federal law to discharge the Mortgage. Defendants argue that the bankruptcy discharge is as to the personal loan, but not as to the “in rem” portion under the Mortgage.

Plaintiffs respond that they are not arguing that the bankruptcy discharge served to cancel the underlying note, agreeing that the bankruptcy discharge extinguishes the liability on the note and that the bankruptcy discharge is an injunction against the enforcement of the note. Plaintiffs instead argue that Defendants voluntarily extinguished the liability on the note years after the bankruptcy filing since Defendants cancelled and extinguished the underlying debt. Plaintiffs claim that since there is no debt, then there can be no lien to foreclose and the mortgage is discharged as well, citing Fifth Third Bank v. Danou Technical Park, LLC, 2012 WL 933953 (Mich. App. Mar. 20, 2012).

Defendants reply that the issuance of Form 1099-C does not operate to extinguish the Mortgage and that the informational letter sent with the Form 1099-C is not an admission by the creditor that it has discharged the debt and can no longer pursue collection. Defendants also assert that Plaintiffs failed to address the Michigan statute, MCL § 545.41 and MCL § 545.44(1) in their response.

A discharge of a Mortgage is governed by MCL § 565.41 which provides,

(1) Within the applicable time period in section 44(2) after a mortgage has been paid or otherwise satisfied, the mortgagee or the personal representative, successor, or assign of the mortgagee shall prepare a discharge of the mortgage, file the discharge with the register of deeds for the county where the mortgaged property is located, and pay the fee for recording the discharge.

MCL § 565.41(1). Liability for refusal or neglect to discharge is governed by MCL § 656.44:

(1) If a mortgagee or the personal representative or assignee of the mortgagee, after full performance of the condition of the mortgage, whether before or after a breach of the mortgage, or, if the mortgage is entirely due, after a tender of the whole amount due, within the applicable time period in subsection (2) after being requested and after tender of the mortgagee’s reasonable charges, refuses or neglects to discharge the mortgage as provided in this chapter or to execute and acknowledge a certificate of discharge or release of the mortgage, the mortgagee is liable to the mortgagor or the mortgager’s heirs or assigns for $1,000.00 damages. The mortgagee is also liable for all actual damages caused by the neglect or refusal to the person who performs the condition of the mortgage or assigns, or to anyone who has an interest in the mortgaged premises. Damages under this section may be recovered in an action for money damages or to procure a discharge or release of the mortgage. The court may, in its discretion, award double costs in an action under this section.

MCL § 565.44(1).

Even though bankruptcy may discharge a debtor’s personal liability on a mortgage note, bankruptcy does not discharge a debtor’s in rem liability on the mortgage lien. Johnson v. Home State Bank, 501 U.S. 78, 84 (1991); Atwood v. Schlee, 269 Mich. 322, 325 (1934); In re Glance, 487 F.2d 317, 320-21 (6th Cir. 2007). The case cited by Plaintiffs, Fifth Third Bank, is not applicable since it was an action to quiet title and did not involve a discharge under bankruptcy proceedings, but a transfer of property as payment for the debt secured by a note with a mortgage. Fifth Third Bank, 2012 WL 933983, at 6. In that case, the appellate court found that the transfer of the property was considered a payment in full under the note, therefore since the note was fully paid, a foreclosure action could not be commenced to secure a payment of a non-existent debt. Id. at *7. Here, none of the Defendants are seeking a foreclosure action, therefore, Fifth Third Bank is not applicable and there is no requirement that the Mortgage be discharged.

In this case, all parties agree that there was no payment of the underlying debt, but that the debt was discharged in bankruptcy. Plaintiffs argue that the June 3, 2013 letter to Plaintiffs by Morgan Stanley indicating that the loan was “charged off” on April 29, 2011 and that they no longer have any obligations to Saxon and that the balance owed on the loan is $0.00 is evidence of a “discharge” of the note. They claim that since the note has been “discharged” by Morgan Stanley, this means that the Mortgage is “satisfied” and is voluntarily extinguished. Plaintiffs argue that Defendants have not attempted to collect the debt from Barbara Gudeman, since she has not filed for bankruptcy, which is further evidence that the underlying Mortgage has been satisfied.

There is no specific case cited by any party in Michigan or this Circuit that holds that a mortgage is discharged based on a letter with a Form 1099-C. Michigan courts have held in general that “[i]t is a general rule that the cancellation of a mortgage on the record is not conclusive as to its discharge, or as to the payment of the indebtedness of secured thereby.” Schanhite v. Plymouth Savings Bank, 277 Mich. 33, 39 (1936). It is “the well-settled rule that the acceptance by a mortgagee of a new mortgage and his cancellation of the old mortgage do not deprive the mortgage of priority over intervening liens.” Washington Mut. Bank v. ShoreBank Corp., 267 Mich. App. 11, 126 (2005).

In this district, a quiet title action by a plaintiff was dismissed where the plaintiff had purchased a property under a warranty deed from another who had received a Form 1099-C cancellation of debt. The plaintiff was under the impression that her interest was superior to the mortgage subject to the Form 1099-C. The district court noted that the plaintiff’s mortgage was not superior to the previously recorded mortgage. See Richards v. Bank of New York Mellon, 2013 WL 4054586 (E.D. Mich. Aug. 12, 2013). Courts in Michigan which have interpreted the term “otherwise satisfied” in MCL § 565.41 have held that if “evidence” is shown as to the intention of the transaction that it was not intended to “satisfy” the mortgage, then as a matter of law, the mortgage is not discharged. Agema, L.L.C. v. GreenStone Farm Credit Services, F.L.C.A., 2013 WL 296656 (Mich. App. May 14, 2013). The Hermiz case cited by Defendant is inapplicable since it did not involve a Form 1099-C letter as in this case. Hermiz v. Kamma, 2005 WL 2806226 (Oct. 27, 2005).

In this case, the Court finds that at this Rule 12(b)(6) stage, Plaintiffs have stated a claim that it was the “intention” of Defendants to “satisfy” the mortgage based on its Form 1099-C letter. There may be “evidence” that Defendants did not intend for the Form 1099-C letter to act as a discharge of the mortgage, which can be developed through discovery. However, no cases in this Circuit or in Michigan have held that under the Michigan statute governing discharges of mortgages, MCL § 565.41, the Form 1099-C letter does not constitute a discharge of the underlying mortgage and, applies to the “otherwise satisfied” language of the statute. As noted above, the Courts in Michigan interpreting MCL § 565.41 have reviewed “evidence” to determine whether the “otherwise satisfied” language was fulfilled as to the intention of the mortgagee to discharge the mortgage.

III. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. No. 5) is DENIED.

IT IS FURTHER ORDERED that Defendants file an Answer by April 7, 2014.

IT IS FURTHER ORDERED that a Scheduling Conference is set in this matter for April 28, 2014, 2:00 p.m.

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HSBC Bank USA, N.A. v Hamilton | NY APPEALS CT. – plaintiff failed to meet its burden of proving by a preponderance of the evidence that jurisdiction over the appellant was obtained by proper service of process

HSBC Bank USA, N.A. v Hamilton | NY APPEALS CT. – plaintiff failed to meet its burden of proving by a preponderance of the evidence that jurisdiction over the appellant was obtained by proper service of process

Decided on April 2, 2014

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
2013-06598
(Index No. 19173/09)

[*1]HSBC Bank USA, National Association, respondent, v

Patricia Hamilton, appellant, et al., defendants.

Rubin & Licatesi, P.C., Garden City, N.Y. (Amy J. Zamir of
counsel), for appellant.
Sheldon May & Associates, P.C. (Stim & Warmuth, P.C.,
Farmingville, N.Y. [Glenn P.
Warmuth], of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Patricia Hamilton appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated March 29, 2013, which, after a hearing to determine the validity of service of process, in effect, denied those branches of her motion which were pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court (Adler, J.), dated November 22, 2011, entered against her upon her failure to appear or answer, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law and the facts, with costs, and those branches of the motion of the defendant Patricia Hamilton which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale dated November 22, 2011, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction are granted.

This Court possesses authority to review a determination rendered after a hearing that is as broad as that of the hearing court, and may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Lopez v DePietro, 82 AD3d 715, 716; American Home Mtge. v Villaflor, 80 AD3d 637).

At the hearing, the plaintiff’s process server, who refreshed his recollection with contemporaneous records, testified that he served the appellant with the summons and complaint by employing the personal delivery and mail method pursuant to CPLR 308(2), by delivering, inter alia, a copy of the summons and complaint to Ashley Hamilton, a member of the appellant’s family, at the appellant’s residence in Mount Vernon, and thereafter “doing a follow-up mailing.” The Supreme Court properly found that the process server could not have delivered the summons and complaint to Ashley, since Ashley established through her testimony and documentary evidence that she was physically in Petersburg, Virginia, at college, on the date delivery was allegedly made to her in Mount Vernon (see Washington Mutual Bank v Holt, 113 AD3d at 755; Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074, 1075). However, the Supreme Court’s finding that the process server [*2]delivered the summons and complaint to the appellant’s youngest daughter, who, at the time of service, was 15 ½ years old, was not warranted by the facts (cf. Samet v Binson, 67 AD3d 988; Ortiz v Jamwant, 305 AD2d 477, 478). There was insufficient evidence at the hearing to establish that the description in the affidavit of service matched the actual appearance of the appellant’s youngest daughter (see Warney v Haddad, 194 AD2d 478, 479; Matter of Chemical Bank v Davis, 133 AD2d at 757; Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139). Furthermore, neither the affidavit of service nor the process server’s testimony established that the summons and complaint were mailed to the appellant’s last known residence (see CPLR 308[2]).

Viewing the evidence in its totality, the plaintiff failed to meet its burden of proving by a preponderance of the evidence that jurisdiction over the appellant was obtained by proper service of process (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343). Accordingly, the Supreme Court should have granted those branches of the appellant’s motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered against her and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

The appellant’s remaining contention has been rendered academic.
RIVERA, J.P., DICKERSON, COHEN, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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U.S. Bank N.A. v Friedman | NYSC – Plaintiff having failed to establish that it owned the Note on the date this case was commenced, it does not have standing to maintain this action

U.S. Bank N.A. v Friedman | NYSC – Plaintiff having failed to establish that it owned the Note on the date this case was commenced, it does not have standing to maintain this action

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
—————————————————————–)(
U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR MAS TR ADJUSTABLE RA TE
MORTGAGES TRUST 2007-1, MORTGAGE PASSTHROUGH
CERTIFICATES, SERIES 2007-1,
Plaintiff,

-against-

LEONARD FRIEDMAN, KARYN FRIEDMAN,
NATIONAL CITY BANK, and “JOHN DOE#l”
through “JOHN DOE#lO” the last ten names
being fictitious and unknown to the Plaintiff, the
person or parties intended being the person or parties,
if any, having or claiming an interest or lien upon
the mortgaged premises described in the complaint,
Defendants.
——————————————————————)

LOEHR, J.
Index No.: 032128/11
In this foreclosure action, the Court, in a Decision and Order dated June 28, 2013, having
granted the Plaintiff summary judgment as to the execution and delivery of the Note and
Mortgage and the Defendants’ default thereunder, but have denied summary judgment on the
issue of Plaintiffs standing- specifically, when the Original Note, indorsed by the original
lender, had been delivered to Plaintiff1
– the matter was tried before me on February 28, 2014,
and the Plaintiff called as its sole witness, Rashad Blanchard, an employee of Ocwen, which
subsequently became the servicer of this loan. Mr. Blanchard testified that Plaintiff had
possession of the original indorsed Note based on: 1) his having examined it approximately 30
days ago and 2) that the original indorsed Note had been delivered to Plaintiff on April 16, 2007
based on the records of the original servicer, Well Fargo Bank. As Plaintiff failed to lay a proper
foundation for the admission of the Well Fargo Bank records, they are inadmissible hearsay
(Unifund CCR Partners v Youngman, 89 AD3d 1377, 1377-78 [4th Dept 2011]; Palisades
Collection, LLC v Kedik, 67 AD3d 1329 [4th Dept 2009]; accord JP Morgan Chase Bank, NA. v
Rads Group, Inc., 88 AD3d 766 [2d Dept 2011]) and all that has been established is that Plaintiff
had possession of the original indorsed Note some 30 days ago – long after this case was
commenced. Thus, Plaintiff having failed to establish that it owned the Note on the date this case
was commenced, it does not have standing to maintain this action and the Complaint is dismissed
on that basis.

This constitutes the decision and order of the Court.
Dated: New City, New York
March 21, 2014

HINSHAW & CULBERTSON LLP
Attorneys for Plaintiff
780 Third Avenue
New York, NY 10017

LAW OFFICES OF ALLEN A. KOLBER, ESQ.
Attorneys for the Borrowers
134 Rt. 59, Suite A
Suffern, NY 10901

1 With respect to standing, where, as here, a defendant has put standing in issue, the
plaintiff must prove its standing, that is that it had been assigned the mortgage and note prior to
the commencement of the foreclosure (Deutsche Bank National Trust Company v Haller (100
AD3d 680, 682 [2d Dept 2012]). A valid assignment can be effectuated by a written assignment
of the mortgage and note executed by one with authority, or by indorsement and delivery of the
note – the mortgage following the note by operation of law (Bank of New York v Silverberg, 86
AD3d 274 [2d Dept 2011]; US. Bank, NA. v Collymore, 68 AD3d 752 [2d Dept 2009]).
Here, the documents show that MERS purported to assign the Note and Mortgage on
behalf of ABC to Plaintiff on August 1 7, 2011. As MERS had no apparent authority to assign the
Note, this assignment assigned nothing (Bank of New York v Silverberg, 86 AD3d 274 [2d Dept
274 [2d Dept 2011]; Aurora Loan Services, LLC v Weisblum (85 AD3d 95 [2d Dept 2011]).
Plaintiff, however, does not now rely on this written assignment but on an assignment by
delivery of the Note under an undated indorsement prior to the commencement of the case. In
support thereof, Plaintiff has submitted the Note, indorsed by an officer of ABC, and the
Affidavit of an Assistant Vice President of American Home who avers, “based on the books and
records of Plaintiff and [American Home],” that the indorsed Note had been delivered to Plaintiff
“since on or before January 16, 2007.” These records have not been submitted nor an explanation
why, if they did, Plaintiff felt the need to do a written assignment in 2011.
Deutsche Bank National Trust Company v Haller (100 AD3d 680, 682 [2d Dept 2102])
now requires more stringent proof where a plaintiff is trying to prove standing by delivery of the
note under an undated indorsement, particularly where the plaintiff’s conduct has been
inconsistent with such asserted prior assignment. Thus, in Haller, where the plaintiff was
asserting standing by virtue of a note delivered under an undated indorsement, the Second
Department said:
“Here, the evidence submitted by the Plaintiff in support of its motion did not
demonstrate that the note was physically delivered to it prior to the comrnencernent of the
action. The affidavit from the plaintiffs servicing agent did not give any factual details of
a physical delivery of the note and, thus failed to establish that the plaintiff had physical
possession of the note prior to commencing this action.”

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SAMAROO vs WELLS FARGO BANK, ETC., ET AL., | FL 5DCA – Para 22 – Wells Fargo contends that it “substantially” complied with the contractual notice requirements, an argument we cannot credit.

SAMAROO vs WELLS FARGO BANK, ETC., ET AL., | FL 5DCA – Para 22 – Wells Fargo contends that it “substantially” complied with the contractual notice requirements, an argument we cannot credit.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

Case No. 5D13-1585

PAMELA SAMAROO AND JESSIE SAMAROO,
Appellants,

v.

WELLS FARGO BANK, ETC., ET AL.,
Appellees.
________________________________/
Opinion filed March 28, 2014

Appeal from the Circuit Court
for Marion County,

Victor J. Musleh, Judge.

Henry W. Hicks and Adam J. Knight,
of Henry W. Hicks, P.A., Tampa,
for Appellants.

Jeffrey S. York and N. Mark New,
of McGlinchey Stafford, Jacksonville,
for Appellees.

GRIFFIN, J.

Pamela Samaroo and Jessie Samaroo ["the Samaroos"] appeal the entry of
summary final judgment of mortgage foreclosure in favor of Wells Fargo Bank, National
Association, as Trustee for the Holders of the First Franklin Mortgage Loan Trust 2006-
FF15 Mortgage Pass-Through Certificates, Series 2006-FF15 ["Wells Fargo"]. The
Samaroos raise three issues on appeal; we find merit in only one. We agree that Wells
Fargo failed to satisfy the notice requirement of section 22 of the mortgage as a condition
precedent to foreclosure.

On April 8, 2009, Wells Fargo filed its complaint to foreclose on the Samaroos’
mortgage. Wells Fargo alleged that there had been a default under the note and
mortgage, and that all conditions precedent to the filing of the action had been performed
or had occurred. The Samaroos filed an amended answer and affirmative defenses,
asserting, among other defenses, that Wells Fargo had failed to give the Samaroos notice
of default in compliance with paragraph 22 of the mortgage.

Wells Fargo filed a motion for summary final judgment, asserting that the material
facts were not in dispute, that it had standing to foreclose the mortgage as it was the
owner and holder of the note and mortgage, and that Pamela Samaroo was in default,
had been sent a default letter, and owed amounts as identified in an attached affidavit of
indebtedness. Wells Fargo asserted that “a notice of default letter was sent to Defendant
Pamela Samaroo, in accordance with Paragraph 22 of the Mortgage, on December 17,
2008.” It ultimately argued: “Accordingly, because Plaintiff provided the notice of default
in compliance with paragraph 22 of the Mortgage, Defendants’ Tenth, Nineteenth, and
Twentieth Affirmative Defenses do not bar entry of Final Summary Judgment.”

Attached to Wells Fargo’s motion for summary final judgment are an affidavit in
support of the motion and an affidavit of indebtedness. Affiant, Deborah A. Schroeder
["Schroeder"], represented that she was an officer at Select Portfolio Servicing, Inc.
["SPS"], and that SPS serviced the mortgage loan for Wells Fargo. In paragraph 13 of
her affidavit, she stated:

The Loan Records reflect that on December 17, 2008, a
default letter was sent to Defendant Pamela Samaroo,
pursuant to Paragraph 22 of the Mortgage, informing her of
the default and providing the amounts due under the Note. A
copy of the acceleration/default letter is attached hereto as
Exhibit “E.”

The trial court conducted a hearing on Wells Fargo’s motion for summary final judgment
and entered summary final judgment in favor of Wells Fargo.

The Samaroos’ tenth affirmative defense asserted that Wells Fargo failed to give
notice of default that complied with the notice requirements set forth in paragraph 22 of
the mortgage. Paragraph 22 of the mortgage provides:

Acceleration; Remedies. Lender shall give notice to
Borrower prior to acceleration following Borrower’s
breach of any covenant or agreement in this Security
Instrument (but not prior to acceleration under Section 18
unless Applicable Law provides otherwise). The notice
shall specify: (a) the default; (b) the action required to
cure the default; (c) a date, not less than 30 days from the
date the notice is given to Borrower, by which the default
must be cured; and (d) that failure to cure the default on
or before the date specified in the notice may result in
acceleration of the sums secured by this Security
Instrument, foreclosure by judicial proceeding and sale
of the Property. The notice shall further inform Borrower
of the right to reinstate after acceleration and the right to
assert in the foreclosure proceeding the non-existence of
a default or any other defense of Borrower to acceleration
and foreclosure. If the default is not cured on or before
the date specified in the notice, Lender at its option may
require immediate payment in full of all sums secured by
this Security Instrument without further demand and may
foreclose this Security Instrument by judicial proceeding.
Lender shall be entitled to collect all expenses incurred
in pursuing the remedies provided in this Section 22,
including, but not limited to, reasonable attorneys’ fees
and costs of title evidence.

To refute the Samaroos’ affirmative defense that Wells Fargo failed to give the
Samaroos notice prior to acceleration that complied with the notice requirements set forth
in paragraph 22 of the mortgage, Wells Fargo relied upon the default letter that is attached
to the affidavit in support of its motion for summary judgment. However, it is apparent in
comparing the letter to the requirements of paragraph 22 that it does not comply with the
notice requirements set forth in paragraph 22 of the mortgage. Importantly, it does not
inform the Samaroos of their right to reinstate after acceleration. Rather, it informs the
Samaroos that the “acceptance of one or more payments for less than the amount
required to cure the default shall not be deemed to reinstate [their] loan or waive any
acceleration of the loan.” This in no way suggests the right to reinstate after acceleration.
See Kurian v. Wells Fargo Bank, Nat’l Ass’n, 114 So. 3d 1052, 1055 (Fla. 4th DCA 2013)
(“[The letter attached to the Complaint] did not advise of the default, provide an
opportunity to cure, or provide thirty days in which to do so. The letter attached to the
Complaint did not satisfy section 22′s requirements.”); Judy v. MSMC Venture, LLC, 100
So. 3d 1287, 1289 (Fla. 2d DCA 2012).

Wells Fargo contends that it “substantially” complied with the contractual notice
requirements, an argument we cannot credit. None of the cases cited by Wells Fargo
involved compliance with pre-acceleration notice requirements contained in a mortgage.

Its own mortgage specified the important information that it was bound to give its borrower
in default, and it simply failed to do so.1

REVERSED and REMANDED.
TORPY, C.J. and EVANDER, J., concur.

1 Wells Fargo also relies on our opinion in Godshalk v. Countrywide Home Loans
Servicing, L.P., 81 So. 3d 626, 626 (Fla. 5th DCA 2012), for the proposition that the
Samaroos’ denial of Wells Fargo’s claim that it had met all conditions precedent to
foreclosure was not sufficiently specific or particular as required by Florida Rule of Civil
Procedure 1.120(c). We reject this argument. The Samaroos specifically asserted a
failure to comply with the notice provisions of paragraph 22 of the mortgage. That
paragraph specifies only five components of the notice that the bank must give. The
failure to include the right to reinstate the mortgage after acceleration is an obvious and
crucial omission.

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Prashant Gopal: Hedge Funds Unlikely Saviors for New York-Area Homeowners

Prashant Gopal: Hedge Funds Unlikely Saviors for New York-Area Homeowners

Bloomberg-

Louis Ragusa, who hasn’t paid his mortgage in two years, says he now has a chance to save his Blackwood, New Jersey, home from foreclosure after a hedge fund bought the loan.

American Homeowner Preservation, a Chicago-based investment firm, purchased the mortgage for less than half of what Ragusa owed. Chief Executive Officer Jorge Newbery called the father of three in August with an offer: Pay $5,000 and the company will drop the foreclosure case and erase the more than $100,000 of unpaid principal and penalties amassed.

“They’re a lot more flexible than a bank,” said Ragusa, 48, who ran into financial trouble after losing his job in collections for a cable company in 2007. “They can work with you because they’re a private company and they can basically set their own rules.”

[BLOOMBERG]

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Wells Fargo Bank, N.A. v Ostiguy | NYSC – Motion to Reargue Denied …that the loan was transferred or sold or no longer belonged to Wells Fargo, and yet the Note remained it its possession.

Wells Fargo Bank, N.A. v Ostiguy | NYSC – Motion to Reargue Denied …that the loan was transferred or sold or no longer belonged to Wells Fargo, and yet the Note remained it its possession.

Decided on February 24, 2014

Wells Fargo Bank, N.A., Plaintiffs,

against

Pierre N. Ostiguy, ELAINE R. THOMAS, “JOHN DOE #1″ to “JOHN DOE No.10,”, the last 10 names being fictitious and unknown to the plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.

4064-12

Hogan Lovells US LLP

David Dunn, Esq., and

Robin L. Muir, Esq., of counsel

875 Third Avenue

New York, New York 10022

Kim DSouza, Esq.

Attorney for Defendants

2 Bordi Lane

Highland, New York 12528

Henry F. Zwack, J.

DECISION/ORDER

Zwack, J. [*2]

Wells Fargo Bank, NA moves for an order pursuant to CPLR § 2221 for leave to renew and reargue its prior motion for summary judgment. That prior motion resulted in a Decision and Order dated August 27, 2013, which denied plaintiff’s motion for summary judgment dismissing defendants Answer, and granted defendants’ cross-motion for dismissal of the complaint for lack of standing. Defendants Pierre N. Ostiguy and Elaine R. Thomas oppose the motion to renew or reargue.

In its Decision and Order of August 27, 2013, this Court found that the plaintiff’s ownership of in the loan was sold to Freddie Mac with insufficient evidence that plaintiff retained an interest in the mortgage sufficient to establish standing. Plaintiff’s prior affidavit in support of summary judgment dismissing the Answer made no mention of the salient fact that the loan had been sold and or transferred, calling into question the entire affidavit. Plaintiff now seeks to renew based upon a more specific affidavit that addresses the very question that got the complaint dismissed in the first place—the issue of who is the holder of the note. Defendants argue that the introduction of this new affidavit is impermissible, as it is neither new information nor has a reasonable excuse been proffered for plaintiff’s failure to produce it on the original summary judgment motion.

CPLR § 2221 governs motions affecting prior orders, and such motions are either motions to reargue or for leave to renew, and the statute requires that they be identified as one or the other. Here, according to plaintiff, the motion is both.

A motion to reargue is based upon matters or fact or law allegedly overlooked or misapprehended by the Court in determining a prior motion, but shall not include any mattersof fact not offered on the prior motion (Diorio v City of New York, 202 AD2d 625 [2d Dept 1994]; CPLR 2211 [d][2]). It is well established that reargument does not provide a party with the opportunity to advance arguments different from those tendered in the original application, and renewal is not a second chance freely given to parties who have not exercised due diligence in making their factual presentation (Rubenstein v Goldman, 225 AD2d 328 [lst Dept 1996]; Tibbets v Verizon, 40 AD3d 1300 [3d Dept 2007]).

As a motion for leave to renew, it “must be based upon new facts, not offered on the prior motion, that would change the prior determination and the party seeking renewal must have a reasonable justification’ for the failure to present such facts on the original motion” (Joseph v Simmons, 979 N.Y.S.2d 675, 2014 NY Slip Op. 00634 [2d Dept 2014], citing CPLR 2221[e][3]; Matter of Korman v Bellmore Pub. Schools, 62 AD3d 882, 884 [2d Dept 2009]). The moving party must articulate the specific reasons why the new evidence it seeks to introduce could not have been discovered at the time of the original motion (Binghamton Plaza, Inc. v Fashion Bug No. 2470 of Binghamton, Inc., 252 AD2d 870 [3d Dept 1998]). It is also well established “that successive motions for summary judgment should not be made in the guise of motions to renew where the new’ material’ could have been submitted with the original motion for summary judgment’” (Laxrand Construction Corp v R.S.C.A. Realty Corp., 135 AD2d 685, 686 [2d Dept 1987], quoting Rose v La Joux, 93 AD2d 817, 818 [2d Dept 1983]).

As a motion to renew, plaintiff urges the Court to accept as fact the information contained in the new affidavit of its Vice President of Loan Documentation, Angela Frye. Plaintiff asserts that it verily believed the affidavit it submitted on the original motion was sufficient to establish that it was the holder of the note, but as the Court was not satisfied with the original affidavit it proffered, it has now submitted a more detailed affidavit. The affidavit of Angela Frye avers that plaintiff has physical possession of the note, and has had possession with the exception of a period of time it was [*3]in the possession of plaintiff’s counsel. The Court is not persuaded by the new affidavit, finding that the failure to refer to the sale of the loan to Freddie Mac on the original motion was more than an insignificant oversight. Here, plaintiff was well aware that standing was a contested issue, having been raised in the Answer, and proof of the same having been requested by defendants through discovery.[FN1] When defendants cross-moved to dismiss the complaint for lack of standing, clearly plaintiff was on notice that it’s affidavit was insufficient — and it was at that point that an affidavit such as Ms. Frye’s (presenting the requisite facts then known to plaintiff) should have been produced (Rose, 93 AD2d 817).

That plaintiff got it wrong on the original motion — whether it believed it had sufficiently addressed standing — or, as it claims, “the evidentiary standing required to demonstrate standing in a mortgage foreclosure action is a relatively new issue and the case law is constantly evolving, however erroneous, are inadequate justification for leave to renew and allow the submission of the “new” information (Whitaker v McGee, 95 AD2d 984 [3d Dept 1983]).

Instead of proving its case on the original summary judgment motion, now plaintiff is impermissibly attempting to cure a defect in its prior moving papers which due diligence could have prevented (Orchard Hotel, LLC v D.A.B. Group, LLC, 2014 WL 593182 [N.Y.A.D. 1 Dept. 2014], citing Weinstock v Handler, 251 AD2d 184 [lst Dept 1998], lv dismissed 92 NY2d 946 [1998]).

As a motion to reargue, the Court is unpersuaded by the arguments that it overlooked or misapprehended the law. Plaintiff argues that as the holder of the note it was entitled to enforce it. The Court does not disagree, but again points out that plaintiff’s summary judgment motion was denied because plaintiff then failed to establish that it was the holder of the note. Remarkably absent from Ms. Frye’s affidavit is any explanation as to what the Court viewed as a serious discrepancy — that the loan was transferred or sold or no longer belonged to Wells Fargo, and yet the Note remained it its possession.

Accordingly, it is

ORDERED, that the motion by plaintiff Wells Fargo Bank, N.A. for leave to renew and reargue the prior motion for summary judgment, and for summary judgment on its Complaint is denied.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorney for the defendants. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:February 24, 2014

Troy, New York

________________________________________ [*4]

Henry F. Zwack

Acting Supreme Court Justice

Papers Considered:

1.Notice of Motion dated October 31, 2013; Affidavit of Angela M. Freye, sworn to October 30, 2013, together with Exhibits “1″ through “2″; Affirmation by Robin L. Muir, Esq., dated October 31, 2013, together with Exhibits “1″ through “5″; Memorandum of Law by David Dunn, Esq., and Robin L. Muir, Esq., dated October 31, 2013;

2.Affirmation in Opposition by Kim DSouza, Esq., dated November 7, 2013;

3.Reply Memorandum of Law by David Dunn, Esq., and Robin L. Muir, Esq., dated November 19, 2013.

Footnotes

Footnote 1:Plaintiffs objected to the discovery request that it provide proof that it was the holder of the note.

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BANK OF NEW YORK AS TRUSTEE vs HANNIBLE | FL 8th JUD. Cir. – ORDER GRANTING MOTION FOR RELIEF AND VACATING FINAL JUDGMENT AND JUDICIAL SALE

BANK OF NEW YORK AS TRUSTEE vs HANNIBLE | FL 8th JUD. Cir. – ORDER GRANTING MOTION FOR RELIEF AND VACATING FINAL JUDGMENT AND JUDICIAL SALE

IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR ALACHUA COUNTY, FLORIDA

BANK OF NEW YORK AS TRUSTEE
FOR THE CIRTIFICATES HOLDERS CWABS,
INC., ASSET-BACKED CERTIFICATES
SERIES 2005-14,
Plaintiff,

v.

OLIVIA HANNIBLE, et al.,
Defendants.

ORDER GRANTING MOTION FOR RELIEF AND VACATING FINAL JUDGMENT
AND JUDICIAL SALE

THIS CAUSE came before the Court on Defendant Olivia Parler’s (formerly Olivia Hannible)
motion and amended motion to stay writ of possession, motion for relief from final judgment, and
motion to set aside judicial sale. All parties were properly noticed. Attorney Glorimil Walker
appeared on behalf of Defendant Olivia Parler, and Attorneys Bruce Brashear and Peter Focks
appeared on behalf of Jonphe Guilamo, the movant for writ of possession (as assignee of the
subject property from Plaintiff following judicial sale). By separate Order, the Court has granted the
Defendant’s motion to stay writ of possession.

Defendant’s present motion for relief from final judgment is essentially the renewal of a
motion made by Defendant much earlier in this litigation that has never been ruled upon. The
complaint in this mortgage foreclosure action was filed on December 28, 2007. The Defendants,
Olivia Hannible and James Hannible, did not answer the complaint after it was served upon them,
and a default was entered as to both of them on March 27, 2008. Thereafter, the Plaintiff moved for
summary final judgment. Despite having included in its complaint a count for re-establishment of a
lost note, Plaintiff filed what it purported to be the original adjustable rate note and original mortgage.
Plaintiff is not the original payee and mortgagee, but claimed to be the owner and holder thereof.

Plaintiff’s motion for summary judgment was set for hearing, canceled and rescheduled several
times. Eventually the case was referred to a general magistrate. At a conference with the general
magistrate, the Plaintiff appeared1 and a date was set for a non-jury trial before the general
magistrate. It appears that the notice setting this non-jury trial which was sent to Defendant Olivia
Parler was returned due to an insufficient address. Thereafter, Plaintiff set and served notice of a
hearing on its motion for summary judgment, setting it for the same date and time as the non-jury
trial, but indicating that its motion would be heard by a circuit judge, not the general magistrate. This
notice was sent to Defendant at an address which appears to be the same address at which
Defendant was originally served with process. Then, approximately ten days before the scheduled
hearing and non-jury trial, Plaintiff’s counsel served a notice of cancellation of the hearing which it
had scheduled before the judge. The non-jury trial before the magistrate, however, was held, and
the transcript indicates that the Defendant, who did not receive proper notice, did not appear.
Thereafter the magistrate filed a report and recommendation and a final judgment of foreclosure,
which included items of unliquidated damages, was entered by the Court. Approximately three
weeks after service of the final judgment of foreclosure, the Defendant filed a “Motion to Cancel
Sale”,2 pro se. In this motion, the Defendant claimed that she was not afforded the opportunity to be
present at the non-jury trial because she had received a notice from Plaintiff’s counsel that the only
hearing she knew about had been canceled. Shortly thereafter, Plaintiff also filed a motion to cancel
the sale because it needed additional time to assure compliance with a consent order entered in a
matter involving the U.S. Department of Justice and the Florida Attorney General’s office. Although
both parties were at that time requesting the cancellation of the foreclosure sale, the Plaintiff’s
motion was denied. There is no indication, however, of any ruling with respect to the Defendant’s
motion to cancel sale (or for relief from judgment entered without notice).
Perceiving that the Court’s denial of the Plaintiff’s motion to cancel sale was an indication that the sale would not be canceled,

the pro se Defendant then filed an appeal on the day before the scheduled sale. It was described
as an appeal of the denial of the motion to cancel sale. Nonetheless, the sale took place on the
following day, and the schedule of bids indicates that Plaintiff was the successful bidder. This first
appeal by the pro se Defendant was eventually dismissed because the Defendant could not comply
with the requirement that she file a conformed copy of the order being appealed. There never
having been an order entered on her motion to cancel sale, this would have been impossible to do.
Regardless, Defendant tried in various inartful ways to request that the sale and the certificate of
sale be “revoked”, repeating her claim that she had never had an opportunity to be present at the
non-jury trial which resulted in entry of the final judgment of foreclosure.

A second appeal was filed with respect to denial of another post-judgment motion by
Defendant. This appeal was initially dismissed and then reinstated. As part of that pending appeal,
an order requiring Defendant to post a $5,000 bond to avoid a writ of possession was reviewed and
approved. Both parties agree that the matters under present consideration by this court would not
interfere with the issues pending in the appellate court, although that appeal would certainly be
impacted and rendered moot if the final judgment (which is not on appeal) was vacated.
Although defaulted, and precluded from contesting liability, the Defendant is still entitled to
be heard on the issue of unliquidated damages. Donohue v. Brightman, 939 So. 2d 1162 (Fla. 4th
DCA 2006). No motion has ever been made which seeks to challenge or set aside the entry of
default against the Defendant, and the time to do so based on excusable neglect has expired.

Accordingly, it is hereby ORDERED AND ADJUDGED:

1. The final judgment of foreclosure is vacated and set aside. The judicial sale
is likewise set aside.

2. This matter will be set for a case management conference for the purpose of
establishing a new non-jury trial date on the issue of damages and any other
issues not otherwise precluded by entry of default.

3. Until further order of the Court, all remaining issues herein will be set before
and resolved by the undersigned judge unless and until reassigned.

DONE AND ORDERED in Chambers, at Gainesville, Alachua County, Florida on this 21
day of March 2014.
__________________________________
TOBY S. MONACO, CIRCUIT JUDGE

I HEREBY CERTIFY that copies have been furnished by e-mail delivery and/or U.S. Mail on
March 21, 2014, to the following:

Peter C. Focks, Esq.
pfocks@nflalaw.com

Michael Bruning, Esq
mbruning@acdlaw.com

Tricia J. Druthiers, Esq.
tjd@lgplaw.com

J. Raldolph Liebler, Esq.
service@lgplaw.com

Smith, Hiatt & Diaz, P.A.
answers@shdlegalgroup.com

Glorimil R. Walker, Esq.
Three Rivers Legal Services
Gloria.walker@trls.org

_____________________________________
Mary A. Jarvis, Judicial Assistant

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Federal judge took Wells Fargo to task over loan filings

Federal judge took Wells Fargo to task over loan filings

ALL the banks operate via the same manuals…Here is the 150-page Wells Fargo Foreclosure Attorney Procedures Manual created November 9, 2011 and updated February 24, 2012. & Here is the Wells Fargo Home Mortgage Foreclosure Affidavit Processing Training Manual


NYPOST-

A federal judge in New York blasted mega-bank Wells Fargo for submitting a “fraudulent” foreclosure document to the court under penalty of perjury, according to a hearing transcript.

Robert Drain, a US Bankruptcy Judge in White Plains, slammed the bank at a March 1, 2012, hearing that was part of the Chapter 13 bankruptcy case of Westchester resident Cynthia Carssow Franklin.

Earlier this month, Carssow Franklin’s attorney, Linda Tirelli, put forward an emergency request to reopen the discovery phase of the trial in light of the existence of two watershed documents: a Wells Fargo Foreclosure Attorney Procedures Manual, and a foreclosure-paperwork order form on Wells Fargo letterhead.

[NEW YORK POST]

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GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
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Jamie Ranney, www.NantucketLaw.pro
Kenneth Eric Trent, www.ForeclosureDestroyer.com
Susan Chana Lask, www.appellate-brief.com

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