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Full Deposition Of ERICA JOHNSON SECK Former Fannie Mae, WSB Employee

Full Deposition Of ERICA JOHNSON SECK Former Fannie Mae, WSB Employee

Courtesy of Legal Services of New Jersey

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[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: ONEWEST BANK v. DRAYTON (3)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: ONEWEST BANK v. DRAYTON (3)

STRIKE 1, STRIKE 2,

STRIKE 3…below

.

2010 NY Slip Op 20429

ONEWEST BANK, F.S.B., Plaintiff,
v.
COVAN DRAYTON, ET AL., Defendants.

15183/09.Supreme Court, Kings County.

Decided October 21, 2010.Gerald Roth, Esq., Stein Wiener and Roth, LLP, Carle Place NY, Defendant did not answer Plaintiff.

ARTHUR M. SCHACK, J.

In this foreclosure action, plaintiff ONEWEST BANK, F.S.B. (ONEWEST), moved for an order of reference and related relief for the premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), upon the default of all defendants. The Kings County Supreme Court Foreclosure Department forwarded the motion papers to me on August 30, 2010. While drafting this decision and order, I received on October 14, 2010, in the midst of the present national media attention about “robo-signers,” an October 13, 2010-letter from plaintiff’s counsel, by which “[i]t is respectfully requested that plaintiff’s application be withdrawn at this time.” There was no explanation or reason given by plaintiff’s counsel for his request to withdraw the motion for an order of reference other than “[i]t is our intention that a new application containing updated information will be re-submitted shortly.”

The Court grants the request of plaintiff’s counsel to withdraw the instant motion for an order of reference. However, to prevent the waste of judicial resources, the instant foreclosure action is dismissed without prejudice, with leave to renew the instant motion for an order of reference within sixty (60) days of this decision and order, by providing the Court with necessary and additional documentation.

First, the Court requires proof of the grant of authority from the original mortgagee, CAMBRIDGE HOME CAPITAL, LLC (CAMBRIDGE), to its nominee, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), to assign the subject mortgage and note on March 16, 2009 to INDYMAC FEDERAL BANK, FSB (INDYMAC). INDYMAC subsequently assigned the subject mortgage and note to its successor, ONEWEST, on May 14, 2009.

Second, the Court requires an affidavit from Erica A. Johnson-Seck, a conflicted “robo-signer,” explaining her employment status. A “robo-signer” is a person who quickly signs hundreds or thousands of foreclosure documents in a month, despite swearing that he or she has personally reviewed the mortgage documents and has not done so. Ms. Johnson-Seck, in a July 9, 2010 deposition taken in a Palm Beach County, Florida foreclosure case, admitted that she: is a “robo-signer” who executes about 750 mortgage documents a week, without a notary public present; does not spend more than 30 seconds signing each document; does not read the documents before signing them; and, did not provide me with affidavits about her employment in two prior cases. (See Stephanie Armour, “Mistakes Widespread on Foreclosures, Lawyers Say,” USA Today, Sept. 27, 2010; Ariana Eunjung Cha, “OneWest Bank Employee: Not More Than 30 Seconds’ to Sign Each Foreclosure Document,” Washington Post, Sept. 30, 2010).

In the instant action, Ms. Johnson-Seck claims to be: a Vice President of MERS in the March 16, 2009 MERS to INDYMAC assignment; a Vice President of INDYMAC in the May 14, 2009 INDYMAC to ONEWEST assignment; and, a Vice President of ONEWEST in her June 30, 2009-affidavit of merit. Ms. Johnson-Seck must explain to the Court, in her affidavit: her employment history for the past three years; and, why a conflict of interest does not exist in the instant action with her acting as a Vice President of assignor MERS, a Vice President of assignee/assignor INDYMAC, and a Vice President of assignee/plaintiff ONEWEST. Further, Ms. Johnson-Seck must explain: why she was a Vice President of both assignor MERS and assignee DEUTSCHE BANK in a second case before me, Deutsche Bank v Maraj, 18 Misc 3d 1123 (A) (Sup Ct, Kings County 2008); why she was a Vice President of both assignor MERS and assignee INDYMAC in a third case before me, Indymac Bank, FSB, v Bethley, 22 Misc 3d 1119 (A) (Sup Ct, Kings County 2009); and, why she executed an affidavit of merit as a Vice President of DEUTSCHE BANK in a fourth case before me, Deutsche Bank v Harris (Sup Ct, Kings County, Feb. 5, 2008, Index No. 35549/07).

Third, plaintiff’s counsel must comply with the new Court filing requirement, announced yesterday by Chief Judge Jonathan Lippman, which was promulgated to preserve the integrity of the foreclosure process. Plaintiff’s counsel must submit an affirmation, using the new standard Court form, that he has personally reviewed plaintiff’s documents and records in the instant action and has confirmed the factual accuracy of the court filings and the notarizations in these documents. Counsel is reminded that the new standard Court affirmation form states that “[t]he wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel.”

Background

Defendant COVAN DRAYTON (DRAYTON) executed the subject

mortgage and note on January 12, 2007, borrowing $492,000.00 from CAMBRIDGE. MERS “acting solely as a nominee for Lender [CAMBRIDGE]” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD,” recorded the instant mortgage and note on March 19, 2007, in the Office of the City Register of the City of New York, at City Register File Number (CRFN) XXXXXXXXXXXXX. Plaintiff DRAYTON allegedly defaulted in his mortgage loan payment on September 1, 2008. Then, MERS, as nominee for CAMBRIDGE, assigned the instant nonperforming mortgage and note to INDYMAC, on March 16, 2009. Erica A. Johnson-Seck executed the assignment as a Vice President of MERS, as nominee for CAMBRIDGE. This assignment was recorded in the Office of the City Register of the City of New York, on March 24, 2009, at CRFN XXXXXXXXXXXX. However, as will be discussed below, there is an issue whether MERS, as CAMBRIDGE’s nominee, was authorized by CAMBRIDGE, its principal, to assign the subject DRAYTON mortgage and note to plaintiff INDYMAC. Subsequently, almost two months later, Ms. Johnson-Seck, now as a Vice President of INDYMAC, on May 14, 2009, assigned the subject mortgage and note to ONEWEST. This assignment was recorded in the Office of the City Register of the City of New York, on May 22, 2009, at CRFN XXXXXXXXXXXXX. Plaintiff ONEWEST commenced the instant foreclosure action on June 18, 2009 with the filing of the summons, complaint and notice of pendency. On August 6, 2009, plaintiff ONEWEST filed the instant motion for an order of reference. Attached to plaintiff ONEWEST’s moving papers is an affidavit of merit by Erica A. Johnson-Seck, dated June 30, 2009, in which she claims to be a Vice President of plaintiff ONEWEST. She states, in ¶ 1, that “[t]he facts recited herein are from my own knowledge and from review of the documents and records kept in the ordinary course of business with respect to the servicing of this mortgage.” There are outstanding questions about Ms. Johnson-Seck’s employment, whether she executed sworn documents without a notary public present and whether she actually read and personally reviewed the information in the documents that she executed.

July 9, 2010 deposition of Erica A. Johnson-Seck in the Machado case

On July 9, 2010, nine days after executing the affidavit of merit in the instant action, Ms. Johnson-Seck was deposed in a Florida foreclosure action, Indymac Federal Bank, FSB, v Machado (Fifteenth Circuit Court in and for Palm Beach County, Florida, Case No. 50 2008 CA 037322XXXX MB AW), by defendant Machado’s counsel, Thomas E. Ice, Esq. Ms. Johnson-Seck admitted to being a “robo-signer,” executing sworn documents outside the presence of a notary public, not reading the documents before signing them and not complying with my prior orders in the Maraj and Bethley decisions. Ms. Johnson-Seck admitted in her Machado deposition testimony that she was not employed by INDYMAC on May 14, 2009, the day she assigned the subject mortgage and note to ONEWEST, even though she stated in the May 14, 2009 assignment that she was a Vice President of INDYMAC. According to her testimony she was employed on May 14, 2010 by assignee ONEWEST. The following questions were asked and then answered by Ms. Johnson Seck, at p. 4, line 11-p. 5, line 4:

Q. Could you state your full name for the record, please.

A. Erica Antoinette Johnson-Seck.

Q. And what is your business address?

A. 7700 West Parmer Lane, P-A-R-M-E-R, Building D, Austin, Texas 78729.

Q. And who is your employer?

A. OneWest Bank.

Q. How long have you been employed by OneWest Bank?

A. Since March 19th, 2009.

Q. Prior to that you were employed by IndyMac Federal Bank, FSB?

A. Yes.

Q. And prior to that you were employed by IndyMac Bank, FSB?

A. Yes.

Q. Your title with OneWest Bank is what?

A. Vice president, bankruptcy and foreclosure.

Despite executing, on March 16, 2009, the MERS, as nominee for CAMBRIDGE, assignment to INDYMAC, as Vice President of MERS, she admitted that she is not an officer of MERS. Further, she claimed to have “signing authority” from several major banking institutions and the Federal Deposit Insurance Corporation (FDIC). The following questions were asked and then answered by Ms. Johnson-Seck, at p. 6, lines 5-21:

Q. Are you also an officer of Mortgage Electronic Registration Systems?

A. No.

Q. You have signing authority to sign on behalf of Mortgage Electronic Registration Systems as a vice president, correct?

A. Yes.

Q. Are you an officer of any other corporation?

A. No.

Q. Do you have signing authority for any other corporation?

A. Yes.

Q. What corporations are those?

A. IndyMac Federal Bank, Indymac Bank, FSB, FDIC as receiver for Indymac Bank, FDIC as conservator for Indymac, Deutsche Bank, Bank of New York, U.S. Bank. And that’s all I can think of off the top of my head.

Then, she answered the following question about her “signing authority,” at page 7, lines 3-10:

Q. When you say you have signing authority, is your authority to sign as an officer of those corporations?

A. Some.

Deutsche Bank I have a POA [power of attorney] to sign as attorney-in-fact. Others I sign as an officer. The FDIC I sign as attorney-in-fact. IndyMac Bank and IndyMac Federal Bank I now sign as attorney-in-fact. I only sign as a vice president for OneWest. Ms. Johnson-Seck admitted that she is not an officer of MERS, has no idea how MERS is organized and does not know why she signs assignments as a MERS officer. Further, she admitted that the MERS assignments she executes are prepared by an outside vendor, Lender Processing Services, Inc. (LPS), which ships the documents to her Austin, Texas office from Minnesota. Moreover, she admitted executing MERS assignments without a notary public present. She also testified that after the MERS assignments are notarized they are shipped back to LPS in Minnesota. LPS, in its 2009 Form 10-K, filed with the U.S. Securities and Exchange Commission, states that it is “a provider of integrated technology and services to the mortgage lending industry, with market leading positions in mortgage processing and default management services in the U.S. [p. 1]”; “we offer lenders, servicers and attorneys certain administrative and support services in connection with managing foreclosures [p. 4]”; “[a] significant focus of our marketing efforts is on the top 50 U.S. banks [p. 5]”; and, “our two largest customers, Wells Fargo Bank, N.A. and JP Morgan Chase Bank, N.A., each accounted for more than 10% of our aggregate revenue [p. 5].”LPS is now the subject of a federal criminal investigation related to its foreclosure document preparation. (See Ariana Eunjung Cha. “Lender Processing Services Acknowledges Employees Allowed to Sign for Managers on Foreclosure Paperwork,” Washington Post, Oct. 5, 2010). Last week, on October 13, 2010, the Florida Attorney-General issued to LPS an “Economic Crimes Investigative Subpoena Duces Tecum,” seeking various foreclosure documents prepared by LPS and employment records for various “robo-signers.” The following answers to questions were given by Ms. Johnson-Seck in the Machado deposition, at p. 116, line 4-p. 119, line 16:

Q. Now, given our last exchange, I’m sure you will agree that you are not a vice president of MERS in any sense of the word other than being authorized to sign as one?

A. Yes.

Q. You are not —

A. Sorry.

Q. That’s all right. You are not paid by MERS?

A. No.

Q. You have no job duties as vice president of MERS?

A. No.

Q. You don’t attend any board meetings of MERS?

A. No.

Q. You don’t attend any meetings at all of MERS?

A. No.

Q. You don’t report to the president of MERS?

A. No.

Q. Who is the president of MERS?

A. I have no idea.

Q. You’re not involved in any governance of MERS?

A. No.

Q. The authority you have says that you can be an assistant secretary, right?

A. Yes.

Q. And yet you don’t report to the secretary —

A. No.

Q. — of MERS. You don’t have any MERS’ employees who report to you?

A. No.

Q. You don’t have any vote or say in any corporate decisions of MERS?

A. No.

Q. Do you know where the MERS’ offices are located?

A. No.

Q. Do you know how many offices they have?

A. No.

Q. Do you know where they are headquartered?

A. No.

Q. I take it then you’re never been to their headquarters?

A. No.

Q. Do you know how many employees they have?

A. No.

Q. But you know that you have counterparts all over the country signing as MERS’s vice-presidents and assistant secretaries?

A. Yes.

Q. Some of them are employees of third-party foreclosure service companies, like LPS?

A. Yes.

Q. Why does MERS appoint you as a vice president or assistant secretary as opposed to a manager or an authorized agent to sign in that capacity?

A. I don’t know.

Q. Why does MERS give you any kind of a title?

A. I don’t know.

Q. Take me through the procedure for drafting and — the drafting and execution of this Assignment of Mortgage which is Exhibit E.

A. It is drafted by our forms, uploaded into process management, downloaded by LPS staff in Minnesota, shipped to Austin where we sign and notarize it, and hand it back to an LPS employee, who then ships it back to Minnesota, up uploads a copy and mails the original to the firm.

Q. Very similar to all the other document, preparation of all the other documents.

A. (Nods head.)

Q. Was that a yes? You were shaking your head.

A. Yes.

Q. As with the other documents, you personally don’t review any of the information that’s on here —

A. No.

Q. — other than to make sure that you are authorized to sign as the person you’re signing for?

A. Yes.

Q. Okay. As with the other documents, you signed these and took them to be notarized just to a Notary that’s outside your office?

A. Yes.

Q. And they will get notarized as soon as they can. It may or may not be the same day that you executed it?

A. That’s true. Further, with respect to MERS, Ms. Johnson-Seck testified in answering questions, at p. 138, line 2-p. 139, line 17:

Q. Do you have an understanding that MERS is a membership organization?

A. Yes, yes.

Q. And the members are —

A. Yes.

Q. — banking entities such as OneWest?

A. Yes.

Q. In fact, OneWest is a member of MERS?

A. Yes.

Q. Is Deutsche Bank National Trust Company a member of MERS?

A. I don’t know.

Q. Most of the major banking institutions in the Untied States, at least, are members of MERS, correct?

A. That sounds right.

Q. It’s owned and operated by banking institutions?

A. I’m not a big — I don’t, I don’t know that much about the ins and outs of MERS. I’m sorry. I understand what it’s for, but I don’t understand the nitty-gritty.

Q. What is it for?

A. To track the transfer of doc — of interest from one entity to another. I know that it was initially created so that a servicer did not have to record the assignments, or if they didn’t, there was still a system to keep track of the transfer of property.

Q. Does it also have a function to hold the mortgage separate and apart from the note so that note can be transferred from entity to entity to entity, bank to bank to bank —

A. That sounds right.

Q. — without ever having to rerecord the mortgage?

A. That sounds right.

Q. So it’s a savings device. It makes it more efficient to transfer notes?

A. Yes.

Q. And cheaper?

A. Yes. Moreover,

Ms. Johnson-Seck testified that one of her job duties was to sign documents, which at that time took her about ten minutes per day [p. 11]. Further, she admitted, at p. 13, line 11-p. 14, line 15, that she signs about 750 documents per week and doesn’t read each document.

Q. Okay. How many documents would you say that you sign on a week on average, in a week on average?

A. I could have given you that number if you had that question in there because I would brought the report. However, I’m going to guess, today I saw an e-mail that 1,073 docs are in the office for signing. So if we just — and there’s about that a day. So let’s say 6,000 a week and I do probably — let’s see. There’s eight of us signing documents, so what’s the math?

Q. Six thousand divided by eight, that gives me 750..

A. That sounds, that sounds about right.

Q. Okay. That would be a reasonable estimate of how many you sign, you personally sign per week?

A. Yes.

Q. And that would include Lost Note Affidavits, Affidavits of Debt?

A. Yes.

Q. What other kinds of documents would be included in that?

A. Assignments, declarations. I can sign anything related to a bankruptcy or a foreclosure.

Q. How long do you spend executing each document?

A. I have changed my signature considerably. It’s just an E now.

So not more than 30 seconds.

Q. Is it true that you don’t read each document before you sign it?

A. That’s true. [Emphasis added]

Ms. Johnson-Seck, in the instant action, signed her full name on the March 16, 2009 MERS, as nominee for CAMBRIDGE, assignment to INDYMAC. She switched to the letter E in signing the May 14, 2009 INDYMAC to ONEWEST assignment and the June 30, 2009 affidavit of merit on behalf of ONEWEST. Additionally. she testified about how LPS prepares the documents in Minnesota and ships them to her Austin office, with LPS personnel present in her Austin office [pp. 16-17]. Ms. Johnson-Seck described the document signing process, at p. 17, line 6-p. 18, line 18:

Q. Take me through the procedure for getting your actual signature on the documents once they’ve gone through this quality control process?

A. The documents are delivered to me for signature and I do a quick purview to make sure that I’m not signing for an entity that I cannot sign for. And I sign the document and I hand it to the Notary, who notarizes it, who then hands it back to LPS who uploads the document so that the firms know it’s available and they send an original.

Q. “They” being LPS?

A. Yes.

Q. Are all the documents physically, that you were supposed to sign, are they physically on your desk?

A. Yes.

Q. You don’t go somewhere else to sign documents?

A. No.

Q. When you sign them, there’s no one else in your office?

A. Sometimes.

Q. Well, the Notaries are not in your office, correct?

A. They don’t sit in my office, no.

Q. And the witnesses who, if you need witnesses on the document, are not sitting in your office?

A. That’s right.

Q. So you take your ten minutes and you sign them and then you give them to the supervisor of the Notaries, correct?

A. I supervise the Notaries, so I just give them to a Notary.

Q. You give all, you give the whole group that you just signed to one Notary?

A. Yes. [Emphasis added]

Ms. Johnson-Seck testified, at p. 20, line 1-p. 21, line 4 about notaries not witnessing her signature:

Q. I’m mostly interested in how long it takes for the Notary to notarize your signature.

A. I can’t say categorically because the Notary, that’s not the only job they do, so.

Q. In any event, it doesn’t have to be the same day?

A. No.

Q. When they notarize it and they put a date that they’re notarizing it, is it the date that you signed it or is it the date that they’re notarizing it?

A. I don’t know.

Q. When you execute a sworn document, do you make any kind of a verbal acknowledgment or oath to anyone?

A. I don’t know if I know what you’re talking about. What’s a sworn document?

Q. Well, an affidavit.

A. Oh. No.

Q. In any event, there’s no Notary in the room for you to

A. Right.

Q. — take an oath with you, correct?

A. No there is not.

Q. In fact, the Notaries can’t see you sign the documents; is that correct?

A. Not unless that made it their business to do so?

Q. To peek into your office?

A. Yes. [Emphasis added]

As noted above, I found Ms. Johnson-Seck engaged in “robo-signing” in Deutsche Bank v Maraj and Indymac Bank, FSB, v Bethley. In both foreclosure cases I denied plaintiffs’ motions for orders of reference without prejudice with leave to renew if, among other things, Ms. Johnson-Seck could explain in affidavits: her employment history for the past three years; why she was a Vice President of both assignor MERS and assignee Deutsche Bank National Trust Company in Maraj; and, Vice President of INDYMAC in Bethley. Mr. Ice questioned Ms. Johnson-Seck about my MarajMaraj decision as exhibit M in the Machado deposition. The following colloquy at the Maraj deposition took place at p. 153, line 15-p. 156, line 9. decision and showed her the

Q. Exhibit M is a document that you saw before in your last deposition, correct?

A. Yes.

Q. It’s an opinion from Judge Schack up in New York —

A. Yes.

Q. — correct? You’re familiar with that?

A. Yes.

Q. In it, he says that you signed an Assignment of Mortgage as the vice president of MERS, correct —

A. Yes.

Q. — just as you did in this case? Judge Schack also says that you executed an affidavit as an officer of Deutsche Bank National Trust Company, correct?

A. Yes.

Q. And is that true, you executed an affidavit for Deutsche Bank in that case?

A. That is not true.

Q. You never executed a document as an officer of Deutsche Bank National Trust Company in that case, Judge Schack’s case?

A. Let me just read it so I can — I have to refresh my memory completely.

Q. Okay.

A. I don’t remember. Most likely.

Q. That you did?

A. It sounds reasonable that I may have. I don’t remember, and since it’s not attached, I can’t say.

Q. And as a result, Judge Schack wanted to know if you were engaged in self-dealing by wearing two corporate hats?

A. Yes.

Q. And the court was concerned that there may be fraud on the part of the bank?

A. I guess.

Q. I mean he said that, right?

A. Oh, okay. I didn’t read the whole thing. Okay.

Q. Okay. The court ordered Deutsche Bank to produce an affidavit from you describing your employment history for the past three years, correct?

A. That’s what this says.

Q. Did you do that?

A. No, because we were never — no affidavit ever existed and no request ever came to produce such a document. The last time we spoke, I told you that in-house counsel was reviewing the whole issue and that’s kind of where — and we still haven’t received any communication to produce an affidavit.

Q. From your counsel?

A. From anywhere.

Q. Well, you’re reading Judge Schack’s opinion. He seems to want one. Isn’t that pretty clear on its face.

A. We didn’t get — we never even got a copy of this.

Q. Okay. But now you have it —

A. And —

Q. And you had it when we met at our deposition back in February 5th.

A. And our in-house counsel’s response to this is we were never — this was never requested of me and it was his recommendation not to comply.

Q. What has become of that case?

A. I don’t know.

Q. Was it settled?

A. I don’t know. After a break in the Machado deposition proceedings, Mr. Ice questioned Ms. Johnson-Seck about various documents that were subpoenaed for the July 9, 2010 deposition, including her employment affidavits that I required in both Maraj and Bethley. Ms. Johnson-Seck answered the following questions at p. 159, line 19-p. 161, line 9:

Q. So let’s start with the duces tecum part of you notice, which is the list of documents. No. 1 was: The affidavit of the last three years of deponent’s employment provided to Judge Schack in response to the order dated January 31st, 2008 in the case of Deutsche Bank National Trust Company vs. Maraj, Case No. 25981-07, Supreme Court of New York. We talked about that earlier. There is no such affidavit, correct?

A. Correct.

Q. By the way, why was IndyMac permitted to bring the case in Deutsche Bank’s name in that case?

A. I don’t — I don’t know. Now, errors have been made.

Q. No. 2: The affidavit of the deponent provided to Judge Schack in response to the order dated February 6th, 2009 in the case of IndyMac Bank, FSB vs, Bethley, New York Slip Opinion 50186, New York Supreme Court 2/5/09, “explaining,” and this is in quotes, “her employment history for the past three years; and, why a conflict of interest does not exist in how she acted as vice president of assignee IndyMac Bank, FSB in the instant action, and vice president of both Mortgage Electronic Registrations Systems, Inc. and Deutsche Bank in Deutsche Bank vs. Maraj,” and it gives the citation and that’s the case referred to in item 1 of our request. Do you have that affidavit with you here today?

A. No.

Q. Were you aware of that second opinion where Judge Schack asks for a second affidavit?

A. Nope. Where is Judge Schack sending these?

Q. Presumably to your counsel.

A. I wonder if he has the right address. Maybe that’s what we should do, send Judge Schack the most recent, and I will gladly show up in his court and provide him everything he wants.

Q. Okay. Well, I sent you this back in March. Have your or your counsel or in-house counsel at IndyMac pursued that?

A. No. [Emphasis added] Counsel for plaintiff ONEWEST has leave to produce Ms. Johnson-Seck in my courtroom to “gladly show up . . . and provide [me] . . . everything he wants.”

Discussion

Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff.” In the instant action, plaintiff ONEWEST’s application for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and sale against defendant DRAYTON. (Home Sav. of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]). Plaintiff’s request to withdraw its application for an order of reference is granted. However, to allow this action to continue without seeking the ultimate purpose of a foreclosure action, to obtain a judgment of foreclosure and sale, makes a mockery of and wastes the resources of the judicial system. Continuing the instant action without moving for an order of reference is the judicial equivalent of a “timeout.” Granting a “timeout” to plaintiff ONEWEST to allow it to re-submit “a new application containing new information . . . shortly” is a waste of judicial resources. Therefore, the instant action is dismissed without prejudice, with leave granted to plaintiff ONEWEST to renew its motion for an order of reference within sixty (60) days of this decision and order, if plaintiff ONEWEST and plaintiff ONEWEST’s counsel can satisfactorily address the various issues previously enumerated. Further, the dismissal of the instant foreclosure action requires the cancellation of the notice of pendency. CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that “would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property.” The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 319 [1984]), commented that “[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit,” and, at 320, that “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.” CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

The Court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of a final judgment against the plaintiff has not been stayed pursuant to section 551. [emphasis added] The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. “Abatement” is defined as “the act of eliminating or nullifying.” (Black’s Law Dictionary 3 [7th ed 1999]). “An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d § 11.1).” (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” Thus, the dismissal of the instant complaint must result in the mandatory cancellation of plaintiff ONEWEST’s notice of pendency against the subject property “in the exercise of the inherent power of the court.”

Moreover, “[t]o have a proper assignment of a mortgage by an authorized agent, a power of attorney is necessary to demonstrate how the agent is vested with the authority to assign the mortgage.” (HSBC Bank, USA v Yeasmin, 27 Misc 3d 1227 [A], *3 [Sup Ct, Kings County 2010]). “No special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it [Emphasis added].” (Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 [1d Dept 1996]). (See Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612 [2d Dept 2004]). MERS, as described above, recorded the subject mortgage as “nominee” for CAMBRIDGE. The word “nominee” is defined as “[a] person designated to act in place of another, usu. in a very limited way” or “[a] party who holds bare legal title for the benefit of others.” (Black’s Law Dictionary 1076 [8th ed 2004]). “This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves.” (Landmark National Bank v Kesler, 289 Kan 528, 538 [2009]). The Supreme Court of Kansas, in Landmark National Bank, 289 Kan at 539, observed that: The legal status of a nominee, then, depends on the context of the relationship of the nominee to its principal. Various courts have interpreted the relationship of MERS and the lender as an agency relationship. See In re Sheridan, 2009 WL631355, at *4 (Bankr. D. Idaho, March 12, 2009) (MERS “acts not on its own account. Its capacity is representative.”); Mortgage Elec. Registrations Systems, Inc. v Southwest,La Salle Nat. Bank v Lamy, 12 Misc 3d 1191 [A], at *2 [Sup Ct, Suffolk County 2006]) . . . (“A nominee of the owner of a note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.”) The New York Court of Appeals in MERSCORP, Inc. v Romaine (8 NY3d 90 [2006]), explained how MERS acts as the agent of mortgagees, holding at 96: In 1993, the MERS system was created by several large participants in the real estate mortgage industry to track ownership interests in residential mortgages. Mortgage lenders and other entities, known as MERS members, subscribe to the MERS system and pay annual fees for the electronic processing and tracking of ownership and transfers of mortgages. Members contractually agree to appoint MERS to act as their common agent on all mortgages they register in the MERS system. [Emphasis added] 2009 Ark. 152 ___, ___SW3d___, 2009 WL 723182 (March 19, 2009) (“MERS, by the terms of the deed of trust, and its own stated purposes, was the lender’s agent”);

Thus, it is clear that MERS’s relationship with its member lenders is that of agent with principal. This is a fiduciary relationship, resulting from the manifestation of consent by one person to another, allowing the other to act on his behalf, subject to his control and consent. The principal is the one for whom action is to be taken, and the agent is the one who acts.It has been held that the agent, who has a fiduciary relationship with the principal, “is a party who acts on behalf of the principal with the latter’s express, implied, or apparent authority.” (Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [2d Dept 1992]). “Agents are bound at all times to exercise the utmost good faith toward their principals. They must act in accordance with the highest and truest principles of morality.” (Elco Shoe Mfrs. v Sisk, 260 NY 100, 103 [1932]). (See Sokoloff v Harriman Estates Development Corp., 96 NY 409 [2001]); Wechsler v Bowman, 285 NY 284 [1941]; Lamdin v Broadway Surface Advertising Corp., 272 NY 133 [1936]). An agent “is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.” (Lamdin, at 136). Therefore, in the instant action, MERS, as nominee for CAMBRIDGE, is an agent of CAMBRIDGE for limited purposes. It can only have those powers given to it and authorized by its principal, CAMBRIDGE. Plaintiff ONEWEST has not submitted any documents demonstrating how CAMBRIDGE authorized MERS, as nominee for CAMBRIDGE, to assign the subject DRAYTON mortgage and note to INDYMAC, which subsequently assigned the subject mortgage and note to plaintiff ONEWEST. Recently, in Bank of New York v Alderazi,Lippincott v East River Mill & Lumber Co., 79 Misc 559 [1913]) and “[t]he declarations of an alleged agent may not be shown for the purpose of proving the fact of agency.” (Lexow & Jenkins, P.C. v Hertz Commercial Leasing Corp., 122 AD2d 25 [2d Dept 1986]; see also Siegel v Kentucky Fried Chicken of Long Is. 108 AD2d 218 [2d Dept 1985]; Moore v Leaseway Transp/ Corp., 65 AD2d 697 [1st Dept 1978].) “[T]he acts of a person assuming to be the representative of another are not competent to prove the agency in the absence of evidence tending to show the principal’s knowledge of such acts or assent to them.” (Lexow & Jenkins, P.C. v Hertz Commercial Leasing Corp., 122 AD2d at 26, quoting 2 NY Jur 2d, Agency and Independent Contractors § 26). Plaintiff has submitted no evidence to demonstrate that the original lender, the mortgagee America’s Wholesale Lender, authorized MERS to assign the secured debt to plaintiff. Therefore, in the instant action, plaintiff ONEWEST failed to demonstrate how MERS, as nominee for CAMBRIDGE, had authority from CAMBRIDGE to assign the DRAYTON mortgage to INDYMAC. The Court grants plaintiff ONEWEST leave to renew its motion for an order of reference, if plaintiff ONEWEST can demonstrate how MERS had authority from CAMBRIDGE to assign the DRAYTON mortgage and note to INDYMAC. Then, plaintiff ONEWEST must address the tangled employment situation of “robo-signer” Erica A. Johnson-Seck. She admitted in her July 9, 2010 deposition in the Machado case that she never provided me with affidavits of her employment for the prior three years and an explanation of why she wore so-many corporate hats in Maraj and Bethley. Further, in Deutsche Bank v Harris, Ms. Johnson-Seck executed an affidavit of merit as Vice President of Deutsche Bank. If plaintiff renews its motion for an order of reference, the Court must get to the bottom of Ms. Johnson-Seck’s employment status and her “robo-signing.” The Court reminds plaintiff ONEWEST’s counsel that Ms. Johnson-Seck, at p. 161 of the Machado deposition, volunteered, at lines 4-5 to “gladly show up in his court and provide him everything he wants.” Lastly, if plaintiff ONEWEST’S counsel moves to renew its application for an order of reference, plaintiff’s counsel must comply with the new filing requirement to submit, under penalties of perjury, an affirmation that he has taken reasonable steps, including inquiring of plaintiff ONEWEST, the lender, and reviewing all papers, to verify the accuracy of the submitted documents in support of the instant foreclosure action. According to yesterday’s Office of Court Administration press release, Chief Judge Lippman said: We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs — such as a family home — during this period of economic crisis. This new filing requirement will play a vital role in ensuring that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure. 28 Misc 3d at 379-380, my learned colleague, Kings County Supreme Court Justice Wayne Saitta explained that: A party who claims to be the agent of another bears the burden of proving the agency relationship by a preponderance of the evidence (

(See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is Taking Shape, New York Times, Oct. 21, 2010; Andrew Keshner, New Court Rules Says Attorneys Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010).

Conclusion

Accordingly, it is

ORDERED, that the request of plaintiff ONEWEST BANK, F.S.B., to withdraw its motion for an order of reference, for the premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), is granted; and it is further

ORDERED, that the instant action, Index Number 15183/09, is dismissed without prejudice; and it is further

ORDERED, that the notice of pendency in the instant action, filed with the Kings County Clerk on June 18, 2009, by plaintiff ONEWEST BANK, F.S.B., to foreclose a mortgage for real property located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), is cancelled; and it is further

ORDERED, that leave is granted to plaintiff, ONEWEST BANK, F.S.B., to renew, within sixty (60) days of this decision and order, its motion for an order of reference for the premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), provided that plaintiff, ONEWEST BANK, F.S.B., submits to the Court: (1) proof of the grant of authority from the original mortgagee, CAMBRIDGE CAPITAL, LLC, to its nominee, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., to assign the subject mortgage and note to INDYMAC FEDERAL BANK, FSB; and (2) an affidavit by Erica A. Johnson-Seck, Vice President of plaintiff ONEWEST BANK, F.S.B., explaining: her employment history for the past three years; why a conflict of interest does not exist in how she acted as a Vice President of assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Vice President of assignee/assignor INDYMAC FEDERAL BANK, FSB, and a Vice President of assignee/plaintiff ONEWEST BANK, F.S.B. in this action; why she was a Vice President of both assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and assignee DEUTSCHE BANK in Deutsche Bank v Maraj, 18 Misc 3d 1123 (A) (Sup Ct, Kings County 2008); why she was a Vice President of both assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and assignee INDYMAC BANK, FSB in Indymac Bank, FSB, v Bethley, 22 Misc 3d 1119 (A) (Sup Ct, Kings County 2009); and, why she executed an affidavit of merit as a Vice President of DEUTSCHE BANK in Deutsche Bank v Harris (Sup Ct, Kings County, Feb. 5, 2008, Index No. 35549/07); and (3) counsel for plaintiff ONEWEST BANK, F.S.B. must comply with the new Court filing requirement, announced by Chief Judge Jonathan Lippman on October 20, 2010, by submitting an affirmation, using the new standard Court form, pursuant to CPLR Rule 2106 and under the penalties of perjury, that counsel for plaintiff ONEWEST BANK, F.S.B. has personally reviewed plaintiff ONEWEST BANK, F.S.B.’s documents and records in the instant action and counsel for plaintiff ONEWEST BANK, F.S.B. confirms the factual accuracy of plaintiff ONEWEST BANK, F.S.B.’s court filings and the accuracy of the notarizations in plaintiff ONEWEST BANK, F.S.B.’s documents.

This constitutes the Decision and Order of the Court.

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[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. HARRIS (2)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. HARRIS (2)

Excerpt:

Plaintiffs affidavit, submitted in support of the instant application for a default judgment, was executed by Erica Johnson-Seck, who claims to be a Vice President of plaintiff DEUTSCHE BANK. The affidavit was executed in the State of Texas, County of Williamson (Williamson County, Texas is located in the Austin metropolitan area, and its county seat is Georgetown, Texas). The COURT is perplexed as to why the assignment was not executed in Pasadena, California, at 46U Sierra Madre Villa, the alleged “principal place of business” for both the assign1,)r and the assignee. In my January 3 1, 2008 decision (Deutsche Bank National Trust company v Maraj, – Misc 3d – [A], 2008 NY Slip Op 50176 [U]), I noted that Erica Johnson-Seck, claimed that she was a Vice President of MERS in her July 3,2007 INDYMAC to DEUTSCHE BANK assignment, and then in her July 3 1,2007 affidavit claimed to be a DEUTSCHE BANK Vice President. Just as in Deutsche Bank National Trust Company v Maraj, at 2, the Court in the instant action, before granting itn application for an order of reference, requires an affidavit from Ms. Johnson-Seck, describing her employment history for the past three years.

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[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. MARAJ (1)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. MARAJ (1)

2008 NY Slip Op 50176(U)
DEUTSCHE BANK NATIONAL TRUST COMPANY As Trustee under the Pooling and Servicing Agreement Series Index 2006-AR6, Plaintiff,
v.
RAMASH MARAJ A/K/A RAMISH MARAJ, ET AL., Defendants.
25981/07.

Supreme Court of the State of New York, Kings County.
Decided January 31, 2008.

Plaintiff: Kevin M. Butler, Esq., Eschen Frenkel Weisman & Gordon, De Rose & Surico, Bayside NY.

Defendant: No Opposition submitted by defendants to plaintiff’s Judgment of Foreclosure and Sale.

ARTHUR M. SCHACK, J.

Plaintiff’s application, upon the default of all defendants, for an order of reference for the premises located at 255 Lincoln Avenue, Brooklyn, New York (Block 4150, Lot 19, County of Kings) is denied without prejudice, with leave to renew upon providing the Court with a satisfactory explanation to various questions with respect to the July 3, 2007 assignment of the instant mortgage to plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT SERIES INDEX 2006-AR6 (DEUTSCHE BANK). The questions deal with: the employment history of one Erica Johnson-Seck, who assigned the mortgage to plaintiff DEUTSCHE BANK, and then subsequently executed the affidavit of facts in the instant application as an officer of DEUTSCHE BANK; plaintiff DEUTSCHE BANK’s purchase of the instant non-performing loan; and, why INDYMAC BANK, F.S.B., (INDYMAC), Mortgage Electronic Registration Systems, Inc. (MERS), and DEUTSCHE BANK all share office space at Building B, 901 East 104th Street, Suite 400/500, Kansas City, MO 64131 (Suite 400/500).

Defendant RAMASH MARAJ borrowed $440,000.00 from INDYMAC on March 7, 2006. The note and mortgage were recorded in the Office of the City Register, New York City Department of Finance on March 22, 2006 at City Register File Number (CRFN) XXXXXXXXXXXXX. INDYMAC, by Mortgage Electronic Registration Systems, Inc. (MERS), its nominee for the purpose of recording the mortgage, assigned the note and mortgage to plaintiff DEUTSCHE BANK, on July 3, 2007, with the assignment recorded on September 5, 2007 at CRFN XXXXXXXXXXXXX.

According to plaintiff’s application, defendant MARAJ’s default began with the nonpayment of principal and interest due on March 1, 2007. Yet on July 3, 2007, more than four months later, plaintiff DEUTSCHE BANK accepted the assignment of the instant non-performing loan from INDYMAC. Further, both assignor MERS, as nominee of INDYMAC, and assignee DEUTSCHE BANK list Suite 400/500 on the July 3, 2007 Assignment as their “principal place of business.” To compound corporate togetherness, page 2 of the recorded Assignment, lists the same Suite 400/500 as the address of INDYMAC.

The Assignment by MERS, on behalf of INDYMAC, was executed by Erica Johnson-Seck, Vice President of MERS. The notary public, Mai La Thao, stated in the jurat that the assignment was executed in the State of Texas, County of Williamson (Williamson County is located in the Austin metropolitan area, and its county seat is Georgetown, Texas). The Court is perplexed as to why the assignment was not executed in Kansas City, the alleged “principal place of business” for both the assignor and the assignee.

Twenty-eight days later, on July 31, 2007, the same Erica Johnson-Seck executed plaintiff’s affidavit submitted in support of the instant application for a default judgment. Ms. Johnson-Seck, in her affidavit, states that she is “an officer of Deutsche Bank National Trust Company as Trustee under the Pooling and Servicing Agreement Series INDX 2006-AR6, the plaintiff herein.” At the end of the affidavit she states that she is a Vice President of DEUTSCHE BANK. Again, Mai La Thao is the notary public and the affidavit is executed in the State of Texas, County of Williamson. The Erica Johnson-Seck signatures on both the July 3, 2007 assignment and the July 31, 2007 affidavit are identical. Did Ms. Johnson-Seck change employers from July 3, 2007 to July 31, 2007, or does she engage in self-dealing by wearing two corporate hats? The Court is concerned that there may be fraud on the part of plaintiff DEUTSCHE BANK, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from Ms. Johnson-Seck, describing her employment history for the past three years.

Further, the Court requires an explanation from an officer of plaintiff DEUTSCHE BANK as to why, in the middle of our national subprime mortgage financial crisis, DEUTSCHE BANK would purchase a non-performing loan from INDYMAC, and why DEUTSCHE BANK, INDYMAC and MERS all share office space in Suite 400/500.

With the assignor MERS and assignee DEUTSCHE BANK appearing to be engaged in possible fraudulent activity by: having the same person execute the assignment and then the affidavit of facts in support of the instant application; DEUTSCHE BANK’s purchase of a non-performing loan from INDYMAC; and, the sharing of office space in Suite 400/500 in Kansas City, the Court wonders if the instant foreclosure action is a corporate “Kansas City Shuffle,” a complex confidence game. In the 2006 film, Lucky Number Slevin, Mr. Goodkat, (a hitman played by Bruce Willis), explains (in memorable quotes from Lucky Number Slevin, at www.imdb.com/title/tt425210/quotes).

A Kansas City Shuffle is when everybody looks right, you go left . . .

It’s not something people hear about. Falls on deaf ears mostly . . .

No small matter. Requires a lot of planning. Involves a lot of people. People connected by the slightest of events. Like whispers in the night, in that place that never forgets, even when those people do.

In this foreclosure action is plaintiff DEUTSCHE BANK, with its “principal place of business” in Kansas City attempting to make the Court look right while it goes left?

Conclusion

Accordingly, it is

ORDERED, that the application of plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT SERIES INDEX 2006-AR6, for an order of reference for the premises located at 255 Lincoln Avenue, Brooklyn, New York (Block 4150, Lot 19, County of Kings), is denied without prejudice; and it is further

ORDERED, that leave is granted to plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT SERIES INDEX 2006-AR6, to renew its application for an order of reference for the premises located at 255 Lincoln Avenue, Brooklyn, New York (Block 4150, Lot 19, County of Kings), upon presentation to the Court, within forty-five (45) days of this decision and order, of: an affidavit from Erica Johnson-Seck describing her employment history for the past three years; and, an affidavit from an officer of plaintiff

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT SERIES INDEX 2006-AR6, explaining why (1) plaintiff purchased a nonperforming loan from INDYMAC BANK, F.S.B., (2) shares office space at Building B, 901 East 104th Street, Suite 400/500, Kansas City, MO 64131 with Mortgage Electronic Registration Systems, Inc. and INDYMAC BANK, F.S.B., and (3), claims Building B, 901 East 104th Street, Suite 400/500, Kansas City, MO 64131 as its principal place of business in the Assignment of the instant mortgage and yet executed the Assignment and affidavit of facts in this action in Williamson County, Texas.

This constitutes the Decision and Order of the Court.

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Full Deposition of the Infamous Erica Johnson Seck RE: Indymac Federal Bank Fsb, Plaintiff, Vs. Israel a. Machado – 50 2008 CA 037322xxxx Mb

Full Deposition of the Infamous Erica Johnson Seck RE: Indymac Federal Bank Fsb, Plaintiff, Vs. Israel a. Machado – 50 2008 CA 037322xxxx Mb

This is a Must Read where ICE Legal from Palm Beach rips into Ms. Seck…

Picture says it all!

Here, Plaintiff and Plaintiff’s counsel misled the Court about the real party in interest in the case; and 2) engaged in extensive discovery abuse to obstruct revelation of the
known falsities in the complaint – a “flagrant abuse of the judicial process” worthy of severe sanctions. See Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332 (11th Cir. 2002). Dismissal for fraud is appropriate where “a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998).

Yep you gone done it again…This time you messed with the WRONG assignments…MINE!!!

[youtube=http://www.youtube.com/watch?v=LoSPTjd_PXM]

[youtube=http://www.youtube.com/watch?v=SD6XUboT1JM]

DEPOSITION OF ERICA JOHNSON-SECK by DinSFLA on Scribd

Here is her peers doing the same…

SOON TO BE FAMOUS ROGER STOTTS & DENNIS KIRKPATRICK VP’s, MERS, ATTORNEY in FACT, ONEWEST, INDYMAC, Deutsche BANK et al~~

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Posted in concealment, conspiracy, corruption, fraud digest, Law Offices Of David J. Stern P.A., Lender Processing Services Inc., LPS, MERS, Mortgage Foreclosure Fraud, scam3 Comments

INDYMAC FED. BANK FSB v. GARCIA | NYSC Vacates Default JDGMT “Robo-Signer, Fraudulent Erica Johnson-Seck Affidavit”

INDYMAC FED. BANK FSB v. GARCIA | NYSC Vacates Default JDGMT “Robo-Signer, Fraudulent Erica Johnson-Seck Affidavit”

2011 NY Slip Op 31748(U)

INDYMAC FEDERAL BANK FSB, Plaintiff,

v.

WILFREDO GARCIA, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR INDYMAC BANK F.S.B., CRIMINAL COURT OF THE CITY OF NEW YORK, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, CITY OF NEW YORK PARKING VIOLATIONS BUREAU, and John Doe, Jane Doe, Defendants.

20049/08, Motion Cal. No. 12, Motion Seq. No. 5.

Supreme Court, Queens County.

June 23, 2011.

BERNICE D. SIEGAL, Judge.

EXCERPTS:

Approximately ten months after the stipulation was entered into, Plaintiff set a new sale date of February 18, 2011. Defendant Garcia now moves for an order seeking to vacate the terms of the stipulation, vacate the default judgment and renew the original order to show cause, predominantly upon the grounds that the Affidavit of Amount Due is signed by Erica A. Johnson-Seck, (hereinafter Johnson-Seck”) Vice-President, an alleged “Robo-Signer.”

[…]

Garcia moves for an order to renew its original order to show cause which sought to vacate the default judgment based on alleged fraud on behalf of the plaintiff. (CPLR §5015(a)(3).) Garcia asserts that the recent discovery of alleged fraud in the preparation of Plaintiff’s affidavit to secure the Judgment of Foreclosure and Sale is sufficient basis to renew it’s prior order to show cause to vacate the default judgment.

Garcia asserts that Johnson-Seck is a confirmed robo-signer as evidenced by recent published decisions. (See Onewest Bank, F.S.B. v Drayton, 29 Misc 3d 1021 [Sup.Ct. Kings County 2010]; see also Indymac Bank, FSB v. Bethley, 22 Misc.3d 1119(A) [Sup.Ct. Kings County 2009].) “A `robo-signer’ is a person who quickly signs hundreds or thousands of foreclosure documents in a month, despite swearing that he or she has personally reviewed the mortgage documents and has not done so.” (Onewest Bank, F.S.B. v Drayton, 29 Misc 3d 1021 [Sup.Ct. Kings County 2010].)

Plaintiff, in opposition, does not refute defendant’s assertion that Johnson-Seck is a “robo-signer,” rather, Plaintiff asserts that accusations regarding Johnson-Seck were made public prior to the execution of the aforementioned stipulation, dated March 24, 2010, and therefore any alleged fraud or mistake was known or knowable to defendant’s attorney. “The requirement that a motion for renewal be based upon newly-discovered facts is a flexible one, and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion.” (Karlin v. Bridges, 172 A.D.2d 644 [2nd Dept 1991].) Even if the court assumes that Garcia’s counsel, David Fuster, Esq., should have known of Johnson-Seck’s “robo-signing,” it is still not a complete defense to Garcia’s motion. Accordingly, Garcia’s motion to renew is granted.

Vacate Default Judgment and Stipulation

Upon renewal this court vacates the prior default judgment dated February 23, 2009, and the stipulation dated March 24, 2010.

CPLR § 3215(f) states:

On any application for judgment by default, the applicant shall file … proof of the facts constituting the claim, the default and the amount due by affidavit made by the party.

Plaintiff submits a “reverified” Affidavit of Charlotte Warwick (hereinafter “Warwick”) attesting that the principal amount due on Garcia’s loan is $472,326.52. Plaintiff contends that the Warwick affidavit cures the fraudulent Affidavit of Amount Due submitted by Johnson-Seck. However, the Judgment of Foreclosure and aforementioned Stipulation, dated March 24, 2010, where all signed under the assumption that the plaintiff had originally submitted non-fraudulent documentation. So while the fraudulent Affidavit of Amount Due may be a curable defect, the court cannot ignore the fact that the papers supporting the Judgment of Foreclosure and Sale and aforementioned stipulation were fraudulent.

In addition, a default judgment obtained through “extrinsic fraud,” which is “a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter” does not require the defendant to prove a reasonable excuse for such default. (Bank of New York v. Lagakos, 27 A.D.3d 678 [2nd Dept 2006] citing Shaw v. Shaw, 97 A.D.2d 403 [2nd Dept 1983].)

Furthermore, the court is concerned by Plaintiff’s position that the “events he (Garcia) complains of… make no factual difference to the amount he owes on his mortgage.” The statement is alarming as it implies that the court should ignore fraud when the fraud may not be directly relevant to the outcome of the particular case. The court requires an Affidavit of Amount Due and that requirement cannot be satisfied by submitting a fraudulent affidavit. (Indymac Bank, FSB v. Bethley, 22 Misc.3d 1119 [Sup.Ct. Kings County 2009] [prior to granting an application for an order of reference, the Court required an affidavit from Ms. Johnson-Seck, describing her employment history for the past three years].) Plaintiff has failed to deny defendant’s contention that the Johnson-Seck document was fraudulent. Therefore, the Plaintiff failed to submit “proof of the facts constituting the claim, the default and the amount due by affidavit made by the party” as required by CPLR §3215(f).

However, before the judgment on default can be vacated, the settlement stipulation must be vitiated.”Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (Hallock v. State, 64 N.Y.2d 224 (1984.) “It is the party seeking to set aside the stipulation … who has the burden of showing that the agreement was the result of fraud.” (Sweeney v. Sweeney, 71 A.D.3d 989 [2nd Dept 2010].) As noted earlier, the fraud perpetrated by the Plaintiff had a domino effect that lead Garcia ultimately to enter into the stipulation. Garcia entered into the agreement on March 24, 2010 to avoid an immediate foreclosure he believed was obtained legally. Accordingly, Garcia has sufficiently established his burden by showing that he would not have entered the stipulation had he known that the Affidavit in support of the default judgment (vacated herein) was fraudulent.

Based on the foregoing, Garcia’s motion is granted to the extent of granting renewal and upon renewal granting the order to show cause dated August 27, 2009 vacating the default judgment of foreclosure and sale entered by this court on or about February 23, 2009 and the stipulation dated March 24, 2010 is declared null and void.

[…]

After you read the brief below, check out more on Ms. Johnson-Seck

Full Deposition Of ERICA JOHNSON SECK Former Fannie Mae, WSB Employee

[NYSC] Judge Finds Issues With “NOTE AMOUNTS”, Robo Signer “ROGER STOTTS” Affidavit: ONEWEST v. GARCIA

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. MARAJ (1) (64.591)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. HARRIS (2) (70.24)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: ONEWEST BANK v. DRAYTON (3)

Wall Street Journal: Foreclosure? Not So Fast

ONEWEST BANK ‘ERICA JOHNSON-SECK’ ‘Not more than 30 seconds’ to sign each foreclosure document

INDYMAC’S/ONEWEST FORECLOSURE ‘ROBO-SIGNERS’ SIGNED 24,000 MORTGAGE DOCUMENTS MONTHLY

WM_Deposition_of_Erica_Johnson-Seck_Part_I

Deposition_of_Erica_Johnson-Seck_Part_II

Yep, she signs for FDIC too!


[ipaper docId=59328304 access_key=key-2b848aadh4jpp9xz8vzi height=600 width=600 /]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

ONEWEST BANK ‘ERICA JOHNSON-SECK’ ‘Not more than 30 seconds’ to sign each foreclosure document

ONEWEST BANK ‘ERICA JOHNSON-SECK’ ‘Not more than 30 seconds’ to sign each foreclosure document

OneWest Bank employee: ‘Not more than 30 seconds’ to sign each foreclosure document

The recent announcements by J.P. Morgan Chase and Ally Financial that they were freezing some foreclosures because of paperwork irregularities raises a key question: How many more mortgage companies employed “robo-signers?”

In a sworn deposition in July, Erica Johnson-Seck, an Austin, Tex.,-based vice president for bankruptcy and foreclosure for OneWest Bank, said she and her team of seven others sign 6,000 documents a week or about 24,000 a month without reading all of them.

Johnson-Seck estimated that she spent no more than 30 seconds to sign each document.

She explained that while she does not check everything, she does check some information, “which is why I said 30 seconds instead of two seconds.”

Continue reading…WASHINGTON POST

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© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in chain in title, CONTROL FRAUD, corruption, deed of trust, eric friedman, erica johnson seck, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, indymac, investigation, Law Offices Of David J. Stern P.A., MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., robo signers, roger stotts, stopforeclosurefraud.com, Trusts1 Comment

Mers Discovery Responses TO REQUEST FOR Production of Documents 3-15-2010, ERICA JOHNSON-SECK, DAVIE

Mers Discovery Responses TO REQUEST FOR Production of Documents 3-15-2010, ERICA JOHNSON-SECK, DAVIE

via b.daviesmd6605

SAME RESPONSES OBJECTIONS AND NO DOCUMENTS. IT IS THE GAME. HOPEFULLY WE CAN BREAK THIS GAME. WE ALL HAVE ERICA JOHNSON-SECKS DEPOSITION. JUST FOLLOW THE YELLOW BRICK ROAD.

[ipaper docId=28942482 access_key=key-q7xsg1ugun6de39c0wi height=600 width=600 /]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in concealment, conspiracy, corruption, erica johnson seck, indymac, MERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., onewest0 Comments

Indymac Federal Bank Fsb V. Israel A. Machado : Deposition of Erica Johnson-Seck

Indymac Federal Bank Fsb V. Israel A. Machado : Deposition of Erica Johnson-Seck

Indymac Federal Bank Fsb Vs. Israel a. Machado :

In this depo you will see exactly how this Illegal FORECLOSURE FRAUD is fabricated, conspired, concealed, manipulated and fraud upon the courts.

Deposition_of_Erica_Johnson-Seck_Part_I

[ipaper docId=37528161 access_key=key-t6hhb0aqxj8gvgam8s7 height=600 width=600 /]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in concealment, conspiracy, corruption, erica johnson seck, FIS, foreclosure fraud, foreclosure mills, fraud digest, indymac, Lender Processing Services Inc., LPS, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, note, onewest0 Comments

OneWest Bank to lay off 725 Texas workers

OneWest Bank to lay off 725 Texas workers

I wonder if Erica Johnson Seck & Roger Stotts will be on the list amongst others who worked for IndySmack in the days?

Whistle-Blowers to the front of the line.

Abc Local-

Executives with OneWest Bank have announced that more than 700 workers will lose their jobs as the company is acquired as part of a $2.53 billion deal.

The Austin American-Statesman reports Monday that the majority of the 725 employees work at a call center.

[ABC LOCAL]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

Fed Targets Eight More Firms in Foreclosure Probe

Fed Targets Eight More Firms in Foreclosure Probe

NYT-

Federal regulators are poised to crack down on eight financial firms that are not part of the recent government settlement over home foreclosure practices involving sloppy, inaccurate or forged documents.

Last week, a senior Federal Reserve official recommended fines for these additional financial institutions, raising questions about how deep foreclosure problems run through the banking industry.

In addition, judges, lawyers and advocates for homeowners say that people are still losing their homes despite improper documentation and other flaws in the foreclosure process often involving these firms.

The eight firms cited by the Federal Reserve — HSBC’s United States bank division, SunTrust Bank, MetLife, U.S. Bancorp, PNC Financial Services, EverBank, OneWest and Goldman Sachs — should be fined for “unsafe and unsound practices in their loan servicing and foreclosure processing,” Suzanne G. Killian, a senior associate director of the Federal Reserve’s Division of Consumer and Community Affairs, told lawmakers last month in a House Oversight Committee hearing in Brooklyn.

[NEW YORK TIMES]

Click here to read Judge Schack Slams Foreclosure Firm Rosicki, Rosicki & Associates, P.C. “Conflicted Robosigner Kim Stewart”, the case mentioned in the article.

Click here to read about robo-signer Marti Noriega in OREGON DISTRICT COURT ISSUES A TRO AGAINST MERS, BofA and LITTON, the case mentioned in the article.

Last from this article is the one and only Erica Johnson-Seck…

INDYMAC FED. BANK FSB v. GARCIA | NYSC Vacates Default JDGMT “Robo-Signer, Fraudulent Erica Johnson-Seck Affidavit”

Full Deposition Of ERICA JOHNSON SECK Former Fannie Mae, WSB Employee

[NYSC] Judge Finds Issues With “NOTE AMOUNTS”, Robo Signer “ROGER STOTTS” Affidavit: ONEWEST v. GARCIA

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. MARAJ (1) (64.591)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. HARRIS (2) (70.24)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: ONEWEST BANK v. DRAYTON (3)

Wall Street Journal: Foreclosure? Not So Fast

ONEWEST BANK ‘ERICA JOHNSON-SECK’ ‘Not more than 30 seconds’ to sign each foreclosure document

INDYMAC’S/ONEWEST FORECLOSURE ‘ROBO-SIGNERS’ SIGNED 24,000 MORTGAGE DOCUMENTS MONTHLY

WM_Deposition_of_Erica_Johnson-Seck_Part_I

Deposition_of_Erica_Johnson-Seck_Part_II

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD2 Comments

LEVITIN | Standing to Invoke PSAs as a Foreclosure Defense

LEVITIN | Standing to Invoke PSAs as a Foreclosure Defense

Make sure you catch who signed the assignment of mortgage down below… but ERICA JOHNSON-SECK!

Credit Slips

A major issue arising in foreclosure defense cases is the homeowner’s ability to challenge the foreclosing party’s standing based on noncompliance with securitization documentation. Several courts have held that there is no standing to challenge standing on this basis, most recently the 1st Circuit BAP in Correia v. Deutsche Bank Nat’l Trust Company. (See Abigail Caplovitz Field’s cogent critique of that ruling here.) The basis for these courts’ rulings is that the homeowner isn’t a party to the PSA, so the homeowner has no standing to raise noncompliance with the PSA.

I think that view is plain wrong.  It fails to understand what PSA-based foreclosure defenses are about and to recognize a pair of real and cognizable Article III interests of homeowners:  the right to be protected against duplicative claims and the right to litigate against the real party in interest because of settlement incentives and abilities.

[CREDIT SLIPS]

ERICA JOHNSON-SECK

INDYMAC FED. BANK FSB v. GARCIA | NYSC Vacates Default JDGMT “Robo-Signer, Fraudulent Erica Johnson-Seck Affidavit”

Full Deposition Of ERICA JOHNSON SECK Former Fannie Mae, WSB Employee

[NYSC] Judge Finds Issues With “NOTE AMOUNTS”, Robo Signer “ROGER STOTTS” Affidavit: ONEWEST v. GARCIA

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. MARAJ (1) (64.591)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: DEUTSCHE BANK v. HARRIS (2) (70.24)

[NYSC] JUDGE SCHACK TAKES ON ROBO-SIGNER ERICA JOHNSON SECK: ONEWEST BANK v. DRAYTON (3)

Wall Street Journal: Foreclosure? Not So Fast

ONEWEST BANK ‘ERICA JOHNSON-SECK’ ‘Not more than 30 seconds’ to sign each foreclosure document

INDYMAC’S/ONEWEST FORECLOSURE ‘ROBO-SIGNERS’ SIGNED 24,000 MORTGAGE DOCUMENTS MONTHLY

WM_Deposition_of_Erica_Johnson-Seck_Part_I

Deposition_of_Erica_Johnson-Seck_Part_II

Thank you to Mike Dillon for pointing and providing this crucial piece below

[ipaper docId=61704717 access_key=key-16i71qddg7jbehlsos7g height=600 width=600 /]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

Wall Street Journal: Foreclosure? Not So Fast

Wall Street Journal: Foreclosure? Not So Fast

By now, most have read the Deposition of the Infamous Erica Johnson Seck. This is the homeowner Israel Machado speaking out about his foreclosure.

Thank you Ice Legal!

By ROBBIE WHELAN

LOXAHATCHEE, Fla.—Israel Machado’s foreclosure started out as a routine affair. In the summer of 2008, as the economy began to soften, Mr. Machado’s pool-cleaning business suffered and like millions of other Americans, he fell behind on his $400,000 mortgage.

But Mr. Machado’s response was unlike most other Americans’. Instead of handing his home over to the lender, IndyMac Bank FSB, he hired Ice Legal LP in nearby Royal Palm Beach to fight the foreclosure. The law firm researched the history of Mr. Machado’s loan and found two interesting facts.

First, the affidavits IndyMac used to file the foreclosure were signed by a so-called robo-signer named Erica A. Johnson-Seck, who routinely signed 6,000 documents a week related to foreclosures and bankruptcy. That volume, the court decided, meant Ms. Johnson-Seck couldn’t possibly have thoroughly reviewed the facts of Mr. Machado’s case, as required by law.

Secondly, IndyMac (now called OneWest Bank) no longer owned the loan—a group of investors in a securitized trust managed by Deutsche Bank did. Determining that IndyMac didn’t really have standing to foreclose, a judge threw out the case and ordered IndyMac to pay Mr. Machado’s $30,000 legal bill.

Mr. Machado and his lawyer, Tom Ice, say they now want to convince the owners of the mortgage to cut Mr. Machado’s loan balance to between $150,000 and $200,000—the current selling price for comparable homes in his community near West Palm Beach. “The whole intent was to get them to come to the negotiating table, to get me in a fixed-rate mortgage that worked,” Mr. Machado said.

Continue reading…WALL STREET JOURNAL

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© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, bogus, Bryan Bly, CONTROL FRAUD, deposition, deutsche bank, erica johnson seck, foreclosure, foreclosure fraud, indymac, note, onewest, robo signers1 Comment

INDYMAC’S/ONEWEST FORECLOSURE ‘ROBO-SIGNERS’ SIGNED 24,000 MORTGAGE DOCUMENTS MONTHLY

INDYMAC’S/ONEWEST FORECLOSURE ‘ROBO-SIGNERS’ SIGNED 24,000 MORTGAGE DOCUMENTS MONTHLY

Please welcome Ericka Johnson Seck to the ROBO-SIGNER Hall of Sham!

MERS & LPS once again the “Common Thread”

Here is a list of her many Corporate Hats:

  • Vice President of Mortgage Electronic Registration Systems Inc. (MERS)
  • Vice President of Deutsch Bank National Trust
  • Vice President of Bank of New York
  • Attorney in Fact of IndyMac
  • Attorney in Fact of ONEWEST
  • Attorney in  Fact of FDIC

I must confess, she was my first study because she signed two assignments for “one” of my properties using “two” different employers. 🙂 ‘<blush> I even created my very first youtube video in her honor (see below)!

Thanks to Judge Arthur Schack and Tom Ice from Ice Legal in Palm Beach County, we all became familiar with Erica for wearing too many corporate hats.

She is the “Robo-Signer” Judge Schack called out in three particular cases in NY and made her an instant foreclosure household name. I don’t think she ever emerged in NY soon after this. Also see the  HSCB v. Yasmin case.

Excerpt of DEUTSCHE BANK NATIONAL TRUST v. HARRIS

The Court is perplexed as to why the assignment was not executed in Pasadena, California, at 46U Sierra Madre Villa, the alleged “principal place of business” for both the assignor and the assignee. In my January 3 1, 2008 decision (Deutsche Bank National Tr (1st Canpuny v Maraj, – Misc 3d – [A], 2008 NY Slip Op 50176 [U]), I noted that Erica Johnson-Seck, claimed that she was a Vice President of MERS in her July 3,2007 INDYMAC to DEUTSCHE BANK assignment, and then in her July 3 1,2007 affidavit claimed to be a DEUTSCHE BANK Vice President. Just as in Deutsche Bank National Trust Company v Maraj, at 2, the Court in the instant action, before granting itn application for an order of reference, requires an affidavit from Ms. Johnson-Seck, describing her employment history for the past three years.

Further, the Court requires an explanation from an officer of plaintiff DEUTSCHE BANK as to why, in the middle of our national subprime mortgage financial crisis, DEUTSCHE BANK would purchase a non-perferforming loan from INDYMAC, and why DEUTSCHE BANK, INDYMAC and MERS all share office space at 460 Sierra Madre Villa, Pasadena, CA 91 107.

24,000 Monthly Documents executed by her team

Now Lets move on to this below… according to this deposition her office signs 24,000 mortgage related documents out of the this figure she signed about “750” a week making it approximately 3000 mortgage documents used in foreclosure cases. Anything from Affidavits of Debt, Lost Note Affidavits, Assignment of Mortgages, Declarations pretty much anything having to deal with Bankruptcy and Foreclosures.

This is what she signs without any notary present.

DEPOSITION OF ERICA JOHNSON SECK

[ipaper docId=37528161 access_key=key-t6hhb0aqxj8gvgam8s7 height=600 width=600 /]

Below is a sale that happened in DC all in 1 single day! It appears she also puts properties in her name with her co-employees Roger Stotts and  Eric Friedman.

ROGER STOTTS  signs these as well and according to the depo above Indymac/Onewest is “NOT” the custodian as defined below. Why do they commit fraud?


FIRST VIDEO MADE OF DAVID J. STERN, ERICA JOHNSON-SECK BACK IN FEBRUARY 2010

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, bogus, CONTROL FRAUD, corruption, deposition, deutsche bank, erica johnson seck, fdic, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, Former Fidelity National Information Services, investigation, judge arthur schack, Law Offices Of David J. Stern P.A., lis pendens, MERS, MERSCORP, Moratorium, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., notary fraud, note, onewest, robo signers, roger stotts, STOP FORECLOSURE FRAUD, stopforeclosurefraud.com11 Comments

DEPOSITIONS

DEPOSITIONS

Last updated- 3/27/2014

Full Deposition of JPMorgan/WaMU Lawrence Nardi Part 1 – Just What Happened To All Those Wamu’s Notes?

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Full Deposition of JPMorgan/WaMU Lawrence Nardi Part 2 – Just What Happened To All Those Wamu’s Notes?

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DEPOSITION OF FRANK A. DEAN – JP MORGAN CHASE – Home loan research officer

DEPOSITION OF FRANK A. DEAN – JP MORGAN CHASE – Home loan research officer

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FDIC- JPMORGAN- CHASE HOME FINANCE- WASHINGTON MUTUAL JEFFREY THORNE

In re Jolley: Secret FDIC & JPMorgan Chase Bank 118 Page Purchase and Assumption Agreement for Washington Mutual Bank Uncovered in Testimony of Jeffrey Thorne

________________________________________

ONEWEST BANK’S MARCOS FLORES

FULL DEPOSITION OF MARCOS FLORES – Assistant Vice President, Regional Outreach Manager of ONEWEST BANK

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NORTHWEST TRUSTEE

Full Deposition of Northwest Trustee Services YVONNE McELLIGOTT

Full Deposition of Northwest Trustee Services JEFF STENMAN

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BOF A CEO Brian T. Moynihan HIGHLY CONFIDENTIAL Deposition in MBIA v. Bank of America, Countrywide –

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FULL DEPOSITION TRANSCRIPT OF AURORA BANK FSB ASST. VICE PRESIDENT NEVA HALL

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Full Deposition of Michele Sjolander, Executive Vice President of Countrywide Home Loans, Inc. “Stamp Endorsement”

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Full Deposition Transcript of Patricia Berner Foreclosure Special Assets Specialist For American Home Mortgage Servicing, Inc. “AHMSI”

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FULL DEPOSITION TRANSCRIPT OF AURORA BANK JOANN “EDNA” REIN

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DAVID J. STERN / FANNIE MAE

DEPOSITION TRANSCRIPT OF DAVID J. STERN ESQ. FROM 1/19/2000 BRYANT v. STERN

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ROY DIAZ

Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm

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LITTON LOAN SERVICING

Christopher Spradling

Deposition Transcript of Litton Loan Servicing Litigation Manager Christopher Spradling

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SELECT PORTFOLIO SERVICING/ BANK OF NEW YORK

Mindy Leetham

Deposition Transcript of SELECT PORTFOLIO SERVICING (SPS) MINDY LEETHAM

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DEUTSCHE BANK NATIONAL TRUST

Ronaldo Reyes

DEPOSITION TRANSCRIPT OF DEUTSCHE BANK NATIONAL TRUST VP RONALDO REYES

PT. 2 “NO TRUST LOAN TRANSFER” DEPOSITION TRANSCRIPT OF DEUTSCHE BANK NATIONAL TRUST CO. VP RONALDO REYES

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Lender Processing Services – Fidelity- LPS

CHERYL D. THOMAS

Deposition Transcript of DOCx, LPS CHERYL DENISE THOMAS

CHRISTIAN S. HYMER

FULL DEPOSITION TRANSCRIPT OF CHRISTIAN S. HYMER 1ST VP OF OPERATIONS FOR LENDER PROCESSING SERVICES (LPS) MINNESOTA

WILLIAM “BILL” NEWLAND

DEPOSITION TRANSCRIPT OF LPS/ FIDELITY BILL NEWLAND

SCOTT A. WALTER

FULL DEPOSITION TRANSCRIPT OF LENDER PROCESSING SERVICES “LPS” SCOTT A. WALTER PART 1

FULL DEPOSITION TRANSCRIPT OF LENDER PROCESSING SERVICES SCOTT A. WALTER PART 2 “STEVEN J. BAUM, P.C.”, “O. MAX GARDNER”, “US TRUSTEE”

GREGORY “GREG” ALLEN

FULL DEPOSITION TRANSCRIPT OF LPS GREG ALLEN “MERS IS ALIVE”

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SHELLIE HILL

DEPOSITION TRANSCRIPT OF “SHELLIE HILL” OF LERNER, SAMPSON & ROTHFUSS LS&R

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ALDEN BERNER

FULL DEPOSITION TRANSCRIPT OF ALDEN BERNER WELLS FARGO

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LINDA DiMARTINI

FULL DEPOSITION TRANSCRIPT OF COUNTRYWIDE BofA LINDA DiMARTINI

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RONALD WOLFE

FULL DEPOSITION OF FLORIDA DEFAULT LAW GROUP MANAGING PARTNER RONALD WOLFE

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TAMARA PRICE

FULL DEPOSITION OF CITI RESIDENTIAL, AMC TAMARA PRICE

____________________________________

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Links to NationWide Title pending out come of ACLU Appeal read more here

NATIONWIDE TITLE CLEARING

BRYAN BLY

VIDEO DEPOSITION OF NATIONWIDE TITLE CLEARING BRYAN BLY

Citi Residential Deposition of Bly, Brian depo with attch[1]

CRYSTAL MOORE

SFF EXCLUSIVE: VIDEO DEPOSITION OF NATIONWIDE TITLE CRYSTAL MOORE

DHURATA DOKO

VIDEO DEPOSITION OF NATIONWIDE TITLE CLEARING DHURATA DOKO

ERICA LANCE

FULL DEPOSITION TRANSCRIPT OF NATIONWIDE TITLE CLEARING ERICA LANCE BRYAN BLY

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BETH CERNI

FULL DEPOSITION OF LAW OFFICES OF DAVID J. STERN BETH CERNI

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HOLLAN FINTEL

FULL DEPOSITION TRANSCRIPT OF HOLLAN FINTEL FORMER FLORIDA DEFAULT LAW GROUP ATTORNEY

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TAMARA SAVERY

WM_FULL DEPOSITION TRANSCRIPT OF WELLS FARGO TAMARA SAVERY

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MARY R. CORDOVA

WM FULL-DEPOSITION-TRANSCRIPT-OF-MARY-CARDOVA-OF-LAW-OFFICES-OF-DAVID-J.-STERN

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KELLY SCOTT

WM_FULL DEPOSITION TRANSCRIPT OF KELLY SCOTT OF LAW OFFICES OF DAVID J. STERN

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JUDY FABER

WM_FULL_DEPOSITION_OF_RESIDENTIAL FUNDING.GMAC_JUDY_FABER

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RENEE D. HERTZLER

WM_FULL_DEPOSITION_TRANSCRIPT_OF_BANK_OF_AMERICA_RENEE_D_HERTZLER

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HERMAN JOHN KENNERTY

Full-Deposition-of-Wells_Fargo_John-Herman-Kennerty

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TAMMIE LOU KAPUSTA

WM_Full-Deposition-of-Tammie-Lou-Kapusta-Law-Office-of-David-J-Stern

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ERICA JOHNSON SECK

WM_Deposition_of_Erica_Johnson-Seck_Part_I

Deposition_of_Erica_Johnson-Seck_Part_II

IndyMac Deposition of Johnson Seck, Erica Wagstaff v IndyMac

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CHERYL SAMONS

Deposition_Cheryl_Sammons

TAKE TWO NEW FULL DEPOSITION OF CHERYL SAMONS

Cheryl Samons 1st Depo from 2009

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BETH COTTRELL

BETH COTTRELL CHASE HOME FINANCE

Part II

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CHARLES HERNDON

EXHIBIT G Chase Deposition of Herndon, Charles 10-06-09

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SHANNON SMITH

FULL DEPOSITION OF DAVID J. STERN’S SHANNON SMITH

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ANGELA NOLAN

Deposition_of_Angela_Nolan

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JEFFREY STEPHAN

Deposition_of_Jeffrey_Stephan

Deposition_Of_Jeffrey_Stephan_2_Maine

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XEE MOUA

Wells Fargo Deposition Moua

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KRYSTAL HALL

DEPOSITION_OF_KRYSTAL HALL

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STANLEY SILVA

FULL DEPOSITION TRANSCRIPT OF TICOR TITLE STANLEY SILVA “NOTICE OF DEFAULTS” LPS, FIDELITY, MERS, WELLS FARGO

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FRANCIS S. HALLINAN, ESQ.

DEPOSITION OF FRANCIS S. HALLINAN, ESQUIRE “HIRED BY WELLS FARGO?”

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REAL MERS EXECUTIVES

R.K. ARNOLD

MERS R.K. ARNOLD 2006 depo 9252006

MERS DEPO OF CEO RK Arnold 2009

WILLIAM “BILL” HULTMAN

MERS DEPOSITION OF WILLIAM Hultman

MERS VP William Hultman Deposition NJ

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Posted in 2 Comments

MERS KISS: Keep It Simple Stupid… "SCAM"

MERS KISS: Keep It Simple Stupid… "SCAM"

If self nominating officers signing on

behalf of MERS, et al~ wasn’t good

enough…

The Voice of the White House

Washington, D.C., February 24, 2010:  Although only bankers are aware of it, there is a second wave of economic disaster starting to build up that will make the earlier one pale into insignificance. Let us start out with MERS, shall we?

MERS = Mortgage Electronic Registration Inc.holds approximately 60 million American mortgages and is a Delaware corporation whose sole shareholder is Mers Corp. MersCorp and its specified members have agreed to include the MERS corporate name on any mortgage that was executed in conjunction with any mortgage loan made by any member of MersCorp. Thus in place of the original lender being named as the mortgagee on the mortgage that is supposed to secure their loan, MERS is named as the “nominee” for the lender who actually loaned the money to the borrower. In other words MERS is really nothing more than a name that is used on the mortgage instrument in place of the actual lender. MERS’ primary function, therefore, is to act as a document custodian. MERS was created solely to simplify the process of transferring mortgages by avoiding the need to re-record liens – and pay county recorder filing fees – each time a loan is assigned. Instead, servicers record loans only once and MERS’ electronic system monitors transfers and facilitates the trading of notes. It has very conservatively estimated that as of February, 2010, over half of all new residential mortgage loans in the United States are registered with MERS and recorded in county recording offices in MERS’ name

MersCorp was created in the early 1990’s by the former C.E.O.’s of Fannie Mae, Freddie Mac, Indy Mac, Countrywide, Stewart Title Insurance and the American Land Title Association. The executives of these companies lined their pockets with billions of dollars of unearned bonuses and free stock by creating so-called mortgage backed securities using bogus mortgage loans to unqualified borrowers thereby creating a huge false demand for residential homes and thereby falsely inflating the value of those homes. MERS marketing claims that its “paperless systems fit within the legal framework of the laws of all fifty states” are now being vetted by courts and legal commentators throughout the country.

The MERS paperless system is the type of crooked rip-off scheme that is has been seen for generations past in the crooked financial world. In this present case, MERS was created in the boardrooms of the most powerful and controlling members of the American financial institutions. This gigantic scheme completely ignored long standing law of commerce relating to mortgage lending and did so for its own personal gain. That the inevitable collapse of the crooked mortgage swindles would lead to terrible national repercussions was a matter of little or no interest to the upper levels of America’s banking and financial world because the only interest of these entities was to grab the money of suckers, keep it in the form of ficticious bonuses, real estate and very large accounts in foreign banks. The effect of this system has led to catastrophic meltdown on both the American and global economy.

MERS, as has clearly been proven in many civil cases, does not hold any promissory notes of any kind. A party must have possession of a promissory note in order to have standing to enforce and/or otherwise collect a debt that is owed to another party. Given this clear-cut legal definition,  MERS does not have legal standing to enforce or collect on the over 60 million mortgages it controls and no member of MERS has any standing in an American civil court.

MERS has been taken to civil courts across the country and charged with a lack of standing in reposession issues. When the mortgage debacle initially, and inevitably, began, MERS always routinely brought actions against defaulting mortgage holders purporting to represent the owners of the defaulted mortgages but once the courts discovered that MERS was only a front organization that did not hold any deed nor was aware of who or what agencies might hold a deed, they have routinely been denied in their attempts to force foreclosure.  In the past, persons alleging they were officials of MERS in foreclosure motions, purported to be the holders of the mortgage, when, in fact, they not only were not the holder of the mortgage but, under a court order, could not produce the identity of the actual holder. These so-called MERS officers have usually been just employees of entities who are servicing the loan for the actual lender. MERS, it is now widely acknowledged by the courts, has no legal right to foreclose or otherwise collect debt which are evidenced by promissory notes held by someone else.

The American media routinely identifies MERS as a mortgage lender, creditor, and mortgage company, when in point of fact MERS has never loaned so much as a dollar to anyone, is not a creditor and is not a mortgage company. MERS is merely a name that is printed on mortgages, purporting to give MERS some sort of legal status, in the matter of a loan made by a completely different and almost always,a totally unknown entity.

The infamous collapse of the American housing bubble originated, in the main, with one Angelo Mozilo, CEO of the later failed Countrywide Mortgage.

Mozilo started working in his father’s butcher shop, in the Bronx, when he was ten years old. He graduated from Fordham in 1960, and that year he met David Loeb. In 1968, Mozilo and Loeb created a new mortgage company, Countrywide, together. Mozilo believed the company should make special efforts to lower the barrier for minorities and others who had been excluded from homeownership. Loeb died in 2003

In 1996, Countrywide created a new subsidiary for subprime loans.

  • Countrywide Financial’s former management
  • Angelo R. Mozilo, cofounder, chairman of the board, chief executive officer
  • David S. Loeb, cofounder, President and Chairman from 1969 to 2000
  • David Sambol, president, chief operating officer, director
  • Eric P. Sieracki, chief financial officer, executive managing director
  • Jack Schakett, executive managing director, chief operating officer
  • Kevin Bartlett, executive managing director, chief investment officer
  • Andrew Gissinger, executive managing director, chief production officer, Countrywide Home Loans[14]
  • Sandor E. Samuels, executive managing director, chief legal officer and assistant secretary
  • Ranjit Kripalani, executive managing director and president, Capital Markets
  • Laura K. Milleman, senior managing director, chief accounting officer
  • Marshall Gates, senior managing director, chief administrative officer
  • Timothy H. Wennes, senior managing director, president and chief operating officer, Countrywide Bank FSB
  • Anne D. McCallion, senior managing director, chief of financial operations and planning
  • Steve Bailey, senior managing director of loan administration, Countrywide Home Loans

The standard Countrywide procedure was to openly solicit persons who either had no credit or could not obtain it, and, by the use of false credit reports drawn up in their offices, arrange mortgages. The new home owners were barely able to meet the minimum interest only payments and when, as always happens, the mortgage payments are increased to far, far more than could be paid, defaults and repossessions were inevitable. Countrywide sold these mortgages to lower-tier banks which in turn, put them together in packages and sold them to the large American banks. These so-called “bundled mortgages” were quickly sold these major banking houses to many foreign investors with the comments that when the payments increased, so also would the income from the original mortgage. In 1996, Countrywide created a new subsidiary for subprime loans.

At one point in time, Countrywide Financial Corporation was regarded with awe in the business world. In 2003, Fortune observed that Countrywide was expected to write $400 billion in home loans and earn $1.9 billion. Countrywide’s chairman and C.E.O., Angelo Mozilo, did rather well himself. In 2003, he received nearly $33 million in compensation. By that same year, Wall Street had become addicted to home loans, which bankers used to create immensely lucrative mortgage-backed securities and, later, collateralized debt obligations, or C.D.O.s—and Countrywide was their biggest supplier. Under Mozilo’s leadership, Countrywide’s growth had been astonishing.

He was aiming to achieve a market share—thirty to forty per cent—that was far greater than anyone in the financial-services industry had ever attained. For several years, Countrywide continued to thrive. Then, inevitably, in 2007, subprime defaults began to rocket upwards , forcing the top American bankers to abandoned the mortgage-backed securities they had previously prized. It was obvious to them that the fraudulent mortgages engendered by Countrywide had been highly suceessful as a marketing program but it was obvious to eveyone concerned, at all levels, that the mortgages based entirely on false and misleading credit information were bound to eventually default. In August of 2007, the top American bankers cut off.   Countrywide’s short-term funding, which seriously hindered its ability to operate, and in just a few months following this abandonment,  Mozilo was forced to choose between bankruptcy or selling out to the best bidder.

In January, 2008, Bank of America announced that it would buy the company for a fraction of what Countrywide was worth at its peak. Mozilo was subsequently named a defendant in more than a hundred civil lawsuits and a target of a criminal investigation.  On June 4th, 2007 the S.E.C., in a civil suit, charged Mozilo, David Sambol, and Eric Sieracki with securities fraud; Mozilo was also charged with insider trading. The complaint formalized a public indictment of Mozilo as an icon of corporate malfeasance and greed.

In essence, not only bad credit risks were used to create and sell mortgages on American homes that were essentially worthless. By grouping all of these together and selling them abroad, the banks all made huge profits. When the kissing had to stop, there were two major groups holding the financial bag. The first were the investors and the second were, not those with weak credit, but those who had excellent credit and who were able, and willing to pay off their mortgages.

Unfortunately,  just as no one knows who owns the title to any home in order to foreclose, when the legitimate mortgage holder finally pays off his mortgage, or tries to sell his house, a clear title to said house or property cannot ever be found so, in essence, the innocent mortgage payer can never own or sell his house. This is a terrible economic time bomb quietly ticking away under the feet of the Bank of America and if, and when, it explodes, another bank is but a fond memory.

Readers wishing to find out if their title is secure should write to www.ChinkintheArmor.net, leave a comment on any article and ask for contact information for legal advice.

http://www.tbrnews.org/Archives/a3019.htm

Full Deposition of the Infamous Erica Johnson Seck RE: Indymac Federal Bank Fsb, Plaintiff, Vs. Israel a. Machado – 50 2008 CA 037322xxxx Mb

SOON TO BE FAMOUS ROGER STOTTS & DENNIS KIRKPATRICK VP’s, MERS, ATTORNEY in FACT, ONEWEST, INDYMAC, Deutsche BANK et al~~

BOGUS ASSIGNMENTS 3…Forgery, Counterfeit, Fraud …Oh MY!

Posted in chase, concealment, conspiracy, corruption, dennis kirkpatrick, erica johnson seck, fraud digest, geithner, george soros, indymac, Law Offices Of David J. Stern P.A., lehman brothers, Lender Processing Services Inc., LPS, michael dell, Mortgage Foreclosure Fraud, mozillo, note, onewest, roger stotts, scam, sewer service, steven mnuchin, Uncategorized, wachoiva, washington mutual, wells fargo1 Comment

SOON TO BE FAMOUS ROGER STOTTS & DENNIS KIRKPATRICK VP's, MERS, ATTORNEY in FACT, ONEWEST, INDYMAC, Deutsche BANK et al~~

SOON TO BE FAMOUS ROGER STOTTS & DENNIS KIRKPATRICK VP's, MERS, ATTORNEY in FACT, ONEWEST, INDYMAC, Deutsche BANK et al~~

Lets connect this Pyramid: Erica Johnson-Seck, Roger Stotts, Dennis Kirkpatrick. The Law Offices Of David J. Stern P.A. seem to have the same players by “virtue” hereof?

“WALLSTREET is our AMERICAN TERRORTIST”

What these people have done is no different than the 9/11 acts, they did not use planes

they used our homes to destroy us financially! They are killing us s..l..o…w..l..y!

This time the government is rewarding their behavior!

WE WILL NEVER FORGET 9/11

But…I thought he is an Attorney in Fact for IndyMac above? But Now VP for MERS?

COMPARE HIS SIGNATURES

I EVEN HAVE THEM SIGNING onbehalf of the FDIC!

They are in my stash will post when I find em’.

All three together as Attorney In Fact for OnesWest

Below is a sale that happened in DC all in 1 single day! I am still trying to understand it all.

HHHmmm more investigating….

So there you have it..I can show plenty more but it will take many years truthfully to put all the documents they signed all in one room!

See Erica’s Master Pieces here…

Full Deposition of the Infamous Erica Johnson Seck RE: Indymac Federal Bank Fsb, Plaintiff, Vs. Israel a. Machado – 50 2008 CA 037322xxxx Mb

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in concealment, conspiracy, corruption, dennis kirkpatrick, erica johnson seck, fraud digest, indymac, Law Offices Of David J. Stern P.A., Lender Processing Services Inc., LPS, MERS, michael dell, Mortgage Foreclosure Fraud, onewest, roger stotts, scam6 Comments

Lee v. OCWEN LOAN SERVICING, LLC, Assurant, Dist. Court, SD Florida 2015 | Final Approval for $140MM Forced-Placed Insurance Class Action

Lee v. OCWEN LOAN SERVICING, LLC, Assurant, Dist. Court, SD Florida 2015 | Final Approval for $140MM Forced-Placed Insurance Class Action

 

JENNIFER LEE, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, et al., Defendants.

Case No. 14-CV-60649-GOODMAN.
United States District Court, S.D. Florida, Miami Division.
September 14, 2015.

ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT

JONATHAN GOODMAN, Magistrate Judge.

This Court held a June 11, 2015 hearing to consider the parties’ request that the Court approve the proposed class action settlement, consider the the objections to it and also approve and Class Counsel’s fee application (the “Final Fairness Hearing”). The Court granted preliminary approval of the settlement on January 23, 2015. [ECF No. 125.] The hearing was held pursuant to Federal Rule of Civil Procedure 23(e)(1)(A), which mandates judicial review of any “settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.” The Court has carefully considered the parties’ written submissions, including significant post-hearing memoranda and exhibits, the evidence and arguments presented, and the applicable law.

Class Counsel argue that a recent Eleventh Circuit Court of Appeals decision has, for all practical purposes, mooted the primary objections — that the settlement should not be approved because it is based on a claims-made methodology (referred to interchangeably as “claims process” and “claims-made process”) and that the attorney’s fees should not be approved for the same reason. The Undersigned does not interpret this recent case, Poertner v. Gillette Co., No. 14-13882, 2015 WL 4310896 (11th Cir. July 16, 2015),[1] as broadly as class counsel and therefore does not agree that it effectively forecloses the primary objections. Nevertheless, Gillette, which involves a significantly different type of lawsuit than the one here, is certainly helpful to Class Counsel. In addition, other district courts, including district courts in this Circuit, have approved claims-based class action settlements involving lender-place insurance — the type of case at issue here — and those cases are certainly persuasive.

The primary objector contends that a claims-made process is not necessary because Defendant Ocwen Loan Servicing, LLC (“Ocwen”) does have the ability, on a systemwide borrower-by-borrower basis, to identify borrowers who have paid the amounts or some portions of the amounts invoiced them for lender-placed insurance, or those who still owe those amounts. Therefore, the primary objector argues, Ocwen could therefore directly pay Ocwen borrowers. But Plaintiffs and Defendants view this objection as merely a baseless theory submitted by counsel who has a financial interest in causing the proposed settlement to be rejected. Moreover, Plaintiffs describe the objection as little more than an incorrect, self-interested hunch, belied by deposition testimony submitted after the Fairness Hearing (and also contradicted by similar testimony in other cases from other mortgage loan processors).

The Court has afforded the primary objector, Margo Perryman, more than ample opportunity to pursue her objections, permitting her to submit myriad memoranda [ECF Nos. 146, 173, 181], even though neither she nor her counsel appeared at the final fairness hearing.

For the reasons outlined below, the Court approves in full the proposed class action settlement and Class Counsel’s fee application and overrules all objections.

INTRODUCTION

Homeowners are often required by the terms of their mortgage contracts to maintain insurance coverage on the properties securing their loans. If the homeowner does not maintain the required insurance, then the lender is authorized by the mortgage contract to obtain new insurance to cover its interest in the property and the loan. Lenders do this by contracting with insurance carriers for the insurance’s automatic issuance. This is what is commonly referred to as “lender-placed insurance” (“LPI”), though Plaintiffs often brand the practice as force-placed insurance. The Court will use the term lender-placed insurance, or LPI.

This case is one of many lawsuits that have been filed around the country against various lenders, servicers, and insurers regarding LPI programs. These suits, like this one, principally allege that lenders and insurers colluded to create a scheme of “kickbacks” in the form of unearned commissions and other benefits that artificially inflate LPI premium rates. In recent years, some of these suits have been settled on a class-wide basis. Of these class action settlements, many have been structured to require class members’ submission of claim forms to obtain the settlements’ monetary relief, usually some percentage of the LPI premium charged.

Although these settlements have drawn objections — including that the claims process is supposedly unnecessary — the Parties have advised the Court that no court has yet to disapprove an LPI class settlement structured this way. In addition, Defendant American Security Insurance Company (“ASIC”) has further advised that no state or federal regulator voiced opposition to such a structure (even though the proposed settlement agreement was forwarded to them). ASIC explained that regulators sometimes do object, so ASIC contends that the lack of any objection here is particularly significant.

By the parties’ count, district courts have granted final approval to at least eight LPI class action settlements with the same structure as the Settlement here, as well as several others that are structured differently and provide much less monetary relief to class members. Indeed, one district court touted settlements like this — that provide near-complete relief to class members on a claims-made basis — as extraordinary, and particularly so when compared to direct-pay force-placed insurance settlements that compensate all members of a settlement class, but provide far less relief to each class member and with payments that bore little, if any, relation to the actual losses suffered by individual class members. See Arnett v. Bank of Am., N.A., No. 3:11-cv-1372, 2014 U.S. Dist. LEXIS 130903, at *35-37 (D. Or. Sept. 18, 2014).

On January 23, 2015, this Court granted preliminary approval to the proposed class action settlement set forth in the Stipulation and Settlement Agreement (the “Settlement Agreement”)[2] between Plaintiffs Jennifer Lee, Douglas A. Patrick, Gerald Coulthurst, Lisa Chamberlin Engelhardt, Enrique Dominguez, Frances Erving, Johnnie Erving, John Clarizia, and Shelia D. Heard (“Plaintiffs”), on behalf of themselves and all members of the Settlement Class, and Defendants Ocwen, Assurant, Inc. (“Assurant”), ASIC, Standard Guaranty Insurance Company (“SGIC”), Voyager Indemnity Insurance Company (“VIIC”), and American Bankers Insurance Company of Florida (“ABIC”) (Assurant, ASIC, SGIC, ABIC, and VIIC are collectively referred to herein as the “Assurant Defendants”). The Court also provisionally certified the Settlement Class for settlement purposes, approved the procedure for giving Class Notice to the members of the Settlement Class, and set a Final Approval Hearing to take place on June 11, 2015. The Court finds that the Class Notice substantially in the form approved by the Court in its preliminary approval order was given in the manner ordered by the Court, constitutes the best practicable notice, and was fair, reasonable, and adequate.

On June 11, 2015, the Court held a duly noticed Final Approval Hearing to consider: (a) whether the terms and conditions of the Settlement Agreement are fair, reasonable, and adequate; (b) whether a judgment should be entered dismissing the Named Plaintiffs’ amended complaint on the merits and with prejudice in favor of the Defendants and against all persons or entities who are Settlement Class Members herein who have not requested exclusion from the Settlement Class; and (c) whether and in what amount to award Attorneys’ Fees and Expenses to Class Counsel for the Settlement Class, and whether and in what amount to award a Case Contribution Award to the Named Plaintiffs.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Court has personal jurisdiction over the Parties and the Settlement Class Members, venue is proper, the Court has subject-matter jurisdiction to approve the Settlement Agreement, including all exhibits, and to enter this Final Order.

2. The Court finds that the prerequisites for a class action under Federal Rules of Civil Procedure 23(a) and 23(b) have been satisfied for settlement purposes for each Settlement Class Member in that: (a) the number of Settlement Class Members is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the claims of the Named Plaintiffs are typical of the claims of the Settlement Class they seek to represent; (d) Named Plaintiffs have and will continue to fairly and adequately represent the interests of the Settlement Class for purposes of entering into the Settlement Agreement; (e) the questions of law and fact common to the Settlement Class Members predominate over any questions affecting any individual Settlement Class Member; (f) the Settlement Class is ascertainable; and (g) a class action settlement is superior to the other available methods for the fair and efficient adjudication of the controversy.

3. Pursuant to Federal Rule of Civil Procedure 23, this Court hereby finally certifies the Settlement Class, as identified in the Settlement Agreement, which shall consist of the following:

All borrowers in the United States who, within the Settlement Class Period (defined below), were charged by Ocwen under a hazard, flood, flood gap or wind-only LPI Policy for residential property, and who, within the Settlement Class Period, either (a) paid to Ocwen the Net Premium for that LPI Policy or (b) did not pay to and still owe Ocwen the Net Premium for that LPI Policy. Excluded from the Settlement Class are: (a) individuals who are or were during the Settlement Class Period officers or directors of the Defendants in the Action or any of their respective Affiliates; (b) any justice, judge, or magistrate judge of the United States or any State, their spouses, and persons within the third degree of relationship to either of them, or the spouses of such persons; (c) borrowers whose LPI Policy was cancelled in its entirety such that any premiums charged and/or collected were fully refunded to the borrower or to the borrower’s escrow account; and, (d) all borrowers who file a timely and proper request to be excluded from the Settlement Class.

The Settlement Class Period shall commence on January 1, 2008 and shall continue through and including January 23, 2015.

4. The Court finally appoints the law firms of Kozyak, Tropin, & Throckmorton, P.A., Podhurst Orseck, P.A., and Harke Clasby & Bushman LLP as Class Counsel for the Settlement Class.

5. The Court finally designates Named Plaintiffs Jennifer Lee, Douglas A. Patrick, Gerald Coulthurst, Lisa Chamberlin Engelhardt, Enrique Dominguez, Frances Erving, Johnnie Erving, John Clarizia, and Shelia D. Heard as the Class Representatives.

6. The Court makes the following findings on notice to the Settlement Class:

(a) Federal Rule of Civil Procedure 23(c)(2) requires that notice to Settlement Class Members be the “best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” However, “even in Rule 23(b)(3) class actions, due process does not require that class members actually receive notice.” Juris v. Inamed Corp., 685 F. 3d 1294, 1321 (11th Cir. 2012). Instead, notice need only be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985).

(b) The Court finds that the distribution of the Mail Notice, Summary Publication Notice (published in USA Today), Internet media campaign, the creation of the IVR toll-free telephone number system, and creation of the Settlement Website, all as provided for in the Settlement Agreement and Preliminary Approval Order, (i) constituted the best practicable notice under the circumstances to Settlement Class Members, (ii) constituted notice that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of the pendency of the Litigation, their right to object or to exclude themselves from the proposed Settlement, and their right to appear at the Final Approval Hearing, (iii) was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to be provided with notice, and (iv) complied fully with the requirements of Federal Rule of Civil Procedure 23, the United States Constitution, the Rules of this Court, and any other applicable law.

7. The Parties have complied with their notice obligations under the Class Action Fairness Act, 28 U.S.C. § 1715, in connection with the Settlement. Defendants timely sent notices of the proposed Settlement, including the materials required by that Act, to the appropriate state and federal officials. [ECF Nos. 114-1; 115-1].

8. The Settlement Agreement is finally approved as fair, reasonable, and adequate pursuant to Federal Rule 23(e). The terms and provisions of the Settlement Agreement, including all exhibits, have been entered into in good faith and are hereby fully and finally approved as fair, reasonable, and adequate as to, and in the best interests of, each of the Parties and the Settlement Class Members.

9. There is a strong judicial policy favoring the pretrial settlement of class actions. See, e.g., In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992) (“Public policy strongly favors the pretrial settlement of class action lawsuits”); Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (“Particularly in class action suits, there is an overriding public interest in favor of settlement”).[3] A class settlement should be approved if it is “fair, reasonable, and adequate,” Federal Rule 23(e)(2), and “not the product of collusion.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). While Fed. R. Civ. P. 23(e) itself does not particularize standards for approval, those standards have been articulated in the case law. They include “(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved.” Id.; see also Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1240 (11th Cir. 2011).

(a) This Court, like others, “considers the reaction of the class, as well as the reaction of the various state attorney generals and regulators, to the proposed settlement to be an important indicator as to its reasonableness and fairness.” Hall v. Bank of Am., N.A., No. 12-22700, 2014 WL 7184039, at *5 (S.D. Fla. Dec. 17, 2014). Obviously, “a low number of objections suggests that the settlement is reasonable, while a high number of objections would provide a basis for finding that the settlement was unreasonable.” Saccoccio v. JP Morgan Chase Bank, N.A., 297 F.R.D. 683, 694 (S.D. Fla. 2014); see also Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1324 (S.D. Fla. 2005).

(i) This Settlement has met with near-universal approval. A total of 399,843 Notice Packages were initially mailed to Settlement Class Members on March 13, 2015 [ECF Nos. 158-1, ¶ 5; 144-4, ¶ 8], with thousands more Notice Packages re-mailed with updated mailing addresses. [ECF Nos. 158-1, ¶ 7; 144-4, ¶ 10]. In any class of this size, it would be no surprise if a settlement produced numerous objections and exclusions. Yet here, only four objections were filed by five Class Members — a trivial fraction of the Class — and only 160 timely Requests for Exclusion were received from Class Members. [ECF No. 158-1, ¶ 9]. Two of the objectors, Shane and Cecelia Valdez, have since withdrawn their joint objection [ECF No. 162], and the Court approved the withdrawal of that objection from consideration [ECF No. 163], leaving just three live objections filed by Class Members Margo Perryman [ECF No. 146], Michael Hobbs [ECF No. 148], and Jon Hansen [ECF No. 153]. Neither the United States Attorney General, the Director of the Consumer Financial Protection Bureau, the Comptroller of the Currency, nor a single state attorney general or insurance commissioner objected, although they were all notified of the opportunity to do so.

(ii) These responses of stakeholders to the Settlement are powerful indicia that the Settlement is fair, reasonable and adequate, and deserves final approval. See Hall, 2014 WL 7184039, at *5 (where objections from LPI settlement class members “equates to less than .0016% of the class” and “not a single state attorney general or regulator submitted an objection,” “such facts are overwhelming support for the settlement and evidence of its reasonableness and fairness”); Hamilton v. SunTrust Mortg, Inc., No. 13-60749, 2014 WL 5419507, at *4 (S.D. Fla. Oct. 24, 2014) (where “not a single state attorney general or regulator submitted an objection,” combined with few objections to LPI class settlement, “such facts are overwhelming support for the settlement”); Burrows v. Purchasing Power, LLC, No. 12-22800, 2013 WL 10167232, at *7 (S.D. Fla. Oct. 7, 2013) (“No members of the Settlement Class oppose the settlement, nor have any governmental agencies filed opposition”).

(b) “The next two Bennett factors are the range of possible recovery and the point on or below the range at which a settlement is fair, adequate and reasonable.” Lipuma, 406 F. Supp. 2d at 1322. “In considering the question of a possible recovery, the focus is on the possible recovery at trial.” Id. “The Court’s role is not to engage in a claim-by-claim, dollar-by-dollar evaluation, but to evaluate the proposed settlement in its totality.” Id. at 1323. “A settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the potential recovery.” Id. (internal quotation marks omitted).

(i) The Settlement is generous to Class Members, providing relief approximating a trial win and, for many Class Members, exceeding a trial win. In LPI class actions like this, plaintiffs have not challenged the right to place LPI or sought the return of the entire LPI charge, but have sought only the portion of the charge allegedly “inflated” by defendants’ compensation arrangements. In this Settlement, for each LPI Policy, Class Members may obtain a refund or credit of 12.5% of the LPI’s Net Premium [ECF No. 144-1, ¶¶ 4.6.2, 4.6.3], a percentage that the Court finds not only approximates Class Members’ alleged damages, but is comparable to or exceeds refund and credit percentages allowed in multiple LPI class settlements approved in this District and elsewhere. See, e.g., Hamilton, 2014 WL 5419507, at *4 (10.5%); Fladell v. Wells Fargo Bank, N.A., No. 13-60721, 2014 WL 5488167, at *4 (S.D. Fla. Oct. 29, 2014) (7% or 11%); Saccoccio, 297 F.R.D. at 693 (12.5%).

Unlike some consumer class settlements, this is not a low-dollar value or “coupon” settlement. In many instances, perhaps most, the Claim Settlement Relief will be worth hundreds of dollars to the average Claimant.

(ii) Even if a Class Member did not pay any part of her LPI Premium, that Class Member is nevertheless entitled to recover full Claim Settlement Relief, the only difference being the manner in which relief is provided. And Class Members are eligible to receive Claim Settlement Relief merely by submitting a streamlined Claim Form and confirming their identity in one of several ways. Detailed information — like coverage periods, total charges, or amounts paid — need not be supplied. [ECF No. 144-2 Ex. C]. To the contrary, although Defendants reserve the right to audit claims for evidence of fraud, the Parties will accept as truth Class Members’ affirmations that they paid any portion of the Premium.[4]

(iii) The Settlement also offers substantial injunctive relief. [ECF No. 144-1, ¶¶ 4.2-4.4]. For a five-year period, Ocwen will not receive any commissions paid as a result of the placement of LPI, enter into any quota share reinsurance arrangements on new or renewal LPI policies, accept payments from any LPI insurer or LPI vendor for any administrative or other service associated with LPI, or place LPI through an insurer or vendor affiliated with Ocwen. [Id., ¶ 4.2.1(i)-(iv)]. LPI policies will be dual interest for any coverage for which Ocwen attempts to recoup from borrowers the LPI premiums paid by Ocwen to the LPI insurer; “dual interest” means that the borrower will have the right to file a claim under the policy. [Id., ¶ 4.2.1(v)]. And the Settlement requires other conduct from Ocwen. [Id., ¶ 4.2.1(vi)-(viii)].

Similarly, the Settlement will prohibit the Assurant Defendants for a five-year period from providing to Ocwen hazard LPI commissions, LPI quota share reinsurance arrangements, or payments for administrative or other services associated with hazard LPI or other LPI-related services. [Id., ¶ 4.3.1(i)-(iii)]. Nor may the Assurant Defendants accept payments from Ocwen for below-cost or free outsourced services provided to Ocwen in connection with hazard LPI. [Id., ¶ 4.3.1(iv)]. Similar injunctive relief has been found to constitute “important changes that will help homeowners” and to “have significant value to the class members nationwide.” Hamilton, 2014 WL 5419507, at *4; see also Hall, 2014 WL 7184039, at *5 (“The Court finds the injunctive changes provided in the Settlement Agreement are important and have significant value to the class members nationwide.”). See also Gillette, 2015 WL 4310896 (explaining benefits of injunctive relief).

(c) The Court also must consider the likelihood and extent of any recovery from Defendants absent the Settlement.

(i) The Settlement’s terms were achieved notwithstanding many courts disagreeing about whether the underlying theories of liability even state valid claims for relief. Indeed, there is “no doubt that recent federal appellate decisions have changed the climate for Plaintiffs’ class action attorneys pursuing force-placed insurance claims.” Montoya v. PNC Bank, N.A., No. 14-20474, 2014 WL 4248208, at *2 (S.D. Fla. Aug. 27, 2014). See also Rothstein v. Balboa Insur. Co., 794 F.3d 256 (2d Cir. July 22, 2015) (reversing denial of order denying motion to dismiss LPI case because the filed rate doctrine barred the claim).

The Eleventh Circuit itself has rejected LPI-related claims similar to the ones alleged here. See Feaz v. Wells Fargo Bank, N.A., 745 F.3d 1098, 1110-11 (11th Cir. 2014); Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1340-42 (11th Cir. 2000). And this Court emphasized in another LPI lawsuit that while plaintiffs’ mail and wire fraud allegations may be “barely” sufficient to withstand a motion to dismiss by “a razor-thin margin,” there are “strong headwinds” that will test plaintiffs’ “less-than-obvious causation theory” and purported “fraudulent scheme” at later stages in the litigation. Montoya v. PNC Bank, N.A., No. 14-20474, 2015 WL 1311482, at *13-16, *24-26 (S.D. Fla. Mar. 23, 2015); see also Wilson v. Everbank, N.A., No. 14-22264, 2015 WL 1600549, at *2-6 (S.D. Fla. Apr. 9, 2015) (dismissing comparable LPI mail and wire fraud-based claims); Hall, 2014 WL 7184039, at *4 (noting that “a number of courts have dismissed” comparable LPI claims, so “there exists a potential that the class could endure a long and expensive trial only to come away with nothing”); Saccoccio, 297 F.R.D. at 692 (observing that “there is strong authority to suggest that Plaintiff may not have prevailed” in similar LPI class litigation).[5]

(ii) Defendants also have strong affirmative defenses. For example, Defendants made arguments based upon the filed rate doctrine that could have been dispositive at later stages of the Litigation. Some courts, including appellate courts, have found this defense theory dispositive. “The filed rate doctrine (also known as the `filed tariff doctrine’) `forbids a regulated entity to charge rates for its services other than those properly filed with the appropriate federal regulatory authority.'” Hill v. BellSouth Telecommc’ns, Inc., 364 F.3d 1308, 1315 (11th Cir. 2004) (quoting Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 (1981)). “Therefore, causes of action in which the plaintiff attempts to challenge the terms of a filed tariff are barred by the filed rate doctrine.” Id. Moreover, “even if a claim does not directly attack the filed rate, an award of damages to the customer that would, in effect, result in a judicial determination of the reasonableness of that rate is prohibited under the filed rate doctrine.” Id. at 1317. Defendants here argue that the filed rate doctrine applies to filed insurance premium rates like the LPI premium rates at issue here, and there is surely authority to support that position. See, e.g., Rothstein, 794 F.3d 256; Kunzelmann v. Wells Fargo Bank, N.A., No. 11-81373, 2013 WL 139913, at *12 (S.D. Fla. Jan. 10, 2013); Morales v. Attorneys’ Title Ins. Fund Inc., 983 F. Supp. 1418, 1426 (S.D. Fla. 1997).

(iii) Many courts have applied the filed rate doctrine to dismiss comparable LPI claims, including fraud-based claims, at the pleadings stage. See, e.g., Johnson v. Green Tree Servicing LLC, No. 15-18, 2015 WL 2452680, at *2 (N.D. Miss. May 22, 2015); Miller v. Wells Fargo Bank, N.A., 994 F. Supp. 2d 542, 553-54 (S.D.N.Y. 2014); Curtis v. Cenlar FSB, No. 13-3007, 2013 WL 5995582, at *3 (S.D.N.Y. Nov. 12, 2013); Singleton v. Wells Fargo Bank, N.A., No. 12-216, 2013 WL 5423917, at *2 (N.D. Miss. Sept. 26, 2013); Roberts v. Wells Fargo Bank, N.A., No. 12-200, 2013 WL 1233268, at *13 (S.D. Ga. Mar. 27, 2013); Decambaliza v. QBE Holdings, Inc., No. 13-286, 2013 WL 5777294, at *6-7 (W.D. Wis. Oct. 25, 2013); Stevens v. Union Planters Corp., No. 00-1695, 2000 WL 33128256, at *3 (E.D. Pa. Aug. 22, 2000). And even if (as here) Plaintiffs survived an early motion to dismiss,[6] it is “apparent that the filed rate doctrine is an issue that must be addressed” eventually, whether at summary judgment, trial, or in another posture. Kunzelmann, 2013 WL 139913, at *12. In the context of a nationwide class, ruling on the filed rate doctrine under the differing laws of the 50 states would be exceedingly complicated, and could yield disparate results. “To determine whether, and to what extent the filed-rate doctrine is applicable would require an analysis of each state’s formulation of the doctrine and may require examination of the regulatory proceedings involved in approving the rate filed.” Id.

(iv) For the same and other reasons, Plaintiffs’ ability to obtain certification of a litigated class is less than certain. It does not appear that any court, state or federal, has granted a contested motion to certify a nationwide class of borrowers asserting comparable LPI claims. Many courts have declined to do so. See Hall, 2014 WL 7184039, at *4 (noting that “most courts have denied class certification in lender-placed insurance cases, and none have certified a nationwide class”); Kunzelmann, 2013 WL 139913, at *4-12 (denying class certification of comparable LPI claims); Gordon v. Chase Home Finance, LLC, No. 11-2001, 2013 WL 436445, at *6-12 (M.D. Fla. Feb. 5, 2013) (same); accord Rapp v. Green Tree Servicing LLC, 302 F.R.D. 505, 509-20 (D. Minn. 2014) (same); Gustafson v. BAC Home Loans Servicing, LP, 294 F.R.D. 529, 535-50 (C.D. Cal. 2013) (same); cf. Montoya, 2015 WL 1311482, at *27 (recognizing “need to again confront the filed-rate doctrine argument when analyzing [a] class certification motion”).

(v) The Settlement thus avoids fundamental uncertainties with Plaintiffs’ claims. Litigating these claims to resolution would have undoubtedly proven difficult and consumed significant time, money, and judicial resources. Even if Plaintiffs were ultimately to have prevailed in litigation, that success would likely have borne fruit for the Class only after years of trial and appellate proceedings and the expenditure of millions of dollars by both sides. This factor also weighs in favor of approving the settlement. See, e.g., In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mex., on Apr. 20, 2010, 910 F. Supp. 2d 891, 932 (E.D. La. 2012) aff’d 2014 WL 103836 (5th Cir. Jan. 10, 2014) (“Even assuming litigation could obtain the results that this Settlement provides, years of litigation would stand between the class and any such recovery. Hence, this second . . . factor weighs strongly in favor of granting final approval to the Settlement Agreement”).

Put simply, the agreed Settlement relief here is nearly what (and in many cases, more than) Plaintiffs could have obtained in a contested resolution of the Litigation. That relief will be available immediately, without protracted proceedings. “Significantly, none of the objectors disputed that these obstacles exist and are formidable. In light of the recovery to the class, as well as the significant litigation risk Plaintiffs faced absent settlement, the settlement is fair, reasonable and adequate.” Hall, 2014 WL 7184039, at *4.

(d) The complexity, expense, and duration of continued litigation is another factor weighing heavily in favor of final approval. Many of Plaintiffs’ claims were highly complex. See Saccoccio, 297 F.R.D. at 692, 693 (characterizing comparable LPI claims as “highly complex” and “quite complex”). A massive effort would be necessary to conclude the Litigation under the auspices of a jury, and have that result reviewed on appeal. To reach the trial stage, the Parties would unquestionably engage in substantial motion practice, including discovery motions, briefs and expert opinions for and opposing certification of a class, motions for summary judgment, and a series of motions in limine. The Court would be presented with numerous pre-trial legal and evidentiary disputes. Moreover, a trial of this Litigation would take substantial time, likely straining the patience of even the most engaged jurors. “Complex litigation — like the instant case — can occupy a court’s docket for years on end, depleting the resources of the parties and the taxpayers while rendering meaningful relief increasingly elusive.” U.S. Oil, 967 F.2d at 493.

(e) The Court considers the stage at which the Settlement was reached. “The stage of the proceedings at which a settlement is achieved is evaluated to ensure that Plaintiffs had access to sufficient information to adequately evaluate the merits of the case and weigh the benefits of settlement against further litigation.” Lipuma, 406 F. Supp. 2d at 1324. “Early settlements are favored,” however, and “`vast formal discovery need not be taken.'” Saccoccio, 297 F.R.D. at 694 (quoting Lipuma, 406 F. Supp. 2d at 1324). “Information obtained from other cases may be used to assist in evaluating the merits of a proposed settlement of a different case.” Lipuma, 406 F. Supp. 2d at 1325.

(i) Class Counsel were well-positioned to evaluate the merits of Plaintiffs’ claims, as well as the appropriate basis on which to settle them, as a result of their participation in years of similar LPI litigation in this District and elsewhere, and review of over 30 million pages of documents and over 30 depositions in similar litigation [ECF Nos. 144-3, ¶ 46; 161, pp. 54:17-56:21], including repeated depositions of Ronald Wilson (vice president of account management for several of the Assurant Defendants) and other representatives of the Assurant Defendants. [ECF Nos. 144-3, ¶¶ 16, 39; 161, pp. 54:17-55:7, 108:17-25]. Some of the discovery obtained in those other LPI cases included discovery concerning Ocwen. [Id.].

(ii) In this Litigation, Class Counsel conducted extensive formal and informal discovery before and during the Lee Mediation. [ECF Nos. 144-3, ¶¶ 11, 15, 16, 44; 161, pp. 55:14-25]. Among other things, Defendants provided Class Counsel with details about the functions and capabilities of the systems on which they retain borrowers’ financial data, including Defendants’ inability to query those systems for information about which borrowers may have paid or still owe amounts for LPI charges. [Id., ¶¶ 15, 37]. Defendants also provided Class Counsel with information concerning Ocwen’s hazard, flood, and wind LPI programs, including detailing the compensation arrangements between Defendants, the number of LPI Policies in force, and aggregate Premiums. [Id., ¶ 15].

(iii) After negotiating the Settlement Agreement, Defendants publicly filed declarations by Mr. Wilson [ECF No. 154-1] and Jason Jastrzemski (Ocwen’s director of mortgage servicing oversight) [ECF No. 134-1] confirming that it is not feasible to determine systematically whether LPI premiums were paid or are still owed by any given Class Member.[7] On June 25, 2015, after the Fairness Hearing (and perhaps because of questions which arose during the hearing), Class Counsel took Mr. Jastrzemski’s deposition to test the statements made in his declaration, the transcript of which has now been publicly filed. [ECF No. 169-1]. Although these evidentiary materials were not available at the time the Settlement Agreement was negotiated, they confirm the factual premises upon which the Settlement was based. Plaintiffs also publicly filed declarations from the Settlement Administrator regarding the number of Class Members, Claimants, and Requests for Exclusion. [ECF Nos. 144-4; 158-1].

(f) The Court next considers whether the Parties colluded in negotiating the Settlement Agreement. “Collusion may not always be evident on the face of a settlement, and courts therefore must be particularly vigilant not only for explicit collusion, but also for more subtle signs that class counsel have allowed pursuit of their own self-interests and that of certain class members to infect the negotiations.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011). The Court is satisfied that this Settlement is not the product of collusion, explicit or subtle.

(i) “Where the parties have negotiated at arm’s length, the Court should find that the settlement is not the product of collusion.” Saccoccio, 297 F.R.D. at 692. “There is a presumption of good faith in the negotiation process.” Id. That presumption has not been rebutted here. The Settlement Agreement was the result of arm’s-length negotiations, assisted by a well-known mediator for class actions, Rodney A. Max [ECF No. 150-1]. As the Court stated at the Final Approval Hearing, Mr. Max is a “highly respected mediator” [ECF No. 161, p. 84:21-22], “one of the top mediators in Florida,” and, indeed, “probably one of the top mediators in the country.” [Id., at p. 60:2-3]. This Court is not alone in its estimation of Mr. Max. See, e.g., Curry v. AvMed, Inc., No. 10-24513, 2014 WL 7801286, at *2 (S.D. Fla. Feb. 28, 2014) (favorably observing that class settlement negotiations were “presided over by the highly experienced third-party neutral Rodney A. Max”); Burrows, 2013 WL 10167232, at *7 (finding no evidence of collusive class settlement based in part on testimony of mediator Rodney Max). Notably, Mr. Max has mediated to resolution other LPI class settlements that have received final approval in this District. “Parties colluding in a settlement would hardly need the services of a neutral third party to broker their deal.” Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693 (N.D. Ga. 2001).[8]

(ii) Settlement discussions proceeded in three phases. First, before formal mediation the Parties engaged in multiple telephonic negotiating sessions and exchanged significant amounts of information under Mr. Max’s supervision. [ECF Nos. 144-3, ¶¶ 11, 13, 15; 150-1, ¶¶ 2-9, 11, 13]. Second, on November 6, 2014, the parties participated in an in-person mediation session. [ECF Nos. 144-3, ¶ 13; 150-1, ¶¶ 11-12]. The Parties reached an agreement in principle on November 13, 2014 [ECF Nos. 144-3, ¶¶ 17; 150-1, ¶ 15], culminating in the 114-page Settlement Agreement. [ECF Nos. 144-1; 144-2]. As Mr. Max has attested, there was no collusion among the Parties. [ECF No. 150-1 ¶¶ 11-12, 14, 17-19]. “To the contrary,” he attested, “at each point during these negotiations, the settlement process was conducted at arm’s-length and, while professionally conducted, was quite adversarial.” [Id., ¶ 17].

(iii) In addition, the Court personally observed the Parties’ counsel during the litigation and has no reason to doubt their professionalism or integrity. Moreover, the Court is familiar with Class Counsel and most of the defense lawyers and they all enjoy impeccable reputations. There is simply no evidence of self-dealing, collusion or other unethical behavior, want of skill, or lack of zealous advocacy.

(iv) The Settlement Agreement’s section on Attorneys’ Fees and Costs contains a so-called “clear-sailing” provision, whereby Defendants agree not to oppose or otherwise object to an application by Class Counsel for an award of Attorneys’ Fees and Expenses in an amount not to exceed $9.85 million. [ECF No. 144-1, ¶ 15.2]. Some courts have suggested that a clear-sailing provision may be a warning sign of a collusive bargain. “The inclusion of such a `clear sailing’ provision within the settlement agreement’s terms, however, merely justifies the Court’s application of heightened scrutiny when evaluating the class counsel’s ultimate fee request; it should not be read as an independent ground for withholding approval of the entire settlement.” Matter of Skinner Group, Inc., 206 B.R. 252, 263, n.14 (N.D. Ga. 1997). Indeed, while a clear-sailing provision could indicate that the settling parties compromised class members’ interests to give class counsel favorable treatment on attorneys’ fees, it could just as easily be included for purposes of finality and risk avoidance. See Malchman v. Davis, 761 F.2d 893, 905 n.5 (2d Cir. 1985) (a clear-sailing provision “is essential to completion of the settlement, because the defendants want to know their total maximum exposure and the plaintiffs do not want to be sandbagged”).

(v) The Court has already found that the Settlement was negotiated at arm’s-length. The Settlement’s relief — which replicates a model approved in multiple other LPI class settlements — independently confirms the absence of collusion. Class Members here will receive the same sort of deal multiple judges have already found to be fair. Furthermore, the Parties began negotiating attorney’s fees only after they had finished negotiating the Settlement itself [ECF Nos. 150-1, ¶ 18; 144-3, ¶ 71], another ground for rejecting the notion of collusion. See In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 335 (3d Cir. 1998) (overruling objection to clear-sailing provision since there was “no indication the parties began to negotiate attorneys’ fees until after they had finished negotiating the settlement agreement”); Ingram, 200 F.R.D. at 693 (finding no collusion where attorneys’ fees were “negotiated separately from the rest of the settlement, and only after substantial components of the class settlement had been resolved”).

(vi) With or without giving the Settlement heightened scrutiny, the Court finds the clear-sailing provision to be immaterial. Based on the factual record, the Undersigned finds that there was no collusion among the Parties. And where there is no collusion, a clear-sailing provision should not bar a class settlement’s approval. See Waters v. Int’l Precious Metals Corp., 190 F.3d 1291, 1293 n.4 (11th Cir. 1999); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 425-26 (6th Cir. 2012); Fladell, 2014 WL 5488167, at *4 (“[A]lthough the Settlement Agreement includes a `clear-sailing’ provision, that is immaterial. There was no collusion in the settlement negotiations and the Parties began negotiations regarding attorneys’ fees only after finishing negotiating the Settlement itself”).

10. The Court has carefully considered the objectors’ arguments, particularly regarding the Settlement’s claims-made structure and potential claims rate, and those objections are overruled. While the Court “must extend to the objectors leave to be heard,” it need not “open to question and debate every provision of the proposed compromise” and, accordingly, the Court “may limit its proceeding to whatever is necessary to aid it in reaching an informed, just and reasoned decision.” Cotton, 559 F.2d at 1331. The Court has “examine[d] the settlement in light of the objections raised” and will now “set forth on the record a reasoned response to the objections including findings of fact and conclusions of law necessary to support the response.” Id.

(a) Objector Jon Hansen, acting pro se, objects that the Release’s “wording `or could have been raised in the case’ leaves the reality of recorded court documents and settles into the potential fantasy land of conjecture and legal council [sic] imagination.” [ECF No. 153, p. 1]. Mr. Hansen did not appear at the Final Approval Hearing, personally or through counsel.

(i) His objection overlooks that “a court may release not only those claims alleged in the complaint and before the court, but also claims which could have been alleged by reason of or in connection with any matter or fact set forth or referred to in the complaint. And it has been held that even when the court does not have power to adjudicate a claim, it may still approve release of that claim as a condition of settlement of an action before it.” In re Corrugated Container Antitrust Litig., 643 F.2d 195, 221 (5th Cir. 1981) (internal quotation marks omitted); see also Thomas v. Blue Cross & Blue Shield Ass’n, 333 F. App’x 414, 420 (11th Cir. 2009) (“Given a broad enough settlement agreement . . . and provided that [a class member] had notice of it and an opportunity to opt out, it is perfectly acceptable for the [settling class] action to preclude his claims, even if they could not have been part of that action itself.”). This is consistent with ordinary principles of res judicata. See Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 892 (11th Cir. 2013) (“The doctrine of res judicata, or claim preclusion, bars the parties to an action from litigating claims that were or could have been litigated in a prior action between the same parties”).

(ii) Furthermore, Mr. Hansen’s (and the others’) “objections lack merit because the objectors can simply opt out if they have concerns about releasing their claims.” In re Managed Care Litig., No. 00-1334, 2003 WL 22850070, at *5 (S.D. Fla. Oct. 24, 2003); Diaz v. HSBC USA, N.A., No. 13-21104, 2014 WL 5488161, at *3 (S.D. Fla. Oct. 29, 2014); see also Faught, 668 F.3d at 1241-42 (objection that “the settlement is unreasonable because it strips class members of their class rights while failing to resolve their individual claims” and “that the settlement does not adequately compensate them” deemed “unconvincing” since class members were “free to opt out of the class and still have the option of . . . filing an individual suit”); In re CP Ships Ltd., Secs. Litig., 578 F.3d 1306, 1318 (11th Cir. 2009) (rejecting objection “that the district court erred in approving the settlement because foreign class members have potential for a greater recovery” in Canadian litigation since settlement class members “wishing to pursue the Canadian Actions could opt out of the instant settlement”).[9]

(b) Objector Margo Perryman has been the most active objector, although she did not appear at the final fairness hearing. She is the named plaintiff in a parallel, though later-filed, class action pending in the United States District Court for the Northern District of California. As such, she is among “the small and vocal minority of class members who have objected[,] fueled by would-be class counsel in competing lawsuits, so their objections are suspect.” Figueroa v. Sharper Image Corp., 517 F. Supp. 2d 1292, 1315 (S.D. Fla. 2007). Although she principally challenges the Settlement’s claims-made structure, members of Ms. Perryman’s counsel[10] served as co-counsel in four other LPI class actions that were settled and granted final approval in this District, all using the same claims process the Parties have agreed to use in this Litigation. In April 2015, the Court denied Ms. Perryman’s motion for discovery relating to the necessity of the Settlement’s claims-made structure [ECF No. 131], concluding that, among other things, Class Counsel had confirmed a claims-made settlement is the best possible structure for Settlement Class Members. [ECF No. 145]. Like the other remaining objectors, Ms. Perryman did not appear at the Final Approval Hearing, personally or through counsel.[11]

“[C]ourts consider the background and intent of objectors and their counsel, particularly when indicative of a motive other than putting the interest of the class members first.” Dennis v. Kellogg Co., 09-CV-1786-L, 2013 U.S. Dist. LEXIS 163118, at *11 (S.D. Cal. Nov. 14, 2013) (citation omitted).

Mr. Himmelstein and his local counsel, Ms. Kelly, represent Ms. Perryman in a competing class action in California, which has been stayed pending approval of the Settlement here. Plaintiffs say these two attorneys have a clear financial interest in convincing this Court to reject or delay the Lee Settlement with an appeal to our Eleventh Circuit in order to leverage fees from Class Counsel. Such tactics are common in class action practice and disapproved of by the courts. See, e.g., In re Hydroxycut Mktg. & Sales Practices Litig., MDL No. 09-md-2087, 2013 U.S. Dist. LEXIS 133413, at *71 n.3 (S.D. Cal. Sept. 17, 2013) (criticizing objecting counsel for attempting to leverage fees with objection and noting that “this type of abuse of the objection process is not uncommon”) (citing MANUAL FOR COMPLEX LITIG. § 21.643 (4th ed.) (“Some objections, however, are made for improper purposes, and benefit only the objectors and their attorneys (e.g., by seeking additional compensation to withdraw even ill-founded objections). An objection even of little merit can be costly and significantly delay implementation of a class settlement”)); In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1361 n.30 (S.D. Fla. 2011) (collecting authority disapproving of objections brought with ulterior motive by those “whose sole purpose is to obtain a fee by objecting to whatever aspects of the Settlement they can latch onto”).

(c) As noted above, Ms. Perryman focuses her objection on the Settlement’s claims process, characterizing claims-made structured class settlements like this one as “disfavored” and “generally disapproved.” [ECF No. 146, p. 6]. She advocates an alternative direct-payment structure. [Id.].

(i) This objection is unconvincing. Ms. Perryman has now submitted, at the Court’s direction, a declaration conceding that she “has no personal knowledge as to whether a claims process is truly necessary.” [ECF No. 173-2]. Moreover, two appellate decisions entered in recent months undermine her argument that a claims-made settlement methodology is improper: Gillette and Rothstein.

Ms. Perryman’s counsel, Mr. Himmelstein, challenges the Settlement on two fronts. (1) he objects to its claims-made structure, arguing that a direct-pay structure should instead be employed (but never addresses whether Defendants would have agreed to direct-pay), and (2) he argues that the Settlement is inadequate because Class Counsel’s proposed fee will be disproportionate to the total monetary relief that Defendants pay out to class members. [ECF Nos. 146; 173, p. 1.] The Eleventh Circuit addressed both objections in Gillette, which, though unpublished, is persuasive (even though arising in a different context).[12]

Gillette involved objections to a settlement that provided for monetary and injunctive relief to a nationwide class of purchasers of certain Duracell batteries. The district court had overruled objections to the claims-made structure of the settlement, as well as the allocation of settlement benefits among the class, Class Counsel, and cy pres designees. As here, among other things, the objectors had argued both that “the total monetary value that [would] personally accrue to class members [wa]s relatively small as compared to the attorney’s fees,” and that “there should be a way to provide monetary relief to a greater number of Class Members.” Poertner v. Gillette Co., No. 6:12-cv-803-Orl-31DAB, 2014 U.S. Dist. LEXIS 116616, at *8-9 (M.D. Fla. Aug. 21, 2014).[13]

The Eleventh Circuit unequivocally rejected both objections. First, the court concluded that the district court had not abused its discretion in holding that a claims-made structure was fair, reasonable, and adequate, because “the use of a claims process is not inherently suspect[,]” and the amount to be paid to class members who submitted claims “exceeded the damages that an average class member would have received if the class had prevailed at trial.” Gillette, 2015 WL 4310896, at *4 (citation omitted) (emphasis added). The Eleventh Circuit also rejected the objector’s contention that the defendants could pay some portion of the class directly, because, even if that had been true, “that does not mean that the district court lacked the discretion to approve the settlement as fair absent the identification of these class members.” Id. at *5.

Nevertheless, Gillette is not the slam-dunk case that Class Counsel portray, as the facts are significantly different. First, the lawsuit there was a consumer class action involving a national class of nearly 7.6 million persons who had not been identified. Indeed, the appellate court noted that Gillette “did not have any personal information about the unnamed class members,” which meant that class notice was provided by publication through national periodicals and popular internet sites. Id. at *2. As the district court noted, “Gillette does not sell at retail, so it has records from which to identify actual purchasers of Ultra batteries.” Id. at *5. In addition, that case involved a cy pres award, where Gillette agreed to donate $6 million of batteries to charities. There is no cy pres award in the instant case.

On the other hand, the primary objector there, like Ms. Perryman here, challenged the claims-made methodology. He argued that the identities of many class members could be ascertained by subpoenaing the customer records of a handful of major retailers. Therefore, he concluded that the settling parties could provide individualized notice or direct payment to at least some class members. The appellate court rejected that argument, holding that the district court nevertheless had discretion to approve the settlement as fair absent the identification of these class members. Id. at *5.

Ms. Perryman argues that the claims-made methodology in Gillette was necessary (because the potential claimants in the nationwide consumer class action lawsuit could not be adequately identified), suggesting that the methodology would not be necessary here. To be sure, Ocwen can easily identify the mortgagors whose loans were being serviced, so it did not confront the same “unidentified claimant” scenario present in Gillette. But Class Counsel argue that, for all practical purposes, the claims-made approach is necessary here because Ocwen lacks the ability to efficiently track down the necessary information about each mortgagor’s situation.

In the Court’s view, the claims-made methodology was absolutely necessary in Gillette because no other approach would have worked, while the methodology was, in effect, necessary here because the information, while perhaps theoretically available, would have required a massive amount of file-by-file review which would have derailed the settlement.

The Undersigned does not interpret Gillette to stand for a rule that all claims-made class action settlements are acceptable at all times, nor do I view it as an opinion which “forecloses” challenges to the methodology. Instead, the case stands for the rule that the use of a claims process is not inherently suspect even though monetary relief would be available only to those class members who actually submitted claims. A claims-made process might or might not be fair and reasonable, depending on the specific facts and circumstances and the Bennett factors analysis.

But other courts approved claims-made class action settlements before the recent Gillette opinion. For example, as noted in Hall, “there is nothing inherently suspect about requiring class members to submit claim forms in order to receive payment.'” 2014 WL 7184039, at *6 (quoting Saccoccio, 297 F.R.D. at 696). “Filing a claim form is a reasonable administrative requirement which generally does not impose an undue burden on members of a settlement class.” Hamilton, 2014 WL 5419507, at *6. The Court, along with other judges in this District and elsewhere, holds the view that “`criticism of the claims-made structure’ does `not impact the fairness, reasonableness, or adequacy of the proposed settlement.'” Id. (quoting Casey v. Citibank, N.A., No. 12-820, 2014 WL 4120599, at *2 (N.D.N.Y. Aug. 21, 2014)).

Gillette also rejects the notion that the Court must identify the payment structure that would provide optimal relief to the class, or that a claims-made process may be employed only if the parties show that it is necessary. The Court’s job instead is to determine whether the settlement as presented is fair, reasonable, and adequate. See id. at *5 (district court had discretion to approve claims-made settlement without identifying class members who could be paid directly); Casey v. Citibank, N.A., No. 13-cv-820, 2014 WL 4120599 (N.D.N.Y. Aug. 21, 2014) (“The Court does not have the authority to impose a preferred payment structure upon the settling parties”).

The Gillette court also rejected an objection that class counsel’s fee request was too large when compared to value of the actual payout to the settlement class as “based on [a] flawed valuation of the settlement pie: limiting the monetary value to the amount of [Defendant’s] actual payments,” while excluding the value of the injunctive and other negotiated relief. See Gillette, 2015 WL 4310896, at *6; see also id. at *4 (district court correctly concluded that injunctive relief and cy pres award “were part of the settlement pie”). This also undermines Ms. Perryman’s challenge (or her counsel’s challenge) to Class Counsel’s requested fee here, which Plaintiffs say is based on pure speculation as to the actual amount that will be paid to class members, [ECF No. 173, p. 1], and excludes any consideration of the valuable injunctive relief made available to the nationwide class.

Gillette’s approval of counsel’s fees also assists class counsel here because the payout structure was arguably more favorable to counsel than the proposed settlement here. In the Gillette nationwide consumer class action lawsuit settlement, class members who filed valid claims — on a one-page form submitted either online or by mail — would receive $3 per pack of batteries, up to four packs with proof of purchase and two packs without proof. The claims administrator reported that 55,346 class members made claims totaling $344,850 — and the attorney’s fees and costs were $5.68 million.

To be sure, the Gillette Court also factored in the injunctive relief and the $6 million cy pres award. But the objector challenged the value of the injunctive relief as illusory, noting that Gillette was no longer selling the batteries in question when it agreed to stop putting the allegedly misleading statements on the batteries’ packaging. The appellate court rejected that argument, noting that Gillette’s decision to stop selling the batteries was motivated by the lawsuit.

In addition, courts consider the value of injunctive relief and monetary relief together in assessing whether a class action settlement provides sufficient relief to the class. Gillette, 2015 WL 4310896 (affirming approval of class action settlement based on, in addition to monetary payments, the inclusion of injunctive and cy pres relief). Class Counsel has not placed a specific dollar value on the injunctive relief, though it notes, in its proposed order approving the settlement [ECF No. 172-1, p. 20], that it add “considerable value to the settlement.” In its motion for approval [ECF No. 144, p. 18], Class Counsel note that the injunctive relief prohibits the Ocwen Defendants “from continuing to implement the practices challenged in the First Amended Complaint, which reaped millions of dollars in revenues for Defendants during the class period.”[14]

If the $6 million cy pres award were added to the $344,850 in claims, that would yield $6.34 million. With a fees and costs award of $5.68 million, this ratio is substantially more skewed toward a greater fees and costs award than the ratio in the instant case — and this evaluation does not include the value of the injunctive relief. At bottom, the ratio of financial relief provided to the class members here is comparatively greater than the relief provided in Gillette, a significant factor which mitigates in favor an approval here.

(ii) An objector like Ms. Perryman “must do more than just argue that she would have preferred a different settlement structure, as this court’s review of the settlement structure is even more narrow.” Uhl v. Thoroughbred Technology & Telecommc’ns, Inc., 309 F.3d 978, 986 (7th Cir. 2002). “Perhaps there could have been an even more creative settlement or, alternatively, one that is more traditional. But that is not the question we must resolve.” Id. at 987. After all, “whether another team of negotiators might have accomplished a better settlement is a matter equally comprised of conjecture and irrelevance.” Corrugated Container, 643 F.2d at 212. “`While a direct payment structure would obviously result in more, and possibly all, class members receiving a share of the monetary relief in the settlement, there is no reason to believe the defendants would agree to such terms’ and, in any event, the Court `does not have the authority to impose a preferred payment structure upon the settling parties.'” Fladell, 2014 WL 5488167, at *4 (quoting Casey, 2014 WL 4120599, at *2-3).

(iii) The Settlement has been designed to incentivize Class Member participation. It is substantively fair, offering complete relief (or better) to every interested Claimant who submits a valid Claim Form. Ms. Perryman does not appear to contest that 12.5% of the Net Premium approximates the Settlement Class Members’ alleged damages. That Settlement Claim Relief will be worth hundreds of dollars to the average Claimant. The Settlement also is procedurally fair. The approved Claim Form should take no more than a few minutes for the average Class Member to review and complete and requires the submission of no supporting materials that would be required in an individual lawsuit. See Hall, 2014 WL 7184039, at *8 (similar claim form in LPI class settlement would take just “a few minutes” to complete); Hamilton, 2014 WL 5419507, at *5 (same). As District Judge James Cohn aptly stated in the context of a comparably structured LPI class settlement:

Where, as here, a claims-made process is a reasonable method for providing prompt and substantial relief to the class, requiring class members to file claim forms also maximizes the relief available to class members who opt to submit a claim. A settlement’s fairness is judged by the opportunity created for the class members, not by how many submit claims. What matters is the settlement’s value to each class member — it is ultimately up to class members to participate or not.

Id. at *7.[15] (emphasis supplied).

(iv) A hypothetical direct-payment structured settlement — the kind Ms. Perryman urges — is not necessarily any fairer. Defendants have represented [ECF No. 154, p. 6], and the Court has no reason to believe otherwise, that such a direct-payment settlement structure would have been negotiated to provide recovery at a much lower percentage of Settlement Class Members’ LPI Net Premiums. Negotiating for a smaller amount to go to Class Members would, in effect, unfairly reward some Class Members for their own indifference at the expense of those who would take the minimal step of returning the simple Claim Form to receive the larger amount. While a claims-made settlement structure does not guarantee an award to all class members, it does tend to maximize the opportunity available to each class member. See Faught, 668 F.3d at 1242 (affirming approval of claims-made settlement where class members could receive full compensation “rather than mere pennies on the dollar for a uniform cash payment”); In re Cendant Corp. Litig., 264 F.3d 201, 250-51 (3d Cir. 2001) (explaining why a defendant can offer a higher percentage recovery in a claims-made class settlement). Moreover, as discussed more fully below, “determining the amounts to be paid under a direct-pay structure would potentially make settlement more costly than litigation.” Hamilton, 2014 WL 5419507, at *6.

(v) It is significant that, in the context of LPI class settlements, no court has disapproved this Settlement’s relief model. Just the opposite is true. Many courts have approved claims-made processes in LPI cases like this one. See Hall, 2014 WL 7184039, at *6. “Indeed, district courts routinely approve reasonable claims-made settlements, including those involving lender-placed insurance.” Hamilton, 2014 WL 5419507, at *7. Ms. Perryman has not demonstrated how this case is materially different from those other LPI settlements or why the Court should deviate from them.

(d) A settlement structured to make direct payments to Class Members was never a realistic option. Using a claims-made process is the only practicable means of administering this Settlement. The Settlement offers cash relief to borrowers who paid any portion of Premium charges assessed to their mortgage escrow accounts and a credit to those who did not and who still owe those charges. But many Settlement Class Members have not, and will never, pay or continue to owe Premiums. Many are no longer Ocwen borrowers. Those Class Members should not receive a windfall from the Settlement, but Ocwen cannot query its systems to identify on a class-wide basis whether class members had paid or still owed some portion of the amounts they were charged for LPI — i.e., showing that a claims-based process is necessary. Substantial evidence supports this finding. [ECF Nos. 154-1, ¶¶ 7-9; 134-1, ¶¶ 5-8; 144-3, ¶¶ 37-39; 169-1, pp. 26:11-34:25].

(i) Unsatisfied, Ms. Perryman asserts additional challenges to the record evidence, including the declaration of Jason Jastrzemski [ECF No. 134-1], Ocwen’s director of mortgage servicing oversight. She would like “Mr. Jastrzemski to explain what calculations can be performed manually that cannot be performed equally well by a computer program.” [ECF No. 146 at 13]. But Mr. Jastrzemski has already explained which relevant “calculations” can be systematically performed by a computer — none. [ECF No. 134-1, ¶ 5]. He never suggested that a manual review could precisely determine this information, only that it would be impossible for a computer to do so systematically. In fact, Mr. Jastrzemski pointedly attested that a manual review might be useful only “[i]n cases where it would be possible, on an individual basis,” to make the relevant determinations. [Id., ¶ 8]. A computer cannot identify the source of funds paid to satisfy LPI charges; a manual review might do better, but there is no guarantee of accuracy. And because escrow accounts all differ, it is impossible to systematically reverse-engineer whether some or all of an LPI charge was paid.

(ii) Ms. Perryman also is mistaken in arguing that because Ocwen can determine the source of the borrowers’ escrow funds, it can determine whether funds from a third party were applied to an LPI charge. [ECF No. 146, p. 14]. Ocwen cannot systematically determine the source of funds, even if in some cases Ocwen can do so via a manual review. [ECF No. 134-1, ¶¶ 5, 7]. Moreover, for borrowers who paid something into the escrow account, Ocwen does not attribute those payments to specific escrow items like LPI premiums.[16]

(iii) Ms. Perryman further relies on declarations filed in the HSBC Bank LPI class settlement by a law professor and a “computer forensic expert” that supposedly “contradict the Jastrzemski declaration.” [ECF No. 146 at 11]. But Ocwen was not a party to that other servicer’s settlement and neither of those declarants claimed, nor demonstrated familiarity with Ocwen’s electronic records systems. [ECF Nos. 146-1 Ex. F, ¶¶ 4-20; 146-1 Ex. G, ¶¶ 1-3]. They opined only about what HSBC’s systems theoretically should do, not what the systems actually could do. The Court cannot credit the speculation of two untested “experts” submitted in a different case involving a different servicer using a different electronic records system. Moreover, both declarants in the HSBC settlement rested their opinions on the false assumption that if an escrow account ever ceased to have a deficiency following the payment of the last LPI charge, then the borrower would necessarily have paid the charge because the deficiency created by the advancing of premiums by the servicer would have been covered by the borrower’s subsequent payments. [ECF Nos. 146-1 Ex. F, ¶ 93; 146-1 Ex. G, ¶¶ 20-23]. As Mr. Jastrzemski attests, that assumption is unwarranted for RealServicing. There are several common situations in which a borrower was charged but never actually paid for LPI, which Defendants are incapable of identifying systematically. [ECF Nos. 134-1, ¶¶ 5-7; 169-1, pp. 26:11-34:25].

(e) Having failed to refute the record evidence directly, Ms. Perryman attempts to do so indirectly. She argues that, “[m]ore importantly,” the existence of LPI class settlements “which provide direct payments to class members” somehow proves that the Parties cannot “justify a claims-made settlement in this case.” [ECF No. 146, p. 10]. Ms. Perryman spotlights class settlements in Weller v. HSBC Mortgage Services, Inc., No. 13-185 (D. Colo.), and Ellsworth v. U.S. Bank, N.A., No. 12-2506 (N.D. Cal.), where several of the Assurant Defendants and their servicer co-defendants (not Ocwen) agreed to make direct payments to settlement class members. She reasons that “if a manual review of each loan file was truly necessary to ascertain the class members’ damages in all LPI litigation,” then the Assurant Defendants “in Weller would not elect to undertake such a herculean effort in their settlement calculus.” [Id., at p. 11].

(i) At least in one respect, Ms. Perryman is correct. The Assurant Defendants advised the Court that they would not elect to undertake an onerous manual review of each loan file in the Weller settlement or any others, like Ellsworth. As they have explained, that is why the Assurant Defendants did not elect to do so in those settlements, instead assuming the risk of providing windfall payments to class members who never paid any portion of the LPI charge. Unlike this Settlement’s $140 million of available Claim Settlement Relief, the total monetary payment in the Weller settlement is just $1.8 million, while the total monetary payment in Ellsworth is even less. [ECF Nos. 154, p. 11; 161, pp. 98:2-8, 100:3-17, 106:16-107:18]. Rather than tending to prove that this Settlement could do without a claims process, the Weller and Ellsworth settlements only tend to prove that, to avoid an onerous manual review, the Assurant Defendants have been willing to overcompensate a small group of borrowers a small amount of money in a small class settlement, but are unwilling to overcompensate a large group of borrowers a large amount of money in a large class settlement.

(ii) Ms. Perryman relies further on the LPI class settlement in Arnett v. Bank of America, N.A., without relating that part of the Arnett settlement did include a claims process. See No. 11-1373, 2014 WL 4672458, at *7 (D. Or. Sept. 18, 2014). She also fails to relate that direct payments in Arnett were possible not because the defendant bank could systematically identify class members who paid or still owed a portion of their LPI charge, but because the bank did not draw those distinctions at all. As a result of the direct-payment structure, Arnett class members who should have recovered nothing likely received windfalls. And as a result of that structure, Arnett class members received a much smaller percentage of the LPI charge than the percentage this Settlement allows. In this Settlement, Class Members who submit valid Claim Forms will receive 12.5% of Net Premiums — essentially a full recovery of their alleged damages. [ECF No. 144-1, ¶¶ 4.6.2, 4.6.3]. By contrast, Arnett class members received just “2.28 percent of premiums paid,” 2014 WL 4672458, at *12, less than a fifth of this Settlement’s percentage.

(f) “And the Settlement Agreement’s claims process is needed for other reasons, including to ensure that only aggrieved individuals receive monetary relief and to reduce the risk of fraud, waste, and abuse that might arise from sending unsolicited checks to unverified addresses and recipients.” Hall, 2014 WL 7184039, at *6. “Sending unsolicited checks to unverified addresses and recipients increases the risk of misappropriation. Non-class members could endorse over to themselves misdirected settlement checks. Attempting to recover money from individuals who fraudulently cash checks is impracticable. This is particularly important where a case presents a class of this size, and determining the amounts to be paid under a direct-pay structure would potentially make settlement more costly than litigation.” Hamilton, 2014 WL 5419507, at *6.

(g) In addition, under a hypothetical direct-payment structure without the Claim Form, the risk of waste increases. As the Court remarked at the Final Approval Hearing, this is a “practical point.” [ECF No. 161, p. 73:3-17].

(i) From an administrative standpoint, disbursement activity in a direct-payment structured class settlement, including printing and mailing of checks, can be quite expensive. Checks in larger amounts (e.g., over $100) are likely to be printed on higher-quality paper using security features. Returned checks can be expensive to process. And the accounting and bank fees associated with large volumes of returned and re-mailed checks also would be significant.

(ii) Unsolicited mail is more likely to be discarded or set aside. Printing and mailing checks to hundreds of thousands of Settlement Class Members who never asked for them could significantly increase the cost and effort of administering the Settlement. The Claim Form’s verifications are the best chance at ensuring that the right persons receive the right payments at the right addresses.

In this Court’s judgment, a claims-made settlement here offers Settlement Class members the best relief possible from this Settlement. Defendants state that they did not and would not have agreed to a direct-pay model for a class of this size because the costs of administration and the risk of fraud would have been prohibitive. Even had Defendants agreed, the additional costs and increased risk would have reduced the amounts paid to individual class members. Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 593-94 (N.D. Ill. 2011) (approving claims-made settlement with costs associated with investigating how much was owed each class member; “[h]ad the onus of that process been placed on Defendant, there may have been less money available for them to pay claims”); Trombley v. Nat’l City Bank, 826 F. Supp. 2d 179, 198 (D.D.C. 2011) (“the case might not have settled if a condition of the agreement required [a defendant] to mine [its] computer systems for such data”). The proposed claims-made structure will provide class members who opt to submit claims with extraordinary relief and, as such, is fair, reasonable, and adequate.

As such, this case is distinct from oft-cited recent opinions from the Seventh Circuit because, unlike the settlement here, those settlements were rife with indicia of collusion between the parties and other questionable conduct. In Eubank v. Pella, for example, Judge Posner rejected a claims-made settlement so problematic that he termed “inequitable—even scandalous.” 753 F.3d 718, 721 (7th Cir. 2014). The settlement reflected “almost every danger sign in a class action settlement,” including “fatal conflicts of interest”; opposition by named plaintiffs; a provision requiring class members to risk recovering nothing by submitting their claims to arbitration, where the defendants had reserved defenses, in order to be eligible for any meaningful settlement distribution; an award of only coupons to a portion of the class; twelve- to thirteen-page claim forms requiring class members to submit “a slew of arcane data, including the `Purchase Order Number,’ `Product Identity Stamp,’ and `Unit ID Label'”; and an unnecessarily complex settlement notice. Id. at 725-26. Because the settlement “flunked the `fairness’ standard by the one-sidedness of its terms and . . . fatal conflicts of interest[,]” see id. at 729, it could not survive the closer scrutiny that might be warranted where “kicker” and “clear-sailing” provisions are part of a class action settlement.

The Seventh Circuit similarly rejected the settlement in Pearson v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014), because the district court had valued the settlement to include the costs of notice to the class and attorney’s fees, 772 F.3d at 781, and of the $5.63 million to be made available to the class, approximately $4.77 million was reserved solely for counsel fees and expenses, notice costs, and cy pres and service awards, with only $865,284 left for the settlement class, which amounted to only seven cents per class member. See id. at 780, 783-84. The court also criticized the claim form and filing requirements as too onerous when weighed against the “low ceiling on the amount of money that a member of the class could claim[,]” id. at 783; the cy pres award as excessive when weighed against the minimal relief made available to class members, id. at 784; the potential ineffectiveness of the proposed injunctive relief, id. at 785; and the court’s sense that class counsel and the defendants had colluded to “sell out the class by agreeing . . . to recommend that the judges approve a settlement involving a meager recovery for the class but generous compensation for the lawyers[,]” see id. at 787 (citing Eubank, 753 F.3d at 720).

The relief provided by this Settlement stands in stark contrast to the relief provided in Eubank and Pearson in almost every respect. For example, the Settlement here: (1) offers every class member 12.5% of the amounts that they paid or still owe, which constitutes near-complete recovery; (2) employs a simple and straightforward claim form, which requires class members only to check a box and affirm by their signature that the information provided is accurate, and does not require any supporting materials, documents or data, (3) involved no collusion or conflicts of interest; and (4) provides monetary and injunctive relief that was negotiated and will be paid separate and apart from Class Counsel’s fees and costs and settlement administration expenses.

(h) The Claim Deadline will not run until 60 days after the Settlement has been finally approved or any resulting appeal has been resolved. [ECF No. 144-1, ¶¶ 2.9, 2.24]. Ms. Perryman urges the Court not to approve the Settlement without knowing the claims rate, stating that “these settlements have resulted in less than four percent of class members submitting claims by the time of the final approval hearing.” [ECF No. 146, p. 6]. Yet the very example she cites — the SunTrust LPI class settlement — received final approval. See Hamilton, 2014 WL 5419507, at *5 (“The Court finds that even a low claims rate at this stage does not compel the conclusion that the settlement is not `fair, reasonable, or adequate.'”). Moreover, Ms. Perryman relies on an interim claims rate even though, as Class Counsel explained at the Final Approval Hearing [ECF No. 161, pp. 26:1-27:1], that rate will increase — even accelerate — after final approval. See Hamilton, 2014 WL 5419507, at *5 (observing that “the claims period will not be complete until next year and that based upon the experience of Class Counsel with other lender-placed settlements, claims will be increased after final approval”).

(i) Class Counsel anticipates that the final claims rate will range between 10% and 15%. [ECF No. 161, p. 13:21-23]. Yet even if it does not reach that range, there is nothing inherently unfair about a single-digit claims rate in a class settlement. Indeed, “courts in this district have approved claims-made settlements where the participation rate was very low.” Saccoccio, 297 F.R.D. at 696; see also Perez v. Asurion Corp., 501 F. Supp. 2d 1360, 1377 (S.D. Fla. 2007) (approving 10.3 million-member settlement class when less than 119,000 — approximately 1.1% — filed claims). Single-digit claims rate settlements also are routinely approved outside this District. See, e.g., In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 944-45 (9th Cir. 2015) (approving 35 million-member settlement class when only 1.183 million — less than 4% — filed claims; “settlements have been approved where less than five percent of class members file claims”); Sullivan v. DB Invs., Inc., 667 F.3d 273, 329 n.60 (3d Cir. 2011) (en banc) (noting evidence that claims rates in consumer class settlements “rarely” exceed 7%, “even with the most extensive notice campaigns”).

(ii) Ms. Perryman’s objection to the potential claims rate has been overruled before. “District courts often grant final approval of class action settlements before the final claims deadline.” Hamilton, 2014 WL 5419507, at *4; see also Hall, 2014 WL 7184039, at *7; Fladell, 2014 WL 5488167, at *4; Casey, 2014 WL 4120599, at *2; Saccoccio, 297 F.R.D. at 696; Saccoccio v. JP Morgan Chase Bank, N.A., No. 13-21107, 2014 WL 3738013, at *1 (S.D. Fla. July 28, 2014). After all, “an LPI class settlement that offers significant monetary relief, as this one does, `requiring only that class members submit a claim form,’ can be `fair and reasonable independent of the number of claims filed.'” Hamilton, 2014 WL 5419507, at *4 (quoting Saccoccio, 2014 WL 3738013, at *1); Hall, 2014 WL 7184039, at *7 (“The Court also rejects the objectors’ argument that the Court cannot grant final approval without knowing the final number of claims that are submitted.”). “The question for the Court at the Final Fairness Hearing stage is whether the settlement provided to the class is `fair, reasonable, and adequate,’ not whether the class decides to actually take advantage of the opportunity provided.” Hamilton, 2014 WL 5419507, at *5. Further, setting the Claim Deadline after the Final Approval Hearing has the salutary effect of maximizing the claim period’s duration.

(iii) This Settlement is therefore fair, reasonable, and adequate independent of the number of Claim Forms submitted or Defendants’ ultimate payout. LPI settlements like this one provide class members who paid or still owe their premiums the opportunity to obtain relief rivaling or, in many cases, exceeding what they could have obtained at trial. Defendants will pay all valid Claimants without any liability cap, ensuring that any Class Member who submits a Claim Form will be made whole. See Faught, 668 F.3d at 1240-42 (affirming approval of claims-made settlement where final payout was unknown at time of approval); Prudential Ins., 148 F.3d at 323 (although “the structure of the settlement and the uncapped nature of the relief provided make it difficult to determine accurately the actual value of the settlement,” district court did not abuse its discretion “when it found that the remedies available under the proposed settlement provided extraordinary relief”); Cotton, 559 F.2d at 1334 (where a class settlement will make claimants whole, an objection “that the compromise must fall for lack of a specified sum for the settlement” of claims is “meritless”). See generally Bennett, 737 F.2d at 986 (5.6% recovery was fair and adequate in view of the risks of further litigation and litigation objectives).

(i) Nor, at least in this instance, does the claims rate measure anything especially meaningful, which means that a single digit rate is not automatically problematic.

(i) In LPI settlements like this one, class members may choose not to file claims for a variety of reasons irrelevant to the settlement’s fairness.

There may be many reasons or no reasons why class members decide to participate in a settlement, e.g., a desire not to be involved in litigation, ideological disagreement with the justice system, their individual experiences with lender-placed insurance, or sympathy for the defendant. Further, class members may not have paid lender-placed insurance charges and therefore elected to forego the opportunity to submit a Claim Form. Whatever the underlying reason, that is a decision to be made by each class member. Those decisions, however, do not affect whether the settlement provided to the Class is fair, adequate, and reasonable.

Hall, 2014 WL 7184039, at *8. Moreover, “based upon the claims filed in similar lender-placed insurance class settlements, a significant number of additional claims are expected, particularly from class members who are waiting to see if the settlement is finally approved.” Id. at *7; see also id. at *8 (“many factors affect response rates and this ratio should not be given great significance”) (internal quotation marks omitted).

(ii) This Settlement’s unique circumstances make the claims rate misleading. Here, the Parties cannot know which, or how many, Class Members are even eligible to seek Claim Settlement Relief. Some Class Members paid some or all of their Premiums; others have not paid, but still owe, their Premiums; still others paid no Premiums and never will. The Parties cannot systematically distinguish between or tabulate these categories. In other words, an unknown number of “class members may not have paid lender-placed insurance charges and therefore elected to forego the opportunity to submit a Claim Form.” Id. Mathematically speaking, dividing a numerator (Claim Forms submitted) by an over-inclusive denominator (all Settlement Class Members) will yield a deceptively low claims rate.

(j) Another of Ms. Perryman’s objections is that Class Counsel did not conduct formal, adversarial discovery to ensure “that the claims-made structure was necessary,” and instead “relied solely on the defendants’ untested representations at mediation and in a declaration executed months after preliminary approval had already been granted, as well as inapplicable discovery taken in other cases.” [ECF No. 146, p. 9]. “It is, in effect, argued that without discovery, the class representatives were not in a position of equality with negotiators for the defendants. From this we are asked to conclude that settlement[] resulting from this putative inequality of knowledge must be, as a matter of law, inadequate.” Corrugated Container, 643 F.2d at 211.

(i) The same basic objection — that formal, adversarial discovery is necessary to ensure a class settlement’s fairness — has been rejected in this Circuit.

“It is true that very little formal discovery was conducted and that there is no voluminous record in the case. However, the lack of such does not compel the conclusion that insufficient discovery was conducted. At the outset, we consider this an appropriate occasion to express our concern over the common belief held by many litigators that a great amount of formal discovery must be conducted in every case. Thus, we are not compelled to hold that formal discovery was a necessary ticket to the bargaining table. Because the plaintiffs did have access to information, this case cannot be characterized as an instance of the unscrupulous leading the blind.” Even assuming there was an imbalance of information between the defendants and the plaintiffs at the bargaining table, this would not in itself invalidate the settlements.

Id. (quoting Cotton, 559 F.2d at 1332). To avoid squandering the parties’ resources, informal discovery can be preferred in class settlements. This Circuit’s precedents have debunked the myth

that a great amount of formal discovery must be conducted in every case. Often has this Court reviewed records of cases which attest to this commonly held fallacy. We have often seen cases which were “over discovered.” In addition to wasting the time of this Court, the parties and their attorneys, it often adds unnecessarily to the financial burden of litigation and may often serve as a vehicle to harass a party…. Being an extra-judicial process, informality in the discovery of information is desired. It is too often forgotten that a conference with or telephone call to opposing counsel may often achieve the results sought by formal discovery.

Cotton, 559 F.2d at 1332.

(ii) Here, “notwithstanding the status of discovery, plaintiffs’ negotiators had access to a plethora of information regarding the facts of their case.” Corrugated Container, 643 F.2d at 211. As described above, Class Counsel amassed a wealth of information in other LPI class settlements, including repeatedly deposing Ronald Wilson (vice president of account management for several of the Assurant Defendants) and other representatives of the Assurant Defendants. [ECF Nos. 144-3, ¶¶ 16, 39; 161, p. 108:17-25]. In this Litigation, Class Counsel conducted formal and informal discovery before and during the Lee Mediation concerning, inter alia, Defendants’ inability to query their electronic records systems for information about which borrowers paid or still owe LPI charges. [ECF No. 144-3, ¶¶ 11, 15, 16, 44]. Post-Settlement, Defendants supplied declarations by Mr. Wilson and Mr. Jastrzemski confirming that it is not feasible to determine specific information about LPI payments except on a member-by-member basis. [ECF Nos. 145, p. 7; 144-3, ¶ 38; 134-1; 154-1]. Also post-Settlement, Class Counsel took Mr. Jastrzemski’s deposition, which further confirmed that fact. [ECF No. 169-1, pp. 26:11-34:25].

(iii) These depositions and declarations are made under penalty of perjury and would be competent evidence, for example, at a summary judgment hearing. See Fed. R. Civ. P. 56(c). More is not required. See D’Amato v. Deutsche Bank, 236 F.3d 78, 87 (2d Cir. 2001) (“[T]he district court properly recognized that, although no formal discovery had taken place, the parties had engaged in an extensive exchange of documents and other information”); In re Jiffy Lube Secs. Litig., 927 F.2d 155, 159 (4th Cir. 1991) (although “no formal discovery had occurred,” the “evidence obtained through informal discovery yielded sufficient undisputed facts to support” settlement’s approval); Lipuma, 406 F. Supp. 2d at 1316 (although “minimal discovery” was taken about a released claim, in light of “Class Counsels’ other sources of information, and knowledge about the relative strengths and weaknesses of the [released] claim, this objection should not bar approval of the settlement”).

(iv) The Court finds that extensive formal discovery about the necessity of a claims process was unnecessary when the Settlement was negotiated and it remains unnecessary today. This is not a case in which a single unsophisticated lawyer with no prior experience walked into a negotiation uninformed. In this Litigation, no fewer than 17 lawyers have entered their appearances for Plaintiffs; many of these attorneys are highly sophisticated. Class Counsel were well-positioned to evaluate the merits of Plaintiffs’ claims, as well as the appropriate basis on which to settle them. Equally important, full-scale discovery of the kind needed to try a complex case would defeat the Settlement’s true purpose — to put aside the burdens, costs, and uncertainties of litigation to accomplish a global peace.

(k) Ms. Perryman also argues that she should be permitted to conduct discovery through her counsel regarding the Settlement and its claims-made structure. She hopes to set about proving that the Parties could have negotiated a hypothetical direct-payment structured settlement. The Court overruled this objection once before [ECF No. 145], but in light of the recently-expanded evidentiary record, and for the avoidance of doubt, overrules it again.

(i) Absent members of a class settlement have no automatic right to discovery or an evidentiary hearing to substantiate their objections. See, e.g., In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1337 n.6 (S.D. Fla. 2011). In this District, as elsewhere, “the sole purpose of any settlement-related discovery is to ensure the Court has sufficient information before it to enable the Court to determine whether to approve the Settlement.” Id. Beyond that, settlement-related discovery causes delay and distraction and should be denied. In short, “the temptation to convert a settlement hearing into a full trial on the merits must be resisted.” Id. at 1368 n.41 (internal quotation marks omitted); see also Newman v. Sun Capital, Inc., No. 09-445, 2012 WL 3715150, at *12 (M.D. Fla. Aug. 28, 2012) (although objectors sought discovery “to form a reliable opinion of the value of the settlement assets to make the ultimate determination as to whether to accept the Settlement,” the information already obtained and shared was “sufficient to allow [class members] to make intelligent decisions”).

(ii) The Court has sufficient information to enable it to approve the Settlement — Ms. Perryman’s assistance is unnecessary. The Court has before it the depositions and declarations of Defendants’ representatives, the representations of counsel (sworn, briefed, and in-court), the circumstances of and decisions in comparable LPI class settlements, and other record evidence. This material is publicly filed, unredacted, and available to all Settlement Class Members. This factual record demonstrates that: (1) a direct-payment structured settlement is not feasible or even desirable; (2) in any event, Defendants would not have agreed to a direct-payment structured settlement; and (3) a claims-made structured settlement is fair, reasonable, and adequate on its own terms. Courts approving LPI class settlements have denied objector discovery on these grounds. See, e.g., Casey, 2014 WL 4120599, at *2-3 (since “criticism of the claims-made structure” does “not impact the fairness, reasonableness, or adequacy of the proposed settlement,” “discovery related to a direct payment structure is unwarranted”); Saccoccio, 2014 WL 3738013, at *1 (denying as irrelevant objectors’ request for discovery of claims data because “this Settlement is fair and reasonable independent of the number of claims filed”). This Court has followed that approach.

The Court ovverules Ms. Perryman’s objections[17] but will deny Class Counsel’s motion for a show cause order [ECF No. 166] as unnecessary and moot.

11. Accordingly, the Parties are hereby directed to implement and consummate the Settlement Agreement according to its terms and provisions.

12. Pursuant to Rule 23(h), the Court hereby awards Class Counsel for the Settlement Class Attorneys’ Fees and Expenses in the amount of $9.85 million, payable pursuant to the terms of the Settlement Agreement. The Court also awards Case Contribution Awards in the amount of $5,000 each to Named Plaintiffs Jennifer Lee, Douglas A. Patrick, Gerald Coulthurst, Lisa Chamberlin Engelhardt, Enrique Dominguez, Frances Erving, Johnnie Erving, John Clarizia, and Shelia D. Heard, payable pursuant to the terms of the Settlement Agreement.

13. The terms of the Settlement Agreement and of this Final Order, including all exhibits thereto, shall be forever binding in all pending and future lawsuits maintained by the Named Plaintiffs and all other Settlement Class Members, as well as their family members, heirs, guardians, assigns, executors, administrators, predecessors, successors, and assigns.

14. The Releases, which are set forth in Section 10 of the Settlement Agreement and which are also set forth below, are expressly incorporated herein in all respects and are effective as of the date of this Final Order; and the Released Persons (as that term is defined below and in the Settlement Agreement) are forever released, relinquished, and discharged by the Releasing Persons (as that term is defined below and in the Settlement Agreement) from all Released Claims (as that term is defined below and in the Settlement Agreement).

(a) Release and Waiver Definitions

(i) “Ocwen” means Ocwen Loan Servicing, LLC and its Affiliates, Litton Loan Servicing, LP and its Affiliates after October 31, 2011, and Homeward Residential Holdings, Inc., and its Affiliates after April 30, 2013;

(ii) “Affiliate” of an entity means any person or entity which controls, is controlled by, or is under common control with such entity.

(iii) “Assurant Defendants” means Assurant, Inc., ASIC, SGIC, VIIC, and ABIC.

(iv) “Defendants” means all named defendants in the Lee Litigation, including Ocwen Loan Servicing, LLC and the Assurant Defendants.

(v) “Lender-Placed Insurance” means the placement of hazard, flood, flood gap, and/or wind insurance pursuant to a mortgage loan agreement, home equity loan agreement, or home equity line of credit serviced by Ocwen to cover a borrower’s failure to maintain the required insurance coverage on the residential property securing the loan.

(vi) “LPI Policy” means a lender-placed residential hazard, flood, flood gap, or wind-only insurance policy and such insurance coverage placed pursuant to a mortgage loan agreement, home equity loan agreement, or home equity line of credit serviced by Ocwen to cover a borrower’s failure to maintain the required insurance coverage on the residential property securing the loan.

(vii) “Ocwen Acquired Companies” means Litton Loan Servicing, LP, Homeward Residential Holdings, Inc., and their Affiliates.

(viii) “Release” or “Releases” means the releases of all Released Claims by the Releasing Persons against the Released Persons.

(ix) “Released Claims” means all claims, actions, causes of action, suits, debts, sums of money, payments, obligations, reckonings, promises, damages, penalties, attorney’s fees and costs, liens, judgments, demands, and any other forms of liability released pursuant to this Final Order and Judgment and Section 10 of the Settlement Agreement.

(x) “Released Persons” means, only with respect to Released Claims: (a) Defendants and each of their respective divisions, parents, subsidiaries, predecessors (except for any Ocwen Acquired Companies with respect to the period of time before they were acquired by Ocwen), investors, parent companies, and Affiliates, whether past or present, any direct or indirect subsidiary of any of Defendants and each of their respective divisions, parents, subsidiaries, predecessors, investors, parent companies, and Affiliates, whether past or present, and all of the officers, directors, employees, agents, brokers, distributors, representatives, and attorneys of all such entities, including but not limited to Ocwen, Assurant, ASIC, SGIC, ABIC, VIIC, Insureco Agency & Insurance Services, Inc., American Bankers Insurance Group, Inc., and Homeward Residential Holdings, Inc. and its Affiliates for LPI placements after April 30, 2013, Litton Loan Servicing LP and its Affiliates for LPI placements after October 31, 2011, and Altisource Portfolio Solutions S.A., Altisource Solutions, Inc., and their Affiliates; (b) any other insurance carriers that issued or may have issued LPI for Ocwen insuring real property owned by any Settlement Class Member; and (c) any trustee of a mortgage securitization trust which included loans made to any Settlement Class Member, including, but not limited to, any direct or indirect subsidiary of any of them, and all of the officers, directors, employees, agents, brokers, distributors, representatives, and attorneys of all such entities.

(xi) “Releasing Persons” means Named Plaintiffs and all Settlement Class Members who do not properly and timely opt out of the Settlement, and their respective family members, heirs, guardians, executors, administrators, predecessors, successors, and assigns.

(xii) “Settling Parties” means, collectively, Defendants, Named Plaintiffs, all Settlement Class Members, and all Releasing Persons.

(b) Released Claims of Settlement Class

Each member of the Settlement Class, and their family members, heirs, guardians, assigns, executors, administrators, predecessors, and successors, other than the Named Plaintiffs, shall, by operation of the Final Order, be deemed to have fully, conclusively, irrevocably, forever, and finally released, relinquished, and discharged the Released Persons from any and all claims, actions, causes of action, suits, debts, sums of money, payments, obligations, reckonings, promises, damages, penalties, attorney’s fees and costs, liens, judgments, and demands of any kind whatsoever that each member of the Settlement Class may have until the close of the Settlement Class Period or may have had in the past, whether in arbitration, administrative, or judicial proceedings, whether as individual claims or as claims asserted on a class basis, whether past or present, mature or not yet mature, known or unknown, suspected or unsuspected, whether based on federal, state, or local law, statute, ordinance, regulations, contract, common law, or any other source, that were or could have been sought or alleged in the Litigation or that relate, concern, arise from, or pertain in any way to the Released Persons’ conduct, policies, or practices concerning Ocwen’s placement, or the Assurant Defendants’ issuance, of LPI Policies during the Settlement Class Period, including but not limited to conduct, policies or practices concerning LPI Policies or to charges for Ocwen’s Placement of LPI Policies during the Settlement Class Period. In agreeing to this Release, Named Plaintiffs explicitly acknowledge that unknown losses or claims could possibly exist and that any present losses may have been underestimated in amount or severity.

(i) The Release stated in Paragraph 14(b) above shall include, but not be limited to, all claims related to Ocwen’s insurance requirements; the relationship, whether contractual or otherwise, between Ocwen and the Assurant Defendants regarding LPI, including, but not limited to, the procuring, underwriting, placement, insurance tracking, or costs of LPI Policies; the coverage amount, duration, issue date, alleged “backdating,” or alleged excessiveness of any LPI Policies placed or charged by Ocwen; the payment or receipt of commissions, expense reimbursements, alleged “kickbacks,” or any other compensation under any LPI Policies placed or charged by Ocwen; any alleged “tying” arrangement involving Ocwen and LPI; any alleged breach of fiduciary duty by Ocwen concerning LPI Policies; any alleged tortious interference by the Assurant Defendants with mortgage loans serviced by Ocwen; the disclosure or non-disclosure of any payment, expenses, fees, charges, or features pertaining to or under any LPI Policies or coverage under such LPI Policies and charges for such coverage placed or charged by Ocwen; the receipt or non-disclosure of any benefit under any LPI Policies or coverage under such LPI Policies and charges for such coverage placed or charged by Ocwen; the content, manner, or accuracy of any communications regarding the placement of any LPI Policies by Ocwen; and to the regulatory approval or non-approval of any LPI Policy, or the premium thereon, placed or charged by Ocwen.

(ii) The Release in Paragraph 14(b) above shall not cover claims arising after the close of the Settlement Class Period, nor insurance claims for losses relating to properties insured under any LPI Policy placed or charged for by Ocwen. Nothing in Section 10.1 shall be deemed a release of any Settlement Class Member’s respective rights and obligations under this Agreement. Further, nothing in Paragraph 14(b), or any other provision of the Stipulation and Settlement Agreement, shall be deemed a release of: (a) claims by borrowers charged for LPI that was purchased by the Ocwen Acquired Companies prior to the time Ocwen acquired the Ocwen Acquired Companies, (b) claims by borrowers who were charged for LPI that was purchased by mortgage servicers other than Ocwen, or (c) any claims arising under Section 10(b) and/or 20(a) of the Exchange Act, including but not limited to claims asserted in United Union of Roofers, Waterproofers & Allied Workers Local Union No. 8 v. Ocwen Financial Corp., No. 14-81057 (S.D. Fla.); Tuseo v. Ocwen Financial Corp., No. 14-81064 (S.D. Fla.), and/or Frechter v. Ocwen Financial Corp., No. 14-81076 (S.D. Fla.).

(iii) Except to the extent that any such obligation is being released pursuant to Paragraph 14(b) above, this Final Order shall not be deemed a release of Defendants from any existing obligation to any Settlement Class Member under any loan, note, mortgage, or deed of trust. This provision is not meant to and does not limit the Releases in this Final Order or in the Settlement Agreement.

(c) The Named Plaintiffs and Class Counsel further represent that there are no outstanding liens or claims against the Lee Litigation, it being recognized that the Named Plaintiffs will solely be charged with the responsibility to satisfy any other liens or claims asserted against the Lee Litigation.

(d) Without in any way limiting their scope, the Releases cover by example and without limitation, any and all claims for attorneys’ fees, costs, expert fees, or consultant fees, interest, or litigation fees, or any other fees, costs, and/or disbursements incurred by Class Counsel, the Named Plaintiffs, or any Settlement Class Members in connection with or related in any manner to the Lee Litigation or Patrick Litigation,[18] the settlement of the Lee Litigation, the administration of such Settlement, and/or the Released Claims, except to the extent otherwise specified in the Settlement Agreement.

(e) In connection with the foregoing Releases, the Named Plaintiffs and each Settlement Class Member expressly waive, and shall be deemed to have waived to the fullest extent permitted by law, any and all provisions, rights, benefits conferred by Section 1542 of the California Civil Code, and any statute, rule and legal doctrine similar, comparable, or equivalent to California Civil Code Section 1542, which provides that:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

To the extent that anyone might argue that these principles of law are applicable — notwithstanding that the Settling Parties have chosen Florida law to govern this Settlement Agreement — the Named Plaintiffs hereby agree, and each Settlement Class Member will be deemed to agree, that the provisions of all such principles of law or similar federal or state laws, rights, rules, or legal principles, to the extent they are found to be applicable herein, are hereby knowingly and voluntarily waived, relinquished, and released. The Named Plaintiffs recognize, and each Settlement Class Member will be deemed to recognize, that, even if they may later discover facts in addition to or different from those which they now know or believe to be true, they nevertheless agree that, upon entry of this Final Order, they fully, finally, and forever settle and release any and all claims covered by the Releases.

(f) The Releases were bargained for and are a material element of the Settlement Agreement.

(g) The Releases do not affect the rights of Settlement Class Members who timely and properly submitted a Request for Exclusion from the Settlement in accordance with the requirements of the Preliminary Approval Order and in Section 11 of the Settlement Agreement.

(h) The administration and consummation of the Settlement as embodied in the Settlement Agreement shall be under the authority of the Court.

(i) The Settlement Agreement shall be the exclusive remedy for any and all Settlement Class Members, except those who have properly requested exclusion (opted out), and the Released Persons shall not be subject to liability or expense for any of the Released Claims to any Settlement Class Member(s).

(j) The Releases shall not preclude any action to enforce the terms of the Settlement Agreement, including participation in any of the processes detailed therein. The Releases set forth herein and in the Settlement Agreement are not intended to include the release of any rights or duties of the Settling Parties arising out of the Settlement Agreement, including the express warranties and covenants contained herein.

15. Neither the Settlement Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings connected with it, nor any of the documents or statements referred to therein, nor this Final Order, nor any of its terms and provisions, nor the final judgment to be entered pursuant to this Final Order, nor any of its terms and provisions, shall be:

(a) offered by any person or received against the Defendants as evidence or construed as or deemed to be evidence of any presumption, concession, or admission by the Defendants of the truth of the facts alleged by any person or the validity of any claim that has been or could have been asserted in the Lee Litigation or in any litigation, or other judicial or administrative proceeding, or the deficiency of any defense that has been or could have been asserted in the Litigation or in any litigation, or of any liability, negligence, fault or wrongdoing of the Defendants;

(b) offered by any person or received against the Defendants as evidence of a presumption, concession, or admission of any fault, misrepresentation, or omission with respect to any statement or written document approved or made by the Defendants or any other wrongdoing by the Defendants;

(c) offered by any person or received against the Defendants as evidence of a presumption, concession, or admission with respect to any liability, negligence, fault, or wrongdoing in any civil, criminal, or administrative action or proceeding;

(d) offered or received in evidence in any action or proceeding against any Party hereto in any court, administrative agency, or other tribunal for any purpose whatsoever, other than to enforce or otherwise effectuate the Settlement Agreement (or any agreement or order relating thereto), including the Releases, or the Final Order, or the final judgment to be entered pursuant to this Final Order.

16. This Final Order, the final judgment to be entered pursuant to this Final Order, and the Settlement Agreement (including the exhibits thereto) may be filed in any action against or by any Released Person (as that term is defined herein and the Settlement Agreement) to support a defense of res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction, or any theory of claim preclusion or issue preclusion or similar defense or counterclaim.

17. Without further order of the Court, the Parties may agree to reasonably necessary extensions of time to carry out any of the provisions of the Settlement Agreement.

18. This Final Order, and the final judgment to be entered pursuant to this Final Order, shall be effective upon entry. If the Final Order and the final judgment to be entered pursuant to this Final Order are reversed or vacated pursuant to a direct appeal in this Action or the Settlement Agreement is terminated pursuant to its terms, all orders entered and releases delivered in connection herewith shall be null and void.

19. A final judgment will be entered soon.

DONE and ORDERED.

[1] The parties call the case Batman v. The Gillette Company (or Co.) (e.g., ECF Nos. 175, 181), but the unofficial version of this unpublished case (available on Westlaw) uses Poertner. The Undersigned will use the Poertner v. Gillette Co. citation style and will refer to the case as Gillette.

[2] Unless otherwise indicated, all capitalized terms used herein have the same defined meaning assigned to them in the Settlement Agreement, ECF No. 144-1 ¶¶ 2.1-2.51, and all ECF citations refer to the Lee Litigation docket.

[3] All Fifth Circuit decisions issued prior to the close of business on September 30, 1981, are binding precedent upon the Eleventh Circuit. Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

[4] It is the Settlement Administrator, not Defendants, that exercises discretion to deny Claims. The Settlement Agreement confers on Defendants only a limited right to “notify the Settlement Administrator as to the inaccuracy of a Claim prior to the deadline for processing the Claim,” while “also providing written notification of the inaccurate Claim to Class Counsel.” [ECF No. 144-1, ¶ 7.3.1]. In turn, the Administrator “shall confirm that each Claim Form submitted is in the form required, that each Claim Form includes the required affirmations, information, and, where appropriate, identity confirmation,” as well as confirm “that each Claim Form was submitted in a timely fashion, and that the Claimant is a member of the Settlement Class.” [Id., ¶ 7.2].

The Administrator, not Defendants, “shall make a determination as to the amount of the Claim.” [Id., ¶ 7.3]. The Administrator is a neutral third party [id., ¶ 2.1]; it “shall not receive any incentive for denying claims.” [Id., ¶ 7.2]. Claims determined to have inaccurate information will thus be “processed in accordance with the information from Defendants’ records” [id., ¶ 7.3.1], but the processing and any resulting denial is the Administrator’s prerogative, not Defendants. See Saccoccio, 297 F.R.D. at 696-97 (overruling objection to audit right in comparable LPI settlement).

[5] After the Fairness Hearing, the Court directed the parties to file a list of all cases, from both the trial and appellate levels, from April 1, 2012 to the present, in which courts have approved settlements in LPI cases, rejected them and/or ruled on motions to dismiss or for summary judgment, in whole or in part. The parties complied. [ECF Nos. 164; 165; 167].

As the Court suspected, there are many rulings, most entered in the past three years, ranging all across the country, granting motions to dismiss, sometimes with prejudice, and defense-filed summary judgment motions. These rulings confirm United States District Judge Federico Moreno’s weather-oriented observation that LPI class action plaintiffs face “headwinds.” Saccoccio, 297 F.R.D. at 693. The Court appreciates counsel’s diligent work in tracking down the information and putting the results in a user-friendly chart form. The project was worthwhile, as it confirmed that LPI lawsuits face significant legal obstacles. To continue with Judge Moreno’s weather metaphor, the possible fate of LPI class action lawsuits can now certainly be described accurately with a reference to metereological-focused song lyrics sung by Billie Holiday (i.e., “Don’t know why there’s no sun up in the sky/ Stormy weather”) and the Allman Brothers Band (i.e., “They call it Stormy Monday, but Tuesday’s just as bad”).

[6] In Rothstein, the plaintiffs initially survived a motion to dismiss when the district court rejected Defendants’ filed rate doctrine theory. But the district court, noting a conflict of authority, certified its decision for interlocutory appeal, and the Second Circuit then (very recently) accepted the filed rate doctrine argument and remanded the case for dismissal. 794 F.3d 256.

[7] Mr. Jastrzemski describes Ocwen’s processes and accounting of transactions in borrowers’ escrow accounts as they relate to LPI. [ECF No. 134-1, ¶ 1]. He explains that Ocwen maintains escrow and other account information in RealServicing, Ocwen’s servicing system. [Id. ¶ 4]. As with other escrow items, debits for the cost of LPI premiums are recorded in a borrower’s escrow account history in RealServicing. [Id., ¶ 5]. The data record in RealServicing does not allow Ocwen to identify, by means of an electronic search through all borrower files, which of the borrowers whose escrow accounts were charged to reimburse Ocwen for the cost of LPI premiums subsequently paid those charges, or which of the borrowers still owe the charges. [Id.]

For example, a payment into a borrower’s escrow account (whether from the borrower or some third party) is not attributed in RealServicing to specific escrow charges, so payment to an escrow account will not be reflected in RealServicing as a payment for LPI. [Id.]. Escrow account credits also reflect more than payments from the borrower, and include credits reflecting accounting adjustments and payments received from third parties. [Id.]. As a result, the fact that there is a credit before or after an LPI debit does not mean necessarily that a borrower actually reimbursed Ocwen for LPI premiums. [Id.]. In addition to escrow credits resulting from payments by borrowers or on their behalf, borrowers’ escrow balances might be credited with certain amounts in a number of circumstances, including when there has been a loan modification, or when loans are liquidated as part of a short sale or deed-in-lieu of foreclosure transactions. [Id. ¶ 7]. Still other such circumstances exist, as detailed in the Jastrzemski declaration. [Id.].

Where it would be possible, on an individual basis, to determine whether LPI premiums were paid or are still owed by a borrower, the determination would require a manual review of transactions in the borrower’s escrow account. [Id. ¶ 8]. Given that there are hundreds of thousands of unique loans, many with multiple LPI placements, within the Settlement Class, an individualized review could take years to accomplish. [Id.].

[8] The objector in Gillette asserted a self-dealing contention because of the “clear-sailing” provision, which is also found in the instant settlement. The appellate court rejected the argument, noting that “the parties settled only after engaging in extensive arms-length negotiations moderated by an experienced, court-appointed mediator.” 2015 WL 4310896, at *6.

[9] Mr. Hansen and another objector, Michael Hobbs [ECF No. 148], also characterize (without analysis) the amount of the Attorneys’ Fees and Expenses as disproportionate to the relief afforded Class Members. The Court overrules that objection since the value of the relief afforded Class Members merits the Attorneys’ Fees and Expenses awarded.

[10] Three of Ms. Perryman’s attorneys have informed Class Counsel that they no longer represent Ms. Perryman in this matter. Her objection was filed by her two remaining counsel, Mr. Himmelstein and Ms. Kelly, with Mr. Himmelstein taking the lead. Attorney Alexander Owings, an Arkansas-based attorney who is a Florida Bar member and who served as “local counsel” for Ms. Kelly and Mr. Himmelstein, filed a motion for leave to withdraw [ECF No. 182]. The motion did not provide any grounds for the requested withdrawal, but no objections were filed, and the Court granted the motion, giving the two out-of-town attorneys 10 days to find substitute local counsel. [ECF No. 183].

[11] Like Ms. Perryman, former objectors Shane and Cecilia Valdez are plaintiffs in a similar LPI action pending in the Central District of California against some of the same Defendants in this Litigation. The Court overruled as premature the Valdezes’ earlier objection to the Settlement’s preliminary approval. [ECF No. 119 at 2-4]. Although they raised a scattershot of grievances, principally taking issue with the Settlement’s claims-made process, the Valdezes have since withdrawn their objection to the Settlement’s final approval. The objection having been “surrendered on terms that do not affect the class settlement,” Fed. R. Civ. P. 23(e), 2003 advisory comm. notes, the Court has approved its withdrawal from further consideration. [ECF No. 163]. See also Fladell, 2014 WL 5488167, at *3 (granting request to withdraw objections to comparable LPI class settlement). The Court will nonetheless indirectly address the Valdezs’ concerns to the extent the Court addresses Ms. Perryman’s substantively overlapping objection.

[12] Rothstein, which agreed with Defendants’ filed rate doctrine defense and directed the dismissal of an LPI case, is a powerful illustration of the hurdles that the plaintiffs here would have faced if they had continued with litigation. 794 F.3d 256. Thus, the case supports final approval. [As an interesting or coincidental aside, Attorney Frank Burt and other attorneys at his firm (Carlton Fields Jorden Burt, P.A.) represented ASIC in its capacity as amicus curiae in Rothstein. They represent ASIC in this case as a named party defendant].

[13] This is quoted from the lower court’s decision, prior to the Eleventh Circuit’s ruling in Gillette, 2015 WL 4310896.

[14] Class Counsel concede [ECF No. 144, p. 18] that some of these practices were already prohibited by a settlement reached with New York regulators before this settlement was reached, but they note the New York injunction applies only to New York borrowers and binds only the Assurant Defendants, “leaving Ocwen free to continue its practices with another insurer.”

[15] De Leon v. Bank of America, N.A., No. 09-1251, 2012 WL 2568142 (M.D. Fla. Apr. 20, 2012), report and recommendation adopted, 2012 WL 2543586 (M.D. Fla. July 2, 2012) — a decision on which Ms. Perryman relies — is not to the contrary. In the class settlement proposed there, class members would receive, at most, $28 in settlement of their claims; many would receive less. 2012 WL 2568142, at *1. “Several factors assure that few settlement class members will submit a claim form to obtain, at most, a $28.00 cash payment.” Id. at *19. According to the De Leon court, “a maximum $28.00 payment is not likely to induce class members to submit a claim.” Id. at *19. But “most importantly,” that court found, “the proposed revised claim form requires the class member to provide specific factual details, under the penalty of perjury, regarding the credit card account, the method of payment used and the late payment fee, finance charge, or other fee or penalty assessed on a credit card payment made between April 1, 2005 and October 19, 2006” — more than five years earlier. Id.

Furthermore, the settling parties in De Leon submitted no evidence demonstrating the need for a claims-made settlement structure. Id. at *20. This Settlement is not analogous to the flawed De Leon settlement. The amounts available to Class Members here are, on average, likely to be in the hundreds of dollars, not a maximum of $28. Indeed, for this Settlement, there is no maximum recovery. And unlike the De Leon settlement, which required claimants to know and submit arcane data, Class Members here are eligible to receive Claim Settlement Relief merely by submitting a streamlined Claim Form and confirming their identity in one of several ways. Detailed information — like coverage periods, total charges, or amounts paid — need not be supplied. [ECF No. 144-2 Ex. C]. In addition, unlike the settling parties in De Leon, the Parties here submitted ample evidence demonstrating the need for a claims process, as discussed more fully in this Final Order.

[16] An escrow account is a running balance, much like a credit card, as Mr. Jastrzemski explained in his deposition at pages 26-27 [ECF No. 169-1]:

And by way of example, this is — when I try to explain escrow to people, this is the easiest way I can get people to relate: If you started with a credit card balance of zero, and today I went out and bought a pair of shoes for a hundred dollars, I bought a belt for a hundred dollars, and a shirt for a hundred dollars, and next month I make a hundred dollar payment to my credit card. I can’t for certain say that I paid for the shoes, for the shirt or for the belt. I just paid a hundred dollars to pay down my balance. And that’s very similar to the way an escrow account works, because of the commingle nature of taxes and insurance.

[17] Pointing to a favorable decision in her own case in which the trial judge determined that the filed rate doctrine does not bar LPI claims against Ocwen and ASIC, Ms. Perryman also argues [ECF No. 181] that the “defendants here did not face weak or uncertain claims, justifying this settlement which provides negligible relief to the class.” But the opinion in Perryman v. Litton Loan Servicing, LP, No. 14-cv-02261-JST, 2014 WL 4954674 (N.D. Cal. Oct. 1, 2014) is a district court opinion, not a Circuit Court appellate decision like Rothstein.

Moreover, even if the filed rate doctrine were not a substantial hurdle (and it is), it is only one of many legal challenges, which Plaintiffs would have to confront. Perhaps most importantly, the Plaintiffs here would be forced to address the skepticism which many courts have raised about the fundamental, primary theory underlying the claims. Several courts adopt the perspective that the mortgagors received ample notice of the consequences which would flow from a failure to keep in place sufficient insurance and that banks and mortgage servicers did not breach a contract or commit a fraud when they took advantage of the very rights that were outlined in the applicable transactional documents. In fact, the Undersigned has previously flagged my concerns over Plaintiffs’ ability to avoid an adverse summary judgment on basic proof issues, such as damages causation. See Montoya, 2014 WL 4248208. See also Feaz v. Wells Fargo Bank, 745 F.3d 1098 (11th Cir. 2014) and Wilson v. Everbank, N.A., No. 14-22264, 2015 WL 1600549, at *2-6 (S.D. Fla. Apr. 9, 2015).

[18] The “Patrick Litigation” refers to Patrick v. Ocwen Loan Servicing, LLC, No. 1:14-cv-21089 (S.D. Fla.), a parallel action once pending in this district, which was later subsumed into the Lee Litigation.

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Posted in STOP FORECLOSURE FRAUD1 Comment

FULL DEPOSITION OF MARCOS FLORES – Assistant Vice President, Regional Outreach Manager of ONEWEST BANK

FULL DEPOSITION OF MARCOS FLORES – Assistant Vice President, Regional Outreach Manager of ONEWEST BANK

Courtesy of Ice Legal

Q. Okay. And the bailee letter, can you describe

19 for me what’s contained in that letter?

20 A. It’s funny that they call it a letter because

21 it really doesn’t look like a letter. It just looks

22 like a cover sheet. It documents the date that the

23 originals were checked out and the signature or

24 acknowledgement for receipt for it.

25 Q. Okay. Do you know who checked that out?

A. I don’t recall the specific name.

2 Q. Do you know where it was checked out from?

3 A. Yeah. It was requested from the document

4 custodian.

5 Q. Who is the document custodian?

6 A. The document custodian is Deutsche Bank

7 National Trust.

8 Q. And do you know where?

9 A. It’s located in California. I don’t have the

10 specific address.

11 Q. And you said the bailee letter contained an

12 acknowledgement of receipt?

13 A. Yeah.

14 Q. Who acknowledged that?

15 A. It was the signature. Like I said earlier, I

16 don’t recall the name signed on that.

17 Q. Sure it wasn’t somebody at OneWest?

18 A. No. It was someone at I believe Florida

19 Default was the original firm, if I recall.

20 Q. Okay. So OneWest’s outside counsel?

21 A. At that time OneWest didn’t even exist. This

22 was back in 2008. So it would have been — I can’t

23 even recall. It would be IndyMac or IndyMac Federal.

 

[…]

Q. Okay. So your testimony was that plaintiff

2 held the note before the filing of the lawsuit, right?

3 A. Yes, sir. To my knowledge, based on my

4 business record.

5 Q. Okay. Are you aware that plaintiff alleged in

6 the original complaint that the note was lost?

7 A. I am aware of that. I came across it in some

8 of the business record review. Not really sure why

9 that was the case or why that occurred.

[…]

Q. Do you know what date Deutsche Bank bought the

21 loan?

22 A. Not specifically. It was in December. I

23 guess about 30 days after origination. Thirty to

24 45 days if I remember correctly.

25 Q. Do you know what was paid?

A. No, I don’t know that. I know some other

2 facts about the particular pool. Close to 780 loans in

3 it.

4 Q. Who did plaintiff buy the loan from?

5 A. The actual I guess pool of loans, they were

6 purchased from IndyMac.

7 Q. So plaintiff bought the note and mortgage from

8 IndyMac?

9 A. Plaintiffs bought the asset, yes, as a part of

10 the pool.

[…]

Q. Is this a copy of the original note?

12 A. Yes, it appears to be.

13 Q. How do you know?

14 A. Just in terms of the basic fundamental things,

15 the origination the 21st of 2005, the property address,

16 the amount on the promise to pay.

17 Q. But you have already testified you never seen

18 the original note, right?

19 A. Yes, that’s correct.

20 Q. Is there an endorsement on this note?

21 A. No, there is not.

22 Q. Is there an allonge attached to this note?

23 A. No, there is not.

[…]

Q. Okay. Do you know who hired Florida Default

24 Law Group for this case?

25 A. Not directly, no, sir.

Q. Is Erica Johnson-Seck in charge of the

2 attorney network for OneWest Bank?

3 A. She is responsible, but I don’t know if she is

4 directly responsible for hiring the firms or assessing

5 their performance.

[…]

Q. Who did plaintiff obtain the right to enforce

4 the note and mortgage from?

5 A. As plaintiff you mean Deutsche Bank?

6 Q. Right.

7 A. Well, they hold the original note and the

8 mortgage.

9 Q. And they obtained the original note and

10 mortgage from whom?

11 A. At the time of transaction or sale, the

12 documents were transferred over to them. That would

13 have been in 2005.

14 Q. So who did they obtain possession from?

15 A. They purchased the asset from IndyMac.

16 Q. So IndyMac was in physical possession of this

17 prior to plaintiff coming in possession?

18 A. I don’t want to draw any conclusions or

19 assumptions. I wasn’t there personally myself, but

20 yes, I would assume so. If Deutsche Bank was in

21 possession of the originals when they were previously

22 checked out and filed with the court, the assumption is

23 that they would have obtained those documents from the

24 FDIC — or not from the FDIC, from IndyMac when they

25 consummated the sale.

 […]

Down Load PDF of This Case

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IndyMac Fed. Bank, FSB v Meisels | Judge Schack Slams MERS, Fein Such & Crane, LLP & “LIVING DEAD” Indymac

IndyMac Fed. Bank, FSB v Meisels | Judge Schack Slams MERS, Fein Such & Crane, LLP & “LIVING DEAD” Indymac

Decided on October 4, 2012

Supreme Court, Kings County

 

IndyMac Federal Bank, FSB, Plaintiff,

against

Mendel Meisels et. al., Defendants.

8752/09

Plaintiff

Fein Such and Crane, LLP

Rochester NY

Defendant:

Hanna & Vlahakis

Brooklyn NY

Arthur M. Schack, J.

In this mortgage foreclosure action, for the premises located at 2062 61st Street, Brooklyn, New York (Block 5528, Lot 33, County of Kings), defendant MENDEL MEISELS (MEISELS) moves, pursuant to CPLR Rule 5015 (a) (4), to vacate the July 27, 2010 order of reference granted upon defendant MEISEL’s default, for “lack of jurisdiction to render the . . . order” to plaintiff INDYMAC FEDERAL BANK, FSB [INDYMAC FED] and then, if vacated, either dismiss the instant action, pursuant to CPLR Rule 3211 (a) (1) and (7), or grant leave to defendant MEISELS to file a late answer, pursuant to the CPLR Rule 2004 and § 3012 (d). [*2]

The Court grants relief to defendant MEISELS. In the instant action, plaintiff INDYMAC FED lacks jurisdiction. It ceased to exist on March 19, 2009, almost three weeks before the instant action commenced on April 9, 2009. If plaintiff INDYMAC FED has jurisdiction and standing it would be the legal equivalent of a vampire – the “living dead.” Further, the Court is concerned that: there are documents in this action in which various individuals claim to be officers of either the “living dead” INDYMAC FED or its deceased predecessor INDYMAC BANK, FSB [INDYMAC]; and, the law firm of Fein, Such & Crane, LLP (FS & C) commenced and prosecuted this meritless action, asserting false material statements, on behalf of a client that ceased to exist 20 days prior to the commencement of the instant action.

If plaintiff INDYMAC FED is a financial “Count Dracula,” then its counsel, FS & C, is its “Renfield.” In the 1931 Bela Lugosi “Dracula” movie, the English solicitor Renfield travels to Transylvania to have Dracula execute documents for the purchase of Carfax Abbey, only to be drugged by Count Dracula and turned into his thrall. Renfield, before his movie death, tells Dracula “I’m loyal to you. Master, I am your slave, I didn’tBetray you! Oh, no, don’t! Don’t kill me! Let me live, please! Punish me, torture me, but let me live! I can’t die with all those lives on my conscience! All that blood on my hands!”(“Memorable quotes for Dracula [1931]” at www.imdb.com/title/tt021814/ quotes). FS & C, similar to Renfield, throughout its papers and at oral argument demonstrated its loyalty by not betraying its client and Master, the “living dead” INDYMAC FED.

Further, the Court finds that it is an extraordinary circumstance for a corporate entity that ceased to exist, plaintiff INDYMAC FED, to retain counsel and proceed to foreclose on a mortgage for real property. This extraordinary circumstance requires the Court to: vacate defendant MEISELS’ default, because it is impossible for the “living dead” plaintiff, INDYMAC FED, to have jurisdiction; dismiss the instant action with prejudice; and, give FS & C an opportunity to be heard as to why the Court should not sanction it for engaging in frivolous conduct, in violation of 22 NYCRR § 130-1.1 (c) (1) and (3), because the instant action is “completely without merit in law” and “asserts material factual representations that are false.”

Background

Defendant MEISELS closed on his $765,000.00 purchase of the subject property, a two-family investment property, on March 7, 2005. The deed was recorded on March 25,

2005, in the Office of the City Register of the City of New York, at City Register File Number (CRFN) 2005000175346. MEISELS, to finance the purchase, borrowed

$460,000.00 from INDYMAC and, at the March 7, 2005 closing, executed a mortgage and note for that amount. In the subject mortgage it states that INDYMAC is the “lender” and Mortgage Electronic Registrations Systems, Inc. [MERS] “is a separate corporation that is acting solely as a nominee for Lender” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD.” The subject note states that INDYMAC is the “lender” and the “Note Holder” is “[t]he Lender or anyone who takes this Note by transfer.” MERS, as nominee for INDYMAC, recorded the subject mortgage and note on March 25, 2005, in the Office of the City Register of the City of New York, at CRFN 2005000175347.

Subsequently, INDYMAC failed in the 2008 financial meltdown. The Federal Deposit [*3]Insurance Corporation [FDIC] stated in its December 15, 2010 “Failed Bank Information” for INDYMAC and INDYMAC FED:

On July 11, 2008, IndyMac Bank, F.S.B., Pasadena, CA was closed

by the Office of Thrift Supervision (OTS) and the FDIC was named

Conservator. All non-brokered insured deposit accounts and substantially

all of the assets of IndyMac Bank, F.S.B. have been transferred to

IndyMac Federal Bank, F.S.B. (IndyMac Federal Bank), Pasadena,

CA (“assuming institution”) a newly chartered full-service FDIC-insured

institution.

Then, the FDIC, approximately eight months later, on March 19, 2009, transferred the assets of INDYMAC FED to a new bank, OneWest Bank, FSB. The FDIC stated in its December 15, 2010 “Failed Bank Information” for INDYMAC and INDYMAC FED:On March 19, 2009, the Federal Deposit Insurance Corporation

(FDIC) completed the sale of IndyMac Federal Bank, FSB, Pasadena,

California, to OneWest Bank, F.S.B., Pasadena, California. OneWest

Bank, FSB is a newly formed federal savings bank organized by IMB

HoldCo LLC. All deposits of IndyMac Federal Bank, FSB have

been transferred to OneWest Bank, FSB.

Meanwhile, MERS, as nominee for INDYMAC, on March 10, 2009, despite INDYMAC’s July 11, 2008 corporate demise, assigned the subject mortgage with “all rights accrued under said Mortgage and all indebtedness secured thereby” to INDYMAC FED. This assignment was recorded in the Office of the City Register of the City of New York, at CRFN 2009000085845, on March 25, 2009. No power of attorney authorizing MERS to assign the mortgage was attached or recorded. Further, MERS’ assignor, as Vice President of MERS, for the “living dead” INDYMAC, was the infamous robosigner

Erica Johnson-Seck. This Court, in several previous decisions, most notably in OneWest Bank, F.S.B. v Drayton (29 Misc 3d 1021 [Sup Ct, Kings County 2010]), discussed Ms. Johnson-Seck’s robosigning activities. In Deutsche Bank v Maraj (18 Misc 3d 1123 [A] [Sup Ct, Kings County 2008]), Ms. Johnson-Seck was Vice President of both assignor MERS and assignee Deutsche Bank. In Indymac Bank, FSB v Bethley (22 Misc 3d 1119 [A] [Sup Ct, Kings County 2009]), Ms. Johnson-Seck was Vice President of both assignor MERS and assignee Indymac Bank. In Deutsche Bank v Harris (Sup Ct, Kings County, Feb. 5, 2008, Index No. 35549/07), Ms. Johnson-Seck executed an affidavit of merit as Vice President of Deutsche Bank.

This Court observed in Drayton, at 1022-1023:

Ms. Johnson-Seck, in a July 9, 2010 deposition taken in a Palm Beach

County, Florida foreclosure case, admitted that she: is a “robo-signer”

who executes about 750 mortgage documents a week, without a notary [*4]

public present; does not spend more than 30 seconds signing each

document; does not read the documents before signing them; and,

did not provide me with affidavits about her employment in two

prior cases.

Moreover, in Drayton, at 1026:

Ms. Johnson-Seck admitted that she is not an officer of MERS, has

no idea how MERS is organized and does not know why she signs

assignments as a MERS officer. Further, she admitted that the MERS

assignments she executes are prepared by an outside vendor, Lender

Processing Services, Inc. (LPS), which ships the documents to her

Austin, Texas office from Minnesota. Moreover, she admitted executing

MERS assignments without a notary public present. She also testified

that after the MERS assignments are notarized they are shipped back

to LPS in Minnesota.

FS & C, as counsel for the “living dead” plaintiff, INDYMAC FED, commenced the instant action on April 9, 2009 by filing the summons, verified complaint and notice of pendency with the Kings County Clerk. These documents are all dated April 8, 2009. Plaintiff’s counsel, FS & C, incorrectly states in the April 8, 2009 complaint that: plaintiff INDYMAC FED is “existing” and “doing business in the State of New York” [¶ 1]; and “the plaintiff is now the owner and holder of the said bond(s)/notes(s) and mortgages securing the same” [¶ 11]. Mark K. Broyles, Esq., the “Renfield” for the “living dead” INDYMAC FED, in his verification of the complaint, dated 20 days after plaintiff INDYMAC FED ceased to exist, states “I am the attorney of record, or of counsel with the attorney(s) of record for the plaintiff. I have read the annexed Summons and Complaint and know the contents thereof and the same are true to my knowledge” and “I verify that the foregoing statement are true under the penalties of perjury [emphasis added].”

In his April 15, 2009 affidavit of amount due, Roger Stotts claims to be Vice President of plaintiff INDYMAC FED, despite the end of its existence on March 19, 2009, and claims, in ¶ 4, “Plaintiff is still the holder of the aforesaid obligation and mortgage” and, in ¶ 7, “I hereby certify that the foregoing statements made by me are true; I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.” Mr. Stotts alleges that defendant MEISELS

defaulted in his mortgage loan payments on August 1, 2008. Then, in his June 2, 2009 certificate of conformity, Mr. Broyles swears that “the foregoing acknowledgment of Roger Stotts . . . and based upon my review thereof, appears to conform with the laws of the State of New York.” The Court wonders why Mr. Broyles and FS & C continue the charade of representing a deceased corporation and falsely asserting its existence.

Subsequent to the Erica Johnson-Seck March 10, 2009 assignment of the subject mortgage “and all indebtedness secured thereby,” from MERS, as nominee for the then “living dead” INDYMAC, to assignee INDYMAC FED, there is another assignment of the subject mortgage “and all indebtedness secured thereby,” on March 30, 2011 by Wendy Traxler, as “Attorney in Fact” for “Federal Insurance Corporation [sic] as Receiver for IndyMac Bank, [*5]F.S.B.” to “Deutsche Bank National Trust Company, as Trustee of the Residential Asset Securitization Trust 2005-A6CB, Mortgage Pass-Through Certificates, Series 2005-F under the Pooling and Servicing Agreement dated May 1, 2005.” This assignment was recorded in the Office of the City Register of the City of New York, at CRFN 2011000132354, on April 12, 2011. No power of attorney is attached to the Wendy Traxler assignment nor is a power of attorney recorded. Moreover, Ms. Traxler, similar to Erica Johnson-Seck, executed the assignment in Austin, Texas. The Court is perplexed about why the FDIC assigned the subject mortgage and note if the assets of INDYMAC and its successor INDYMAC FED were assigned on March 19, 2009 to OneWest Bank, F.S.B.

Mr. Broyles, subsequent to this, on March 9, 2012, executed a new notice of pendency in the instant action for then almost three years deceased plaintiff, INDYMAC FED, and certified the additional notice of pendency as “an attorney licensed to practice in the State of New York, and a partner in the law firm of Fein, Such & Crane, LLP.” Moreover, despite representing the “living dead” INDYMAC FED, Mr. Broyles certified that the additional notice of pendency, “to his knowledge, information and belief, formed after an inquiry reasonable under the circumstances” is “not frivolous as defined in subsection (c) of section 130-1.1 of the Rules of the Chief Administrator [22 NYCRR 130-1.1 (c)].

Non-existent corporate plaintiff’s lack of jurisdiction

In the instant action, plaintiff INDYMAC FED ceased to exist prior to the commencement of the action. The FDIC, as outlined above, sold plaintiff INDYMAC FED to One West Bank, F.S.B., on March 19, 2009. Therefore, plaintiff INDYMAC FED could not obtain personal jurisdiction over defendant MEISELS because it lacked the capacity to commence the instant foreclosure on April 8, 2009, subsequent to its corporate demise. The Appellate Division, Second Department, in Westside Federal Sav. & Loan Ass’n v Fitzgerald (136 AD2d 699 [2d Dept 1988]), quoting Sheldon v Kimberly-Clark Corp. (105 AD2d 273, 276 [2d Dept 1984]), instructed that once a banking institution has been merged or absorbed by another banking institution “the absorbed corporation immediately ceases to exist as a separate entity, and may no longer be a named party in litigation.” (See Zarzcyki v Lan Metal Products, Corp., 62 AD3d 788, 789 [2d Dept 2009]).

Therefore, the “living dead” INDYMAC FED was unable to be named a party in litigation and obtain personal jurisdiction over defendant MEISELS. Thus, it follows that plaintiff INDYMAC FED clearly lacks standing. “Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress.” (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801 812 [2003], cert denied 540 US 1017 [2003]). Professor David Siegel (NY Prac, § 136, at 232 [4d ed]), instructs that:

[i]t is the law’s policy to allow only an aggrieved person to bring a

lawsuit . . . A want of “standing to sue,” in other words, is just another

way of saying that this particular plaintiff is not involved in a genuine

controversy, and a simple syllogism takes us from there to a “jurisdictional” [*6]

dismissal: (1) the courts have jurisdiction only over controversies; (2) a

plaintiff found to lack “standing”is not involved in a controversy; and

(3) the courts therefore have no jurisdiction of the case when such a

plaintiff purports to bring it.

“Standing to sue requires an interest in the claim at issue in the lawsuit that the law will

recognize as a sufficient predicate for determining the issue at the litigant’s request.” (Caprer v Nussbaum (36 AD3d 176, 181 [2d Dept 2006]). If a plaintiff lacks standing to

sue, the plaintiff may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1st Dept 2002]).

The Appellate Division, Second Department instructed, in Aurora Loan Services, LLC v Weisblum (85 AD3d 95, 108 [2d Dept 2011]), that:

In order to commence a foreclosure action, the plaintiff must

have a legal or equitable interest in the mortgage ( see Wells Fargo

Bank, N.A. v Marchione, 69 AD3d, 204, 207 [2d Dept 2009]). A

plaintiff has standing where it is both (1) the holder or assignee of

the subject mortgage and (2) the holder or assignee of the underlying

note, either by physical delivery or execution of a written assignment

prior to the commencement of the action with the filing of the complaint

(see Wells Fargo Bank, N.A. v Marchione, 69 AD3d at 207-209; U.S. v Collymore, 68 AD3d 752, 754 [2d Dept 2009].)

With the lack of jurisdiction by the “living dead” plaintiff INDYMAC FED, the Court does not have to address the numerous defects in the alleged assignments of the subject MEISELS mortgage and note. However, in the instant action, even if MERS had authority to transfer the mortgage to INDYMAC FED, the “living dead” INDYMAC, at the time of the Erica Johnson-Seck assignment, not MERS, was the note holder. MERS cannot transfer something it never proved it possessed. A “foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity [Emphasis added].” (Kluge v Fugazy (145 AD2d 537, 538 [2d Dept 1988]). Moreover, “a mortgage is but an incident to the debt which it is intended to secure . . . the logical conclusion is that a transfer of the mortgage without the debt is a nullity, and no interest is assigned by it. The security cannot be separated from the debt, and exist independently of it. This is the necessary legal conclusion.” (Merritt v Bartholick, 36 NY 44, 45 [1867]. The Appellate Division, First Department, citing Kluge v Fugazy in Katz v East-Ville Realty Co. ( 249 AD2d 243 [1d Dept 1998]), instructed that “[p]laintiff’s attempt to foreclose upon a mortgage in which he had no

legal or equitable interest was without foundation in law or fact.” (See U.S. Bank, N.A. v Collymore, 68 AD3d at 754). [*7]

Moreover, MERS had no authority to assign the subject mortgage and note. Erica

Johnson-Seck, for MERS as assignor, did not have specific authority to sign the MEISELS mortgage. Under the terms of the mortgage, MERS is “acting solely as a nominee for Lender [INDYMAC],” which ceased to exist prior to the assignment. Even if INDYMAC existed at the time of assignment, there is no power of attorney authorizing

the assignment. In the subject MEISELS mortgage MERS was “acting solely as a nominee for Lender,” which was the deceased INDYMAC. The term “nominee” is

defined as “[a] person designated to act in place of another, usu. in a very limited way” or “[a] party who holds bare legal title for the benefit of others.” (Black’s Law Dictionary 1076 [8th ed 2004]). “This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves.” (Landmark National Bank v Kesler, 289 Kan 528, 538 [2009])

The New York Court of Appeals in MERSCORP, Inc. v Romaine (8 NY3d 90 [2006]), explained how MERS acts as the agent of mortgagees, holding at 96:

In 1993, the MERS system was created by several large

participants in the real estate mortgage industry to track ownership

interests in residential mortgages. Mortgage lenders and other entities,

known as MERS members, subscribe to the MERS system and pay

annual fees for the electronic processing and tracking of ownership

and transfers of mortgages. Members contractually agree to appoint

MERS to act as their common agent on all mortgages they register

in the MERS system. [Emphasis added]

Thus, it is clear that MERS’s relationship with its member lenders is that of agent with the lender-principal. This is a fiduciary relationship, resulting from the manifestation of consent by one person to another, allowing the other to act on his behalf, subject to his

control and consent. The principal is the one for whom action is to be taken, and the agent is the one who acts.It has been held that the agent, who has a fiduciary relationship with the principal, “is a party who acts on behalf of the principal with the latter’s express, implied, or apparent authority.” (Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [2d Dept 1992]). “Agents are bound at all times to exercise the utmost good faith toward their principals. They must act in accordance with the highest and truest principles of morality.” (Elco Shoe Mfrs. v Sisk, 260 NY 100, 103 [1932]). (See Sokoloff v Harriman Estates Development Corp., 96 NY 409 [2001]); Wechsler v Bowman, 285 NY 284 [1941]; Lamdin v Broadway Surface Advertising Corp., 272 NY 133 [1936]). An agent “is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.” (Lamdin, at 136).

Thus, in the instant action, MERS, as nominee for INDYMAC, was INDYMAC’S agent [*8]for limited purposes. It only has those powers given to it and authorized by INDYMAC, its principal. Even if plaintiff INDYMAC FED existed and had jurisdiction, its counsel, FS & C, failed to submit documents authorizing MERS, as nominee for the then deceased INDYMAC, to assign the subject mortgage and note to the “living dead”

plaintiff, INDYMAC FED. MERS lacked authority to assign the MEISELS mortgage, making the assignment defective.

The Appellate Division, Second Department in Bank of New York v Silverberg, (86

AD3d 274, 275 [2d Dept 2011]), confronted the issue of “whether a party has standing to

commence a foreclosure action when that party’s assignor—in this case, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS)—was listed in the underlying mortgage instruments as a nominee and mortgagee for the purpose of recording, but was never the actual holder or assignee of the underlying notes.” The Court held, at 275, “[w]e answer this question in the negative.” MERS, in the Silverberg case and in the instant MEISELS’ action, never had title or possession of the note. The Silverberg Court instructed, at 281-282:

the assignment of the notes was thus beyond MERS’s authority as

nominee or agent of the lender (see Aurora Loan Servs., LLC v

Weisblum, AD3d, 2011 NY Slip Op 04184, *6-7 [2d Dept 2011];

HSBC Bank USA v Squitteri, 29 Misc 3d 1225 [A] [Sup Ct, Kings

County, F. Rivera, J.]; ; LNV Corp. v Madison Real Estate, LLC,

2010 NY Slip Op 33376 [U] [Sup Ct, New York County 2010,

York, J.]; LPP Mtge. Ltd. v Sabine Props., LLC, 2010 NY Slip Op

32367 [U] [Sup Ct, New York County 2010, Madden, J.]; Bank of

NY v Mulligan, 28 Misc 3d 1226 [A] [Sup Ct, Kings County 2010,

Schack, J.]; One West Bank, F.S.B., v Drayton, 29 Misc 3d 1021

[Sup Ct, Kings County 2010, Schack, J.]; Bank of NY v Alderazi,

28 Misc 3d 376, 379-380 [Sup Ct, Kings County 2010, Saitta, J.]

[the “party who claims to be the agent of another bears the burden

of proving the agency relationship by a preponderance of the evidence”];

HSBC Bank USA v Yeasmin, 24 Misc 3d 1239 [A] [Sup Ct, Kings

County 2010, Schack, J.]; HSBC Bank USA, N.A. v Vasquez, 24

Misc 3d 1239 [A], [Sup Ct, Kings County 2009, Schack, J.]; Bank of

NY v Trezza, 14 Misc 3d 1201 [A] [Sup Ct, Suffolk County 2006,

Mayer, J.]; La Salle Bank Natl. Assn. v Lamy, 12 Misc 3d 1191 [A]

[Sup Ct, Suffolk County, 2006, Burke, J.]; Matter of Agard, 444 BR [*9]

231 [Bankruptcy Court, ED NY 2011, Grossman, J.]; but see U.S.

Bank N.A. v Flynn, 27 Misc 3d 802 [Sup Ct, Suffolk County 2011,

Whelan, J.]).

Moreover, the Silverberg Court concluded, at 283, “because MERS was never the

lawful holder or assignee of the notes described and identified in the consolidation agreement, the . . . assignment of mortgage is a nullity, and MERS was without authority

to assign the power to foreclose to the plaintiff. Consequently, the plaintiff failed to show that it had standing to foreclose.” Further, Silverberg the Court observed, at 283, “the law must not yield to expediency and the convenience of lending institutions. Proper procedures must be followed to ensure the reliability of the chain of ownership, to secure the dependable transfer of property, and to assure the enforcement of the rules that govern real property [emphasis added].”

To further muddy the waters of the instant action, there is the issue of the March 30, 2011 assignment of the subject mortgage by Wendy Traxler, as attorney in fact for FDIC as Receiver for INDYMAC FED, more than two years after INDYMAC FED ceased to exist and the FDIC sold its assets to One West Bank, F.S.B. Even if the FDIC as Receiver could assign the subject mortgage, this assignment is defective because it lacks a power of attorney to Ms. Traxler. To have a proper assignment of a mortgage by an authorized agent, a power of attorney is necessary to demonstrate how the agent is vested with the authority to assign the mortgage. “No special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it [Emphasis added].” (Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 [1d Dept 1996]). (See Real Property Law § 254 (9); Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612 [2d Dept 2004]).

Further, preprinted at the bottom of both the defective Johnson-Seck and the defective Traxler assignments, under the notary public’s jurat, is the same language, “When recorded mail to: Fein, Such and Crane, LLP, 28 East Main St. Ste.1800, Rochester, NY 14614.”

Extraordinary circumstances warrant dismissal with prejudice

The chain of events in this action by the “living dead” plaintiff INDYMAC FED, with its failure to have personal jurisdiction, mandates dismissal of the instant action with prejudice. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal.” (U.S. Bank, N. A. v Emmanuel, 83 AD3d 1047, 1048 [2d Dept 2011]). The term “extraordinary circumstances” is defined as “[a] highly unusual set of facts that are not commonly associated with a particular thing or event.” (Black’s Law Dictionary 236 [7th ed 1999]).

It certainly is “a highly unusual set of facts” for a deceased plaintiff to not only commence an action and but to continue to prosecute the action. The events in the instant action are “not commonly associated with a” foreclosure action.

However, the Court is not precluding the correct owner of the subject MEISELS mortgage, whomever it might be, from commencing a new action, with a new index number, to foreclose on the MEISELS mortgage. The July 27, 2010 order of reference is vacated, pursuant to CPLR Rule 5015 (a) (4), for lack of jurisdiction by a non-existent plaintiff, INDYMAC FED. The Court’s dismissal with prejudice is not on the merits of the action.

[*10]Cancellation of subject notice of pendency

The dismissal with prejudice of the instant foreclosure action requires the

cancellation of the notices of pendency. CPLR § 6501 provides that the filing of a notice

of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that “would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property.” The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp.(64 NY2d 313, 319 [1984]), commented that “[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit,” and, at 320, that “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”

CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

The Court, upon motion of any person aggrieved and upon such

notice as it may require, shall direct any county clerk to cancel

a notice of pendency, if service of a summons has not been completed

within the time limited by section 6512; or if the action has been

settled, discontinued or abated; or if the time to appeal from a final

judgment against the plaintiff has expired; or if enforcement of a

final judgment against the plaintiff has not been stayed pursuant

to section 551. [emphasis added]

The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. “Abatement” is defined as “the act of eliminating or nullifying.” (Black’s Law Dictionary 3 [7th ed 1999]). “An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d § 11.1).” (Nastasi v Natassi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” Thus, the dismissal of the instant complaint must result in the mandatory cancellation of the “living dead” plaintiff INDYMAC FED’s notices of pendency against the property “in the exercise of the inherent power of the court.”

Possible frivolous conduct by plaintiff’s counsel

Th commencement and continuation of the instant action by the “living dead” plaintiff INDYMAC FED, with its false statements of facts, the use of a robosigner and the disingenuous statements by Roger Stotts, Mr. Broyles and his firm, FS & C, appears to be frivolous. 22 NYCRR § 130-1.1 (a) states that “the Court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart.” Further, it states in 22 NYCRR § 130-1.1 (b), that “sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.” [*11]

22 NYCRR § 130-1.1 (c) states that:

For purposes of this part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported

by a reasonable argument for an extension, modification or

reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of

the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

It is clear that the instant foreclosure action “is completely without merit in law” and “asserts material factual statements that are false.” Further, Mr. Broyles’ false and defective statements in the April 8, 2009 complaint and the June 2, 2009 certificate of conformity may be a cause for sanctions.

Several years before the drafting and implementation of the Part 130 Rules for

costs and sanctions, the Court of Appeals (A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6 [1986]) observed that “frivolous litigation is so serious a problem affecting the

proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary (see NY Const, art VI, § 30, Judiciary Law § 211 [1] [b] ).”

Part 130 Rules were subsequently created, effective January 1, 1989, to give the

courts an additional remedy to deal with frivolous conduct. These stand beside Appellate Division disciplinary case law against attorneys for abuse of process or malicious prosecution. The Court, in Gordon v Marrone (202 AD2d 104, 110 [2d Dept 1994], lv denied 84 NY2d 813 [1995]), instructed that:

Conduct is frivolous and can be sanctioned under the court rule if

“it is completely without merit . . . and cannot be supported by a

reasonable argument for an extension, modification or reversal of

existing law; or . . . it is undertaken primarily to delay or prolong

the resolution of the litigation, or to harass or maliciously injure

another” (22 NYCRR 130-1.1[c] [1], [2] . . . ).

In Levy v Carol Management Corporation (260 AD2d 27, 33 [1st Dept 1999]) the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, “22 NYCRR

130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party . . .” Levy at 34, held that “[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large.”

The Court, in Kernisan, M.D. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules “is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10) [Emphasis added].” The instant action, with the “living dead” plaintiff INDYMAC FED: lacking personal jurisdiction and standing; using a robosigner; and, making false statements, is “a waste of judicial resources.” This conduct, as noted in Levy, must be deterred. [*12]In Weinstock v Weinstock (253 AD2d 873 [2d Dept 1998]) the Court ordered the maximum sanction of $10,000.00 for an attorney who pursued an appeal “completely without merit,” and holding, at 874, that “[w]e therefore award the maximum authorized amount as a sanction for this conduct (see, 22 NYCRR 130-1.1) calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances [Emphasis added].” Citing Weinstock, the Appellate Division, Second Department, in Bernadette Panzella, P.C. v De Santis (36 AD3d 734 [2d Dept 2007]) affirmed a Supreme Court, Richmond County $2,500.00 sanction, at 736, as “appropriate in view of the plaintiff’s waste of judicial resources [Emphasis added].”

In Navin v Mosquera (30 AD3d 883 [3d Dept 2006]) the Court instructed that when considering if specific conduct is sanctionable as frivolous, “courts are required to

examine whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent’ (22 NYCRR 130-1.1 [c]).” The Court, in Sakow ex rel. Columbia Bagel, Inc. v Columbia Bagel, Inc. (6 Misc 3d 939, 943 [Sup Ct,

New York County 2004]), held that “[i]n assessing whether to award sanctions, the Court must consider whether the attorney adhered to the standards of a reasonable attorney (Principe v Assay Partners, 154 Misc 2d 702 [Sup Ct, NY County 1992]).” In the instant action, counsel for the “living dead” plaintiff INDYMAC FED, Mr. Broyles and his firm, FS & C, bear a measure of responsibility for commencing and proceeding with an action on behalf of a non-existent plaintiff.

Therefore, the Court will examine the conduct of counsel for the “living dead” plaintiff INDYMAC FED, in a hearing, pursuant to 22 NYCRR § 130-1.1, to determine if plaintiff’s counsel Mark K, Broyles, Esq. and his firm, Fein Such & Crane, LLP, engaged in frivolous conduct, and to allow Mark K. Broyles, Esq. and his firm, Fein, Such & Crane, LLP, a reasonable opportunity to be heard.

Conclusion

Accordingly, it is

ORDERED, that the motion of defendant MENDEL MEISELS to vacate the July 27, 2010 order of reference, pursuant to CPLR Rule 5015 (a) (4), for the premises located at 2062 61st Street, Brooklyn, New York (Block 5528, Lot 33, County of Kings), for lack of personal jurisdiction by plaintiff INDYMAC FEDERAL BANK, FSB, is granted; and it is further

ORDERED, that because plaintiff INDYMAC FEDERAL BANK, FSB ceased to exist prior to the commencement of the instant action, the instant complaint, Index No. 8752/09 is dismissed with prejudice; and it is further

ORDERED, that the notices of pendency filed with the Kings County Clerk on April 9, 2009 and March 9, 2012, by plaintiff, INDYMAC FEDERAL BANK, FSB, in an action to foreclose a mortgage for real property located at 2062 61st Street, Brooklyn, New York (Block 5528, Lot 33, County of Kings), is cancelled and discharged; and it is further

ORDERED, that it appearing that counsel for plaintiff INDYMAC FEDERAL BANK, FSB, Mark K. Broyles, Esq. and his firm, Fein, Such & Crane, LLP engaged in “frivolous conduct,” as defined in the Rules of the Chief Administrator, 22 NYCRR

§ 130-1 (c), and that pursuant to the Rules of the Chief Administrator, 22 NYCRR [*13]

§ 130.1.1 (d), “[a]n award of costs or the imposition of sanctions may be made . . . upon the court’s own initiative, after a reasonable opportunity to be heard,” this Court will conduct a hearing affording: plaintiff’s counsel Mark K. Broyles, Esq.; and, his firm, Fein, Such & Crane, LLP; “a reasonable opportunity to be heard” before me in Part 27, on Monday, November 5, 2012, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn, NY 11201; and it is further

ORDERED, that Ronald David Bratt, Esq., my Principal Law Clerk, is directed to serve this order by first-class mail, upon: Mark K. Broyles, Esq., Fein, Such & Crane, LLP, 28 East Main Street, Suite 1800, Rochester, New York 14614; and, Fein, Such & Crane, LLP, 28 East Main Street, Suite 1800, Rochester, New York 14614.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.

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NY Judge Markey Uses Recent MA SJC “U.S. Bank v. Ibanez” in DEUTSCHE BANK v. RAMOTAR

NY Judge Markey Uses Recent MA SJC “U.S. Bank v. Ibanez” in DEUTSCHE BANK v. RAMOTAR

Deutsche Bank National Trust Company, Plaintiff,

against

Auditya S. Ramotar, et al., Defendants.

1730/2009

For the Plaintiff: Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, by Kevin M. Butler, Esq., 20 West Main St., Bay Shore, New York 11706

For the Defendant: Bachu & Associates, by Darmin T. Bachu, Esq., 127-21 Liberty Ave., Richmond Hill, New York 11419

Charles J. Markey, J.

Excerpt:

Just recently, Massachusetts’s highest court, its Supreme Judicial Court, in U.S. Bank National Association v Ibanez, ___ NE2d ____, 2011 WL 2011 WL 38071 (Jan. 7, 2011) [6-0 decision, with majority and concurring opinions] unanimously held that two banks, U.S. Bank and Wells Fargo, failed to prove that they owned the mortgages when they foreclosed on the homes. See, id. The fact that the homeowners owed a lot of money on the mortgages was conceded in the Court’s ruling that the banks did not properly prove ownership.

[…]

Chief Judge Lippman has stated that the New York court system should not stand by idly, during a tough economic crisis, where the integrity of the determination of home ownership is at stake. See discussion in Washington Mutual Bank v Phillip, 20 Misc 3d [*3] 127[A], 2010 WL 4813782, 2010 NY Slip Op 52034[U] [Sup Ct Kings County 2010] [Schack, J.].

The practices of the plaintiff in this case, in not carefully evaluating the merits of each mortgage foreclosure case individually, has been criticized by the courts in: Deutsche Bank Nat. Trust Co. v Harris, 2008 WL 620756, 2008 NY Slip Op 30308[U] [Sup Ct Kings County 2008]; Deutsche Bank v Maraj, 18 Misc 3d 1123(A), 2008 WL 253926, 2008 NY Slip Op 50176 [Sup Ct Kings County 2008]; Deutsche Bank Nat. Trust Co. v Lewis, 14 Misc 3d 1201(A), 2006 WL 3593431, 2006 NY Slip Op 52368[U] [Sup Ct Suffolk County 2006], all of those decisions denying the plaintiff’s motion for relief without prejudice upon the submission of proper papers. See also discussion in Onewest Bank, F.S.B. v Drayton, 29 Misc 3d 1021 [Sup Ct Kings County 2010].

Continue below…

[ipaper docId=47155754 access_key=key-2o7wptvvwp0hghxppch9 height=600 width=600 /]

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False Statements: R.K. Arnold, Mortgage Electronic Registration Systems

False Statements: R.K. Arnold, Mortgage Electronic Registration Systems

False Statements

R.K. Arnold
Mortgage Electronic Registration Systems

Action Date: November 18, 2010
Location: WASHINGTON, DC

As the many problems (frauds) are exposed regarding documents used by mortgage-backed trusts in foreclosures, some revelations stand out. Literally millions of foreclosures by mortgage-backed trusts hinge on a Mortgage Assignment signed by an officer of Mortgage Electronic Registration Systems (“MERS”) showing that the mortgage in question was transferred to the trust by MERS. The “MERS officer” who signs the Mortgage Assignment is actually most often an employee of a mortgage servicing company that is paid by the trust.

MERS itself has only 50 employees and they are not involved in signing mortgage assignments to trusts. These servicing company employees sign as officers of MERS “as nominee for” a particular mortgage company or bank. They are not employees of the mortgage companies or employees of the original named lender, but their titles on the Mortgage Assignment belie this and typically read: “Linda Green, Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit.”

MERS president R.K. Arnold testified in Senate testimony earlier this week that there are over 20,000 MERS “certifying officers.” To become a MERS certifying officer, a mortgage servicing company employee need only complete an online form and pay $25.00. Because of the concealment of the actual employer on the Mortgage Assignments, it is easy enough for Courts, and homeowners, to believe that they are examining a document prepared by the lender that sold the mortgage to the trust, when, in fact, the signer was a servicing company clerk paid by the trust itself.

The representative of the GRANTOR is, in truth, a paid employee of the GRANTEE. In hundreds of thousands of cases, the authority is, therefore, misrepresented. It is now also coming to light that in tens of thousands of cases, the individuals signing these forms did not even sign their own names. The documents were made to look official because other mortgage servicing company employees signed as witnesses and then all four “signatures” were notarized by yet another mortgage servicing company employee. The titles were false, the signatures were forged, the “witnessing” was a lie, as was the notarization. Despite all of these false statements, the BIGGEST LIE on these documents is that the trust acquired the mortgage on the date stated plainly on the Mortgage Assignment. In truth, no such transfers ever took place as represented by these MERS certifying officers (or their stand-in forgers). The date chosen almost always corresponds not to an actual transfer, but to the date roughly corresponding to the time the loan went into default. The Mortgage Assignment was prepared only to provide “proof” that the trust owned the mortgage. Until courts require Trusts to come forward with actual proof that they acquired the mortgages in question, specifying whom they paid and how much they paid for each such trust-owned mortgage, the actual owner of these mortgages will never be known.

In response to the exposure of the widespread fraud in the securitization process, the American Bankers Association issued a statement essentially saying that Mortgage Assignments were unnecessary. Investors and regulators were told, however, that the trusts owned the mortgages and notes in each pool of mortgages and that valid Assignments of Mortgages had been obtained. Where the proof of ownership put forth by the trusts is a sworn statement by a MERS “certifying officer” who had no knowledge whatsoever of the transactions involved and did not even review documents related to the transactions, such proof of ownership should be deemed worthless by the Courts. Other litigants are not allowed to manufacture their own evidence and offer it as proof at trial – there should be no exception for mortgage-backed trusts.

In particular, where the “MERS Certifying Officer” is actually an employee of the law firm hired to handle the foreclosure, such documents should be stricken and sanctioned. “MERS Certifying Officers” should be the next group required to testify before Congress. Here are the statistics for one Florida county, Palm Beach County, regarding the number of Mortgage Assignments filed by Mortgage Electronic Registration Systems: January, 2009: 1,164; February, 2009: February, 2009: 1,230; March, 2009: March, 2009: 1,113. An examination of just one day’s (March 31, 2009) filed Mortgage Assignments reveals that the signers of these Assignments are the very same mortgage servicing company employees who signed the “no-actual knowledge” Affidavits that triggered the national scrutiny: Jeffrey Stephan from Ally, Erica Johnson-Seck from IndyMac, Crystal Moore from Nationwide Title Clearing, Liquenda Allotey from Lender Processing Services, Denise Bailey from Litton Loan Services, Noriko Colston, Krystal Hall, and other well-known professional signers from the mortgage servicing industry. The most frequent signers from that particular day were two lawyers, associates in the law firm representing the trusts, who signed as Assistant Secretary for Mortgage Electronic Registration Systems.


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