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Institutional Holders of Countrywide-Issued RMBS Issue Notice of Non-Performance Identifying Alleged Failures by Master Servicer to Perform Covenants and Agreements in More Than $47 Billion of Countrywide-Issued RMBS

Institutional Holders of Countrywide-Issued RMBS Issue Notice of Non-Performance Identifying Alleged Failures by Master Servicer to Perform Covenants and Agreements in More Than $47 Billion of Countrywide-Issued RMBS

PR Newswire

HOUSTON, Oct. 18 /PRNewswire/ –Today, the holders of over 25% of the Voting Rights in more than $47 billion of Countrywide-issued RMBS sent a Notice of Non-Performance (Notice) to Countrywide Home Loan Servicing, as Master Servicer (“Countrywide Servicing”), and to Bank of New York, as Trustee, identifying specific covenants in 115 Pooling and Servicing Agreements (PSAs) that the Holders allege Countrywide Servicing has failed to perform.

The Holders’ Notice alleges that each of these failures has materially affected the rights of the Certificateholders under the relevant PSAs. Under Section 7.01 of the PSAs, if any of the cited failures “continues unremedied for a period of 60 days after the date on which written notice of such failure has been given … to the Master Servicer and the Trustee by the Holders of Certificates evidencing not less than 25% of the Voting Rights evidenced by the Certificates,” that failure constitutes an Event of Default under the PSAs.

In a previous release, the Holders emphasized their intent to invoke all contractual remedies available to them to recover their losses and to protect their rights. Kathy Patrick of Gibbs & Bruns LLP, lead counsel for the Holders, emphasized that the Holders’ notice does not seek to halt loan modifications for troubled borrowers. Instead, it urges the Trustee to enforce Countrywide Servicing’s obligations to service loans prudently by maintaining accurate loan records, demanding the repurchase of loans that were originated in violation of underwriting guidelines, and compelling the sellers of ineligible or predatory mortgages to bear the costs of modifying them for homeowners or repurchasing them from the Trusts’ collateral pools.

Patrick also noted that the group of Holders that tendered today’s Notice of Non-Performance is larger, and encompasses more Countrywide-issued RMBS deals, than were included in the August 20 instruction letter. When asked why the group of holders was larger, Patrick replied, “Ours is a large, determined, and cohesive group of bondholders. We have a clearly defined strategy. We plan to vigorously pursue this initiative to enforce Holders’ rights.”

The Notice of Non-Performance, which is the first step in the process of declaring an Event of Default, was issued on behalf of Holders in the following Countrywide-issued RMBS:

Deal Name   .   .                 .       .
Deal Name    .       .      .                      .
Deal Name
CWALT 2004-32CB

CWHL 2004-22
CWL 2006-15
CWALT 2004-6CB

CWHL 2004-25
CWL 2006-16
CWALT 2004-J1
CWHL 2004-29
CWL 2006-19
CWALT 2005-14
CWHL 2004-HYB9
CWL 2006-2
CWALT 2005-21CB
CWHL 2005-11
CWL 2006-20
CWALT 2005-24
CWHL 2005-14
CWL 2006-22
CWALT 2005-32T1
CWHL 2005-18
CWL 2006-24
CWALT 2005-35CB
CWHL 2005-19
CWL 2006-25
CWALT 2005-36
CWHL 2005-2
CWL 2006-26
CWALT 2005-44
CWHL 2005-3
CWL 2006-3
CWALT 2005-45
CWHL 2005-30
CWL 2006-5
CWALT 2005-56
CWHL 2005-9
CWL 2006-7
CWALT 2005-57
CB CWHL 2005-HYB3
CWL 2006-9
CWALT 2005-64
CB CWHL 2005-HYB9
CWL 2006-BC2
CWALT 2005-72
CWHL 2005-R3
CWL 2006-BC3
CWALT 2005-73CB
CWHL 2006-9
CWL 2006-BC4
CWALT 2005-74T1
CWHL 2006-HYB2
CWL 2006-BC5
CWALT 2005-81
CWHL 2006-HYB5
CWL 2006-SD1
CWALT 2005-AR1
CWHL 2006-J2
CWL 2006-SD3
CWALT 2005-J5
CWHL 2006-OA5
CWL 2006-SD4
CWALT 2005-J9
CWHL 2006-R2
CWL 2006-SPS2
CWALT 2006-14CB
CWHL 2007-12
CWL 2007-2
CWALT 2006-20CB
CWHL 2007-16
CWL 2007-5
CWALT 2006-37R
CWHL 2008-3R
CWL 2007-6
CWALT 2006-41CB
CWL 2005-10
CWL 2007-7
CWALT 2006-HY12
CWL 2005-11
CWL 2007-9
CWALT 2006-OA11
CWL 2005-13
CWL 2007-BC1
CWALT 2006-OA16
CWL 2005-16
CWL 2007-BC2
CWALT 2006-OA17
CWL 2005-2
CWL 2007-BC3
CWALT 2006-OA6
CWL 2005-4
CWL 2007-QH1
CWALT 2006-OA9
CWL 2005-5
CWL 2007-S3
CWALT 2006-OC10
CWL 2005-6

CWALT 2006-OC2
CWL 2005-7

CWALT 2006-OC4
CWL 2005-8

CWALT 2006-OC5
CWL 2005-9

CWALT 2006-OC6
CWL 2005-AB2

CWALT 2006-OC7
CWL 2005-AB3

CWALT 2007-17CB
CWL 2005-AB4

CWALT 2007-23CB
CWL 2005-BC5

CWALT 2007-24
CWL 2005-IM1

CWALT 2007-OA7
CWL 2006-10

CWALT 2008-2R
CWL 2006-12

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Copyright 2010 PR Newswire. All Rights Reserved

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bac home loans, bank of america, bank of new york, countrywide, pooling and servicing agreement1 Comment

FULL DEPOSITION OF BANK OF AMERICA ROBO SIGNER RENEE D. HERTZLER

FULL DEPOSITION OF BANK OF AMERICA ROBO SIGNER RENEE D. HERTZLER

Be sure to catch the Full Depo of Renee Hertzler below after AP Alan Zibel’s article

Bank of America delays foreclosures in 23 states

By ALAN ZIBEL, AP Real Estate Writer Alan Zibel, Fri Oct 1, 7:46 pm ET

WASHINGTON – Bank of America is delaying foreclosures in 23 states as it examines whether it rushed the foreclosure process for thousands of homeowners without reading the documents.

The move adds the nation’s largest bank to a growing list of mortgage companies whose employees signed documents in foreclosure cases without verifying the information in them.

Bank of America isn’t able to estimate how many homeowners’ cases will be affected, Dan Frahm, a spokesman for the Charlotte, N.C.-based bank, said Friday. He said the bank plans to resubmit corrected documents within several weeks.

Two other companies, Ally Financial Inc.’s GMAC Mortgage unit and JPMorgan Chase, have halted tens of thousands of foreclosure cases after similar problems became public.

The document problems could cause thousands of homeowners to contest foreclosures that are in the works or have been completed. If the problems turn up at other lenders, a foreclosure crisis that’s already likely to drag on for several more years could persist even longer. Analysts caution that most homeowners facing foreclosure are still likely to lose their homes.

State attorneys general, who enforce foreclosure laws, are stepping up pressure on the industry.

On Friday, Connecticut Attorney General Richard Blumenthal asked a state court to freeze all home foreclosures for 60 days. Doing so “should stop a foreclosure steamroller based on defective documents,” he said.

And California Attorney General Jerry Brown called on JPMorgan to suspend foreclosures unless it could show it complied with a state consumer protection law. The law requires lenders to contact borrowers at risk of foreclosure to determine whether they qualify for mortgage assistance.

In Florida, the state attorney general is investigating four law firms, two with ties to GMAC, for allegedly providing fraudulent documents in foreclosure cases .The Ohio attorney general this week asked judges to review GMAC foreclosure cases.

Mark Paustenbach, a Treasury Department spokesman, said the Treasury has asked federal regulators “to look into these troubling developments.”

A document obtained Friday by the Associated Press showed a Bank of America official acknowledging in a legal proceeding that she signed up to 8,000 foreclosure documents a month and typically didn’t read them.

The official, Renee Hertzler, said in a February deposition that she signed 7,000 to 8,000 foreclosure documents a month.

“I typically don’t read them because of the volume that we sign,” Hertzler said.

She also acknowledged identifying herself as a representative of a different bank, Bank of New York Mellon, that she didn’t work for. Bank of New York Mellon served as a trustee for the investors holding the homeowner’s loan.

Hertzler could not be reached for comment.


CONTINUE READING…..YAHOO

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FULL DEPOSITION OF RENEE HERTZLER BELOW:

[ipaper docId=38902529 access_key=key-1iju4izmwpbrhvru9u14 height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, bank of america, bank of new york, bogus, chain in title, CONTROL FRAUD, deposition, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, investigation, robo signers, stopforeclosurefraud.com4 Comments

MASSACHUSETTES CALLS FOR A FORECLOSURE MORATORIUM

MASSACHUSETTES CALLS FOR A FORECLOSURE MORATORIUM

Coakley begins probe, calls for foreclosure moratorium

By Herald Staff
Saturday, October 2, 2010 –

Massachusetts Attorney General Martha Coakley called on Bank of America and other major creditors to delay all foreclosure proceedings and pledged to begin her own investigation in light of recent revelations that they may not have complied with the law.

Bank of America announced Friday it was delaying foreclosures in 23 states, not including Massachusetts, as it examines whether it rushed the foreclosure process for thousands of homeowners without reading the documents.

“Our office has been extremely active in holding major banks and Wall Street firms accountable during this foreclosure crisis. We are concerned about the revelations that Bank of America and other major lenders have failed to properly review foreclosure documentation,” Coakley said yesterday in a statement. “Our office is now investigating this apparent failure of major creditors to follow state foreclosure law to ensure that Massachusetts homeowners are properly protected. In light of these revelations, we are asking Bank of America and other major creditors to cease foreclosure proceedings for Massachusetts homeowners until they can demonstrate that they have complied with Massachusetts law.”

Continue reading…BOSTON HERALD

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© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, bank of new york, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, GMAC, MERS, MERSCORP, Moratorium, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., STOP FORECLOSURE FRAUD1 Comment

MERS FAILS AS NOMINEE, AUTHORITY TO TRANSFER OWNERSHIP OF NOTE!

MERS FAILS AS NOMINEE, AUTHORITY TO TRANSFER OWNERSHIP OF NOTE!

NEW YORK SUPREME COURT NASSAU

In support of its standing to maintain the action when the action was commenced is an “Assignment of Mortgage” executed by MERS as nominee of Home Funds Direct which includes a provision indicating the assignment is TOGETHER with the bond or note. . . ” . Not only has plaintiff failed to establish MERS’ right as a nominee for purposes of recording to assign the mortgage, more importantly, no effort has been made to establish the authority of MERS, a non-party to the note, to transfer its ownership. Without establishing ownership of the note at the time the action was instituted, the plaintiff lacked a right to maintain the action.

[ipaper docId=37175715 access_key=key-2k2arwpk653s6uaz71jr height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bank of new york, chain in title, concealment, conspiracy, CONTROL FRAUD, corruption, dismissed, foreclosure, foreclosure fraud, foreclosures, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, rmbs, securitization, servicers, stopforeclosurefraud.com, Supreme Court, trustee0 Comments

FORECLOSURE FRAUD | AFFIDAVIT IN SUPPORT FOR ‘SUMMARY JUDGMENT’

FORECLOSURE FRAUD | AFFIDAVIT IN SUPPORT FOR ‘SUMMARY JUDGMENT’

AFFIDAVIT FAIL!

Just like the Lis Pendens arriving before the Assignment from Mortgage Electronic Registration Systems, Inc. with 1st Vice President Mark Bishop (who also signs for CityWide Mortgage Corp and America’s Wholesale Lender,etc.). There is no Assignment “created” from MERS to BAC Home Loan Servicing LP.

In this Affidavit we have Suzanne M. Haumesser signing as SR. Vice President of BAC Home Loan Servicing, LP. For Owner and Holder of Mortgage and Note, Bank of New York as Trustee for the Certificate Holders CWALT inc Alternative Loan Trust 2006-oa10 mortgage pass through certificates, series 2006-oa10

The Notary is Dolores V. Bald from Erie County, New York.

The day of service August 26. 2010

Date showing for the amount due “FEBRUARY 17, 2010”

Signed in California but notarized in New York!

Did Suzanne make a special trip just to sign this in NY?

NOW, Take a look at when this was NOTARIZED DECEMBER 30, 2009 (?08) months before the February 17, 2010 tally of the amounts due! It also looks like an 08 instead of a 09. Last the date of service was August 26, 2010. C’mon get real! Why does it take all these months?

If this was done in 2008 New York Notary Commissions are good for 4 years.


© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bac home loans, bank of new york, chain in title, conflict of interest, conspiracy, CONTROL FRAUD, corruption, countrywide, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, MERS, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Notary, notary fraud, note, securitization, servicers, STOP FORECLOSURE FRAUD, trade secrets, trustee, Trusts, Wall Street4 Comments

JUDGE SCHACK BLOWS ‘MERS’ & Bank Of New York (BNY) OUT THE DOOR!

JUDGE SCHACK BLOWS ‘MERS’ & Bank Of New York (BNY) OUT THE DOOR!

MERS is an artifice and they are going to blow up!

Read this carefully…Judge Schack knows exactly where this is going and where he is taking it!

Decided on August 25, 2010

Supreme Court, Kings County

The Bank of New York, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC1, Plaintiff,

against

Denise Mulligan, BEVERLY BRANCHE, et. al., Defendants.

Plaintiff:
McCabe Weisberg Conway PC
Jason E. Brooks, Esq.
New Rochelle NY

Defendant:
No Appearances.

Arthur M. Schack, J.

Plaintiff’s renewed application, upon the default of all defendants, for an order of reference for the premises located at 1591 East 48th Street, Brooklyn, New York (Block 7846, Lot 14, County of Kings) is denied with prejudice. The complaint is dismissed. The notice of pendency filed against the above-named real property is cancelled.

In my June 3, 2008 decision and order in this matter, I granted leave to plaintiff, THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH CERTIFICATES, [*2]SERIES 2006-OC1 (BNY), to renew its application for an order of reference within forty-five (45) days, until July 18, 2008, if it complied with three conditions. However, plaintiff did not make the instant motion until May 4, 2009, 335 days after June 3, 2008, and failed to offer any excuse for its lateness. Therefore, the instant motion is 290 days, almost ten months, late. Further, the instant renewed motion failed to present the three affidavits that this Court ordered plaintiff BNY to present with its renewed motion for an order of reference: (1) an affidavit of facts either by an officer of plaintiff BNY or someone with a valid power of attorney from plaintiff BNY and personal knowledge of the facts; (2) an affidavit from Ely Harless describing his employment history for the past three years, because Mr. Harless assigned the instant mortgage as Vice President of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS) and then executed an affidavit of merit for assignee BNY as Vice President of BNY’s alleged attorney-in-fact without any power of attorney; and, (3) an affidavit from an officer of plaintiff BNY explaining why it purchased the instant nonperforming loan from MERS, as nominee for DECISION ONE MORTGAGE COMPANY, LLC (DECISION ONE).

Moreover, after I reviewed the papers filed with this renewed motion for an order of reference and searched the Automated City Register Information System (ACRIS) website of the Office of the City Register, New York City Department of Finance, I discovered that plaintiff BNY lacked standing to pursue the instant action for numerous reasons. Therefore, the instant action is dismissed with prejudice.

Background

Defendant DENISE MULLIGAN (MULLIGAN) borrowed $392,000.00 from

DECISION ONE on October 28, 2005. The mortgage to secure the note was recorded by MERS, “acting solely as a nominee for Lender [DECISION ONE]” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD,” in the Office of the City Register of the City of New York, New York City Department of Finance, on February 6, 2006, at City Register File Number (CRFN) 2006000069253.

Defendant MULLIGAN allegedly defaulted in her mortgage loan payments with her May 1, 2007 payment. Subsequently, plaintiff BNY commenced the instant action, on August 9, 2007, alleging in ¶ 8 of the complaint, and again in ¶ 8 of the August 16, 2007 amended complaint, that “Plaintiff [BNY] is the holder of said note and mortgage. said mortgage was assigned to Plaintiff, by Assignment of Mortgage to be recorded in the Office of the County Clerk of Kings County [sic].” As an aside, plaintiff’s counsel needs to learn that mortgages in New York City are not recorded in the Office of the County Clerk, but in the Office of the City Register of the City of New York. However, the instant mortgage and note were not assigned to plaintiff BNY until October 9, 2007, 61 days subsequent to the commencement of the instant action, by MERS, “as nominee for Decision One,” and executed by Ely Harless, Vice President of MERS. This assignment was recorded on October 24, 2007, in the Office of the City Register of the City of New York, at CRFN 2007000537531.

I denied the original application for an order of reference, on June 3, 2008, with leave to renew, because assignor Ely Harless also executed the March 20, 2008-affidavit of merit as Vice President and “an employee of Countrywide Home Loans, Inc., attorney-in-fact for Countrywide Home Loans, Inc.” The original application for an order of reference did not present any power of attorney from plaintiff BNY to Countrywide Home Loans, Inc. Also, the Court pondered how [*3]Countrywide Home Loans, Inc. could be its own an attorney-fact?

In my June 3, 2008 decision and order I noted that Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff” and plaintiff BNY’s application for an order of reference was a preliminary step to obtaining a default judgment of foreclosure and sale. (Home Sav. Of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]). However, plaintiff BNY failed to meet the clear requirements of CPLR § 3215 (f) for a default judgment, which states:

On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney. [Emphasisadded].

Plaintiff BNY failed to submit “proof of the facts” in “an affidavit made by the party.” (Blam v Netcher, 17 AD3d 495, 496 [2d Dept 2005]; Goodman v New York City Health & Hosps. Corp. 2 AD3d 581[2d Dept 2003]; Drake v Drake, 296 AD2d 566 [2d Dept 2002]; Parratta v McAllister, 283 AD2d 625 [2d Dept 2001]; Finnegan v Sheahan, 269 AD2d 491 [2d Dept 2000]; Hazim v Winter, 234 AD2d 422 [2d Dept 1996]). Instead, plaintiff BNY submitted an affidavit of merit and amount due by Ely Harless, “an employee of Countrywide Home Loans, Inc.” and failed to submit a valid power of attorney for that express purpose. Also, I required that if plaintiff renewed its application for an order of reference and provided to the Court a valid power of attorney, that if the power of attorney refers to a servicing agreement, the Court needs a properly offered copy of the servicing agreement to determine if the servicing agent may proceed on behalf of plaintiff. (EMC Mortg. Corp. v Batista, 15 Misc 3d 1143 (A), [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v Lewis, 14 Misc 3d 1201 (A) [Sup Ct, Suffolk County 2006]).

I granted plaintiff BNY leave to renew its application for an order of reference within forty-five (45) days of June 3, 2008, which would be July 18, 2008. For reasons unknown to the Court, plaintiff BNY made the instant motion to renew its application for an order of reference on May 4, 2009, 290 days late. Plaintiff’s counsel, in his affirmation in support of the renewed motion, offers no explanation for his lateness and totally ignores this issue.

Further, despite the assignment by MERS, as nominee for DECISION ONE, to plaintiff BNY occurring 61 days subsequent to the commencement of the instant action, plaintiff’s counsel claims, in ¶ 17 of his affirmation in support, that “[s]aid assignment of mortgage [by MERS, as nominee for DECISION ONE to BNT] was drafted for the convenience of the court in establishing the chain of ownership, but the actual assignment and transfer had previously occurred by delivery.” The alleged proof presented of physical delivery of the subject MULLIGAN mortgage is a computer printout [exhibit G of motion], dated April 30, 2009, from [*4]Countrywide Financial, which plaintiff’s counsel calls a “Closing Loan Schedule,” and claims, in ¶ 21 of his affirmation in support, that this “closing loan schedule is the mortgage loan schedule displaying every loan held by such trust at the close date for said trust at the end of January 2006. The closing loan schedule is of public record and demonstrates that the Plaintiff was in possession of the note and mortgage about nineteen (19) months prior to the commencement of this action.” There is an entry on line 2591 of the second to last page of the printout showing account number 1232268089, which plaintiff’s counsel, in ¶ 22 of his affirmation in support, alleges is the subject mortgage. Plaintiff’s counsel asserts, in ¶ 23 of his affirmation in support, that “[t]he annexed closing loan schedule suffices to proceed in granting Plaintiff’s Order of Reference in this matter proving possession prior to any default.” This claim is ludicrous. The computer printout, printed on April 30, 2009, just prior to the making of the instant motion, has no probative value with respect to whether physical delivery of the subject mortgage was made to plaintiff BNY prior to the August 9, 2007 commencement of the instant action.

Further, even if the mortgage was delivered to BNY prior to the August 9, 2007 commencement of the instant action, this claim is in direct contradiction to plaintiff’s claim previously mentioned in ¶ 8 of both the complaint and the amended complaint, that “Plaintiff [BNY] is the holder of said note and mortgage. said mortgage was assigned to Plaintiff, by Assignment of Mortgage to be recorded in the Office of the County Clerk of Kings County [sic].” Both ¶’s 8 allege that the assignment of the subject mortgage took place prior to August 9, 2007 and the recording would subsequently take place. The only reality for the Court is that the assignment of the subject mortgage took place 61 days subsequent to the commencement of the action on October 9, 2007 and the assignment was recorded on October 24, 2007.

Moreover, plaintiff’s counsel alleges, in ¶ 18 of his affirmation in support, that “[p]ursuant to a charter between Mortgage Electronic Registrations Systems, Inc. ( MERS’) and Decision One Mortgage Company, LLC, all officers of Decision One Mortgage Company, LLC, a member of MERS, are appointed as assistant secretaries and vice presidents of MERS, and as such are authorized” to assign mortgage loans registered on the MERS System and execute documents related to foreclosures. ¶ 18 concludes with “See Exhibit F.” None of this appears in exhibit F. Exhibit F is a one page power of attorney from “THE BANK OF NEW YORK, as Trustee” pursuant to unknown pooling and servicing agreements appointing “Countrywide Home Loans Servicing LP and its authorized officers (collectively CHL Servicing’)” as its “attorneys-in-fact and authorized agents” for foreclosures “in connection with the transactions contemplated in those certain Pooling and Servicing Agreements.” The so-called “charter” between MERS and DECISION ONE was not presented to the Court in any exhibits attached to the instant motion.

Further, attached to the instant renewed motion [exhibit D] is an affidavit of merit

by Keri Selman, dated August 23, 2007 [47 days before the assignment to BNY], in which Ms. Selman claims to be “a foreclosure specialist of Countrywide Home Loans, Inc. Servicing agent for BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC1 . . . I make this afidavit upon personal knowledge based on books and records of Bank of New York in my possession or subject to my control [sic]” Countrywide Home Loans, Inc. is not Countrywide Home Loans Servicing LP, referred to in the power of attorney attached to the renewed motion [exhibit F]. Moreover, plaintiff failed to [*5]present to the Court any power of attorney authorizing Ms. Selman to execute for Countrywide Home Loans, Inc. her affidavit on behalf of plaintiff BNY. Also, Ms. Selman has a history of executing documents presented to this Court while wearing different corporate hats. In Bank of New York as Trustee for Certificateholders CWABS, Inc. Asset-Backed Certificates, Series 2006-22 v Myers (22 Misc 3d 1117 [A] [Sup Ct, Kings County 2009], in which I issued a decision and order on February 3, 2009, Ms. Selman assigned the subject mortgage on June 28, 2008 as Assistant Vice President of MERS, nominee for Homebridge Mortgage Bankers Corp., and then five days later executed an affidavit of merit as Assistant Vice President of plaintiff BNY. I observed, in this decision and order, at 1-2, that:

Ms. Selman is a milliner’s delight by virtue of the number of hats she wears. In my November 19, 2007 decision and order (BANK OF NEW YORK A TRUSTEE FOR THE NOTEHOLDERS OF CWABS, INC. ASSET-BACKED NOTES, SERIES 2006-SD2 v SANDRA OROSCONUNEZ, et. al. [Index No., 32052/07]),

I observed that:

Plaintiff’s application is the third application for an order of reference received by me in the past several days that contain an affidavit from Keri Selman. In the instant action, she alleges to be an Assistant Vice President of the Bank of New York. On November 16, 2007, I denied an application for an order of reference (BANK OF NEW YORK A TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2006-8 v JOSE NUNEZ, et. al., Index No. 10457/07), in which Keri Selman, in her affidavit of merit claims to be “Vice President of  COUNTRYWIDE HOME LOANS, Attorney in fact for BANK OF NEW YORK.” The Court is concerned that Ms. Selman might be engaged in a subterfuge, wearing various corporate hats. Before granting an application for an order of reference, the Court requires an affidavit from Ms. Selman describing her employment history for the past three years. This Court has not yet received any affidavit from Ms. Selman describing her employment history, whether it is with MERS, BNY, COUNTRYWIDE HOME LOANS, or any other entity. [*6]

Further, the Court needs to address the conflict of interest in the June 20, 2008 assignment by Ms. Selman to her alleged employer, BNY.

I am still waiting for Ms. Selman’s affidavit to explain her tangled employment relationships. Interestingly, Ms. Selman, as “Assistant Vice President of MERS,” nominee for “America’s Wholesale Lender,” is the assignor of another mortgage to plaintiff BNY in Bank of New York v Alderazi (28 Misc 3d 376 [Sup Ct, Kings County 2010]), which I further cite below.

It is clear that plaintiff BNY failed to provide the Court with: an affidavit of merit by an officer of plaintiff BNY or someone with a valid power of attorney from BNY; an affidavit from Ely Harless, explaining his employment history; and, an explanation from BNY of why it purchased a nonperforming loan from MERS, as nominee of DECISION ONE. Moreover, plaintiff BNY did not own the subject mortgage and note when the instant case commenced. Even if plaintiff BNY owned the subject mortgage and note when the case commenced, MERS lacked the authority to assign the subject MULLIGAN mortgage to BNY, as will be explained further. Plaintiff’s counsel offers a lame and feeble excuse for not complying with my June 3, 2008 decision and order, in ¶ 23 of his affirmation in support, claiming that “[t]he affidavits requested in Honorable Arthur M. Schack’s Decision and Order should not be required, given the annexed closing loan schedule.”

Plaintiff BNY lacked standing

The instant action must be dismissed because plaintiff BNY lacked standing to bring this action on August 9, 2007, the day the action commenced. “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 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”

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]). [*7]

Plaintiff BNY lacked standing to foreclose on the instant mortgage and note when this action commenced on August 7, 2007, the day that BNY filed the summons, complaint and notice of pendency with the Kings County Clerk, because it did not own the mortgage and note that day. The instant mortgage and note were assigned to BNY, 61 days later, on October 7, 2007. The Court, in Campaign v Barba (23 AD3d 327 [2d Dept 2005]), instructed that “[t]o establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant’s default in payment [Emphasis added].” (See Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [1st Dept 2007]; Household Finance Realty Corp. of New York v Wynn, 19 AD3d 545 [2d Dept 2005]; Sears Mortgage Corp. v Yahhobi, 19 AD3d 402 [2d Dept 2005]; Ocwen Federal Bank FSB v Miller, 18 AD3d 527 [2d Dept 2005]; U.S. Bank Trust Nat. Ass’n Trustee v Butti, 16 AD3d 408 [2d Dept 2005]; First Union Mortgage Corp. v Fern, 298 AD2d 490 [2d Dept 2002]; Village Bank v Wild Oaks, Holding, Inc., 196 AD2d 812 [2d Dept 1993]).

Assignments of mortgages and notes are made by either written instrument or the assignor physically delivering the mortgage and note to the assignee.

“Our courts have repeatedly held that a bond and mortgage may be transferred by delivery without a written instrument of assignment.” (Flyer v Sullivan, 284 AD 697, 699 [1d Dept 1954]). The written October 7, 2007 assignment by MERS, as nominee for DECISION ONE, to BNY is clearly 61 days after the commencement of the action. Plaintiff’s BNY’s claim that the gobblygook computer printout it offered in exhibit G is evidence of physical delivery of the mortgage and note prior to commencement of the action is not only nonsensical, but flies in the face of the complaint and amended complaint, which both clearly state in ¶ 8 that “Plaintiff [BNY] is the holder of said note and mortgage. said mortgage was assigned to Plaintiff, by Assignment of Mortgage to be recorded in the Office of the County Clerk of Kings County [sic].” Plaintiff BNY did not own the mortgage and note when the instant action commenced on August 7, 2007.

[A] retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of an assignment.

(Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 210 [2d Dept 2009]). The Marchione Court relied upon LaSalle Bank Natl. Assoc. v Ahearn (59 AD3d 911 [3d Dept 2009], which instructed, at 912, “[n]otably, foreclosure of a mortgage may not be brought by one who has no title to it’ (Kluge v Fugazy, 145 AD2d 537 [2d Dept 1988]) and an assignee of such a mortgage does not have standing unless the assignment is complete at the time the action is commenced).” (See U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept 2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709 [2d Dept 2009]; Citgroup Global Mkts. Realty Corp. v Randolph Bowling, 25 Misc 3d 1244 [A] [Sup Ct, Kings County 2009]; Deutsche Bank Nat. Trust Company v Abbate, 25 Misc 3d 1216 [A] [Sup Ct, Richmond County 2009]; Indymac Bank FSB v Boyd, 22 Misc 3d 1119 [A] [Sup Ct, Kings County 2009]; Credit-Based Asset Management and Securitization, LLC v Akitoye,22 Misc 3d 1110 [A] [Sup Ct, Kings County Jan. 20, 2009]; Deutsche Bank Trust Co. Americas v Peabody, 20 Misc 3d 1108 [A][Sup Ct, Saratoga County 2008]).

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 [*8]fact.” Therefore, with plaintiff BNY not having standing, the Court lacks jurisdiction in this foreclosure action and the instant action is dismissed with prejudice.

MERS had no authority to assign the subject mortgage and note

Moreover, MERS lacked authority to assign the subject mortgage. The subject DECISION ONE mortgage, executed on October 28, 2005 by defendant MULLIGAN, clearly states on page 1 that “MERS is a separate corporation that is acting solely as a nominee for Lender [DECISION ONE] and LENDER’s successors and assigns . . . FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD.”

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, 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”); 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 [*9] 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 DECISION ONE, is an agent of DECISION ONE for limited purposes. It only has those powers given to it and authorized by its principal, DECISION ONE. Plaintiff BNY failed to submit documents authorizing MERS, as nominee for DECISION ONE, to assign the subject mortgage to plaintiff BNY. Therefore, even if the assignment by MERS, as nominee for DECISION ONE, to BNY was timely, and it was not, MERS lacked authority to assign the MULLIGAN mortgage, making the assignment defective. Recently, in Bank of New York v Alderazi, 28 Misc 3d at 379-380, my learned Kings County Supreme Court colleague, 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 (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). [*10]

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 [the assignment, as noted above, executed by the multi-hatted Keri Selman].

In the instant action, MERS, as nominee for DECISION ONE, not only had no authority to assign the MULLIGAN mortgage, but no evidence was presented to the Court to demonstrate DECISION ONE’s knowledge or assent to the assignment by MERS to plaintiff BNY.

Cancellation of subject notice of pendency

The dismissal with prejudice 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 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 [*11]dismissal of the instant complaint must result in the mandatory cancellation of plaintiff BNY’s notice of pendency against the property “in the exercise of the inherent power of the court.”

Conclusion

Accordingly, it is ORDERED, that the renewed motion of plaintiff, THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC1, for an order of reference, for the premises located at 1591 East 48th Street, Brooklyn, New York (Block 7846, Lot 14, County of Kings), is denied with prejudice; and it is further ORDERED, that the instant action, Index Number 29399/07, is dismissed with prejudice; and it is further ORDERED that the Notice of Pendency in this action, filed with the Kings County Clerk on August 9, 2007, by plaintiff, THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC1, to foreclose a mortgage for real property located at 1591 East 48th Street, Brooklyn, New York (Block 7846, Lot 14, County of Kings), is cancelled.

This constitutes the Decision and Order of the Court.

ENTER

________________________________HON. ARTHUR M. SCHACK

J. S. C.

~

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bank of new york, chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, dismissed, Economy, Ely Harless, foreclosure, foreclosure fraud, foreclosures, forgery, judge arthur schack, lawsuit, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, Real Estate, robo signers, securitization, servicers, stopforeclosurefraud.com, Wall Street3 Comments

EXCLUSIVE | ‘MERS’ DEPOSITION of SECRETARY and TREASURER of MERSCORP 4/2010

EXCLUSIVE | ‘MERS’ DEPOSITION of SECRETARY and TREASURER of MERSCORP 4/2010

Could this deposition hold the key to take all of MERS V3 &  MERSCORP down!

There is not 1, 2 but 3 MERS, Inc. in the past.

Just like MERS et al signing documents dated years later from existence the Corporate employees do the same to their own corporate resolutions! Exists in 1998 and certifies it in 2002.

If this is not proof of a Ponzi Scheme then I don’t know what is… They hide the truth in many layers but as we keep pulling and peeling each layer back eventually we will come to the truth!

“A Subtle Stranger” Orchestrates a Paradigm Shift

MERS et al has absolutely no supervision of what is being done by it’s non-members certifying authority PERIOD!

SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION – ATLANTIC COUNTY
DOCKET NO. F-10209-08
BANK OF NEW YORK AS TRUSTEE FOR
THE CERTIFICATE HOLDERS CWABS,
INC. ASSET-BACKED CERTIFICATES,
SERIES 2005-AB3
Plaintiff(s),
vs.
VICTOR and ENOABASI UKPE
Defendant(s).

___________________________________________
VICTOR and ENOABASI UKPE
Counter claimants and
Third Party Plaintiffs,
vs.
BANK OF NEW YORK AS TRUSTEE FOR
THE CERTIFICATE HOLDERS CWABS,
INC. ASSET-BACKED CERTIFICATES,
SERIES 2005-AB3
Defendants on the Counterclaim,
and
AMERICA’S WHOLESALE LENDER;
COUNTRYWIDE HOME LOANS, INC.;
MORGAN FUNDING CORPORATION,
ROBERT CHILDERS; COUNTRYWIDE
HOME LOANS SERVICING LP,
PHELAN, HALLINAN & SCHMIEG,
P.C.,
Third Party Defendants
——————–

Deposition of William C. Hultman, Secretary and Treasurer of MERSCORP

[ipaper docId=36513502 access_key=key-1ltln0ondmrqe0v9156u height=600 width=600 /]

Does MERS have any salaried employees?
A No.
Q Does MERS have any employees?
A Did they ever have any? I couldn’t hear you.
Q Does MERS have any employees currently?
A No.
Q In the last five years has MERS had any
employees
?
A No.
Q To whom do the officers of MERS report?
A The Board of Directors.
Q To your knowledge has Mr. Hallinan ever
reported to the Board?
A He would have reported through me if there was
something to report.
Q So if I understand your answer, at least the
MERS officers reflected on Hultman Exhibit 4, if they
had something to report would report to you even though
you’re not an employee of MERS, is that correct?
MR. BROCHIN: Object to the form of the
question.
A That’s correct.
Q And in what capacity would they report to you?
A As a corporate officer. I’m the secretary.
Q As a corporate officer of what?
Of MERS.
Q So you are the secretary of MERS, but are not
an employee of MERS?
A That’s correct.

etc…
How many assistant secretaries have you
appointed pursuant to the April 9, 1998 resolution; how
many assistant secretaries of MERS have you appointed?
A I don’t know that number.
Q Approximately?
A I wouldn’t even begin to be able to tell you
right now.
Q Is it in the thousands?
A Yes.
Q Have you been doing this all around the
country in every state in the country?
A Yes.
Q And all these officers I understand are unpaid
officers of MERS
?
A Yes.
Q And there’s no live person who is an employee
of MERS that they report to, is that correct, who is an
employee?
MR. BROCHIN: Object to the form of the
question.
A There are no employees of MERS.

RELATED ARTICLE:

_____________________________

MERS 101

_____________________________

FULL DEPOSITION of Mortgage Electronic Registration Systems (MERS) PRESIDENT & CEO R.K. ARNOLD “MERSCORP”

_____________________________

DEPOSITION of A “REAL” VICE PRESIDENT of MERS WILLIAM “BILL” HULTMAN

_____________________________

HOMEOWNERS’ REBELLION: COULD 62 MILLION HOMES BE FORECLOSURE-PROOF?

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bac home loans, bank of america, bank of new york, chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, countrywide, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, insider, investigation, lawsuit, MERS, MERSCORP, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, originator, R.K. Arnold, racketeering, Real Estate, sanctioned, scam, securitization, servicers, stopforeclosurefraud.com, sub-prime, TAXES, trustee, trustee sale, Trusts, truth in lending act, unemployed, Violations, Wall Street4 Comments

Introducing eVAULT Service (MERS v2)?

Introducing eVAULT Service (MERS v2)?

DinSFLA here: This might make it harder to detect fraud and this will eliminate paper PERIOD. FOR GOOD! This MUST STOP.

BNY Mellon Corporate Trust Launches Innovative eVault Service

New service transforms paper-based process of tracking and storing mortgage documents

NEW YORK, July 28 /PRNewswire-FirstCall/ — BNY Mellon Corporate Trust has introduced an eVault service that will allow it to receive, process and store electronic mortgage documents on behalf of its clients, significantly improving all stages in the life-cycle of a loan.

eVault is an industry-changing innovation that enables the company to provide certification, safekeeping and status reporting for electronically created and signed mortgage documents.  By transforming the current paper-based process into one that is completely electronic, eVault boosts efficiency, creates transparency by making it easier for participants to see data and exchange information and, since the need for couriers and manual entry have been eliminated, allows faster delivery to the secondary market.

“We’re excited to be redefining the role of a document custodian through our introduction of eVault, a service that changes how mortgage documents are generated and handled,” said Rick Stanley, executive vice president and head of structured credit at BNY Mellon Corporate Trust.  “Documents no longer have to be printed on paper to be signed, and they don’t have to be manually shipped or physically stored.  By making the mortgage process fully electronic, eVault allows lenders to reduce their costs through automation.”

The move toward a paperless environment is one that is supported and being driven by the mortgage industry itself, as demonstrated by the creation of Mortgage Electronic Registration Systems (MERS), an electronic way to easily identify and track individual mortgage loans and the information related to those loans.

“By using electronic commerce, eVault eliminates paper and helps streamline the mortgage process, which is one of the goals of MERS,” Stanley added.  “As one of the industry’s largest document custodians, we will work with MERS and the other utilities driving this electronic movement to continue to develop what the custodial role should be in the future.”

The company has partnered with eSignSystems, a leading provider of lifecycle management tools for eMortgage processing and other legally binding electronic transactions that provides full integration with MERS and ensures documents remain free from tampering.  eSignSystems is a division of Wave Systems Corp. (Nasdaq: WAVX).

BNY Mellon Corporate Trust services $12 trillion in outstanding debt from 61 locations in 20 countries. Its clients include governments and their agencies, multinational corporations, financial institutions and other entities that access the global debt capital markets. The corporate trust business utilizes its global footprint and expertise to deliver a full range of issuer and related investor services and develop customized and market-driven solutions. Its range of core services includes debt trustee, paying agency, escrow and other fiduciary offerings.

Corporate trust providers are appointed by corporations, municipal governments and other entities issuing debt to perform a variety of duties, including servicing and maintaining the debt issue, processing principal and interest payments for investors, representing investors in defaults, and providing value-added services for complex debt structures.

BNY Mellon is a global financial services company focused on helping clients manage and service their financial assets, operating in 36 countries and serving more than 100 markets.  BNY Mellon is a leading provider of financial services for institutions, corporations and high-net-worth individuals, providing superior asset management and wealth management, asset servicing, issuer services, clearing services and treasury services through a worldwide client-focused team.  It has $21.8 trillion in assets under custody and administration and $1.0 trillion in assets under management, services $11.6 trillion in outstanding debt and processes global payments averaging $1.5 trillion per day.  BNY Mellon is the corporate brand of The Bank of New York Mellon Corporation (NYSE: BK).  Additional information is available at www.bnymellon.com.

SOURCE BNY Mellon

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Posted in bank of new york, MERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC.2 Comments

Mortgage Servicers Playing the Blame Game

Mortgage Servicers Playing the Blame Game

When Denying Loan Mods, Loan Servicers Often Wrongly Blame Investors

by Karen Weise
ProPublica, Yesterday, 7:50 a.m.

Arthur and Alberta Bailey are about to lose their home near New Orleans, and their mortgage company says one thing stands in the way of relief: The investors who own their mortgage won’t allow any modifications.

It’s a story heard again and again across the country as desperate homeowners try to participate in a federal program created to foster loan modifications and prevent foreclosures. Loan servicers say their hands are tied by Wall Street.

Federal officials, bank officers, housing counselors and investors themselves say that excuse is cited far more often than is justified. In fact, they say, few mortgage deals include such restrictions.

Consider the case of the Baileys. Litton, a subsidiary of Goldman Sachs, services their loan, and Litton’s contract with investors has no clear language banning modifications. In fact, documents show that over 115 other mortgages [1] from the same investment pool have already been modified.

Even the representative of investors in the Baileys’ mortgage says only the servicer can decide when to modify loans. While he couldn’t comment on an individual case, Bank of New York Mellon spokesman Kevin Heine says it’s “misinformation” to say that investors make these decisions.

Servicers can pass the buck because one mortgage often involves many different companies. During the housing bubble, banks often sold mortgages to investors on Wall Street so they wouldn’t have to keep the loans on their own books, freeing them to make even more loans and protecting them from those that went bad. They then hired servicers to handle the day-to-day work of collecting payments from homeowners ­– and to decide when to modify loans. Now loan servicers have been inundated with requests from homeowners trying to avoid foreclosure through the government’s $75 billion mortgage modification program. The Treasury Department estimates that 1.7 million homeowners should qualify for help.

For homeowners, it can be difficult to understand who is responsible for what. This confusion gives servicers a ready excuse for refusing modifications.

Indeed, nobody knows the exact extent to which servicers are passing blame on to investors. Some housing counselors estimate that 10 percent of the denials they see are attributed to investors; others say they see as many as 40 percent. Either way, tens of thousands of homeowners may be affected, their attempts to modify their mortgage wrongly denied.

The prevalence of such false claims by servicers is a “legitimate concern,” said Laurie Maggiano, the Treasury Department’s director of policy for the modification program. “It’s been very frustrating for us.”

Investors are also dismayed, saying servicers are not acting in their best interests. “This is one of those rare alliances where investors and borrowers are on the same page,” according to Laurie Goodman, senior managing director at Amherst Securities, a brokerage firm that specializes in mortgage securities. She says investors have “zero vote” in determining individual loan modifications and, instead of foreclosures, prefer sustainable modifications that lower homeowners’ total debt.

Investor-owned mortgages represent more than a third of trial and permanent modifications in the government’s program [2]. Under the program, servicers must modify the loans of qualified [3] borrowers unless contracts with investors prohibit the modification, or if calculations [4] determine that the investors won’t benefit from a modification. Investors’ contracts rarely prohibit modifications, and at times, ProPublica found, they have been blamed for denials even though other mortgages owned by the same investors have been modified.Even when contracts with investors do have restrictions, servicers don’t appear to be following federal requirements that they ask investors for waivers to allow modifications.

Such requests “never happen,” says David Co, a director at Deutsche Bank’s department that oversees 1,600 residential securities, the complex bundles of mortgages sold to investors.

Treasury’s Maggiano says the government is investigating investor denials and considering greater consequences for servicers that wrongfully deny modifications. Servicers’ compliance and accountability have been a major problem for the government’s program. Treasury has threatened penalties before, but it hasn’t yet issued any [5].

Whose decision is it?

“The very phrase ‘investor restriction,’ I think, is deliberately confusing,” says Joseph Sant, an attorney with Staten Island Legal Services, which represents homeowners in foreclosure. “What we’re talking about are not business entities or people, but inert documents.”

Typically, financial institutions set up mortgage-backed securities as a trust — legally their own entities — and then sell bonds from the trust to investors, which can range from mutual funds to pension funds. At the same time, they sign up trustees to manage the security and hire divisions of their own banks or other companies to act as servicers that work directly with homeowners.

While servicers often tell homeowners that investors decide whose loans can be adjusted, Heine, the spokesman for Bank of New York Mellon, one of the largest trustees that administer mortgage securities, says the responsibility to modify loans “falls squarely to the servicer.”

And the contracts that servicers often blame are usually not a roadblock. A report by John Hunt, a law professor at the University of California, Davis, looked at contracts [6] (PDF) that covered three-quarters of the subprime loans securitized in 2006 and found that only 8 percent prohibited modifications outright. Almost two-thirds of the contracts explicitly gave servicers the authority to make modifications, particularly for homeowners who had defaulted or would likely default soon. The rest of the contracts did not address modifications.

Jeffrey Gentes, an attorney at the Connecticut Fair Housing Center who works with hundreds of homeowners across the state, estimates that in 80 percent of the cases in which he has seen the servicing contracts, no language prevents modifications as the servicers have claimed.

Homeowners’ advocates say that when they successfully disprove a contractual restriction, the servicer just gives another reason for denying the modification. “The investor is cited first until the borrower can prove it otherwise,” says Kevin Stein, associate director of the California Reinvestment Coalition, which helps low-income people and minority groups get access to financial services.

Sant, the Staten Island attorney, says a servicer told one client that the contract with investors forbade extending the length of the mortgage, one key way monthly payments can be reduced through government’s program. But the government has addressed the objection, ruling that if a servicer can’t extend the length of a mortgage, it can still give a modification and just add a balloon payment to the end of the loan. Sant pushed back on the servicer’s attorney, who dropped that reason for denial and instead said the homeowner had failed the computer model [4] that determines eligibility. Sant currently is reviewing the case to determine how to proceed.

Continue reading ….ProPublica

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bank of new york, foreclosure, foreclosure fraud, foreclosures, goldman sachs, Litton, mortgage modification, scam, servicers, STOP FORECLOSURE FRAUD, Wall Street1 Comment

Holding Bankers’ Feet to the Fire | GRETCHEN MORGENSON

Holding Bankers’ Feet to the Fire | GRETCHEN MORGENSON

By GRETCHEN MORGENSON Published: July 16, 2010



KUDOS to the Federal Housing Finance Agency, overseer of Fannie Mae and Freddie Mac, the crippled mortgage finance giants. While some in Washington have continued to coddle the big banks even after they drove our economy into the ditch, this agency seems serious about recovering money for taxpayers by holding bad financial actors to account.

The agency announced last Monday that it had issued 64 subpoenas to a throng of unidentified financial services institutions, seeking documents related to mortgage securities that Fannie and Freddie bought from Wall Street during the boom years.

The subpoenas are designed to tell the agency what many of us want to know: How did Wall Street package and sell private-label mortgage securities to investors, even though the nature and quality of some of the loans crammed inside those tidy little packages were, at best, suspect?

Once that question has been answered, Fannie and Freddie can force the institutions that sold the securities to repurchase the improper loans, allowing taxpayers to recover some of the losses they’ve swallowed on Fannie’s and Freddie’s federal bailout.

Investigating this aspect of the mortgage mess seems a pretty logical step for a regulator. But in the topsy-turvy world of Washington, the housing finance agency’s move is unusually aggressive. Edward J. DeMarco, its acting director, seems to be that rarity — a regulator who not only talks about looking out for the taxpayer, but actually does something about it.

The subpoenas went to companies that act as trustees for mortgage pools or that service the loans in them. The housing finance agency wants to see loan files and transaction documents related to those pools, including mortgage applications and property appraisals. Recipients of the subpoenas have 30 days to produce the requested documents. Additional subpoenas may follow, it said.

The agency had to resort to subpoenas, it said, because when it asked the institutions for the records it got nowhere for many months. “Difficulty in obtaining the loan documents has presented a challenge to the enterprises’ efforts” to ascertain whether losses at the companies are the responsibility of others, its press release said.

Fannie and Freddie bought only the highest-rated pieces of these deals, but they bought buckets of them. During 2006-7, these entities bought $294 billion of so-called private-label securities. Not all of these purchases are under scrutiny, the agency said.

It is clearly turning up the heat on the major players in mortgage servicing and securitization. Among the bigger trustees in the business are Deutsche Bank and the Bank of New York, while loan servicers include Bank of America and many more. None of the banks would confirm if they had received subpoenas.

Continue reading…The New York Times

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bank of america, bank of new york, deutsche bank, fannie mae, Freddie Mac, mbs, mortgage, STOP FORECLOSURE FRAUD0 Comments

No Summary Judgment in This Foreclosure Action

No Summary Judgment in This Foreclosure Action

THE BANK OF NEW YORK TRUST
COMPANY, N.A., AS TRUSTEE FOR
CHASEFLEX TRUST SERIES 2007-3,

-vs-

DAVID J. MOSQUERA; ELIZABETH
MOSQUERA;

ICE LEGAL does it again…

Thank you to Lynn Szymoniak for her Expert Witness Affidavit used in this foreclosure case!

[ipaper docId=34155185 access_key=key-npkyn8uzzco86kisdz2 height=600 width=600 /]


© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bank of new york, dismissed, foreclosure, foreclosure fraud, foreclosures, ice law, Lynn Szymoniak ESQ, STOP FORECLOSURE FRAUD1 Comment

MUST READ… MISSING LINK (s) | BANK OF NEW YORK v. MICHAEL J. RAFTOGIANIS

MUST READ… MISSING LINK (s) | BANK OF NEW YORK v. MICHAEL J. RAFTOGIANIS

Absolutely, positively a MUST READ!

edit: From a reader who makes an excellent point…this case is very important because it turns not on the assignment of mortgage which the court disregards but rather on the failure of the originator to file the mortgage loan lists with SEC-the defendant did not even raise the point that there was also a failure to file with delaware so that the trust was never given assets———most importantly AHMSI seems to have focused on acquisition of other ex lenders servicer portolios that systematically failed to file these lists-this could enable ahmsi to have more potential latitude to allocate/reallocate or even pocket collected monies -it ties in with the comments later last week re junior senior tranche——if there is no clear certainty as to who gets money from foreclosures due to the record breakdown —-then if the money were to go to tranches that have been written off by their owners —–then the servicer can pocket the proceeds———–the servicers are unregulated–who is looking at their allocations?

the real questions now-are the loans actually in the hands of trusts as a matter of law as a result of failed filings and what happens to proceeds of collection of foreclosure proceeds??

These are highlights…

SUPERIOR COURT OF NEW JERSEY

BANK OF NEW YORK, as Trustee for Home Mortgage Investment Trust CHANCERY DIVISION
2004-4 Mortgage-Backed Notes, ATLANTIC COUNTY Series 2004-4 DOCKET NO: F-7356-09

vs.

MICHAEL J. RAFTOGIANIS,

Decided June 29, 2010

This opinion deals with the plaintiff’s right to proceed with an action to foreclose a mortgage which secures a debt evidenced by a negotiable note. The original lender elected to use the Mortgage Electronic Registration System in recording the mortgage by designating that entity, as its nominee, as the mortgagee. The note and mortgage were subsequently securitized, without notice to the borrower. This action to foreclose the mortgage was filed years later, in the name of an entity created as a part of the securitization process. The defendant/borrower challenged plaintiff’s right to proceed with the foreclosure. That challenge, framed as a dispute over “standing,” has given rise to a variety of factual and legal issues typically raised in this type of litigation.

Ultimately, the questions presented were whether plaintiff could establish its right to enforce the obligation evidenced by the note and whether it must establish that it held that right at the time the complaint was filed. The answers to those questions require an understanding of the provisions of the Uniform Commercial Code, the Mortgage Electronic Registration System, the securitization of mortgages and how foreclosure litigation is handled. This opinion addresses those disputes. Ultimately, the court concluded that it was appropriate to require plaintiff to establish that it had physical possession of the note as of the date the complaint was filed. Plaintiff was unable to establish that, either by motion or at trial. Accordingly, the complaint has now been dismissed on terms permitting plaintiff to institute a new action to foreclose, on the condition that any new complaint must be accompanied by an appropriate  certification, confirming that plaintiff is then in possession of the note.

In this case, the defendant borrowed $1,380,000 from American Home Mortgage Acceptance Inc. (hereafter American Home Acceptance) in September 2004. This action to foreclose the mortgage was brought in the name of The Bank of New York, as Trustee for American Mortgage Investment Trust 2004-4 Mortgage Backed Notes, Series 2004-4 in February 2009. In the interim, a variety of transactions took place, involving a number of entities. Those transactions will be discussed in some detail below. Preliminarily, this opinion will discuss the UCC, MERS and the securitization process in more general terms.

How does one become a holder of a negotiable note? In addressing that question it is necessary to distinguish between “transfer” and “negotiation.” It is also necessary to distinguish between the handling of notes payable “to order” and notes payable “to bearer.” In this particular case, it is also necessary to recognize that a note initially made payable “to order” can become a bearer instrument, if it is endorsed in blank. See N.J.S.A. 12A:3-109(c), providing that an instrument payable to an identified person may become payable to bearer if it is endorsed in blank. See also N.J.S.A.12A:3-205(b), describing what qualifies as a blank endorsement, and The Law of Modern Payment 6 Systems and Notes 2.02 at 77-78, Miller and Harrell (2002), noting that an instrument bearing the indorsement “Pay to the order of __________” is a bearer instrument. Such a bearer note can be both transferred and negotiated by delivery alone. See Corporacion Venezolana de Fomento v. Vintero Sales, 452 F. Supp. 1108, 1117 (Dist. Ct. 1978).
Under the UCC, the transfer of an instrument requires that it be delivered for the purpose of giving the person receiving the instrument the right to enforce it. A negotiable note can be transferred without being negotiated. That transfer would be effected by the physical delivery of the note. See N.J.S.A. 12A:3-203(a). In that circumstance, the transferee would not be a holder, as that term is used in the UCC. Such a transferee, however, would still have the right to enforce the note. The UCC deals with that circumstance in the following language: Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the  instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument. N.J.S.A. 12A:3-203(b).

The negotiation of the instrument, on the other hand, requires both a transfer of possession and an endorsement by the holder. An instrument which is payable to bearer may be negotiated by transfer alone. Put otherwise, an instrument payable “to order” can be negotiated by delivery with an endorsement, while an instrument payable “to bearer” can be negotiated by delivery alone. N.J.S.A. 12A:3-201. To enforce the note at issue here as a holder pursuant to N.J.S.A. 12A:3-301, plaintiff would have to establish that it received the note, through negotiation, at the appropriate time. That would require that the note be endorsed prior to or at the time of delivery, either in favor of plaintiff or in blank. N.J.S.A. 12A:3-301 also provides that an instrument may be enforced by “a non holder in possession of the instrument who has the rights of a holder.” How does one obtain that status? That may occur, by example, where a creditor of a holder acquires an instrument through execution. See The Law of Modern Payment Systems and Notes 3.01 Miller and Harrell (2002). More frequently, that status will be created by the “transfer” of the instrument, without negotiation. As already noted, transfer occurs when the instrument is delivered for the purpose of giving the person receiving the instrument the right to enforce it. See N.J.S.A. 12A:3-203(a). The statute also provides that the transfer of the instrument, without negotiation, vests in the transferee the transferor’s right to enforce the instrument. See N.J.S.A. 12A:3-203(b). That circumstance can be illustrated by reference to the dispute presented here. The note at issue, as originally drafted, was payable “to the order of” the original lender. The negotiation of the note, in that form, would require endorsement, either to a designated recipient of the note or in blank. The note, however, could be transferred without an endorsement. Assuming the transfer was for the purpose of giving the recipient the ability to enforce the note, the recipient would become a “nonholder in possession with the rights of a holder.” That would require, however, the physical delivery of the note. A number of cases recognize that there can be constructive delivery or possession, through the delivery of the instrument to an agent of the owner. See Midfirst Bank, SSB v. C.W. Haynes & Company, 893 F. Supp. 1304, 1314-1315 (S.C. 1994); Federal Deposit Insurance Corp. v. Linn, 671 F. Supp. 547, 553 8 (N.D. Ill. 1987); and Corporacion Venezolana de Fomento v. Vintero Sales Corp, 452 F. Supp. 1108, 1117 (S.D.N.Y. 1978). Under either of the provisions of N.J.S.A.12A:3-301 which are at issue here, the person seeking to enforce the note must have possession. That is required to be a holder, and to be a nonholder in possession with the rights of a holder. The application of the provisions of the UCC to the dispute presented here will be discussed below.

MERS The Mortgage Electronic Registration System (hereafter, MERS), is a unique entity. Its involvement in the foreclosure process has been the subject of a substantial amount of litigation throughout the country, resulting in the issuance of a number of reported opinions. Recently, MERS was the focus of a decision of the Supreme Court ofKansas, reported as Landmark National Bank v. Kesler, 289 Kan. 528, 216 P.3d. 158 (Kan. 2009) which is now cited frequently in this court. That opinion reviews the manner in which MERS functions, the potential problems it can create, and some of the competing policy issues presented. The opinion also cites a variety of published opinionsfrom around the country, addressing those same issues.

In essence, MERS is a private corporation which administers a national electronic registry which tracks the transfer of ownership interests and servicing rights in mortgage loans. Lenders participate as members of the MERS system. When mortgage loans are initially placed, the lenders will retain the underlying notes but can arrange for MERS to be designated as the mortgagees on the mortgages which become a part of the public record. In that context, the lenders are able to transfer their interests to others, without having to record those subsequent transactions in the public record. See Mortgage Elec. Reg. Sys. Inc. v. Nebraska Depart. Of Banking, 270 Neb. 529, 530, 704 N.W.2d 784 (2005), cited in Landmark. The process is apparently cost efficient, from the perspective of the lenders. Among other things, the use of MERS permits lenders to avoid the payment of filing fees that might otherwise be required with the filing of multiple assignments. By the same token, it can make it difficult for mortgagors and others to identify the individual or entity which actually controls the debt at any specific time. See Landmark, 216 P.3d. at 168. On occasion, foreclosure actions are also brought in the name of MERS. When MERS is involved, defendant/borrowers often argue there has been a “separation” of the note and mortgage impacting on the plaintiff’s ability to proceed with the foreclosure. That argument has been raised here and will also be addressed below.

SECURITIZATION

This case also involves the securitization of mortgage loans, a practice which is facilitated by the MERS system. Trial courts in this state regularly deal with the foreclosure of mortgages which have previously been securitized. Generally, one or more lenders will sell substantial numbers of mortgage loans they have issued to a pool or trust.

Interests in that pool or trust are then sold to individual investors, who receive certificates entitling them to share in the funds received as the underlying loans are repaid. That can occur without any notice to the debtors/mortgagors who remain obligated on the original notes. Other entities, generally called “servicers,” are retained to administer the underlying loans. Those servicers or additional “subservicers” will be responsible for collecting and distributing the funds which are due from the debtors/mortgagors. Many are given the authority to institute and prosecute foreclosure proceedings.

The note executed by defendant Raftogianis is clearly a negotiable instrument as that term is defined by the UCC. In the terms of the statute, the note is payable to bearer or to order, and it is payable on demand or at a definite time. While the note contains detailed provisions as to just how payment is to be made, it does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money. See N.J.S.A. 12A:3-104. The note recites that defendant Raftogianis “promises to pay U.S. $1,380,000.00 … plus interest, to the order of the Lender,” then referring to “the Lender” as American Home Acceptance, beginning with payments due in November 2004. See N.J.S.A. 12A:3-104(a)(1), (2) and (3). This note, as originally drafted, was payable “to order.” At some point, however, the note was indorsed in blank. The original note was produced at oral argument on the motion for summary judgment. It contained the following indorsement:

WITHOUT RECOURSE
BY AMERICAN HOME MORTAGE ACCEPTANCE, INC.
_________________________
RENEE BURY
ASST. SECRETARY

Ms. Bury’s original signature was just above her printed name in that indorsement. Defendant had signed the note on September 30, 2004, payable to the order of American Home Acceptance. In that form the note could be transferred by delivery, but could only be negotiated by indorsement. The indorsement in blank, however, would effectively make the note payable “to bearer,” permitting it to be transferred and negotiated by delivery alone, without any additional indorsement. While it was clear the note had been indorsed prior to the time it was presented to the court, presumably as a part of the securitization process, it was not clear just when that occurred, or when the note had been physically transferred from American Home Acceptance to some other individual or entity.

The assignment from MERS was executed and recorded a short time after the complaint was filed. That document is dated February 18, 2009. It is captioned “Assignment of Mortgage.” It recites that MERS, as nominee for American Home Acceptance, transfers and assigns the mortgage at issue to Bank of New York, as Trustee.

The assignment refers to the mortgage as securing the note at issue. It recites the transfer of the mortgage “together with all rights therein and thereto, all liens created or secured thereby, all obligations therein described, the money due and to become due with interest, and all rights accrued or to accrue under such mortgage.” The assignment was executed by one Linda Green, as Vice President of MERS, as nominee for American Home Acceptance. Ms. Green’s signature was notarized. The assignment was recorded with the Atlantic County Clerk on February 24, 2009. It does appear the assignment was intended to indicate that the debt in question had been transferred to the Bank of New York as Indenture Trustee in February 2009. It is now apparent that is not what occurred.

In any event, the matter proceeded in the vicinage based upon the filing of defendant’s contesting answer. While discovery was permitted, the parties apparently elected to forego any formal discovery. Plaintiff filed its motion for summary judgment in January 2010. The motion was based upon a certification from plaintiff’s counsel providing copies of the note, the mortgage and the February 2009 assignment. While the copy of the note provided with the motion did contain the blank indorsement noted above, there was no information provided as to when the note was indorsed, when the note was physically transferred, or where the note was being held. Defendant filed written opposition, challenging the validity of the MERS assignment. Plaintiff responded with a certification executed by a supervisor for American Home Mortgage Servicing, Inc., the servicer for the loans.

THE MERS ASSIGNMENT–THE SEPARATION OF THE NOTE AND MORTGAGE

The issue is framed, at least in part, by the description of MERS as “nominee.” The use of that term, as it is used by MERS, was analyzed in some detail in the decision of the Supreme Court of Kansas in Landmark, a case relied upon by defendant and cited above. Landmark involved a property which was encumbered by two mortgages. The loan provided by Landmark National Bank was secured by a first mortgage payable to it. There was a second mortgage on the property securing a loan that had been provided by Millennia Mortgage Corp. Millennia was a participant in MERS. The second mortgage securing the debt due Millennia was in the name of MERS “solely as nominee” for Millennia. The Millennia mortgage was subsequently transferred or assigned to Sovereign Bank. That transfer was not reflected in the public record. Landmark filed an action to foreclose its first mortgage naming Millennia, but neither MERS nor Sovereign as defendants. No one responded on behalf of Millennia and the matter proceeded through judgment and sale. Sovereign subsequently filed a motion to set aside the judgment, arguing that MERS was a “contingently necessary party” under Kansas law. The trial court concluded that MERS was not a real party in interest and denied the
motion to set aside the judgment. Both the Court of Appeals and the Supreme Court of Kansas affirmed, essentially concluding that MERS did not have any real interest in the underlying debt. Notably, the opinion of the Supreme Court of Kansas recognizes the potential for the separation of interests in a note and related mortgage. In that context, the opinion addressed the use of the term “nominee” in some detail, as follows: 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. (Citation omitted)
. . .
The relationship that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all the rights given a buyer. A mortgage and a lender have intertwined rights that defy a clear separation of interests, especially when such a purported separation relies on ambiguous contractual language. The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is “[o]ne to whom property is mortgaged: the mortgage creditor, or lender.” Black’s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 38-2323. Although MERS asserts that, under some situations the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation to collect payments, and to enforce the debt obligation.
The document consistently limits MERS to acting “solely” as the nominee of lender. 289 Kan. 538-540.

While the Landmark court recognized that issues might be raised as to an alleged separation of a note and mortgage, it was not required to address those issues directly. Its analysis of the role MERS plays as nominee, however, supports the conclusion reached by this court with respect to that issue. MERS, as nominee, does not have any real interest in the underlying debt, or the mortgage which secured that debt. It acts simply as an agent or “straw man” for the lender. It is clear to this court that the provisions of the mortgage describing the mortgagee as MERS “as nominee” were not intended to deprive American Home Acceptance of its right to security under the mortgage or to separate the note and mortgage.

It is a fundamental maxim of equity that “[e]quity looks to substance rather than form.” See Applestein v. United Board & Carton Corp., 60 N.J. Super. 333, 348 (Ch.Div. 1960) aff’d o.b., 33 N.J. 72 (1960). The courts have applied that principle in dealing with mortgages in a variety of contexts. So it is that an assignment of a bond or note evidencing a secured obligation will operate as an assignment of the mortgage “in equity.” See 29 New Jersey Practice, Law of Mortgages 11.2, at 748 (Myron C. Weinstein) (2d ed. 2001) (citing Stevenson v. Black, 1 N.J. Eq. 338, 343 (Ch. 1831) and other cases). Conversely, commentators have noted the propriety of treating the assignment of a mortgage, without a specific reference to the underlying obligation, as effectively transferring both interests. But it does not follow that an assignment in terms of the “mortgage” without express reference to the secured obligation is insufficient to transfer the obligation and is therefore a nullity, as some courts have held. As Mr.Tiffany long ago pointed out, The question is properly one of the construction of the language used, and in arriving at the proper construction, evidence of the sense in which that language is ordinarily used is of primary importance. The expression “assignment of  mortgage” is almost universally used, not only by the general public, but also by the Legislature, the courts, and the legal profession, to describe the transfer of the totality of the mortgagee’s rights, that is, his right to the debt as well as to the lien securing it, and to hold, as these cases apparently do, that when one in terms assigns a mortgage, he intends, not an effective transfer of his lien alone, which is an absolute nullity, not only ignores this ordinary use of the term “mortgage”, but is also in direct contravention of the well recognized rule that an instrument shall if possible be construed so as to give it a legal operation. See 29 New Jersey Practice, Law of Mortgages 11.2 at 754(Myron C. Weinstein)(2d ed.2001) (citing 5 Tiffany on Real Property 428-29). It is apparent there was no real intention to separate the note and mortgage at the time those documents were created. American Home Acceptance remained the owner of both the note and mortgage through the date the loan was securitized. It did have the right to transfer its interests when the loan was securitized.

It was entirely appropriate to argue that the February 2009 assignment from MERS, as nominee for American Home Acceptance, to the Bank of New York, as Trustee, was ineffective. From the court’s perspective, that assignment was, at best, a distraction. The actual transfers of interests in the note and mortgage occurred in different ways. There was no reason, however, that plaintiff could not acquire the right to enforce the note and mortgage through those other  transactions. In that context, defendant’s attack on plaintiff’s right to proceed based on the alleged separation of the note and mortgage is rejected.

CONCLUSION

Defendant’s attack on plaintiff’s ability to proceed with the foreclosure based on the alleged “separation” of the note an mortgage was rejected. Plaintiff, however, failed to establish that it was entitled to enforce the note as of the time the complaint was filed.

In this case, there are no compelling reasons to permit plaintiff to proceed in this action. Accordingly, the complaint has been dismissed. That dismissal is without prejudice to plaintiff’s right to institute a new action to foreclose at any time, provided that any new complaint must be accompanied by an appropriate certification, executed by one with personal knowledge of the circumstances, confirming that plaintiff is in possession of the original note as of the date any new action is filed. That certification must indicate the physical location of the note and the name of the individual or entity in possession.

An appropriate order has been entered

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Posted in bank of new york, bogus, breach of contract, case, conspiracy, deutsche bank, fannie mae, foreclosure, foreclosure fraud, MERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, note, robo signer, securitization, Trusts2 Comments

FLORIDA JUDGE DISMISSES FORECLOSURE COMPLAINT FILED BY BANK OF NEW YORK AS TRUSTEE FOR A SECURITIZED MORTGAGE LOAN TRUST FOR FAILURE TO COMPLY WITH SUPREME COURT RULES REQUIRING FORECLOSURE COMPLAINTS TO BE VERIFIED AND FOR FAILURE TO PROPERLY ALLEGE CHAIN OF TITLE FROM ORIGINAL LENDER TO FORECLOSING PLAINTIFF

FLORIDA JUDGE DISMISSES FORECLOSURE COMPLAINT FILED BY BANK OF NEW YORK AS TRUSTEE FOR A SECURITIZED MORTGAGE LOAN TRUST FOR FAILURE TO COMPLY WITH SUPREME COURT RULES REQUIRING FORECLOSURE COMPLAINTS TO BE VERIFIED AND FOR FAILURE TO PROPERLY ALLEGE CHAIN OF TITLE FROM ORIGINAL LENDER TO FORECLOSING PLAINTIFF

May 27, 2010

In an extremely significant ruling, a Florida Circuit Judge today dismissed a residential foreclosure Complaint filed by the Bank of New York as trustee for a securitized mortgage loan trust for failure to comply with the Supreme Court of Florida Order amending the Rules of Civil Procedure to require that all residential mortgage foreclosure Complaints be verified and as the Plaintiff also failed to properly allege the chain of title from the original lender to the foreclosing Plaintiff as required by recent Florida case law. The Supreme Court of Florida rule amendment and the recent case law requiring proof of chain of title in order to be able to foreclose were both previously reported on this website.

The original lender was Taylor Bean & Whitaker, which failed and was taken over by the government for fraudulent lending practices. There was no assignment or other evidence showing how the loan went from TBW to the Bank of New York. The Complaint was filed on February 12, 2010, the day after the effective date of the Supreme Court Order requiring verification of all residential foreclosure Complaints.

The ruling is extremely significant, as it ratifies the effect of the Supreme Court Order requiring that ALL residential mortgage foreclosure complaints filed in Florida after February 11, 2010 be verified and that such Complaints also allege the proper chain of title of the note and mortgage from the original lender to the foreclosing Plaintiff, and that if the Complaint does not do both, the Complaint is subject to dismissal.

The borrower is represented by Jeff Barnes, Esq., who filed the Motion to Dismiss and argued the matter at a hearing this morning.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

Posted in bank of new york, concealment, conspiracy, dismissed, foreclosure, foreclosure fraud, note0 Comments

REJECTED, REVERSED, LACK OF STANDING, ASSIGNMENT ERROR: Bank of New York v. GINDELE, 2010 Ohio 542 – Ohio: Court of Appeals, 1st Dist., Hamilton

REJECTED, REVERSED, LACK OF STANDING, ASSIGNMENT ERROR: Bank of New York v. GINDELE, 2010 Ohio 542 – Ohio: Court of Appeals, 1st Dist., Hamilton

2010 Ohio 542

Bank of New York, As Trustee For the Certificate Holders Cwalt, Inc., Alternative Loan Trust 2006-40T1, Mortgage Pass-Through Certificates, Series 2006-40T1, Plaintiff-Appellee,
v.
Jamie L. Gindele and Gary Gindele, Defendants-Appellants.

Appeal No. C-090251.

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: February 19, 2010.

James S. Wertheim, Rose Marie L. Fiore, and McGlinchey Stafford, PLLC, for Plaintiff-Appellee.

James J. Slattery, Jr., for Defendants-Appellants.

DECISION.

WILLIAM L. MALLORY, Judge.

{¶1} Defendants-appellants Jamie and Gary Gindele appeal the summary judgment entered for plaintiff-appellee Bank of New York on its foreclosure complaint. On appeal, the Gindeles argue that Bank of New York did not acquire its interest until after the foreclosure complaint had been filed, and that under our holding in Wells Fargo Bank, N.A. v. Byrd,[1] Bank of New York’s complaint should have been dismissed without prejudice. We agree.

{¶2} In Byrd, we held that “in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage.”[2] At oral argument in this case, Bank of New York has repeated its assertion that it had an existing interest in the property at issue when it filed suit, but the record does not support this assertion.

{¶3} A thorough review of the record reveals that the sole indication of its interest as mortgagee is an after-acquired assignment; and the bank failed to produce any evidence in the trial court affirmatively establishing a preexisting interest. Bank of New York has also asserted both that it had acted as an agent, and that its predecessor in interest had later ratified its foreclosure complaint. But because at the time of filing neither agency nor ratification had been alleged or documented, we will not entertain this argument on appeal.

{¶4} We likewise reject Bank of New York’s argument that the real party in interest when the lawsuit was filed was later joined by the Gindeles. We are convinced that the later joinder of the real party in interest could not have cured the Bank of New York’s lack of standing when it filed its foreclosure complaint. This narrow reading of Civ.R. 17 comports with the intent of the rule. As other state and federal courts have noted, Civ.R. 17 generally allows ratification, joinder, and substitution of parties “to avoid forfeiture and injustice when an understandable mistake has been made in selecting the parties in whose name the action should be brought.”[3] “While a literal interpretation of * * * Rule 17(a) would make it applicable to every case in which an inappropriate plaintiff was named, the Advisory Committee’s Notes make it clear that this provision is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. When determination of the correct party to bring the action was not difficult and when no excusable mistake was made, the last sentence of Rule 17(a) is inapplicable and the action should be dismissed.”[4]

{¶5} In this case, the record does not reflect any understandable mistake by Bank of New York; there is no indication that the identity of the proper party was difficult to ascertain; and there is no documentary proof that Bank of New York owned an enforceable interest when it filed its foreclosure complaint.

{¶6} In a foreclosure action, absent understandable mistake or circumstances where the identity of a party is difficult or impossible to ascertain, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage. Bank of New York failed to establish an enforceable interest that existed at the time it filed suit, and it has not alleged or proved understandable mistake or that the identity of the proper party was not readily ascertainable. Bank of New York’s complaint in foreclosure should have been dismissed without prejudice under Byrd.

{¶7} The Gindeles’ assignment of error is sustained, the judgment favoring Bank of New York is reversed, and this cause is remanded for further proceedings in accordance with this decision.

Judgment reversed and cause remanded.

Cunningham, P.J., and Dinkelacker J., concur.

[1] 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722.

[2] Id. at ¶16.

[3] Ohio Central RR. Sys. v. Mason Law Firm Co., LPA, 182 Ohio App.3d 814, 2009-Ohio-3238, 915 N.E.2d 397, quoting Agri-Mark, Inc. v. Niro, Inc. (D.Mass.2000), 190 F.R.D. 293; see, also, Fed.R.Civ.P. 17 Advisory Committee Note.

[4] Id.

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Posted in bank of new york, case, concealment, foreclosure, foreclosure fraud, reversed court decision0 Comments


GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Kenneth Eric Trent, www.ForeclosureDestroyer.com

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