MATT TAIBBI-

Just a quick note about the “Shredded Justice” story, as I’ve had a couple of questions about some of the SEC’s responses to the story.

Several readers pointed to this story in which SEC spokesman John Nester said this:

“We do keep records of our MUI’s and they’re available to our investigators to learn about previous work on matters that have been reviewed.”

[ROLLINGSTONE]

A whistleblower claims that over the past two decades, the agency has destroyed records of thousands of investigations, whitewashing the files of some of the nation’s worst financial criminals.

Rollingstone-

Imagine a world in which a man who is repeatedly investigated for a string of serious crimes, but never prosecuted, has his slate wiped clean every time the cops fail to make a case. No more Lifetime channel specials where the murderer is unveiled after police stumble upon past intrigues in some old file – “Hey, chief, didja know this guy had two wives die falling down the stairs?” No more burglary sprees cracked when some sharp cop sees the same name pop up in one too many witness statements. This is a different world, one far friendlier to lawbreakers, where even the suspicion of wrongdoing gets wiped from the record.

[ROLLINGSTONE]

Market Watch-

WASHINGTON (MarketWatch) — The Securities and Exchange Commission may have destroyed documents and compromised enforcement cases involving activity at large banks and hedge funds during the height of the financial crisis in 2008, according to allegations made by a lawmaker on Wednesday.

[MARKET WATCH]

[ipaper docId=62540112 access_key=key-wotv5tiw8imq9xbpkk9 height=600 width=600 /]

MAINE SUPREME JUDICIAL COURT

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN
TRUST FOR THE REGISTERED HOLDERS OF AMERIQUEST MORTGAGE
SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2006-R2

v.

DONALD P. PELLETIER et al.

EXCERPT:

[¶13] Although the Pelletiers have not yet tendered to the bank the proceeds
of the loan that they received from Ameriquest, the statute specifies that tender is
not required until the creditor has performed its obligations under the law.
15 U.S.C.S. § 1635(b). The facts established in this summary judgment record
indicate that the creditor—the bank—has not yet performed its obligation to
“return to the obligor any money or property given as earnest money,
downpayment, or otherwise.” Id. Thus, the Pelletiers were not yet required to
tender the proceeds to the bank, and the court did not err in imposing the remedy of
rescission on summary judgment. Further proceedings are necessary, however, to
define the scope of that remedy. Because the parties have not followed the process
specified by statute with precision and clarity, the court may “otherwise order[]”
appropriate procedures to give effect to the remedy of rescission. Id. Accordingly,
although we affirm the court’s judgment granting the Pelletiers’ request for
rescission, we remand the matter for the court to determine how this rescission
should be effectuated.

The entry is:

Summary judgment for the Pelletiers on the
foreclosure complaint affirmed. Remanded for
further proceedings to effectuate the rescission of
the January 18, 2006, agreements.

[ipaper docId=62165655 access_key=key-1c38374ar0oz2vv2e90g height=600 width=600 /]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION

DOCKET NO. A-4925-09T3

DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR LONG
BEACH MORTGAGE LOAN TRUST
2006-3,
Plaintiff-Respondent,

v.

CONSTANCE LAWRENCE MITCHELL
and GENERAL MOTORS ACCEPTANCE
CORPORATION,
Defendants,

and

JACQUELINE BETHEA,
Defendant-Appellant

EXCERPTS:

Deutsche Bank
could have established standing as an assignee, N.J.S.A. 46:9-9,
if it had presented an authenticated assignment indicating that
it was assigned the note before it filed the original complaint.
The only evidence presented by Deutsche Bank was to the
contrary. We reverse the grant of summary judgment and remand
for a hearing to determine whether or not, before filing the
original complaint, plaintiff was in possession of the note or
had another basis to achieve standing to foreclose, pursuant to
N.J.S.A. 12A:3-301.

Although our reversal of summary judgment resolves this
appeal, we think it important to note that the proofs presented
by plaintiff in support of summary judgment were inadequate. In
Ford, supra, we explained that “[a] certification will support
the grant of summary judgment only if the material facts alleged
therein are based, as required by Rule 1:6-6, on personal
knowledge.” 418 N.J. Super. at 599. We held that the trial
court should not have considered an assignment that was not
“authenticated by an affidavit or certification based on
personal knowledge.” Id. at 600.

In support of its motion for summary judgment, Deutsche Bank
provided a certification of an attorney dated January 22, 2009,
which stated that “[p]laintiff is the present holder of the Note
and Mortgage. A copy of the Assignment of Mortgage is attached
as Exhibit B.” The attorney certified that his knowledge was
based upon his “custody and review of the computerized records
of plaintiff which were made in the ordinary course of business
as part of plaintiff’s regular practice to create and maintain
said records and which were recorded contemporaneously with the
transactions reflected therein.” This attorney certification
does not meet the requirement of personal knowledge we
articulated in Ford. Attorneys in particular should not certify
to “facts within the primary knowledge of their clients.”7 See
Pressler & Verniero, Current N.J. Court Rules, comment on R.
1:6-6 (2011); Higgins v. Thurber, 413 N.J. Super. 1, 21 n.19
(App. Div. 2010), aff’d, 205 N.J. 227 (2011).

In support of its motion for final judgment, Deutsche Bank
provided a certification of proof of amount due by a specialist
of JP Morgan Chase Bank, N.A., servicer for Deutsche Bank, dated
June 9, 2009, stating, in part, that “[p]laintiff is still the
holder and owner of the aforesaid obligation and Mortgage.”
However, this certification does not make any mention of the
assignment of the mortgage or how the signor knows that Deutsche
Bank became the holder of the note.

At oral argument in the trial court, plaintiff’s counsel
indicated that plaintiff had possession of the note prior to
obtaining the assignment. Deutsche Bank did not present any
certification based on personal knowledge stating that it ever
possessed the original note.

We vacate the sheriff’s sale, the final judgment and the
order granting summary judgment and remand to the trial court
for further proceedings in conformance with this opinion.
Reversed and remanded.

[ipaper docId=62021680 access_key=key-4mudnf5uqqv6rtls971 height=600 width=600 /]

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

PEDRO F. LAURENCIO; ESTEVES
PEDRO a/k/a ADELAIDA LAURENCIO;
ACCREDITED HOME LENDERS, INC.,
Successor by Merger to Aames Funding
Corporation d/b/a Aames Home Loan;
CITY OF CAPE CORAL; TENANT #1 n/k/a
ADALAEIDA LAURENCIO; and
TENANT #2 n/k/a PEDRO LAURENCIO,

Appellants,

v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Indenture Trustee of the
Aames Mortgage Investment Trust 2005-1,

Appellee.

Opinion filed July 27, 2011.
Appeal from the Circuit Court for Lee
County; Hugh E. Starnes, Judge.

EXCERPTS:

On December 9, 2008, Deutsche Bank’s attorneys sent Laurencio a letter stating that, pursuant to the terms of the Note and Mortgage, Deutsche Bank had “accelerated all sums due and owing, which means that the entire principal balance and all other sums recoverable under the terms of the promissory Note and Mortgage are now due.” The letter stated that the amount owed was $200,715.27. The letter also informed Laurencio: “This law firm is in the process of filing a Complaint on the promissory Note and Mortgage to foreclose on real estate.” Two days later, the bank filed a mortgage foreclosure complaint and attached this letter to the complaint.

Paragraph 22 of Laurencio’s mortgage set forth presuit requirements, including a requirement that Deutsche Bank give Laurencio thirty days’ notice and an opportunity to cure the default prior to filing suit:

Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this SecurityInstrument (but not prior to acceleration under Section 18[3] unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Agreement by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, all attorneys’ fees and costs of title evidence.

(Underline emphasis added.) Clearly, Deutsche Bank’s letter did not comply with paragraph 22.

[…]

In this case, Deutsche Bank failed to meet its summary judgment burden because the record before the trial court reflected a genuine issue of material fact as to whether Deutsche Bank had complied with conditions precedent to filing the foreclosure action. In a case with nearly identical facts, this court recently reversed a summary judgment of foreclosure. See Konsulian v. Busey Bank, N.A., 61 So. 3d 1283 (Fla. 2d DCA 2011). In Konsulian, we concluded that the bank was not entitled to summary judgment because it had not established that it had met the conditions precedent to
filing suit. Id. at 1285. The record in that case did not establish that the bank had given the defendant the notice which the mortgage required. Id. We reach the same conclusion in this case.

[…]

[ipaper docId=61071319 access_key=key-1q3x7z75en6tuxeyjtnp height=600 width=600 /]

Decided on June 29, 2011

Supreme Court, Kings County

Deutsche Bank Trust Company of America as Trustee for RALI 2006QS10, Plaintiffs,

against

Charmaine Davis, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR HOMECOMINGS FINANCIAL NETWORK, INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, MR. DAVIS, ET AL., Defendants.

EXCERPTS:

4210/09

Herbert Kramer, J.

The following papers have been read on this motion:

Notice of Motion/Order to Show Cause/Papers Numbered

Petition/Cross Motion and

Affidavits (Affirmations) Annexed

Opposing Affidavits (Affirmations)

Reply Affidavits (Affirmations)

_______________(Affirmation)_

Other Papers

Are parties required to negotiate in good faith during the foreclosure settlement conferences?In light of the state and federal statutes, particularly CPLR §3408, this Court holds that not only are the parties required to come to this Court in good faith, but also to negotiate in good faith towards creation of a mutually satisfactory modification agreement.

[…]

Therefore, this Court stays the entire matter until such time as the plaintiff moves the Court to resume negotiations in good faith.[FN2] Additionally, plaintiff’s attorney is sanctioned 50% of interest due to the plaintiff from April 23, 2009, the date of first HAMP conference, until June 3, 2011, the date of the parties appearance in Part 13, due to delay directly attributable to plaintiff. Further, defendant is directed to pay $3,000 per month [FN3] to the County Clerk until the stay is lifted or the [*3]amount of the mortgage repaid.[FN4]

As a final note, the record reflects that there is a question as to the genuineness of plaintiff’s possession of the mortgage, and the possession of the mortgage at the inception of this action. There is indication that the assignments may have been flawed. It is this Court’s position that the plaintiff, who assigns and receives mortgages with reasonable frequency, cannot avoid the obligations of the state and federal statutes by the continued sale and transfer of mortgages. This Court will not be a willing participant in plaintiff’s smoke and mirrors.

[…]

[ipaper docId=59614204 access_key=key-2vhx8k0obitntmvbrh3 height=600 width=600 /]

Excerpt:

Plaintiff has applied to this Court for the granting of a Judgment of Foreclosure & Sale pursuant to RPAPL § 1351. The express provisions of the Administrative Order of the Chief Administrative Judge of the Courts, no. A0548/10 require the filing of an Affirmation by Plaintiff’s counsel. No such Affirmation has been filed in this proceeding, in derogation of the aforesaid mandate. Accordingly, this application must be denied.

It is, therefore,

ORDERED that the within application by the Plaintiff shall be and the same is hereby denied without prejudice.

[ipaper docId=59494902 access_key=key-264kx7256bxnizbtwjpy height=600 width=600 /]

RePOST due to a possible hack.

Don’t be a fool. I can assure you, the AG’s that are investigating have this info.

~

2011 NY Slip Op 31747(U)

DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, 9350 Waxie Way San Diego, CA 92123 Plaintiff,

v.

DANILO PICON, MAGALYS T. PICON, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST NATIONAL BANK OF ARIZONA, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE,
JOHN DANIELS, YVETTE “DOE” Defendants.

No. 1070/08, Motion Seq. No. 4.

Supreme Court, Queens County.

June 22, 2011.

BERNICE D. SIEGAL, Judge.

EXCERPT:

Once the issue of standing is raised by the Defendant, the burden is placed on the Plaintiff to prove, as in the instant matter, that it owns the Note underlying the action and the validity of any associated assignment (TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2d Dep’t 2006]). A demonstration by the Plaintiff that it owns the Mortgage, without a showing that it also owns the Note is a nullity and any action for foreclosure based on the ownership of the mortgage alone must fail (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]). This result is mandated because the mortgage is “but an incident to the debt which it is intended to secure,” and without more, it provides the holder with no actionable interest on which to commence a foreclosure action (Merritt v Bartholick, 36 NY 44, 45 [1867].

While a written assignment or physical transfer of the Note is sufficient to result in an implicit transfer of an associated Mortgage, an assignment of the Mortgage, without an explicit assignment of the Note, will not result in an assignment of that Note (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2d Dept 2009]).

In the case before us, Plaintiff only proffers evidence that the mortgage was transferred to the Plaintiff (through MERS, as nominee for Firs National Bank of Arizona [“Arizona”]) via an Assignment of Mortgage dated January 7, 2008. It does not, critically, provide evidence that the Note itself was transferred to the Plaintiff.

The only documents the Plaintiff submits in connection with the issue of the ownership and assignment of the Note are a copy of the original Adjustable Rate Note Agreement between Arizona and the Defendant dated March 8, 2006, and a copy of an undated allonge between Arizona and the First National Bank of Nevada [“Nevada”], seemingly transferring Arizona’s interest in the Note to Nevada. Although not dated, it is only logical for the court to assume that the allonge was executed prior to any purported assignment of the Note to the Plaintiff. If we were to assume otherwise, it would imply that Arizona was assigning to Nevada a Note that it did not own (since such Note had already been purportedly assigned to the Plaintiff).

Critically, Plaintiff does not provide documents demonstrating that the Note itself was assigned to Plaintiff, such as from MERS (as nominee for Arizona), from Arizona itself, or from a third-party such as Nevada.

The only interpretation the court can adduce from such evidence is that although it is possible that Nevada may own both the Mortgage and the Note since a valid transfer of a Note (in this case through the undated allonge), effectively transfers an associated Mortgage, the assignment of the Mortgage from MERS (as nominee for Arizona) to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff.

Since the allonge indicates that the Note is the property of Nevada and not Arizona, Arizona was never in a position to assign the Note to Plaintiff. Therefore, even if Plaintiff holds the Mortgage, without evidence that it also owns the Note, it lacks standing to pursue the foreclosure action at bar. Consequently, Plaintiff’s acquisition of the Mortgage without the underlying Note is insufficient to sustain a foreclosure action and Defendant’s motion to dismiss based on the Plaintiff’s lack of standing is granted.

[…]

The other issues raised in Defendant’s Order to Show Cause including the 1) motion to dismiss due to a failure to state a cause of action under CPLR 3211, and 2) a motion to vacate the default judgment and allow an answer under CPLR 317 are deemed moot as they are subsumed or deemed irrelevant in light of this court’s decision above. Based on the forgoing, it is

ORDERED that Defendant’s motion to vacate the default judgment and dismiss the action is granted; it is further

ORDERED that Defendant’s motion to have the case dismissed with prejudice due to fraud is denied.

The foregoing constitutes the decision and order of the court.

[…]

[ipaper docId=59328003 access_key=key-118ad3g85p29i38ysxi2 height=600 width=600 /]

[PDF].DEUTSCHE v PICON w RePOST since the content was possibly hacked

2011 NY Slip Op 31747(U)

DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, 9350 Waxie Way San Diego, CA 92123 Plaintiff,

v.

DANILO PICON, MAGALYS T. PICON, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST NATIONAL BANK OF ARIZONA, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE,
JOHN DANIELS, YVETTE “DOE” Defendants.

No. 1070/08, Motion Seq. No. 4.

Supreme Court, Queens County.

June 22, 2011.

BERNICE D. SIEGAL, Judge.

EXCERPT:

Once the issue of standing is raised by the Defendant, the burden is placed on the Plaintiff to prove, as in the instant matter, that it owns the Note underlying the action and the validity of any associated assignment (TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2d Dep’t 2006]). A demonstration by the Plaintiff that it owns the Mortgage, without a showing that it also owns the Note is a nullity and any action for foreclosure based on the ownership of the mortgage alone must fail (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]). This result is mandated because the mortgage is “but an incident to the debt which it is intended to secure,” and without more, it provides the holder with no actionable interest on which to commence a foreclosure action (Merritt v Bartholick, 36 NY 44, 45 [1867].

While a written assignment or physical transfer of the Note is sufficient to result in an implicit transfer of an associated Mortgage, an assignment of the Mortgage, without an explicit assignment of the Note, will not result in an assignment of that Note (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2d Dept 2009]).

In the case before us, Plaintiff only proffers evidence that the mortgage was transferred to the Plaintiff (through MERS, as nominee for Firs National Bank of Arizona [“Arizona”]) via an Assignment of Mortgage dated January 7, 2008. It does not, critically, provide evidence that the Note itself was transferred to the Plaintiff.

The only documents the Plaintiff submits in connection with the issue of the ownership and assignment of the Note are a copy of the original Adjustable Rate Note Agreement between Arizona and the Defendant dated March 8, 2006, and a copy of an undated allonge between Arizona and the First National Bank of Nevada [“Nevada”], seemingly transferring Arizona’s interest in the Note to Nevada. Although not dated, it is only logical for the court to assume that the allonge was executed prior to any purported assignment of the Note to the Plaintiff. If we were to assume otherwise, it would imply that Arizona was assigning to Nevada a Note that it did not own (since such Note had already been purportedly assigned to the Plaintiff).

Critically, Plaintiff does not provide documents demonstrating that the Note itself was assigned to Plaintiff, such as from MERS (as nominee for Arizona), from Arizona itself, or from a third-party such as Nevada.

The only interpretation the court can adduce from such evidence is that although it is possible that Nevada may own both the Mortgage and the Note since a valid transfer of a Note (in this case through the undated allonge), effectively transfers an associated Mortgage, the assignment of the Mortgage from MERS (as nominee for Arizona) to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff.

Since the allonge indicates that the Note is the property of Nevada and not Arizona, Arizona was never in a position to assign the Note to Plaintiff. Therefore, even if Plaintiff holds the Mortgage, without evidence that it also owns the Note, it lacks standing to pursue the foreclosure action at bar. Consequently, Plaintiff’s acquisition of the Mortgage without the underlying Note is insufficient to sustain a foreclosure action and Defendant’s motion to dismiss based on the Plaintiff’s lack of standing is granted.

[…]

The other issues raised in Defendant’s Order to Show Cause including the 1) motion to dismiss due to a failure to state a cause of action under CPLR 3211, and 2) a motion to vacate the default judgment and allow an answer under CPLR 317 are deemed moot as they are subsumed or deemed irrelevant in light of this court’s decision above. Based on the forgoing, it is

ORDERED that Defendant’s motion to vacate the default judgment and dismiss the action is granted; it is further

ORDERED that Defendant’s motion to have the case dismissed with prejudice due to fraud is denied.

The foregoing constitutes the decision and order of the court.

[…]

[ipaper docId=59328003 access_key=key-118ad3g85p29i38ysxi2 height=600 width=600 /]

Deutsche Bank National Trust Co., AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2006-AR25, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR25 UNDER THE POOLING AND SERVICING AGREEMENT DATED JULY 1, 2006, Petitioner,

against

Elaine Turner, PERCIVAL TURNER, YVETTE JEFFRIES, JOHN DOE, JANE DOE, RICHARD ROE, CORA COE, Respondent.

EXCERPT:

Petitioner may not designate a party as “John Doe” or “Jane Doe” when there is actual knowledge of the party’s identity. “If none of the name is known, then a completely fictitious name may be utilized. However, such a designation can only be made if the designating party does not know all or part of the other party’s name; otherwise, the party must be identified to the extent that his or her name is known.” First Federal Savings and Loan Association of Rochester v. Souto, 158 Misc 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993). Further, “a petition naming the respondent as John Doe’ or Jane Doe’ is subject to dismissal if the true identity of the respondent is known to the petitioner when the proceeding is commenced.” Varveris v. Infante, N.Y.L.J. Sept. 15, 1993, p. 25, col. 3 (Civ. Ct. Queens Co.), citing ABKCO Industries v. Lennon, 52 AD2d 435; Capital Resources Corp. v. “John Doe” and “Jane Doe”, N.Y.L.J. June 17, 1992, p. 25, col. 6 (Civ. Ct. Kings Co.).

In the instant case, there has been no evidence or testimony presented to suggest that Petitioner had actual knowledge of the presence or identity of Gerda Southwell. However, petitioner has failed to demonstrate that any effort, let alone a diligent effort, was made to determine the identity(ies) of the occupant(s) of the premises. “It is clearly implicit in CPLR 1024 that the unusual authority it sanctions should not be availed of in the absence of a genuine effort to learn the true name of the party.” Chavez v. Nevell Mgmt. Co., Inc., 69 Misc 2d 718; 330 N.Y.S. 2d 890 (Civ. Ct. New York Co., 1972); 2 Weinstein-Korn-Miller, New York Civ. Prac., par. 1024.04. “Petitioner by means of the CPLR is duty bound not to proceed with or to permit an eviction proceeding to go forward in the name of a John Doe or Jane Doe’ when they could with diligence find out the true name, or actually have knowledge of the true name or names.” Green Point Savings Bank v. John and Jane Doe, N.Y.L.J. July 12, 1995, p. 31, col. 2; See Teachers College v. Walterding, 351 N.Y.S. 2d 587 (App. Term, 1st Dept, 1974) and Chavez v. Nevell Mgmt. Co., supra. Petitioner must further establish that a diligent effort has been made to ascertain the identity of the party. “It must be demonstrated that the persons named as unknown are actually unknown. To make that showing, counsel should present an affidavit [*4]stating that a diligent inquiry has been made to determine the names of such parties.” Capital Resources Corp. v. John Doe, 154 Misc 2d 864; 586 N.Y.S. 2d 706 (Civ. Ct. Kings Co., 1992); Chavez v. Nevell Mgmt. Co., supra; 2 Weinstein-Korn-Miller, NY Civ. Prac., par. 1024.04.

Petitioner has presented no evidence or testimony to demonstrate a diligent effort was made to ascertain the identity(ies) of the occupant(s). This is a two-family dwelling where the respondent has resided consistently since October 2008. In a two-family home the identity of any occupants’ could have been ascertained with a minimal amount of effort. Petitioner could have knocked on Ms. Southwell’s door, asked the prior owners if anyone else resided in the building, or checked the names on the mailboxes. Petitioner produced no evidence that any effort was made at all. “A diligent effort to learn the party’s name is a condition precedent to the use of CPLR §1024, which should therefore be turned to only as a last resort.” George Tut & Company v. Jane Doe, 2008 Slip Op 28264; 20 Misc 3d 815; 862 N.Y.S. 2d 428 (Civ. Ct. Kings Co., 2008); Siegel, NY Prac. §188 at 304 (3d ed). “If a petitioner knows a party’s name, or fails to demonstrate that diligent efforts were made to learn a party’s name, then use of a fictitious name is not authorized by CPLR 1024 and the petition is rendered fatally defective as to that party.” Pinnacle Bronx East v. Bowery Residents Committee Inc., 2006 NY Misc. LEXIS 4025; 235 N.Y.L.J. 60 (Civ. Ct. Bronx Co., 2006), citing Triborough Bridge and Tunnel Auth. v. Wimpfheimer, 165 Misc 2d 584; 633 N.Y.S. 2d 695 (App. Term, 1st Dept. 1995); First Fed. Savings and Loan Assoc. of Rochester v. Souto, 158 Misc 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993). Accordingly, respondent’s motion is granted and the petition is dismissed without prejudice. As the proceeding is dismissed on the basis of failure to name a necessary party, the court need not address the additional grounds raised for dismissal.

This is the decision and order of the Court.

[ipaper docId=58946023 access_key=key-18mlbl9k9l3ztxqx9caj height=600 width=600 /]

NEW YORK SUPREME COURT –
QUEENS COUNTY

DEUTSCHE BANK NATIONAL TRUST CO. As TrusteeUnder Pooling and Servicing Agreement Dated as of November 1, 2006 Securitized Asset Backed Receivables Certificates Series 2006-WM3,

-against-

JOSE QUINONES, JOHNNY FERREIRA, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., As
Nominee for WMC Mortgage Corp., NYCTAB,
NYCPVB, NYCECB, JOHNNY FERREIRA JR.,
MEKIDA AZCONA, CLARENCE FORD,

EXCERPT:

The referee’s deed dated, March 27, 2009, and filed in the Office of the City Register on April 13, 2009, CFRN 2009000107255 is vacated and set aside and the defendant, Johnny Ferreira is restored to possession.

[…]

Finally, it is pointed out that even if, as plaintiff claims, the defendant was served pursuant to CPLR 308(2), no affidavit of service was filed in this action, thus, the defendant is not in default. Service pursuant to CPLR 308(2) is complete, and the defendant’s time to answer begins to run ten days after filing proof of service (see CPLR 320[a]; 3012[c]; Zareef v. Wong, 61 AD3d 749 [2009]; Marazita v. Nelbach, 91 AD2d 604 [1982], appeal withdrawn 58 NY2d 826 [1983]). No affidavit of service has been filed in this action and the plaintiff has never moved for leave to file the affidavit of service. The plaintiff’s actions, or rather inaction, has contributed if not caused the delay it claims is prejudicial.

[ipaper docId=58779313 access_key=key-1haqcaxdmcykgz107wtx height=600 width=600 /]

3 We note that Turner’s argument that Deutsche Bank possessed unclean hands is an equitable defense to the merits of this lawsuit. This is an issue for the chancery court to consider on remand.

ANGELA L. TURNER

v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY

Excerpts:

¶1. Deutsche Bank National Trust Company initiated a foreclosure action in the Warren County Chancery Court and attempted to serve Angela Turner by publication. But before doing so, it neither certified Turner was a non-resident of Mississippi nor alleged she could not be located in the state after a diligent inquiry. Because we find service of process did not strictly comply with the governing rules, we reverse the chancellor’s refusal to set aside the default judgment she entered on behalf of Deutsche Bank when Turner did not respond. We remand the case for further proceedings.

[…]

¶11. Although Deutsche Bank published a summons in the newspaper for three consecutive weeks and filed proof of the publication, Deutsche Bank did not comply with Rule 4(c)(4)(A). It is undisputed that Deutsche Bank never filed a sworn petition or affidavit attesting that Turner was a nonresident or could not be found in Mississippi after a diligent inquiry. Therefore, it follows that Deutsche Bank did not comply with any of the remaining requirements for information that must be included in the petition or affidavit.

¶12. “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (33).

[…]

¶20. Because service of process in this case failed to comply with Rule 4(c), we find the default judgment entered against Turner is void. Caldwell, 533 So. 2d at 417-18 (finding judgment void for defective process by publication). Thus, the chancery court erred in refusing to set the void judgment aside under Rule 60(b). We reverse and remand for further proceedings in which Deutsche Bank will have the opportunity to serve Turner with process.3

[…]

[ipaper docId=57973243 access_key=key-186gkk5ce8159fjpobb height=600 width=600 /]

DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR AMERICAN HOME MORTGAGE
ASSETS TRUST 2006-5 MORTGAGE-BACKED PASS-HROUGH
CERTIFICATES, SERIES 2006-5
4600 Regents Boulevard
Suite 200
Irving, TX 75063-1730

-against-

MARTIN SEIDLIN, JUNGKIL HAN, INA ZALOOM

HON SALIANN SCARPULLA, J.:

EXCERPTS:

In this foreclosure action, plaintiff (hereinafter “Deutsche Bank”) moves for leave to voluntarily discontinue without prejudice pursuant to CPLR 3217(b) “due to the assignment of the mortgage being incorrectly and/or incompletely acknowledged.” (Anderson Affirm., 7 6). Defendant Ina Zaloom (“Zaloom”), on behalf of herself and codefendant Martin B. Seidlin (“Seidlin”), cross-moves for summary judgment, seeking dismissal of the plaintiffs complaint with prejudice and an order (a) that no amounts are owed by Zaloom to Deutsche Bank under the mortgage note; (b) that plaintiff may not foreclose the subject mortgage; (c) that bars Deutsche Bank from seeking a deficiency judgment against Zaloom; and (d) that awards sanctions against Deutsche Bank pursuant to 22 NYCRR 5 130- 1.1, including reasonable attorney’s fees.

[…]

However, Deutsche Bank’s pleading against defendant Jungkil Han, previous owner of the subject apartment, is dismissed with prejudice, because Deutsche Bank has not alleged any basis of claim against him.

With respect to Zaloom’s counterclaim, it must also be dismissed without – prejudice. Because both parties agree that plaintiff cannot currently establish by admissible documentation assignment of the note and therefore may not foreclose on defendants’ mortgage, Zaloom cannot currently establish that Deutsche Bank at any time assumed liability for the actions of non-parties American Brokers Conduit and Cutaia Mortgage Group, Inc.

In accordance with the foregoing, it is hereby

ORDERED that plaintiffs motion brought pursuant to CPLR 32 17(b) for leave to discontinue its application of foreclosure is granted in part and denied in part; and it is further

ORDERED that plaintiffs pleading is dismissed without prejudice as against defendants Ina Zaloom and Martin Seidlin; and it is further

ORDERED that plaintiffs pleading is dismissed with prejudice as against defendant Jungkil Wan; and it is further

ORDERED that the Clerk of the County of New York shall cancel and discharge the Notice of Pendency filed in this action in the Office of the Clerk of the County of New York on the 13* day of April, 2009; and it is further

ORDERED that defendant Ina Zaloom’s cross-motion is denied in its entirety; and it is further

ORDERED that defendant Ina Zaloom’s counterclaim is dismissed without prejudice.

This constitutes the decision and order of the Court.

Dated: New York, New York
June 6,201 1

[ipaper docId=57892898 access_key=key-2at5gl1e1j3oa6xwoqan height=600 width=600 /]

HuffPO-

Deutsche Bank has dropped the son of high-profile foreclosure fraud investigator Lynn Szymoniak from the foreclosure case against her, according to new court documents.

The bank had added Szymoniak’s son, Mark Cullen, to the foreclosure suit this May, a move that many experts saw as an act of retaliation against Szymoniak, who has publicized banks’ widespread use of forged signatures in the foreclosure process to improperly give borrowers the boot. On June 8, lawyers filed a “Notice of Dropping Party” with the Florida court dismissing its previous claims against Cullen.

Continue reading [HUFFINGTONPOST]

CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

NYTimes Gretchen Morgenson–

Opening a new line of inquiry into the problems that have beset the mortgage loan process, two state attorneys general are investigating Wall Street’s bundling of these loans into securities to determine whether they were properly documented and valid.

The investigation is being led by Eric T. Schneiderman, the attorney general of New York, who has teamed with Joseph R. Biden III, his counterpart from Delaware. Their effort centers on the back end of the mortgage assembly lines — where big banks serve as trustees overseeing the securities for investors — according to two people briefed on the inquiry but who were not authorized to speak publicly about it.

continue reading [NYTimes]

Who is Deborah Brignac?

[click link below]

BREAKING: Sarah Palin, Your New AZ Home Robo-Signed… Again, Meet Deborah Brignac

[ipaper docId=57500518 access_key=key-24g66uu6crot12mqdfkb height=600 width=600 /]

UPDATE: Filed 5/31/11; partial pub. cert. & mod. 6/28/11 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
—-

ROBERT HERRERA et al.,
Plaintiffs and Appellants,
v.
DEUTSCHE1 BANK NATIONAL TRUST COMPANY
et al.,
Defendants and Respondents.

EXCERPT:

Defendants also relied on Brignac’s declaration, which declared that the 2003 deed of trust permitted the beneficiary to appoint successor trustees. Brignac, however, did not simply declare the identity of the beneficiary and the new trustee under the 2003 deed of trust. Instead, she declared that an Assignment of Deed of Trust and a Substitution of Trustee were recorded on February 27, 2009. These facts add nothing to the judicially noticed documents; they establish only that the documents were recorded.

Brignac further declared that “[t]he Assignment of Deed of Trust indicates that JPMorgan Bank [sic], successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, transfers all beneficial interest in connection with the [deed of trust] to Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4.” (Italics added.) This declaration is insufficient to show the Bank is the beneficiary under the 2003 deed of trust. A supporting declaration must be made on personal knowledge and “show affirmatively that the affiant is competent to testify to the matters stated.” (Code Civ. Proc., § 437c, subd. (d).) Brignac’s declaration does not affirmatively show that she can competently testify the Bank is the beneficiary under the 2003 deed of trust. At most, her declaration shows she can testify as to what the Assignment of Deed of Trust “indicates.” But the factual contents of the assignment are hearsay and defendants offered no exception to the hearsay rule prior to oral argument to make these factual matters admissible.

At oral argument, defendants contended that the recorded documents were actually business records and admissible under the business record exception. We note that Brignac did not provide any information in her declaration establishing that the sources of the information and the manner and time of preparation were such as to indicate trustworthiness.

….

[ipaper docId=56885717 access_key=key-1rfy00ej1uibn7jeincn height=600 width=600 /]

In re: JAMES L. MACKLIN, Debtor(s).
JAMES L. MACKLIN, Plaintiff(s),
v.
DEUTSCHE BANK NATIONAL TRUST CO., Defendant(s).

Case No. 10-44610-E-7, Adv. Pro. No. 11-2024, Docket Control No. HSB-3.

United States Bankruptcy Court, E.D. California, Sacramento Division.

May 19, 2011.

NOT FOR PUBLICATION

MEMORANDUM DECISION AND OPINION

RONALD H. SARGIS, Bankruptcy Judge

EXCERPTS:

BACKGROUND

Macklin refinanced his Wise Road Property in April 2006 and executed a Note and Deed of Trust in favor of Accredited Home Lenders, Inc. It is alleged in the Complaint that subsequently the Note was transferred to unidentified parities and eventually transferred to Deutsche Bank. Several documents for the substitution of the trustee under the Deed of Trust were recorded, and the Deed of Trust was assigned to Deutsche Bank, as indenture trustee for the 2006-2 Trust. The Note and Deed of Trust transfers are summarized as follows:

a. April 14, 2006: $532,000.00 Note. James Macklin Borrower, Accredited Home Lenders, Inc., Lender. Macklin Exhibit 1, Deutsche Bank Exhibit A.

b. April 28, 2006 (recorded) Deed of Trust. James Macklin Borrower/Trustor, Accredited Home Lenders, Inc. Lender, Financial Title Company Trustee, and Mortgage Electronic Registration Systems, Inc. (“MERS”) Beneficiary solely as the nominee of Lender.

The Deed of Trust states that “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this [Deed of Trust], but, if necessary to comply with law or custom, MERS (as nominee of Lender and Lender’s successors and assigns) has the right to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and cancelling this Security Instrument.” Macklin Exhibit 2.

c. December 8, 2008 (recorded) Notice of Default and Election to Sell under Deed of Trust(dated December 4, 2008). By Windsor Management Co., as agent for MERS. Deutsche Bank Exhibit E.

d. March 10, 2009, 9:31 a.m. (recorded) Substitution of Trustee (dated January 30, 2008, by MERS, notarized March 4, 2009, San Diego, California notary). By MERS, Windsor Management, Co. identified as new trustee under Deed of Trust. Deutsche Bank Exhibit F.

e. March 10, 2009, 9:32 a.m. (recorded) Notice of Trustee’s Sale (dated March 9, 2009). By Windsor Management Co. Deutsche Bank Exhibit G.

f. November 25, 2009 (recorded) Notice of Trustee’s Sale (dated November 12, 2009). By Quality Loan Service Corp. Deutsche Bank Exhibit I.

g. November 25, 2009 (recorded) Substitution of Trustee (dated August 21, 2009, notarized August 21, 2009, Dakota, Minnesota notary). Deutsche Bank, substituting Quality Loan Service Corporation as the trustee under the Deed of Trust. Deutsche Bank Exhibit H.

h. November 30, 2009 (recorded) Assignment of Deed of Trust (dated November 17, 2-[illegible], notarized November 17, 2-[illegible], Salt Lake City, Utah notary) to Deutsche Bank. Deutsche Bank Exhibit J.

i. December 21, 2009 (recorded) Trustee’s Deed Upon Sale. By Quality Loan Service Corporation as grantor/trustee, Deutsche Bank as grantee. Deutsche Bank Exhibit K.

[…]

Civil Code § 2932.5 provides that, where a power of sale for real property is given to a mortgagee or other encumbrancer to secure an obligation, such power of sale may be exercised by the assignee who is entitled to receive payment of the obligation “if the assignment is duly acknowledged and recorded.” If the assignment has not been recorded, then the power cannot be exercised. The application of Civil Code § 2932.5 to all encumbrances, including deeds of trust, works to protect the borrower (trustor), lender (beneficiary), trustee, purchaser at a foreclosure sale, and subsequent owners of the property. Before persons purport to take action and exercise rights under a Deed of Trust, the assignment documenting the acquisition of those rights is recorded with the county recorder. This results in the real property records clearly and unambiguously stating who held the rights and who asserted the rights. This minimizes title disputes years later as to whether a notice of default or notice of sale was given by a properly authorized party and whether the purported sale under the Deed of Trust is void. This imposes the minimalist of burdens on the beneficiary acquiring a Note secured by a Deed of Trust — recording the notice of assignment before purporting to change the trustee or authorize a foreclosure.

In the present case, Macklin and Deutsche Bank have demonstrated that the recording of the assignment of the Deed of Trust post-dated Deutsche Bank recording documents purporting to change the trustee to Windsor Management and then Windsor Management purporting to give a notice of sale. Though there are only days by which Deutsche Bank, 2006-2 failed to record the assignment of the trust deed, a record has been created that someone not of record title purported to take action on a Deed of Trust prior to compliance with Civil Code § 2932.5. Issues of title and the record upon which future generations of owners will reply cannot be subject to a would-you-believe-I-missed-it-by-that-much implied waiver of this statutory requirement.

Macklin has shown a likelihood of prevailing on the issue of the purported foreclosure sale not having been properly conducted, thereby resulting in a void deed. The court issues the preliminary injunction on this ground.

….

[ipaper docId=56884200 access_key=key-21h50n851fv353ws8nln height=600 width=600 /]

Just last week Chicago AG Lisa Madigan announced she was probing them as well. Note: some mistakenly say “National” instead of “Nationwide” below…

NY POST-

Indeed, New York State Attorney General Eric Schneiderman recently said that his office is probing mortgage processing firm Lender Processing Services and National Title Clearing.

Schneiderman also launched a probe into the mortgage securitization practices of major investment banks Goldman Sachs, Morgan Stanley, Deutsche Bank and UBS.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

MARCO VILLALOBOS & ANGELA
YBARRA, a marital community,
Plaintiffs,

v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY, BARCLAYS CAPITAL REAL
ESTATE, INC., et al.,
Defendants.

EXCERPTS:

B. Substantive Claims

Plaintiffs’ claims which sound in the Washington State Consumer Protection Act survive. Plaintiffs have successfully alleged that certain named defendants committed unfair deceptive acts and that these acts have injured their property interest in their home. See Guijosa, 32 P.3d at 255 (listing elements). It goes without saying that such acts have the potential to adversely affect the public interest: The banking defendants allegedly securitized more than three billion dollars of mortgages initiated by Defendant WMC Mortgage alone. The allegedly wrongful acts were therefore “part of a pattern or generalized course of conduct,” and had the potential “to affect many different customers.” See Hangman Ridge, 719 P.2d at 537–38.

Plaintiffs claims which sound in the common law of fraud also survive. Plaintiffs allege that certain named defendants misrepresented terms such as the interest rate and term of their mortgage loans. (Second Amended Complaint 13–16 (Dkt. No. 45)). Plaintiffs further allege that defendants fraudulently charged them for brokerage fees to which they were unentitled, and that the defendants listed these fees as “final settlement fees” on federal disclosure forms. (Id. 15). A reasonable person would consider such key terms to be “material,” and a reasonable person would be entitled to rely on the representations of individuals who hold themselves out as mortgage professionals. See Beckendorf, 457 P.2d at 606–07 (listing the elements of fraud).

C. Theories of Liability

However one wishes to describe the allegedly wrongful participation of Defendant Barclays Capital and Defendant Deutsche Bank—whether sounding in civil conspiracy, aiding and abetting, or joint venture—the analysis is essentially the same: Plaintiffs have successfully alleged that the banking defendants knowingly participated in a scheme to defraud borrowers. To support these allegations, Plaintiffs rely on a letter from the Office of the Comptroller of the Currency and fraudulent misstatements in the loan documents that the banking defendants received. Because a plaintiff may rely upon circumstantial evidence to support each of the proffered theories of liability, see, e.g., Gilbrook, 177 F.3d at 856 (civil conspiracy), Refrigeration Engineering, 486 P.2d at 311 (joint venture), and because Plaintiffs have submitted circumstantial evidence tending to indicate that the banking defendants knowingly participated in a scheme to defraud, their claims survive.

Continue below…

[ipaper docId=56413876 access_key=key-1z7aeu3i1iamu5scg4x0 height=600 width=600 /]

Bloomberg-

JPMorgan Chase & Co., UBS AG and Deutsche Bank AG are being probed in an expanded investigation by New York Attorney General Eric Schneiderman into mortgage securitization, according to a person familiar with the matter.

Four bond insurers also were subpoenaed: Ambac Financial Group Inc., MBIA Inc., Syncora Holdings Ltd. and Assured Guaranty Ltd., according to the person, who couldn’t be identified because the probe isn’t public.

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