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

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


Remember Michele Sjolander? Well, you can read about her in MERS, Endorsed Note Get SLAMMED by Kings County NY Supreme Court | BANK of NEW YORK v. ALDERAZI

As well as in ARIZONA BK COURT ORDERS BONY MELLON TO PRODUCE ORIGINAL CUSTODIAN DOCUMENTS

and finally in the FULL DEPOSITION OF BANK OF AMERICA ROBO SIGNER RENEE D. HERTZLER

Fresh off the depo wagon comes her Full Deposition courtesy of 4closurefraud.

Excerpts:

Q It’s employees at Recontrust that stamp the
7 endorsements on the notes in general, including this one;
8 is that right?
9 A Yes.
10 Q And you’ve seen that taking place?
11 A Yes.
12 Q In Simi Valley?
13 A Yes.
14 Q Is there some type of manual or set of
15 instructions?
16 A They have my power of attorney.
17 Q Well, okay. That’s not what I’m asking. But I
18 do want to know about that. But what I’m saying: Is
19 there some sort of manual or instructions or –
20 A If you want to know the desk procedures, you
21 would have to speak with an associate of Recontrust.
22 Q Okay. Okay. Sorry. I’m just reading the notes
23 again. Now, I’m going to try to explain this. I may
24 have to do it a couple of times, but just bear with me.
25 And you’ve been very helpful so far. I appreciate it,
1 there it sat is I guess what I’m asking.
2 A In safekeeping, yes.
3 Q Okay. All right. Now, this is something you
4 touched on a minute ago. I’m going to try to phrase it
5 in a way that makes sense. Who — and let’s just deal
6 with Countrywide in 2007.
7 Who is allowed to be an endorser as you were? I
8 mean, who — let me leave it at that and see if that
9 makes sense to you.
10 A I don’t know what you’re asking.
11 Q What I’m saying is: Are there people other than
12 you at Countrywide in 2007 whose names would appear on a
13 note as an endorsement?
14 A For Countrywide Home Loans, Inc.?
15 Q Yes.
16 A In 2007, I was the endorser for Countrywide Home
17 Loans, Inc.
18 Q Okay. And, I mean, can you explain why you, in
19 particular? I mean, how is that established?
20 A Just lucky.
21 Q I mean, I know this is going to sound silly, but
22 was there some competition for it? Did they come to you
23 and say, “Ms. Sjolander, we choose you?” I mean, how did
24 you come to be designated the person?
25 A It is the position I held within Countrywide.
1 Q Okay. And did you know that going in; you know,
2 if you take this job, you’re going to be the endorser?
3 Was that explained to you at some point?
4 A I knew that my previous boss was the endorser,
5 yes.
6 Q Oh, okay. Now, we covered this, that other
7 people stamped your signature and the other — her name
8 is — oh, it’s Laurie Meder?
9 A Meder.
10 Q Okay. So other people have a stamp with her
11 name and your name on it, and how do those people have
12 the authority to put her name and your name on a note for
13 it to be an effective endorsement?
14 A With my name, they have a power of attorney.
15 Q And what does the power of attorney say?
16 A The power of attorney allows them to place my
17 endorsement stamp on collateral.
18 Q How do they come to have your power of attorney?
19 A I gave that to them.
20 Q But, I mean, in what sort of process? You know,
21 how does someone at Recontrust — I mean, I understand
22 that a power of attorney document exists, I’m assuming;
23 correct?
24 A Yes.
25 Q And how do those people come to operate under
1 it?
2 A It’s common, standard practice.
3 Q I may not be asking it quite right. I guess
4 what I’m asking is: Do they — the people who actually
5 use the stamps — is there more than one, or is there
6 just one stamp? I said “stamps” multiple. Is there only
7 one, or is there –
8 A No, there’s multiple stamps.
9 Q So do these people sign something that says, “I
10 understand I’m under Michele Sjolander’s power of
11 attorney”?
12 A Once again, you would have to look at the desk
13 procedures for Recontrust, and you would have to talk to
14 someone at Recontrust.
15 Q So that’s your understanding that you — did you
16 sign a power of attorney document?
17 A Yes, I did.
18 Q And, I mean, can you explain just in — you
19 know, in general, not word for word what it says, but
20 what does it purport to grant as power of attorney?
21 A It grants Recontrust. They can endorse and
22 assign notes on behalf of myself.
23 Q And do you know if this applies to a select
24 group of people?
25 A I do not have — I would have to read the
1 document.
2 Q Okay. But just to clarify, once again, you
3 don’t actually know the legal mechanism by which these
4 people with the stamps operate under this power of
5 attorney?
6 A As I said, I would have to go back through all
7 of the documentation that surrounds the power of
8 attorney, and Recontrust has desk procedures, and it
9 would be their procedures for them to assign that, to
10 place the stamp on the collateral.
11 Q And this was a procedure in 2007, what we’re
12 talking here is 2007?
13 A Correct.
14 Q And to the present?
15 A No.

<SNIP>

4 Q All of it, okay. Let’s see. Now, you mentioned
5 documents that you had reviewed. The AS-400, that’s a —
6 can you just refresh my memory? What was that again?
7 A A servicing system.
8 Q A servicing system, okay. Now, when you looked
9 over these records and documents before that you
10 mentioned before, where were you when you looked at
11 those?
12 A Simi Valley.
13 Q Simi Valley. And where were the documents that
14 you were looking at?
15 A At that time, they were brought into my office.
16 Q Do you have any idea where they were brought
17 from?
18 A They were printed off the system.
19 Q Printed off the system.
20 A From one of my associates.
21 Q Is that a computer system?
22 A As I said, the collateral tracking is printed
23 off the AS-400, which is our servicing system. The
24 investor number commitment was printed off — it’s a
25 web-based application from secondary marketing. It’s
1 printed off of that. The note was printed off of our
2 imaging system. And I think in this case I asked for a
3 copy of the note showing the endorsements, because in our
4 imaging system it does not — the note is actually imaged
5 prior to my endorsement stamp being in place. So I had
6 my associate contact the bank, which is Recontrust, to
7 get a copy of the original note to show my endorsement
8 stamps, because in imaging it is not shown.
9 Q So if a copy is made of a note that you got from
10 Recontrust, it doesn’t have an endorsement? Is that what
11 you’re saying?
12 A From our bank, it does. In our imaging system,
13 it does not. The note is imaged prior to an
14 endorsement — in ’07, the note is imaged prior to an
15 endorsement being placed on the note. So if you look in
16 our imaging system, you wouldn’t see the chain of title
17 of endorsement.
18 Q And where would you see that?
19 A On the original note.
20 Q Which is — which is where?
21 A In this case, it was in the Fannie Mae vault in
22 Simi Valley, California.
23 Q We’ll come back to the Fannie Mae vault. Okay.
24 So they’re printed off in AS-400 imaging system.
25 A AS-400 and the imaging system are two different
systems.
2 Q Oh, you said AS-400 is a servicing software
3 platform of some type?
4 A Yes.
5 Q And the imaging system, what — can you describe
6 that?
7 A It’s a —
8 Q You know —
9 A It’s when all of the collateral documents and
10 credit file documents are imaged after the closing of a
11 loan, and they are put in our imaging system, and we can
12 go into the system by loan number and pull up the
13 documentation of a loan —
14 Q I guess —
15 A — if you have access to the system.
16 Q But imaging, I mean, I’m imagining a scanner of
17 some sort. Is that what it is?
18 A It is not my area. I cannot tell you.

continue below…

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Prof. Levitin | About Those Notes…Evidence of Securitization Fail

Prof. Levitin | About Those Notes…Evidence of Securitization Fail


You’re either pregnant or you ain’t. Can’t be both!

Credit Slips-

Since last October, shortly after the robosigning scandal broke, I’ve been talking until I turned blue in the face about robosigning being the tip of the iceberg with mortgage problems and that the real issue was chain of title. Robosigning appeared to be an almost unexpected deposition by-product; the real goal in the depositions that uncovered the robosigning was exposing the backdating of mortgage endorsement. And that they did–the notaries’ whose seals were on the documents didn’t have their commissions when the assignments supposedly took place.

But why would anyone bother backdating mortgage assignments? …


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Fortune Confirms Pervasive Defects in Bank of America Mortgage Documents

Fortune Confirms Pervasive Defects in Bank of America Mortgage Documents


Naked Capitalism-

Do you remember the brouhaha over testimony by a senior executive in Countrywide’s mortgage servicing unit last year? It called into question whether mortgages had been conveyed properly to securitizations, which in turn would impair Bank of America’s ability to foreclose.

Let me refresh your memory. As we wrote last year:

Testimony in a New Jersey bankruptcy court case provides proof of the scenario we’ve depicted on this blog since September, namely, that subprime originators, starting sometime in the 2004-2005 timeframe, if not earlier, stopped conveying note (the borrower IOU) to mortgage securitization trust as stipulated in the pooling and servicing agreement….

As we indicated back in September, it appeared that Countrywide, and likely many other subprime orignators quit conveying the notes to the securitization trusts sometime in the 2004-2005 time frame. Yet bizarrely, they did not change the pooling and servicing agreements to reflect what appears to be a change in industry practice. Our evidence of this change was strictly anecdotal; this bankruptcy court filing, posted at StopForeclosureFraud provides the first bit of concrete proof. The key section:

As to the location of the note, Ms. DeMartini testified that to her knowledge, the original note never left the possession of Countrywide, and that the original note appears to have been transferred to Countrywide’s foreclosure unit, as evidenced by internal FedEx tracking numbers. She also confirmed that the new allonge had not been attached or otherwise affIXed to the note. She testified further that it was customary for Countrywide to maintain possession of the original note and related loan documents.

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At Bank of America, more incomplete mortgage docs raise more questions

At Bank of America, more incomplete mortgage docs raise more questions


Abigail Field-

Fortune examined hundreds of foreclosure documents to determine the validity of mortgage securitizations after Bank of America debunked testimony about them last fall. The results raise more questions than they answer.

Are Countrywide mortgage-backed securities really mortgage-backed? Do banks even have the legal right to foreclose on certain homes?


Check out the related posts below …

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MERS, Endorsed Note Get SLAMMED by Kings County NY Supreme Court | BANK of NEW YORK v. ALDERAZI

MERS, Endorsed Note Get SLAMMED by Kings County NY Supreme Court | BANK of NEW YORK v. ALDERAZI


Decided on April 11, 2011

Supreme Court, Kings County

The Bank of New York, as Trustee for the Benefit of the Certificateholders, CWABS, Inc., Asset Backed Certificates, Series 2007-2, Plaintiff,

against

Sameeh Alderazi, Bank of America, NA, New York City Environmental Control Board, new York City Parking Violations Bureau, New York City Transit Adjudication Bureau, and “John Doe No.1” through “John Doe #10”, Defendants.

21739/2008

Plaintiff Attorney
Hiscock & Barclay
1100 M & T Center
3 Fountain Plaza
Buffalo, New York 14203-1486
Charles C. Martorana, Esq.

Plaintiff Former Attorney –
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP
20 West Main Street
Bayshore, New York 11706 (631) 969-3100
Todd Falasco, Esq.

Wayne P. Saitta, J.

The Plaintiff renews its motion for an appointment of a referee in the underlying foreclosure action.

Upon reading the Notice of Motion and Affirmation of Charles C. Martorana Esq., of counsel to Hiscock and Barclay, LLP attorneys for Plaintiff, dated September 28 2010, and the exhibits annexed thereto; the Affirmation of Charles C. Martorana Esq., dated January 7, 2011; the Affirmation of Todd Falasco Esq., of counsel to Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP,. Former attorneys for Plaintiff and the exhibits annexed thereto; the Affidavit of Jonathan Hyman sworn to February 10, 2011, and the exhibits annexed thereto; and upon all the proceedings heretofore had herein, and after hearing oral argument by Plaintiff’s counsel on March 3, 2011, and after due deliberation thereon, the motion is denied for the reasons set forth below.

The underlying action is a residential foreclosure action on a property located at 639 East 91st St. In Brooklyn. Plaintiff’s original application for the appointment of a referee to compute was denied by order of this court dated April 19, 2010. The Court denied the application because the Plaintiff, could not demonstrate that the original mortgagee, Countrywide Home Loans Inc., (doing business as America’s Wholesale Lender), had authorized the assignment of the mortgage to the Plaintiff.

The assignment to Plaintiff was executed by Mortgage Electronic Reporting System (MERS) as nominee for America’s Wholesale Lender.

Black’s Law Dictionary defines a nominee as “[a] person designated to act in place of another, usually in a very limited way”.

In its Memoranda to its original motion , Plaintiff quoted the Court in Schuh Trading Co., v. Commissioner of Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), which defined a nominee as follows:

The word nominee ordinarily indicates one designated to act for another as his representative in a rather limited sense. It is used sometimes to signify an agent or trustee. It has no connotation, however, other than that of acting for another, or as the grantee of another.. Id. ( Emphasis added).

An assignment by an agent without authority from the principal is a nullity. Plaintiff failed to provide any evidence that Countrywide had authorized MERS to assign its mortgage to Plaintiff. The Court denied the application with leave to renew upon a showing that Countrywide had authorized MERS to assign its mortgage to Plaintiff.

Plaintiff has again moved for an order of reference, and submitted in addition to the MERS assignment, what it purports to be an endorsed note and a corporate resolution of MERS showing that MERS had appointed all officers of Countrywide Financial Corporation as assistant secretaries and vice presidents of MERS.

This present motion must fail for the same reason as the prior motion as Plaintiff has failed to provide documentation from the lender that it authorized the assignment.

[*2]The Endorsed Note Plaintiff submits an affidavit from Sharon Mason, a vice president of BAC Home Loan Servicing LP (BAC), a servicer of the loan, in which she asserts, based upon Plaintiff’s, books and records, that at the time the action was commenced the original note bearing the endorsement of Countrywide was in Plaintiff’s possession.

Plaintiff also submits an affidavit from Jonathan Hyman, an officer of BAC, based on BAC’s records. Hyman asserts in his affidavit that the mortgage was assigned to Bank of New York and that “the original note was delivered and endorsed to the plaintiff with endorsement in the name of the plaintiff.” Hyman appends to his affidavit a copy of what purports to be an endorsed note.

The note contains a stamped endorsement which states, “Pay to the Order of * * without recourse Countrywide Home Loans Inc., A New York Corporation Doing Business As America’s Wholesale Lender By: Michele Sjolander Executive Vice President”. Under the stamp is handwritten ” * * The Bank of New York, as Trustee for the Benefit of the Certificate, CWABS, Inc. Asset Backed Certificates, Series 2007-2″. The endorsement is undated.

However, the note that was appended to the summons and complaint filed in court on July 25, 2008 does not bear any endorsement. Plaintiff has offered no explanation, from anyone with knowledge, as to why, had the note had been endorsed and in its possession when it commenced the suit, that the note filed when the suit was commenced did not bear an endorsement.

Significantly, counsel for Plaintiff stated in oral argument before the Court on March 3 2011 that “There is nobody left to speak at to Countrywide”.

The affidavits of Hyman and Mason, which were based on the books and records of the plaintiff and BAC, are insufficient to establish ownership of the note in light of the fact that the note originally submitted bore no endorsement, and the fact that purported endorsement is undated. The affidavits are based on books and records, not on personal knowledge. Yet the affiants did not produce any of the records on which they based their assertion that Plaintiff possessed an endorsed note at the time the action was commenced.

The Mortgage Assignment

In his affidavit Hyman also asserts that, Keri Selman, the person who signed the assignment, served as an officer of both Countrywide and MERS. He appended a copy of a MERS corporate resolution which appointed all officers of Countrywide Financial Corporation as assistant secretaries and vice presidents of MERS.

Even putting aside the fact that there is no evidence that Countrywide Financial Corporation and Countrywide Home Loans Inc., are the same entity, the fact that MERS authorized Countrywide officers to act on its behalf, is not evidence of the converse. It is no evidence that Countrywide authorized MERS officers to act as officers of Countrywide. Further, the fact that Selman may have been an officer of both Countrywide and MERS does not alter the fact that she executed the assignment on behalf of MERS.

The face of the assignment indicates that MERS is assigning the mortgage as nominee of America’s Wholesale Lender (a trade name of Countrywide), and more [*3]importantly that Selman executed the assignment as assistant vice president of MERS.

Hyman’s assertion that the assignment incorrectly lists Selman’s title as assistant vice president of MERS, instead of assistant secretary and vice president of MERS, is of no relevance other than to demonstrate the casual and cavalier manner in which these transactions have been conducted.

While Hyman further asserts in his affidavit that Selman “under her authority as an Assistant Secretary and Vice president of MERS, expedited the Assignment of Mortgage process on behalf of MERS, with the approval and for the benefit of Countrywide,” he provides no evidence that Countrywide in fact approved or authorized the assignment.

Similarly, William C. Hultman, Secretary and Treasurer of MERS, states in a conclusory fashion in paragraph 8 of his affidavit that Countrywide “instructed MERS to assign the Mortgage to Bank of New York” without offering the basis for that assertion, other than it role as nominee.

Plaintiff claims, that by the terms of the mortgage MERS as nominee, was granted the right “(A) to exercise any or all of those rights, including, but not limited to the right to foreclose and sell the Property, and (B) to take any action required of the Lender including, but not limited to, releasing and canceling this Security Instrument.” However, this language is found on page two of the mortgage under the section “BORROWER’S TRANSFER TO LENDER OF RIGHTS IN THE PROPERTY” and therefore is facially an acknowledgment by the borrower. The fact that the borrower acknowledged and consented to MERS acting as nominee of the lender has no bearing on what specific powers and authority the lender granted MERS as nominee. The problem is not whether the borrower can object to the assignees’ standing, but whether the original lender, who is not before the Court, actually transferred its rights to the Plaintiff.

Furthermore, while the mortgage grants some rights to MERS it does not grant MERS the specific right to assign the mortgage. The only specific rights enumerated in the mortgage are the right to foreclose and sell the Property. The general language “to take any action required of the Lender including, but not limited to, releasing and canceling this Security Instrument” is not sufficient to give the nominee authority to alienate or assign a mortgage without getting the mortgagee’s explicit authority for the particular assignment.

The MERS Agreement

Plaintiff also argues that the agreement between MERs and its members grants MERS the authority to assign the mortgages of its members. However a reading of the MERS agreement reveals only that MERS can execute assignments on behalf of its members when directed to do so by the member or its servicer.

Plaintiff cites Rules of MERS membership, Rule 2 section 5. However what that rule requires is that a member to warrant to MERS that the mortgage either names MERS as mortgagee or that they prepare an assignment of mortgage naming MERs as mortgagee.

In this case MERS was named in paragraph (c) of the mortgage as Mortgagee of record for the purpose of recording the mortgage. Being the mortgagee of record for the [*4]purpose of recording the mortgage does not confer the right to assign the mortgage absent an instruction to do so from the lender. Paragraph 2 of the MERS terms and conditions provide that “MERS shall serve as mortgagee of record with respect to all such mortgage loans solely as a nominee in an administrative capacity”, and that “MERS agrees not to assert any rights (other than rights specified in the governing documents) with respect to such mortgage loans or mortgaged properties”. Assigning or alienating a mortgage without an explicit instruction from a lender to do so, is not acting in an administrative capacity.

Further, paragraph 6 of the terms and conditions provides that, “the MERS system is not a vehicle for creating or transferring beneficial interests in mortgage loans.” (emphasis added)

Lastly, Section 6 of the MERS agreement provides that MERS shall comply with the instructions from the holder of the notes and that in the absence of instructions from the holder may rely on instructions from the servicer with respect to transfers of beneficial ownership.

What the MERS agreements and terms and conditions provide, is that MERS may execute an assignment when instructed to do so by the lender or its servicer. This is nothing

more than saying that if granted authority by the lender, or its agent, to assign a mortgage, MERs can assign the mortgage on behalf of the lender.

To read the MERS agreement as granting MERS authority to assign any of the mortgages of its thousands of members, on its own volition, without the instruction or consent of the member would lead to a nonsensical result.

Plaintiff has failed to meet the very basic requirement that proof of an agent’s authority must be shown from the mouth of the principal not from the agent. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing Corp., 122 AD2d 25, 504 N.Y.S.2d 192 (2nd Dept 1986), Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 N.Y.S.2d 744 (2nd Dept 1985).

As Plaintiff has not shown that it owned the note and mortgage, it has no standing to maintain this foreclosure action. Therefore the renewed motion for an order of reference must be denied and the action dismissed.

The Court has raised the standing issue sua sponte because, in this case, it goes to the integrity of the entire proceeding. For the court to allow a purported assignee to foreclose, in the absence of some proof that the original lender authorized the assignment of the mortgage to them, would cast doubt upon the validity of the title of any subsequent purchasers, should the original lender or successor challenge the assignment at a future date.

WHEREFORE it is hereby Ordered that Plaintiff’s motion for an Order of Reference is denied and the action is dismissed. This constitutes the decision and order of the Court.

[*5]

J.S.C.

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

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


Deutsche Bank National Trust Company, Plaintiff,

against

Auditya S. Ramotar, et al., Defendants.

1730/2009

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

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

Charles J. Markey, J.

Excerpt:

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

[…]

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

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

Continue below…

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[NYSC] NY JUDGE DENIES 42 FORECLOSURE CASES “HAMP, AFFIDAVIT” ISSUES

[NYSC] NY JUDGE DENIES 42 FORECLOSURE CASES “HAMP, AFFIDAVIT” ISSUES


EXCERPT:

In submitting any future orders of reference said application shall include an affidavit from plaintiff indicating whether this loan is subject to a H.A.M.P. review and whether plaintiff is or is not prevented from proceeding with the instant foreclosure by reason of any applicable federal H.A.M.P. directives.

Read each below as some are worded differently…

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FULL DEPOSITION TRANSCRIPT OF COUNTRYWIDE BOfA LINDA DiMARTINI

FULL DEPOSITION TRANSCRIPT OF COUNTRYWIDE BOfA LINDA DiMARTINI


EXCERPTS:

Q So the original —
5 A — and I’ve been to her office.
6 Q — the original was located in your office?
7 A Yes.
8 Q Where’s your office located?
9 A Simi Valley, California.
10 Q And has the original of this allonge remained in your
11 office until you appeared here today?
12 A We had sent it on to — to our attorneys. They were in
13 possession of it.
14 Q And again, who do you believe is the holder of the note
15 and mortgage here?
16 A Well, Countrywide — Bank of America — whatever we’re
17 calling ourselves these days, we are Bank of America now — we
18 originated this loan. It was originated via a broker and it’s
19 really always been a Countrywide loan. The investor is Bank
20 of New York. We are the servicer of the loan.
21 Q Now, when you say it’s really a Countrywide loan, wasn’t
22 it sold? Wasn’t this loan securitized and ultimately sold —
23 sold to this trust?
24 A Right, it would have been securitized and sold. They are
25 the investors of the loan. But we are the ones that would

<SNIP>

9 A Who is in possession of the note? We have the note in our
10 origination file.
11 Q So — so Bank of New York as trustee does not hold the
12 note, is that correct, or is not in possession of the note?
13 A The original note to my knowledge is in the origination
14 file.
15 Q Where is the — do you have it here today?
16 A No, I don’t have it with me here today.
17 Q So you don’t have the note?
18 A It’s in our office.
19 Q So it’s in your office, it’s not with this trust that owns
20 the — that’s supposedly holds the — or is the owner of this
21 note, is that correct?
22 A That’s correct.
23 Q And your testimony is that this allonge was never
24 submitted to — it was never in the possession of Bank of New
25 York as trustee for the certificate holder, is that correct?

<SNIP>

9 Q And this allonge, it’s a stand-alone document, correct?
10 It’s not attached to anything, is that correct?
11 A I’m not sure I’m understanding your question.
12 Q Was there anything — when you brought the original that’s
13 in front of you, did you remove it? Was it stapled to
14 something else?
15 A No, it wouldn’t have necessarily been stapled to something
16 else. There would have probably been other documents showing
17 the — you know, we would have shown her the note. We would
18 have reviewed all of that before.

Continue Below…

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[MUST READ] FULL TRANSCRIPT OF KEMP v. COUNTRYWIDE

[MUST READ] FULL TRANSCRIPT OF KEMP v. COUNTRYWIDE


EXCERPT:

THE COURT: All right. I have the supplemental and
12 second supplemental submissions of Countrywide and the reply.
13 Mr. Kaplan, I look to you first. I am, frankly, appalled at
14 the confusion and lack of credibility of Countrywide’s
15 response to the issue of the note — the possession of the
16 note.
17 We started out with Ms. DeMartini’s testimony that
18 the note never leaves the servicer. She says that she saw a
19 Federal Express receipt whereby the actual note, the physical,
20 original note was transferred to the Foreclosure Department
21 internally in the same building, but that the note had not yet
22 been located. That’s where we stood at that point.
23 Then we had a submission, the supplemental
24 submission saying the original note has been found and can be
25 available for inspection. It doesn’t say where it was found,

1 who had possession or the like, but it was found and is
2 available for inspection.
3 And then without any explanation, there is a lost
4 note affidavit presented dated February of 2007 indicating
5 that the note cannot be found. No explanation provided. What
6 do I do with that, Mr. Kaplan?

<SNIP>

THE COURT: It’s amazing how sloppy this
2 presentation was, and I’m very disappointed about that.
3 Anyway — all right. Well, thank you, Mr. Kaplan. Do you
4 want to present testimony? Does it matter, you know, because
5 there is no testimony regarding possession by Bank of New York
6 as Trustee, correct?

7 MR. KAPLAN: That’s correct, Your Honor. I’m not
8 disputing that. That’s what Ms. DeMartini testified to, that
9 the note — she had no record of this note leaving and going
10 across country, across wherever, to Bank of New York.

11 THE COURT: And you do understand as well that the
12 Pooling and Servicing Agreement requires that transfer, that
13 physical transfer of the note in accordance with — and
14 endorsement — in accordance with UCC requirements?
15 MR. KAPLAN: I understand that, Your Honor. I’ll
16 simply say for the sake of edification, but this is — and I
17 was told it was all e-filed — this is apparently the index to
18 this Master Servicing Agreement showing all the loans and it
19 does reference the Kemp loan. It’s a double-side document,
20 includes all the loans.
21 And I can say that, although Your Honor is right and
22 the UCC and the Master Servicing Agreement apparently requires
23 that, procedure seems to indicate that they don’t physically
24 move documents from place to place because of the fear of loss
25 and the trouble involved and the people handling them. They

basically execute the necessary documents and retain them as
2 long as servicing’s retained. The documents only leave when
3 servicing is released.
4 THE COURT: They take their chances.
5 MR. KAPLAN: I understand, Your Honor.
6 THE COURT: Understood. Thank you.
7 Counsel, the proof of claim was filed — let’s see
8 — it was filed by Countrywide Home Loans, Inc., servicer for
9 Bank of New York — now, that’s wrong. We understand that.
10 Can the — can these problems be corrected post-petition? In
11 other words, we know that claims can be transferred post12
petition.
13 What about if the note, the original note now that
14 has seemingly appeared, is now transferred to the Bank of New
15 York as Trustee and amended, it wouldn’t have to — well, it
16 would be amended to reflect that Countrywide Home Loans, Inc.,
17 is not the right party, but Countrywide Home Loans, Master
18 Servicing or servicing whatever that name is, as servicer for
19 Bank of New York, Trustee, is filing this proof of claim,
20 what’s wrong with that?

FULL DEPOSITION TRANSCRIPT OF KEMP v. COUNTRYWIDE

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[NYSC] MODIFICATION GONE WILD! BAC Home Loans Servicing v Westervelt

[NYSC] MODIFICATION GONE WILD! BAC Home Loans Servicing v Westervelt


BAC Home Loans Servicing v Westervelt
2010 NY Slip Op 51992(U)
Decided on November 18, 2010
Supreme Court, Dutchess County
Pagones, J.

LISA GORDON, ESQ.
FRANKEL LAMBERT, WEISS,
WEISMAN & GORDON, LLP
Attorneys for Plaintiff
20 West Main Street
Bay Shore, New York 11706

Excerpt:

Not surprisingly, in the wake of this new legislation, decisions are beginning to emerge in which the courts are finding that the banks have engaged in discriminatory, unconscionable, and onerous lending practices and are now negotiating settlements of these oppressive loans in bad faith. In particular, one court, upon finding that the bank’s conduct “has been and is inequitable, unconscionable, vexatious and opprobrious,” vacated the judgment of foreclosure and canceled [*5]the entire mortgage obligation (see IndyMac Bank v Yano-Horoski, 26 Misc 3d 717 [Sup. Ct, Suffolk County 2009]) and in another case, upon finding that the bank’s conduct was “shockingly inequitable” and in bad faith, the same court forever barred the bank from collecting claimed interest accrued on the loan from the date of default and any claimed legal fees and expenses; fixed the mortgage obligation to be no more than the principal balance, and awarded exemplary damages in the amount of $100,000 (see Emigrant Mtge. Co., Inc. v Corcione, NYLJ, Apr. 21, 2010, at 25 col 3 [Sup. Ct, Suffolk County, Spinner, J.). In another case, the court fashioned an equitable remedy when the parties reach an impasse in settlement negotiations. The bank had agreed to a modification lowering the mortgage payment to $3,000 per month, but the homeowners sought to pay $2,000 per month. The court, concerned with “discriminatory lending practices” and the fact that “the mortgage was granted to a minority buyer for the purchase of property in a minority area” which would eventually call for an interest rate exceeding 9%, found a rebuttable presumption of discriminatory lending practice and froze the interest rate at a maximum of 9%. In addition, the court ordered the homeowners to make a deposit into the court of $10,000 to avoid foreclosure and ordered the parties to split the $1,000 difference in the mortgage payment gap (see Aames, supra).

Accordingly, the court, sua sponte, finds that the Bank has not acted in good faith in negotiating a settlement with this homeowner. Indeed, the homeowner’s representation that plaintiff inexplicably refused to re-examine her income – which the bank must do under HAMP directives – stands uncontradicted. Further, in the face of counsel’s inadequate excuse for defaulting in appearance and failing to follow up with the court attorney referee, counsel still categorically refuses to comply with the spirit of the statute and work towards a modification with this homeowner, even though the homeowner earns income to sustain a modified payment. This court is hard-pressed to comprehend why plaintiff would rather seize the property in foreclosure than work out a loan modification, as required by statute, with a homeowner who is gainfully employed.

The Bank elected to pursue an equitable remedy (see Bieber v Goldberg, 133 App Div 207, 210 [2d Dep’t 1909]; see also IndyMac, supra]), and “the very commencement of this action by Plaintiff invokes the Court’s equity jurisdiction” (IndyMac, supra, 26 Misc 3d at 723). In addition, the court seeks to ensure that the primary statutory goal of keeping homeowners in their homes (see CPLR R3408[a]) and the concomitant obligation of ensuring that the parties act in good faith (see 22 NYCRR 202.12-a(c)(4) are met. Toward that end, this court has the power to impose an equitable remedy commensurate with the Bank’s bad faith regarding this loan modification (see e.g. Aaems Funding Corp., supra; IndyMac, supra; M & T Mtge. Corp. v Foy, 20 Misc 3d 274 [Sup. Ct, Kings County 2008]).

Based on the foregoing, it is hereby

ORDERED that the law firm of Frankel Lambert, Weiss, Weisman & Gordon, LLP shall appear at a hearing to be scheduled to show cause why it should not be sanctioned in an amount to be determined by the court pursuant to 22 NYCRR §130-2.1; and it is further

ORDERED that plaintiff is barred from collecting any arrears incurred from October 8, 2010 (the date the homeowner received the HAMP denial) until the date the homeowner is given a final determination on her loan modification application, after review and determination of all possible modifications for which the homeowner may be eligible and the case is released from [*6]the settlement part;

ORDERED that plaintiff is barred from collecting any interest incurred from October 8, 2010 until the date of a final loan modification determination and the case is released from the settlement part; and it is further

ORDERED that any unpaid late fees are waived from October 8, 2010; and it is further

ORDERED that any loan modification fees are to be either waived or refunded to the homeowner; and it is further;

ORDERED that any attorneys’ fees claimed to have been incurred from the date of the default until the date of this order are not to be included in the calculation of the homeowners’ modified mortgage payment or otherwise imposed on the homeowners, but, rather, any request for attorneys fees is hereby severed and to be submitted to the court for separate, independent review as to their reasonableness; and it is further

ORDERED that the parties appear for a further conference in the Foreclosure Settlement Part of the Dutchess County Supreme Court, 10 Market Street, Poughkeepsie, New York on December 20, 2010 at 12 p.m.; and it is further

ORDERED that a bank representative fully familiar with the file and with full authority to settle the matter appear at the next conference, and it is further

ORDERED that Frankel Lambert, Weiss, Weisman & Gordon, LLP is directed to appear at the next conference by either a member of the firm or an associate of the firm. Local Counsel may not appear at this conference. Appearing counsel must be fully authorized to dispose of the case as required by statute (see CPLR 3408[c]).

Adjournments are only granted with leave of court.

Failure of plaintiff to comply with this order may result in further sanctions, including discharge of the underlying mortgage obligation, exemplary damages and loss of the privilege of appearing by local counsel in all foreclosure settlement conferences conducted in Dutchess County.

This constitutes the decision and order of the court.

BAC Home Loans Servicing v WESTERVELT

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EXPLOSIVE |CASE FILE New Jersey Admissions In Testimony NOTES NEVER SENT to Trusts KEMP v. Countrywide

EXPLOSIVE |CASE FILE New Jersey Admissions In Testimony NOTES NEVER SENT to Trusts KEMP v. Countrywide


Mark my words …this is one you’re going to hear of over and over again. It’s beginning to appear … what we’ve been trying hard to break is cracking before our eyes and ears. This should raise concerns about the MERS System as well since the assignments clause states “together with the note(s) and documents therein described”.

Humpty Dumpty does indeed exist!


UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW JERSEY

In the Matter of John T. Kemp

John T. Kemp
v.

Countrywide Home Loans, Inc.

Case No. 08-18700-JHW

APPEARANCES:

Bruce H. Levitt, Esq.
Levitt & Slafkes, PC
76 South Orange Avenue, Suite 305
South Orange, New Jersey 07079
Counsel for the Debtor

Harold Kaplan, Esq.
Dori 1. Scovish, Esq.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP
80 Main Street, Suite 460
West Orange, New Jersey 07052
Counsel for the Defendant

EXCERPT:

The new allonge was signed by Sharon Mason,
Vice President of Countrywide Home Loans, Inc., in the Bankruptcy Risk
Litigation Management Department. Linda DeMartini, a supervisor and
operational team leader for the Litigation Management Department for BAC
Home Loans Servicing L.P. (“BAC Servicing”V testified that the new allonge
was prepared in anticipation of this litigation, and that it was signed several
weeks before the trial by Sharon Mason.

As to the location of the note, Ms. DeMartini testified that to her
knowledge, the original note never left the possession of Countrywide, and that
the original note appears to have been transferred to Countrywide’s foreclosure
unit, as evidenced by internal FedEx tracking numbers. She also confirmed
that the new allonge had not been attached or otherwise affIXed to the note.
She testified further that it was customary for Countrywide to maintain possession of
the original note and related loan documents.

In a supplemental submission dated September 9,2009, the defendant
asserted that “the Defendant/Secured Creditor located the original Note. The
original Note with allonge and Pooling and Servicing Agreement are available
for inspection.,,7 When the matter returned to the court on September 24,
2009, counsel for the defendant represented to the court that he had the
original note, with the new allonge now attached, in his possession. No
additional information was presented regarding the chain of possession of the
note from its origination until counsel acquired possession.

Continue reading below…

CASE FILE New Jersey Admissions In Testimony Notes Never Sent to Trusts Kemp v Countrywide

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

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