So they say…

This is Linda Green they are admitting to as not having authority for MERS. Linda Green is an employee of DOCx/ LPS!

While they view it as not having authority, I view it as plain out FRAUD!

Both Kathy Smith and Joseph Kaminski are employees of Lender Processing Services in Jacksonville aka Duval County.

Take a look at the Corrective Assignment below:

Now take a look at why…lets compare the signatures

Via: Discovery Tactics aka Anthony Martinez & Assoc.

Latest Electronically Stored Information (ESI) Cases

I’ve been harping on the importance of demanding and acessing ESI from foreclosing parties for quite some time now.  A properly made ESI discovery request will provide numerous “smoking gun” documents that are sure to place the opposing party in a uncomfortable position.  Below I’ve identifed some of the most recent and more important cases that involve ESI.

—————————————————-

DinSFLA here: I agree 100%. Where are the sirens that should be going off and a Foreclosure Moratorium? This is not the first time nor the last time we will hear of financial institutions with the help of LPS and MERS fabricating documents. .

We will not rest until we see justice and these politicians doing the job they took an oath for!

Sink, McCollum, Scott–Three the Hard Way

Some highlights to this article from the West Orlando News:

Bill McCollum is the Florida Attorney General, allegedly Florida’s top cop, and Alex Sink is Florida’s Chief Financial Officer or Florida’s chief financial crime investigator.

Well, history is the best teacher. If you want to know if Sink and McCollum will “fight” for you as Governor, let’s see how they “fought” for you as members of the Florida Cabinet.

It’s common knowledge that the State of Florida is one of America’s safest havens for predatory lenders, ponzi schemers and financial crooks. Florida was home to the Madoffs and Rothsteins, and a favorite spot for the Wells Fargos and Freemont Investment and Loan companies that swindled thousands of Floridians out of their investments and concocted illegal residential foreclosure actions.

Fight for me as Governor? I don’t think so! What financial criminals has Sink investigated? What financial criminals has McCollum prosecuted?

Don’t take my word for any of this. Read the facts for yourself. Call your little politicians and say Lucius is talking about them and see how they respond.

Both Sink and McCollum should know or should have known that financial criminals were not only robbing individual citizens, the crooks were also playing loose and free with money that the financial criminals owed local governments for transfer fees, assignment fees and other government financial transaction fees.

There is an electronic recording system devised by and for the convenience of predatory lenders and financial criminals called “MERS”. This system allows financial crooks to “document” changes in property title ownerships.

Both Sink and McCullom knew or should have known that the use of MERS to document or change titles, transfers and assignments of properties in Florida is illegal.

Why? Because use of MERS breaks the chain of title, allows criminals to get away without paying local government fees and is an explicit and factual violation of Florida Law!

Florida Statute 701.02 specifically states that “(1) An assignment of a mortgage upon real property or any interest therein, is not good or effectual in law or equity, against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the assignment is contained in a document that, in its title, indicates an assignment of mortgage and is recorded according to law.”

When Sink and McCollum got complaints from Florida citizens that claimed they were being victimized by predatory lenders and financial criminals, it seems they both ignored those complaints.

By: Lucius Gantt ALL WORLD CONSULTANTS Box 2071 Tallahassee, Florida 32316 850-222-3475

“I’m not going to be here next week” is how Mr. Geeai greeted me on a delightfully cool morning last week,  “so your readers are going to have to live without me.  You can come and hang out,  but you have to bring your own coffee.”

“Is this the annual Geeai family campout?’

“Indeed it is”,  he replied.   “Chris is coming up from California and we are all going to hang for a week.  So you and your readers have to live without me next week.”

“That’s OK.  I’ll take notes”

“So what new has happened this week?”

“Remember David Stern?”

“The jerk who is making hundreds of millions by throwing people out of their houses?  Yes,  I remember him.”

“Want to know the name of his 130 foot yacht?”

“I’m afraid to ask.”

“Su Casa es Mi Casa”

And then Mr. Geeai did something that really surprised me.  With all of the emotion of a great white shark coming in for a kill he said,  “Ok,  that’s a knee cap buddy”.  And then he formed his fingers into the shape of a pistol and unloaded on my kneecap.  “Bang”  he said,  and looked at me with dead eyes,  “That’s just for naming your boat what you did.  It shows who you are and that’s worth a kneecap without any other consideration.  Oh,  I’m sorry,  is that painful ?  Good.  Now,  let’s talk about what your real punishment is going to be.”

It didn’t surprise me that he blew away the kneecap so much as the totally uncaring,  nonchalant attitude he took towards the action.  It was as if he were telling one of his tenants they were responsible for a late payment.  Totally emotionless,  you’re a mark in a book.  ‘Oh,  it says here I blow your kneecap off.  *bang*  Scratch that one,  what’s next on the list?’  That’s not like him.  I know him as a man of great compassion but all of that was gone as he thought of dealing with the ones responsible for ripping off the whole country for their personal aggrandizement.

There is a seething anger in this country and them that are responsible best take heed.  If Mr. Geeai can seriously consider blowing off a kneecap … and then consider what might be appropriate punishment …  then there is real trouble brewing.  Mr. Geeai is as laid back as they come.

There was a MERS story this past week from www.wallstreetoasis.com.   Wall Street Oasis bills themselves as  a place where “monkeys” (their terms,  not mine) from investment banks,  hedge funds and private equity firms can come to relax,  trade barbs & quips,  rant,  and generally find an outlet for the frustrations built from breathing the rarified air of corporate finance.

In order to comment on any of their blogs,  you have to be a member and in order to become a member,  you have to fill out an exhaustive series of questions such as,  where did you go to school?  Where did you get your MBA?  What was your GPA?  I was reminded of standing in the little boy’s room in grammer school competing with all of the other boys to see who could step the furthest away from the urinal and still arc a flow into the bowl.  Doug Jones was the best at two steps away from the back wall,  his closest competition was four but then Doug was the best athlete on the playground so we weren’t surprised.  We were awed.  Qualifications to become a member of Wall Street Oasis are just as meaningless as arcing a flow into the urinal if you ask me.  I suppose some people are in awe just like I was with Doug Jones but I’ve grown up a bit since then.  I digress.

Continue Reading…Chink in the Armor

Hmm…now doesn’t this ring close to home?

From Paper to Electronic: Exploring the Fraud Risks Stemming From the Use of Technology to Automate the Australian Torrens System

By Rouhshi Low

Interesting points:

In all electronic systems, land title instruments are prepared electronically. This may make it easier for fraudulent persons with access to the system to perpetrate fraudulent alterations, because unlike a physical alteration, an electronic alteration on an electronic document will not leave any physical evidence of the alteration.

In the paper system, the practice of the Land Titles Office manually checking instruments lodged for registration before updating the register may be said to act as a safeguard against this type of fraud, since any alteration of an instrument might leave some form of a physical mark which might then be noticed by the officer and appropriate action may then be taken. Of course the effectiveness of this safeguard depends on the vigilance of the examining officer.

It is observed that these considerations do not arise in the paper registration system. They are unique to an electronic system because of the use of technology to replace the handwritten signature. In the paper system, handwritten signatures can be forged, but there was never a requirement or a need for individuals to keep their signatures safe. It is simply not possible. Replacing handwritten signatures with digital signatures introduces a new element into the process. And because of the potential for fraud whether because the fraudulent person has managed to obtain an existing digital certificate/PSP or circumvented the registration process to obtain one, the use of digital signatures therefore imposes ‘new’ obligations on users as well as the entity responsible for the registration process that do not exist in the paper system. The user is now responsible for keeping the digital certificate/PSP safe. The entity issuing the digital certificate/PSP is responsible for developing and maintaining effective registration processes to minimize the risk of a fraudulent person impersonating an authorised user. In fact, attacking the registration process in this manner is an additional avenue for the fraudulent person to perpetrate identity fraud so that it could be said that in an electronic system, there might be two opportunities for identity fraud: (i) identity fraud of the owner of the land and (ii) identity fraud of an authorized user of the system.

So to perpetrate fraud in an electronic registration system, the solicitor would not even need to forge the victim’s signature, or mislead the client into signing documents, or create false powers of attorney, or fraudulently alter instruments, as is the case in the paper registration system. All that the solicitor would have to do would be to prepare the instrument, digitally sign it and submit it to the Land Titles Office for registration. As noted above, being able to fraudulently use a digital certificate/PSP to digitally sign instruments for lodgement and registration is a new opportunity for fraud in an electronic system. As seen in the discussion here, solicitors will have the greatest opportunity to perpetrate this new type of fraud.

In all the electronic systems, clients no longer sign land title instruments for registration. Rather an authorisation form is signed instead. This change in practice may see a shift in forgery cases – instead of forging the signature of the victim on the land title instrument, fraudulent persons will now have to forge the signature of the victim on the authorisation form.

The concern in abolishing the paper certificate of title in an electronic registration system is that it will result in more identity fraud. When the New Zealand system was introduced, Thomas argued that ‘[T]he absence of an outstanding duplicate certificate of title (or anything in substitution of the same) is argued to be a key flaw in the new system, making it more vulnerable to fraud’.63

But will this be the case? It is argued that identity fraud might be perpetrated in an electronic registration system in the same way as in the paper registration system – when the fraudulent person is able to successfully impersonate the victim of the fraud to convince the authorised user responsible for the transaction that he or she has a right to deal with the land. The difference is that in the paper registration system, since the certificate of title is the document used to evidence a right to deal with the land, identity fraud uses the certificate of title. In an electronic registration system, the manner in which identity fraud may be perpetrated would depend on the system and how identity and right to deal might be established.

[ipaper docId=35988900 access_key=key-kdw163zwfgg5k11v3i1 height=600 width=600 /]

On Tuesday the Florida Attorney General Bill McCollum’s office announced an investigation of Three South Florida law firms.

The firms are identified as The Law Offices of Marshall C. Watson in Fort Lauderdale; Shapiro & Fishman, which has offices in Boca Raton and Tampa; and the Law Offices of David J. Stern, P.A. in Plantation.

Excerpts:

MERS was created in 1995 under the auspices of the Mortgage Bankers Association (MBA), as the mortgage industry’s utility, to streamline the mortgage process by using electronic commerce to eliminate paper. Our Board of Directors and shareholders are comprised of representatives from the MBA, Fannie Mae, Freddie Mac, large and small mortgage companies, the American Land Title Association (ALTA), the CRE Finance Council, title underwriters, and mortgage insurance companies.

Our initial focus was to eliminate the need to prepare and record assignments when trading mortgage loans. Our members make MERS the mortgagee and their nominee on the security instruments they record in the county land records. Then they register their loans on the MERS® System so they can electronically track changes in ownership over the life of the loans. This process eliminates the need to record assignments every time the loans are traded. Over 3000 MERS members have registered more than 65 million loans on the MERS® System, saving the mortgage industry hundreds of millions of dollars in the process. The Federal Housing Administration (FHA) and Veterans Administration (VA) approved MERS for government loans because they recognized the value to consumers. On table-funded loans, MERS eliminates the cost to the consumer of the mortgage assignment ($30 – $150). In addition, the MERS process ensures that lien releases are not delayed by eliminating potential breaks in the chain of title. Similar to the residential product, we also addressed the assignment problem in the commercial market with MERS® Commercial, on which is registered over $110 billion in Commercial Mortgage-Backed Securities (CMBS) loans.

More than 60 percent of existing mortgages have an assigned MIN, making a total of 65,000,000 loans registered since the inception of the system in 1997. The corresponding data for these mortgages is tracked on the MERS® System from origination through sale and until payoff. MERS therefore offers a substantial base of historical data about existing loans that can be harnessed to bring transparency to existing MBS products. Attached are letters from the MBA, FHA, Fannie Mae and Freddie Mac on this point.

[ipaper docId=35515524 access_key=key-vw36i36b7uiubwj5x8u height=600 width=600 /]

Related:

MERS May NOT Foreclose for Fannie Mae effective 5/1/2010

_________________________________________

Fannie Mae’s Announcing Miscellaneous Servicing Policy Changes

How the federal housing agencies—and some of the biggest bailed-out banks—are helping shady lawyers make millions by pushing families out of their homes.

— By Andy Kroll

Continue reading…MOTHER JONES

— Illustration: Lou Beach

posted with written permission from Author

By E’Lyn Bryan

QUESTIONED DOCUMENT EXAMINATION

An overview of the basic techniques and technology

AT NO TIME IN HISTORY was crime more rampant than it is today. White-collar crime accounts for more than $140 billion in losses annually. Nearly $20 billion worth of check fraud occurs annually. More than $2 million of worthless checks are passed daily. Telemarketing accounts for $48 billion in fraud, while according to the FBI, Internet fraud as of 2009 had topped $264 million in online losses. A crime wave of this proportion has put the services of competent investigators and certified forensic-document examiners in high demand.

This article is intended to educate and assist attorneys or investigators when they are speaking with attorneys, judges, or clients about cases that involve questioned documents. There are numerous types of cases where a document or handwriting evidence may be involved as a result of being found either at the crime scene or at the center of a civil suit.

A competent investigator is cognizant of all the clues at a crime scene. Items such as credit-card receipts, legal papers, canceled checks, personal notes, leases, and other types of documents and writing may hold the clues to the motive. The observant investigator will call attention to these documents. An investigator who does not think along those lines may miss the subtle clues that could be found on even the smallest scrap of paper, on a blank writing pad (that might reveal “invisible” indented writing), or among the personal belongings of a victim.

Crimes involving fraud, larceny, forged wills, death threats, identity theft, ransom notes, poison-pen letters, “other-hand” disguised writing, traced signatures, assisted deathbed signatures, altered medical records, fingerprint examination, ink and paper analysis, watermarks, contrived faxes, “cut-and-pasted” signatures on legal documents, anachronisms (chronological errors, such as paper or ink that did not exist simultaneously), disputed pre- and post-nuptial agreements, and auto-pen signatures are examples of the types of cases that are filed in our courts every day. An investigator should be aware of the fact that any documents or written material found at the crime scene may hold clues to solving the case, whether it is written on paper, walls, a car door, or a mirror. Questioned documents or writing can be typed, written in blood, lipstick, ink, pencil, or body fluids.

Most documents are written with non-violent, white-collar criminal intent. Others are written with darker purposes in mind: murder, stalking, kidnapping, and suicide. In questioned-document investigations—as in any investigation—it is the duty of the document examiner to remove the shadow of doubt. The examiner, if possible, will determine—without prejudice—if the document is authentic or forged, original or altered. The document examiner is an advocate of the courts. Examiners do not have clients; they represent the justice system. As a result, the examiner cannot become emotionally involved or empathetic. Upon initial contact, the examiner must disclose a non-fiduciary relationship to the person who retains the examiner’s services.

A well-trained document examiner knows to examine all the physical features of a questioned document, not just the questioned signature. There are dozens of components to consider when examining a signature or a document. Characteristics to consider include the writing medium used and the surface it is written upon, the age of the paper or ink, and watermarks.

There are deletions, alterations, inclusions, and other aspects that must be considered, as well. The evaluation of letter formations, pen strokes, pen pressure, spacing, letter height, relation to the baseline, and slant are all part of the evaluation process.

When a document is typewritten, there are other problems to consider. Was a page added after the fact? Is the page a copy? Did someone possibly apply “white out” on the original, type over it, and then make a copy so that it looks like an original? Was another typewriter used to make the forgery or the added page? And what about a computer-generated document? Are the pages all from the same ream of paper? With technology such as infrared and ultraviolet light sources, these questions can be answered.

On a daily basis, document examiners are faced with a multitude of questioned-document problems. The most common cases, for example, involve forged checks, forged wills, graffiti, credit-card fraud, leases, deeds, contracts to purchase items—including homes, cars, and businesses—mortgage fraud, disguised writing, and poison-pen letters (hate letters). With the improved technology of printers and copiers, forging and counterfeiting is rampant through the use of “cut and paste” and “lifting signatures”.

It is well known that the field of digital science is constantly evolving. As new technology becomes available, the document examiner must stay on top of the latest state-of-the-art and work to anticipate the ways criminals may use new technology to their advantage. The certified forensic document examiner must utilize all the latest techniques and technology that science has to offer when examining questioned documents. When investigating digital crimes—crimes such as forged passports, driver’s licenses, computer-generated documents, and digital images inserted into other items—document examiners are referred to as digital-crime investigators.

Comparative Ink Analysis

The newest technology today is found in comparative ink analysis equipment. One very useful forensic tool in pen-formula differentiation is ink analysis that involves the determination of chemicals specific to certain types of compounds. One method used to identify a certain kind of ballpoint-pen ink is called thin-layer chromatography. The process involves using an ultraviolet-visible photodiode array detector that allows for the dye components to be rapidly separated.

A standard is a known authentic sample from which comparisons are made. The United States Secret Service and the Internal Revenue Service (IRS) jointly maintain the International Ink Library. This collection includes more than 9,500 inks, dating from the 1920s. New inks are chemically tested and added to this database on a regular basis. This reference serves as a great resource for the detection of fraudulent signatures and documents.

In the comparison of inks, chemical analysis can be useful in a number of cases, such as medical charts, tax evasion, insurance fraud, altered checks, counterfeiting, and other types of forgeries or frauds. A 2004 article from the Associated Press referenced ink-comparison evidence as one piece of evidence that assisted in the high-profile conviction of Martha Stewart. Examination of the ink on a document showed that an entry was made at a different time, possibly as an attempt to cover up insider-trading violations.

Aging Papers and Inks

The age of paper and ink can provide important clues when attempting to verify and authenticate a document. A key example was the Hitler Diaries case from the 1980s—one that involved purported diaries written by Adolf Hitler. The document examiner in the case unknowingly compared forged writing to the writing of the diaries. Taking the authentication and investigation one step further, the diaries were sent to a laboratory where the paper and ink was analyzed. It was proven conclusively that the document could not have been written by Hitler, since there were chemical compounds discovered in the paper of the book’s cover that were not available when Hitler was alive. The age of paper can be determined according to the additives and chemicals or by watermarks. The Hitler Diaries, as well as many other questioned historical papers, have been debunked, while others have been authenticated.

Two new methods of determining the relative age of ballpoint inks has recently come to the forefront in forensic-document examination. Studies have shown that different inks have different drying times. The new method for analyzing the drying time of ink is done by chemical analysis. Unfortunately, this is a destructive process.

These new developments are extremely important when examining ledger or medical-record entries. It has been established that the longer ink has been on a sheet of paper, the slower it will dissolve in the various solvents used to analyze them. It is now possible to identify the age of ink to within a six-month period. This new process of dating the age of inks has had dramatic impact on the examination and detection of backdated documents. Many malpractice cases have been won due to the analysis of ink on questioned medical records.

Infrared Comparisons

Infrared-imaging equipment and infra-red photography have given the document examiner an exciting new world of technology for investigating cases. Although this is not a new concept, the technology has been refined and taken to mind-boggling new heights.

The mechanics behind infrared are quite simple. The human eye perceives the reflected portion of the light spectrum. But there is much more of the spectrum that the human eye cannot see. For instance, when we see a rainbow, we are not seeing all the colors that exist. We see only red, orange, yellow, green, blue, indigo and violet. The colors on each side of the rainbow that we cannot see with the naked eye are the ultraviolet (UV) and infrared (IR) areas. The instruments we need to convert UV and IR wavelengths of the light spectrum into visible images for the human eye are called video spectral comparators and forensic imaging spectrometers. This equipment is used for non-destructive analysis of questioned documents in the presence of seemingly equal but physically different features of writing. With IR and UV, we can see “through” writing that has been blacked out or obscured by “white out”, as well as scribbled-out writing.

With split-screen and overlay software, direct visual comparison can be made of several individual images. Erased elements or chemically altered characters can be easily detected with IR and UV technology. The exceptional sensitivity and broad spectral range can detect even the slightest differences in similar inks, not seen by the unaided eye. This equipment is at the highest level of authentication technology available today.

Obliterated, faded, or altered writing can also be detected with IR and UV analysis. In a recent case handled by the IRS, the IRS claimed the defendant could not prove an expense he had written off for office equipment because the receipt had faded. The paper was old and the writing was “invisible”. Under an IR filter, the “blank” receipt luminesced, showing writing that was outside the wavelength of visible light to the naked eye.

Electrostatic Detection Apparatus

Another valuable piece of equipment to the document examiner is an electrostatic detection apparatus (ESDA). With an ESDA and specialized infra-red side-lighting photographic techniques, the characteristic indentations found in writing may prove that the writing was traced. In addition, when the top page of a pad that has been written on is removed, the “blank” writing underneath can be processed with an ESDA to show the writing by the indentations on the pages below. Research performed by the John Jay College of Criminal Justice in New York City indicates that an ESDA can recover indented impressions from documents that were written up to 60 years earlier.

The technology behind the ESDA is fairly simple: To develop the indentations on paper, the indented paper is placed in a high-humidity device and transferred onto a bronze vacuum plate. The page is then carefully covered with a Mylar (transparent, non-conducting) film. The page is then electrically charged so that toner will adhere to the impressions when applied to the Mylar covering. The final step is to pour the toner on the Mylar. This process develops the page containing the various indentations.

An example of the use of an ESDA in a recent case involved a bust on a PCP drug lab. Although there was no paper evidence at the scene of the raid, the telephone book at the scene was analyzed and, in the end, it held the incriminating evidence—only visible by use of the ESDA. An astute investigator noticed a telephone book on the counter where the drugs were being processed. On the cover of the phone book were slight indentations that appeared to be writing. The indentations were restored by ESDA and the writing was compared to that of the known chief chemist of the PCP lab. The writing the ESDA retrieved was the chemical formulas, written by the chief chemist. Busted!

As an investigator, you need to think outside the parameters of visible evidence. Evidence to solve your case may be right in front of you and may easily go unnoticed. In this case of the PCP lab, the real incriminating evidence was truly invisible. If not for the trained eye of the investigator, the case may have been dismissed for lack of solid evidence that could link the suspect with the actual manufacturer of the drugs.

As an advocate of the court, the document examiner is relied upon to dispel any doubts about a questioned document. Sometimes, the examiner simply will not be able to render an opinion on certain documents. In those instances, the document examiner’s letter of opinion will state an explicit explanation.

From murder scenes where notes are left behind, to kidnappings, to white-collar crimes such as forged checks, document examiners, investigators, and the technology they utilize prove to be a formidable team.

Questioned documents are a global issue. As investigators, you must be cognizant of the technologically advanced level of the criminals we face today. We must use all of the intelligence, the technology, and the resources available to educate ourselves on the topic of continually evolving criminal minds.

About the Author

E’lyn Bryan is a court-qualified and certified document examiner through the National Questioned Document Association. She offers presentations and training sessions for businesses and law-enforcement agencies on questioned-document examination. She is the current president of the South Florida Investigators Association and a member of the World Association of Detectives. She can be reached by phone at: 561-361-0007 or by e-mail at: bocaforensic@aol.com

Litigation Support
Forensic Document Examiners Inc.
div. of Forensic Bureau of Investigations Inc.
www.FloridaDocumentExaminer.com
President of South Florida Investigators Association
Instructor of Forensic Document Examination to Law Enforcement
National Association of Document Examiners
World Association of Detectives
Gold Coast Forensics Association
Florida Association of Private Investigators
Member of South County Bar Association
Forensic Expert Witness Association
561.361.0007

excerpts:

Chain-of-title is not just an issue for the buyers and sellers of particular homes and title insurance companies. Some entity – and most likely several entities – are claiming these mortgages and loans
as assets when regulators and investors are determining solvency and compliance, but disavowing these same “assets” when acknowledgement of ownership would result in responsibilities ranging from payment of taxes to lawn mowing.

Stern employees often sign as if a bankrupt or out-of-business company or a failed bank owned the mortgage and loan up until foreclosure is imminent. In county recorders’ offices across the state, the Stern-created records show that the trusts acquired mortgages and loans on dates when no such acquisitions ever took place. The trusts claim ownership solely to prove that they have the right to foreclose. The date selected is arbitrary – chosen by Stern or LPS or the mortgage servicing company. In reality, residential mortgage-backed trusts did not rush to acquire billions of dollars in sub-prime non-performing loans in 2008 and 2009 as these assignments falsely state.

[ipaper docId=35193493 access_key=key-15cd46kpp21si9phgbhx height=600 width=600 /]

Via: Kenneth Eric Trent, Attorney at Law Fort Lauderdale, FL

This is the follow up to the latest Depositions posted on SFF taken from The Law Offices of David J. Sterns’ employees Cheryl Samons and Shannon Smith.

[ipaper docId=34550572 access_key=key-2cbgnrr6653palfl8a4w height=600 width=600 /]

RELATED STORIES:

Full Deposition of David J. Stern’s Notary | Para Legal Shannon Smith

STERN’S CHERYL SAMONS| SHANNON SMITH Assignment Of Mortgage| NOTARY FRAUD!

Take Two: *New* Full Deposition of Law Office of David J. Stern’s Cheryl Samons

I cannot comment, I am beyond words!

via: Chungas_Revenge

Cheryl Samons is an employee of David Stern Firm in Plantation Florida. The mere fact that she is signing documents representing the grantor when the grantee is the client of her employer’s law firm leads to questions and concerns, but:

How can an unsigned legal document get notarized and witnessed? (St. Lucie County, FL)

Bank of America took over Countrywide on June 3, 2009. How can Countrywide assign a mortgage on April 28, 2010? (Palm Beach County, FL)

RELATED STORIES:

Full Deposition of David J. Stern’s Notary | Para Legal Shannon Smith

STERN’S CHERYL SAMONS| SHANNON SMITH Assignment Of Mortgage| NOTARY FRAUD!

Take Two: *New* Full Deposition of Law Office of David J. Stern’s Cheryl Samons

RESTON, Va.–(BUSINESS WIRE)–

July 16, 2010 12:54 PM Eastern Daylight Time 

MERSCORP, Inc. (MERS) announced today that investor information for loans registered on the MERS^® System is now available to borrowers at no charge.

Through the MERS^® ServicerID website (www.mers-servicerid.org), both servicer and investor information are now displayed. The added investor information is an expansion of the MERS^® InvestorID program launched in June 2009, which mails a notice to borrowers when the identity of their loan’s owner or investor changed.

“MERS is an enthusiastic supporter of President Obama’s goal to bring more transparency to the mortgage banking process,” said MERS President & CEO R.K. Arnold. “I am pleased that we now have the capability to show the identity of a loan’s owner or investor to whomever wishes to see that data.”

The expanded MERS InvestorID program is an opt-out system which displays investor information on all MERS-registered loans unless the investor has specifically opted out of disclosure (servicer information will continue to be displayed). If a borrower wishes to find the investor on a loan with an opted-out investor, they can do so by sending a written request to their servicer for the information.

“Now both servicer and investor information are readily available to the public,” said Arnold. “Consumers and lenders want and need greater transparency and that’s what MERS is delivering.”

About MERS

MERS is an electronic loan registry created by the real estate finance industry to eliminate assignments when trading mortgage loans. Borrowers name Mortgage Electronic Registration Systems, Inc. as mortgagee and nominee for the lender on deeds of trust and mortgages that are recorded in the county land records. Lenders then register the loans on the MERS System and electronically track changes in servicing and beneficial ownership rights over the life of the loan. To learn more about MERS, visit www.mersinc.org.

MERSCORP, Inc.
Karmela Lejarde, 703-761-1274
karmelal@mersinc.org

RELATED ARTICLE:

Is MERS About To Unravel?

QUI TAM: MERS et al sued for FRAUD, Billions in Penalties

I had the pleasure to meet Mr. Trent this afternoon and all I can say is he’s aggressive and determined to get the truth out!

Here is another Deposition Via Kenneth Eric Trent Attorney at Law Fort Lauderdale Florida.

[ipaper docId=34340050 access_key=key-1eb2fh5kgjs1rbxhfwhq height=600 width=600 /]

ASSIGNMENTS:

RELATED STORIES:

STERN’S CHERYL SAMONS| SHANNON SMITH Assignment Of Mortgage| NOTARY FRAUD!

Take Two: *New* Full Deposition of Law Office of David J. Stern’s Cheryl Samons

Hat Tip to Attorney Kenneth Eric Trent in Fort Lauderdale for sending this my way.

Below we have two Assignment of Mortgages created by David J. Stern Esq.

Take a look at the notary’s signature and compare it to Ms. Cheryl Samons…also make sure to see the printed names of Shannon Smith.

Here we have another version of Shannon Smith’s signature. Not the same as above.

RELATED STORIES:

Full Deposition of David J. Stern’s Notary | Para Legal Shannon Smith

Take Two: *New* Full Deposition of Law Office of David J. Stern’s Cheryl Samons

COMMENTS  from Lynn Szymoniak re “Linda Green” Mortgage Assignments

On June 29, 2010, Judge William C. Todd, III, entered a lengthy opinion in a NJ foreclosure action, Bank of New York as Trustee v. Michael J. Raftogianis, et al., Case No.F-7356-09, Superior Ct. of NJ, Atlantic County, in a case involving securitization, MERS and questionable mortgage assignments.  These same issues arise in hundreds of thousands of foreclosure cases.  Judge Todd found: “The original complaint in this matter was filed in February, 2009. The plaintiff identified in the complaint was not the original mortgagee. There was no meaningful attempt to comply with the provisions of R. 4:64-1(b)(10) by ‘reciting all assignments in the chain of title…The MERS assignment was not executed and recorded until after the complaint was filed.’ The plaintiff also failed to produce the Note. On page 18 of this Order, Judge Todd notes: “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.”

Several articles regarding the authority and actions of Linda Green are available on “Fraud Digest.”  In the “pleadings” section, there are examples of the many different Linda Green signatures/forgeries. Green’s “signature” appears on HUNDREDS OF THOUSANDS of mortgage assignments – as an officer of at least 20 different banks and mortgage companies.

DOING THE MATH

The total mortgage loan amount on 500 “Linda Green” Mortgage Assignments is $126,956,912, or approximately $125 million for each 500 Assignments. The average output of Assignments from the Docx office in Alpharetta, Georgia in 2009 was 2,000 Assignments per day.

This would be equivalent to (4 x $125 million) or $500 million each day.  Assuming that Docx operated 5 days a week for 51 weeks (allowing for holidays), the office was open, producing Assignments, 255 days. It is likely that the Linda Green/Docx crew prepared and filed Mortgage Assignments showing One Hundred Twenty-Seven Billion, Five Hundred Million ($127,500,000,000) in mortgages were Assigned in 2009.

The offices of Lender Processing Services in Mendota Heights, Minnesota, seems likely to also have produced 2,000 Assignments each working day.

Jeffrey Stephan from the GMAC offices in Montgomery County, Pennsylvania also is likely to have produced 2,000 Assignments each day.

Bryan Bly of Nationwide Title Clearing also is likely to have produced 2,000 Mortgage Assignments each day.

Scott Anderson of Ocwen Loan Servicing in West Palm Beach, Florida, almost certainly produced an average of 2,000 Assignments a day.

Herman John Kennerty of America’s Servicing Company in Ft. Mill, South Carolina, also is likely to have produced 2,000 Assignments each day.

Erica Johnson-Seck was almost certainly producing Assignments at this same level for IndyMac.

Christina Trowbridge, Whitney Cook, and Stacy Spohn of Chase Home Finance in Franklin, Ohio likely had the same output.

Keri Selman and Renee Hertzler of BAC Home Loan Servicing (formerly Countrywide) in Texas almost certainly produced an average of 2,000 Assignments a day.

If these nine offices each produced 2,000 Assignments a day, the value of the Mortgage Assignments filed by all nine offices in 2009 was One Trillion, One Hundred Forty Seven Billion, Five Hundred Million ($1,147,500,000,000).

Most of these Assignments, of course, were not actually made in 2009.  Trusts and trustees did not rush to acquire over a trillion dollars in sub-prime mortgages in 2009.  The vast majority of these assignments were made solely for the purpose of “facilitating” foreclosures.

Each day, courts, regulators and law enforcement refuse to act on the issue of fraudulent Mortgage Assignments.  By failing to act, they choose to protect the interests of Wall Street securitizers, hedge funds, Deutsche Bank (and other foreign banks), CDO sellers and purchasers, especially Goldman Sachs and investors, particularly Chinese traders.

If homeowners had committed the equivalent crime and filed millions of fraudulent “Satisfaction of Mortgage” documents, the courts and prisons would be filled with defendants. Two systems of justice, one for Wall Street and one for Main Street,  means no justice at all.

(Note: copies of the various versions of the Green signature are in the pleadings section of www.frauddigest.com.)

By DinSFLA 6/20/2010

Now if this isn’t another means to a massive mandatory recall for any of this robo-signer’s documents, then our judicial systems are playing with an enormous fire getting ready to ignite even more angry individuals who has his documents sworn into court!

Then again, they’re one of the same.

Today Susan Taylor Martin for Tampabay.com wrote an interesting article about a too too familiar robo-signer “Bryan J. Bly”.

In this article She states

“Over the past few years, Bly has signed countless mortgage assignments as either a notary public or “vice president” of various lenders.

In reality, Bly works for Nationwide Title Clearing, a Palm Harbor company. And he was recently reprimanded by state regulators after acknowledging in a sworn statement that Nationwide Title had him notarizing so many documents that he scribbled his initial instead of signing his full name as required by law.

Such a pace, critics say, shows that Bly and other so-called “robo signers” can’t possibly be sure that what they’re signing is accurate.”

Just by these statements alone why aren’t any of these assignments or any documents executed by Mr. Bly being pulled out from court shelves?

It’s quite simple and you don’t need to be an Einstein.

If there is a product that is shown to cause human any harm there is a mandatory recall. So where is this recall on these products? Where on earth is the government to put a stop to all this assembly line?

Does it have to take a Chinese toymaker with toxic paint, a drywall that deteriorates the guts of a home and possibly lead to possible health issues or how about a Japanese car manufacturer that makes faulty brakes? Again, where is the authority looking into these claims? And why are they NOT pulling these defective items out of our records  in the court houses? Exactly who is being notified that these documents can cause harm to you or that if you were a victim of such irresponsibility to come forward?

My point is these documents are making one extremely ill, homeless and even in some cases suicidal. If this isn’t harm than what is?

This is just wrong in every possible way! Fraud is Fraud.

2010 NY Slip Op 50927(U)

HSBC BANK USA, N.A. AS TRUSTEE FOR NOMURA ASSET-BACKED CERTIFICATE SERIES

2006-AF1,, Plaintiff,
v.
LOVELY YEASMIN, ET. AL., Defendants.

34142/07

Supreme Court, Kings County.

Decided May 24, 2010.

Steven J Baum, PC, Amherst NY, Plaintiff — US Bank.

ARTHUR M. SCHACK, J.

Plaintiff’s renewed motion for an order of reference, for the premises located at 22 Jefferson Street, Brooklyn, New York (Block 3170, Lot 20, County of Kings), is denied with prejudice. The instant action is dismissed and the notice of pendency for the subject property is cancelled. Plaintiff HSBC BANK USA, N.A. AS TRUSTEE FOR NOMURA ASSET-BACKED CERTIFICATE SERIES 2006-AF1 (HSBC) failed to comply with my May 2, 2008 decision and order in the instant matter (19 Misc 3d 1127 [A]), which granted plaintiff HSBC leave:

to renew its application for an order of reference for the premises located at 22 Jefferson Street, Brooklyn, New York (Block 3170, Lot 20, County of Kings), upon presentation to the Court, within forty-five (45) days of this decision and order of:

(1) a valid assignment of the instant mortgage and note to plaintiff, HSBC . . .;

(2) an affirmation from Steven J. Baum, Esq., the principal of Steven J. Baum, P.C., explaining if both MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. [MERS], the assignor of the instant mortgage and note, and HSBC . . . the assignee of the instant mortgage and note, pursuant to 22 NYCRR § 1200.24, consented to simultaneous representation in the instant action, with “full disclosure of the implications of the simultaneous representation and the advantages and risks involved” explained to them;

(3) compliance with the statutory requirements of CPLR § 3215 (f), by an affidavit of facts executed by someone with authority to execute such an affidavit, and if the affidavit of facts is executed by a loan servicer, a copy of a valid power of attorney to the loan servicer, and the servicing agreement authorizing the affiant to act in the instant foreclosure action; and

(4) an affidavit from an officer of plaintiff HSBC . . . explaining why plaintiff HSBC . . . purchased a nonperforming loan from MERS, as nominee for CAMBRIDGE HOME CAPITAL, LLC [CAMBRIDGE].

[Emphasis added]

Plaintiff made the instant motion on January 6, 2009, 249 days subsequent to the May 2, 2008 decision and order. Thus, the instant motion is 204 days late. Plaintiff’s unavailing lateness explanation, in ¶ 16 of plaintiff’s counsel’s January 6, 2009 affirmation of regularity, states:

A previous application has been made for this or like relief but was subsequently denied without prejudice with leave to renew upon proper papers. By Decision and Order of this court dated the 2nd day of May 2008, plaintiff had 45 days to renew its application.

However on June 29, 2008 the Plaintiff permitted the mortgagor to enter into a foreclosure forbearance agreement. Said agreement was entered into with the hope that the Defendant would be able to keep her home. The agreement was not kept by the mortgagor and Plaintiff has since resumed the foreclosure action. The defects of the original application are addressed in the Affirmation attached hereto at Tab F [sic].

June 29, 2008 was 58 days subsequent to May 2, 2008. This was 13 days subsequent to the Court ordered deadline for plaintiff to make a renewed motion for an order of reference. While it’s laudatory for plaintiff HSBC to have granted defendant a forbearance agreement, plaintiff HSBC never notified the Court about this or sought Court approval of extending the 45-day deadline to make the instant motion. However, even if the instant motion was timely, the documents plaintiff’s counsel refers to at Tab F [exhibit F of motion] do not cure the defects the Court found with the original motion and articulated in the May 2, 2008 decision and order.

Background

Defendant LOVELY YEASMIN borrowed $624,800.00 from CAMBRIDGE on May 10, 2006. The note and mortgage were recorded by MERS, as nominee for CAMBRIDGE, for purposes of recording the mortgage, in the Office of the City Register, New York City Department of Finance, on May 23, 2006, at City Register File Number (CRFN) XXXXXXXXXXXXX. Then, MERS, as nominee for CAMBRIDGE, assigned the mortgage to plaintiff HSBC on September 10, 2007, with the assignment recorded in the Office of the City Register, on September 20, 2007, at CRFN XXXXXXXXXXXXX. The assignment was executed by “Nicole Gazzo, Esq., on behalf of MERS, by Corporate Resolution dated 7/19/07.” Neither a corporate resolution nor a power of attorney to Ms. Gazzo were recorded with the September 10, 2007 assignment. Therefore, the Court found the assignment invalid and plaintiff HSBC lacked standing to bring the instant foreclosure action. Ms. Gazzo, the assignor, according to the Office of Court Administration’s Attorney Registration, has as her business address, “Steven J. Baum, P.C., 220 Northpointe Pkwy Ste G, Buffalo, NY 14228-1894.” On September 10, 2008, the same day that Ms. Gazzo executed the invalid assignment for MERS, as nominee for CAMBRIDGE, plaintiff’s counsel, Steven J. Baum, P.C., commenced the instant action on behalf of purported assignee HSBC by filing the notice of pendency, summons and complaint in the instant action with the Kings County Clerk’s Office. The Court, in the May 2, 2008 decision and order, was concerned that the simultaneous representation by Steven J. Baum, P.C. of both MERS and HSBC was a conflict of interest in violation of 22 NYCRR § 1200.24, the Disciplinary Rule of the Code of Professional Responsibility entitled “Conflict of Interest; Simultaneous Representation,” then in effect. Further, plaintiff’s moving papers for an order of reference and related relief failed to present an “affidavit made by the party,” pursuant to CPLR § 3215 (f). The instant application contained an “affidavit of merit and amount due,” dated November 16, 2007, by Cathy Menchise, “Senior Vice President of WELLS FARGO BANK, N.A. D/B/A AMERICA’S SERVICING COMPANY, Attorney in Fact for HSBC BANK USA, N.A. AS TRUSTEE FOR NOMURA ASSET-BACKED CERTIFICATE SERIES 2006-AF1.” Ms. Menchise stated “[t]hat a true copy of the Power of Attorney is attached hereto.” Actually attached was a photocopy of a “Limited Power of Attorney,” dated July 19, 2004, from HSBC, appointing WELLS FARGO BANK, N.A. as its attorney-in-fact to perform various enumerated services, by executing documents “if such documents are required or permitted under the terms of the related servicing agreements . . . in connection with Wells Fargo Bank, N.A.[‘s] . . . responsibilities to service certain mortgage loans . . . held by HSBC . . . as Trustee of various trusts.” The “Limited Power of Attorney” failed to list any of these “certain mortgage loans.” The Court was unable to determine if plaintiff HSBC’s subject mortgage loan was covered by this “Limited Power of Attorney.” The original motion stated that defendant YEASMIN defaulted on her mortgage payments by failing to make her May 1, 2007 and subsequent monthly loan payments. Yet, on September 10, 2007, 133 days subsequent to defendant YEASMIN’S alleged May 1, 2007 payment default, plaintiff HSBC took the ssignment of the instant nonperforming loan from MERS, as nominee for CAMBRIDGE. Thus, the Court required, upon renewal of the motion for an order of reference, a satisfactory explanation of why HSBC purchased a nonperforming loan from MERS, as nominee for CAMBRIDGE.

Plaintiff HSBC needed “standing” to proceed in the instant action. The Court of Appeals (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 912 [2003]), cert denied 540 US 1017 [2003]), held that “[s]tanding 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.” In Carper v Nussbaum, 36 AD3d 176, 181 (2d Dept 2006), the Court held that “[s]tanding 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.” If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v Goldberg,297 AD2d 203 [1d Dept 2002]). “Since standing is jurisdictional and goes to a court’s authority to resolve litigation [the court] can raise this matter sua sponte.” (Axelrod v New York State Teachers’ Retirement System, 154 AD2d 827, 828 [3d Dept 1989]).

In the instant action, the September 10, 2007 assignment from MERS, as nominee for CAMBRIDGE, to HSBC was defective. Therefore, HSBC had no standing to bring this action. The recorded assignment by “Nicole Gazzo, Esq. on behalf of MERS, by Corporate Resolution dated 7/19/07,” had neither the corporate resolution nor a power of attorney attached. Real Property Law (RPL) § 254 (9) states: Power of attorney to assignee. The word “assign” or other words of assignment, when contained in an assignment of a mortgage and bond or mortgage and note, must be construed as having included in their meaning that the assignor does thereby make, constitute and appoint the assignee the true and lawful attorney, irrevocable, of the assignor, in the name of the assignor, or otherwise, but at the proper costs and charges of the assignee, to have, use and take all lawful ways and means for the recovery of the money and interest secured by the said mortgage and bond or mortgage and note, and in case of payment to discharge the same as fully as the assignor might or could do if the assignment were not made. [Emphasis added]

To have a proper assignment of a mortgage by an authorized agent, a power of attorney is necessary to demonstrate how the agent is vested with the authority to assign the mortgage. “No special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it [Emphasis added].” (Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 [1d Dept 1996]). (See Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612 [2d Dept 2004]). To foreclose on a mortgage, a party must have title to the mortgage. The instant assignment was a nullity. The Appellate Division, Second Department (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]), held that a “foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity.” Citing Kluge v Fugazy, the Court inKatz v East-Ville Realty Co. (249 AD2d 243 [1d Dept 1998]), held that “[p]laintiff’s attempt to foreclose upon a mortgage in which he had no legal or equitable interest was without foundation in law or fact.” Plaintiff HSBC, with the invalid assignment of the instant mortgage and note from MERS, lacked standing to foreclose on the instant mortgage. The Court, in Campaign v Barba (23 AD3d 327 [2d Dept 2005]), held 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 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 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]). Even if plaintiff HSBC can cure the assignment defect, plaintiff’s counsel has to address his conflict of interest in the representation of both assignor MERS, as nominee for CAMBRIDGE, and assignee HSBC. 22 NYCRR § 1200.24, of the Disciplinary Rules of the Code of Professional Responsibility, entitled “Conflict of Interest; Simultaneous Representation,” states in relevant part: (a) A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under subdivision (c) of this section. (b) A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer’s representation of another client, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under subdivision (c) of this section. (c) in the situations covered by subdivisions (a) and (b) of this section, a lawyer may represent multiple clients if a disinterested lawyer would believe that the lawyer can competently represent the interest of each and if each consents to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved. [Emphasis added]

The Court, upon renewal of the instant motion for an order of reference wanted to know if both MERS and HSBC were aware of the simultaneous representation by plaintiff’s counsel, Steven J. Baum, P.C., and whether both MERS and HSBC consented. Upon plaintiff’s renewed motion for an order of reference, the Court required an affirmation by Steven J. Baum, Esq., the principal of Steven J. Baum, P.C., explaining if both MERS and HSBC consented to simultaneous representation in the instant action with “full disclosure of the implications of the simultaneous representation and the advantages and risks involved.” The Appellate Division, Fourth Department, the Department, in which both Ms. Gazzo and Mr. Baum are registered (In re Rogoff, 31 AD3d 111 [2006]), censured an attorney for, inter alia, violating 22 NYCRR § 1200.24, by representing both a buyer and sellers in the sale of a motel. The Court, at 112, found that the attorney “failed to make appropriate disclosures to either the sellers or the buyer concerning dual representation.” Further, the Rogoff Court, at 113, censured the attorney, after it considered the matters submitted by respondent in mitigation, including: that respondent undertook the dual representation at the insistence of the buyer, had no financial interest in the transaction and charged the sellers and the buyer one half of his usual fee. Additionally, we note that respondent cooperated with the Grievance Committee and has expressed remorse for his misconduct. Then, if counsel for plaintiff HSBC cures the assignment defect and explains his simultaneous representation, plaintiff HSBC needs to address the “affidavit of merit” issue. The May 2, 2008 decision and order required that plaintiff comply with CPLR § 3215 (f) by providing an “affidavit made by the party,” whether by an officer of HSBC, or someone with a valid power of attorney from HSBC, to execute foreclosure documents for plaintiff HSBC. If plaintiff HSBC presents a power of attorney and it refers to a servicing agreement, the Court needs to inspect the servicing agreement. (Finnegan v Sheahan, 269 AD2d 491 [2d Dept 2000];Hazim v Winter, 234 AD2d 422 [2d Dept 1996]; EMC Mortg. Corp. v Batista, 15 Misc 3d 1143 [A] [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v Lewis, 4 Misc 3d 1201 [A] [Sup Ct, Suffolk County 2006]).

Last, the Court required an affidavit from an officer of HSBC, explaining why, in the middle of our national mortgage financial crisis, plaintiff HSBC purchased from MERS, as nominee for CAMBRIDGE, the subject nonperforming loan. It appears that HSBC violated its corporate fiduciary duty to its stockholders by purchasing the instant mortgage loan, which became nonperforming on May 1, 2007, 133 days prior to its assignment from MERS, as nominee for CAMBRIDGE, to HSBC, rather than keep the subject mortgage loan on CAMBRIDGE’s books.

Discussion

The instant renewed motion is dismissed for untimeliness. Plaintiff made its renewed motion for an order of reference 204 days late, in violation of the Court’s May 2, 2008 decision and order. Moreover, even if the instant motion was timely, the explanations offered by plaintiff’s counsel, in his affirmation in support of the instant motion and various documents attached to exhibit F of the instant motion, attempting to cure the four defects explained by the Court in the prior May 2, 2008 decision and order, are so incredible, outrageous, ludicrous and disingenuous that they should have been authored by the late Rod Serling, creator of the famous science-fiction televison series, The Twilight Zone. Plaintiff’s counsel, Steven J. Baum, P.C., appears to be operating in a parallel mortgage universe, unrelated to the real universe. Rod Serling’s opening narration, to episodes in the 1961-1962 season of The Twilight Zone (found at www.imdb.com/title/tt005250/quotes), could have been an introduction to the arguments presented in support of the instant motion by plaintiff’s counsel, Steven J. Baum, P.C. — “You are traveling through another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone.” With respect to the first issue for the renewed motion for an order of reference, the validity of the September 10, 2007 assignment of the subject mortgage and note by MERS, as nominee for CAMBRIDGE, to plaintiff HSBC by “Nicole Gazzo, Esq., on behalf of MERS, by Corporate Resolution dated 7/19/07,” plaintiff’s counsel claims that the assignment is valid because Ms. Gazzo is an officer of MERS, not an agent of MERS. Putting aside Ms. Gazzo’s conflicted status as both assignor attorney and employee of assignee’s counsel, Steven J. Baum, P.C., how would the Court have known from the plain language of the September 10, 2007 assignment that the assignor, Ms. Gazzo, is an officer of MERS? She does not state in the assignment that she is an officer of MERS and the corporate resolution is not attached. Thus, counsel’s claim of a valid assignment takes the Court into “another dimension” with a “journey into a wondrous land of imagination,” the mortgage twilight zone. Next, plaintiff’s counsel attached to exhibit F the July 17, 2007 “Agreement for Signing Authority” between MERS, Wells Fargo Home Mortgage, a Division of Wells Fargo Bank NA (WELLS FARGO), a MERS “Member” and Steven J. Baum, P.C., as WELLS FARGO’s “Vendor.” The parties agreed, in ¶ 3, that “in order for Vendor [Baum] to perform its contractual duties to Member [WELLS FARGO], MERS, by corporate resolution, will grant employees of Vendor [Baum] the limited authority to act on behalf of MERS to perform certain duties. Such authority is set forth in the Resolution, which is made a part of this Agreement.” Also attached to exhibit F is the MERS corporate resolution, certified by William C. Hultman, Corporate Secretary of MERS, that MERS’ Board of Directors adopted this resolution, effective July 19, 2007, resolving:

that the attached list of candidates are employee(s) of Steven J. Baum, P.C. and are hereby appointed as assistant secretaries and vice presidents of Mortgage Electronic Registration Systems, Inc., and as such are authorized to: Execute any and all documents necessary to foreclose upon the property securing any mortgage loan registered on the MERS System that is shown to be registered to the Member . . . Take any and all actions and execute all documents necessary to protect the interest of the Member, the beneficial owner of such mortgage loan, or MERS in any bankruptcy proceedings . . . Assign the lien of any mortgage loan registered on the MERS System that is shown to be registered to Wells Fargo.

Then, the resolution certifies five Steven J. Baum, P.C. employees [all currently admitted to practice in New York and listing Steven J. Baum, P.C. as their employer in the Office of Court Administration Attorney Registry] as MERS officers. The five are Brian Kumiega, Nicole Gazzo, Ron Zackem, Elpiniki Bechakas, and Darleen Karaszewski. The language of the MERS corporate resolution flies in the face of documents recorded with the City Register of the City of New York. The filed recordings with the City Register show that the subject mortgage was owned first by MERS, as nominee for CAMBRIDGE, and then by HSBC as Trustee for a Nomura collateralized debt obligation. However, if the Court follows the MERS’corporate resolution and enters into a new dimension of the mind, the mortgage twilight zone, the real owner of the subject mortgage is WELLS FARGO, the MERS Member and loan servicer of the subject mortgage, because the corporate resolution states that the Member is “the beneficial owner of such mortgage loan.” The MERS mortgage twilight zone was created in 1993 by several large “participants in the real estate mortgage industry to track ownership interests in residential mortgages. Mortgage lenders and other entities, known as MERS members, subscribe to the MERS system and pay annual fees for the electronic processing and tracking of ownership and transfers of mortgages. Members contractually agree to appoint MERS to act as their common agent on all mortgages they register in the MERS system.” (MERSCORP, Inc. v Romaine, 8 NY3d 90, 96 [2006]). Next, with respect to Ms. Gazzo’s employer, Steven J. Baum, P.C, and its representation of MERS, through Ms. Gazzo, the Court continues to journey through the mortgage twilight zone. Also, attached to exhibit F of the instant motion is the August 11, 2008 affirmation of Steven J. Baum, Esq., affirmed “under the penalties of perjury.” Mr. Baum states, in ¶ 3, that “My firm does not represent HSBC . . . and MERS simultaneously in the instant action.” Then, apparently overlooking that the subject notice of pendency, summons, complaint and instant motion, which all clearly state that Steven J. Baum, P.C. is the attorney for plaintiff HSBC, Mr. Baum states, in ¶ 4 of his affirmation, that “My firm is the attorney of record for Wells Fargo Bank, N.A., d/b/a America’s Servicing Company, attorney in fact for HSBC Bank USA, N.A., as Trustee for Nomura Asset-Backed Certificate Series 2006-AF1. My firm does not represent . . . [MERS] as an attorney in this action.” In the mortgage world according to Steven J. Baum, Esq., there is a fine line between acting as an attorney for MERS and as a vendor for a MERS member. If Mr. Baum is not HSBC’s attorney, but the attorney for WELLS FARGO, why did he mislead the Court and defendants by stating on all the documents filed and served in the instant action that he is plaintiff’s attorney for HSBC? Further, in ¶ 6 of his affirmation, he states “Nowhere does the Resolution indicate that Ms. Gazzo, or my firm, or any attorney or employee of my firm, shall act as an attorney for MERS. As such I am unaware of any conflict of interest of Steven J. Baum, P.C. or any of its employees, in this action.” While Mr. Baum claims to be unaware of the inherent conflict of interest, the Court is aware of the conflict. ¶ 3 of the MERS “Agreement for Signing Authority,” cited above, states that “in order for Vendor [Baum] to perform its contractual duties to Member [WELLS FARGO], MERS, by corporate resolution, will grant employees of Vendor [Baum] the limited authority to act on behalf of MERS to perform certain duties. Such authority is set forth in the Resolution, which is made a part of this Agreement.” As the Court continues through the MERS mortgage twilight zone, attached to exhibit F is the June 30, 2009-affidavit of MERS’ Secretary, William C. Hultman. Mr. Hultman claims, in ¶ 3, that Steven J. Baum, P.C. is not acting in the instant action as attorney for MERS and, in ¶ 4, Ms. Gazzo in her capacity as an officer of MERS executed the September 10, 2007 subject assignment “to foreclose on a mortgage loan registered on the MERS System that is being serviced by Wells Fargo Bank, N.A.” Thus, Mr. Hultman perceives that mortgages registered on the MERS system exist in a parallel universe to those recorded with the City Register of the City of New York. While Mr. Hultman waives, in ¶ 9, any conflict that might exist by Steven J. Baum, P.C. in the instant action, neither he nor Mr. Baum address whether MERS, pursuant to 22 NYCRR § 1200.24, consented to simultaneous representation in the instant action, with “full disclosure of the implications of the simultaneous representation and the advantages and risks involved” explained to MERS. Then, attached to exhibit F, there is the June 11, 2008-affidavit of China Brown, Vice President Loan Documentation of WELLS FARGO. This document continues the Court’s trip into “a wondrous land of imagination.” Despite the affidavit’s caption stating that HSBC is the plaintiff, Mr. or Ms. Brown (the notary public’s jurat refers several times to China Brown as “he/she”), states, in ¶ 4, that “Steven J. Baum, P.C. represents us as an attorney of record in this action.” The Court infers that “us” is WELLS FARGO. Moving to the third issue that plaintiff was required to address in the instant motion, compliance with the statutory requirements of CPLR § 3215 (f) with an affidavit of facts executed by someone with authority to execute such an affidavit, plaintiff’s instant motion contains an affidavit of merit, attached as exhibit C, by Kim Miller, “Vice President of Wells Fargo Bank, N.A. as Attorney in Fact for HSBC,” executed on December 8, 2008, 220 days after my May 2, 2008 decision and order. The affidavit of merit is almost six months late. Again, plaintiff attached a photocopy of the July 19, 2004 “Limited Power of Attorney” from HSBC [exhibit D], which appointed WELLS FARGO as its attorney-in-fact to perform various enumerated services, by executing documents “if such documents are required or permitted under the terms of the related servicing agreements . . . in connection with Wells Fargo[‘s] . . . responsibilities to service certain mortgage loans . . . held by HSBC . . . as Trustee of various trusts.” Further, the “Limited Power of Attorney” fails to list any of these “certain mortgage loans.” Therefore, the Court is unable to determine if the subject mortgage loan is one of the mortgage loans that WELLS FARGO services for HSBC. The “Limited Power of attorney” gives WELLS FARGO the right to execute foreclosure documents “if such documents are required or permitted under the terms of the related servicing agreements.” Instead of presenting the Court with the “related servicing agreement” for review, plaintiff’s counsel submits copies of the cover page and redacted pages 102, 104 and 105 of the October 1, 2006 Pooling and Servicing Agreement between WELLS FARGO, as Master Servicer, HSBC, as Trustee, and other entities. This is in direct contravention of the Court’s May 2, 2008-directive to plaintiff HSBC that it provides the Court with the entire pooling and servicing agreement upon renewal of the instant motion. Thomas Westmoreland, Vice President Loan Documentation of HSBC, in ¶ 10 of his attached June 13, 2008-affidavit, also in exhibit F, claims that the snippets of the pooling and servicing agreement provided to the Court are “a copy of the non-proprietary portions of the Pooling and Servicing Agreement that was entered into when the pool of loans that contained the subject mortgage was purchased.” The Court cannot believe that there is any proprietary or trade secret information in a boilerplate pooling and servicing agreement. If plaintiff HSBC utilizes an affidavit of facts by a loan servicer, not an HSBC officer, to secure a judgment on default, pursuant to CPLR § 3215 (f), then the Court needs to examine the entire pooling and servicing agreement, whether proprietary or non-p

roprietary, to determine if the pooling and servicing agreement grants authority, pursuant to a power of attorney, to the affiant to execute the affidavit of facts.

Further, there is hope that Mr. Westmoreland, unlike Steven J. Baum, Esq., is not in another dimension. Mr. Westmoreland, in ¶ 1 of his affidavit, admits that HSBC is the plaintiff in this action. However, with respect to why plaintiff HSBC purchased the subject nonperforming loan, Mr. Westmoreland admits to a lack of due diligence by plaintiff HSBC. His admissions are straight from the mortgage twilight zone. He states in his affidavit, in ¶’s 4-7 and part of ¶ 10: 4. The secondary mortgage market is, essentially, the buying and selling of “pools” of mortgages. 5. A mortgage pools is the packaging of numerous mortgage loans together so that an investor may purchase a significant number of loans in one transaction. 6. An investigation of each and every loan included in a particular mortgage pool, however, is not conducted, nor is it feasible. 7. Rather, the fact that a particular mortgage pool may include loans that are already in default is an ordinary risk of participating in the secondary market . . . 10. . . . Indeed, the performance of the mortgage pool is the measure of success, not any one individual loan contained therein. [Emphasis added] The Court can only wonder if this journey through the mortgage twilight zone and the dissemination of this decision will result in Mr. Westmoreland’s affidavit used as evidence in future stockholder derivative actions against plaintiff HSBC. It can’t be comforting to investors to know that an officer of a financial behemoth such as plaintiff HSBC admits that “[a]n investigation of each and every loan included in a particular mortgage pool, however, is not conducted, nor is it feasible” and that “the fact that a particular mortgage pool may include loans that are already in default is an ordinary risk of participating in the secondary market.”

Cancelling of 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 beensettled, 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 (Black’s Law Dictionary 3 [7th ed 1999]) as “the act of eliminating or nullifying.” “An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d § 11.1).” (Nastasi v Natassi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” Thus, the dismissal of the instant complaint must result in the mandatory cancellation of plaintiff HSBC’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, HSBC BANK USA, N.A. AS TRUSTEE FOR NOMURA ASSET-BACKED CERTIFICATE SERIES 2006-AF1, for an order of reference, for the premises located at 22 Jefferson Street, Brooklyn, New York (Block 3170, Lot 20, County of Kings), is denied with prejudice; and it is further

ORDERED, that the instant action, Index Number 34142/07, is dismissed with prejudice; and it is further

ORDERED that the Notice of Pendency in this action, filed with the Kings County Clerk on September 10, 2007, by plaintiff, HSBC BANK USA, N.A. AS TRUSTEE FOR NOMURA ASSET-BACKED CERTIFICATE SERIES 2006-AF1, to foreclose a mortgage for real property located at 22 Jefferson Street, Brooklyn New York (Block 3170, Lot 20, County of Kings), is cancelled.

This constitutes the Decision and Order of the Court.

Via: FRAUD DIGEST

The trial court opinion was published in the New York Law Journal.

KINGS COUNTY
Real Property
Bank Fails to Rebut Satisfaction’s Validity Created By Notary’s Acknowledgment; Foreclosure Denied

Wells Fargo Bank NA v. Moise

Defendants seek summary judgment based on the fact that Plaintiff has not shown a valid assignment of the mortgage and note.

Plaintiff originally submitted an assignment of the mortgage dated April 30, 2009. The assignment was signed by Yolanda Williams, Assistant Secretary of Mortgage Electronic Systems, Inc..  However, the notary public’s acknowledgement states that she witnessed and acknowledged the signature of Herman John Kennerty, whose name does not appear anywhere on the document.

Plaintiff acknowledges that there was a mistake on the assignment and argues the mistake was de minimis not curat lex.  It also argues that the Court should simply replace the defective assignment with the correction assignment, and proceed with its action.  In fact, the error was not de minimis as the signature of the purported assignor was not acknowledged, rendering the assignment a nullity.

A simple typographical error can be amended, but a failure to properly acknowledge the signature of a person who signed the instrument cannot be. No affidavit is submitted either Yolanda Williams or the notary Lisa Rhyne explaining what the alleged error was or how it occurred. In fact, the so called “correction” assignment in fact is acknowledged by a different notary on a different date.

Folks there is just way too many. Eventually this will all be released.

Every Foreclosure/REO/Short Sale out there is virtually like this!

via ForeclosureHamlet.org & 4closurefraud.org

The attached documents are almost always the sole “evidence” showing the right of a foreclosing entity/servicer (or their shell National Bank Cover ie: US Bank) to foreclose on an American family’s home, evicting them from the only shelter that may be available to them.

Millions of examples of this and other “robo-signers” available upon request.

Of note, please see the last attachment; her deposition where she denies any “personal knowledge” or even a cursory glance at the facts of the case.

America………..what a heartache……….

ANOTHER POINT IS THEY seem to be different signatures. Some have loops and some do not.

DEPOSITION_OF_BETH-COTTRELL-CHASE-HOME-FINANCE

In re: SIMEON MORENO, Chapter 13, Debtor

Case No. 08-17715-FJB.

United States Bankruptcy Court, D. Massachusetts, Eastern Division.

May 24, 2010.

MEMORANDUM OF DECISION ON MOTION OF PROPERTY ASSET MANAGEMENT, INC. FOR RELIEF FROM THE AUTOMATIC STAY

FRANK J. BAILEY, Bankruptcy Judge

In the Chapter 13 case of debtor Simeon Moreno, Property Asset Management, Inc. (“PAM”), claiming to be the assignee of a mortgage originally given by the debtor to Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for lender GE Money Bank, moved for relief from the automatic stay to foreclose the mortgage. Moreno initially opposed the motion but then withdrew his objection, whereupon the Court granted the relief requested. Months later, at Moreno’s request, the Court vacated the order granting relief from stay and scheduled an evidentiary hearing on the Motion for Relief from Stay for the limited purpose of reconsidering whether PAM had an interest in the mortgage it sought to foreclose and, to that extent, standing to seek relief from stay.^[1] Having held the evidentiary hearing and received proposed findings and conclusions, the Court now enters the following findings of fact and conclusions of law.

Findings of Fact and Procedural History

On January 23, 2007, Moreno executed a promissory note in the principal amount of $492,000, payable to lender GE Money Bank. GE subsequently endorsed the note in blank, whereupon possession of the note was transferred through a series of holders and ultimately to Lehman Brothers Holdings, Inc. (“LBHI”), who held the note when PAM filed its Motion for Relief from Stay and continues to hold it now.^[2] LBHI, through one of its employees and through LBHI’s attorney, who not coincidentally also is PAM’s attorney in the present matter, produced the original note at the evidentiary hearing. PAM is not now a holder of the note or an entity for whose benefit another has held the note.

To secure the promissory note, Moreno gave a mortgage on the real property at 5 Maple Street, West Roxbury, Massachusetts (the “Property”) to MERS as nominee for GE (the “Mortgage”). The Mortgage specifies that MERS “is a separate corporation that is acting solely as a nominee for [GE] and [GE’s] successors and assigns. MERS is the mortgagee under this security instrument.” The Mortgage further provides that Moreno does hereby mortgage, grant and convey to MERS (solely as nominee for [GE] and [GE’s] successors and assigns) and to the successors and assigns of MERS, with power of sale, the [Property]. . . . Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for [GE] and [GE’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 [GE] including, but not limited to, releasing and canceling this Security Instrument.

The Mortgage was duly recorded.

MERS administers an electronic registry to track the transfer of ownership interest and servicing rights in mortgage loans. With respect to certain loans of which its members are the beneficial owners, MERS also serves as mortgagee of record and holds legal title to the mortgages in a nominee capacity. MERS remains the mortgagee of record when beneficial ownership interests or servicing rights are sold from one member of the MERS system to another. When the beneficial interest in a mortgage loan is transferred from one member of the MERS system to another, MERS tracks the transfer through its internal records. When rights are transferred from a member of the MERS system to a non-member, MERS executes and records an assignment from MERS to the non-member.

To facilitate the execution of the assignments from MERS, MERS designates “certifying officers,” who are typically employees of MERS member firms. MERS authorizes these employees, through formal corporate resolutions, to execute assignments on behalf of MERS. On or about January 6, 2005, MERS, through a document entitled Corporate Resolution and issued by its board of directors, authorized Denise Bailey, an employee of Litton Loan Servicing L.P. (“Litton”), a member of MERS, to execute such assignments on behalf of MERS. In the language of the authorizing document (the “MERS Authorization”),^[3] Ms. Bailey was authorized to, among other things, “assign the lien of any mortgage loan naming MERS as the mortgagee when the Member [Litton] is also the current promissory note-holder, or if the mortgage loan is registered on the MERS System, is shown [sic] to be registered to the Member”^[4]; and Ms. Bailey was further authorized to “take any such actions and execute such documents as may be necessary to fulfill the Member’s servicing obligations to the beneficial owner of such mortgage loan (including mortgage loans that are removed from the MERS System as a result of the transfer thereof to a non-member of MERS).” In each instance, Bailey’s authority to act is dependent on the existence of a specified relationship of Litton, the MERS member for whom she is employed, to the loan in question.

The Moreno loan was entered into the MERS tracking database in the ordinary course of business. Thereafter, MERS tracked the beneficial interest in the loan. The beneficial interest was transferred from G.E. Money Bank to WMC Mortgage Corporation; then, on September 19, 2007, from WMC Mortgage Corporation to Aurora Bank FSB (formerly known as Lehman Brothers Bank FSB), and then, on July 30, 2008, from Aurora Bank FSB to LBHI. Aurora Bank was at all relevant times a wholly-owned subsidiary of LBHI.

With respect to the Moreno Mortgage, MERS remained the mortgagee of record until, on or about April 30, 2008, MERS, acting through Denise Bailey, assigned the Mortgage to PAM. At the time, Aurora Bank FSB was the beneficial owner of the loan. In executing the MERS assignment to PAM, Ms. Bailey purported to be acting under her MERS Authorization.

The MERS Authorization limited Ms. Bailey’s authority to act for MERS to matters with respect to which Litton was involved in at least one of the ways specified in the above-quoted language from the MERS Authorization. There is evidence, and I find, that Aurora Bank FSB had requested that Litton transfer the loan from MERS to PAM in anticipation of foreclosure. However, PAM has adduced no evidence that Litton had any specified connection to this loan at the time it executed this assignment. There is no evidence that Litton was then (or at any time) the servicer of the loan for Aurora Bank or that Litton was registered as servicer of the loan in the MERS system.^[5] (PAM does not contend that Litton was the holder of the promissory note or the owner of the beneficial interest in the loan.)

Scott Drosdick, a vice-president of LBHI and witness for PAM at the evidentiary hearing, testified that Aurora Bank’s instruction to Litton to transfer the mortgage to PAM was later “ratified by LBHI.” Drosdick did not explain what he meant by this, precisely how and when this ratification occurred. Absent such evidence and clarification, this testimony is too vague to have any definite meaning; accordingly I give it no weight.

By a master servicing agreement dated February 1, 1999, LBHI engaged Aurora Loan Services, Inc., now known as Aurora Loan Services LLC (“ALS”), as master servicer of certain loans, including eventually the present Moreno loan. In turn, ALS engaged Litton to service certain loans, including eventually this same loan.

After Bailey executed the MERS assignment to PAM, Bailey executed another assignment of the same mortgage from MERS to LBHI. This second assignment was never recorded; nor is there evidence that it was ever delivered by MERS to LBHI.

Moreno filed a petition for relief under Chapter 13 of the Bankruptcy Code on October 13, 2008, commencing the present bankruptcy case. On November 13, 2008, LBHI, acting through its servicer Litton Loan Servicing, LP, filed a proof of claim in this case; the proof of claim asserts a claim, secured by real estate, in the total amount of $530,168.04, the same secured claim as PAM now seeks relief from stay to enforce by foreclosure. On the proof of claim form itself, Litton actually identifies the creditor claimant as simply “Litton,” but on an explanatory document attached to the proof of claim form, Litton states that the claim is filed by “Litton Loan Servicing, LP, as Servicing Agent for Lehman Brothers Holdings Inc.” The proof of claim does not mention PAM or indicate in any way that the mortgage securing the claim is held by anyone other than LBHI.

On March 31, 2009, and at LBHI’s direction, PAM filed the present motion for relief from the automatic stay, seeking relief from the automatic stay to foreclose and to preserve its rights as to a potential deficiency. PAM intends and is obligated to remit the proceeds of the intended foreclosure sale to Aurora Loan Services LLC, as servicer for LBHI. Regarding ownership of the note and Mortgage, PAM stated in the motion only that it was the holder of a mortgage originally given by Moreno to MERS, that the mortgage secured a note given by Moreno to GE, and that MERS had assigned the mortgage to PAM. PAM did not indicate that LBHI was the current holder of the note or that it held the mortgage as nominee for the benefit of LBHI or of any other entity. The motion did not mention LBHI.

Moreno filed a response to the motion, in essence an objection, in which he expressly admitted PAM’s allegation that his prepetition arrearage was $39,442.49 and, by lack of denial, tacitly admitted that Moreno was some four months in arrears on his postpetition payments under the mortgage. By these allegations and admissions, PAM has established that Moreno is in default on his mortgage loan obligations; the Court rejects Moreno’s request for a finding that PAM has not established a default. The response made no issue of PAM’s standing to foreclose or to seek relief from stay and did not dispute PAM’s allegations regarding ownership of the note and Mortgage. In any event, before a hearing was held on the motion, Moreno, through counsel, withdrew his objection. Consequently, on April 28, 2009, and without a hearing or any review of apparent inconsistencies in the bankruptcy record concerning ownership of the mortgage and note, the court granted PAM relief from the automatic stay to foreclose and to preserve its rights as to a potential deficiency.

PAM had not yet foreclosed when, on December 2, 2009 and by new counsel, Moreno filed an adversary complaint against PAM and, with it, a motion for preliminary injunction. The complaint sought among other things (i) an order invalidating the mortgage on account of irregularities in its origination and (ii) a declaration that PAM was not the holder of the mortgage and note. In the motion for preliminary injunction, Moreno asked that the foreclosure be stayed, or that the automatic stay be reimposed, pending disposition of the adversary proceeding. On December 7, 2009, after a hearing on the motion for preliminary injunction, the Court found that the motion was, in part, essentially one to vacate the order granting relief from the automatic stay, vacated that order, and scheduled an evidentiary hearing on the motion for relief. The order specified that the sole issue at the evidentiary hearing would be PAM’s standing to seek relief from the automatic stay, all other issues under 11 U.S.C. § 362(d) being deemed established. After discovery, the evidentiary hearing was held on April 8, 2010, and, with the submission of proposed findings and conclusions, the matter was then taken under advisement.

Discussion

As the party seeking relief from stay to foreclose a mortgage on the debtor’s property, PAM bears the burden of proving that it has authority under applicable state law to foreclose the mortgage in question and, by virtue of that authority, standing to move for relief from the automatic stay to foreclose. PAM contends that it has such authority and standing because, although it does not hold the promissory note that the mortgage secures, it does have title to the mortgage itself; and it holds that title as nominee of and for the benefit of the note holder, LBHI, and is foreclosing for LBHI. In these circumstances, PAM contends, a mortgagee has a right under Massachusetts law to foreclose for the benefit of the note holder and therefore standing to move for relief from stay to foreclose. The Debtor objects, arguing (among other things) that Massachusetts law prohibits foreclosure by one who holds only the mortgage and not the note it secures. I need not address the merits of this and other objections because, even if the theory is a valid one, it requires proof that PAM is the present title holder of the mortgage, and PAM has not carried its burden in this regard.

To show that it presently holds the mortgage, PAM must show a valid assignment of the mortgage from MERS to itself. PAM contends that it holds the mortgage by assignment from MERS. Accordingly, PAM must show that the assignment, which was executed for MERS by Denise Bailey, was within the scope of Bailey’s limited authority to act for MERS.

Ms. Bailey’s authority to act for MERS is defined in the MERS Authorization in seven enumerated paragraphs. In each, Ms. Bailey’s authority to act is dependent on the existence of a specified relationship of Litton, the MERS member by whom she is employed, to the loan in question. PAM has submitted no evidence of the existence of any such relationship. The beneficial owner of the loan at the time of the assignment was Aurora Bank FSB, but there is no evidence that Litton was at the time the servicer of the loan for Aurora Bank FSB or was registered with MERS as such. The Court does not find that Aurora Bank FSB had not retained Litton as its servicer; there is simply no evidence on the issue. But the burden is on PAM to prove that it had, and PAM has not adduced evidence to that effect.

Accordingly, by a separate order, the Court will deny PAM’s motion for relief from the automatic stay without prejudice to renewal upon proper proof.

[1] All other issues were resolved upon entry of the original order granting relief from stay. No cause has been adduced to revisit any but the narrow issue of standing.

[2] Moreno contends that LBHI, which is in bankruptcy proceedings of its own, may have sold its interest in the note through a court-approved sale in its bankruptcy case. However, Moreno does not contend that possession of the note has passed from LBHI to the alleged purchaser (or any nominee of the purchaser), and therefore the alleged possible sale is irrelevant, as possession undisputedly remains in LBHI. In any event, Moreno attempted to establish the fact of the alleged sale by designating certain documents on the docket of the LBHI case and asking the Court to take judicial notice of these and then to find them on its own and to determine from them whether the promissory note in question was among the assets transferred. Having found the alleged sale to be irrelevant, the Court declined to take judicial notice of the bankruptcy documents. However, the proffer also failed for two additional reasons: first, that Moreno did not take a position as to whether a sale did occur, only that the Moreno note may have been among those transferred in the sale; and second, even if the court had taken judicial notice as requested, it remained Moreno’s obligation, which he has not fulfilled, to produce the documents in question and to explain in the first instance how one would conclude from them that the asset in question was among those transferred.

[3] MERS Corporate Resolution, attached to Bailey Affidavit as Exhibit 1.

[4] The grammatical difficulty in this second clause is native to the authorizing document.

[5] The original affidavit of Scott Drosdick includes the following two sentences:

By Master Servicing Agreement dated February 1, 1999, LBHI engaged Aurora Bank FSB (f/k/a Lehman Brothers Bank FSB), to master service, among other things, the Loan [the Moreno loan]. In turn, Aurora Bank FSB engaged Litton pursuant to a Flow Subservicing Agreement dated October 1, 2007, to service the loan.”

By an amendment to the affidavit and in testimony, Drosdick later amended his affidavit to correct this passage by striking Aurora Bank FSB from the first sentence and in its place inserting Aurora Loan Services LLC. Drosdick did not expressly change the second sentence, but that sentence, which begins with the critical words “in turn,” would be nonsensical unless the same substitution—Aurora Loan Services LLC for Aurora Bank FSB—were also made in the second sentence. Therefore, though the second sentence might perhaps be read in isolation as evidence that Litton was servicing the loan for Aurora Bank FSB at the time when Bailey executed the assignment, that sentence cannot credibly be so construed.

If other judges knew more of what really is than whats not perhaps they would also know the fraud that is being played in their court rooms.

By MICHAEL POWELL Published: August 30, 2009

The judge waves you into his chambers in the State Supreme Court building in Brooklyn, past the caveat taped to his wall — “Be sure brain in gear before engaging mouth” — and into his inner office, where foreclosure motions are piled high enough to form a minor Alpine chain.

 Nicole Bengiveno/The New York Times

“I don’t want to put a family on the street unless it’s legitimate,” Justice Arthur M. Schack said.

Every week, the nation’s mightiest banks come to his court seeking to take the homes of New Yorkers who cannot pay their mortgages. And nearly as often, the judge says, they file foreclosure papers speckled with errors.

He plucks out one motion and leafs through: a Deutsche Bank representative signed an affidavit claiming to be the vice president of two different banks. His office was in Kansas City, Mo., but the signature was notarized in Texas. And the bank did not even own the mortgage when it began to foreclose on the homeowner.

The judge’s lips pucker as if he had inhaled a pickle; he rejected this one.

“I’m a little guy in Brooklyn who doesn’t belong to their country clubs, what can I tell you?” he says, adding a shrug for punctuation. “I won’t accept their comedy of errors.”

The judge, Arthur M. Schack, 64, fashions himself a judicial Don Quixote, tilting at the phalanxes of bankers, foreclosure facilitators and lawyers who file motions by the bale. While national debate focuses on bank bailouts and federal aid for homeowners that has been slow in coming, the hard reckonings of the foreclosure crisis are being made in courts like his, and Justice Schack’s sympathies are clear.

He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years. And his often scathing decisions, peppered with allusions to the Croesus-like wealth of bank presidents, have attracted the respectful attention of judges and lawyers from Florida to Ohio to California. At recent judicial conferences in Chicago and Arizona, several panelists praised his rulings as a possible national model.

His opinions, too, have been greeted by a cry of affront from a bank official or two, who say this judge stands in the way of what is rightfully theirs. HSBC bank appealed a recent ruling, saying he had set a “dangerous precedent” by acting as “both judge and jury,” throwing out cases even when homeowners had not responded to foreclosure motions.

Justice Schack, like a handful of state and federal judges, has taken a magnifying glass to the mortgage industry. In the gilded haste of the past decade, bankers handed out millions of mortgages — with terms good, bad and exotically ugly — then repackaged those loans for sale to investors from Connecticut to Singapore. Sloppiness reigned. So many papers have been lost, signatures misplaced and documents dated inaccurately that it is often not clear which bank owns the mortgage.

Justice Schack’s take is straightforward, and sends a tremor through some bank suites: If a bank cannot prove ownership, it cannot foreclose.

“If you are going to take away someone’s house, everything should be legal and correct,” he said. “I’m a strange guy — I don’t want to put a family on the street unless it’s legitimate.”

Justice Schack has small jowls and big black glasses, a thin mustache and not so many hairs combed across his scalp. He has the impish eyes of the high school social studies teacher he once was, aware that something untoward is probably going on at the back of his classroom.

He is Brooklyn born and bred, with a master’s degree in history and an office loaded with autographed baseballs and photographs of the Brooklyn Dodgers. His written decisions are a free-associative trip through popular, legal and literary culture, with a sideways glance at the business pages.

Confronted with a case in which Deutsche Bank and Goldman Sachs passed a defaulted mortgage back and forth and lost track of the documents, the judge made reference to the film classic “It’s a Wonderful Life” and the evil banker played by Lionel Barrymore.

“Lenders should not lose sight,” Justice Schack wrote in that 2007 case, “that they are dealing with humanity, not with Mr. Potter’s ‘rabble’ and ‘cattle.’ Multibillion-dollar corporations must follow the same rules in the foreclosure actions as the local banks,savings and loan associations or credit unions, or else they have become the Mr. Potters of the 21st century.”

Last year, he chastised Wells Fargo for filing error-filled papers. “The court,” the judge wrote, “reminds Wells Fargo of Cassius’s advice to Brutus in Act 1, Scene 2 of William Shakespeare’s ‘Julius Caesar’: ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ ”

Then there is a Deutsche Bank case from 2008, the juicy part of which he reads aloud:

“The court wonders if the instant foreclosure action is a corporate ‘Kansas City Shuffle,’ a complex confidence game,” he reads. “In the 2006 film ‘Lucky Number Slevin,’ Mr. Goodkat, a hit man played by Bruce Willis, explains: ‘A Kansas City Shuffle is when everybody looks right, you go left.’ ”

The banks’ reaction? Justice Schack shrugs. “They probably curse at me,” he says, “but no one is interested in some little judge.”

Little drama attends the release of his decisions. Beaten-down homeowners rarely show up to contest foreclosure actions, and the judge scrutinizes the banks’ papers in his chambers. But at legal conferences, judges and lawyers have wondered aloud why more judges do not hold banks to tougher standards.

“To the extent that judges examine these papers, they find exactly the same errors that Judge Schack does,” said Katherine M. Porter, a visiting professor at the School of Law at the University of California, Berkeley, and a national expert in consumer credit law. “His rulings are hardly revolutionary; it’s unusual only because we so rarely hold large corporations to the rules.”

Banks and the cottage industry of mortgage service companies and foreclosure lawyers also pay rather close attention.

A spokeswoman for OneWest Bank acknowledged that an official, confronted with a ream of foreclosure papers, had mistakenly signed for two different banks — just as the Deutsche Bank official did. Deutsche Bank, which declined to let an attorney speak on the record about any of its cases before Justice Schack, e-mailed a PDF of a three-page pamphlet in which it claimed little responsibility for foreclosures, even though the bank’s name is affixed to tens of thousands of such motions. The bank described itself as simply a trustee for investors.

Justice Schack came to his recent prominence by a circuitous path, having worked for 14 years as public school teacher in Brooklyn. He was a union representative and once walked a picket line with his wife, Dilia, who was a teacher, too. All was well until the fiscal crisis of the 1970s.

“Why’d I go to law school?” he said. “Thank Mayor Abe Beame, who froze teacher salaries.”

He was counsel for the Major League Baseball Players Association in the 1980s and ’90s, when it was on a long winning streak against team owners. “It was the millionaires versus the billionaires,” he says. “After a while, I’m sitting there thinking, ‘He’s making $4 million, he’s making $5 million, and I’m worth about $1.98.’ ”

So he dived into a judicial race. He was elected to the Civil Court in 1998 and to the Supreme Court for Brooklyn and Staten Island in 2003. His wife is a Democratic district leader; their daughter, Elaine, is a lawyer and their son, Douglas, a police officer.

Justice Schack’s duels with the banks started in 2007 as foreclosures spiked sharply. He saw a plague falling on Brooklyn, particularly its working-class black precincts. “Banks had given out loans structured to fail,” he said.

The judge burrowed into property record databases. He found banks without clear title, and a giant foreclosure law firm, Steven J. Baum, representing two sides in a dispute. He noted that Wells Fargo’s chief executive, John G. Stumpf, made more than $11 million in 2007 while the company’s total returns fell 12 percent.

“Maybe,” he advised the bank, “counsel should wonder, like the court, if Mr. Stumpf was unjustly enriched at the expense of W.F.’s stockholders.”

He was, how to say it, mildly appalled.

“I’m a guy from the streets of Brooklyn who happens to become a judge,” he said. “I see a bank giving a $500,000 mortgage on a building worth $300,000 and the interest rate is 20 percent and I ask questions, what can I tell you?”