- FL 1st DCA – Summary Judgment REVERSED – The Record Contains NO Evidence of Any Assignment or Comparable Transaction
- FL 1st DCA Fraudclosure Reversed | Mazine v. M&I Bank “None of the Requirements for Admission of a Business Record Were Met”
- FL 2nd DCA Smackdown | Summary Judgement REVERSED “Record reflected genuine issues of material fact regarding the purported assignment of mortgage”
Dec
14
FL 4th DCA Fraudclosure Reversed | McLEAN vs JP MORGAN CHASE BANK – The record lacked any evidence that Chase had standing to foreclose at the time the lawsuit was filed
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2011 ROBERT McLEAN, Appellant, v. JP MORGAN CHASE BANK NATIONAL ASSOCIATION, not individually but solely as Trustee for the holders of STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC., MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-ARS, Appellee. No. 4D10-3429 [ December 14, 2011 ] PER CURIAM. … Read more
Related posts:
Sep
21
Are The Jeffrey Stephan Affidavits The Beginning of The End for Foreclosures in Florida?
The stunning reports from across the state that Florida Default Law Group was “withdrawing” affidavits that were submitted in foreclosure cases signed by Jeffrey Stephan are just mind blowing. I’ve posted two depositions below. What we’re all trying to figure out is just what this all means. The Rule of Professional Conduct cited by the law firm as the basis for withdrawing the affidavits is very serious and citing it has profound consequences. Here is the rule:
RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL
(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(b) Criminal or Fraudulent Conduct. A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) Ex Parte Proceedings. In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(d) Extent of Lawyer’s Duties. The duties stated in this rule continue beyond the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by rule 4-1.6.
By filing these notices across the state the foreclosure mills have opened up a Pandora’s box big enough to fit every single foreclosure courtroom in the State of Florida, perhaps even the country. Just what is the magnitude of these disclosures? How many were sent out? Are the notices limited to Jeffrey Stephan? To GMAC? To just this law firm? Finding out the answers to these important questions should keep this nation’s best and brightest reporters and journalists busy for quite some time. Whatever the answers to those questions, the implications are so profound.
I have been saying for months now, and I will state again for the record that,
“IN THE VAST MAJORITY OF FORECLOSURE CASES, THERE IS NOT A SINGLE PIECE OF CREDIBLE, ADMISSABLE EVIDENCE UPON WHICH A COURT SHOULD RELY TO GRANT SUMMARY JUDGMENT”
Let me add to that statement the following:
“THERE ARE TENS OF THOUSANDS OF FORECLOSURE JUDGMENTS AND TITLES TO FORECLOSED PROPERTIES THAT ARE VOID OR VOIDABLE AND WILL BE CHALLENGED AND TOSSED OUT WHEN THE GLARING ERRORS THAT HAVE BEEN COMMITTED ARE PURSUED AFTER THE FACT.”
And the following:
“IF THE FLORIDA ATTORNEY GENERAL CONTINUES TO AGGRESSIVELY PURSUE ALLEGATIONS OF FRAUD AND DECEPTIVE PRACTICES IN FORECLOSURE CASES, THE RESULTS WILL BE A BROAD INDICTMENT OF THE FAILURES OF FLORIDA’S ENTIRE COURT SYSTEM.”
I am so profoundly disappointed that the charges that will come will not come because our judges stood up and put an end to it all. They will not come because the Florida Bar took a leadership role and took a stand to protect consumers and they will not come because law enforcement, legislators or consumer protection agencies and official stepped in. They will come because the perpetrators and purveyors of this flawed system turned on themselves.
But most importantly, it will come because our press is doing their vital and essential function of raising the alarm bells and sounding the alarm of a crisis that is unfolding that affects us all.
GOD BLESS OUR FOREFATHERS FOR UNDERSTANDING THE CRITICAL IMPORTANCE OF A FREE PRESS!
Tweet this!
Share and Enjoy:
Scridb filter
Sep
09
Requesting Rehearing of a Summary Judgment Ruling
A few weeks ago I posted that I had lost a Summary Judgment hearing. That loss was most disturbing for me because I have lost very few and I cannot recall losing one where the homeowner wanted to stay in the home and was actively working with me. This frankly is not so much great lawyering on my part as much as it is the judges in this circuit correctly applying the law of Summary Judgment in these cases. The law is simple, if a question of material fact exists, Summary Judgment is not appropriate. The problem for Plaintiffs and the foreclosure mills is they very rarely are able to put together a case where a skilled attorney cannot document several material facts that preclude entry of Summary Judgment.
It’s not just material facts that cannot be in dispute, the Plaintiff must fulfill tricky evidentiary and technical burdens. I take every single case from the beginning as an effort in exposing and pleading out those deficiencies so that when we do go into a Summary Judgment hearing, I typically have multiple very specific objections filed. I also make sure I’ve got a court reporter, I go personally inspect the court file days ahead of the hearing and am prepared to reinforce my objections and make new ones during the hearing. In addition to all this advance work, I brief every single case and copy (and highlight) all my case law every single time to refresh my memory and to make sure I am doing my job to make sure the judge has the case law.
Even if all this is done, it’s still possible to lose a Summary Judgment hearing, but if one loses the loss and the error resulting from that loss will be properly preserved for appeal. Earlier in the week I published a transcript from a Summary Judgment hearing where the Summary Judgment standard was correctly applied and accordingly Summary Judgment was denied. I post that transcript again here, but I have also posted another transcript which shows how a Summary Judgment was granted despite the existence of multiple legal infirmities that preclude the entry of Summary Judgment. What follows are my Motions for Rehearing. Please consider the issues raised in these Motions and most importantly…MAKE SURE YOU HAVE A COURT REPORTER AT EVERY SINGLE HEARING!
Before we get to the pleadings, let’s be very clear about that point. There are far too many adverse hearings occurring and far too much complaining from our side about improper procedures. We all owe it to the courts (appellate and trial) and to the future generations to document all that is going wrong during this mad rush to drive the bus off the cliff. MAKE SURE YOU HAVE A COURT REPORTER AT EVERY SINGLE HEARING!
And now for the good stuff!
Taylor_Bean vs Preble_08-24-10_Beach_FullSize
Tweet this!
Share and Enjoy:
Scridb filter
Jul
03
FRAUD IS THE CENTRAL PROBLEM
It is hard to state this strongly enough. The entire mortgage backed securitization structure was based upon FRAUD. An intentional misstatement of a material fact known to be untrue and which the receiving party reasonably relies to his detriment is fraud. BOTH ends of this deal required fraud for completion. The investors had to believe the securities were worth more and carried less risk than reality. The borrowers had to believe that their property was worth more and carried less risk than reality. Exactly the same. Using ratings/appraisals and distorting their contractual and statutory duties, the sellers of this crap defrauded the investors, who supplied the money and the borrowers were accepted PART of the benefit.
See this article posted by our friend Anonymous:
Posts by Aaron Task
“A Gigantic Ponzi Scheme, Lies and Fraud”: Howard Davidowitz on Wall Street
Jul 01, 2010 08:00am EDT by Aaron Task in Newsmakers, Banking
Related: XLF, AIG, GS, JPM, BAC, C, FNM
Play Video
Play VideoNow Playing
Day one of the Financial Crisis Inquiry Commission’s two-day hearing on AIG derivatives contracts featured testimony from Joseph Cassano, the former head of AIG’s financial products unit. Goldman Sachs president Gary Cohn was also on the Hill.
Meanwhile, the Democrats are still trying to salvage the regulatory reform bill, with critical support from Senator Scott Brown (R-Mass.) reportedly still uncertain.
According to Howard Davidowitz of Davidowitz & Associates, what connects the hearings and the Reg reform debate is the lack of focus on the real underlying cause of the financial crisis: Fraud.
“It was a massive fraud… a gigantic Ponzi Scheme, a lie and a fraud,” Davidowitz says of Wall Street circa 2007. “The whole thing was a fraud and it gets back to the accountants valuing the assets incorrectly.”
Because accountants and auditors allowed Wall Street firms to carry assets at “completely fraudulent” valuations, he says the industry looked hugely profitable and was able to use borrowed funds to make leveraged bets on all sorts of esoteric instruments. “Their bonuses were based on profits they never made and the leverage they never could have gotten if the numbers were right – no one would’ve given them the money in their right mind,” Davidowitz says.
To date, the accounting and audit firms have escaped any serious repercussions from the credit crisis, a stark difference to the corporate “death sentence” that befell Arthur Anderson for its alleged role in the Enron scandal.
To Davidowitz, that’s perhaps the greatest outrage of all: “Where were the accountants?,” he asks. “They did nothing, checked nothing, agreed to everything” and collected millions in fees while “shaking hands with the CEO.”
Filed under: CASES, CDO, CORRUPTION, Eviction, evidence, expert witness, foreclosure, foreclosure mill, foreign relations, GTC | Honor, HERS, investment banking, MODIFICATION, Mortgage, securities fraud, Servicer, trustee Tagged: accountants, appraisals, fraud, lending fraud, Ponzi, predatory lending, ratings, risk, securities fraud, value
Feb
12
Let the In-Fighting Begin… HUGE case for Florida Homeowners
Fresh off the press of the 2nd District Court of Appeals, today the Fla. 2nd DCA issued a stunning shot across the bow of US financial institutions by reversing a trial court’s decision to grant summary judgment in favor of US Bank, NA.
CLICK HERE for a copy of the Final Order issued today, February 12, 2010.
What is absolutely hilarious about this case is that the homeowners were NOT involved in the case. Rather, BAC Funding Consortium Inc., who was the 2nd mortgagee in the case, appealed the trial courts decision and alleged that US Bank, NA did not have standing to foreclose. Oh the irony… we knew this would happen but it is certainly fun to watch it start to happen. Banks suing Lenders; Lenders suing Trustees; Investors suing Servicers. Much more to come… that’s a promise.
The essence of BAC’s argument? Summary judgment for the plaintiff in mortgage foreclosure action was premature where plaintiff had failed to establish standing to foreclose — Plaintiff moving for summary judgment before an answer is filed must establish that defendant could not raise any genuine issues of material fact if defendant were permitted to answer complaint — Because exhibit to plaintiff’s complaint conflicts with allegations concerning standing and exhibit does not show that plaintiff has standing to foreclose mortgage, plaintiff did not establish entitlement to foreclose mortgage — Incomplete, unsigned, and unauthenticated assignment attached as exhibit to plaintiff’s response to defendant’s motion to dismiss did not constitute admissible evidence establishing standing to foreclose note and mortgage.
The appellate court agreed and said,
“Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S. Bank never established its standing to foreclose.
The summary judgment standard is well-established. “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.” Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment before the defendant files an answer, “it [is] incumbent upon them to establish that no answer that [the defendant] could properly serve or affirmative defense it might raise” could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987) (holding that when a plaintiff moves for summary judgment before the defendant files an answer, “the plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact”). As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.
In this case, U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank’s standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) (“[W]e conclude that ABN had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question.”). While U.S. Bank alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists “Fremont Investment & Loan” as the “lender” and “MERS” as the “mortgagee.” When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”). Because the exhibit to U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.
Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.”
[END]
The part that I underlined is especially important to note… US Bank actually filed the original note in the record but the Note apparently lacked any endorsement in favor of US Bank, and, presumably did not have a blank endorsement either. The appellate court also did NOT accept the bogus assignment that US Bank filed – and we have certainly seen ALOT of highly questionable assignments flying off the desks of document production factories like LPS (Lender Processing Services), the Law Office of David J. Stern PA and FIS Foreclosure Solutions.
This is a fantastic case for attorneys and homeowners in Florida. There is a tremendous amount of legal ammunition in this case if you read the decision carefully and parse it out paragraph by paragraph.
UPDATE:
CLICK HERE to view the Class Action Lawsuit filed against Deutsche Bank, US Bank, LPS and DocX on Feb. 17, 2010 for committing fraud in foreclosure cases for creating unauthenticated mortgage assignments.
Nov
09
Finally, a Judge Willing to Hold Lenders/Servicers Accountable!
I have to say that reading the below order from Judge Arthur Schack is refreshing. It’s also disappointing because there are so few judges out there today willing to do what he is doing. The majority of Florida judges are cowboys who don’t really care about legal standards and rules of civil procedure. They routinely grant motions for Summary Judgment even when there are clear issues of material fact in the case or even when there is still outstanding disovery that the Plaintiff servicer/trustee hasn’t complied with. They routinely hear a Motion to Dismiss AND a Motion for Summary Judgment on the same day/time! It’s ridiculous and despicable all at the same time.
The bottom line is that most judges in Florida and other states trample on the civil rights of homeowners and deny them due process because of their “personal views” on the issues of foreclosure. I highly encourage homeowners to organize in their communities and march on the steps of their local courthouse and protest what their elected judges are doing and not doing to uphold the law as Judge Schack is doing in this case.
Judge Schack also provides some great points that attorneys and pro se litigants should focus on in their case(s). Read carefully and learn the elements that he is stipulating because there are fine points of law that he his holding the plaintiff in this case to. Enjoy…
HSBC Bank USA, N.A. v. Valentin N.Y.Sup.,2008. NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. Supreme Court, Kings County, New York.
HSBC BANK USA, N.A., as Indenture Trustee for the Registered Noteholders of Renaissance Home Equity Loan Trust 2005-3, Renaissance Home Equity Loan Asset-Backed Notes, Series 2005-3,, Plaintiff, v. Candida VALENTIN, Candide Ruiz, et. al., Defendants. No. 15968/07. Jan. 30, 2008. Vincent P. Surico, Esq., De Rose & Surico, Bayside, for Plaintiff. No Opposition submitted by defendants to plaintiff’s Judgment of Foreclosure and Sale. ARTHUR M. SCHACK, J. *
1 Plaintiff’s application, upon the default of all defendants, for an order of reference, for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 39, County of Kings) is denied without prejudice. The “affidavit of merit” submitted in support of this application for a default judgment is not by an officer of the plaintiff or someone with a power of attorney from the plaintiff.
Leave is granted to plaintiff, HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3 (HSBC), to renew its application for an order of reference upon presentation to the Court of compliance with the statutory requirements of CPLR § 3215(f), with “an affidavit of facts” executed by someone who is an officer of HSBC or has a valid power of attorney from HSBC.
Further, the Court, upon renewal of the application for an order of reference requires a satisfactory explanation to questions with respect to: the assignment of the instant nonperforming mortgage loan from the original lender, Delta Funding Corporation to HSBC Bank; the employment history of one Scott Anderson, who assigned the instant mortgage to HSBC, yet in a case I decided last month, HSBC Bank, N .A. v. Cherry, 18 Misc.3d 1102(A), swore in an affidavit to be HSBC’s servicing agent; and the relationship between HSBC, Ocwen Federal Bank, FSB (OCWEN), Deutsche Bank and Goldman Sachs, who all seem to share office space at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409 (Suite 100). Background Defendants, Candida Valentin and Candide Ruiz, borrowed $340,000 from Delta Funding Corporation, on June 23, 2005.
The note and mortgage were recorded in the Office of the City Register, New York City Department of Finance on July 14, 2005, at City Register File Number (CRFN) 2005000395517. Delta Funding Corporation, by Mortgage Electronic Registration Systems, Inc. (MERS), its nominee for the purpose of recording the mortgage, assigned the note and mortgage to plaintiff HSBC, on May 1, 2007, with the assignment recorded on June 13, 2007 at CRFN 2007000306260.
Plaintiff’s moving papers for an order of reference fails to present an “affidavit made by the party,” pursuant to CPLR § 3215(f). The application contains an April 23, 2007-affidavit by Jessica Dybas, who states that she is “a Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC, servicing agent and attorney in fact to the holder of the bond and mortgage sought to be foreclosed herein.”On that date, the note and mortgage were still held by MERS, as nominee of Delta Funding Corporation. For reasons unknown to the Court, MERS, as nominee of Delta Funding Corporation, or plaintiff HSBC failed to provide any power of attorney authorizing OCWEN to go forward with the instant foreclosure action.
Further, even if HSBC authorized OCWEN to be its attorney in fact, Ms. Dybas is not an officer of OCWEN. She is a “Foreclosure Facilitator,” a job title unknown to this Court. Therefore, the proposed order of reference must be denied without prejudice. Leave is granted to plaintiff HSBC to 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. *2 Further, according to plaintiff’s application, the default of defendants Valentin and Ruiz began with the nonpayment of principal and interest due on January 1, 2007. Yet, four months later, plaintiff HSBC was willing to take an assignment of the instant nonperforming loan. The Court wonders why HSBC would purchase a nonperforming loan, four months in arrears?
Additionally, plaintiff HSBC must address a third matter if it renews its application for an order of reference. In the instant action, as noted above, Scott Anderson, as Vice President of MERS, assigned the instant mortgage to HSBC on May 1, 2007. Doris Chapman, the Notary Public, stated that on May 1, 2007, “personally appeared Scott Anderson, of 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.”In HSBC Bank, N.A. v. Cherry, at 3, I observed that: Scott Anderson, in his affidavit, executed on June 15, 2007, states he is Vice President of OCWEN. Yet, the June 13, 2007 assignment from MERS to HSBC is signed by the same Scott Anderson as Vice President of MERS. Did Mr. Anderson change his employer between June 13, 2007 and June 15, 2007. The Court is concerned that there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from Mr. Anderson describing his employment history for the past three years. Lastly, the court notes that Scott Anderson, in the MERS to HSBC assignment gave his address as Suite 100. This is also the address listed for HSBC in the assignment. In a foreclosure action that I decided on May 11, 2007 (Deutsche Bank Nat. Trust Company v. Castellanos, 15 Misc.3d 1134[A] ), Deutsche Bank assigned the mortgage to MTGLQ Investors, L.P. I noted, at 4-5, that MTGLQ Investors, L.P.: According to Exhibit 21.1 of the November 25, 2006 Goldman Sachs 10-K filing with the Securities and Exchange Commission … is a “significant subsidiary” of Goldman Sachs…. [T]he January 19, 2007 assignment has the same address for both the assignor Deutsche Bank and the assignee MTGLQ Investors, L.P., at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.
The Court will not speculate about why two major financial behemoths, Deutsche Bank and Goldman Sachs share space in a West Palm Beach, Florida office suite In the instant action, with HSBC, OCWEN and MERS, joining with Deutsche Bank and Goldman Sachs at Suite 100, the Court is now concerned as to why so many financial goliaths are in the same space. The Court ponders if Suite 100 is the size of Madison Square Garden to house all of these financial behemoths or if there is a more nefarious reason for this corporate togetherness.
If HSBC seeks to renew its application for an order to reference, the Court needs to know, in the form of an affidavit, why Suite 100 is such a popular venue for these corporations. Discussion Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff.” In the instant action, plaintiff’s application for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and sale. (Home Sav. Of Am., F.A. v. Gkanios, 230 A.D.2d 770 [2d Dept 1996] ). *3 Plaintiff has failed to meet the requirements of CPLR § 3215(f) for a default judgment. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party… Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney. [Emphasis added]. Plaintiff has failed to submit “proof of the facts” in “an affidavit made by the party.”The affidavit is submitted by Jessica Dybas, “a Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC, servicing agent and attorney in fact to the holder of the bond and mortgage sought to be foreclosed herein.” There must be an affidavit by an officer of HSBC or a servicing agent, possessing a valid power of attorney from HSBC for that express purpose. Additionally, if a power of attorney is presented to this Court and it refers to pooling and servicing agreements, the Court needs a properly offered copy of the pooling and servicing agreements, to determine if the servicing agent may proceed on behalf of plaintiff. (EMC Mortg. Corp. v. Batista, 15 Misc.3d 1143(A) [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v. Lewis, 14 Misc.3d 1201(A) [Sup Ct, Suffolk County 2006] ).
Also, the instant application upon defendants’ default must be denied because even though it contains a verified complaint, the attorney’s verification is insufficient to meet the requirements of CPLR § 3215(f). The Court, in Mullins v. Di Lorenzo, 199 A.D.2d 218 [1st Dept 1993], instructed that “a complaint verified by counsel amounts to no more than an attorney’s affidavit and is therefore insufficient to support entry of judgment pursuant to CPLR 3215.”Citing Mullins v. Di Lorenzo, the Court, in Feffer v. Malpeso, 210 A.D.2d 60, 61 [1st Dept 1994], held that a complaint with not more than an attorney’s affidavit, for purposes of entering a default judgment “was erroneous and must be deemed a nullity.” Professor David Siegel, in his Practice Commentaries (McKinney’s Cons Laws of NY, Book 7B, CPLR C3215: 16) explains that Mullins v. Di Lorenzo is in point here. Perhaps the verified complaint can do service as an affidavit for various purposes within the litigation while the contest is on … but it will not suffice to put an end to the contest with as drastic a step as a default at the outset. It must be kept in mind that even an outright “affidavit” by the plaintiff’s attorney on the merits of the case-except in the relatively rare circumstances in which the attorney happens to have first-hand knowledge of the facts – lacks probative force and is usually deemed inadequate by the courts to establish the merits. A fortiori, a verified pleading tendered as proof of the merits would also lack probative force when the verification is the attorney’s. [Emphasis added ] *4 In Blam v. Netcher, 17 AD3d 495, 496 [2d Dept 2005], the Court reversed a default judgment granted in Supreme Court, Nassau County, holding that: In support of her motion for leave to enter judgment against the defendant upon her default in answering, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (seeCPLR 3215(f): Goodman v. New York City Health & Hosps. Corp. 2 AD3d 581 [2d Dept 2003]; Drake v. Drake, 296 A.D.2d 566 [2d Dept 2002]; Parratta v. McAllister, 283 A.D.2d 625 [2d Dept 2001] ). Accordingly, the plaintiff’s motion should have been denied, with leave to renew on proper papers (see Henriquez v. Purins, 245 A.D.2d 337, 338 [2d Dept 1997] ). (See Hazim v. Winter, 234 A.D.2d 422 [2d Dept 1996]; Finnegan v. Sheahan, 269 A.D.2d 491 [2d Dept 2000]; De Vivo v. Spargo, 287 A.D.2d 535 [2d Dept 2001]; Peniston v. Epstein, 10 AD3d 450 [2d Dept 2004]; Taebong Choi v. JKS Dry Cleaning Eqip. Corp., 15 AD3d 566 [2d Dept 2005]; Matone v. Sycamore Realty Corp., 31 AD3d 721 [2d Dept 2006]; Crimmins v. Sagona Landscaping, Ltd., 33 AD3d 580 [2d Dept 2006] ). Therefore, the instant application for an order of reference is denied without prejudice, with leave to renew.
The Court will grant plaintiff HSBC an order of reference when it presents: an affidavit by either an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson clarifying his employment history for the past three years and what corporation he serves as an officer; and, an affidavit by an officer of HSBC explaining why HSBC would purchase a nonperforming loan from Delta Funding Corporation, and why HSBC, OCWEN, MERS, Deutsche Bank and Goldman Sachs all share office space in Suite 100.
Conclusion Accordingly, it is ORDERED, that the application of plaintiff, HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, for an order of reference for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 29, County of Kings), is denied without prejudice; and it is further ORDERED, that leave is granted to plaintiff, HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, to renew its application for an order of reference for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 39, County of Kings), upon presentation to the Court, within forty-five (45) days of this decision and order, of: an affidavit of facts either by an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson, describing his employment history for the past three years; an affidavit from an officer of plaintiff HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, explaining why plaintiff would purchase a nonperforming loan from Delta Funding Corporation and why plaintiff *5 HSBC BANK N.A., shares office space at Suite 100, 1661 Worthington Road, West Palm Beach, Florida 33409, with Ocwen Federal Bank FSB, MortgageElectronicRegistrationSystems, Inc., Deutsche Bank and Goldman Sachs. This constitutes the Decision and Order of the Court. N.Y.Sup.,2008. HSBC Bank USA, N.A. v. Valentin Slip Copy, 18 Misc.3d 1123(A), 2008 WL 239932 (N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U) END OF DOCUMENT
