Connecticut Homeowner Alissa Brinkley Says Hunt-Leibert Filed Foreclosure Suit For Dead Bank, With Fraudulent Assignments By Erica Johnson Seck and Roger Stotts
DOCKET NO. CV - 07- 6000694 S SUPERIOR COURT BANK OF NEW YORK AS TRUSTEE ET AL JUDICIAL DISTRICT OF STAMFORD/NORWALK VS: AT STAMFORD ALISSA BRINKLEY, ET AL October 29, 2010 MOTION TO VACATE JUDGMENT AND DISMISS WITH PREJUDICE The Defendant, Alissa Brinkley, in above-entitled action respectfully files her Motion To Vacate The Foreclosure Judgment entered by this Court, in favor of the alleged Plaintiff Bank Of New York in the stated action. The Defendant seeks relief from said Judgment and a Dismissal of Action with Prejudice based on serious errors, misrepresentations, misconduct, unconscionability and fraud, as well as new found evidence and lack of subject matter jurisdiction. The Defendant, Alissa Brinkley, hereby files a Motion To Vacate Judgment, pursuant to Connecticut Practice Book, Section 52-212, in the matter of Bank Of New York Vs. Alissa Brinkley for the following valid and ethical reasons: JURISDICTION OF THE SUPERIOR COURT OF STAMFORD 1. Defendant Here-Now addresses this Court and all parties concerned and provides proper legal "Notice", that the Superior Court Of Stamford Connecticut has the absolute power and jurisdiction to hear and ultimately grant defendant's verified Motion and Request to Open and Vacate the judgment entered in this matter based on several lawful and ethical grounds. Defendant Makes Affirmatively Known, that she brings and addresses this Motion to the sound discretion of the Court for its adjudication. Defendant, in invoking her rights of the United States Of America and the State Of Connecticut attests that this Court has intrinsic power, independent of statutory provision, to vacate any judgment obtained by fraud, duress, unconscionability or mutual mistake. Such stated conditions hence toll any statute of limitations normally placed on a Motion To Open / Vacate pursuant to Connecticut State and United States Law. ORAL ARGUMENT REQUESTED TESTIMONY IS REQUIRED
Transcript
DOCKET NO. CV - 07- 6000694 S SUPERIOR COURT
BANK OF NEW YORK AS TRUSTEE ET ALJUDICIAL DISTRICT OFSTAMFORD/NORWALK
VS:AT STAMFORD
ALISSA BRINKLEY, ET AL October 29, 2010
MOTION TO VACATE JUDGMENT AND DISMISS WITH PREJUDICE
The Defendant, Alissa Brinkley, in above-entitled action respectfully files her Motion To Vacate
The Foreclosure Judgment entered by this Court, in favor of the alleged Plaintiff Bank Of New York in
the stated action. The Defendant seeks relief from said Judgment and a Dismissal of Action with
Prejudice based on serious errors, misrepresentations, misconduct, unconscionability and fraud, as
well as new found evidence and lack of subject matter jurisdiction.
The Defendant, Alissa Brinkley, hereby files a Motion To Vacate Judgment, pursuant to
Connecticut Practice Book, Section 52-212, in the matter of Bank Of New York Vs. Alissa Brinkley
for the following valid and ethical reasons:
JURISDICTION OF THE SUPERIOR COURT OF STAMFORD
1. Defendant Here-Now addresses this Court and all parties concerned and provides proper
legal "Notice", that the Superior Court Of Stamford Connecticut has the absolute power and
jurisdiction to hear and ultimately grant defendant's verified Motion and Request to Open and
Vacate the judgment entered in this matter based on several lawful and ethical grounds.
Defendant Makes Affirmatively Known, that she brings and addresses this Motion to the
sound discretion of the Court for its adjudication. Defendant, in invoking her rights of the
United States Of America and the State Of Connecticut attests that this Court has intrinsic
power, independent of statutory provision, to vacate any judgment obtained by fraud, duress,
unconscionability or mutual mistake. Such stated conditions hence toll any statute of limitations
normally placed on a Motion To Open / Vacate pursuant to Connecticut State and United
States Law.
ORAL ARGUMENT REQUESTEDTESTIMONY IS REQUIRED
(2)
JURISDICTION OF THE SUPERIOR COURT OF STAMFORD
2. The Connecticut Supreme Court, and our Connecticut State Statutes offer unconditional
statutory protection against fraudulent and unconscionable conduct. In special circumstances,
Connecticut Law will permit, and entertain a Motion to Vacate Judgment filed after four months
when there is a showing to the Court of Fraud and unconscionability. C.G.S. Sec. 52-212a
clearly states that "Judgments obtained by fraud may be attacked at any time" (see 180
C. 129, 130 and 181 C. 463, 466-469). In Connecticut, there is no deadline for taking
appropriate legal action, or expiration of rights, for a party who discovers acts of fraud after
judgment has been entered, and/or title vested, as the case may be.
ARGUMENT AND MATERIAL FACTS ALLEGED
1. Hunt Leibert Jacobson, PC filed the instant foreclosure action Bank Of New York vs. Alissa
Brinkley, et al on August 29, 2007 in the name of a non-existent, deceased entity Bank Of New
York. Bank Of New York had closed, passed away, and ceased to exist as of July 1,2007.
Dead Bank Lacked Standing To Bring This Foreclosure Action
2. The alleged Plaintiff, Bank Of New York, who technically authorized its counsel Hunt Leibert
Jacobson, PC to construct and file the said foreclosure complaint was deceased as an entity at
time of filing, and legally and physically could not speak as they were extinct and inoperable.
3. The departed entity, Bank Of New York, physically could not, and had no legal authority to
bring the instant action and invoke the jurisdiction of Superior Court Of Stamford. This
Honorable Court in Stamford has already been deceived, innocently and unknowingly allowed
Hunt Leibert Jacobson, PC to proceed, maintain the current action, and unlawfully win a
Judgment of Foreclosure based on an action brought by a deceased Plaintiff. This court now
having such new evidence as of today's date of October 29, 2010, lacks subject matter
jurisdiction to proceed and allow the pending auction sale of October 30,2010 to take place
based on a Judgment which was obtained by fraudulent means, and at its minimum gross
negligence.
(3)
4. The alleged Plaintiff(s) lacked valid standing to bring this action, and the known fraudulent
misrepresentation of ownership at time of filing constitutes conduct which is unconscionable,
and subject to dismissal pursuant to opinion of the Connecticut Supreme Court and well
established case law. "Other equitable defenses that our Supreme Court has recognized in
foreclosure actions include unconscionability" New Haven Savings Bank v. LaPlace (AC
21388)(2001 ).
5. There Is No Legal Plaintiff: From the onset and commencement of this action, there was no
legally recognizable Plaintiff. The alleged Plaintiff, Bank Of New York, was not breathing and
could not legally be considered a participant, and "necessary party" to this action. The real
question to the court is exactly who was Hunt Leibert Jacobson, PC foreclosing for? If the
unlawful foreclosure did in fact go to conclusion, who then would Hunt Leibert be collecting
for? Payments, and/or proceeds from a sale could not be distributed legally based on a fatally
broken chain of title emanating from a deceased entity.
The Alleged Assignments Of Mortgage Are Instruments Of Fraud
6. The alleged deceased Plaintiff, and Hunt, Leibert, Jacobson, PC, falsely and with crafty intent
to mislead, fraudulently claimed in its complaint that an Assignment of Mortgage existed as of
the date of construction of its Complaint, and date of filing of this action on August 29, 2007.
The stated Plaintiff Bank Of New York purports to be the holder/owner of the subject Note and
Mortgage as a result of the alleged Assignment. Such Parties knew that no such Assignment
existed prior to the filing of this Foreclosure Lawsuit.
7. The alleged assignment professedly giving ownership to an already dead Bank Of New York
is a fraudulent instrument manufactured Three (3) Months after this Foreclosure Lawsuit was
filed on August 29, 2007. The alleged deceased Plaintiff and or other criminals constructed a
bogus and legally insufficient (after the fact) document entitled "Assignment Of Mortgage"
which was purported to have been created and executed on November 29, 2007 (See Exhibit
(4)
A).
8. Assignments Of Mortgage created and allegedly executed by Erica Johnson-Seck Are
Legally Void: The infamous "Robo-Signer" and admitted malefactor, Erica Johnson-Seck
purports to have constructed and signed the first and second (Corrective Assignment)
Assignments Of Mortgage. All such legal documents created by Erica Johnson-Seck are
legally void as a matter of law, as Ms. Seck has already confessed and acknowledged to
Florida Attorney Thomas Ice in deposition of July 9, 2009 that she violated numerous multi-
state and federal laws in her professed executive capacity in making assignments, affidavits,
and/or other legal papers (See Exhibits A & B).
9. Erica Johnson-Seck conflictingly and deceptively represents in the first Allisa Brinkley
assignment, dated November 29,2007, that she is a Vice-President of IndyMac Mortgage
Holdings, Inc., which is headquartered and has its place of business in Flint, Michigan, although
Ms. Seck is in reality in Williamson County, Texas professedly with Mai La Thao, the alleged
Notary Public, executing the stated document. Judge Arthur Schack of the Supreme Court in
Kings County, New York sanctioned and took adverse action against the Plaintiff in the matter
of Deutsche Bank vs. Harris {Kings County, Index No. 39192/2007 (05 Feb 2008) for the very
same deception of Erica Johnson-Seck. Judge Schack was particularly troubled in this case by
the purported assignment to Deutsche Bank of 10/23/2007, and the conflicting sworn accounts
as to the identity and role of Erica Johnson Seck. Judge Schack expressed unmistaken
particular dismay that Erick Johnson-Seck, who professes to be a Vice President of Deutsche
Bank, executed the alleged affidavit in Williamson County, Texas, rather than in Pasadena,
California where the grantor Deutsche Bank represented to be headquarted. This raises further
intentional fraudulent misrepresentations by Ms. Seck. In the case cited by Judge Schack,
Erica Johnson Seck unsubstantially represents that she is the Vice-President of Deutsche
Bank, and amazingly has represented in the current Brinkley case to be the Vice President of
(5)
IndyMac Mortgage Holdings, Inc.
10. Erica Johnson Seck allegedly authorized and created the Assignment Of Mortgage on
November 29,2007 from IndyMac Mortgage Holdings to Bank Of New York despite the fact
that Bank Of New York had expired and ceased to exist on July 1,2007. Bank Of New York,
who was legally dead already for nearly five months is now buying mortgages from Erica
Johnson-Seck? Erica Johnson Seck, nor any other person or entity, can sell any mortgage or
any other type of property to any person, and/or entity that is not living, be it George
Washington, John F. Kennedy, Michael Jackson, or Eastern Airlines.
11. The Second Assignment Of Mortgage (Corrective Assignment Of Mortgage) created and
allegedly executed by Erica Johnson-Seck as Vice President for IndyMac Mortgage Holdings
(Deceased) and FDIC, on professedly November 12,2008, is for the second (2nd) time a
fraudulent attempt to sell and assign the Alissa Brinkley Mortgage to Bank Of New York who
has at this juncture, since been dead this time for 16 Months (One Year and Six Months) [See
Exhibit B].
12. Third Assignment Of Mortgage In 2009 Sold For Dead Bank By Robo-Signer Roger
Stotts: The soon to be famous Roger Stotts, a discovered and caught "Robo-Signer", and
miscreant has previously represented to be a Vice President Of MERS, and in another
instance a Vice President Of IndyMac, signing for IndyMac an Affidavit In Support Of Motion
For Summary Judgment on June 8, 2009 although IndyMac closed and ceased to exist on
March 19,2009. Amazingly, fraudster Roger Stotts in the current suit, has created and
executed a Fraudulent Assignment Of Mortgage, assigning and selling the interest in the
alleged Alissa Brinkley mortgage from the Dead financial institution Bank Of New York to
OneWest Bank FSB. Roger Stotts in the Brinkley case professes to be a Vice-President of
Bank Of New York on May 14, 2009, despite the fact that Bank Of New York closed and
ceased to exist on July 1, 2007. Interestingly, Roger Stotts happens to be working for
(6)
deceased Bank Of New York and executing the said Third (3rd) Brinkley Assignment in
Williamson County, Texas, the same place where Erica Johnson-Seck has made herself
famous by executing fraudulent documents for several other banks and entities as a Vice-
President (See Exhibits C & D).
13. Erica Johnson Seck Admits That No Notary Is Present While Documents Are Notarized:
Miscreant Erica Johnson-Seck has confessed that all her legal documents such as
Assignments Of Mortgage, and Affidavits Of Debt are not witnessed at the time of signing or
same date by a State Notary, and are further not signed in the presence of a notary. In her
deposition taken by Florida Attorney Thomas E. Ice Ms. Seck states that she does not make a
sworn oath, and in fact does not know what an affidavit is.
Excerpts From Transcript:
Q. Well, the Notaries are not in your office, correct?
A. They don't sit in my office, no
Q. And the witnesses who, if you need witnesses on the document, are not sitting in your
office?
A. That's Right.
Q. When they notarize it and they put a date that they're notarizing it, is it the date that you
signed it or is it the date that they're notarizing it?
A. I don't know.
Q. When you execute a sworn document, do you make any kind of verbal
acknowledgement or oath to anyone?
A. I don't know if I know what you're talking about. What's a sworn document?
Q. Well, an affidavit.
A. Oh. No.
Q. In any event, there's no Notary in the room for you to -
(7)
A. Right.
Q. -take an oath with you, correct?
A. No there is not.
Q. In fact, the Notaries can't see you sign the documents; is that correct?
A. Not unless that made it their business to do so?
14. Judge Arthur Schack of the Kings County Supreme Court, NY, just dismissed a foreclosure
suit on October 21, 2010 due to the fraud and inconsistent statements and representations of
Erica Johnson Seck (See Exhibit E.).
15. The Superior Court Of Stamford, Connecticut relied on multiple fraudulent Assignments Of
Mortages and an Affidavit Of Debt created and signed by Erica Johnson Seck in the Alissa
Brinkley matter. The Foreclosure Judgment in this case was entered in innocent reliance by
the Court on fraudulent and/or criminal actions of Erica Johnson Seck and/or other
participants and conspirators in the unlawful actions and purpose to foreclose on Alissa
Brinkely.
16. Hunt Leibert Jacobson, PC and the deceased Bank Of New York, and/or others with unlawful
purpose have deceptively provided said alleged "Assignments" to this Court as supposed
valid evidence of standing.
The Alleged Plaintiff Has No Valid Proof Of Standing And Authority To Foreclose
17.The alleged Plaintiff, Bank Of New York, and/or One West Bank is/are not the "Real Party In
Interest", and have no legal standing to Foreclose on the Defendant Alissa Brinkley's home.
Said Plaintiff(s) have no legal and valid proof of ownership of either the alleged Note or
Mortgage. The Assignments are fraudulent, and the wrongful acts of Erica Johnson Seck and
Roger Stotts invalidate and void all such assignments of mortgage.
(8)
THE STAMFORD COURT LACKS SUBJECT MATTER JURISDICTION TO FORECLOSE
18.The Superior Court of Stamford Connecticut lacks subject matter jurisdiction and cannot allow a
foreclosure sale to conclude based on a judgment obtained by fraud. The alleged Plaintiff has no
standing, and cannot assign anything to One West Bank or any other entity. Bank Of New York had
closed on July 1, 2007. There is a fatally broken chain of title and no one can claim ownership at this
point in time; there is no legal plaintiff or owner of the alleged note.
VIOLATIONS OF THE FDCPA - FAIR DEBT COLLECTION PRACTICES ACT
19. The unlawful conduct complained of herein this Motion, and more particularly the creating and
filing of a Fraudulent Complaint and Assignment of Mortgage are violations of Federal Law
and the FDCPA.
20. The manufacturing and filing of the Sham Assignment Of Mortgage is a violation of 15 USC
1692e - 807 False Or Misleading Representations, 15 USC 1692f - 808 Unfair Practices, and
15 USC 1692j -812 Furnishing Certain Deceptive Forms.
21. The constructing and filing of the false and fraudulent Complaint in this Foreclosure Lawsuit is
additionally a violation of 15 USC 1692e - 807 False Or Misleading Representations, 15 USC
1692f - 808 Unfair Practices, and 15 USC 1692j -812 Furnishing Certain Deceptive Forms.
VIOLATIONS OF CONNECTICUT UNFAIR TRADE PRACTICES ACT
22.The acts and practices complained of and argued in this Motion To Vacate are incorporated
herein and constitute conduct that is in violation of the Connecticut Unfair Trade Practices Act,
Chapter 735a - Sec. 42-11 Db.
Sec. 42-11 Ob. Unfair trade practices prohibited. Legislative intent. (a) No person shall
engage in unfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.
(9)
WHEREFORE, based on all of the above cited facts and presentment the Defendant Alissa
Brinkley asks that this unlawful Judgment be vacated and dismissed with prejudice.
All the factual representations in this motion are clear and convincing evidence of a Fraud
Upon This Court.
Without RecourseAll Rights Reserved Without PrejudiceRespectfully Submitted,
The foregoing Defendant's Motion To Vacate Judgment And Dismiss With Prejudice having beenpresented to the court;
It is hereby ORDERED: GRANTED I DENIED
By the Court:
Clerk / Judge
Date of Order: _
VERIFICATION
The Defendant, Alissa Brinkley, a living soul and natural person, has read the foregoing and haspersonal knowledge of the contents thereof. The same is true based on my own knowledge, exceptas to those matters which are therein upon information and belief, and as to those claims or facts, I
believe them to be true. I assert under the penalty of perjury of the laws of the United States OfAmerica and the laws of the State Of Connecticut that the foregoing is true and correct.
CERTIFICATE OF SERVICE
The Defendant, Alissa Brinkley, hereby certifies that a true and correct copy of the foregoing Motion
To Vacate Judgment has been furnished via U.S. First Class Mail on October 29,2010 to the
office of the Plaintiff's counsel Hunt Leibert, Jacobson, PC, at the address of 50 Weston St,
Hartford, CT 06120.
Additional Service Was Made to:
Defendant's Counsel: David Scalzi, esq.921 Stillwater Road
Stamford, CT 06902
EXHIBIT AASSIGNMENT OF MORTGAGE
POOL NUMBER _ LOAN NUMBER 1000858694
KNOW YE THAT IndyMac Mortgage Holdings, Inc., ( Assignor,,), havinq an office andplace of business at PO Box 2026. Flint, MI 48501-2026 for the consideration of OneDollar and other valuable considerations, does hereby assign to Bank of New York asTrustee under the Pooling and Servicing Agreement Series 2000-C, a Californiacorporalion, having an address of 155 Noth Avenue, Pasadena, CA 911 01, its successors,and assigns forever, all the right, title, interest, claim, and demand whatsoever as the saidAssiqno. has or ouqht to have in or to a certain mortgage from Alissa Brinkley a/kJa Alissao Brinkley to IndyMac Mortgage Holdings, Inc. dated June 16, 2000 and recorded on June19, 2000 in Volume 3918 at Page 135 of the Norwalk Land Records, in or to the propertydescribed in said rnortqaqe deed situated in the Town of Norwalk, County of Fairfield andState of Connecticut, without warranty or representation by, or recourse to, said Assignor,
TO HAVE AND TO HOLD the premises, with all the appurtenances, unto the saidAssignee, its successors and assigns forever, so that neither the Assignor nor itssuccessors, nor any other person under it or them shall hereafter have any claim, right ortitle in or to the premises, or any part thereof; but therefrom it is and they are by thesepresents forever barred and secluded
IN WITI-JESS WHEREOF, on the ~ day of N1)ve hi b-ey- ,2007, saidcorporauon has caused this deed to be executed and delivered, and its corporate seal tobe hereto affixed in Its behalf by C=-YiCClJDhn £on· Se Cf:: / Ye ,WfW ISduly authorlzed and empowered
, . I=>::tc._.~,',.-".:':::~~~/-(~~t~_. , _p G\i g~_ti C1k I]. / Y P
INOYMAC MORTGAGE HOLDINGS,INC.
By f;u~~~~--Sa"'--\fiee Presic.i-€ntIts
STATE OF ~X:UL _
couurv 01: .,~ti\.lli(l.f'(ls,~
On this _lli.,. day af NOYBiYlbi;() -- ,2007, before me personally carneEJiCCLJ 0\1\1:'0 n - S~ C K to me known. who being by me duly sworn, did deposeand say thot ne/sne is a '\jiCf PI-e~iCl€nt of \Df\Y\l1I1C M,nl'-/F,S'Q, whichexecuted Ihe above instrument: that he/she knows the seal of saio corporation: that theseal affixed 10 said instrument is such corporate seal, that it was so affixed by order of theBeare of Directcrs of said corpora lion, and that he/she signed his/her name tnereto bymeans of erectroruc process by like order acknowledged,
, SS,
PROPElny.y 1 Wolfpit Avenue Unit 78"<orVialk,CT 06651Bri,lUp.y. AtisS3Fi:e 02463,70G50
11JII1I11I1Il U II EXHIBIT B.'. ,. ,•CORRECTIVE ASSIGNMENT OF MORTGAGE
TO CORRECT THE RECORDED ASSIGNMENT OF MORTGAGE DATED 6127100AND RECORDeDON 1011/03 IN VOLUME 5134 AT PAGE 97
POOL NUMBER. _ LOAN NUMBER 1000858694
.: ." .._ -r'," ."
KNOW YE THAT FDIC as Receiver for IndyMac Mortgage Holdings, Inc. ("Assignor.:~~having an office and place of business at P. O. Box 2026, Flint, MI 48501-0226 for the
. consideration of One Dollar and other valuable considerations, does hereby assign toBank of New York, as Trustee of the·Home·Equity Mortgage Loan Asset-BackedTrust, Series SPMD 2000-8 under the Pooling and'Servicing agreement dated July 1,2000, ("Assignee") a lending institution, having an address of 1601 Bryan Street, Mail Stop33.1, Dallas, TX· 75201, Its successors. and assigns forever, all the right, title, interest,claim, and demand Whatsoever as the said AssignQr has or ought to have in or to a certainmortgage from Alissa Brinkley a/kJaAlissa D. Brinkley to IndyMac Mortgage Holdings, Inc.dated June 16, 2000 and recorded on June 19, 2000 in Volume 3918 at Page 135 of theNorwalk Land Records, in or to the property described in said mortgage deed situated inthe Town of Norwalk, County of Fairfield and State of Connecticut, without warranty orrepresentation by, or recourse to, said Assignor.
TO HAVE AND TO HOLD fneprernises, withal! the appurtenances, unto fhe~j~j'Assignee, its successors and assigns forever, so that neither the Assignor. nor its
. successors, nor any other Person under it or them shall hereafter have any claim, right ortitle in or to·the premises, or any part thereof; but therefrom It Is and they are by thesepresents forever barred and secluded.
..•.
~'.
INWITNESS WHEREOF, on the day of , 20oa:;'s'aicorporation has ~u~ed this deed to be executed and delivered, and its corpo.rite?I:'sit. ~ ~~be hereto affixed In its behalf by .. " .••. 0 m fa .\ .
duly authorized and empowered. .a . ~' " ~ ~>! :}igne sealedand liv red c FDIC AS RECEIVER FOR INOYMAC MO~1<P.~6t:?:·,:.:i
In esencs HOLDINGS, INC. ~ '".~S.:'~By <Ztlk:::~ko-~Its 8 Cl CG- Y"\.5SY"~S<.cL··c"Q.;ro~~\t-f~\\~
STATE OF ·Q".rj~?COUNTY OF WI \\, ~~\o/)
: 55.
On this ~ day of ~~. , 2008, b~fore me personally ca~e'6f\n),.~~~· =::£0 me krr;;hO being~. duly swom, did deposeand saythathe/she is a \[)'€.t-"11e.s1 of ~t- ~whlchexecutedthe above instrument that helsheknows the seal of said corporation: that theseaf~affixe(Hosaid~n5trument is such corporate seal, that it was so afflxedby order 6Mh"e"BoarcLciDlrectors of saldcorporatlon, and that he/she signed hislher name therl3to'bymeansof electronic process by like order acknowledged.
PROPERTY:41 Wolfpit Avenue, Unit 78
. ..Norwalk, or 06851···:Brinldey, Alissa '. FII~0248$70659
KNOW YE THAT Bank of New York, as Trustee of the Home Equity Mortgage LoanAsset-8acked Trust Series SPMD 2000-8 under the Pooling and ServicingAgreement dated July 1,2000, ( Assignor"), for the consideration of One Dollar and othervaluable considerations, does hereby assign to OneWest Bank FSB, its successors, andassigns forever, all the right, title, interest, claim, and demand whatsoever as the saidAssignor has or ought to have in or to a certain mortgage from Alissa Brinkley alkJa AlissaD. Brinkley to IndyMac Mortgage Holdings, Inc. dated June 16, 2000 and recorded on June19,2000 in Volume 3918 at Page 135 of the Norwalk Land Records, in or to the propertydescribed in said mortgage deed situated in the Town of Norwalk, County of Fairfield andState of Connecticut. without warranty or representation by, or recourse to, said Assignor.
TO HAVE AND TO HOLD the premises, with all the appurtenances, unto the saidAssignee, its successors and assipns forever, so that neither the Assignor nor itssuccessors, nor any other person under it or them shall hereafter have any claim, right ortitle in or to the premises, or any part thereof; but therefrom it is and they are by thesepresents forever barred and secluded.
IN WITNESS WHEREOF, on the -.l':L day of t\""1 ' 2009, saidcorporation has caused this deed to be executed and delivered, and its corporate seal tobe hereto affixed in its behalf by Roger Stotts , who isduly authorized and empowered.
Signed, sealed and deliveredIn the presence of:
~1)/~Qbn r-~ thrrr b D'Y>\j
STATE OF _--='fu:as==--- _
COUNTY OF_--->WililillJ..<jiaJ..LillJo;tso\lJDL-__
BANK OF NEW YORK, AS TRUSTEE ..OF THE HOME EQUITY MORTGAGE .LOAN ASSET-BACKED TRUSTSERIES SPMD 2000-BUNDER THEPOOLING AND SERVICINGAGREE ATED JULY 1, 2000,
Y ATTORNE CT
~:~LBAN , SB
~ '"'t"'------+--.Its Vi,.,. P=i<'cnt
: 55.
On this ~ day of n....j , 2009, before me personally cameRoj:a:Slot!s to me known, who being by me duly sworn, dld depose
and say that he/she is a VicePi;oidcm of , whichexecuted the above instrument: that he/she knows the seal of said corporation: that theseal affixed to said Instrument is such corporate seal, that it was so affixed by order of theBoard of Directors of said corporation, and that he/she signed his/her name thereto bymeans of electronic process by like order acknowledged.
PROPERTY:41 Woltpit Avenue, Unit 7BNoIwalk, CT 06851
;:"'~\;~:1·;~>t. KAl J. HAINESt..~·,\;r\ Notary PUblic. ~tale ct Tex~s-;..,;. :~.•f My Comrms sion Expires\.;'~~~:,1~~l. AprUDJ,20IJ
*02483-70659$8*
Signatures Of Roger Stotts Do Not match fromdocument to document. The Roger Stotts
. Signature On Exibit D-2 is not the same as StottsSignature on Alissa Brinkley Assignment Exhibit c.It appears to be another act of fraud, likelynumerous Roger Stotts are all signing as Mr. Stotts
......... ~.
EXHIBIT D1:-.. ItltUR(lITC()1 RI I)FT!II· 1~1I1.i\ d JlCL\L I 'jl« Lll. I', \ \,[j f'( JR fli{(,\\ MWn If. \ I) . FLORiO.\
hDl \I.\\. I+VU{ \1 tlX'lK. I "I,i ~. \ i\lY\,\L\I' R \'\.J,., 1 "1<
\1t \j\!Tfll\<,
..\11 !D.\'\ II r'\ <)1 I'\'ORT IIIPi \1'\.11i I·" \1(1111 I F(}I~ "1 '\1\( \Rl .11 !}(.'.il·', 1
But ... 1 thought he is an Attorney in Fact for IndyMac above? But Now VP for MERS?
COMPARE IDS SIGNATURES
Signatures Of Roger Stotts Do Not match fromdocument to document. The Roger StottsSignature On Exibit D-2 is not the same as StottsSignature on Alissa Brinkley Assignment Exhibit C,it appears to be another act of fraud, likelynumerous Roger Stotts are all signing as Mr, Stotts
corded: 08/10/2009 ae5
r-------- ------;
,ASSIGNMENT OF MORTGAGEKNOW ALL MEN BY THESE PRESENTS,
THAT MO~'fGACE ELEe r;'ONIC REGISTRATION SYSTEMS, INC
I-t$titar.!)o.rl«'JJMO !lt3JOO5W J·fT'"! AVE., SUITE ,(;1, CCALA, j::!, :,}.141.:.'1l:\!ff.'io'd~~eleda!ltJC'a~~WI.rtJ!~iJf00I1SICioM.;;OOI1 cree tlU:ll ul $1.0J L'luflar ~e oihef"gaw;!)/'Y.: \i~OJtt" w~·"oo.·&lioo, 11l~ rt!09i~ of ,Y!llch ~oj,ht:rnhjo'.fIt1I!'ICrllittdg~dcces ~rdJy (rar~.•~1T:i;Ji'. moll,~ISI1. ~l~'i!( I!Ifl.deet O\'ef cote H.Ji)YfAACFEDERAl. BANK..f $ &,f!K,',;' lr':OtMACiMM(. F S 8 l'EI"j OI"lCr,alQ(! at t55NOR1H L,'K~:A\'I M:I· 'HI)fl.fXH!. l'AS,\Ol'.\,j.\ <;).,"j
Memorandum Of Law EXHIBIT E~-------,------~~-'------------------'---.--' ------
'I Onewest Bank, F.S.B. v Drayton--
I 2010 NY Slip Op 20429 ,-
,I Decided on October 21, 2010
'L Supreme Court, Kings County-r- Schack,J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law §431.
I This ol;;nioo is uncorrected and subject to revision before publication in the printedOfficial Reports,
Decided on October 21, 2010Supreme Court, Kings County
against
Onewest Bank, F.S.B., Plaintiff,
Covan Drayton, et aI., Defendants.
15183/09
Plaintiff
Gerald Roth, Esq.
Stein Wiener and Roth, LLP
Carle Place NY
Defendant did not answer
Arthur M. Schack, J.
In this foreclosure action, plaintiffONEWEST BANK, F.S.B. (ONEWEST), moved for anorder of reference and related relief for the premises located at 962 Hemlock Street, Brooklyn,New York (Block 4529, Lot 116, County of Kings), upon the default of all defendants. TheKings County Supreme Court Foreclosure Department forwarded the motion papers to me onAugust 30, 2010. While drafting this decision and order, I received on October 14, 2010, in the
midst of the present national media attention about "robo-signers," an October 13,201 O-letterfrom plaintiffs counsel, by which "[i]t is respectfully requested that plaintiffs application bewithdrawn at this time." There was no explanation or reason given by plaintiffs counsel for hisrequest to withdraw the motion for an order of reference other than "[i]t is our intention that anew application containing updated information will be re-submitted shortly."
The Court grants the request of plaintiffs counsel to withdraw the instant motion for anorder of reference. However, to prevent the waste of judicial resources, the instant foreclosureaction is dismissed without prejudice, with leave to renew the instant motion for an order of[*2]reference within sixty (60) days ofthis decision and order, by providing the Court withnecessary and additional documentation.
First, the Court requires proof of the grant of authority from the original mortgagee,CAMBRIDGE HOME CAPITAL, LLC (CAMBRIDGE), to its nominee, MORTGAGEELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), to assign the subject mortgage andnote on March 16, 2009 to INDYMAC FEDERAL BANK, FSB (INDYMAC). INDYMACsubsequently assigned the subject mortgage and note to its successor, ONEWEST, on May 14,2009.
Second, the Court requires an affidavit from Erica A. Johnson-Seck, a conflicted "robo-signer," explaining her employment status. A "robo-signer" is a person who quickly signshundreds or thousands of foreclosure documents in a month, despite swearing that he or she haspersonally reviewed the mortgage documents and has not done so. Ms. Johnson-Seck, in a July9,2010 deposition taken in a Palm Beach County, Florida foreclosure case, admitted that she: isa "robo-signer" who executes about 750 mortgage documents a week, without a notary publicpresent; does not spend more than 30 seconds signing each document; does not read thedocuments before signing them; and, did not provide me with affidavits about her employment intwo prior cases. (See Stephanie Armour, "Mistakes Widespread on Foreclosures, Lawyers Say, "USA Today, Sept. 27, 2010; Ariana Eunjung Cha, "OneWest Bank Employee: Not More Than30 Seconds' to Sign Each Foreclosure Document," Washington Post, Sept. 30, 2010).
In the instant action, Ms. Johnson-Seck claims to be: a Vice President ofMERS in theMarch 16,2009 MERS to INDYMAC assignment; a Vice President ofINDYMAC in the May14, 2009 INDYMAC to ONEWEST assignment; and, a Vice President of ONEWEST in herJune 30, 2009-affidavit of merit. Ms. Johnson-Seck must explain to the Court, in her affidavit:her employment history for the past three years; and, why a conflict of interest does not exist in
the instant action with her acting as a Vice President of assignor MERS, a Vice President ofassignee/assignor INDYMAC, and a Vice President of assignee/plaintiffONEWEST. Further,Ms. Johnson-Seck must explain: why she was a Vice President of both assignor MERS andassignee DEUTSCHE BANK in a second case before me, Deutsche Bank v Maraj, 18 Mise 3d1123 (A) (Sup Ct, Kings County 2008); why she was a Vice President of both assignor MERSand assignee INDYMAC in a third case before me, IndymacBank, FSB, v Bethley, 22 Mise 3d1119 (A) (Sup Ct, Kings County 2009); and, why she executed an affidavit of merit as a VicePresident of DEUTSCHE BANK in a fourth case before me, Deutsche Bank v Harris (Sup Ct,Kings County, Feb. 5, 2008, Index No. 35549/07).
Third, plaintiffs counsel must comply with the new Court filing requirement, announcedyesterday by Chief Judge Jonathan Lippman, which was promulgated to preserve the integrity ofthe foreclosure process. Plaintiffs counsel must submit an affirmation, using the new standardCourt form, that he has personally reviewed plaintiffs documents and records in the instantaction and has confirmed the factual accuracy of the court filings and the notarizations in thesedocuments. Counsel is reminded that the new standard Court affirmation form states that "[t]hewrongful filing and prosecution of foreclosure proceedings which are discovered to suffer fromthese defects may be cause for disciplinary and other sanctions upon participating counsel."
Background
Defendant COVAN DRAYTON (DRAYTON) executed the subject [*3]
mortgage and note on January 12,2007, borrowing $492,000.00 from CAMBRIDGE. MERS"acting solely as a nominee for Lender [CAMBRIDGE]" and "FOR PURPOSES OFRECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD," recorded theinstant mortgage and note on March 19, 2007, in the Office of the City Register of the City ofNew York, at City Register File Number (CRFN) 2007000143961. PlaintiffDRA YTONallegedly defaulted in his mortgage loan payment on September 1, 2008.
Then, MERS, as nominee for CAMBRIDGE, assigned the instant nonperforming mortgage
and note to INDYMAC, on March 16,2009. Erica A. Johnson-Seck executed the assignment as
a Vice President ofMERS, as nominee for CAMBRIDGE. This assignment was recorded in the
Office of the City Register ofthe City of New York, on March 24, 2009, at CRFN
200900084809. However, as will be discussed below, there is an issue whether MERS, as
CAMBRIDGE's nominee, was authorized by CAMBRIDGE, its principal, to assign the subject
DRAYTON mortgage and note to plaintiffINDYMAC.
Subsequently, almost two months later, Ms. Johnson-Seck, now as a Vice President of
INDYMAC, on May 14, 2009, assigned the subject mortgage and note to ONEWEST. This
assignment was recorded in the Office of the City Register ofthe City of New York, on May 22,
2009, at CRFN 2009000155018.
Plaintiff ONEWEST commenced the instant foreclosure action on June 18, 2009 with the
filing of the summons, complaint and notice of pendency. On August 6, 2009, plaintiff
ONEWEST filed the instant motion for an order of reference. Attached to plaintiffONEWEST's
moving papers is an affidavit of merit by Erica A. Johnson-Seck, dated June 30, 2009, in which
she claims to be a Vice President of plaintiff ONE WEST. She states, in ~ 1, that "[t]he facts
recited herein are from my own knowledge and from review of the documents and records kept
in the ordinary course of business with respect to the servicing of this mortgage." There are
outstanding questions about Ms. Johnson-Seck's employment, whether she executed sworn
documents without a notary public present and whether she actually read and personally
reviewed the information in the documents that she executed.
July 9, 2010 deposition of Erica A. Johnson-Seck in the Machado case
On July 9, 2010, nine days after executing the affidavit of merit in the instant action, Ms.
Johnson-Seck was deposed in a Florida foreclosure action, Indymac Federal Bank, FSB, v
Machado (Fifteenth Circuit Court in and for Palm Beach County, Florida, Case No. 502008 CA
037322XXXX MB AW), by defendant Machado's counsel, Thomas E. Ice, Esq. Ms.
Johnson-Seck admitted to being a "robo-signer," executing sworn documents outside the
presence of a notary public, not reading the documents before signing them and not complying
with my prior orders in the Maraj and Bethleydecisions.
Ms. Johnson-Seck admitted in her Machado deposition testimony that she was not
employed by INDYMAC on May 14,2009, the day she assigned the subject mortgage and note
to ONEWEST, even though she stated in the May 14,2009 assignment that she was a Vice
President of INDY MAC. According to her testimony she was employed on May 14, 2010 by
assignee ONEWEST. The following questions were asked and then answered by Ms. Johnson
Seck, at p. 4, line 11 - p. 5, line 4:
Q. Could you state your full name for the record, please.
A. Erica Antoinette Johnson-Seck. [*4]
Q. And what is your business address?
A. 7700 West Parmer Lane, P-A-R-M-E-R, Building D, Austin, Texas
78729.
Q. And who is your employer?
A. OneWest Bank.
Q. How long have you been employed by OneWest Bank?
A. Since March 19th, 2009.
Q. Prior to that you were employed by IndyMac Federal Bank, FSB?
A. Yes.
Q. And prior to that you were employed by IndyMac Bank, FSB?
A. Yes.
Q. Your title with OneWest Bank is what?
A. Vice president, bankruptcy and foreclosure.
Despite executing, on March 16,2009, the MERS, as nominee for CAMBRIDGE,
assignment to INDYMAC, as Vice President ofMERS, she admitted that she is not an officer of
MERS. Further, she claimed to have "signing authority" from several major banking institutions
and the Federal Deposit Insurance Corporation (FDIC). The following questions were asked and
then answered by Ms. Johnson-Seck, at p. 6, lines 5 - 21:
Q. Are you also an officer of Mortgage Electronic Registration Systems?
A.No.
Q. You have signing authority to sign on behalf of Mortgage Electronic
Registration Systems as a vice president, correct?
A. Yes.
Q. Are you an officer of any other corporation?
A.No.
Q. Do you have signing authority for any other corporation?
A. Yes.
Q. What corporations are those?
A. IndyMac Federal Bank, Indymac Bank, FSB, FDIC as receiver for
Indymac Bank, FDIC as conservator for Indymac, Deutsche Bank, Bank of
New York, U.S. Bank. And that's all I can think of off the top of my head.
Then, she answered the following question about her "signing authority," at page 7, lines 3 - 10:
Q. When you say you have signing authority, is your authority to sign
as an officer of those corporations?
A. Some. Deutsche Bank I have a POA [power of attorney] to sign as
attorney-in-fact. Others I sign as an officer. The FDIC I sign as attorney-
in-fact. IndyMac Bank and IndyMac Federal Bank I now sign as attorney-
in-fact. I only sign as a vice president for OneWest.
Ms. Johnson-Seck admitted that she is not an officer ofMERS, has no idea how MERS isorganized and does not know why she signs assignments as a MERS officer. Further, sheadmitted that the MERS assignments she executes are prepared by an outside vendor, Lender
Processing Services, Inc. (LPS), which ships the documents to her Austin, Texas office fromMinnesota. Moreover, she admitted executing MERS assignments without a notary public[*5]present. She also testified that after the MERS assignments are notarized they are shippedback to LPS in Minnesota.
LPS, in its 2009 Form 10-K, filed with the U.S. Securities and Exchange
Commission, states that it is "a provider of integrated technology and services to the mortgagelending industry, with market leading positions in mortgage processing and default managementservices in the U.S. [po I]"; "we offer lenders, servicers and attorneys certain administrative andsupport services in connection with managing foreclosures [po4]"; "[a] significant focus of ourmarketing efforts is on the top 50 U.S. banks [po5]"; and, "our two largest customers, WellsFargo Bank, N.A. and JP Morgan Chase Bank, N.A., each accounted for more than 10% of ouraggregate revenue [po5]."LPS is now the subject of a federal criminal investigation related to itsforeclosure document preparation. (See Ariana Eunjung Chao "Lender Processing ServicesAcknowledges Employees Allowed to Sign for Managers on Foreclosure Paperwork,"Washington Post, Oct. 5,2010). Last week, on October 13,2010, the Florida Attorney-Generalissued to LPS an "Economic Crimes Investigative Subpoena Duces Tecum," seeking variousforeclosure documents prepared by LPS and employment records for various "robo-signers."
The following answers to questions were given by Ms. Johnson-Seck in the Machadodeposition, at p. 116, line 4 - p. 119, line 16:
Q. Now, given our last exchange, I'm sure you will agree that you are
not a vice president ofMERS in any sense of the word other than being
authorized to sign as one?
A. Yes.
Q. You are not --
A. Sorry.
Q. That's all right. You are not paid by MERS?
A.No.
Q. You have no job duties as vice president ofMERS?
A.No.
Q. You don't attend any board meetings ofMERS?
A.No.
Q. You don't attend any meetings at all ofMERS?
A.No.
Q. You don't report to the president ofMERS?
A.No.
Q. Who is the president ofMERS?
A. I have no idea.
Q. You're not involved in any governance ofMERS?
A.No.
Q. The authority you have says that you can be an assistant secretary, right?A. Yes.
Q. And yet you don't report to the secretary - -
A.No.
Q. - - ofMERS.
You don't have any MERS' employees who report to you? [*6]
A.No.
Q. You don't have any vote or say in any corporate decisions ofMERS?
A.No.
Q. Do you know where the MERS' offices are located?
A.No.
Q. Do you know how many offices they have?
A.No.
Q. Do you know where they are headquartered?
A.NQ.
Q. I take it then you're never been to their headquarters?
A.No.
Q. Do you know how many employees they have?
A.No.
Q. But you know that you have counterparts all over the country
signing as MERS's vice-presidents and assistant secretaries?
A. Yes.
Q. Some of them are employees of third-party foreclosure service
companies, like LPS?
A. Yes.
Q. Why does MERS appoint you as a vice president or assistant
secretary as opposed to a manager or an authorized agent to sign in
that capacity?
A. I don't know.
Q. Why does MERS give you any kind of a title?
A. I don't know.
Q. Take me through the procedure for drafting and - - the drafting and
execution of this Assignment of Mortgage which is Exhibit E.
A. It is drafted by our forms, uploaded into process management,
downloaded by LPS staff in Minnesota, shipped to Austin where we
sign and notarize it, and hand it back to an LPS employee, who then
ships it back to Minnesota, up uploads a copy and mails the original
to the firm.
Q. Very similar to all the other document, preparation of all the other
documents.
A. (Nods head.)
Q. Was that a yes? You were shaking your head.
A. Yes.
Q. As with the other documents, you personally don't review any
ofthe information that's on here - -
A.No.
Q. - - other than to make sure that you are authorized to sign as the
person you're signing for?
A. Yes. [*7]
Q. Okay. As with the other documents, you signed these and took them
to be notarized just to a Notary that's outside your office?
A. Yes.
Q. And they will get notarized as soon as they can. It mayor may
not be the same day that you executed it?
A. That's true.
Further, with respect to MERS, Ms. Johnson-Seck testified in answering questions, at p.138, line 2 - p. 139, line 17:
Q. Do you have an understanding that MERS is a membership
organization?
A. Yes, yes.
Q. And the members are - -
A. Yes.
Q. - - banking entities such as OneWest?
A. Yes.
Q. In fact, OneWest is a member ofMERS?
A. Yes.
Q. Is Deutsche Bank National Trust Company a member ofMERS?
A. I don't know.
Q. Most of the major banking institutions in the Untied States, at
least, are members ofMERS, correct?
A. That sounds right.
Q. It's owned and operated by banking institutions?
A. I'm not a big - - I don't, I don't know that much about the ins
and outs ofMERS. I'm sorry. I understand what it's for, but I don't
understand the nitty-gritty.
Q. What is it for?
A. To track the transfer of doc - - of interest from one entity to another.
I know that it was initially created so that a servicer did not have to
record the assignments, or if they didn't, there was still a system to
keep track ofthe transfer of property.
Q. Does it also have a function to hold the mortgage separate and
apart from the note so that note can be transferred from entity to entity
to entity, bank to bank to bank - -
A. That sounds right.
Q. - - without ever having to rerecord the mortgage?
A. That sounds right.
Q. So it's a savings device. It makes it more efficient to transfer notes?
A. Yes.
Q. And cheaper?
A. Yes.
Moreover, Ms. Johnson-Seck testified that one of her job duties was to sign documents,which at that time took her about ten minutes per day [po 11]. Further, she admitted, at p. 13,line [*8]11 - p. 14, line 15, that she signs about 750 documents per week and doesn't read eachdocument.
Q. Okay. How many documents would you say that you sign on a
week on average, in a week on average?
A. I could have given you that number if you had that question in
there because I would brought the report. However, I'm going to
guess, today I saw an e-mail that 1,073 docs are in the office for
signing. So if we just - - and there's about that a day. So let's say
6,000 a week and I do probably - - let's see. There's eight of us
signing documents, so what's the math?
Q. Six thousand divided by eight, that gives me 750.
A. That sounds, that sounds about right.
Q. Okay. That would be a reasonable estimate of how many you
sign, you personally sign per week?
A. Yes.
Q. And that would include Lost Note Affidavits, Affidavits of Debt?
A. Yes.
Q. What other kinds of documents would be included in that?
A. Assignments, declarations. I can sign anything related to a
bankruptcy or a foreclosure.
Q. How long do you spend executing each document?
A. I have changed my signature considerably. It's just an E now.
So not more than 30 seconds.
Q. Is it true that you don't read each document before you sign it?
A. That's true. [Emphasis addedi
Ms. Johnson-Seck, in the instant action, signed her full name on the March 16, 2009 MERS, asnominee for CAMBRIDGE, assignment to INDYMAC. She switched to the letter E in signingthe May 14,2009 INDYMAC to ONEWEST assignment and the June 30,2009 affidavit of meriton behalf of ONEWEST.
Additionally. she testified about how LPS prepares the documents in Minnesota and shipsthem to her Austin office, with LPS personnel present in her Austin office [pp. 16 - 17]. Ms.Johnson-Seck.described the document signing process, at p. 17, line 6 - p. 18, line 18:
Q. Take me through the procedure for getting your actual signature
on the documents once they've gone through this quality control process?
A. The documents are delivered to me for signature and I do a quick
purview to make sure that I'm not signing for an entity that I cannot sign
for. And I sign the document and I hand it to the Notary, who notarizes
it, who then hands it back to LPS who uploads the document so that the
firms know it's available and they send an original.
Q. "They" being LPS?
A. Yes.
Q. Are all the documents physically, that you were supposed to sign,
are they physically on your desk?
A. Yes. [*9J
Q. You don't go somewhere else to sign documents?
A.No.
Q. When you sign them, there's no one else in your office?
A. Sometimes.
Q. Well, the Notaries are not in your office, correct?
A. They don't sit in my office, no.
Q. And the witnesses who, if you need witnesses on the document, are
not sitting in your office?
A. That's right.
Q. So you take your ten minutes and you sign them and then you give
them to the supervisor of the Notaries, correct?
A. I supervise the Notaries, so I just give them to a Notary.
Q. You give all, you give the whole group that you just signed to one
Notary?
A. Yes. [Emphasis added]
Ms. Johnson-Seck testified, at p. 20, line 1 - p. 21, line 4 about notaries not witnessing her
signature:
Q. I'm mostly interested in how long it takes for the Notary to notarize
your signature.
A. I can't say categorically because the Notary, that's not the only
job they do, so.
Q. In any event, it doesn't have to be the same day?
A.No.
Q. When they notarize it and they put a date that they're notarizing
it, is it the date that you signed it or is it the date that they're notarizing
it?
A. I don't know.
Q. When you execute a sworn document, do you make any kind
of a verbal acknowledgment or oath to anyone?
A. I don't know if I know what you're talking about. What's a
sworn document?
Q. Well, an affidavit.
A. Oh. No.
Q. In any event, there's no Notary in the room for you to --
A. Right.
Q. - - take an oath with you, correct?
A. No there is not.
Q. In fact, the Notaries can't see you sign the documents; is that correct?
A. Not unless that made it their business to do so?
Q. To peek into your office?
A. Yes. [Emphasis added]
As noted above, I found Ms. Johnson-Seck engaged in "robo-signing" in Deutsche Bank vMaraj and Indymac Bank, FSB, v Bethley. In both foreclosure cases I denied plaintiffs' motions[*1Ojfor orders of reference without prejudice with leave to renew if, among other things, Ms.Johnson-Seck could explain in affidavits: her employment history for the past three years; whyshe was a Vice President of both assignor MERS and assignee Deutsche Bank National TrustCompany in Maraj; and, Vice President ofINDYMAC in Bethley. Mr. Ice questioned Ms.Johnson-Seck about my Maraj decision and showed her the Maraj decision as exhibit M in theMachado deposition. The following colloquy at the Maraj deposition took place at p. 153, line15 - p. 156, line 9.
Q. Exhibit M is a document that you saw before in your last deposition,
correct?
A. Yes.
Q. It's an opinion from Judge Schack up in New York - -
A. Yes.
Q. - - correct? You're familiar with that?
A. Yes.
Q. In it, he says that you signed an Assignment of Mortgage as the vice
president ofMERS, correct - -
A. Yes.
Q. - - just as you did in this case? Judge Schack also says that you
executed an affidavit as an officer of Deutsche Bank National Trust
Company, correct?
A. Yes.
Q. And is that true, you executed an affidavit for Deutsche Bank in
that case?
A. That is not true.
Q. You never executed a document as an officer of Deutsche Bank
National Trust Company in that case, Judge Schack's case?
A. Let me just read it so I can - - I have to refresh my memory completely.
Q. Okay.
A. I don't remember. Most likely.
Q. That you did?
A. It sounds reasonable that I may have. I don't remember, and since
it's not attached, Ican't say.
Q. And as a result, Judge Schack wanted to know if you were engaged
in self-dealing by wearing two corporate hats?
A. Yes.
Q. And the court was concerned that there may be fraud on the part
of the bank?
A. I guess.
Q. I mean he said that, right?
A. Oh, okay. I didn't read the whole thing. Okay.
Q. Okay. The court ordered Deutsche Bank to produce an affidavit
from you describing your employment history for the past three years,
correct? [* I 1-1
A. That's what this says.
Q. Did you do that?
A. No, because we were never - - no affidavit ever existed and no request
ever came to produce such a document. The last time we spoke, I told
you that in-house counsel was reviewing the whole issue and that's kind
of where - - and we still haven't received any communication to produce
an affidavit.
Q. From your counsel?
A. From anywhere.
Q. Well, you're reading Judge Schack's opinion. He seems to want
one. Isn't that pretty clear on its face.
A. We didn't get - - we never even got a copy of this.
Q. Okay. But now you have it --
A. And --
Q. And you had it when we met at our deposition back in February 5th.
A. And our in-house counsel's response to this is we were never - -
this was never requested of me and it was his recommendation not
to comply.
Q. What has become of that case?
A. I don't know.
Q. Was it settled?
A. I don't know.
After a break in the Machado deposition proceedings, Mr. Ice questioned Ms.
Johnson-Seck about various documents that were subpoenaed for the July 9, 2010 deposition,
including her employment affidavits that I required in both Maraj and Bethley. Ms.
Johnson-Seck answered the following questions at p. 159, line 19 - p. 161, line 9:
Q. So let's start with the duces tecum part of you notice, which is the
list of documents. No.1 was: The affidavit of the last three years of
deponent's employment provided to Judge Schack in response to the
order dated January 31st, 2008 in the case of Deutsche Bank National
Trust Company vs. Maraj, Case No. 25981-07, Supreme Court of
New York. 'We talked about that earlier. There is no such affidavit,
correct?
A. Correct.
Q. By the way, why was IndyMac permitted to bring the case in Deutsche
Bank's name in that case?
A. I don't - - I don't know. Now, errors have been made.
Q. No.2: The affidavit of the deponent provided to Judge Schack
in response to the order dated February 6th, 2009 in the case of IndyMac
Bank, FSB vs, Bethley, New York Slip Opinion 50186, New York
Supreme Court 2/5/09, "explaining," and this is in quotes, "her
employment history for the past three years; and, why a conflict of
interest does not exist in how she acted as vice president of assignee [*12]
IndyMac Bank, FSB in the instant action, and vice president of both
Mortgage Electronic Registrations Systems, Inc. and Deutsche Bank
in Deutsche Bank vs. Maraj," and it gives the citation and that's the
case referred to in item 1 of our request. Do you have that affidavit
with you here today?
A.No.
Q. Were you aware of that second opinion where Judge Schack asks
for a second affidavit?
A. Nope. Where is Judge Schack sending these?
Q. Presumably to your counsel.
A. I wonder if he has the right address. Maybe that's what we should
do, send Judge Schack the most recent, and I will gladly show up in
his court and provide him everything he wants.
Q. Okay. Well, I sent you this back in March. Have your or your
counselor in-house counsel at IndyMac pursued that?
A. No. [Emphasis added]
Counsel for plaintiffONEWEST has leave to produce Ms. Johnson-Seck in my courtroom
to "gladly show up ... and provide [me] ... everything he wants."
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, plaintiffONEWEST's application for an order of reference is a preliminary step to
obtaining a default judgment offoreclosure and sale against defendant DRAYTON. (Home Sav.of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]). Plaintiffs request to withdraw its
application for an order of reference is granted. However, to allow this action to continue
without seeking the ultimate purpose of a foreclosure action, to obtain a judgment offoreclosure
and sale, makes a mockery of and wastes the resources of the judicial system. Continuing the
instant action without moving for an order of reference is the judicial equivalent of a "timeout."
Granting a "timeout" to plaintiffONEWEST to allow it to re-submit "a new application
containing new information ... shortly" is a waste of judicial resources. Therefore, the instant
action is dismissed without prejudice, with leave granted to plaintiffONEWEST to renew its
motion for an order of reference within sixty (60) days ofthis decision and order, ifplaintiffONEWEST and plaintiff ONEWEST's counsel can satisfactorily address the various issuespreviously enumerated.
Further, the dismissal ofthe instant foreclosure action requires the
cancellation of the notice of pendency. CPLR § 6501 provides that the filing ofa notice ofpendency against a property is to give constructive notice to any purchaser of real property orencumbrancer 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 thepossession of real property." The Court of Appeals, in 5308 Realty Corp. v 0 & Y Equity Corp.(64 NY2d 313, 319 [1984]), commented that "[t]he purpose of the doctrine was to assure that acourt retained its ability to effect justice by preserving its power over the property, regardless of[* 13]whether a purchaser had any notice of the pending suit," and, at 320, that "the statutoryscheme permits a party to effectively retard the alienability of real property without any priorjudicial review."
CPLR § 6514 (a) provides for the mandatory cancellation ofa notice of pendency by:
The Court,upon motion of any person aggrieved and upon such
notice as it may require, shall direct any county clerk to cancel
a notice of pendency, if service of a summons has not been completed
within the time limited by section 6512; or if the action has been
settled, discontinued or abated; or if the time to appeal from a fmal
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 ofanaction. "Abatement" is defmed as "the act of eliminating or nullifying." (Black's Law Dictionary3 [7th ed 1999]). "An action which has been abated is dead, and any further enforcement of the
cause of action requires the bringing of a new action, provided that a cause of action remains (2ACarmody-Wait 2d § 11.1)." (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further,Nastasi at 36, held that the "[c]ancellation ofa notice of pendency can be granted in theexercise of the inherent power of the court where its filing fails to comply with CPLR § 6501(see 5303 Realty Corp. v 0 & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250AD2d 451,451-452 [ld Dept 1998]; Siegel, NY Prac § 336 [4th ed])." Thus, the dismissal ofthe instant complaint must result in the mandatory cancellation of plaintiff ONEWEST's noticeof pendency against the subject property "in the exercise of the inherent power of the court."
Moreover, "[t]o 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 toassign the mortgage." (HSBC Bank, USA v Yeasmin, 27 Misc 3d 1227 [A], *3 [Sup Ct, KingsCounty 2010]). "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]." (Tawilv Finkelstein Bruckman Wahl Most & Rothman, 223 AD2d 52,55 [ld Dept 1996]). (SeeSuraleb, Inc. v International Trade Club, Inc., 13 AD3d 612 [2d Dept 2004]).
MERS, as described above, recorded the subject mortgage as "nominee" for CAMBRIDGE.The word "nominee" is defined as "[a] person designated to act in place of another, usu. in a verylimited way" or "[a] party who holds bare legal title for the benefit of others." (Black's LawDictionary 1076 [8th ed 2004 D. "This definition suggests that a nominee possesses few or nolegally enforceable rights beyond those of a principal whom the nominee serves." (LandmarkNational Bank v Kesler, 289 Kan 528, 538 [2009D. The Supreme Court of Kansas, inLandmark National Bank, 289 Kan at 539, observed that:
The legal status of a nominee, then, depends on the context of
the relationship of the nominee to its principal. Various courts have
interpreted the relationship ofMERS and the lender as an agency
relationship. See In re Sheridan, 2009 WL631355, at *4 (Bankr. D.
Idaho, March 12, 2009) (MERS "acts not on its own account. Its [* 14]
capacity is representative. "); Mortgage Elec. Registrations Systems,
Inc. v Southwest, 2009 Ark. 152 _, __ SW3d ,2009 WL 723182
(March 19,2009) ("MERS, by the terms of the deed of trust, and its
own stated purposes, was the lender's agent "); La Salle Nat. Bank v
Lamy, 12 Mise 3d 1191 [A], at *2 [Sup Ct, Suffolk County 2006]) ...
(lOAnominee of the owner of a note and mortgage may not effectively
assign the note and mortgage to another for want of an ownership interest
in said note and mortgage by the nominee. ")
The New York Court of Appeals in MERSCORP, Inc. v Romaine (8 NY3d 90 [2006]),explained how MERS acts as the agent of mortgagees, holding at 96:
In 1993, the MERS system was created by several large
participants in the real estate mortgage industry to track ownership
interests in residential mortgages. Mortgage lenders and other entities,
known as MERS members, subscribe to the MERS system and pay
annual fees for the electronic processing and tracking of ownership
and transfers of mortgages. Members contractually agree to appoint
MERS to act as their common agent on all mortgages they register
in the MERS system. [Emphasis addedi
Thus, it is clear that MERS's relationship with its member lenders is that of agent with principal.This is a fiduciary relationship, resulting from the manifestation of consent by one person toanother, allowing the other to act on his behalf, subject to his control and consent. The principalis the one for whom action is to be taken, and the agent is the one who acts. It has been held thatthe agent, who has a fiduciary relationship with the principal, "is a party who acts on behalf ofthe principal with the latter's express, implied, or apparent authority." (Maurillo v Park SlopeU-Haul, 194 AD2d 142,146 [2d Dept 1992]). "Agents are bound at all times to exercise the
utmost good faith toward their principals. They must act in accordance with the highest andtruest principles of morality. " (Elco Shoe Mfrs. v Sisk, 260 NY 100, 103 [1932]). (See Sokoloffv Harriman Estates Development Corp., 96 NY 409 [2001]); Wechsler v Bowman, 285 NY284 [1941]; Lamdin v Broadway Surface Advertising Corp., 272 NY 133 [1936]). An agent "isprohibited from acting in any manner inconsistent with his agency or trust and is at all times
bound to exercise the utmost good faith and loyalty in the performance of his duties." (Lamdin,at 136).
Therefore, in the instant action, MERS, as nominee for CAMBRIDGE, is an agent ofCAMBRIDGE for limited purposes. It can only have those powers given to it and authorized byits principal, CAMBRIDGE. PlaintiffONEWEST has not submitted any documentsdemonstrating how CAMBRIDGE authorized MERS, as nominee for CAMBRIDGE, to assignthe subject DRAYTON mortgage and note to INDYMAC, which subsequently assigned thesubject mortgage and note to plaintiff ONEWEST.
Recently, in Bank of New York v Alderazi, 28 Mise 3d at 379-380, my learned colleague,Kings County Supreme Court Justice Wayne Saitta explained that:
A party who claims to be the agent of another bears the burden
of proving the agency relationship by a preponderance of the evidence
(Lippincott v East River Mill & Lumber Co., 79 Mise 559 [1913]) [*15]
and "[t]he declarations of an alleged agent may not be shown for
the purpose of proving the fact of agency." (Lexow & Jenkins, Pc. v
also Siegel v Kentucky Fried Chicken of Long Is. 108 AD2d 218 [2d
Dept 1985]; Moore v Leaseway Transp/ Corp., 65 AD2d 697 [1st Dept
1978].) "[T]he acts of a person assuming to be the representative of
another are not competent to prove the agency in the absence of evidence
tending to show the principal's knowledge of such acts or assent to them."
(Lexow & Jenkins, PC v Hertz Commercial Leasing Corp., 122 AD2d
at 26, quoting 2 NY Jur 2d, Agency and Independent Contractors § 26).,
Plaintiff has submitted no evidence to demonstrate that the
original lender, the mortgagee America's Wholesale Lender, authorized
MERS to assign the secured debt to plaintiff.
Therefore, in the instant action, plaintiff ONEWEST failed to demonstrate how MERS, asnominee for CAMBRIDGE, had authority from CAMBRIDGE to assign the DRAYTONmortgage to INDYMAC. The Court grants plaintiff ONEWEST leave to renew its motion for anorder of reference, if plaintiff ONEWEST can demonstrate how MERS had authority fromCAMBRIDGE to assign the DRAYTON mortgage and note to INDYMAC.
Then, plaintiff ONEWEST must address the tangled employment situation of "robo-signer"Erica A. Johnson-Seck. She admitted in her July 9,2010 deposition in the Machado case thatshe never provided me with affidavits of her employment for the prior three years and anexplanation of why she wore so-many corporate hats in Maraj and Bethley. Further, in DeutscheBank v Harris, Ms. Johnson-Seck executed an affidavit of merit as Vice President of DeutscheBank. If plaintiff renews its motion for an order of reference, the Court must get to the bottom ofMs. Johnson-Seck's employment status and her "robo-signing." The Court reminds plaintiffONEWEST's counsel that Ms. Johnson-Seck, at p. 161 of the Machado deposition, volunteered,at lines 4 - 5 to "gladly show up in his court and provide him everything he wants."
Lastly, ifplaintiffONEWEST'S counsel moves to renew its application for an order ofreference, plaintiffs counsel must comply with the new filing requirement to submit, underpenalties of perjury, an affirmation that he has taken reasonable steps, including inquiring ofplaintiffONEWEST, the lender, and reviewing all papers, to verify the accuracy of the submitteddocuments in support of the instant foreclosure action. According to yesterday's Office of CourtAdministration press release, Chief Judge Lippman said:
We cannot allow the courts in New York State to stand by idly and
be party to what we now know is a deeply flawed process, especially
when that process involves basic human needs - such as a family home -
during this period of economic crisis. This new filing requirement will
playa vital role in ensuring that the documents judges rely on will be
thoroughly examined, accurate, and error-free before any judge is asked [* 16J
to take the drastic step of foreclosure.
(See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is TakingShape, New York Times, Oct. 21, 2010; Andrew Keshner, New Court Rules Says AttorneysMust Verify Foreclosure Papers, NYLJ, Oct. 21, 2010).
Conclusion
Accordingly, it is
ORDERED, that the request of plaintiff ONEWEST BANK, F.S.B., to withdraw its motionfor an order of reference, for the premises located at 962 Hemlock Street, Brooklyn, New York(Block 4529, Lot 116, County of Kings), is granted; and it is further
ORDERED, that the instant action, Index Number 15183/09, is dismissed withoutprejudice; and it is further
ORDERED, that the notice of pendency in the instant action, filed with the Kings CountyClerk on June 18,2009, by plaintiffONEWEST BANK, F.S.B., to foreclose a mortgage for realproperty located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County ofKings), is cancelled; and it is further
ORDERED, that leave is granted to plaintiff, ONEWEST BANK, F.S.B., to
renew, within sixty (60) days of this decision and order, its motion for an order of reference forthe premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116,County of Kings), provided that plaintiff, ONEWEST BANK, F.S.B., submits to the Court:
(1) proof of the grant of authority from the original mortgagee,
CAMBRIDGE CAPITAL, LLC, to its nominee, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., to assign
the subject mortgage and note to INDYMAC FEDERAL BANK,
FSB; and
(2) an affidavit by Erica A. Johnson-Seck, Vice President of plaintiff
ONEWEST BANK, F.S.B., explaining: her employment history for
the past three years; why a conflict of interest does not exist in how
she acted as a Vice President of assignor MORTGAGE ELECTRONIC REGISTRATIONSYSTEMS, INC., a Vice President of assigneeI
assignor INDYMAC FEDERAL BANK, FSB, and a Vice President
of assigneelplaintiff ONEWEST BANK, F.S.B. in this action; why
she was a Vice President of both assignor MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INe. and assignee DEUTSCHE BANK
in Deutsche Bank v Maraj, 18 Mise 3d 1123 (A) (Sup Ct, Kings County
2008); why she was a Vice President of both assignor MORTGAGE ELECTRONICREGISTRATION SYSTEMS, INC. and assignee
INDYMAC BANK, FSB in Indymac Bank, FSB, v Bethley, 22 Mise 3d
1119 (A) (Sup Ct, Kings County 2009); and, why she executed an
affidavit of merit as a Vice President of DEUTSCHE BANK in
Deutsche Bank v Harris (Sup Ct, Kings County, Feb. 5, 2008, Index
No. 35549/07); and
(3) counsel for plaintiffONEWEST BANK, F.S.B. must comply
with the new Court filing requirement, announced by Chief Judge [* 17]
Jonathan Lippman on October 20,2010, by submitting an affmnation,
using the new standard Court form, pursuant to CPLR Rule 2106 and
under the penalties of perjury, that counsel for plaintiffONEWEST
BANK, F.S.B. has personally reviewed plaintiffONEWEST BANK,
F.S.B.'s documents and records in the instant action and counsel for
plaintiffONEWEST BANK, F.S.B. confirms the factual accuracy of
plaintiffONEWEST BANK, F.S.B.'s court filings and the accuracy
of the notarizations in plaintiffONEWEST BANK, F.S.B.'s documents.
This constitutes the Decision and Order of the Court.
ENTER
HON. ARTHUR M. SCHACK-----------------------------
1. S. C.
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