Está en la página 1de 14

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------------X U.S.SBANK NATIONAL ASSOCIATION AS INDEX NO.

XXXXXXX TRUSTEE FOR CSFB HEAT 2006 – 4 C/O AMERICA’S SERVICING COMPANY, , NOTICE OF CROSS MOTION Plaintiff(s), -againstxxxxxxxxxxxxxx, Defendant. ------------------------------------------------------------------------------X PLEASE TAKE NOTICE that upon the annexed affidavit of XXXXXXXXX, attorney for Defendant, XXXXXXXXXXXXXXXXXXXX, sworn to on the ____ day of March 2014 and upon all the prior pleadings and proceedings had herein, the Defendant, through her attorney, will move this Court located at One Court Street, Riverhead, New York 11901, IAS Part 9, in front of the Honorable Judge DANIEL MARTIN on the ___ day of _____ 2014 at 9:30 o’clock in the forenoon, or as son thereafter as can be heard for an order pursuant to RPAPL §15 to Compel the determination of a claim to Real Property and Quiet Title and for such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214 (b), you are hereby required to serve copies of your answering affidavits on the undersigned no later than the seventh (7th) day prior to the date set forth above for the submission of this motion. Dated : March ___, 2014 Riverhead, New York _______________________

New York 11747 . LLP Attorneys for Plaintiff 395 North Service Road.To: Scott Reel. Suite 401 Melville. McCubbin & Katz. Esq Kozeny.

AFFIDAVIT IN SUPPORT Plaintiff(s). xxxxxxxx TRUSTEE FOR CSFB HEAT 2006 – 4 C/O AMERICA’S SERVICING COMPANY. The Defendant. xxxxxxxxxxx by her attorney. New York and the proper venue is the Supreme Court of Suffolk County.. alleges. is so situated and physically located within Suffolk County. affirms and herein Prays for relief by way of a Decree and Order granting Quiet Title to Plaintiff relative to the subject real property as described herein.SBANK NATIONAL ASSOCIATION AS INDEX NO. Plaintiff represents that there is an ongoing foreclosure proceeding in effect governing.SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------------X U. ------------------------------------------------------------------------------X STATE OF NEW YORK §: COUNTY OF SUFFOLK WILLAIM GRAUSSO. instant action is an “In Rem” action relative to the subject property which is within the jurisdiction of the . IN REM JURISDICTION Plaintiff herein alleges that at all times relevant hereto. as against Plaintiff: 2. being duly sworn.S. concerning or relative to the Parties herein as to subject real property 3. 4. xxxxxxxxxxx. Defendant. hereby complains. JURISDICTION This Court has proper subject matter Jurisdiction over the within action as the real property. deposes and says : 1. the subject of instant action. -againstxxxxxxxxxxxx. .

which was secured by a Mortgage lien on the Property. they are entitled to enforce the note. as an exhibit. If in fact. nowhere do they make a claim that they are the holder of the note. the holder of the note. Again Said “evidence” provided by the Plaintiff proves indebtedness and obligation to no one. the Plaintiff only claims to have an interest in the subject property. entitled to enforce the note. Defendant finds it odd and highly unethical that MERS could be both holder of the mortgage as well as nominee of the “true” owner.Supreme Court of Suffolk County where the subject property is so situated and physically located as fully described herein. therefore. recording with the Suffolk County Clerk. the Plaintiff claims that they are all of the sudden. MERS claiming its status of “mortgagee of record” is a vague term that does not give one legal standing as mortgagee. not the Plaintiff and the security relating to said note was negotiated by someone else in its entirety. The terms of the loan were memorialized in a promissory note ("the Note"). a Notice of Lis Pendens announcing that the Plaintiff intends to seize the Defendants property. Oddly enough. as lender Mortgagee. MERS’s actions backed by claims that as nominee it can assign notes or . as Trustee for CSFB HEAT 2006-4 C/O America’s Servicing Company 3476 Stateview Boulevard Fort Mill SC 29715 commenced foreclosure proceedings against the Defendant. thus. in their most recent nunc pro tunc Motion on the Defendant’s property. Said Mortgage was recorded on February 6th. at best. In its original complaint to foreclose on the Defendant’s property. New York. 2006 in Suffolk County. On August 6th. as an exhibit. The Plaintiff does not claim that the note was indorsed and negotiated to them. LACK OF STANDING Defendant engaged AEGIS BANK and entered into a loan agreement. The Plaintiff merely attached said note and security to the original complaint. the note was negotiated to the lender. The Plaintiff attached said note to the original complaint. 2007 US Bank National Association. The Plaintiff also states that the note was indorsed and negotiated to the Plaintiff. Liber: M00021227 and Page: 873 Defendant executed the Note naming AEGIS BANK as lender and then separately executed the Mortgage naming MERS. MERS is only a nominee. Hence. 5.

INVALIDATION THROUGH CONFLICTS OF INTEREST MERS. Zackem was recorded with the assignment. training. Baum. The Plaintiff is also required to provide an affidavit of regularity/merit from the Plaintiff representative that he/she has reviewed the file in this case and that he/she documents that all paperwork is correct. Steven J. Nineteen days subsequent. Further. U. educational background and a listing of the documents and financial records reviewed substantiating the review of the amounts owed. said “evidence” provided by the Plaintiff only proves indebtedness and obligation to the Lender NOT the Plaintiff. assigned the mortgage to the plaintiff. with the assignment recorded on August 17. P.24. Baum. Plaintiff is not the true holder in due course.S. a known employee of one Steven J." All residential mortgage foreclosure actions require an affirmation from the attorney representing the Plaintiff. for both MERS and U. 2007.mortgages is completely without standing — a nominee has limited rights and those most certainly do not include the right to transfer ownership unless there is specific written instruction to do so.C. that he/she has inspected all documents. length of service.. The Defendant is concerned that the apparent simultaneous representation of Steven J. Thus. BANK could be deemed a conflict of interest in violation of 22 NYCRR § 1200. Simultaneous Representation. BANK lacks standing to bring the instant foreclosure action. BANK. the assignment is invalid and Plaintiff U. The Plaintiffs representative shall also provide in said affidavit of regularity her/his position. On behalf of MERS by Corporate Resolution dated 7/19/07. Mr. on August 6. Further.C. Baum. P. Esq. 2007. The affidavit should . with the filing of a notice of pendency. commenced the instant action on behalf of assignee U.S. as stated in the affirmation attached to this order." Neither a corporate resolution nor a power of attorney to Mr. BANK on July 13. plaintiff's counsel. Esq. 6. Zackem.. and the summons and complaint in the Suffolk County Clerk's Office. entitled "Conflict of Interest. 2007 the assignor.S. the Disciplinary Rule of the Code of Professional Responsibility.S. Zackem. the nominee of AEGIS BANK for the purpose of recording the mortgage. The assignment was executed by "Ronald W.

does the Plaintiff actually have standing to commence these proceedings? Thus. misled. the Plaintiff must prove its entitlement to foreclose on mortgage as a matter of law by establishing the regularity and accuracy of the financial documentary evidence submitted and the court should be scrutinizing all documents for accuracy. upon information and belief. Defendant alleges that the Plaintiff’s claim is untrue. Ronald Zackem. homeowners.also include that she/he has personally reviewed both the mortgage and the note and any assignments for accuracy. There is no evidence that the Defendant’s Mortgage Note was ever officially transferred to the now purported holder-in-due-course as the original documents (that . and disbarred attorney. and deceived borrowers. “the originals which are in Plaintiff’s possession and control” and therefore the Plaintiff is entitled to enforce the aforementioned mortgage and note pursuant to law. Plaintiff’s systematic schemes have confused. is the employee of a well-known alleged felon. In this instance. the assignor. Esq. The Plaintiff bears the burden of proof in a summary judgment proceeding and judgment will only be awarded when all doubt is removed as to the existence of any triable issue of fact. the Plaintiff proceeds to claim it is now the true and lawful holder of the said bond(s)/note(s) and is mortgagee of record or has been delegated the authority to institute a mortgage foreclosure action by owner and holder of the subject mortgage and note. and other citizens who rely on the validity of publicly filed property records. if the Plaintiff has received its “official status” based upon a trail of lies and illegalities. where there have been numerous instances of alleged conflicts of interest regarding these documents and a failure to attest to the accuracy of documents in mortgage foreclosure proceedings. As stated above. Under the present circumstances. Steven J. Baum.. one. Further. 7. ABSENCE OF ANY PROMISSORY NOTE OR HOLDER THEREOF The Plaintiff now claims it is the current holder and beneficiary of the Mortgage which secures the note. Esq. attesting to all of the “facts” within the Plaintiffs assignment.

(c) Whether or not the transfer is a negotiation. and (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money.”). Further. or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor. the note would not assign. simply because. as it is not in legal ownership of said mortgage. (b) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. the UCC Article 3 defines its imperative terms and principles as such: (a) ‘Negotiable instrument’ (defines “Instrument” as a “negotiable instrument. Thus the Plaintiff lacks standing to enforce said note. directly or indirectly. but the promise or order may contain (i) an undertaking or power to give. if an instrument is transferred for value and the transferee does not become a holder because of lack of endorsement by the transferor. (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral. but the transferee cannot acquire rights of a holder in due course by a transfer. in order to help better educate the Plaintiff. One may think. or protect collateral to secure payment. means an unconditional promise or order to pay a fixed amount of money. including any right as a holder in due course. Even if it is in physical possession of the original paperwork (which Defendant believes to be a complete impossibility). from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument. vests in the transferee any right of the transferor to enforce the instrument. if it: (1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder. (d) Unless otherwise agreed. maintain. with or without interest or other charges described in the promise or order. therefore they cannot enforce.being the note and its security) were assigned by a party which lacked standing to assign them. they did not legally obtain possession of said paperwork. a nominee lacks standing to do such. the transferee has a specifically enforceable right to the unqualified endorsement of the . even if the assignee did have standing to assign the security. (2) is payable on demand or at a definite time.

but negotiation of the instrument does not occur until the endorsement is made. (ii) restricting payment of the instrument. which have accused US BANK and its affiliates of fraudulently creating documents in order to justify legal entitlement to . On said note. a signature and its accompanying words is an endorsement unless the accompanying words. then foreclosure is not possible and collecting of the indebtedness is also not possible.period. There is an ever-increasing quantity of lawsuits filed on behalf of home owners. Therefore. drawer. In fact. Fraud affecting the mortgage note would affect the right to foreclose. If the note cannot be found and a Lost Note Affidavit cannot reestablish the indebtedness. that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument. there is no endorsement anywhere. said note must be indorsed either to The Plaintiff directly. (a) "Endorsement" means a signature. So long as there is no fraud affecting the mortgage note. but regardless of the intent of the signer. place of the signature. If there is no break in the chain. other than that of a signer as maker. when fraud is shown affecting the security instrument. governmental agencies and MBS investors. the Plaintiff attached to its original complaint. a copy of the note as an exhibit. there is no endorsement on the note whatsoever. or (iii) incurring endorser’s liability on the instrument. this does not affect the rights to enforce the mortgage note – but such fraud will affect the validity of the security instrument perhaps making foreclosure impossible. Further. then rights to enforce the indebtedness can be further negotiated.transferor. or other circumstances unambiguously indicate that the signature was made for a purpose other than endorsement. or acceptor. on the note. terms of the instrument. Defendant asks whom does this note belong to? For The Plaintiff to prove that it has the right to enforce Defendant’s note. Defendant alleges that The Plaintiff does not have the requisite evidence needed to claim it is the holder of Defendant’s Note as there is no endorsement. or the mortgage.

alleges that all other documents where a signature was actually “placed”. became this trust with mortgage-backed pass through certificates. 8. MERS’s recommended business practice (with the servicer retaining the note) would make the mortgages a “nullity”. authority. assigned. thus rendering said documents fraudulent. Defendant is interested to know. securitization involves the rapid transfer (as per the Plaintiff. PROMISSORY NOTE SECURITIZATION The Plaintiff references in its complaint how the note and its security came to be in their possession. which is. Upon research. MERS or US BANK must have personally indorsed the note and along with their signature authenticated by a notary. and that a representative for AEGIS BANK or MERS did not personally indorse the Note. or knowledge to do so. a complete chain of title is required to foreclose on property – every sale of a mortgage must be endorsed over to the purchaser. as the signatures were not “placed” there by someone who had the position. Transfer or SALE) of loans through a chain of parties. the note was transferred. Second. oddly enoughmissing. For the Note to be considered bearer paper a representative from any one of the involved parties. AEGIS BANK. the entity that ultimately holds the loan works through a number of agents. The Defendant states that the Plaintiff is clearly lacking an authenticated Moreover. Mortgage and subsequent assignments is of a fraudulent nature. First. how a simple note executed between the original foreclosure proceedings.Securitization. Defendant came across the answer. Property law requires recording these sales publically. are fraudulent as well. and who knows what else. in order for it to land in the Plaintiffs lap. Therefore. Notes must be affixed (permanently) to the security instrument – a mortgage without the note has been ruled a “nullity” by the Supreme Court. and properly . Defendant signature. each with different roles and responsibilities. Within that description. The failure of any or all of these parties to uphold their legal obligations creates chaos in maintaining the record title to real property essential to homeownership. This practice is in violation of numerous laws. sold. The chain of custody of this Note.

it is possible that the mortgages can be made valid. Without this. These monetary fines and other civil and criminal actions do not. collectively. it is illegal to foreclose on property – no matter how many payments the Defendant has missed. Any break in the chain of endorsements along with any break in the chain of title renders the Power of Sale clause in the security instrument to be a nullity and therefore no party can foreclose on the real property. however. Plaintiff has filed. the practices above make the securities unsecured debt and there is no solution.” that Defendants created for the express purposes of hastening their securitization deals and avoiding the costs of maintaining accurate and . state Attorneys General lawsuits. Plaintiff misdeeds in connection with their securitization of billions of dollars of mortgages have been the subject of numerous investigations. However. again.recorded. but.S. forged. for purposes of collecting upon the indebtedness. Treasury a total of approximately $5 billion in civil penalties for their mortgage documentation and foreclosure-related misconduct. repair the voluminous number of invalid documents filed all over this country. the securities cannot be ‘secured.’). The securities are no good. court findings of fact. US BANK or its counterparts can provide records. MERS. (This would be a Representation & Warrant violation as the MBSs stated that a secured indebtedness was to be purchased. numerous colleagues of the Plaintiff agreed. and consent orders. and/or fraudulently executed mortgage-related documents and. Recently. if the notes can be found and if AEGIS BANK. but since the Trustees of the securitization would not have the notes. In furtherance of Plaintiff’s creation and maintenance of “mortgage backed securities” – the bundling and packaging of mortgage loans into investment vehicles – Defendant maintains. These mortgage-backed securities are governed by PSAs (pooling and service agreements). Mortgages and deeds of trust assigned to and through “MERS. to pay to the U. (a) (b) Falsified.foreclosure would not be possible without a valid continuous perfected mortgage showing a chain of title from origination through to the current party trying to enforce the mortgage note.

and that which allegedly have been secured by any ‘security’. assigning and or transferring of said. and swearing to personal knowledge of facts of which the affiant has no knowledge. relinquished. Loan(s) and Promissory Notes and the lack or absence of any corresponding assignment of the relative Security. Plaintiff herein alleges. Plaintiff’s systematic schemes have confused. and or Transferred into an Investment and or Securitized Investment Trust or Pool. allegedly held by any of the Name or Un-Known Defendants herein relative to the Security. Plaintiff disrupted citizens’ fundamental right to determine through public searches who holds interests in property. Debt. and or Interests to property. As such. without confirming the existence or validity thereto. . loans and or promissory note. loan(s). Secured Instrument and or Mortgage. that any and all debt. was manifested in a private electronic registry many of the Defendants created called the “Mortgage Electronic Registration System” (MERS).publicly recorded real estate documents regarding transfer and assignment of mortgages. and deceived Defendant. Secured Instrument and or Mortgage. Through MERS. and other citizens who relied on the validity of the Plaintiffs actions. homeowners. and by virtue of the selling. alleged “security instrument”. forged and/or fraudulently executed mortgage documents filed with the Suffolk County Clerks Office by what infamously has become known as “robo-signing. and or alleged “Mortgages” referenced herein. satisfactions and other mortgage-related documents in assembly-line fashion. that failed to disclose and track ownership in mortgages accurately. and or promissory notes relative to. Plaintiff’s scheme. has been extinguished. Assigned. have been partially and or fully and completely Securitized. misled. Plaintiff systematically created the falsified. Title. and or Sold.” which is the practice of signing mortgage assignments. resulted in any and all Rights. often with a name other than the affiant’s own. numerous borrowers. discharged and or detached as to any and all debt.

As such no Named. OR SELLING OFANY AND ALL DEBT. . and or “Mortgages” as referenced herein. By virtue of the fact that any and all alleged Debt and or Promissory Note(s) (without confirming the existence or validity thereto have in fact been Sold. Assigning. TRANSFERRING. This referenced Selling.9. “Secured Instruments”. state and possess the enumerated condition that subject “Security”. Un-Known or Doe individual or entity herein could present a claim “Adverse” or otherwise as to any Rights. Assigned. THE ASSIGNMENT. At the point in time when. and these referenced assignments are as follows: As to Assignment of Mortgage with Liber # 21586 page 634 executed July 19th. and or Transferred. From “MERS” to “US Bank National Association. and once the referenced assignments of the Debt and or Promissory Notes(s) had taken place. “Secured Instruments”. specifically dictate. and or Transferring of such Debt and or Promissory Note(s) was effectuated previously thereto. AND OR PROMISSORY NOTE(s) Plaintiff(s) herein alleges. then as a factual result. LOAN(s). have in fact been Sold. “Secured Instruments”. creation or making of any of the “Security. as Trustee for CSFB HEAT 2006-4 C/O America’s Servicing Company. then the alleged relative “Security”. any and all subject “Security”. “Secured Interest” and or “Mortgages” by “Operation of Law” had also and accordingly been Assigned. enforceable. “Secured “Instruments”. 2007. “Secured Instruments”. relative and or hypothecated by any of the “Security”. and or “Mortgages” as referenced herein. without confirming the existence or validity thereto. that any and all potentially alleged Debt and or Promissory Note(s). based upon information and belief. and or Transferred for full value. and or “Mortgages” will only remain valid. and therein mandate a full reconveyance when satisfied. 10. and or subsequent to the execution. and or “DOT’s” have in fact been fully satisfied. and or “Mortgage”. Assigned. SATISFACTION OF THE TERMS & PROVISIONS OF THE MORTGAGE Plaintiff(s) herein alleges. concurrently therewith. as referenced herein. 2007 and recorded August 17th. and shall remain to any extent in full force and effect “until all sums have been paid in full”. Title or Interests in the subject property. that the terms and provisions of any and all “Security”.

2014 __________________________ Attorney for Defendant Riverhead. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through 6 of this complaint as though fully set forth at length herein. alternatively dismissing the Plaintiff’s Complaint. NY 11901 . in full.11. WHEREFORE. with DATED: March ___. or. (b) prejudice (c) and for such other and further relief as this Court deems just and proper. Defendant demands judgment as follows : (a) requests that the note and mortgage against the subject property be deemed null and void and removed from the subject property as a cloud on Defendant’s title.

being duly sworn. Suite 401 Melville. New York 11747 ________________________________ Attorney for Defendant Sworn to. New York 11901. before me This_____ day of _____________. that he has read the foregoing MOTION and knows the contents thereof . LLP Attorneys for Plaintiff 395 North Service Road. and that the same is true to the deponent’s own knowledge. Esq Kozeny. McCubbin & Katz. 2014 _________________________________ NOTARY PUBLIC . deposes and states that he is the attorney for the Defendant. To : Scott Reel.ATTORNEY VERIFICATION STATE OF NEW YORK) :ss COUNTY OF SUFFOLK) __________________. County of Suffolk. _________________ in the above entitled action with offices located at ______________________________. Riverhead.