Documentos de Académico
Documentos de Profesional
Documentos de Cultura
COUNTY OF SUFFOLK
---------------------------------------------------------------------------------------X
BANK OF NEW YORK MELLON FKA THE BANK OF.
NEW YORK, AS TRUSTEE , ON BEHALF OF THE HOLDERS OF
THE ALTERNATIVE LOAN TRUST 2006-OA17, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006-OA17,
Index # __________
NOTICE OF MOTION
Plaintiff(s),
-againstXXXXXXXXXXXXXXXXXXXXXXXXXX, ET AL.
Defendant(s).
---------------------------------------------------------------------------------------X
PLEASE TAKE NOTICE that upon the annexed affidavit of __________,
Esq. attorney for Defendant, ______________________, sworn to on the __ day of
September, 2014 and upon all the prior pleadings and proceedings had herein, the
Defendant, through his attorney, will move this Court located at One Court Street,
Riverhead, New York 11901, in front a Supreme Court Judge., on the
___ day of October 2014 at 9:30 oclock in the forenoon, or as soon thereafter as can be
heard for an order pursuant to :
CPLR 213(4), Statute of Limitations, Violations of EPTL 7-2.4; CPLR 3211(a)(3),
Plaintiffs lack of legal capacity to sue; CPLR 3211 (a)(5), the cause of action may not
be maintained because statute of frauds; 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.
_______________________________
Attorney for Defendant
To:
Mitra Paul Singh, Esq.
McGlinchey Stafford PLLC
112 W 34th, Street, Suite 1403
New York, NY 10120
(646) 362-4000
hereby complains, alleges, affirms and herein Prays for relief by way of a Decree and
Order granting Quiet Title to Defendant relative to the subject real property or,
alternatively dismissing the Plaintiffs Complaint pursuant to CPLR 213(4), CPLR
3211(a)(3), CPLR 3211 (a)(5) and EPTL 7-2.4.
2.
As attorney for Defendant _____________, I am fully familiar with the facts and
circumstances in this action and make this Affirmation in support of Defendants Motion.
Statements made herein are based upon information and belief. The sources of the
information and grounds for my belief reflected in this Affirmation are from examination
of the various papers filed in connection with this action, my independent investigation of
this matter, inspection of the various documents and the foreclosure file maintained in the
Office of the Suffolk County Clerk, all applicable Statutes and Law as well as any
applicable case Law.
3.
IN REM JURISDICTION
Plaintiff herein alleges that at all times relevant hereto, instant action is an In
Rem action relative to the subject property which is within the jurisdiction of the
Supreme Court of Suffolk County where the subject property is so situated and physically
located as fully described herein.
5.
BACKGROUND
6.
UNENFORCEABLE DEBT
N.Y. CVP. LAW 213 : NY Code - Section 213: Actions to be commenced
within six years: (4) an action upon a bond or note, the payment of which is secured by a
mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a
mortgage of real property, or any interest therein.
Defendant ___________ asserts that he began receiving acceleration letters from
COUNTRYWIDE during summer of 2007, (June/July 2007), which would be the time
the six-year Statute of Limitations would have begun.
It is uncontroverted that Plaintiff commenced this action by filing the Summons
and Verified Complaint in March 18th, 2014, more than six years after the outstanding
principal on the mortgage became due and owing.
The law is well settled that, even if a mortgage is payable in installments, once a
mortgage debt is accelerated, the entire amount is due and the Statute of Limitations
begins to run on the entire debt (see, Rols Capital Co. v Beeten, 264 A.D.2d 724, 696
N.Y.S.2d 48; [*4] Loiacono v Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138). As this
court stated in Federal Natl. Mtge. Assn. v Mebane (208 A.D.2d 892, 618 N.Y.S.2d 88),
once a mortgage debt is accelerated, "the borrowers' right and obligation to make
monthly installments ceased and all sums [become] immediately due and payable", and
the six-year Statute of Limitations begins to run on the entire mortgage debt ( Federal
Natl. Mtge. Assn. v Mebane, supra, at 894).
Defendant seeks to have the Mortgage C.E.M.A. and Promissory Note(s) declared
Null, Void and legally unenforceable and removed as a cloud upon Defendants property.
7.
endorsement stamp which reads, Pay To The Order Of COUNTRYWIDE BANK, NA.,
Without Recourse, GREENPOINT MORTGAGE FUNDING, INC., By KATHLEEN L.
DOUGLAS as Authorized Signatory . The specific endorsement on the allonge is
unsigned. The signature line is blank. (see Exhibit _). This facially valid allonge fails
to establish negotiation from GREENPOINT to COUNTRYWIDE, thus concluding,
although the underlying Mortgage may have been assigned, it appears that the Note could
not have passed with it.
8.
lacked standing to commence this foreclosure. The Plaintiff should have produced a
Power of Attorney proving the authority to execute the assignment.
Plaintiff should have produced a Power of Attorney for this, and every assignment
in order to prove to the Court the authority to execute the assignment(s) from M.E.R.S.,
as Nominee.
N.Y. RPP. LAW 254 : NY Code - Section 254: Construction of clauses and covenants
in mortgages and bonds or notes
Section 254 (9) Power of attorney to assignee. The word "assign" or other words of
assignment, when contained in an assignment of a mortgage and bond or mortgage and
note, must be construed as having included in their meaning that the assignor does
thereby make, constitute and appoint the assignee the true and lawful attorney,
irrevocable, of the assignor, in the name of the assignor, or otherwise, but at the proper
costs and charges of the assignee, to have, use and take all lawful ways and means for the
recovery of the money and interest secured by the said mortgage and bond or mortgage
and note, and in case of payment to discharge the same as fully as the assignor might or
could do if the assignment were not made.
No proof authorizing DOUGLAS as Authorized Signatory has been provided
nor has any 2006 M.E.R.S. Corporate Resolution appointing her as a signing officer.
(see HSBC Bank USA v Vasquesz, NY Supreme Court, Kings County (24 Misc.3d
1239(A)). The assignment was deemed invalid as it failed to include a Corporate
Resolution or Power of Attorney showing how the agent (Authorized Signatory), is
vested with the authority to assign the mortgage.
Your Affirmant then conducted an independent Internet search in an attempt at
ascertaining identity of the Authorized Signatory, DOUGLAS.
The search revealed that DOUGLAS is an Attorney admitted to practice in New York
and partner in the Law firm of Cullen and Dykman, LLP in Garden City, New York.
(see attached Exhibit _)
Also found were several various publically recorded documents also bearing the
signature of DOUGLAS, as Authorized Signatory all of which significantly differ from
one other and in turn differ from that on the instant assignment, leading your Affirmant to
believe this assignment of mortgage a fabricated, RoBo Signed document and as such
voidable.
9.
business practices are unlawful. He explicitly acknowledged that this ruling sets a
precedent that has far-reaching implications for half of the mortgages in this country.
The Judge rejected every aspect of M.E.R.S.s argument. The Court rejected the
claim that M.E.R.S. could be both holder of the mortgage as well as nominee of the
true owner. It also found that mortgagee of record is a vague term that does not give
one legal standing as mortgagee. Hence, at best, M.E.R.S. is only a nominee. It rejected
M.E.R.S.s claim that as nominee it can assign notes or mortgages 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. The Judge wrote:
According to M.E.R.S., the principal/agent relationship among itself and its members is
created by the M.E.R.S. rules of membership and terms and conditions, as well as the
Mortgage itself. However, none of the documents expressly creates an agency
relationship or even mentions the word agency. M.E.R.S. would have this Court
cobble together the documents and draw inferences from the words contained in those
documents.
He went on to disparage M.E.R.S.s claim that since in legal theory the mortgage
follows the note, the Court should overlook the fact that M.E.R.S. separated them. He
stopped just short of saying that by separating them, M.E.R.S. has irretrievably destroyed
the clear chain of title, although he hinted that a future ruling could come to that
conclusion:
M.E.R.S. argues that notes and mortgages processed through the M.E.R.S. System are
never separated because beneficial ownership of the notes and mortgages are always
held by the same entity. The Court will not address that issue in this Decision, but leaves
open the issue as to whether mortgages processed through the M.E.R.S. system are
properly perfected and valid liens. see Carpenter v. Longan, 83 U.S. at 274 (finding that
an assignment of the mortgage without the note is a nullity); Landmark Natl Bank v.
Kesler, 216 P.3d 158, 166-67 (Kan. 2009) ([I]n the event that a mortgage loan somehow
separates interests of the note and the deed of trust, with the deed of trust lying with some
independent entity, the mortgage may become unenforceable).
10.
25th, 2011. The cover Recording Page states the number of pages as being 5 although
plaintiff has only included 3 pages to the Complaint, consisting of, the Recording Page,
an undated Recital Page and a separate Acknowledgement page.
The Recital Page does not contain any reference as to a date this assignment was
supposedly made, in fact, the only dates on this page are referencing the mortgages that
were being assigned. This recital page doesnt include any signatures for anyone
executing this assignment. (see attached Exhibit _)
The Acknowledgement Page states that a SRBUI MURADYAN appeared in front
of the Notary and executed and acknowledged the instrument on August 1st, 2011.
Interestingly, COUNTRYWIDE was out of business July 31st, 2008. Curious as
to how this mortgage has been assigned from a company that ceased to exist.
Furthermore, the mortgage was being assigned into a Trust which also ceased to
exist, as the closing date for the Trust was September 29th, 2006.
Asserting the chain of Assignments of Mortgage to be defective, Defendant seeks
to have these Assignment declared null, void, legally unenforceable and removed as a
cloud against Defendants title; or in the alternative, proving that Plaintiff is not the true
holder in due course, that Plaintiff lacks legal standing and capacity to sue, a dismissal of
the instant foreclosure action, with prejudice.
11.
of loans through a chain of parties. The entity that ultimately holds the loan works
through a number of agents, each with different roles and responsibilities. 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.
Property law requires recording these sales publically. Notes must be affixed
(permanently) to the security instrument a mortgage without the note has been ruled a
nullity by the Supreme Court. MERSs recommended business practice (with the
servicer retaining the note) would make the mortgages a nullity. Therefore, a
complete chain of title is required to foreclose on property every sale of a mortgage
must be endorsed over to the purchaser, and properly recorded. Without this, 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.
BANK OF NEW YORK MELLON appears to have securitized the loan, through
the Pooling and Servicing Agreement ALTERNATIVE LOAN TRUST 2006-OA17
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA17 (hereinafter
The PSA), dated as of December 1st, 2006 between CWALT, INC., (the Depositor)
COUNTRYWIDE HOMES LOANS, INC., PARK GRANADA LLC, PARK MONACO
INC., PARK SIENNA LLC, (the Sellers), COUNTRYWIDE HOME LOANS
SERVICING LP, (the Master Servicer) and THE BANK OF NEW YORK, (the Trustee)
As per the instant PSA, the stated Cut Off Date of the Trust is provided under
Article I-5 as stated Cut Off Date : October 1st , 2006
As per the instant PSA, the stated Closing Date of the Trust is provided under
Article I-5 as stated Closing Date : September 29th, 2006
The Assignment of Mortgage was allegedly executed on August 1st, 2011 and
recorded on August 25th, 2011 by the Plaintiff.
Under New York Trust Law, every sale, conveyance or other act of the trust on
contravention of the Trust is Void. EPTL 7-2.4. Therefore, the acceptance of the Note
and Mortgage by the Trustee (BONY) after the Trust closed, would be Void.
see Wells Fargo Bank, N.A. v Erobobo, 042913 NYMISC, 2013-50675.
Defendant seeks an immediate discontinuance of Plaintiffs Action and the
Assignment of Mortgage be declared Null, Void and Legally unenforceable.
The securitization gives rise to a number of genuine issues of material fact that
will preclude Plaintiff from maintaining this action, there being insufficient evidence
presented to the Court that BONY is the legal owner and holder of the Note, that the
Assignment of Mortgage is fabricated and void being a breeder document used by
BONY in facilitating the illegal foreclosure of Defendants property.
It is also believed that there may be genuine issue of material fact whether the
asset pool receive[d] the loan in accordance with the [Pooling and Servicing Agreement]
terms, transferring physically from the Originator to the Sponsor to the Depositor to the
Trust, with all intervening endorsements to the Custodian.
Plaintiff misdeeds in connection with their securitization of billions of dollars of
mortgages have been the subject of numerous investigations, state Attorneys General
lawsuits, court findings of fact, and consent orders. Recently, numerous colleagues of the
Plaintiff agreed, collectively, to pay to the U.S. Treasury a total of approximately $5
billion in civil penalties for their mortgage documentation and foreclosure-related
misconduct. These monetary fines and other civil and criminal actions do not, however,
repair the voluminous number of invalid documents filed all over this country.
These mortgage-backed securities are governed by PSAs, the practices above
make the securities unsecured debt and there is no solution. The securities are no good.
(This would be a Representation & Warrant violation as the MBSs stated that a secured
indebtedness was to be purchased, but since the Trustees of the securitization would not
have the notes, the securities cannot be secured.).
In furtherance of Plaintiffs creation and maintenance of mortgage backed
securities the bundling and packaging of mortgage loans into investment vehicles
Defendant maintains, Plaintiff has filed,
(a)
(b)
mortgage documents filed with the Suffolk County Clerks Office by what infamously has
become known as robo-signing, which is the practice of signing mortgage assignments,
satisfactions and other mortgage-related documents in assembly-line fashion, often with a
name other than the affiants own, and swearing to personal knowledge of facts of which
the affiant has no knowledge.
Plaintiffs scheme, that failed to disclose and track ownership in mortgages
accurately, was manifested in a private electronic registry many of the Defendants
created called the Mortgage Electronic Registration System (MERS). Through
MERS, Plaintiff disrupted citizens fundamental right to determine through public
searches who holds interests in property.
Plaintiffs systematic schemes have confused, misled, and deceived Defendant,
numerous borrowers, homeowners, and other citizens who relied on the validity of the
Plaintiffs actions.
Plaintiff herein alleges, without confirming the existence or validity thereto, that
any and all debt, loan(s), and or promissory notes relative to, and that which allegedly
have been secured by any security, alleged security instrument, and or alleged
Mortgages referenced herein, have been partially and or fully and completely
Securitized, and or Sold, Assigned, and or Transferred into an Investment and or
Securitized Investment Trust or Pool. As such, and by virtue of the selling, assigning and
or transferring of said, Debt, Loan(s) and Promissory Notes and the lack or absence of
any corresponding assignment of the relative Security, Secured Instrument and or
Mortgage, resulted in any and all Rights, Title, and or Interests to property, allegedly held
by any of the Name or Un-Known Defendants herein relative to the Security, Secured
Instrument and or Mortgage, has been extinguished, relinquished, discharged and or
detached as to any and all debt, loans and or promissory note.
12.
Plaintiff has not complied with Administrative Order 431/11 requiring the
plaintiff's counsel in a residential mortgage foreclosure action to file with the court an
affirmation confirming the accuracy of the plaintiff's pleadings. In cases pending on the
effective date of the Administrative Order, where no judgment of foreclosure has been
entered, the attorney affirmation is required to be filed at the time of filing of either the
proposed order of reference or the proposed judgment of foreclosure (US Bank, NA v.
Boyce, 93 AD3d 782 [2nd Dept 2012]).
13.
Plaintiff repeats and re-alleges each and every allegation contained in paragraphs
1 through 12 of this Motion as though fully set forth at length herein.
WHEREFORE, Defendant demands judgment as follows :
(a)
(b)
(c)
(d)
and for such other and further relief as this Court deems just and proper.