From Kevin A McKenna. A very good explanation about MERS and nominees. Note especially the reference to creating two entities to exercise collection and foreclosure instead of one thus reinforcing the argument of financial double jeopardy. The MERS deed would therefore be void, as he says. Thus there would be no security, probably no note and maybe no obligation either if the “Lender” was paid in full at closing by a third party in the securitization chain or if the derivative products were sold and insured.
Note also this Quote from Kevin: Those provisions are strictly construed against MERS putative conveyance since the statutory provisions are in derogation of common law.
Under R.I. Law it is my opinion that any purported action in the name of MERS is a break in the chain of title and is void.
The customized form of Mortgage deed utilized by the Mortgage Electronic Registrations Systems Inc., (MERS), Paragraph C and the grantee clause in particular, is not entitled to any of the R.I. statutory mortgagee protections provided in the provisions of Title 34 of the R.I. General Laws.
A “Nominee” “Mortgagee” is simply not entitled to the statutory benefits of Title 34. Those provisions are strictly construed against MERS putative conveyance since the statutory provisions are in derogation of common law. For example, MERS mortgagee deeds have two entities exercising the same statutory foreclosure powers. R.I. law only protects the actual “holders” of the mortgage deed or their statutory “assigns ”, not “nominees” which nominees only have a role with stocks and bonds. MERS argues, in a futile exercise of nominalism, that splitting the term “mortgagee” from the “lender” has a benefit to itself. MERS mortgage deeds are defective because the R.I. Statutory protections run to functional powers of the “holders” of the mortgage and of the mortgage notes, not to self defined “nominees”.
Nominees are not eligible to hold future interests in property without statutory assignments. Only R.I. statutory assignees can exercise the functional abilities necessary to gain control of the five (5) statutory elements required to provide a clean title at the end of the process. R.I. Statutory protections run to the “holders” of the mortgages, not their nominees. The provisions of R.I.G.L.§34-11-12 (4) on mortgage deeds, R.I.G.L.§ 34-11-12 (5) on mortgage releases, R.I.G.L.§ 34-11-12 (6) on form assignments, R.I.G.L.§ 34-11-12 (7) on foreclosure powers, and R.I.G.L.§ 34-11-12 (8) on sale powers ONLY protect the “holders” of the mortgage, not their putative “nominees”. . When MERS does not have an actual separate written and recorded conveyances from the actual holder of the mortgage to itself prior to MERS making a conveyance, the conveyance is void. MERS by its own description in paragraph C is not contractually able to perform the statutory functions of the “holder” of the mortgagee. Mortgage Electronic Registration System Incorporated, as a putative nominee, selected by the Mortgagor, usually lacks actual recorded authority from the Holder of the Mortgage by way of a recorded assignment (R.I.G.L.§ 34-11-12 (6)) or a recorded power of an attorney. Mortgage Electronic Registration System Incorporated can not be by its own definition by be a “holder” of the mortgage deed. Mortgage Electronic Registration System Incorporated did not own or possess or control the mortgage note which was necessary to enforce the mortgage deed. R.I.G.L§ 6A-3-301.
Filed under: bubble, CDO, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage | Tagged: borrower, disclosure, foreclosure defense, foreclosure offense, fraud, Lender Liability, lenders, lost note, Mortgage, mortgage meltdown, quiet title, securitization, trustee |
When these Banks decline mortgage modifications, they are bound to give a wriiten reason as to what options the mortageg was reviewed and why the mortgage was not eligible for those options. This is so, bank is a public authorty and could only speak through records. Failing to do so is like a whims and fancy of a business practice.
[scribd id=39056847 key=key-iybdkd7lg63bipjmqm8 mode=list]
here’s more:
607.1507 Registered office and registered agent of foreign corporation.–
(1) Each foreign corporation authorized to transact business in this state must continuously maintain in this state:
(a) A registered office that may be the same as any of its places of business; and
(b) A registered agent, who may be:
1. An individual who resides in this state and whose business office is identical with the registered office;
2. A corporation or not-for-profit corporation as defined in chapter 617, the business office of which is identical with the registered office; or
3. Another foreign corporation or foreign not-for-profit corporation authorized pursuant to this chapter or chapter 617, to transact business or conduct its affairs in this state the business office of which is identical with the registered office.
Mike H,
I am following up re your post. I just went on the FL Division of Corporations website and I looked at the their designation of registered agent and registered office. I don’t know if you noticed that on the bottom of their designation form it states, “The filing of this Alien Business Organization Form with the Florida Department of State does not authorize the above referenced entity to transact business in the State of Florida.
I am presuming that being registered as the “mortgagee” of record in the county records would constitute as “transacting business.” Additionally, for a while there, they were conducting foreclosures in their own name. I beleive they stopped in 2005 after Judgees Logan and Gordon dismissed en masse a bunch of their foreclosure suits.
Also, wouldn’t the assignment of a mortgage constitute “transacting business’? Could they be in violaiton of some Florida Statutes?
hmmm…………….
Recently, I went to the Florida Dept. of State, Div.
of Corporations to see how Florida registers MERS.
They are designated as a Registered Agent, not
as a normal domestic or foreign “profit corporation”.
So the definition of a “nominee”, at least in Florida
is “registered agent” ie for service of process.
I don’t believe that a registered agent has a “power
of attorney” to assign anything, they only accept process for the underlying profit corporation and forward it on. So the mystery is solved in Florida!
What I don’t understand about the caselaw posted above, is that if the assignment is defective, then the real party in interest is not forclosing, so the judgment would be void. Why would a judge give them another 60 days? Is he just trying to “give them rope to hand themselves?”
I thought I read somewhere that in that state, standing to foreclose must be proven at the time of filing and couldn’t be “cured” after filing. Which is exactly what this judge is doing.
To All:
I just came across this information on the secritization of Automobile Notes. Read closely…AmeriCredit takes the money they receive from the purchase of the Note by the Trust (don’t forget the 2nd hidden YSP [yes even in auto loans]) and then reinvests the money in new loans…how about them apples????
AmeriCredit gives credit where it’s not necessarily due. The company purchases loans made by about 10,000 franchised and independent auto dealers primarily to consumers with less-than-ideal credit histories. It typically finances low-mileage, late-model used cars (about 80% of all loans), and the occasional new automobile. The company then periodically transfers its loans to securitization trusts, retains the servicing, and reinvests the proceeds in new loans. The lender has nearly 1 million customers and approximately $11 billion in managed auto receivables. It operates about 15 credit centers in suburban locations close to car dealerships.
Mortgage & Auto Audits
oliver@ipa.net
john
How can a note having a blank endorsement “bearer on demand instrument” be enforceable under a lost note statutes?
If a bearer bond security was lost and then eventually found by a new entity it can be enforced in a court of law by the new entity as owner? “bearer on demand” Bonds with principal and interest payable to whoever holds the certificates. In other words, it is not registered in anyone’s name.
Allowing a substitution of a bearer bond security interest for the mortgage under an Affidavit of Lost Note by the court only opens the door for challenges for multiple ownership complaints in the courts that is if the original eventually found (if it truly lost in the first place).
When does MERS Power of Attorney (Corp Res) as nominee expire with Original Lender?
If the originating lender closes its doors and is no longer a legal entity does the relationship with MERS end? How can MERS legally continue to sign as “Nominee” and transfer ownership to another entity?
I understand MERS held nothing and did not sell or transfer anything but having them cross another legal line would put another nail in the plaintiff’s coffin in anyone’s ” fraud upon the court” defense
Thanks, Mark
The Judge Silverstein decision is posted on Google. Give it a close read. It says that MERS has standing to foreclose, but it also says that it has to prove that it is the nominee of the beneficial owner the note. This adds a layer of proof that will, in the future, require more than an affidavit to satisfy. Further, this decision has not yet been reduced to a judgment so no appeal has been taken. Also, Aurora called my client this week about trying to work with him about keeping his home. I continue to file claims against MERS and I now allege that it must prove it is the nominee of the beneficial owner of the note. Please look at the Kessler decision out of Kansas. I certainly have done so. This issue is hot in Rhode Island and many other lawyers are taking notice. Take heart because we will fight on until there is no fight left, but like I used to tell my daughter Victoria when she was competing, “When you think you have nothing left, dig down deep and find a little bit more.” That is the order of the day. Peace.
Marla – what state and county are you located? Have you tried looking online for your recorded deed & deed of trust at your Clerk of Court or Register of Deeds office?
Can someone answer a question about a Deed of Trust. I live in a non-judicial state. We refinanced our house in 2006. The DOT shows the Rec date as 3-28-06 with myself and husband as Grantor and Title company and Mtg broker as Grantee. Assign of Deed: Rec. 12-29-08 with Grantor as MERS and Grantee as Wells Fargo Bank. And Appt of Trustee: Rec. 12-29-08 and Wells Fargo as Grantor and Grantee is Northwest Trustee Srvc. We received our Notice of Default which was dated 12-3-08 on 12-5-08. I know what MERS is, so why was MERS not put on the DOT back in 2006? Wells Fargo bought our loan in 2006 so why weren’t they listed in 2006 on the Deed? I thought you had to be on the Deed to file foreclosure. The Notice of Default was dated 12-3-08 which is before they were listed on the Deed. Can someone please explain this to me. Or is this common practice?
Judge Silverstein ruled that MERS has standing to foreclose in RI decision today. The decision is narrow and related to this particular case, but it came as a surprise. Client does not want to appeal. We will have to fight this one with another Plaintiff on another day. Kudos to opposing counsel.
[*1]
HSBC Bank USA, N.A. v Vasquez
2009 NY Slip Op 51814(U)
Decided on August 21, 2009
Supreme Court, Kings County
Schack, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on August 21, 2009
Supreme Court, Kings County
HSBC Bank USA, N.A., Plaintiff,
against
Chaquanna Vasquez, et. al., Defendants.
37410/07
Plaintiff
Kyle C. Didone, Esq.
Steven J. Baum, PC
Buffalo NY
Arthur M. Schack, J.
The motion of plaintiff, HSBC BANK USA, INC. (HSBC), in this mortgage foreclosure action, for premises located at 500 Thatford Avenue, Brooklyn, New York (Block 3626, Lot 42, County of Kings), for: summary judgment; dismissal of defendant CHAQUANNA VASQUEZ’s (VASQUEZ) affirmative defenses; and, an order of reference, and related relief, is granted to the extent that all the affirmative defenses of defendant VASQUEZ are dismissed and that the granting of summary judgment and an order of reference and related relief is denied without prejudice, with leave to renew within sixty (60) days of this decision and order, with submission of:
(1) a copy of a valid assignment of the instant mortgage to plaintiff HSBC;
(2) a satisfactory explanation of the conflict of interest by plaintiff’s counsel, Steven J. Baum, P.C., with respect to the October 9, 2007 assignment of the instant mortgage and note from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), as nominee for HSBC MORTGAGE CORPORATION USA (HSBC MORTGAGE), by Darleen Karaszewski, Esq., the assignor, an attorney employed by Steven J. Baum, P.C., plaintiff’s counsel, and [*2]the simultaneous representation by Steven J. Baum, P.C., of assignee plaintiff HSBC; and,
(3) an affidavit by an officer of plainitff HSBC explaining why plaintiff HSBC purchased the instant nonperforming VASQUEZ loan, then 161 days in arrears.
Background
Defendant VASQUEZ executed the subject mortgage and note on September 1,
2006 and borrowed $381,500.00 from HSBC MORTGAGE. MERS, as nominee for HSBC MORTGAGE, recorded the instant mortgage and note on March 27, 2007, in the Office of the City Register of the City of New York, City Register File Number (CRFN) 2007000158561. MERS, as nominee for HSBC MORTGAGE for the purpose of recording the mortgage, assigned the mortgage and note to plaintiff HSBC, on October 9, 2007, effective October 3, 2007, with the assignment recorded on October 19, 2007, at CRFN 2007000531596. However, the assignment was executed by “Darleen Karaszewski, Esq. On [sic] behalf of MERS, by Corporate Resolution dated 8/28/07.” Neither a corporate resolution nor a power of attorney to Ms. Karaszewski were recorded with the assignment. Thus, the assignment is invalid and plaintiff HSBC lacks standing to bring the instant foreclosure action.
Further, the assignor, Ms. Karaszewski, according to the Office of Court Administration’s Attorney Registration, has as her business address, “Steven Baum, P.C., 220 Northpointe Parkway, Suite G, Amherst, NY 14228-1894.” On the same day that Ms. Karaszweski executed the invalid MERS assignment, October 9, 2007, plaintiff’s counsel, Steven J. Baum, P.C., commenced the instant action on behalf of assignee HSBC, by filing a notice of pendency, the summons and the complaint in the Kings County Clerk’s Office. The Court is concerned that the simultaneous representation by Steven J. Baum, P.C. of both assignor MERS and assignee HSBC is a conflict of interest in violation of 22 NYCRR §1200.24, the Disciplinary Rule of the Code of Professional Responsibility, entitled “Conflict of Interest; Simultaneous Representation,” in effect prior to April 1, 2009. The instant motion states that defendant VASQUEZ defaulted by failing to make her May 1, 2007 and subsequent monthly loan payments. Yet, on Octboer 9, 2007, 161 days subsequent to defendant VASQUEZ’s alleged default, plaintiff HSBC was willing to take an assignment of the instant nonperforming loan from MERS, as nominee for HSBC MORTGAGE. Thus, the Court requires, upon renewal of the instant motion, a
satisfactory explanation from an officer of HSBC of why HSBC purchased a nonperforming mortgage loan from MERS, as nominee for HSBC MORTGAGE, 161 days subsequent to VASQUEZ’s default.
Discussion
The proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York [*3]University Medical Center, 64 NY2d 851 [1985] Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]).
CPLR 3212 (b) requires that for a court to grant summary judgment the court must
determine if the movant’s papers justify holding as a matter of law “that there is no defense to the cause of action or that the cause of action or defense has no merit.” The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]).
Plaintiff HSBC commenced the instant action with the filing of a notice of pendency, the summons and the complaint on October 9, 2007. Defendant VASQUEZ appeared by counsel, who filed and served an answer on October 24, 2007. The instant action was stayed for a period of months by defendant VASQUEZ’s filing for bankruptcy. The bankruptcy case was dismissed on June 3, 2008. Then, plaintiff, on September 26, 2008 filed the instant motion. Defendant VASQUEZ failed to file any opposition papers to the instant motion and defaulted in appearing on November 5, 2008 in the Foreclosure Motion Part. The instant motion was then assigned to me for this decision and order.
With respect to defendant VASQUEZ’s answer, her sixteen affirmative defenses all lack merit. They are all bald conclusory statements and unsubstantiated allegations. With defendant VASQUEZ’s November 5, 2008 default, plaintiff’s motion is granted to the extent that all of the affirmative defenses of defendant VASQUEZ are dismissed.
However, the Court is required to review, as noted above, the motion papers to determine if plaintiff made a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Alvarez v Prospect Hospital, supra; Zuckerman v City of New York, supra; Sillman v Twentieth Century-Fox Film Corp., supra). The Court’s review of plaintiff’s moving papers demonstrates that plaintiff HSBC fails to make such a showing. Therefore, the Court denies the instant motion, with leave granted to plaintiff to renew within sixty (60) days of this decision and order, by submitting: a valid assignment of the subject mortgage and note to plaintiff HSBC: an affidavit by Steven J. Baum, Esq. with respect to whether or not there is a violation of 22 NYCRR § 1200.24; and, an affidavit by an officer of HSBC explaining why HSBC took an assignment of a nonperforming mortgage loan that was then more than five months in default.Plaintiff HSBC must have “standing” to bring this action. The Court of Appeals (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 901, 812 [2003], cert denied 540 US 1017 [2003]) held that “[s]tanding to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress.” In Caprer v Nussbaum, 36 AD3d 176, 181 (2d Dept 2006), the Court held that “[s]tanding to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.” If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. [*4](Stark v Goldberg, 297 AD2d 203 [1d Dept 2002]). “Since standing is jurisdictional and goes to a court’s authority to resolve litigation [the court] can raise this matter sua sponte.” (Axelrod v New York State Teachers’ Retirement System, 154 AD2d 827, 828 [3d Dept 1989]).
In the instant action, the October 9, 2007 assignment from MERS, as nominee for HSBC MORTGAGE, to HSBC is defective. Therefore, HSBC has no standing to bring this action, unless it records a valid assignment. The recorded assignment by “Darleen Karaszewski, Esq. On [sic] behalf of MERS, by Corporate Resolution dated 7/19/07,” has neither the corporate resolution nor a power of attorney attached to it and recorded. Real Property Law (RPL) § 254 (9) states:
Power of attorney to assignee. The word “assign” or other words of assignment, when contained in an assignment of a mortgage and bondor 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 andcharges of the assignee, to have, use and take all lawful ways and means for the recovery of the money and interest secured by the said mortgage and bond or mortgage and note, and in case of payment to discharge the same as fully as the assignor might or could do if the assignment were not made. [Emphasis added]
To have a proper assignment of a mortgage by an authorized agent, a power of
attorney is necessary to demonstrate how the agent is vested with the authority to assign the mortgage. “No special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it. [Emphasis added].” (Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 53 [1d Dept 1996]; see Suraleb v International Trade Club., Inc., 13 AD3d 612 [2d Dept 2004]).To foreclose on a mortgage, a party must have title to the mortgage. The instant assignment, without a recorded corporate resolution or power of attorney is a nullity. The Appellate Division, Second Department (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]), held that a “foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity.” The Appellate Division, First Department, citing Kluge v Fugazy, (Katz v East Ville Realty Co., 249 AS2d 243 [1st Dept 1998]), instructed that “[p]laintiff’s attempt to foreclose upon a mortgage in which he had no legal or equitable interest was without foundation in law or fact.”
It is clear that plaintiff HSBC with an invalid assignment of the instant mortgage and note from MERS, lacks standing to foreclose on the instant mortgage. The Court, in Campaign v Barba (23 AD3d 327 [2d Dept 2005]), instructed that “[t]o establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant’s default in payment [Emphasis added].” (See Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [1st Dept 2007]; Household Finance Realty Corp. of New York v Wynn, 19 AD3d 545 [2d Dept 2005]; Sears [*5]Mortgage Corp. v Yahhobi, 19 AD3d 402 [2d Dept 2005]; Ocwen Federal Bank FSB v Miller, 18 AD3d 527 [2d Dept 2005]; U.S. Bank Trust Nat. Ass’n Trustee v Butti, 16 AD3d 408 [2d Dept 2005]; First Union Mortgage Corp. v Fern, 298 AD2d 490 [2d Dept 2002]; Village Bank v Wild Oaks, Holding, Inc., 196 AD2d 812 [2d Dept 1993]).
Even if plaintiff HSBC is able to cure the assignment defect, plainitff’s counsel then has to address the conflict of interest that exists with his representation of both the assignor of the instant mortgage, MERS as nominee for HSBC MORTGAGE, and the assignee of the instant mortgage, HSBC. 22 NYCRR § 1200.24, of the Disciplinary Rules of the Code of Professional Responsibility, entitled “Conflict of Interest; Simultaneous Representation,” states in relevant part:
(a) A lawyer shall decline proffered employment if the exercise of
independent professional judgment in behalf of a client will be or is
likely to be adversely affected by the acceptance of the proffered
employment, or if it would be likely to involve the lawyer in representing
differing interests, except to the extent permitted under subdivision (c)
of this section. (b) A lawyer shall not continue multiple employment if the
exercise of independent professional judgment in behalf of a client
will be or is likely to be adversely affected by the lawyer’s representation
of another client, or if it would be likely to involve the lawyer in
representing differing interests, except to the extent permitted under
subdivision (c) of this section. (c) in the situations covered by subdivisions (a) and (b) of this
section, a lawyer may represent multiple clients if a disinterested lawyer
would believe that the lawyer can competently represent the interest
of each and if each consents to the representation after full disclosure
of the implications of the simultaneous representation and the
advantages and risks involved. [Emphasis added]
If plaintiff HSBC seeks to renew the instant motion for summary judgment
and granting of an order of reference, the Court needs to know if both MERS and HSBC were aware of the simultaneous representation by plaintiff’s counsel, Steven J. Baum, P.C. and whether both MERS and HSBC consented to the simultaneous representation. Therefore, upon renewal of the instant motion, the Court requires an affirmation by Steven J. Baum, Esq., the principal of Steven J. Baum, P.C., explaining whether both MERS, as nominee for HSBC MORTGAGE, and HSBC consented to simultaneous representation in the instant action, with “full disclosure of the implications of the simultaneous [*6]representation and the advantages and risks involved [22 NYCRR § 1200.24 (c)].”
The Appellate Division, Fourth Department, the Department where both Ms. Karaszewski and Mr. Baum are registered, censured an attorney for, inter alia, violating 22 NYCRR § 1200.24, by representing both a buyer and sellers in the sale of a motel. (In re Rogoff, 31 AD3d 111 [2006]). The Rogoff Court, at 112, found that the attorney, “failed to make appropriate disclosures to either the sellers or the buyer concerning dual representation.” Further, the Court, at 113, censured the attorney, after it considered the matters submitted by respondent in mitigation, including:
that respondent undertook the dual representation at the insistence of
the buyer, had no financial interest in the transaction and charged the
sellers and the buyer one half of his usual fee. Additionally, we note
that respondent cooperated with the Grievance Committee and has
expressed remorse for his misconduct.
Next, if a power of attorney is used for an agent to act as MERS’ assignor of the instant mortgage and loan to HSBC, the power of attorney presented to the Court must be an original or a copy certified by an attorney, pursuant to CPLR § 2105. CPLR § 2105 states that “an attorney admitted to practice in the court of the state may certify that it has been compared by him with the original and found to be a true and complete copy.” (See Secuirty Pacific Nat. Trust Co. v Cuevas, 176 Misc 3d 2d 846 [Civ Ct, Kings County 1998]).
Last, the Court requires a satisfactory explanation from an officer of HSBC as to why, in the middle of our national mortgage financial crisis, plaintiff HSBC purchased from MERS, as nominee of HSBC MORTGAGE, the instant nonperforming loan. The Court wonders if HSBC violated a corporate fiduciary duty to its stockholders by purchasing a mortgage loan that defaulted 161 days prior to its assignment from MERS, as nominee for HSBC MORTGAGE, rather than keep the mortgage loan on HSBC MORTGAGE’s books. The Court is not sure that the stockholders of HSBC are aware that HSBC purchased the instant “toxic” nonperforming mortgage loan. It could well be that MERS, as nominee for HSBC MORTGAGE, with the acquiescence of HSBC, transferred the instant nonperforming loan, as well as others, to HSBC, as part of what former Federal Reserve Board Chairman Alan Greenspan referred to in his October 23, 2008 testimony, before the House Oversight Committee, as “a once in a century credit tsunami.”
Conclusion
Accordingly, it is
ORDERED that those branches of the motion of plaintiff, HSBC BANK USA, N.A., for summary judgment and an order of reference and related relief for the premises located at 500 Thatford Avenue, Brooklyn, New York (Block 3626, Lot 42, County of Kings) are denied without prejudice; and it is further
ORDERED that leave is granted to plaintiff, HSBC BANK USA, N.A., to renew those [*7]branches of the instant motion for summary judgment and an order of reference and related relief for the premises located at 500 Thatford Avenue, Brooklyn, New York (Block 3626, Lot 42, County of Kings), within sixty (60) days of this decision and order, provided that plaintiff, HASBC BANK USA, N.A., submits to the Court:
(1) a copy of a valid assignment of the instant mortgage to plaintiff
HSBC BANK USA, N.A.;
(2) a satisfactory explanation of the conflict of interest by plaintiff’s
counsel, Steven J. Baum, P.C., with respect to the October 9,
2007 assignment of the instant mortgage and note from MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., as nominee for
HSBC MORTGAGE CORPORATION USA, by Darleen Karaszewski,
Esq., the assignor, an attorney employed by Steven J. Baum, P.C.,
plaintiff’s counsel, and the simultaneous representation by Steven J.
Baum, P.C., of assignee plaintiff HSBC BANK USA, N.A.; and,
(3) an affidavit by an officer of plaintiff, HSC BANK, USA, N.A.
explaining why plaintiff, HSBC BANK, USA, N.A., purchased the
instant nonperforming loan, then 161 days in arrears; and it is further
ORDERED that the branch of the motion by plainitff, HSBC BANK, USA, N.A., to dismiss all of the affirmative defenses of defendant CHAQUANNA VASQUEZ is granted.
This constitutes the Decision and Order of the Court.
ENTER
___________________________
HON. ARTHUR M. SCHACK
J. S. C.
Just a point of information:
MERS assignments are usually authorized by a contracted 3rd party title agent, not an employee of the company, for example, Carrie A Hoover who signs for both MERS is a Countrywide employee.
All of these assignments recorded at the Courthouse Registry of Deeds, bear NO WARRANTY, RECOURSE or REPRESENTATION.
They are a fraudulent and worthless document used to fool the courts and defendants.
In the State of Maine, the Courts are closed half days now because of lack of funding. I’m sure it will be interesting to point that MERS and these investors were able to skirt by recording fees using this fraudulent tactic.
Can some body explain how it it that the phrase: “MERS is the mortgagee under this Security Instrument” (fairly unequivocal) becomes “Mortgage Electronic Registration System Incorporated, as nominee for XYZ Lender” when assignments are made, Satisfactions are recorded or when legal actions are commenced? Or even when the bloody Mortgage itself is recorded? It seems recording clerks have been given supplemental instruction from MERS to add the “as nominee” language to recordings.
nice work Mr. McKenna. Your suite mate, George E. Babcock, Esquire
Very interesting information – thank you for the post. Can anyone interpret that information from a California perspective?
Can you please comment these MERS analysis for the Virginia.
Thanks and Be Safe
I found this comment posted on MERSINC.com from administrator of the forum;
“The MERS® System is a tracking system that follows the changes in servicing rights (a non-recordable contract right) and changes in the promissory note ownership (a negotiable instrument which can only be transferred by endorsement and delivery of the note). Nothing is transferred on MERS. There simply are no events taking place when using the MERS® System that triggers the need for an assignment.
http://www.mersinc.com/forum/viewreplies.aspx?id=13&tid=222
I need help fighting MERS in Wisconsin…fast. If someone can provide any information and/or contact me, I would really appreciate it.
I recently called MERS to court by way of a Request for Hearing, armed with an audit which proved that MERS has no legal standing in foreclosure of my home. Thanks to any and all who can help me and my family.
Dan
Minnesota has a statute allowing a nominee to foreclose. I’m still fighting the foreclosure in court on the basis that MERS can’t claim the default necessary to justify even a non-judicial process. I’ve also heard that some states tend to ignore any non-judicial foreclosures brought to civil court by the property owners because these are considered exempt from typical due process. If anyone knows anything that could be helpful about Minnesota or states with similar legalities let me know.
https://www.revisor.leg.state.mn.us/statutes/?id=507.413
This is excellent information. I hope more people challenge MERS in court, because litigation seems to be the only thing lenders understand these days.
Can I just substitute “Pennsylvania Law” for RI Law and bluff my way along” Is there that much difference in laws from state to state without doing exhausting research?
How about one for Pa.?
Or Georgia law?
or on GA law
Great legal analysis of MERS and R.I law.
Is there anyone who can write a similar analysis based on Florida law?