New York Judges Slam Baum Law Firm and JP Morgan Chase Citing Questionable Legal Work

Liening on NY homeowners

TRUSTEE SAYS “Chase filed documents that appear to be patently false or misleading”

As pointed out in this article, 95% of foreclosures are NOT scrutinized. This is why homeowners need to go to forensic analysts, experts and lawyers. Most people are walking away from homes they still own on the basis of a claim by a party who is NOT a creditor. The TILA Audit, if it includes conclusions drawn from an analysis of the securitization of the transaction, will provide the homeowner with ample ammunition to raise issues of fact and require proof from the pretender lender.

As in many cases, careful scrutinization will reveal that the assignment and other documents are fabricated, forged and/or improperly notarized. The most obvious example is shown here where the document was signed in Florida and notarized in Buffalo, NY at the offices of the foreclosure mill (Baum law offices).

This type of scrutiny and research on the securitization of the loan is an essential part of the forensic analysis. If ignored, the “audit” becomes a vehicle for potential recovery of a minor amount of damages, plus attorney fees. If used properly the damages rise and the potential for principal reduction or even elimination of the obligation, note and mortgage if the other side can’t come up with the real party in interest.


Last Updated: 12:01 PM, February 28, 2010

Posted: 12:54 AM, February 28, 2010

As the mortgage melt down paralyzed the economy across the US and throughout New York State, one company in the center of the storm had all the business it could handle.The little-known law firm of Steven J. Baum PC

, which is based in suburban Buffalo, NY, and represents dozens of banks in matters of failed mortgages, last year filed a staggering 12,551 foreclosure lawsuits in New York City and the suburbs, which works out to about 48 a day.The foreclosure mill is one of a handful of super-regional law firms used by the country’s banks — and its lawyers appear to have practiced in every county courthouse and bankruptcy court from Staten Island to Plattsburgh and from Montauk to Niagara Falls.

But as the volume of its workload increased, so did complaints from opposing lawyers and judges that some of the thousands of lawsuits contained questionable legal work.

One bank caught in the crosshairs is JPMorgan Chase Bank, one of the largest mortgage lenders in the city.

Last month, Diana Adams, the US Trustee in Manhattan, filed papers in court supporting punitive financial sanctions against the bank for a string of bad behavior, including seeking to foreclose on homes after they rejected the attempts to make on-time payments and for failing to prove they own the mortgage on a home even as they move to seize it.

Chase filed documents that appear to be patently false or misleading, Adams said in the filing.

Although Chase has recently taken steps to address concerns expressed by courts in connection with other cases, based on Chase’s past and current conduct it needs to be sanctioned, Adams wrote.

A spokesperson for Chase had no comment on the US Trustee’s action.

The complaints against Baum — on the record during hearings, in legal pleadings and, eventually, borne out in judges’ decisions — include:

* Not divulging mortgage payments: In the White Plains bankruptcy of Blanca Garcia, Baum’s firm filed papers claiming Garcia was in arrears — when she actually made payments and showed the court her receipts, but they were not credited to her account. When Garcia’s lawyer complained, Baum’s firm answered the claim but, the lawyer said in court papers, ignored the receipts and continued to claim the mortgage was in arrears.

* Creating questionable assignments: A Suffolk County judge took it upon himself to investigate a filing by Baum’s firm when it attempted to foreclose on the home of Gloria E. Marsh. “A careful review,” the judge wrote in a four-page order, “reveals a number of glaring discrepancies and unexplained issues of substance.”

The judge found that Baum filed the action before the date it claimed its client took ownership of the mortgage.

* Botched legal papers: In the bankruptcy of Matthew Austin, Baum’s firm tried to prove that its client owned the mortgage backing Austin’s house by filing an assignment of that mortgage from a Florida company signed by an executive of that company — but it was notarized in Buffalo, NY.

To the extent assignor flew to upstate New York to appear before a notary in the law offices of Steven J. Baum, PC, defies all logic,” the lawyer said in court papers. “Clearly this is a manufactured document intended to defraud the Court.” The bank and Austin, in hopes of settling the matter, are discussing a mortgage modification.

The Baum firm has not been found to have committed any fraud. It did not return calls for comment.

Those lawyers’ complaints appear to have gained critical traction.

Judges are taking action. A few, like Justice Jeffrey Spinner in a widely reported case in Suffolk last November, are ripping up mortgages and tossing entire cases brought by Baum after it couldn’t prove its case.

Second, the US Trustee, the arm of the Department of Justice charged with keeping the country’s bankruptcy courts free from malpractice, has had its Manhattan office monitoring cases involving the Baum firm.

And just last month, a New York bankruptcy judge said he now has “probable cause” to believe that lawyers for the Baum firm acted inappropriately.

The problems involving Baum and others highlight the increasingly nasty foreclosure problem in the US after banks started the profitable (for them) system of securitizing mortgages and then slicing and dicing pieces of the loans and selling them around the world. Little attention was paid to having an easy-to-use system tracking mortgage ownership. (MERS ANYONE?)

Now, as foreclosure actions clog the country’s courts, some lawyers are fighting back and asking bank lawyers or mortgage servicers to provide proof they own the mortgage.

In most instances, it can’t be done.

“In 85 percent of the cases I handle, the paperwork submitted by the bank or mortgage service company is not in order,” said Linda Tirelli, a consumer bankruptcy lawyer based in White Plains and Stamford, CT. For example, she said, one mortgage servicer recently filed paperwork to prove it owned a mortgage and it said it was assigned ownership by Lehman Brothers in October 2009.

“Now everyone knows there was no Lehman last October,” Tirelli said.

For clients with aggressive lawyers, pushing back against banks — and forcing them to realize that they can’t prove they own the mortgage and therefore will not be able to foreclose — often result in the banks offering a mortgage modification.

Tirelli said the case of the faulty Lehman assignment resulted in her client getting the interest rate on her mortgage cut to 3 percent and $15,000 being cut from her principal.

“And she was denied a mortgage modification by the bank twice before that,” Tirelli said. “If we didn’t fight back she would have lost her house.”

David Shaev, who also represents consumers in bankruptcy court, concurs that most claims filed by banks are defective.

“I mean as the court and everyone in the country knows, the number of foreclosures has increased exponentially, and the volume — I think frankly — had an impact on the quality of the work that was done and submissions to the court,” Jay Teitelbaum, a lawyer for JPMorgan Chase Bank, said in a Jan. 7 court hearing.

Chase hired Teitelbaum after debtors raised questions about the quality of work by the Baum firm.

Steven J. Baum, 41, took over his father’s sleepy Buffalo law practice several years ago, moved it to suburban Amherst and super-sized it. It now has about 500 employees, according to an ad it placed on an online jobs site, plus has started Pillar Processing, a legal-document processing company. Pillar, too, has gotten the attention of judges.

One judge blasted Baum for trying to distance himself from a bad courtroom gambit by having a non-lawyer employed by Pillar file a motion canceling the request.

Last year, Baum filed 5,312 foreclosure actions in New York City, according to state court online records: 2,231 cases in Queens, 1,592 cases in Brooklyn, 692 cases in Staten Island, 678 cases in the Bronx and 119 cases in Manhattan.

One bank executive told a judge during a hearing in a Poughkeepsie court hearing that the bank pays law firms $650 for every referral — presumably just to file the foreclosure action. Additional pleadings would be extra.

And Baum counts nearly every bank that provided a mortgage in The Big Apple as a client — Bank of America, Chase, Wells Fargo, HSBC, US Bank, GMAC Mortgage, Deutsche Bank, Sovereign Bank, Citibank, OneWest, M&T Bank, Bank of New York Mellon, to name just a dozen, according to court records.

While embattled homeowners with aggressive lawyers like Tirelli and Shaev fight the banks and lawyers and end up with mortgage modifications. most of Baum’s 5,312 cases in NYC last year were fought against no legal opponent. Usually, delinquent homeowners can’t afford to hire lawyers. The result is a slam-dunk win for Baum — and the foreclosure of another house — in what amounts to a legal heavyweight picking a fight with a 98-pound legal weakling.

There’s no telling how many houses could have been saved from foreclosure, how many homeowners would still be in their homes and how far down the recovery road the housing market would have been had each embattled homeowner fought back against a broken foreclosure system.

The case of Sylvia Nuer, a Bronx home health care aide, is one exam ple. Nuer owns a one-bedroom Parkchester condo and moved to buy a larger two-bedroom unit in the same building. After her lawyer, who also represented the seller and collected a commission on the sale, messed up some paperwork, Nuer was unable to take possession of the larger unit.

She had to pay two mortgages on her modest salary and soon was forced to file bankruptcy. But Nuer was lucky. She hired a lawyer and fought the bank, which at first refused to simply take back the larger apartment Nuer knew she couldn’t afford to pay for and not live in.

The bank filed costly motion after costly motion.

Finally, Manhattan Bankruptcy Judge Robert E. Gerber had hadenough and told the bank’s lawyer to work out a deal with Nuer.

Alluding to those fighting foreclosure actions without a lawyer, Gerber said: “There must be hundreds, if not thousands of [Nuers] . . . who get this stuff done to them all the time.”

Shaev, of Shaev & Fleischman, citing a recent study, said more than 95 percent of claims in foreclosure cases are not scrutinized. Until that changes, homeowners are going to be needlessly tossed from their homes.

Playing with house money

JPMorgan Chase Bank, under CEO Jamie Dimon, and the law firm of Steven Baum are drawing unwanted attention from bankruptcy judges who are upset over how they are handling some foreclosure actions. Federal authorities are asking for punitive monetary sanctions to be levied against Chase, citing these three cases:

Case #1

Name: Christopher and Bobbi Ann Schuessler

Home: $299K Sullivan County home with $120K equity.

Wrong: Chase refused to accept payment made at bank branch, then moved to foreclose on house after falsely claiming debtor was two months in arrears and that no equity existed in the home.

Result: Bank backs down, pays Schuesslers’ costs.

Judge: “The system utilized by [Chase] constitutes an abuse of the bankruptcy process.” Court’s action should “serve as warning to all [banks].”

Case #2

Name: William R. Pawson

Home: $1.5M Midtown Manhattan Co-op with $220K mortgage.

Wrong: Chase refused online payments then went after apartment because Pawson was delinquent.

Result: Chase paid $50K to settle after Pawson complained.

Judge: “But what concerns me is, after reading Schuessler case [and] having seen [Chase’s] papers here, it’s kind of two strikes. Three strikes and you’re out, frankly.”

Case #3

Name: Sylvia Nuer

Home: $39K Bronx condo plus $104K second property lien.

Wrong: Chase wrongly claims it owns the mortgage to condo; its own witness couldn’t explain bank’s paperwork.

Result: US Trustee joins Nuer’s lawyer’s move for punitive monetary sanctions against Chase.

Judge: “There must be hundreds, if not thousands of [Nuers] . . . who get this stuff done to them all the time.”

Busy bees

Steven J. Baum’s law firm filed 12,551 foreclosure actions in the New York area last year.

Queens 2,231

Brooklyn 1,592

Staten Isl. 692

Bronx 678

Manhattan 119

ALL NYC: 5,312 or 102/week

Nassau 2,210

Suffolk 3,083

Westchester 796

Rockland 444

Orange 706

SUBURBS: 7,239 or 139/week

NYC & SUBURBS: 12,551 or 241/week or 48/day

Source: Official Web site, New York State Courts

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    The lender doesn’t care about you. Send the selfish creep to jail and distribute the bonuses to the soup kitchen and make him in the kitchen chopping carrots.


    JP Morgan Chase Bank, N.A. v George
    2010 NY Slip Op 50786(U)
    Decided on May 4, 2010
    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 May 4, 2010

    Supreme Court, Kings County





    Plaintiff- JP Morgan Chase Bank

    Steven J Baum, PC

    Amherst NY

    Defendant- Gertrude George

    Edward Roberts, Esq.

    Brooklyn NY

    Defendant- Ivy Mae Johnson

    Precious L. Williams, Esq.

    Brooklyn NY

    Arthur M. Schack, J.

    In this mortgage foreclosure action for the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings), defendant IVY MAY JOHNSON (JOHNSON) moves by order to show cause to vacate the January 16, 2008 judgment of [*2]foreclosure and sale for the subject premises, pursuant to CPLR Rule 5015 (a) (4), claiming that plaintiff JP MORGAN CHASE BANK, N.A., AS TRUSTEE

    FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4 (CHASE), lacked standing to commence the instant action and thus, the Court never had jurisdiction and the instant complaint should be dismissed.

    I signed defendant JOHNSON’s order to show cause on February 16, 2010, and set oral argument for April 30, 2010. Plaintiff CHASE failed to file and serve any opposition to defendant JOHNSON’s order to show cause. After hearing oral arguments on April 30, 2010, and reviewing defendant JOHNSON’s moving papers and recorded documents in the Automated City Register Information System (ACRIS) of the New York City Department of Finance for the subject block and lot, it is clear that plaintiff CHASE did not own the subject mortgage and note on April 7, 2006, the day the instant action commenced. Therefore, plaintiff CHASE did not have standing and the Court never had jurisdiction. Thus, the January 16, 2008 judgment of foreclosure and sale is vacated and the instant complaint is dismissed with prejudice.

    Defendant GERTRUDE GEORGE (GEORGE) purchased the subject premises from Derrick O’Connor for $545,000.00, by a deed dated September 17, 2004. The deed was recorded in the Office of the City Register of the City of New York, on April 11, 2005, at City Register File Number (CRFN) 2005000206826. At the September 17, 2004 closing, GEORGE executed two notes and mortgages. With respect to the subject note and mortgage in the instant action, GEORGE borrowed $381,500 from CAMBRIDGE HOME CAPITAL, LLC (CAMBRIDGE), and this mortgage was recorded on April 11, 2005, by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), as nominee for CAMBRIDGE.

    Subsequently, defendant GEORGE conveyed, by a deed dated March 23, 2005, the subject premises to defendant JOHNSON and herself, as joint tenants with the right of survivorship. This deed was recorded the next day, March 24, 2005, in the Office of the City Register of the City of New York, at CRFN 2005000172921.

    Then, plaintiff CHASE commenced the instant foreclosure action by filing the summons, complaint and notice of pendency with the Office of the Kings County Clerk on April 7, 2006. Plaintiff CHASE, in ¶ 1 of the instant complaint, alleges that it “is the holder of a mortgage bearing date the 17th day of September 2004 executed by GERTRUDE GEORGE to secure the sum of $381,500.00 and recorded at Instrument No. 2005000206826 in the Office of the Clerk of the County of KINGS, on the 11th day of April 2005; said mortgage is to be duly assigned by an Assignment to be recorded in the Office of the Clerk of KINGS County [sic] [Emphasis added].” Plaintiff’s counsel, who has commenced thousands of foreclosures in Kings County, should be aware that mortgages in Kings County are recorded in the City Register of the City of New York, not the Office of the Kings County Clerk.

    Leaving aside the location of Kings County mortgage recordings, plaintiff’s

    counsel obviously admitted in the complaint that plaintiff CHASE did not own the mortgage on the day the instant action commenced, April 7, 2006, because, as noted above, it states in ¶ 1 of the complaint that “said mortgage is to be duly assigned by an Assignment to be recorded [Emphasis added]” In fact, the assignment of the subject mortgage, from MERS, as nominee for CAMBRIDGE, to CHASE, was not executed until June 21, 2006, 75 days later. The June 21, [*3]2006 assignment states “[t]his assignment is effective as of March 21, 2006.” The notary public who took the assignor’s signature, in Fort Mill, South Carolina, states that Anita L. Antonelli, Assistant Secretary of MERS, appeared before the South Carolina notary public “[o]n the 21st day of June in the year 2006.” The cover sheet for the recording of the assignment, in error, states that the document date is “03-21-06.” This June 21, 2006 assignment was recorded in the Office of the City Register of the City of New York, at CRFN 2006000409470, on July 19, 2006.

    Meanwhile, in the instant foreclosure action, I issued an order of reference on September 5, 2006 and a judgment of foreclosure and sale, on January 16, 2008, with $440,065.67 due to plaintiff CHASE as of June 29, 2007.

    While defendant JOHNSON alleges in the instant order to show cause that she was never served with the complaint, her more important and first priority allegation is that plaintiff CHASE lacked standing to bring this action. If CHASE lacked standing, the Court did not have jurisdiction and the action is a nullity.

    Plaintiff CHASE never submitted opposition papers to refute defendant JOHNSON’s argument that it lacked standing and never submitted any evidence that it possessed the subject mortgage and note on April 7, 2006, the day the instant foreclosure action commenced. Plaintiff CHASE’s clear lack of standing means the Court never had jurisdiction. Therefore, the Court grants the instant order to show cause and dismisses the subject foreclosure action with prejudice.

    Plaintiff’s lack of standing
    Defendant JOHNSON’s order to show, pursuant to CPLR Rule 50515 (a) (4), to vacate the instant judgment of foreclosure and sale “for lack of jurisdiction to render the judgment,” because plaintiff CHASE lacks standing, is a motion that can be made at any time. This is unlike a motion to vacate an “excusable default,” pursuant to CPLR Rule 5015 (a) (1), which must be made within one year of a default, and requires a defendant to demonstrate both a reasonable excuse for the default and a meritorious defense. (See Caba v Rai, 63 AD3d 578 [1d Dept 2009]; Siegel, Practice Commentaries McKinney’s Cons Law of NY, Book 7B CPLR 5015:3). A claim for lack of jurisdiction is “a condition precedent to the maintenance of the claim.” (Siegel, Practice Commentaries McKinney’s Cons Law of NY, Book 7B CPLR 5015:9). Moreover, “[i]f the Court lacked jurisdiction to render the judgment or order, the motion to vacate is based is based on paragraph 4 of CPLR 5015 (a).” (Siegel, NY Prac § 430, at 730 [4d ed]).

    In the instant action, it is clear that plaintiff CHASE lacked “standing” and therefore the Court lacked jurisdiction. This mandates that the Court vacate the January 16, 2008 judgment of foreclosure and sale and dismissal of the instant action.

    “Standing 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.” (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801 812 [2003], cert denied 540 US 1017 [2003]). Professor Siegel (NY Prac, § 136, at 232 [4d ed]), instructs that:

    [i]t is the law’s policy to allow only an aggrieved person to bring a

    lawsuit . . . A want of “standing to sue,” in other words, is just another

    way of saying that this particular plaintiff is not involved in a genuine [*4]

    controversy, and a simple syllogism takes us from there to a “jurisdictional”

    dismissal: (1) the courts have jurisdiction only over controversies; (2) a

    plaintiff found to lack “standing” is not involved in a controversy; and

    (3) the courts therefore have no jurisdiction of the case when such a

    plaintiff purports to bring it.

    “Standing 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.” (Caprer v Nussbaum (36 AD3d 176, 181 [2d Dept 2006]). If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1st Dept 2002]).

    Plaintiff CHASE lacked standing to foreclose on the instant mortgage and note when this action commenced on April 7, 2006, the day that CHASE filed the summons, complaint and notice of pendency with the Kings County Clerk, because it did not own the mortgage and note that day. The instant mortgage and note were assigned to CHASE, 75 days later, on June 21, 2006. 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 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]).

    Assignments of mortgages and notes are made by either written instrument or the assignor physically delivering the mortgage and note to the assignee. “Our courts have repeatedly held that a bond and mortgage may be transferred by delivery without a written instrument of assignment.” (Flyer v Sullivan, 284 AD 697, 699 [1d Dept 1954]). The written June 21, 2006 assignment by MERS, as nominee for CAMBRIDGE to CHASE is clearly 75 days after the commencement of the action. Not only did plaintiff CHASE fail to submit evidence that it had physical possession of the note and mortgage on April 7, 2006, plaintiff CHASE admitted, in ¶ 1of the instant complaint, that “said mortgage is to be duly assigned by an Assignment to be recorded.”

    The retroactive statement in the June 21, 2006 MERS, as nominee for CAMBRIDGE, to CHASE assignment, “[t]his assignment is effective as of March 21, 2006,” is unavailing. It demonstrates that plaintiff CHASE did not own the mortgage and note when the instant action commenced on April 7, 2006. “Thus, a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of an assignment.” (Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 210 [2d Dept 2009]). The Marchione Court relied upon LaSalle Bank Natl. Assoc. v Ahearn (59 AD3d 911 [3d Dept 2009], which instructed, at 912, “[n]otably, foreclosure of a mortgage may not be brought by one who has no title to it’ (Kluge v Fugazy, 145 AD2d 537 [2d Dept 1988]) and an assignee of such a mortgage does not have standing unless the assignment is complete at the time the action is commenced).” (See U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept 2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709 [2d Dept 2009]; Citgroup Global Mkts. Realty Corp. v Randolph Bowling, [*5]25 Misc 3d 1244 [A] [Sup Ct, Kings County 2009]; Deutsche Bank Nat. Trust Company v Abbate, 25 Misc 3d 1216 [A] [Sup Ct, Richmond County 2009]; Indymac Bank FSB v Boyd, 22 Misc 3d 1119 [A] [Sup Ct, Kings County 2009]; Credit-Based Asset Management and Securitization, LLC v Akitoye,22 Misc 3d 1110 [A] [Sup Ct, Kings County Jan. 20, 2009]; Deutsche Bank Trust Co. Americas v Peabody, 20 Misc 3d 1108 [A] [Sup Ct, Saratoga County 2008]).

    The Appellate Division, First Department, citing Kluge v Fugazy, in Katz v East-Ville Realty Co., (249 AD2d 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.” Moreover, plaintiff CHASE “offers no evidence that it took physical possession of the note and mortgage before commencing this action, and again, the written assignment was signed after defendant was served.” (Deutsche Bank Trust Co. Americas v Peabody, supra). Therefore, with plaintiff CHASE not having standing, the Court lacks jurisdiction in this foreclosure action. The instant judgment of foreclosure and sale is vacated and the instant action is dismissed with prejudice.


    Accordingly, it is
    ORDERED, that the order to show cause of defendant IVY MAE JOHNSON, to vacate the January 16, 2008 judgment of foreclosure and sale for the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings), pursuant to CPLR Rule 5015 (a) (4), because plaintiff, JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, lacked standing to commence the instant action and thus, the Court never had jurisdiction, is granted; and it is further

    ORDERED, the instant complaint of plaintiff JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4 for the foreclosure on the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings) is dismissed with prejudice.

    This constitutes the Decision and Order of the Court.



    Hon. Arthur M. SchackJ. S. C..


    INDEX NO. 6606-08
    RJI NO. 01-08-95005
    Supreme Court Albany County All Purpose Term, March 30,2010
    Assigned to Justice Joseph C. Teresi
    Steven J. Baum, P.C.
    Brian M. Swann, Esq.
    Attorney for Plaintiff
    220 Northpointe Parkway, Suite G
    Amherst, NY 14228
    David M. Freedman, Esq.
    Attorney for Defendant Wei Qiang Xu
    100 State Street
    Albany, New York 12207
    TERESI, J.:
    On August 5, 2008, Plaintiff commenced this action to foreclose a mortgage it holds on a
    parcel of real property (hereinafter the “property”) owned by defendant Wei Qiang Xu
    (hereinafter “Defendant”). On this record it is undisputed that Defendant failed to timely answer
    the complaint. On December 5, 2008 the Hon. John Egan referred this matter to a referee “to
    [* 1]
    ascertain and compute the amount due on the bond/mortgage”.
    It is also undisputed that on December 19, 2008, the Plaintiff and Defendant entered into
    a forbearance agreement (hereinafter “Forbearance Agreement”). The Forbearance Agreement
    required Defendant to make an initial six thousand dollar payment, and then set forth a schedule
    of monthly payments (hereinafter the “Plan”). It further provided that Plaintiff would “allow
    [Defendant’s] loan to remain delinquent during this plan and … forbear from … continuing a
    foreclosure action.” The Forbearance Agreement does not provide Plaintiff with a unilateral
    right of termination, rather it specifically provides for termination upon Defendant’s failure to
    “remit payments in accord with the plan.”
    Approximately one month after the Forbearance Agreement was signed, Defendant
    alleges that he engaged in a foreclosure settlement conference with Plaintiff. He alleges that the
    Hon. Patrick Monserrate conducted the conference, which was attended by Kevin Laurilliard,
    Esq. on behalf of Plaintiff. In its opposition papers, Plaintiff does not dispute such allegation.
    Thereafter, on June 19,2009, the Hon. John Egan executed a Judgment of Foreclosure
    and Sale (hereinafter “Judgment”). The Judgment confirmed the referee’s report, ordered the
    property sold and, in accord with the referee’s report, set forth a specific monetary award due
    Plaintiff under the mortgage. Conspicuously absent from either the Judgment or the referee’s
    report is any reference to the Forbearance Agreement.
    On March 3, 2010, the property sold at a public foreclosure sale. Defendant now moves
    to vacate the Judgment and set aside the foreclosure sale. Plaintiff opposes the motion. Because
    Defendant demonstrated his entitlement to an Order vacating the Judgment, his motion is granted
    in its entirety.
    [* 2]
    CPLR §5015(a)(I)’s “excusable default” provision provides Defendant with the specific
    statutory basis for vacating the Judgment. Excusable default requires the Defendant to “establish
    both a reasonable excuse for the default and a meritorious defense to the underlying claim.”
    (Hohenforst v. DeMagistris, 44 AD3d 1114, 1116 [3d Dept. 2007][quoting Trim v. Trim, 21
    AD3d 1203 [3d Dept. 2005]; Washington Mut. Bank v. Fisette, 66 AD3d 1287 [3d Dept. 2009];
    333 Cherry LLC v. Northern Resorts, Inc., 66 AD3d 1176 [3d Dept. 2009]). On this record,
    Defendant made such showing.
    Here, Defendant demonstrated a “reasonable excuse” for his default. Analyzing
    Defendant’s excuse necessarily starts with the default he seeks to vacate. Defendant does not
    challenge his default in answering the Complaint, but rather seeks to vacate his default on
    Plaintiff’s motion for Judgment. As such, his excuse need not address his failure to timely
    answer the complaint; rather, he must reasonably excuse his failure to oppose Plaintiffs motion
    for Judgment. Here, Defendant alleges that he defaulted on Plaintiffs motion for Judgment,
    because he never received notice of it. Such allegation is not contested or disputed by Plaintiff,
    nor has Plaintiff offered any proof that Defendant received notice its motion for Judgment.
    While a Defendant who defaults in formally appearing, pursuant to CPLR §320(a),
    ordinarily waives notice of any further proceedings. Where a defendant informally appears,
    notice must be given. (USF&G v. Maggiore, 299 AD2d 341 [2d Dept. 2002]; Kurlander v.
    Willie, 45 AD3d 1006 [3d Dept. 2007]; NYCTL 1998-1 Trust v. Prol Properties Corp., 18
    A.D.3d 525, [2d Dept. 2005]; Siegel, New York Practice [4th ed, 2005] §112, p 203). Here,
    although Defendant did not formally appear in this action, he did demonstrate that he informally
    appeared. On this record it is uncontested that Defendant both entered into the Forbearance
    [* 3]
    Agreement and engaged in a settlement conference with Plaintiff. Such acts establishing
    sufficient participation in the merits of this action to constitute Defendant’s informal appearance.
    (11SF&G, supra). As such, Defendant’s failure to contest Plaintiff’s motion for Judgment is
    reasonably excused because he never received notice of it.
    Likewise, Defendant also demonstrated a “meritorious defense”. Defendant alleges that
    he complied with the Forbearance Agreement’s initial payment requirement, and monthly
    payments thereafter. He then alleges that Plaintiff wrongfully rejected, without explanation, his
    March, April and May 2009 payments. As such, Defendant demonstrated his compliance with
    the Forbearance Agreement and a potentially meritorious defense of “tender”. iliational Sav.
    Bank of Albany v. Hartmann, 179 AD2d 76 [3d Dept. 1992]). “Tender” is viable because
    Plaintiff was required to “forbear from … continuing [the] foreclosure action” while Defendant
    continued to make the Plan’s payments. As such, Plaintiff was neither entitled to unilaterally
    cancel the Forbearance Agreement nor to collect the full amount of the accelerated mortgage,
    until Defendant breached the Forbearance Agreement. While Plaintiff’s opposition papers
    specifically acknowledged such provision, it failed to allege that Defendant defaulted under the
    Forbearance Agreement.
    Accordingly, because Defendant set forth both a “reasonable excuse” for his default on
    the Plaintiff’s motion for Judgment and a “meritorious defense” to it, his motion is granted. The
    Judgment is vacated and the sale of the property is cancelled, null and void. To the extent not
    specifically addressed above, the parties’ remaining contentions have been examined and found
    to be lacking in merit.
    This Decision and Order is being returned to the attorneys for the Defendant. A copy of
    [* 4]
    this Decision and Order and all other original papers submitted on this motion are being
    delivered to the Albany County Clerk for filing. The signing of this Decision and Order shall
    not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable
    provision ofthat section respecting filing, entry and notice of entry.
    So Ordered.
    Dated: Albany, New York
    April..2! ‘ 2010

  6. I just noted a meeting that this Steven J Baum attended. He is also doing business as ‘The National Firm”.

    Other interesting characters that are also doing business as ‘The National Firm” are Thomas Holthus of San Diego, CA &
    Kevin R. McCarthy of San Diego, CA who are the principals of ‘QUALITY LOAN SERVICE’ in San Diego.

    Quality is becoming KNOWN for its work with Litton. Litton has their “Marti Noriega’ sign as MERS employee to designate Quality as the “Substitute Trustee”.

    Looks like ‘The National Firm” may start showing up too. I have not seen it as yet, other than the meeting attendee list.

  7. Because they have have no proof. They offer up a loan modification, hence person trying to save home signs mortgage modification and thus it becomes the banks. however you will also lose your home if you do not qualifiy, hence you LOST YOUR HOME. Please get your self an Attorney before you sign anything.

  8. All the thanks goes to British Government who initiated and supported the rescue at the time of ultimate difficulty

  9. Only emphasis for referring to “In reKerman J. Minbatiwalla” was to cite the reference to to “In re Hayes” and invalid Power of Attorney.

    See – “in addition, the court found the Assignment ineffective to convey standing on Deutsche Bank because Citi lacked authority to assign the mortgage to Deutsche Bank under the PSA. Id.”

    Under PSAs – only Trustees have Power of Attorney – servicers have no Power of Attorney under most PSAs.
    Thus, CIti had no authority to assign the mortgage to Deutsche Bank (trustee) under the PSA.

    Further, Citi-Residential is defunct.

    POAs are highly questionable.

    Only emphasis for point.

  10. […] LivingLies by Neil Garfield opinion (I urge everyone to bookmark this website) […]

  11. Some of you may be interested in decision in “In re Kerman J. Minbatiwalla”. Valid Power of Attorney is very important. See excerpt from case below: Bankruptcy courts appear to be getting tougher on proof of claims.

    “Similarly, in In re Hayes, the court found that an alleged trustee of an entity apparently related to an alleged assignee of a note and mortgage had no standing to lift the automatic stay. Hayes, 393 B.R. at 268. There, the original mortgagee on a mortgage and note for certain property (“Property”) was Argent Mortgage Company, LLC (“Argent”). Id. at 262. AMC Mortgage Services, Inc. [*13] (“AMC”), as alleged servicer for Argent, filed a proof of claim concerning a lien on the Property. Deutsche Bank National Trust Company (“Deutsche Bank”), as alleged Trustee of Argent Mortgage Securities, Inc., under a Pooling and Servicing Agreement (“PSA”), filed a motion to lift the automatic stay with respect to the Property. Id. at 261. The debtor objected to both AMC’s proof of claim and Deutsche Bank’s motion to lift the automatic stay, challenging Deutsche Bank’s standing, and noting the absence of evidence of an assignment to AMC from Argent. Id. at 263. At trial, Deutsche Bank, through a Citi Residential Lending, Inc. (“Citi”) bankruptcy specialist, who testified that Citi was the current servicer of the mortgage, introduced (1) a “Confirmatory Corporation Assignment of Deed of Trust Mortgage,” pursuant to which Argent, by Citi (its “attorney-in-fact”), purported to assign and transfer the mortgage to Deutsche Bank as Trustee of Argent Mortgage Securities, Inc., dated seven months after the filing of the lift stay motion (“Assignment”); (2) a “Limited Power of Attorney” given by Argent to Citi, including the power to assign any Mortgage and the related Mortgage Note; (3) [*14] the PSA between Argent Securities, Inc., Ameriquest Mortgage Co. (“Ameriquest”) and Deutsche Bank, as Trustee, in which Argent was identified as an “Originator.” Id. at 263-66. The Citi bankruptcy specialist also testified that Argent and Ameriquest were affiliated companies, that Ameriquest created AMC to service loans and that Citi purchased AMC’s loan servicing portfolio. Id. at 266. Despite this body of evidence, the court denied Deutsche Bank standing to lift the automatic stay because it failed to prove that the mortgage was assigned from Argent to Argent Mortgage Securities, Inc. Id. at 268. In addition, the court found the Assignment ineffective to convey standing on Deutsche Bank because Citi lacked authority to assign the mortgage to Deutsche Bank under the PSA. Id. Furthermore, it found that Deutsche Bank failed to submit any evidence that the mortgage was included in the PSA. Id. The court also found that “the Debtor’s reference to Deutsche Bank as a secured creditor in several of her proposed Chapter 13 plans cannot confer standing on it as a party in interest for purposes of its Motion for Relief from Stay.” Id. at 268 (citing In re Newcare Health Corp., 244 B.R. 167, 170 (1st Cir. B.A.P. 2000) [*15] (“a defect in standing cannot be waived”)). Lastly, the court denied Deutsche Bank standing to defend the Debtor’s objection to AMC’s proof of claim, and sustained the objection without prejudice to reconsideration under 11 U.S.C. § 502(j) upon the filing of an amended proof of claim by the proper party. Id. at 270.

    These principles apply with equal force here. Chase has the burden of establishing its standing. Claim # 2 does not attach evidence establishing Chase’s standing as loan servicer or as the holder of the note and mortgage. Whatever its reasons, Chase ignored the written requests from Debtor’s counsel for evidence of its standing, and did not respond to the Debtor’s Objection to Claim # 2. Therefore, Chase has failed to present evidence necessary to demonstrate that it is either the servicer, note and mortgage holder, or assignee such that it has standing to bring Claim # 2.”

  12. Angry:

    Even if you can get to court – there will likely be discovery problems. The banks law firms are strong and powerful and they will fight hard to quiet you. Believe Mr. Garfield is right that it is very difficult to do it alone – everyone needs help. Even then the court battle will be lopsided due to the banks power.

    I was hoping that a large class action might expose the current practices. If this had occurred, the Department of Justice might be forced to act. But the class actions have been few and far between and, in particular, a large one just settled – with almost all the money going to the attorneys and no resolution for the homeowner’s mortgages.

    I believe that something must be done in Washington by the people themselves. People are “angry” – like you, but we have no real voice in Washington. People need to join together and speak out, but people are weakened from their own individual struggles.

    Games and rules will change because the government cannot afford another meltdown. But how quickly and efficiently will the rules changes? Encouraged that Timothy Geithner is speaking out for the Consumer Protection Agency with full enforcement powers. Currently, we have no place to go. Now is the time to for the people to speak up – to their representatives, and to possibly gain access to speak in Washington. Believe this is critical in addition to individual battles, but where do we start?


    Even when and or if the banks are confronted thru the courts,the game and rules will change to allow the banks to recover unscathed . I truly fear that our gov is [as of the last 100 years] too corrupt & entangled with the blood sucking banks for any hope of nonviolent recovery [at least for the middle-class]. History has long shown the greed & onerous behavior or these slim knows no limits . Those who are not the banks are the targets & have been hit like a bullseye… I’m pissed & will remain so until these leeches have been dislodged, by blood or power i care not which yields the results.

  14. This makes your brain freeze, Swaps, CDO,etc. Has your obligation been paid has it not? One question here, is it plausible to request such information in a QWR, and if so how should the request for information be formatted.

    As for the lawyer in NY, there are plenty more out there, The Shapiro Attorney Network comes to mind. Shapiro & Dicaro just one facet of this nationwide network are the legal team smacked down in the White Plain’s NY “can’t produce the note” case last October 09′.

  15. dny

    Yes. Exactly. .

  16. “The banks still funds the loan (often through a table funder) – how they (the bank) finance their loans is up to the bank.”

    – But if the “true lender” was not disclosed at the closing table, would that not be a TILA violation? As I understand it, “table funding” is only legal when the parties are disclosed. And, if the “true lender” (financing the loan “through” the prentender lender) becomes “the Seller” in a securitization scheme (skipping the “Originator” in the chain of title), then that might be evidence of such table funding?

  17. DNY

    You are right – what is actually delivered at the swap execution? since many of the loan notes are destroyed. But, my point is that after a loan is in default, nothing is left of it anyway – at least from an accounting perspective. The loan is charged-off and the security is extinguished. But charged-off and extinguishment does not mean the debt is still not owed (according to the banks) to someone. The Comptroller of the Currency will verfity that in charge-off the account is not sold (because the account is extinguished), only the right to collect the debt is sold. Account and debt are two different things. Thus, often attorneys for the debt buyer will claim “the account was not sold”. Have to ask them was the debt sold – i.e. the right to collect.

    Mr. Garfield posts an excellent explanation of CDSs today. I disagree with Mr. Garfield on one point. Mr. Garfield states “Thus, it was the investor who was the ONLY creditor in the transaction tat funded a homeowner’s loan (at least intitially before bailouts and payoffs of insurance proceeds and proceeds of CDS contracts).

    I do not agree because investors in securities are simply investors in securities – derived from the loan. They are fixed income investments that give the investors a pro-rata pass-through of the banks receivables. The banks still funds the loan (often through a table funder) – how they (the bank) finance their loans is up to the bank. It does not mean that the investors directly fund individual loans. The relationship is indirect and not direct. Investors in securities do not hold individual mortgage liens. They do not qualify borrowers, and are not the creditor according to othe TILA. Further, the security is extinguished when the loan is in default. The investor is paid (CDS) but the security investor has no right to collect the debt because the security is paid and gone. It is through the residual/equity tranche (most often held by the servicer and which is not securitized) that transfers collection rights to third parties.

    I know Mr. Garfield has a point to his reasoning, and I am not one to question. I just do not think investors who hold a pro-rata share in a pool of pass-through receivables can be the “creditor”. And I think the Federal Rerserve, in it’s Interim Opinion on the TILA Amendment supports my reasoning.

    Anyway, it is important for all join to together to fight whatever way we can – and it is becoming increasing clear that pretend lenders will eventually be exposed in court. But how many will suffer before we get there?.

  18. correction – “” in carpenter – the deed of trust is a nullity without the note.”
    period. the punctuation was need to define the case law understanding.
    sorry… confusion abounds!

  19. dny
    fwiw my understanding is-the note… in ca for example is never recorded only the deed of trust is recorded, [naming mers as beneficiary and or assigns ] so the 2 have been split [note & deed of trust ] -“collection rights” is under said deed of trust no mention of note. This split poses a problem of any transfer that most case law indicates the pair [note & deed or mortgage] were never intended to operate separately ” in carpenter – the deed of trust is a nullity without the note,but collection rights appear to exist separately , thus the position as mortgage servicer is a non-holder with holder rights is confusing at best [ imo this is intentionally confusion] , selling of “debt collector rights” creates another layer of fee based bleeding of the general public. fukem …I’ve had enough !!

  20. dny- around christmas 09 there was an article on securitization in the Denver Post with regard to the “credit crisis”. In that piece there was an observation that in the Colorado courts system, there was a backlog of appeals from entities who “who sought to be recharacterized from debt collectors to creditors”. But the reason I think that they are buying debt at 2-6 cents on the dollar is precisely the reason that they are debt collectors rather than (secured) creditors. And the secured creditors have written off the loans, as a result of which the debt and its underlying collateral., the mortgage, have been extinguished. Yes No Maybe? They can’t have it both ways, as they separated the note from the mortgage at inception? Anyone?

  21. Anonymous, you state, “physically delivery of loans is executed…” but this seems dubious at best since so many original paper note and mortgages appears to have been deliberately destroyed when “converted to electronic data”, etc.

    Can somebody take a crack at defining “collection rights?” Are they rights to “collect” for yet another undisclosed “creditor?” Or do “collection rights” purportedly allow such a holder to become a “creditor?” If so, is such an entity NOW a party to the relevant agreements, namely, the mortgage and the note?

  22. […] New York Judges Slam Baum Law Firm and JP Morgan Chase Citing Questionable Legal Work […]

  23. dny

    1) Some default swaps are used as hedge for trading and are just traded based on the “spread” in which price for swaps is based on the current value of the swap – which is calculated on betting for or against the loan performance that the swaps are derived from. This does not involve removal of securities from from the trust.

    2) When a swap is used to remove default loans from the trust (not as a trading spread hedge), the loan (or portfolio of loans) are removed “swapped) to the swap provider. Since a default loan is no longer a security – only collection rights are swapped out of the trust. The security ceases to exist and the loan that supports the security (and the swap) is charged-off and can no longer be a security. Bloomberg is technically, I believe, in error when it says “underlying securities or cash equivalent.” At settlement of swap (for default loans), physically delivery of loans is executed, and although the securities are removed from the trust, these securities are no longer performing – and, therefore, no longer a security. Only collection rights on the loan remain.

    3) Swaps are contracts – they are not securities. But you may still think of them as an “investment.” There could be multiple “investors” that provide credit enhancement (swap assurance) to a trust for non-performing loans. This very issue is part of the Federal Reserve’s Opinion on the May 2009 TILA Amendment – it’s Request for Comments. That is, certain institutions do not want to divulge multiple investors – and only feel it is necessary to disclose one investor as the current creditor. The Federal Reserve will address this in it’s final opinion. I agree that all investors should be divulged as the party that holds only a fractional interest (maybe even no financial interest), could be selected as the party disclosed to the borrower. This would defeat the purpose of the TILA amendment – which was designed to provide the borrower with the identify of the creditor to whom the debt is owed. At the very least, if only one of multiple investors is to be disclosed, the investor with the largest position (interest) in the debt should be disclosed. The Federal Reserve does indicate that the creditor who accounts for the largest position on it’s balance sheet is the creditor. So, I hope the Fed clarifies that the largest position holder of the debt should be disclosed when there are multiple investors.

    Disclaimer: I am not an attorney and this is not legal advice. This is for educational and informational purposes only.

  24. Scores of debt buyers and collection lawyers are DELIBERATELY exploiting borrowers’ predicament to GAIN OWNERSHIP THEMSELVES of properties (sometimes in lieu of payments –in conflict of interest, welcome litigation so they can add more billable fees).

    Unlawful foreclosures enables things like simulated auctions which conveys deeds out of borrowers’ names into the names of feigned foreclosure plaintiffs, and facilitates property “flipping.” Some flips are to Freddie Mac even though foreclosures are completely NULL! Meanwhile, lenders like WELLS FARGO benefit from real estate schemes by filing false IRS (“acquisition”) form 1099-A’s, despite some properties were actually never lawfully “acquired,” due to the fact that fraudulently flipped property occurs by use of either DEFUNCT mortgage lenders or use of lenders’ names which have sold those notes, but no assignments were recorded! See link below for more facts and proof about these schemes –including foreclosure being carried out in civil court via defunct Lehman Brother mortgage as the lender, while at the same time Wells Fargo maintains lawsuit in federal court to demand payment from Allstate Insurance of proceeds for destroyed by Hurricane Katrina. (There are likely hundreds, thousands of such incidences!)

    Illegal Foreclosures & Evictions, Appalling Lender / Lawyer Abuses…

    Lack of Legal Help: One More Way the Deck Is Stacked Against Homeowners

    OPEN LETTER TO PRESIDENT OBAMA on Foreclosure Crisis

  25. Anonymous: If, as Bloomberg reports, “Credit swaps pay the buyer face value if a borrower defaults in exchange for the underlying securities or the cash equivalent.” ( ) – Then what happens when multiple parties purchase credit default swaps on the same third party’s “default”, which I have read in many different places has occurred? Like several neighbors purchasing fire insurance on the same neighbors home. While it seems more and more like foreclosures are by servicers for swap holders, how can the collection rights to “the underlying securities” (i.e. the notes) possibly be assigned to more than one party? If assigning the underlying security, or collection rights to it to the swap issuer was required or standard practice, then wouldn’t multiple swaps relating to the same default event sold to various parties be outright fraud?

  26. Don-CA

    Because the modifications are being falsely done under the servicer name. Even states that have court-ordered mediation before foreclosure, are allowing modifications under the servicer name without identification of the actual creditor. These modifications are simply bogus and are invalid contracts. Homeowners continue to be victimized and will often do anything in order to safe their home – even if it not legal.

    Loan modifications are simply a modification of the original contract – there must be a lender- and it is NOT the servicer.. .

  27. What exactly did the New York Judge do to the Baum Law Firm?

    It says the judge “Slammed” them, but there’s no report of what the Judge did.

    It sounds like they didn”t do anything!

  28. Exactly Don. Game up. Where are they getting thir marching orders from and who trusts them anymore.

  29. Can anyone explain this for me:

    “For clients with aggressive lawyers, pushing back against banks — and forcing them to realize that they can’t prove they own the mortgage and therefore will not be able to foreclose — often result in the banks offering a mortgage modification.”

    How and why are the banks offering a modification when they can’t prove they own it? WTF?

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