US BANK SLAMMED FOR FALSE PLEADINGS

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EDITOR’S NOTE: Schack doesn’t say the pleadings were false but the inference is obvious. The documents submitted were fabricated, forged and false. US Bank couldn’t come up with something better. And the lawyers for US Bank balked at signing an affirmation of the pleadings and exhibits, as required under New York State law.

From my seat it looks like this: if it is US Bank, the pleadings and representations are most likely living lies.

The implications are obvious. Homeowners who were “foreclosed” and/or evicted by US Bank probably have a right to go back into court and make their case for damages and recovery of the property, clearing title by a lawsuit for quiet title.

NYSC Judge Schack Slams Foreclosure Firm Rosicki, Rosicki & Associates, P.C. “Conflicted Robosigner Kim Stewart”

SEE FULL ARTICLE ON STOPFORECLOSURE FRAUD.COM

NYSC Judge Schack Slams Foreclosure Firm Rosicki, Rosicki & Associates, P.C. “Conflicted Robosigner Kim Stewart”

Decided on December 12, 2011

Supreme Court, Kings County

U.S. Bank, N.A., Plaintiff,

against

Wayne Ramjit et al., Defendants.

17027/08 Plaintiff Rosicki Rosicki and Associates

Batavia NY

Arthur M. Schack, J.

In this foreclosure action, plaintiff, U.S. BANK N.A. (U.S. BANK), moved for an order of reference and related relief for the premises located at 1485 Sutter Avenue, Brooklyn, New York (Block 4259, Lot 22, County of Kings). For the Court to consider the motion for an order of reference, I ordered plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., on July 29, 2011, to comply with the October 20, 2010 Administrative Order of then Chief Administrative Judge Ann T. Pfau, as revised on March 2, 2011, and concluded that:

Accordingly, it is

ORDERED, that plaintiff U.S. BANK N. A.’s motion for an

order of reference and related relief for the premises located at 1485

Sutter Avenue, Brooklyn, New York (Block 4259, Lot 22, County of

Kings) and the instant foreclosure action will be dismissed with

prejudice, unless, within sixty (60) days from this decision and order,

counsel for plaintiff, U.S. BANK N.A., complies with the new Rule,

promulgated by the Chief Administrative Judge Ann T. Pfau on

October 20, 2010, as revised on March 2, 2011, by submitting an

affirmation, to my Chambers (not the Foreclosure Department), [*2]

360 Adams Street, Room 478, Brooklyn, NY 11201, using the new

standard Court form, pursuant to CPLR Rule 2106 and under the

penalties of perjury, that counsel for plaintiff, U.S. BANK N.A., has

“based upon my communications [with named representative or

representatives of plaintiff], as well as upon my own inspection and

reasonable inquiry under the circumstances . . . that to the best of

my knowledge, information and belief, the Summons, Complaint and

other papers filed or submitted to the Court in this matter contain no

false statements of fact or law”, and is “aware of my obligations under

New York Rules of Professional Conduct (22 NYCRR Part 1200) and

22 NYCRR Part 130.”

On September 23, 2011, plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., filed with the Court the instant motion, requesting an extension of thirty (30) days, up to and including October 26, 2011, to submit the required attorney’s affirmation.

According to ¶ 15 of the affirmation in support of the motion, by Timothy Menasco, Esq., of Rosicki, Rosicki & Associates, P.C., “plaintiff and plaintiff’s counsel has been actively reviewing the file in order to properly abide by said Administrative Order creating the delay in submission of the affirmation.” Mr. Menasco then states, in ¶ 16 of his affirmation, “[i]t is unduly harsh and inappropriate to dismiss this action, on the basis of a delay in submitting an affirmation to the court.”

Plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., continued, for reasons unknown and not satisfactorily explained to the Court, to not comply with the Administrative Order of the Chief Administrative Judge and my July 28, 2011 order. I have not received the affirmation from plaintiff’s counsel, as ordered by the Chief Administrative Judge’s Administrative Order and my previous order.

Today, plaintiff U.S. BANK’S instant motion to extend the time to file the required attorney’s affirmation, appeared on my motion calendar. It is one hundred thirty-seven (137) days since I issued my July 28, 2011 order and four hundred eighteen (418) days since the Chief Administrative Judge issued her Administrative Order. Therefore, for violation of these orders, the instant foreclosure action is dismissed with prejudice and the notice of pendency is cancelled and discharged.

Discussion

The Office of Court Administration issued a press release on October 20, 2010 explaining the reasons for the Administrative Ordered issued that day by Chief Administrative Judge Pfau. It stated:

The New York State court system has instituted a new filing

requirement in residential foreclosure cases to protect the integrity

of the foreclosure process and prevent wrongful foreclosures. Chief

Judge Jonathan Lippman today announced that plaintiff’s counsel in

foreclosure actions will be required to file an affirmation certifying

that counsel has taken reasonable steps — including inquiry to banks

and lenders and careful review of the papers filed in the case — to

verify the accuracy of documents filed in support of residential [*3]

foreclosures. The new filing requirement was introduced by the

Chief Judge in response to recent disclosures by major mortgage

lenders of significant insufficiencies — including widespread deficiencies

in notarization and “robosigning” of supporting documents — in

residential foreclosure filings in courts nationwide. The new requirement

is effective immediately and was created with the approval of the

Presiding Justices of all four Judicial Departments.

Chief Judge Lippman said, “We cannot allow the courts in

New York State to stand by idly and be party to what we now know

is a deeply flawed process, especially when that process involves

basic human needs — such as a family home — during this period of

economic crisis. This new filing requirement will play a vital role in

ensuring that the documents judges rely on will be thoroughly examined,

accurate, and error-free before any judge is asked to take the drastic step

of foreclosure.” [Emphasis added]

(See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is Taking Shape, New York Times, Oct. 21, 2010; Andrew Keshner, New Court Rules Says Attorneys Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010).

The failure of plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., to comply with two court orders, my July 28, 2011 and Chief Administrative Judge Pfau’s October 20, 2010 order, as revised on March 2, 2011, demonstrates delinquent conduct by Rosicki, Rosicki & Associates, P.C. This mandates the dismissal with prejudice of the instant action. Failure to comply with court-ordered time frames must be taken seriously. It cannot be ignored. There are consequences for ignoring court orders. Recently, on December 16, 2010, the Court of Appeals, in Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010], instructed:

As this Court has repeatedly emphasized, our court system is

dependent on all parties engaged in litigation abiding by the rules of

proper practice (see e.g. Brill v City of New York, 2 NY3d 748 [2004];

Kihl v Pfeffer, 94 NY2d 118 [1999]). The failure to comply with

deadlines not only impairs the efficient functioning of the courts and

the adjudication of claims, but it places jurists unnecessarily in the

position of having to order enforcement remedies to respond to the

delinquent conduct of members of the bar, often to the detriment of

the litigants they represent. Chronic noncompliance with deadlines

breeds disrespect for the dictates of the Civil Practice Law and Rules

and a culture in which cases can linger for years without resolution.

Furthermore, those lawyers who engage their best efforts to comply

with practice rules are also effectively penalized because they must

somehow explain to their clients why they cannot secure timely [*4]

responses from recalcitrant adversaries, which leads to the erosion

of their attorney-client relationships as well. For these reasons, it

is important to adhere to the position we declared a decade ago that

[i]f the credibility of court orders and the integrity of our judicial

system are to be maintained, a litigant cannot ignore court orders

with impunity [Emphasis added].” (Kihl, 94 NY2d at 123).

Despite Mr. Menasco’s assertion, it is not unduly harsh and inappropriate to

dismiss the instant action because of the delay by plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C. to submit the required affirmation. “Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 748 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]) [Emphasis added].” (Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005]).As we made clear in Brill, and underscore here, statutory time frames —like court-order time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999]) — are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored [Emphasis added].” (Miceli, 3 NY3d at 726-726). The Court cannot wait for plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., to take its time in complying with court mandates.

Moreover, even if plaintiff U.S. BANK’s counsel complied in a timely manner

with my July 28, 2011 order and the order of the Chief Administrative Judge, plaintiff U.S. BANK would have to address its use, in the instant action, of conflicted robosigner Kim Stewart. The instant mortgage and note, were executed on October 11, 2007 and recorded on December 10, 2007, by MORTGAGE ELECTRONIC REGISTRATIONS SYSTEM, INC. (MERS), “acting solely as a nominee for Lender [U.S. BANK]” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD,” in the Office of the City Register of the City of New York, at City Register File Number (CRFN) 2007000605594. Then on May 23, 2008, MERS assigned the instant mortgage and note back to U.S. BANK. This was recorded on July 24, 2008. in the Office of the City Register of the City of New York, at CRFN 2008000294495.

The assignment was executed for MERS, in Owensboro, Kentucky, by Kim Stewart, Assistant Secretary of MERS, as assignor. The very same Kim Stewart, as Assistant Vice President of assignee U.S. BANK, on April 13, 2009, also in Owensboro, Kentucky, executed the affidavit of merit for an order of reference in the instant action.She signed the affidavit of merit as Assistant Vice President of plaintiff U.S. BANK. However, in ¶ 1 of her affidavit of merit, Ms. Stewart alleges to “a Vice President of U.S. BANK, N.A., the plaintiff.”

Perhaps, plaintiff U.S. BANK and its counsel, Rosicki, Rosicki & Associates, P.C., do not want the Court to confront the conflicted Ms. Stewart? This would certainly contradict the disingenuous opening statement by Richard K. Davis, Chairman, President and Chief Executive [*5]Officer of U.S. BANCORP, (U.S. BANK’s parent corporation), in his cover letter to the 2010 Annual Report of U.S. BANCORP, sent to U.S BANCORP’s shareholders. Mr. Davis stated that “[t]hroughout its history, U.S. Bancorp has operated with a tradition of uncompromising honesty and integrity.”

Further, the dismissal of the instant foreclosure action requires the cancellation of the notice of pendency. CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that “would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property.” The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 319 [1984]), commented that “[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit,” and, at 320, that “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”

CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

The Court,upon motion of any person aggrieved and upon such

notice as it may require, shall direct any county clerk to cancel

a notice of pendency, if service of a summons has not been completed

within the time limited by section 6512; or if the action has been

settled, discontinued or abated; or if the time to appeal from a final

judgment against the plaintiff has expired; or if enforcement of a

final judgment against the plaintiff has not been stayed pursuant

to section 551. [emphasis added]

The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. “Abatement” is defined as “the act of eliminating or nullifying.” (Black’s Law Dictionary 3 [7th ed 1999]). “An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d § 11.1).” (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” Thus, the dismissal of the instant complaint must result in the mandatory cancellation of plaintiff U.S. BANK’s notice of pendency against the subject property “in the exercise of the inherent power of the court.”

Conclusion

Accordingly, it is

ORDERED, that the instant action, Index Number 17027/08, is dismissed with

prejudice; and it is further

ORDERED that the Notice of Pendency in this action, filed with the Kings

County Clerk on June 16, 2008, by plaintiff, U.S. BANK, N.A., to foreclose on a mortgage for real property located at 1485 Sutter Avenue, Brooklyn, New York (Block 4259, Lot 22, County [*6]of Kings), is cancelled and discharged.

This constitutes the Decision and Order of the Court.

ENTER

________________________________HON. ARTHUR M. SCHACK

24 Responses

  1. Attorneys, judges and referees need to be held accountable when glossing over foreclosures that present technical errors on part of the Plaintiff attorneys, procedural irregularity and just outright fraud. The AG, regulators and the media fortunately have been and exponentially continue to cover bad judges, good judges; fraudulent attorneys, good attorneys; fraudulent referees, good referees. The pervasiveness of the internet will not allow anyone to forget what actually happened and who the characters were.

    History is no longer written by the alleged victors–

  2. In NY a pending case’s lis pendens expired, a judgment of foreclosure and sale was issued 24 days prior to its expiration. Plaintiff’s counsel filed a new pendency directly with court clerk (and not by motion prior to its expiration) nearly 5 months after it expired. the judgment of foreclosure and sale naturally recites the date of the original pendency. how can this continue to sale with a void pendency as the original claim included in all the action’s documents? your thoughts on this?

  3. Charlotte,

    Same players different state, same struggles…keep fighting! It’s all fraud but if the Judge does not care we are screwed. I have learned a lot here and I am grateful for a wonderful attorney and I pray for a chance to move this forward to a jury. I have no faith in the Justice system in this non-judicial state. How can they ignore the FRAUD!

  4. Because most judges have been infected with the same disease as Wall Street, the TBTF Banks, and Congress…zero ethics or morality…just a bunch of materialistic sociopaths…all of them.

  5. Judge Schack is a very alert, smart judge. Nothing gets by him. Why aren’t there more judges like him??

  6. My farm was auctioned 12/1/10. Won the FED in January 2011 because they didn’t do the paperwork right and the judge told them to come back in two days and prove they did it right. In the mean time, I gave their attny a counter suit (judge said I could hand it to him right there). He laughed at my 30 page counter suit and said I just copied it off the computer or something. I just smiled really big. He never showed up for the hearing, so I won by default…..I laughed then.
    Jan 31, 2011 I filed suit against Capital One, Chevy Chase Bank, US Bank, the trustee lawyer, the original lender (who incidentally could not be served as they were forced out of business because they were convicted of bank fraud in 2007) and MERS. The last day all but the trustee moved my circuit court filing to district court and filed for an extension to April 11, 2011. The judge so ordered all defendants to answer by April 11. On April 11 all but the trustee (the rest have one attny) filed an answer to only the charges listed against the original lender. On April 19 I filed a motion of default on the trustee. On April 26? the trustee joined the suit by the rest of them. I protested the joinder, the judge said the joinder was an answer, I objected as they had since Jan. 31 to answer and never did and the judge ORDERED them all to answer by April 11. Sent replies back and forth, judge was supposed to make a decision by August….still have not heard anything. Banks attny sent a letter to the court last week asking when there would be an answer. So that is the reader’s digest version in a year’s time.
    I wish I would have went to law school instead of medical school….

  7. Plaintiff filed an assignment of mortgage as vp mers, as nominee for *** (*** filed bankruptcy and repudiated its contract with mers well before this assignment). Fraud upon the court???

  8. as I said this—–

    “Law should be simple,,,,,,,,,,,,show me signed documents,,,,,,,,,,all good……….no signed documents,,,,,,you loose.”

    there should be no time involved,,,,,,,,,,,,,why does it take so looooong…………unbelievable…….you got the papers, show up in court with them,

  9. What a bull crap game created by the banks…………….thank god for Judge Shack…………

  10. so Neil and Editor and anybody else……….

    “Today, plaintiff U.S. BANK’S instant motion to extend the time to file the required attorney’s affirmation, appeared on my motion calendar. It is one hundred thirty-seven (137) days since I issued my July 28, 2011 order and four hundred eighteen (418) days since the Chief Administrative Judge issued her Administrative Order. Therefore, for violation of these orders, the instant foreclosure action is dismissed with prejudice and the notice of pendency is cancelled and discharged.”

    Quoted above——–137 days———-418 days……….

    oh you all say justice is slow……………

    well…………god damn it—————-

    These people cannot come up with proof………….

    Jesus Christ already……………if you own the the god damn loan,………..show me your papers please……………

    so much time and they can not prove it…………..WTF.

    Law should be simple,,,,,,,,,,,,show me signed documents,,,,,,,,,,all good……….no signed documents,,,,,,you loose.

  11. @enraged——-

    you said—-

    “This is good to hold attorneys responsible for verifying the accuracy of the declarations they make in writing on behalf of their clients PRIOR to filing. What’s even better is when attorneys who fail to comply get disciplined.
    It serves two purposes: weed out the use of the court system to extort from banks’ customers or anyone on false pretexts. JDB do exactly that: they have attorneys file suit in order to extort, even though they systematically refuse to prove the amount they paid for the debt they purchased and try to collect. It’s a violation of UCC and RICO.
    The second purpose served is that attorneys will look twice before engaging in that kind of behavior and accepting to represent banks.
    So, it’s all good and more and more states are demanding that much from attorneys.
    I love it!”

    ——————–

    very well said I too Love it. Shack is being very smart and on the people side…………

  12. There has been an assignment of mortgage filed in county records by servicer as vp Mers as nominee for *** (*** filed bankruptcy and repudiated its contract with mers well before this assignment). If I attach proof of such and file with the court in my foreclosure action, do you think I can get it dismissed with prejudice, for fraud upon the court??

  13. chief counsel at occ-testimony 12-13-2011

    http://www.scribd.com/doc/75620857/12-13-11-OCC-TESTIMONY-BY-CHIEF-COUNSEL-JULIE-WILLIAMS

  14. iwantmynpv- Fein,Such and Crane are based in Philadelphia area. I wasn’t aware of them having any troubles per se. Just the usual fabrication, backdating, and forgery of documents. Can you detail anything to look for if dealing with this mill? Thanks. And keep up the good work on Long Island.

  15. […] PASINYA ON PRESIDENTIAL ELECTIONS IN DRCTitle UnknownThe Last NailThe Non-Recusal TraditionUS BANK SLAMMED FOR FALSE PLEADINGS // var _gaq = _gaq || []; _gaq.push(['_setAccount', 'UA-6059385-5']); […]

  16. A good documentary on the situation is the documentary called THRIVE. Only seen online….at http://www.thrivemovement.com/#.
    Well worth the $5 to rent the movie.
    Some very shocking information in this video. It keeps getting taken down from youtube.

  17. Really? You “help” them sustain the fraud??? Shame on you.

  18. McCabe & Weissberg & Conway are next. The law offices of Steven J. Baum recently shuttered the doors to avoid prosecution and a litany of suits filed for FDCPA violations, perjury and outright fraud.

    Rosicki & Rosicki have big problems along with Fein, Such & Crane.

    The tides began to shift in New York during 2009 and the sitting justices have made clear they will no longer stand for shoddy legal work. They have a better chance of MERS II passing in the Congress.

    In February our group will begin a massive roadshow to churches on Long Island to spread the word through seminars and group counseling. We have successfully assisted in over 2,000 modifications , and when appropriate for the homeowner, over 500 short sale transactions. Our program allows the homeowner to remain with the property while showing. They are responsible to keep the utilities on and the structure protected from the elements until such time as title is conveyed.

    Keep up the good work on the site. We all need to know.

  19. US Bank is one of the banks I am in litigation with, so this is wonderful news. I hope all states adopt these rules, and/or make them abide by the ones we now have in place. Thank you so much for posting this, it will come in handy as my case is further litigated.

  20. “Note holder” doesn’t mean “note owner”—correct?

  21. Few questions –

    Does GA hold attorneys responsible like this?

    Should I inform the GA law firm that was requested to take the action of foreclosure on my property they represent a “pretender” lender and show them copies of the documents I have that contradict the pretender lender’s claim?

  22. Under these circumstances, can US Bank now seek to remove any purported “original” note and mortgage from the court records? Or does “with prejudice” as to US Bank – the apparent mortgagee and the purported “note holder” – mean that it can no longer attempt to collect on both the mortgage and note, and that those documents must stay in the court file? Does anybody have a clue?

  23. This is good to hold attorneys responsible for verifying the accuracy of the declarations they make in writing on behalf of their clients PRIOR to filing. What’s even better is when attorneys who fail to comply get disciplined.

    It serves two purposes: weed out the use of the court system to extort from banks’ customers or anyone on false pretexts. JDB do exactly that: they have attorneys file suit in order to extort, even though they systematically refuse to prove the amount they paid for the debt they purchased and try to collect. It’s a violation of UCC and RICO.

    The second purpose served is that attorneys will look twice before engaging in that kind of behavior and accepting to represent banks.

    So, it’s all good and more and more states are demanding that much from attorneys.

    I love it!

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