EFFECTIVE USE OF WHAT THE MORTGAGE GIANTS SAY ABOUT EACH OTHER

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COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary CLICK HERE TO GET COMBO TITLE AND SECURITIZATION REPORT

The Federal Housing Finance Agency (FHFA) filed suit against 17 lead defendants. Lawyers and pro se litigants and anyone with a mortgage subject to a possible claim that the loan was securitized should be interested and follow the allegations AND the wrangling over discovery. There are forms in there that can and should be used by litigants. When counsel for pretender lenders proffers facts not in evidence then your objection should be coupled with “that’s not what they said when they were litigating with FHFA.” And then quote what they DID say in writing versus the oral proffers of counsel who can later say he was “mistaken.”
Complaints have been filed against the following lead defendants:

  1. Ally Financial Inc. f/k/a GMAC, LLC
  2. Bank of America Corporation
  3. Barclays Bank PLC
  4. Citigroup, Inc.
  5. Countrywide Financial Corporation
  6. Credit Suisse Holdings (USA), Inc.
  7. Deutsche Bank AG
  8. First Horizon National Corporation
  9. General Electric Company
  10. Goldman Sachs & Co.
  11. HSBC North America Holdings, Inc.
  12. JPMorgan Chase & Co.
  13. Merrill Lynch & Co. / First Franklin Financial Corp.
  14. Morgan Stanley
  15. Nomura Holding America Inc.
  16. The Royal Bank of Scotland Group PLC
  17. Société Générale

The following Reports to the Congress from the Federal Housing Finance Agency (FHFA) present the findings of the agency’s annual examinations of Fannie Mae and Freddie Mac (Enterprises), the 12 Federal Home Loan Banks (FHLBanks), and the Office of Finance. This report meets the statutory requirements of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as amended by the Housing and Economic Recovery Act of 2008 (HERA).  The views in this report are those of FHFA and do not necessarily represent those of the President.

To request hard copies of FHFA Reports to Congress, contact: FHFA’s Office of Congressional Affairs and Communications
Phone: (202) 414-6922 or send e-mail to:   FHFAinfo@FHFA.gov

 

BOA LOSES BID TO DISMISS CASE FOR FRAUD AND BREACH OF DUTY OF GOOD FAITH

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EDITOR’S COMMENT: Inch by inch the judicial system is getting closer to unraveling the truth about mortgages, securitization, and foreclosures. The process is extremely painful for those whose homes have been or are sliding toward foreclosure (10.6 million more expected soon). On one hand we can say that is unacceptable because it is.

On the other hand, we must remember that virtually everything the Banks did was counter-intuitive, and that breaking through what appears to be “common sense” takes a while to digest. Why would anyone “loan” money that they knew would probably not be repaid? Why would anyone sell securities that they knew would fail and why would they make sure those securities failed? Why would the Banks be unconcerned about whether they were repaid, and unconcerned about whether they lose some foreclosure cases? How could losing a foreclosure case to a borrower not be a loss to the Bank?

There are answers to these questions that can be found in abundance on this Blog, other Blogs and many case decisions now, but it is difficult for even the victims to fathom how they were hoodwinked into thinking they owed a debt that they didn’t owe, to a creditor that didn’t exist.

See THIS CARTOON SAYS IT ALL

Think about it. If you were sitting in the Judges chair, wouldn’t you be skeptical about these claims by borrowers? Wouldn’t you take it slow?

as reported in STOPFORECLOSUREFRAUD.COM

Bank of America Loses Foreclosure Class Action Motion to Dismiss in New Jersey – BEALS v. BOA

Bank of America Loses Foreclosure Class Action Motion to Dismiss in New Jersey – BEALS v. BOA

NEWARK, NJ, November 7, 2011 – Today Judge Katherine S. Hayden of the United States District Court for the District of New Jersey denied a motion by Bank of America, N.A. to dismiss the proposed class action Beals v. Bank of America, N.A. This action, was filed by Lawrence Friscia of the New Jersey law firm of Friscia & Associates, a boutique firm concentrating on foreclosure defense, and makes numerous allegations against Bank of America in connection with allegedly fraudulent and procedurally defective foreclosure actions brought by Bank of America against homeowners in New Jersey.

For inquiries related to this matter contact Lawrence Friscia. Mr. Friscia can be reached at (973) 500-8024. Please visit www.friscialaw.com for additional information.

OPINION Excerpt:

VI. Conclusion
For the foregoing reasons, this Court will not abstain from this case. Defendants‘ motion to dismiss is granted as to all claims for negligent processing of a loan modification, as to all claims under the Fair Debt Collection Practices Act, and as to Grullon‘s claims for breach of contract and breach of the duty of good faith and fair dealing. The motion is denied as to the Beals plaintiffs‘ breach of contract claim, the Beals plaintiffs‘ claim for a breach of the duty of good faith and fair dealing, all claims for fraud and negligent misrepresentation, and all claims under the New Jersey Consumer Fraud Act.

J Shack: GAME OVER — HSBC FORECLOSURE, EVICTION AND LIS PENDENS DISMISSED WITH PREJUDICE

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SEE ALSO game-over-veal-case-vindicates-every-point-reported-on-livinglies

EDITOR’S ANALYSIS: This case is corroboration of everything we have been saying — the Banks are making us live their lie. They don’t have the mortgages, the investors don’t want them, and the robosigning is euphemism for fraud, forgery and suborning perjury. The road is open to clear title in a suit to quiet title regardless of what stage of foreclosure or contest you are in. If a real creditor wants to make a claim they must present it like any other, without getting around due process, and they must prove it with a FULL accounting for every transaction affecting the loan.

SUMMARY OF IMPORTANT POINTS:

  1. There is no reasonable basis to believe that the investors knew or would accept the transfer of a non-performing loan into a pool in which they supposedly had an interest. The failure of the banks to do the paperwork at the origination of the loan was a fatal defect. They cannot correct the defect by “assigning” the defective and non-performing loan into a pool of assets, contrary to the wishes and agreements with the investors. 
  2. MERS never had the note nor did it ever have an interest in the note. Thus the ability of HSBC to foreclose on a MERS mortgage was eviscerated. The note was split from the mortgage and that defect cannot be cured, although Judge Shack gave HSBC every opportunity to try.
  3. Millions of foreclosures fall into the same category — all of which could be overturned with prejudice, thus disallowing ANYONE to foreclose on property that reveals the same elements as those presented in the Taher case.
  4. Prosecution of notaries, witnesses and signatories, as well as those who put them up to it may well follow at the State level for perjury, criminal fraud, suborning perjury and forgery, based upon Judge Shack’s finding that the statements made in sworn affidavits and confirmed by HSBC were “patently false.”
  5. The pattern of conduct described by Judge Shack also opens the door to civil and criminal RICO actions.
  6. States, sagging under the weight of foreclosures and the dampening effect on each state economy, may well have a way out on a variety of fronts by demonstrating the damage done to the title system, to the economy and to the citizens of each state. 
  7. An “assignment” is no substitute for a properly endorsed note that could be accepted by the assignee. Just like a check, an assignment of the check in a separate instrument conveys nothing. 
  8. 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”.
  9.  Self-serving statements claiming agency powers are not sufficient to prove the agency nor the scope of the agent’s powers.
  10. “[t]he wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel [Emphasis added].”

HSBC v TAHER | Judge SCHACK Grand SLAM!! MERS, Plaintiff’s Counsel, Ocwen Robo-Signers Christina Carter, Scott Anderson, Margery Rotundo Dismissed w/ PREJUDICE

HSBC v TAHER | Judge SCHACK Grand SLAM!! MERS, Plaintiff’s Counsel, Ocwen Robo-Signers Christina Carter, Scott Anderson, Margery Rotundo Dismissed w/ PREJUDICEcoup de grasDecided on July 1, 2011

Supreme Court, Kings County

HSBC Bank USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2007-2

against

Ellen N. Taher, et. al.

EXCERPT:

On plaintiff HSBC’s deadline day, January 7, 2011, the 60th day after issuing my November 8, 2010 decision and order, plaintiff’s counsel, Frank M. Cassara, Esq., of Shapiro, DiCaro & Barak, LLC, submitted to my chambers the required affirmation, pursuant to Chief Administrative Judge Pfau’s Administrative Order 548/10. Mr. Cassara, affirmed “under the penalties of perjury”:

[…]

The assignment of the subject mortgage and note to HSBC, by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), in the instant foreclosure action is without legal authority. MERS never possessed the TAHER note it allegedly assigned to plaintiff HSBC. Thus, plaintiff HSBC lacked standing to commence the instant foreclosure action. Therefore, the assignment is defective and the instant action is dismissed with prejudice.

Mr. Cassara’s affirmation, affirmed “under the penalties of perjury,” that to the best of Mr. Cassara’s “knowledge, information, and belief, the Summons and Complaint, and other papers filed or submitted to the [*4]Court in this matter contain no false statements of fact or law,” is patently false. Moreover, the Court is troubled that: the alleged representative of plaintiff HSBC, Christina Carter, who according to Mr. Cassara, “confirmed the factual accuracy and allegations set forth in the Complaint and any supporting affirmations filed with the Court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith,” is not an employee of HSBC, but a robosigner employed by OCWEN LOAN SERVICING, LLC [OCWEN], whose signature on legal documents has at least three variations; the MERS to plaintiff HSBC assignment of the subject mortgage and note was executed by Scott W. Anderson, a known robosigner and OCWEN employee, whose signature is reported to have appeared in at least four different variations on mortgage assignments; and, the instant affidavit of merit was executed by Margery Rotundo, another robosigner, OCWEN employee and self-alleged employee of various other banking entities.

Last month, on May 19, 2011, in a case involving a defective MERS to HSBC assignment by a robosigner, Maine’s highest court, the Supreme Judicial Court, found that HSBC’s affidavits and the assignment of the note and mortgage by MERS to HSBC contained serious defects. The Maine Court held “that the affidavits submitted by HSBC contain serious irregularities that make them inherently untrustworthy.” (HSBC Mortg. Services, Inc. v Murphy, 19 A3d 815, 2011 ME 59, * 3). HSBC has a history of foreclosure actions before me with affidavits of merit executed by Margery Rotundo and MERS to HSBC assignments executed by Scott Anderson that “contain serious irregularities that make them inherently untrustworthy.” Moreover, Mr. Cassara was put on notice, in my November 8, 2010 decision and order, that “[t]he wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel.”

[…]

Robosigner Scott W. Anderson

While I have never personally met Mr. Anderson, his signatures have appeared in many foreclosure documents in this Court. His claims of wearing different corporate hats and the variations in the scrawls of initials used for his signature on mortgage documents has earned Mr. Anderson notoriety as a robosigner. Kimberly Miller, in her January 5, 2011-Palm Beach Post article, “State details foreclosure crisis,” wrote:

Sweeping evidence of the case the state attorney general’s office

has built in its pursuit of foreclosure justice for Florida homeowners is

outlined in a 98-page presentation complete with copies of allegedly

forged signatures, false notarizations, bogus witnesses and improper

mortgage assignments.

The presentation, titled “Unfair, Deceptive and Unconscionable

Acts in Foreclosure Cases,” was given during an early December

conference of the Florida Association of Court Clerks and Comptrollers

by the attorney general’s economic crimes division.

It is one of the first examples of what the state has compiled in

its exploration of foreclosure malpractice, condemning banks, mortgage

servicers and law firms for contributing to the crisis by cutting corners . . .

In page after page of copied records, the presentation meticulously

documents cases of questionable signatures, notarizations that could not

have occurred when they are said to have because of when the notary

stamp expires, and foreclosures filed by entities that might not have

had legal ability to foreclose.

It also focuses largely on assignments of mortgage [sic],

documents that transfer ownership of mortgages from one bank to

another. Mortgage assignments became an issue after the real estate

boom, when mortgages were sold and resold, packaged into securities

trusts and otherwise transferred in a labyrinthine fashion that made

tracking difficult.

As foreclosures mounted, the banks appointed people to create

assignments, “thousands and thousands and thousands” of which were signed weekly by people who may not [*6]have known what they were signing . . .

In another example, the signature of Scott Anderson, an employee

of West Palm Beach-based Ocwen Financial Corp., appears in four

styles on mortgage assignments . . .

Paul Koches, executive vice president of Ocwen, acknowledged

Tuesday that the signatures were not all Anderson’s, but that doesn’t mean

they were forged, he said. Certain employees were given authorization

to sign for Anderson on mortgage assignments, which Koches noted

do not need to be notarized.

Still, Ocwen has since stopped allowing other people to sign for

Anderson, Koches said.

Last September, the Ohio Court of Appeals, Second District, Montgomery County

(2010 WL 3451130, 2010-Ohio-4158, lv denied 17 Ohio St.3d 1532 [2011]), affirmed the denial of a foreclosure, sought by plaintiff HSBC, because of numerous irregularities. The Ohio Court, in citing four decisions by this Court [three of the four involved Scott Anderson as assignor] summarized some of this Court’s prior concerns with HSBC and Mr. Anderson, in observing, at * 11:

recent decisions in the State of New York have noted numerous

irregularities in HSBC’s mortgage documentation and corporate

relationships with Ocwen, MERS, and Delta. See, e.g., HSBC Bank

USA, N.A. v Cherry (2007), 18 Misc 3d 1102 (A) [Scott Anderson

assignor] and HSBC Bank USA, N.A. v Yeasmin (2010), 27 Misc 3d

1227 (A) (dismissing HSBC’s requests for orders of reference in

mortgage foreclosure actions, due to HSBC’s failure to provide proper

affidavits). See, also, e.g., HSBC Bank USA, N.A. v Charlevagne (2008),

20 Misc 3d 1128 (A) [Scott Anderson assignor] and HSBC Bank USA,

N.A. v Antrobus (2008), 20 Misc 3d 1127 (A) [Scott Anderson assignor]

(describing “possible incestuous relationship” between HSBC Bank,

Ocwen Loan Servicing, Delta Funding Corporation, and Mortgage

Electronic Registration Systems, Inc., due to the fact that the entities

all share the same office space at 1661 Worthington Road, Suite 100,

West Palm Beach, Florida. HSBC also supplied affidavits in support

of foreclosure from individuals who claimed simultaneously to be

officers of more than one of these corporations.).This Court reviewed Scott Anderson’s signature on the instant MERS to HSBC assignment of the TAHER mortgage and note and using ACRIS compared his signature with that used in assignments in the five prior Scott Anderson assignment foreclosure cases decided by this Court. Similar to the Florida Attorney General’s Economic Crimes Division findings, as reported above in the Kimberly Miller Palm Beach Post article, I also found four variations of Mr. Anderson’s signature in these six assignments. Each signature is actually a variation of Mr. Anderson’s initials, “SA.” The Court concludes that it must be a herculean task for Mr. Anderson to sign “Scott Anderson” or “Scott W. Anderson” in full.

Mr. Anderson’s first signature variation is found in: the January 19, 2007 assignment of the 48 Van Siclen Avenue (Block 3932, Lot 45, County of Kings) mortgage and note from DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE TO MTGLQ INVESTORS LP, by Scott W. Anderson as Senor Vice President of OCWEN, attorney-in-fact for DEUTSCHE BANK (Deutsche Bank Nat Trust Co. v Castellanos, 18 Misc 3d 1115 [A] [Sup Ct, Kings County 2007]), recorded on February 7, 2007 at CRFN 2007000073000; and, the June 13, 2007 assignment of the 3570 Canal Avenue (Block 6978, Lot 20, County of Kings) mortgage and note from MERS to HSBC, by Scott Anderson as Vice President of MERS, acting as nominee for DELTA (HSBC Bank USA, N.A. v Cherry, 18 Misc 3d 1102 (A) [Sup Ct, Kings County 2007]), recorded on August 13, 2007 at CRFN 2007000416732. In this signature variation the letter “S” is a cursive bell-shaped curve overlapping with the cursive letter “A.”

The second signature variation used for Mr. Anderson is in the May 1, 2007 assignment of the 572 Riverdale Avenue (Block 3838, Lot 39, County of Kings) mortgage and note from MERS to HSBC, by Scott Anderson as Vice President of MERS, acting as nominee for DELTA (HSBC Bank USA, N.A. v Valentin, 18 Misc 3d 1123 [A] [Sup [*7]Ct, Kings County 2008]) and HSBC Bank USA, N.A. v Valentin, 21 Misc 3d 1124 [A] [Sup Ct, Kings County 2008], affd as modified 72 AD3d 1027 [2010]), recorded on June 13, 2007 at CRFN 2007000306260. These decisions will be referred to as Valentin I and Valentin II. In this signature variation the letter “S” is a cursive circle around a cursive letter “A” with various loops.

The third signature variation used for Mr. Anderson is in the November 30, 2007 assignment of the 680 Decauter Street (Block 1506, Lot 2, County of Kings) mortgage and note from MERS to HSBC, by Scott Anderson as Vice President of MERS, acting as nominee for DELTA (HSBC Bank USA, N.A. v Antrobus, 20 Misc 3d 1127 [A] [Sup Ct, Kings County [2008]), recorded on January 16, 2008 at CRFN 2008000021186. In this signature variation, the initials are illegible. One cursive letter looks almost like the letter “O.” It is a circle sitting in a valley created by something that looks like the cursive letter “M.”

In the fourth signature variation, used for Mr. Anderson in the February 16, 2009 assignment in the instant case, the cursive letter “S,” which is circular with a loop on the lower left side abuts the cursive letter “A” to its right.

Moreover, in HSBC Bank USA, N.A. v Cherry, Mr. Anderson acted both as assignor of the mortgage and note to HSBC and then as servicing agent for assignee HSBC by executing the “affidavit of merit”for a default judgment. Because of this, in Valentin I, I required him to provide me with an affidavit about his employment history. In Valentin II the Court was provided with an affidavit by Mr. Anderson, sworn on March 14, 2008. Mr. Anderson, in his affidavit, admitted he was conflicted. I noted, at * 2, in Valentin II that:

The Court is troubled that Mr. Anderson acted as both assignor

of the instant mortgage loan, and then as the Vice President of Ocwen,

assignee HSBC’s servicing agent. He admits to this conflict, in ¶ 13,

stating that “[w]hen the loan went into default and then foreclosure in

2007, Ocwen, in it capacity as servicer, elected to remove the loan

from the MERS system and transfer title to HSBC.”

The stockholders of HSBC and the noteholders of the Trust [the

owner of the mortgage] probably are not aware that Mr. Anderson,

on behalf of the servicer, Ocwen, claims to have the right to assign

“toxic” nonperforming mortgage loans to them. It could well be that

Ocwen’s transfer of the instant nonperforming loan, as well as others, is

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.”

Interestingly, the purported signature of Mr. Anderson in the March 14, 2008-Valentin II affidavit is a fifth signature variation. The Court is perplexed that in response to my order for Mr. Anderson to submit an affidavit with respect to his employment, Mr. Anderson was unable to sign either “Scott Anderson” or “Scott W. Anderson.” Instead, there is a fifth variation of scrawled initials. There is a big loop for the cursive letter “S,” which contains within it something that looks like the cursive letter “M” going into lines that look like the cursive letter “V,” with a wiggly line going to the right of the page.

Robosigner Margery Rotundo

In the instant action, Margery Rotundo executed the April 27, 2009 affidavit of merit and amount due. Ms. Rotundo has, in prior foreclosure cases before me, a history of alleging to be the Senior Vice President of various entities, including plaintiff HSBC, Nomura Credit & Capital, Inc. and an unnamed servicing agent for HSBC. In the instant action she claims to be the Senior Vice President of Residential Loss Mitigation of OCWEN, HSBC’s servicing agent.

In HSBC Bank USA, N.A. v Charlevagne (20 Misc 3d 1128 (A) [Sup Ct, Kings County 2008]), one of the cases in which Scott Anderson as Vice President of MERS assigned the mortgage and note to HSBC, I commented about Ms. Rotundo’s self-allegations of multiple employers, at * 1:

The renewed application of plaintiff, HSBC . . . for an order of

reference and related relief in this foreclosure action, in which all

defendants defaulted, for the premises located at 455 Crescent Street,

Brooklyn, New York (Block 4216, Lot 20, County of Kings) is again [*8]

denied without prejudice, with leave to renew upon providing the

Court with a satisfactory explanation to four concerns.

First, the original application for an order of reference and

related relief was denied with leave to renew, in my unpublished

decision and order of November 15, 2007, because the “affidavit of

merit” was not made by a party but by Margery Rotundo, who swore

that [she] was “Senior Vice President Residential Loss Mitigation of

OCWEN LOAN SERVICING, LLC [OCWEN], Attorney in Fact for

HSBC,”and the “Limited Power of Attorney” from HSBC to OCWEN

was defective. In the renewed application, Ms. Rotundo claims in her

January 9, 2008-”affidavit of merit and amount due,” that she “is the

Senior Vice President of Residential Loss Mitigation of HSBC BANK

USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN

TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-

BACKED NOTES, SERIES 2005-3.” In prior decisions, I found that

Ms. Rotundo swore: on October 5, 2007 to be Senior Vice President

of Loss Mitigation for Nomura Credit & Capital, Inc. (Nomura Credit

& Capital, Inc., 19 Misc 3d 1126 (A) [April 30, 2008]); and, on

December 12, 2007 to be Senior Vice President of an unnamed

servicing agent for HSBC (HSBC Bank USA, NA v Antrobus, 20

Misc 3d 1127 (A) [July 31, 2008]).

The late gossip columnist Hedda Hopper and the late United

States Representative Bella Abzug were famous for wearing many

colorful hats. With all the corporate hats Ms. Rotundo has recently

worn, she might become the contemporary millinery rival to both

Ms. Hopper and Ms. Abzug. The Court needs to know the employment

history of the peripatetic Ms. Rotundo. Did she truly switch employers

or did plaintiff have her sign the “affidavit of merit and amount due”

as its Senior Vice President solely to satisfy the Court?

In my Charlevagne decision and order I denied an order of reference without prejudice and granted leave to plaintiff HSBC to renew its application for an order of reference for the premises by providing the Court with several documents, including, at * 4, “an affidavit from Margery Rotundo describing her employment history for the past three years.” Subsequently, plaintiff HSBC’s counsel in Charlevagne, Steven J. Baum, P.C., never provided me with an affidavit from Margery Rotundo, but filed with the Kings County Clerk, on October 27, 2008, a stipulation of discontinuance and cancellation of the notice of pendency.

Robosigner Christina Carter

Mr. Cassara, plaintiff’s counsel affirmed that “On January 4, 2011 and January 5, 2011, I communicated with the following representative . . . of Plaintiff . . . Christina Carter . . . Manager of Account Management.” This is disingenuous. Ms. Carter is not employed by plaintiff, but by OCWEN. She executed documents as an officer of MERS and as an employee of OCWEN. Ms. Carter’s signature on documents is suspect because of the variations of her signature used.

This Court examined eight recent documents that exhibit three different variations of Christina Carter’s signature. The first signature variation is on her May 24, 2010 application with the Florida Department of State for a notary public commission. In this application she lists as her business address that of OCWEN, “1661 Worthington Road, West Palm Beach, FL 33409.” In her full signature the capital letters “C” in her first and last names are signed differently than in other recent documents reviewed by this Court.

In five other documents reviewed by the Court, Ms. Carter signs her initials with the second letter “C” looking like a cursive letter “L,” with a circular loop on the second letter “C.” Three of these documents are deeds of release to acknowledge mortgage satisfactions, filed with the Clerk of Court for Middlesex County, South District, State of Massachusetts. In the first document, signed on July 2, 2010, Ms. Carter signed as “Account Management, Manager” for OCWEN, for the premises at 158 Algonquin Trail, Ashland, Massachusetts, with the deed of release [*9]recorded on September 9, 2010, at document number 2010 00156681. In the second document, signed on July 7, 2010, Ms. Carter signed as “Account Management, Manager” for US BANK NATIONAL ASSOCIATION, AS TRUSTEE BY ITS ATTORNEY-IN-FACT OCWEN LOAN SERVICING, LLC, for the premises at 30 Kenilworth Street, Malden, Massachusetts, with the deed of release recorded on September 3, 2010, at document number 2010 01542078. In the third Middlesex County, Massachusetts document, signed on July 19, 2010, she signed as “Account Management, Manager” for OCWEN, for the premises at 10 Johnson Farm Road, Lexington, Massachusetts, with the deed of release recorded on September 9, 2010, at document number 2010 00156684. In the fourth document, signed on July 12, 2010, for the assignment of a mortgage for 1201 Pine Sage Circle, West Palm Beach, Florida, Ms. Carter signed as “Account Management, Manager” for NEW CENTURY MORTGAGE CORPORATION BY ITS ATTORNEY-IN-FACT OCWEN LOAN SERVICING, LLC (NEW CENTURY). This mortgage was assigned to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR IXIS REAL ESTATE CAPITAL TRUST 2005-HE3 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-HE3 (DEUTSCHE BANK) and recorded on August 23, 2010 with the Palm Beach County Clerk at CFN 20100314054. Interestingly, both assignor NEW CENTURY and assignee DEUTSCHE BANK have the same address, c/o OCWEN, “1661 Worthington Road, Suite 100, West Palm Beach, FL 33409.” In the fifth document, Ms. Carter changes corporate hats. She signed, on September 8, 2010, an Oregon assignment of a mortgage deed of trust, for 20673 Honeysuckle Lane, Bend Oregon, as Vice President of MERS “ACTING SOLELY AS NOMINEE FOR CHAPEL MORTGAGE CORPORATION.” The assignment is to DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR IXIS REAL ESTATE CAPITAL TRUST 2006-HE2 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-HE2, whose address is c/o OCWEN, “1661 Worthington Road, Suite 100, West Palm Beach, FL 33409.” This was recorded on September 20, 2010 with the Clerk of Deschutes County, Oregon.

Ms. Carter, in the third variation of her signature, again only uses her initials, but the second letter “C” looks like the cursive letter “C,” not the cursive letter “L” with a circular loop. The Court examined two of these documents. The first document is a mortgage satisfaction, signed on June 15, 2010, and filed with the Clerk of Court for Middlesex County, South District, State of Massachusetts. Ms. Carter signed as “Account Management, Manager” for OCWEN, for the premises at 4 Mellon Road, Billerica, Massachusetts. The deed of release was recorded on July 19, 2010, at document number 2010 00031211. In the second document, a mortgage satisfaction for the premises at 13352 Bedford Meadows Court, Wellington, Florida, Ms. Carter signed on July 22, 2010, as “Account Management, Manager” for “HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE BY ITS ATTORNEY-IN FACT OCWEN LOAN SERVICING, LLC.” The document never states for whom HSBC is the Trustee.

This was recorded on September 10, 2010 with the Palm Beach County Clerk at CFN 20100339935.

Plaintiff’s lack of Standing

Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff.” Plaintiff HSBC’s application for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and sale. (Home Sav. Of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]).

However, the instant action must be dismissed because plaintiff HSBC lacks standing to bring this action. MERS lacked the authority to assign the subject TAHER mortgage to HSBC and there is no evidence that MERS physically possessed the TAHER notes. Under the terms of the TAHER consolidation, extension and modification agreement, DELTA, not MERS, is the “Note Holder.” As described above, the consolidation, extension and modification agreement defines the “Note Holder” as the “Lender or anyone who succeeds to Lender’s rights under this Agreement and who is entitled to receive the payments.”

“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 David 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

controversy, and a simple syllogism takes us from there to a “jurisdictional” [*10]

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]).

The Appellate Division, Second Department recently instructed, with respect to standing in a foreclosure action, in Aurora Loan Services, LLC v Weisblum (___ AD3d ___, 2011 NY Slip Op 04184 [May 17, 2011]), at * 6-7, that:

In order to commence a foreclosure action, the plaintiff must

have a legal or equitable interest in the mortgage ( see Wells Fargo

Bank, N.A. v Marchione, 69 AD3d, 204, 207 [2d Dept 2009]). A

plaintiff has standing where it is both (1) the holder or assignee of

the subject mortgage and (2) the holder or assignee of the underlying

note, either by physical delivery or execution of a written assignment

prior to the commencement of the action with the filing of the complaint

(see Wells Fargo Bank, N.A. v Marchione, 69 AD3d at 207-209; U.S.

Bank v Collymore, 68 AD3d 752, 754 [2d Dept 2009].)

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]).

In the instant action, even if MERS had authority to transfer the mortgage to HSBC, DELTA, not MERS, is the note holder. Therefore, MERS cannot transfer something it never proved it possessed. 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 [Emphasis added].” (Kluge v Fugazy (145 AD2d 537, 538 [2d Dept 1988]). Moreover, “a mortgage is but an incident to the debt which it is intended to secure . . . the logical conclusion is that a transfer of the mortgage without the debt is a nullity, and no interest is assigned by it. The security cannot be separated from the debt, and exist independently of it. This is the necessary legal conclusion.” (Merritt v Bartholick, 36 NY 44, 45 [1867]. The Appellate Division, First Department, citing Kluge v Fugazy in Katz v East-Ville Realty Co. ( 249 AD2d 243 [1d 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.” (See U.S. Bank, N.A. v Collymore, 68 AD3d at 754).

MERS had no authority to assign the subject mortgage and note

Scott Anderson for MERS as assignor, did not have specific authority to sign the TAHER mortgage. Under the terms of the consolidation, extension and modification agreement, MERS is “acting solely as nominee for Lender [DELTA].” The alleged power of attorney cited in the Scott Anderson MERS to HSBC assignment, as described [*11]above, is a limited power of attorney from DELTA to OCWEN for the premises located at 14 Harden Street, Brooklyn, New York, not the subject premises. MERS is not mentioned or involved with this limited power of attorney. In both underlying TAHER mortgages MERS was “acting solely as a nominee for Lender,” which is DELTA. The term “nominee” is defined as “[a] person designated to act in place of another, usu. in a very limited way” or “[a] party who holds bare legal title for the benefit of others.” (Black’s Law Dictionary 1076 [8th ed 2004]). “This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves.” (Landmark National Bank v Kesler, 289 Kan 528, 538 [2009]). The Supreme Court of Kansas, in Landmark National Bank, 289 Kan at 539, observed that:

The legal status of a nominee, then, depends on the context of

the relationship of the nominee to its principal. Various courts have

interpreted the relationship of MERS and the lender as an agency

relationship. See In re Sheridan, 2009 WL631355, at *4 (Bankr. D.

Idaho, March 12, 2009) (MERS “acts not on its own account. Its

capacity is representative.”); Mortgage Elec. Registrations Systems,

Inc. v Southwest, 2009 Ark. 152 ___, ___SW3d___, 2009 WL 723182

(March 19, 2009) (“MERS, by the terms of the deed of trust, and its

own stated purposes, was the lender’s agent”); La Salle Nat. Bank v

Lamy, 12 Misc 3d 1191 [A], at *2 [Sup Ct, Suffolk County 2006]) . . .

(“A nominee of the owner of a note and mortgage may not effectively

assign the note and mortgage to another for want of an ownership

interest in said note and mortgage by the nominee.”)

The New York Court of Appeals in MERSCORP, Inc. v Romaine (8 NY3d 90 [2006]), explained how MERS acts as the agent of mortgagees, holding at 96:

In 1993, the MERS system was created by several large

participants in the real estate mortgage industry to track ownership

interests in residential mortgages. Mortgage lenders and other entities,

known as MERS members, subscribe to the MERS system and pay

annual fees for the electronic processing and tracking of ownership

and transfers of mortgages. Members contractually agree to appoint

MERS to act as their common agent on all mortgages they register

in the MERS system. [Emphasis added]

Thus, it is clear that MERS’s relationship with its member lenders is that of agent with the lender-principal. This is a fiduciary relationship, resulting from the manifestation of consent by one person to another, allowing the other to act on his behalf, subject to his control and consent. The principal is the one for whom action is to be taken, and the agent is the one who acts.It has been held that the agent, who has a fiduciary relationship with the principal, “is a party who acts on behalf of the principal with the latter’s express, implied, or apparent authority.” (Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [2d [*12]Dept 1992]). “Agents are bound at all times to exercise the utmost good faith toward their principals. They must act in accordance with the highest and truest principles of morality.” (Elco Shoe Mfrs. v Sisk, 260 NY 100, 103 [1932]). (See Sokoloff v Harriman Estates Development Corp., 96 NY 409 [2001]); Wechsler v Bowman, 285 NY 284 [1941]; Lamdin v Broadway Surface Advertising Corp., 272 NY 133 [1936]). An agent “is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.” (Lamdin, at 136).

Thus, in the instant action, MERS, as nominee for DELTA, is DELTA’s agent for limited purposes. It only has those powers given to it and authorized by DELTA, its principal. Plaintiff HSBC failed to submit documents authorizing MERS, as nominee for DELTA, to assign the subject consolidation extension and modification mortgage to plaintiff HSBC. Therefore, MERS lacked authority to assign the TAHER mortgage, making the assignment defective. In Bank of New York v Alderazi (28 Misc 3d 376, 379-380 [Sup Ct, Kings County 2010]), Justice Wayne Saitta instructed that:

A party who claims to be the agent of another bears the burden

of proving the agency relationship by a preponderance of the evidence

(Lippincott v East River Mill & Lumber Co., 79 Misc 559 [1913])

and “[t]he declarations of an alleged agent may not be shown for

the purpose of proving the fact of agency.” (Lexow & Jenkins, P.C. v

Hertz Commercial Leasing Corp., 122 AD2d 25 [2d Dept 1986]; see

also Siegel v Kentucky Fried Chicken of Long Is. 108 AD2d 218 [2d

Dept 1985]; Moore v Leaseway Transp/ Corp., 65 AD2d 697 [1st Dept

1978].) “[T]he acts of a person assuming to be the representative of

another are not competent to prove the agency in the absence of evidence

tending to show the principal’s knowledge of such acts or assent to them.”

(Lexow & Jenkins, P.C. v Hertz Commercial Leasing Corp., 122 AD2d

at 26, quoting 2 NY Jur 2d, Agency and Independent Contractors § 26).

Further, several weeks ago, the Appellate Division, Second Department in Bank

of New York v Silverberg, (___ AD3d ___, 2011 NY Slip Op 05002 [June 7, 2011]), confronted the issue of “whether a party has standing to commence a foreclosure action when that party’s assignor—in this case, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS)—was listed in the underlying mortgage instruments as a nominee and mortgagee for the purpose of recording, but was never the actual holder or assignee of the underlying notes.” The Court held, “[w]e answer this question in the negative.” Silverberg, similar to the instant TAHER matter, deals with the foreclosure of a mortgage with a consolidation, modification and extension agreement. MERS, in the Silverberg case and the instant TAHER action, never had title or possession of the Note and the definition of “Note Holder” is substantially the same in both consolidation, extension and [*13]modification agreements. The Silverberg Court instructed, at * 4-5:

the assignment of the notes was thus beyond MERS’s authority as

nominee or agent of the lender (see Aurora Loan Servs., LLC v

Weisblum, AD3d, 2011 NY Slip Op 04184, *6-7 [2d Dept 2011];

HSBC Bank USA v Squitteri, 29 Misc 3d 1225 [A] [Sup Ct, Kings

County, F. Rivera, J.]; ; LNV Corp. v Madison Real Estate, LLC,

2010 NY Slip Op 33376 [U] [Sup Ct, New York County 2010,

York, J.]; LPP Mtge. Ltd. v Sabine Props., LLC, 2010 NY Slip Op

32367 [U] [Sup Ct, New York County 2010, Madden, J.]; Bank of

NY v Mulligan, 28 Misc 3d 1226 [A] [Sup Ct, Kings County 2010,

Schack, J.]; One West Bank, F.S.B., v Drayton, 29 Misc 3d 1021

[Sup Ct, Kings County 2010, Schack, J.]; Bank of NY v Alderazi,

28 Misc 3d 376, 379-380 [Sup Ct, Kings County 2010, Saitta, J.]

[the “party who claims to be the agent of another bears the burden

of proving the agency relationship by a preponderance of the evidence”];

HSBC Bank USA v Yeasmin, 24 Misc 3d 1239 [A] [Sup Ct, Kings

County 2010, Schack, J.]; HSBC Bank USA, N.A. v Vasquez, 24

Misc 3d 1239 [A], [Sup Ct, Kings County 2009, Schack, J.]; Bank of

NY v Trezza, 14 Misc 3d 1201 [A] [Sup Ct, Suffolk County 2006,

Mayer, J.]; La Salle Bank Natl. Assn. v Lamy, 12 Misc 3d 1191 [A]

[Sup Ct, Suffolk County, 2006, Burke, J.]; Matter of Agard, 444 BR

231 [Bankruptcy Court, ED NY 2011, Grossman, J.]; but see U.S.

Bank N.A. v Flynn, 27 Misc 3d 802 [Sup Ct, Suffolk County 2011,

Whelan, J.]).

Moreover, the Silverberg Court concluded, at * 5, that “because MERS was never the lawful holder or assignee of the notes described and identified in the consolidation agreement, the . . . assignment of mortgage is a nullity, and MERS was without authority to assign the power to foreclose to the plaintiff. Consequently, the plaintiff failed to show that it had standing to foreclose.” Further, Silverberg the Court observed, at * 6, “the law must not yield to expediency and the convenience of lending institutions. Proper procedures must be followed to ensure the reliability of the chain of ownership, to secure the dependable transfer of property, and to assure the enforcement of the rules that govern real property.” [Emphasis added]

Therefore, the instant action is dismissed with prejudice.

Cancellation of subject notice of pendency

The dismissal with prejudice 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 [*14]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 Natassi, 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 HSBC’s notice of pendency against the property “in the exercise of the inherent power of the court.”

Possible frivolous conduct by HSBC and its counsel

In this Court’s November 8, 2010 decision and order, Mr. Cassara and his firm, as counsel for plaintiff HSBC, were put on notice about the new affirmation required to be submitted by plaintiff’s counsel in foreclosure actions, pursuant to Administrative Order 548/10. In foreclosure cases pending on October 20, 2010, such as the TAHER case, the affirmation is required to be filed with the Court when moving for either an order of reference or a judgment of foreclosure and sale or five business days before a scheduled auction. Chief Judge Lippman, according to the Office of Court Administrations’s October 20, 2010 press release, stated that, “[t]his 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.”

Plaintiff’s counsel was warned that defects in foreclosure filings “include failure of plaintiffs and their counsel to review documents and files to establish standing and other [*15]foreclosure requisites; filing of notarized affidavits which falsely attest to such review and to other critical facts in the foreclosure process; and robosigning’ of documents by parties and counsel.” Mr. Cassara affirmed “under the penalties of perjury,” on January 6, 2011, to the factual accuracy of the complaint, the supporting documents and notarizations contained therein and that the complaint and papers filed with the Court in the TAHER matter “contain no false statements of fact or law.” Further, plaintiff’s counsel was informed that “[t]he wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause

for disciplinary and other sanctions upon participating counsel [Emphasis added].”

However, plaintiff HSBC did not have standing to bring the instant action and its

complaint is replete with false statements. For example, ¶ 1 alleges that HSBC has an office at “1661 Worthington Road, Suite 100, P.O. Box 24737, West Palm Beach, FL 33415.” This is actually OCWEN’s office. OCWEN’s zip code is 33409, not 33415. Also, how big is P.O. Box 24737? Is it big enough to contain an HSBC office? Further, ¶ 6 alleges that HSBC is the owner of the note, which it is not. MERS had no authority to assign the note owned by DELTA to HSBC. MERS was DELTA’s nominee for recording the TAHER-consolidated mortgage but it never possessed the underlying note. (See Bank of New York v Silverberg at * 4-5).

Three robosigners – Scott Anderson, Margery Rotundo and Christina Carter – are involved in this matter. Scott Anderson, who wears many corporate hats and has at least five variations of his initials scrawled on documents filed in this Court, is the alleged assignor of the subject mortgage and note to HSBC, despite lacking authority from DELTA. Both alleged assignor MERS and alleged assignee HSBC have the same address – 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409. The milliner’s delight Margery Rotundo executed the affidavit of merit for OCWEN. Then, Mr. Cassara relied upon Christina Carter as the representative of HSBC to confirm the accuracy of HSBC’s documents and their notarizations. However, she is not employed by HSBC. Is Mr. Cassara aware of the robosigning history of Mr. Anderson, Ms. Rotundo and Ms. Carter?

Putting aside HSBC’s lack of standing, MERS allegedly assigned the TAHER- consolidated mortgage and note to HSBC 169 days after defendant TAHER allegedly defaulted in her payments. If HSBC has a duty to make money for its stockholders, why is it purchasing nonperforming loans, and then wasting the Court’s time with defective paperwork and the use of robosigners? The Courts have limited resources, even more so in light of the recent cuts in the budget for fiscal year 2012 and the layoff of several hundred court employees by the Office of Court Administration. The Courts cannot allow itself, as Chief Judge Lippman said in OCA’s October 20, 2010 press release, “to stand by idly and be party to what we 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.” [*16]

Last year, in HSBC Bank USA v Yeasmin, 24 Misc 3d 1239 [A], for a variety of reasons, I denied plaintiff’s renewed motion for an order of reference and dismissed the foreclosure action with prejudice. Plaintiff’s counsel in YeasminYeasmin, at * 8, that Mr. Westmoreland stated: submitted an affidavit by Thomas Westmoreland, Vice President of Loan Documentation for HSBC, in which he admitted to a lack of due diligence by HSBC. I observed in

in his affidavit, in ¶’s 4 – 7 and part of ¶ 10:

4. The secondary mortgage market is, essentially, the buying and

selling of “pools” of mortgages.

5. A mortgage pools is the packaging of numerous mortgage

loans together so that an investor may purchase a significant

number of loans in one transaction.

6. An investigation of each and every loan included in a particular

mortgage pool, however, is not conducted, nor is it feasible.

7. Rather, the fact that a particular mortgage pool may

include loans that are already in default is an ordinary risk

of participating in the secondary market . . .

10. . . . Indeed, the performance of the mortgage pool is the

measure of success, not any one individual loan contained

therein. [Emphasis added]

The Court can only wonder if . . . the dissemination of this

decision will result in Mr. Westmoreland’s affidavit used as evidence

in future stockholder derivative actions against plaintiff HSBC. It can’t

be comforting to investors to know that an officer of a financial

behemoth such as plaintiff HSBC admits that “[a]n investigation of

each and every loan included in a particular mortgage pool, however,

is not conducted, nor is it feasible” and that “the fact that a particular

mortgage pool may include loans that are already in default is an

ordinary risk of participating in the secondary market.

Therefore, the continuation of this action by plaintiff HSBC, with its false

statements of facts, the use of robosigners, and the disingenuous affirmation of Mr. Cassara, appears to be frivolous. 22 NYCRR § 130-1.1 (a) states that “the Court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart.” Further, it states in 22 NYCRR § 130-1.1 (b), that “sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.”

22 NYCRR § 130-1.1(c) states that:

For purposes of this part, conduct is frivolous if: [*17]

(1) it is completely without merit in law and cannot be supported

by a reasonable argument for an extension, modification or

reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of

the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

It is clear that the instant motion for an order of reference “is completely without merit in law” and “asserts material factual statements that are false.” Further, Mr. Cassara’s January 6, 2011 affirmation, with its false and defective statements may be a cause for sanctions.

Several years before the drafting and implementation of the Part 130 Rules for

costs and sanctions, the Court of Appeals (A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6 [1986]) observed that “frivolous litigation is so serious a problem affecting the

proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary (see NY Const, art VI, § 30, Judiciary Law § 211 [1] [b] ).”

Part 130 Rules were subsequently created, effective January 1, 1989, to give the

courts an additional remedy to deal with frivolous conduct. These stand beside Appellate Division disciplinary case law against attorneys for abuse of process or malicious prosecution. The Court, in Gordon v Marrone (202 AD2d 104, 110 [2d Dept 1994], lv denied 84 NY2d 813 [1995]), instructed that:

Conduct is frivolous and can be sanctioned under the court rule if

“it is completely without merit . . . and cannot be supported by a

reasonable argument for an extension, modification or reversal of

existing law; or . . . it is undertaken primarily to delay or prolong

the resolution of the litigation, or to harass or maliciously injure

another” (22 NYCRR 130-1.1[c] [1], [2] . . . ).

In Levy v Carol Management Corporation (260 AD2d 27, 33 [1st Dept 1999]) the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, “22 NYCRR

130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party . . .” Levy at 34, held that “[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large.”

The Court, in Kernisan, M.D. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules “is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10) [Emphasis added].” The instant action, with HSBC lacking standing and using robosigners, is “a waste of judicial resources.” This [*18]conduct, as noted in Levy, must be deterred. In Weinstock v Weinstock (253 AD2d 873 [2d Dept 1998]) the Court ordered the maximum sanction of $10,000.00 for an attorney who pursued an appeal “completely without merit,” and holding, at 874, that “[w]e therefore award the maximum authorized amount as a sanction for this conduct (see, 22 NYCRR 130-1.1) calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances [Emphasis added].” Citing Weinstock, the Appellate Division, Second Department, in Bernadette Panzella, P.C. v De Santis (36 AD3d 734 [2d Dept 2007]) affirmed a Supreme Court, Richmond County $2,500.00 sanction, at 736, as “appropriate in view of the plaintiff’s waste of judicial resources [Emphasis added].”

In Navin v Mosquera (30 AD3d 883 [3d Dept 2006]) the Court instructed that when considering if specific conduct is sanctionable as frivolous, “courts are required to

examine whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent’ (22 NYCRR 130-1.1 [c]).” The Court, in Sakow ex rel. Columbia Bagel, Inc. v Columbia Bagel, Inc. (6 Misc 3d 939, 943 [Sup Ct,

New York County 2004]), held that “[i]n assessing whether to award sanctions, the Court must consider whether the attorney adhered to the standards of a reasonable attorney (Principe v Assay Partners, 154 Misc 2d 702 [Sup Ct, NY County 1992]).”

In the instant action, plaintiff HSBC’s President and Chief Executive Officer (CEO) bears a measure of responsibility for plaintiff’s actions, as well as plaintiff’s counsel. In Sakow at 943, the Court observed that “[a]n attorney cannot safely delegate all duties to others.” Irene M. Dorner, President and CEO of HSBC, is HSBC’s “captain of the ship.” She should not only take credit for the fruits of HSBC’s victories but must bear some responsibility for its defeats and mistakes. According to HSBC’s 2010 Form 10-K, dated December 31, 2010, and filed with the U.S. Securities and Exchange Commission on February 28, 2011, at p. 255, “Ms. Dorner’s insight and particular knowledge of HSBC USA’s operations are critical to an effective Board of Directors” and Ms. Dorner “has many years of experience in leadership positions with HSBC and extensive global experience with HSBC, which is highly relevant as we seek to operate our core businesses in support of HSBC’s global strategy.” HSBC needs to have a “global strategy” of filing truthful documents and not wasting the very limited resources of the Courts. For her responsibility she earns a handsome compensation package. According to the 2010 Form 10-k, at pp. 276-277, she earned in 2010 total compensation of $2,306,723. This included, among other things: a base salary of $566,346; a discretionary bonus of $760,417; and, other compensation such as $560 for financial planning and executive tax services; $40,637 for executive travel allowance, $24,195 for housing and furniture allowance, $39,399 for relocation expenses and $3,754 for executive physical and medical expenses.

Therefore, the Court will examine the conduct of plaintiff HSBC and plaintiff’s counsel, in a hearing, pursuant to 22 NYCRR § 130-1.1, to determine if plaintiff HSBC, [*19]by its President and CEO, Irene M. Dorner, and plaintiff’s counsel Frank M. Cassara, Esq. and his firm Shapiro, DiCaro & Barak, LLC, engaged in frivolous conduct, and to allow plaintiff HSBC, by its President and CEO, Irene M. Dorner, and plaintiff’s counsel Frank M. Cassara, Esq. and his firm Shapiro, DiCaro & Barak, LLC a reasonable opportunity to be heard.

Conclusion

Accordingly, it is

ORDERED, that the motion of plaintiff, HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2007-2, for an order of reference for the premises located at 931 Gates Avenue, Brooklyn, New York (Block 1632, Lot 57, County of Kings), is denied with prejudice; and it is further

ORDERED, that because plaintiff, HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2007-2, lacks standing in this foreclosure action, the instant complaint, Index No. 9320/09 is dismissed with prejudice; and it is further

ORDERED, that the Notice of Pendency filed with the Kings County Clerk on April 16, 2009 by plaintiff, HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2007-2, in an action to foreclose a mortgagefor real property located at 931 Gates Avenue, Brooklyn, New York (Block 1632, Lot 57, County of Kings), is cancelled and discharged; and it is further

ORDERED, that it appearing that plaintiff HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2007-2, plaintiff’s counsel Frank M. Cassara, Esq. and his firm Shapiro, DiCaro & Barak, LLC engaged in “frivolous conduct,” as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1 (c), and that pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130.1.1 (d), “[a]n award of costs or the imposition of sanctions may be made . . . upon the court’s own initiative, after a reasonable opportunity to be heard,” this Court will conduct a hearing affording: plaintiff HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2007-2, by its President and Chief Executive Officer, Irene M. Dorner; plaintiff’s counsel Frank M. Cassara, Esq.; and, his firm Shapiro, DiCaro & Barak, LLC; “a reasonable opportunity to be heard” before me in Part 27, on Friday, July 15, 2011, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn, NY 11201; and it is further

ORDERED, that Ronald David Bratt, Esq., my Principal Law Clerk, is directed to serve this order by first-class mail, upon: Irene M. Dorner, President and Chief Executive Officer of plaintiff, HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST [*20]2007-2, 452 Fifth Avenue, New York, New York 10018; Frank M. Cassara, Esq., Shapiro DiCaro & Barak, LLC, 250 Mile Crossing Boulevard, Suite One, Rochester, New York 14624; and, Shapiro DiCaro & Barak, LLC, 250 Mile Crossing Boulevard, Suite One, Rochester, New York 14624.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.

Scott Anderson Signature Variance


www.StopForeclosureFraud.com

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Rally in Tally and Other News

It looks bad for the Florida Banker’s Association (FBA) effort to convert Florida into a non-judicial foreclosure state. Wrong time in the wrong place under the wrong circumstances. Attorney Weidner was seen on TV giving instructions to homeowners to have them lobby legislators who were not too keen on the idea anyway, but you can never be sure when you have a strong bank lobby. Once there was a Community Bankers Association in Florida, but it was gobbled up by FBA. FBA is dominated by the major banks and does little to foster the interests of consumers or small banks who serve consumers.

Don’t expert FBA to give up. It is a time honored practice to be persistent and tack on unrelated legislation to an otherwise acceptable bill. State legislators in all 50 states have precious little time to actually read all proposed legislation and they often vote off of summaries prepared by legislative aides or third parties. (That is how the Boston Strangler was cited for his efforts at population control by the Texas legislature about 20 years ago). So expect them to attempt to strangle their victims by surprise. Maintain vigilance.

In the meantime, here’s a call for some help for attorney Weidner and frankly for everyone else. It’s all about the fix in the auction of foreclosed homes and who is getting the benefit of a wrongful foreclosure with control of the title being directed by a non-creditor:

——-

From Matt Weidner Esq at http://www.mattweidnerlaw.com

I’ve been hearing chatter and rumors about parties affiliated with the foreclosure mills buying properties after they have completed the foreclosure and now apparently reporters have been hearing such chatter as well.

If anyone has details on such transactions from anywhere in the state, please email that information to me at weidnerlaw@yahoo.com. Some of you good researchers out there, this could be bombshell material. If you’ve got the time, I would be looking at all sales in a given area, then backtrack that sale to see if the last record was a certificate of title. I would suspect that properties would first be going into LLCs or land trusts so multiple deeds going into these would catch my attention.

We uncovered a mountain of questionable information last time I asked for Assignments, and federal investigations across the country are currently underway into the assignment practices, most notably into the practices of Lender Processing Services, LLC… but that’s just the tip of the iceberg. The feds move slowly, but unlike other crimes, these paper crimes leave a long, recorded trail.

So get out there are poke around…let me know what you find

Padget v OneWest – IndyMac Provides some insight into RESPA remedies

The Ocwen Court provided an example for clarity: “Suppose an S & L signs a mortgage agreement with a homeowner that specifies annual interest rate of 6 percent and a year later bills the homeowner at a rate of 10 percent and when the homeowner refuses to pay institutes foreclosure proceedings. It would be surprising for a federal regulation to forbid the homeowner’s state to give the homeowner a defense based on the mortgagee’s breach of contract.” Ocwen, 491 F.3d at 643-44.

Padget-One west bank dba Indymac

Editor’s Note: The assumption was made that One West owned the loan when it was clearly securitized. One West used the fact that Plaintiff admitted that One West was the owner of the loan and therefore undermined Plaintiff’s case against One West as a debt collector which requires the actor to be collecting for the benefit of a third party.

This is where the rubber meets the road. either you are going to master the nuance introduced by securitization or you are going to let the other side have a field day with misrepresentations that you have admitted are true.

PADGETT, Plaintiff,
v.
ONEWEST BANK, FSB, d/b/a INDYMAC

Civil Action No. 3:10-CV-08
United States District Court, Northern District of West Virginia, Martinsburg

parties filed an Agreed Order in the bankruptcy court resolving IndyMac’s motion to lift the automatic stay. (Id. at ¶ 14). Pursuant to this Agreed Order, the plaintiff’s mortgage was deemed current as of May 1, 2008, and the one payment for which the plaintiff was in arrears was added onto the end of the mortgage. (Id. at ¶¶ 15-
16). The first payment due under the Agreed Order was due in May 2008. (Id. at ¶ 17). The plaintiff made the May 2008 payment in a timely fashion and has made his monthly mortgage payment each month after May 2008, up to and including the date of the filing of the plaintiff’s First Amended Complaint. (Id. at ¶¶ 18-19).

In March 2009, Defendant OneWest Bank, F.S.B. (“OneWest”) purchased IndyMac, whereupon IndyMac Mortgage Services (“IndyMac MS”) became a division of OneWest. (Id. at ¶¶ 20-21). On July 16, 2009, OneWest, doing business as IndyMac MS, sent the plaintiff a letter claiming he was one month behind on his payments. (Id. at ¶ 22). In response, on July 28, 2009, the plaintiff wrote to OneWest, enclosing a copy of the Agreed Order from his bankruptcy proceeding and requesting that OneWest supply him with documentation that he nevertheless remained one month behind. (Id. at
¶¶ 24-26). Again, on August 3, 2009, and September 16, 2009, IndyMac MS sent letters to the plaintiff alleging he was behind on his mortgage payments. (Id. at ¶¶ 28-29).

OneWest continues to assess monthly late fees against his account and has informed credit reporting agencies that the plaintiff’s mortgage is delinquent, though plaintiff alleges he is current on his monthly mortgage payments.

OneWest argued that all of the plaintiff’s claims for relief were preempted by the Home Owners’ Loan Act of 1933, 12 U.S.C. § 1461, et seq. (“HOLA”). (Id. at 4).

Motion to Dismiss denied in part and granted in part. Motion to Strike denied. Plaintiff was allowed to proceed.

DISCOVERY AND PRACTICE TIPS: SEC RULE DISCLOSURE DOCUMENTS Carrington Mortgage – Stanwich – EMC Mortgage Corporation – New Century Mortgage Corporation (“NCMC”

FROM drhDe.u5a.htm

This is both a HERS post and a general post for those seeking discovery of documentation. You can Google this information also. This is also what I am asking all of you to send in to me for posting. I’m backdating the HERS posts like this generally to February and March so as not to crowd out current articles but if you look at the search index and bring up “HERS or even the particular name of an institution or unfamiliar name of an individual company or institution it will come up with increasing frequency as we expand this aspect of the blog.

DISCOVERY: You ask for all SEC filings including but not limited to 8k filings and back-up documents, custodians of those records, and people with personal knowledge of the information contained in those filings, together with their names, addresses, phone numbers, title, scope of duties etc. Then you call them and ask them what they know where there are other documents. Note these are words of art and have a general meaning that cannot be disputed in the industry. CFR= Code of Federal Regulations

EMC Mortgage Corporation transferred the servicing of mortgage loans with respect to the Carrington Mortgage Loan Trust Asset-Backed Pass-Through Certificates, Series 2007-HE1, to Carrington Mortgage Services, LLC. Prior to November 1, 2007, the Mortgage Loans were serviced by EMC Mortgage Corporation pursuant to the Pooling and Servicing Agreement, among Stanwich Asset Acceptance Company, L.L.C., Wells Fargo Bank, N.A., EMC Mortgage Corporation, Carrington Mortgage Services, LLC and HSBC Bank USA, National Association, a copy of which was filed as Exhibit 10.1 pursuant to Form 8-K on July 27, 2007 under the same Central Index Key (CIK) as this periodic report on Form 8-K (the “Pooling and Servicing Agreement”). On and after November 1, 2007, Carrington Mortgage Services, LLC will service the Mortgage Loans pursuant to the Pooling and Servicing Agreement. These are the SEC entries of data relating to this event.

STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., on behalf of Carrington Mortgage Loan Trust, Series 2007-HE1 Asset-Backed Pass-Through Certificates

(Exact name of registrant as specified in its charter)

SEC File 333-139507-02

Carrington Mortgage Loa..2007-HE1

8-K{6

Mayer Brown & Platt/FA

11/01/07

Carrington Mortgage Loan Trust/Series 2007-HE1

STANWICH ASSET ACCEPTANCE COMPANY, L.L.C.

STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. (as depositor under a Pooling and Servicing Agreement, dated as of June 1, 2007, providing for, inter alia, the issuance of Carrington Mortgage Loan Trust, Series 2007-HE1 Asset-Backed Pass-Through Certificates)

(Commission File Number)333-139507-02

Delaware

(IRS Employer Identification No.) 20-2698835

Seven Greenwich Office Park
599 West Putnam Avenue

Greenwich, Connecticut

06830

(203) 661-6186

Rule 425 under the Securities Act (17 CFR 230.425)

Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Written communications pursuant to Rule 425
Pre-commencement communications pursuant to Rule 14d-2(b)
Pre-commencement communications pursuant to Rule 13e-4(c)
Item 6.02.  Change in Servicer or Trustee

Carrington Mortgage Services, LLC (“CMS”) is a Delaware limited liability company and a wholly-owned subsidiary of Carrington Capital Management, LLC. CMS maintains its executive and principal offices at 1610 E. St. Andrews Place, Santa Ana, CA 92705. Its telephone number is (949) 517-7000.

On June 29, 2007, CMS acquired substantially all of the servicing assets of New Century Mortgage Corporation (“NCMC”), an indirect wholly-owned operating subsidiary of New Century Financial Corporation (“New Century”) as provided in the prospectus filed pursuant to Rule 424 of the Securities Act of 1933, as amended, on July 11, 2007 under the same Central Index Key (CIK) as this periodic report on Form 8-K (the“Prospectus”)

DISCOVERY HINT. IN ORDER TO GET APPROVALS THEY HAD TO SUBMIT FORMS (APPLICATION ETC.). ASK FOR THOSE FORMS AND THE DISCLOSURES ON THOSE FORMS FROM BOTH THE COMPANY YOU ARE SEEKING INFORMATION ABOUT AND THE AGENCY UNDER THE FREEDOM OF INFORMATION ACT. CMS has the approvals necessary to service mortgage loans in accordance with the related servicing agreements. CMS is qualified to service mortgage loans on behalf of Freddie Mac, a corporate instrumentality of the United States, and has received the approval of the Secretary of Housing and Urban Development to service mortgage loans. CMS has received approvals from the rating agencies with respect to the acquisition of the servicing platform. The residential mortgage servicing operations of CMS are currently rated -RPS4” by Fitch Ratings (“Fitch”). PRACTICE HINT: FILE AN ADMINISTRATIVE GRIEVANCE WITH THE AGENCY REGARDING THE VIOLATIONS YOU ARE ALLEGING. IN MANY CASES IT IS QUICKER AND THREATENS THE ABILITY OF THE SERVICER TO CONTINUE BUSINESS. DISCOVERY HINT: ASK FOR MATERIAL SUBMITTED FOR RATING FROM BOTH THE COMPANY (ISSUER) AND THE RATING AGENCY. SUBPOENA IF NECESSARY. DO DEPOSITIONS UPON WRITTEN QUESTIONS ON RATING AGENCIES AND GOVERNMENT AGENCIES TO ESTABLISH POINTS THAT YOU FEEL WILL BE UNCONTROVERTIBLE ONCE ENTERED INTO THE RECORD. PRACTICE HINT: IN ORDER TO DO THAT YOU WILL PROBABLY NEED TO FILE A MOTION TO TAKE THE DEPOSITION IN LIEU OF LIVE TESTIMONY THUS GIVING THE OTHER SIDE AN OPPORTUNITY TO CROSS EXAMINE THE WITNESS EITHER LIVE OR IN PERSON. YOU COULD ALSO TAKE THE BETTER ROUTE OF GETTING THE DEPOSITION DONE BY TELEPHONE OR VIDEO BUT THESE CAN GET EXPENSIVE. EITHER WAY MAKE SURE EACH DOCUMENT IS SPECIFICALLY LABELED AS AN EXHIBIT AND EVENTUALLY BATES STAMPED. START CREATING AN INDEX OF EXHIBITS WITH SHORT SUMMARIES OF WHAT YOU WANT TO SUE THEM FOR IN WORD FORMAT OR SOME OTHER SPREADSHEET OR DATABASE FORMAT SO THAT YOU CAN DO EASY SEARCHES. PRACTICE HINT: THE LONGER YOU MAKE THE JUDGE WAIT FOR THE PRODUCTION OF THE DOCUMENT, THE LOWER YOUR CREDIBILITY. SHUFFLING PAPERS AROUND MAKES IT LOOK LIKE YOU MAY NOT KNOW WHAT YOU ARE TALKING ABOUT AND THAT YOU ARE UNPREPARED.

Stanwich Asset Acceptance Company L.L.C.
By:
Name:  Bruce M. Rose
Title:  President



Discovery, Forensic Analysis and Motion Practice: The Prospectus

USE THIS AS A GUIDE FOR DISCOVERY, FORENSIC ANALYSIS AND MOTION PRACTICE TO COMPEL DISCLOSURE

see for this example SHARPS%20CDO%20II_16.08.07_9347

Comments in Red: THIS IS A PARTIAL ANNOTATION OF THE PROSPECTUS. IF YOU WANT A FULL ANNOTATION OF THIS PROSPECTUS OR ANY OTHER YOU NEED AN EXPERT IN SECURITIZATION TO DO IT. THERE ARE THREE OBVIOUS JURISDICTIONS RECITED HERE: CAYMAN ISLANDS, UNITED STATES (DELAWARE), AND IRELAND WITH MANY OTHER JURISDICTIONS RECITED AS WELL FOR PURPOSES OF THE OFFERING, ALL INDICATING THAT THE INVESTORS (CREDITORS) ARE SPREAD OUT ACROSS THE WORLD.

Note that the issuance of the bonds/notes are “non-recourse” which further corroborates the fact that the issuer (SPV/REMIC) is NOT the debtor, it is the homeowners who were funded out of the pool of money solicited from the investors, part of which was used to fund mortgages and a large part of which was kept by the investment bankers as “profit.”There is no language indicative that anyone other than the investors own the notes from homeowner/borrowers/debtors. Thus the investors are the creditors and the homeowners are the debtors. Without the investors there would have been no loan. Without the borrowers, there would would have been no investment. Hence, a SINGLE TRANSACTION.

If you read carefully you will see that there is Deutsch Bank as “initial purchaser” so that the notes (bonds) can be sold to pension funds, sovereign wealth funds etc. at a profit. This profit is the second tier of yield spread premium that no TILA audit I have ever seen has caught.

The amount of the “LEVEL 2” yield spread premium I compute on average to be approximately 30%-35% of the total loan amount that was funded FOR THE SUBJECT LOAN on average, depending upon the method of computation used.Thus a $300,000 loan would on average spawn two yield spread premiums, “level 1” being perhaps 2% or $6,000 and “level 2” being 33% or $100,000, neither of which were disclosed to the borrower, a violation of TILA.

The amount of the yield spread premium is a complex number based upon detailed information about the what actually took place in the sale of all the bonds and what actually took place in the sale of all the loan products to homeowners and what actually took place in the alleged transfer or assignment of “loans” into a master pool and what actually took place in the alleged transfer or assignment of “loans” into specific SPV pools and the alleged transfer or assignment of “loans” into specific tranches or classes within the SPV operating structure.

Here is the beginning of the prospectus with some of the annotations that are applicable:

Sharps CDO II Ltd., (obviously a name that doesn’t show up at the closing with the homeowner when they sign the promissory note, mortgage (or Deed of Trust and other documents. You want to ask for the name and contact information for the entity that issued the prospectus which is not necessarily the same company that issued the securities to the investors) an exempted company (you might ask for the identification of any companies that are declared as “exempted company” and their contact information to the extent that they issued any document or security relating to the subject loan) incorporated with limited liability you probably want to find out what liabilities are limited) under the laws of the Cayman Islands (ask for the identity of any foreign jurisdiction in which enabling documents were created, or under which jurisdiction is claimed or referred in the enabling documentation) (the “Issuer”) (Note that this is the “issuer” you don’t see don’t find about unless you ask for it), and Sharps CDO II Corp., (it would be wise to check with Delaware and get as much information about the names and addresses of the incorporators) a Delaware corporation (the “Co-Issuer” and together with the Issuer, the “Co-Issuers”), pursuant to an indenture (don’t confuse the prospectus with the indenture. The indenture is the actual terms of the bond issued just like the “terms of Note” specify the terms of the promissory note executed by the borrower/homeowner at closing) (the “Indenture”), among the Co-Issuers and The Bank of New York, as trustee (Note that BONY is identified “as trustee” but the usual language of “under the terms of that certain trust dated….etc” are absent. This is because there usually is NO TRUST AGREEMENT designated as such and NOT TRUST. In fact, as stated here it is merely an agreement between the co-issuers and BONY, which it means that far from being a trust it is more like the operating agreement of an LLC) (the “Trustee”), will issue up to U.S.$600,000,000 Class A-1 Senior Secured Floating Rate Notes Due 2046 (the “Class A-1 Notes”), U.S.$100,000,000 Class A-2 Senior Secured Floating Rate Notes Due 2046 (the “Class A-2 Notes”), U.S.$60,000,000 Class A-3 Senior Secured Floating Rate
Notes Due 2046 (the “Class A-3 Notes” and, together with the Class A-1 Notes and the Class A-2 Notes, the “Class A Notes”), U.S.$82,000,000 Class B Senior Secured Floating Rate Notes Due 2046 (the “Class B Notes”), U.S.$52,000,000 Class C Secured Deferrable Interest Floating Rate Notes Due 2046 (the “Class C Notes”), U.S.$34,000,000 Class D-1 Secured Deferrable Interest Floating Rate Notes Due 2046 (the “Class D-1 Notes”) and U.S.$27,000,000 Class D-2 Secured Deferrable Interest Floating Rate Notes Due 2046 (the “Class D-2 Notes” and, together with the Class D-1 Notes, the “Class D Notes”). The Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes are collectively referred to as the “Senior Notes.” The Class A-2 Notes, the Class A-3 Notes, the Class
B Notes, the Class C Notes and the Class D Notes and the Subordinated Notes (as defined below) are collectively referred to as the “Offered Notes.” Concurrently with the issuance of the Senior Notes, the Issuer will issue U.S.$27,000,000 Class D-2 Secured Deferrable Interest Floating Rate Notes Due 2046 (the “Class D-2 Notes” and, together with the Class D-1 Notes, the “Class D Notes pursuant to the Indenture and U.S.$45,000,000 Subordinated Notes due 2046 (the “Subordinated Notes”) pursuant to the Memorandum and Articles of Association of the Issuer (the “Issuer Charter”) and in accordance with a Deed of Covenant (“Deed of Covenant”) and a Fiscal Agency Agreement (the “Fiscal Agency Agreement”), among the Issuer, The Bank of New York, as Fiscal Agent (in such capacity, the “Fiscal Agent”) and the Trustee, as Note Registrar (in such capacity, the “Note Registrar”). The Senior Notes and the Subordinated Notes are collectively referred to as the “Notes.” Deutsche Bank Aktiengesellschaft (“Deutsche Bank”), New York Branch (“Deutsche Bank AG, New York Branch” and, in such capacity, the “TRS Counterparty”) will enter into a total return swap transaction (the “Total Return Swap”) with the Issuer pursuant to which it will be obligated to purchase (or cause to be purchased) the Class A-1 Notes issued from time to time by the Issuer under the circumstances described herein and therein. (cover continued on next page)

It is a condition to the issuance of the Notes on the Closing Date that the Class A-1 Notes be rated “Aaa” by Moody’s Investors Service, Inc. (“Moody’s”) and “AAA” by Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (“Standard & Poor’s,” and together with Moody’s, the “Rating Agencies”), that the Class A-2 Notes be rated “Aaa” by Moody’s and “AAA” by Standard & Poor’s, that the Class A-3 Notes be rated “Aaa” by Moody’s and “AAA” by Standard & Poor’s, that the Class B Notes be rated at least “Aa2” by Moody’s and at least “AA” by Standard & Poor’s, that the Class C Notes be rated at least “A2” by Moody’s and at least “A” by Standard & Poor’s, that the Class D-1 Notes be rated “Baa1” by Moody’s and “BBB+” by Standard & Poor’s, that the Class D-2 Notes be rated “Baa3” by Moody’s and “BBB-” by Standard & Poor’s.
This Offering Circular constitutes the Prospectus (the “Prospectus”) for the purposes of Directive 2003/71/EC (the “Prospectus Directive”). Application has been made to the Irish Financial Services Regulatory Authority (the “Financial Regulator”) (you could ask for the identification and contact information of any financial regulator referred to in the offering circular, prospectus or other documents relating to the securitization of the subject loan), as competent authority under the Prospectus Directive for the Prospectus to be approved. Approval by the Financial Regulator relates only to the Senior Notes that are to be admitted to trading on the regulated market of the Irish Stock Exchange or other regulated markets for the purposes of the Directive 93/22/EEC or which are to be offered to the public in any Member State of the European Economic Area. Any foreign language text that is included within this document is for convenience purposes only and does not form part of the Prospectus.
Application has been made to the Irish Stock Exchange for the Senior Notes to be admitted to the Official List and to trading on its regulated market.
APPROVAL OF THE FINANCIAL REGULATOR RELATES ONLY TO THE SENIOR NOTES WHICH ARE TO BE ADMITTED TO TRADING ON THE REGULATED MARKET OF THE IRISH STOCK EXCHANGE OR OTHER REGULATED MARKETS FOR THE PURPOSES OF DIRECTIVE 93/22/EEC OR WHICH ARE TO BE OFFERED TO THE PUBLIC IN ANY MEMBER STATE OF THE EUROPEAN ECONOMIC AREA.
SEE “RISK FACTORS” IN THIS OFFERING CIRCULAR FOR A DESCRIPTION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION
WITH AN INVESTMENT IN THE NOTES. THE SENIOR NOTES ARE NON-RECOURSE OBLIGATIONS OF THE CO-ISSUER AND THE NOTES ARE LIMITED
RECOURSE OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY FROM THE COLLATERAL DESCRIBED HEREIN.
THE NOTES DO NOT REPRESENT AN INTEREST IN OR OBLIGATIONS OF, AND ARE NOT INSURED OR GUARANTEED BY, THE TRUSTEE, DEUTSCHE BANK SECURITIES INC., DEUTSCHE BANK OR ANY OF THEIR RESPECTIVE AFFILIATES. Note that you have more than one trustee without any specific description of where one trustee ends and the other begins. It is classic obfuscation and musical chairs. NOTE ALSO THAT TRUSTEE DISCLAIMS ANY INTEREST IN THE BONDS BEING ISSUED [REFERRED TO AS “NOTES” JUST TO MAKE THINGS MORE CONFUSING].

Avelo Mortgage, LLC – David M. Altshuler – GS Mortgage Securities Corp

The following is an excerpt from a 10-K/A SEC Filing, filed by GSR MORTGAGE LOAN TRUST 2006-8F on 7/1/2008.
Next Section Next Section Previous Section Previous Section
http://sec.edgar-online.com/gsr-mortgage-loan-trust-2006-8f/10-ka-amended-annual-report/2008/07/01/section31.aspx

EX-33 (c)
Restated Report on Assessment Regarding Compliance with Applicable Servicing Criteria

1. Avelo Mortgage, LLC (the “Servicer”) is responsible for assessing compliance, as of December 31, 2006 and for the period from February 24, 2006 (the first day of the distribution period in which the GS Mortgage Securities Corp. (“GSMSC”) first issued securities subject to Regulation AB) through December 31, 2006 (the “Reporting Period”), with the servicing criteria set forth in Item 1122(d) of Regulation AB, excluding the criteria set forth in Item 1122 (d)(1)(i), (d)(1)(iii), (d)(2)(ii), (d)(2)(iv), (d)(3)(iii),
(d)(4)(i), (d)(4)(ii), (d)(4)(iii), (d)(4)(vi), (d)(4)(xi), (d)(4)(xii) and
(d)(4)(xv) of Regulation AB, which the Servicer has concluded are not applicable to the activities it performs, directly, with respect to the asset-backed securities transactions covered by this report (such criteria, after giving effect to the exclusions identified above, the “Applicable Servicing Criteria”). While the Servicer engages vendors to perform the servicing criteria in (d)(4)(xi) and (d)(4)(xii), the Servicer does not take responsibility for the services provided by the vendors as each vendor provides a separate 1122 Reg AB assessment regarding compliance with the criteria. The transactions in which the Servicer was a party are covered by this report included those asset-backed securities transactions conducted by GS Mortgage Securities Corp. (“GSMSC”) that were registered with the Securities and Exchange Commission pursuant to the Securities Act of 1933 where the related asset-backed securities were outstanding during the Reporting Period (the “Platform”), as listed in Appendix A.

2. The Servicer has complied, in all material respects, with the applicable servicing criteria as of and for the Reporting Period except as follows:

The Servicer assessed its compliance with the Applicable Servicing Criteria for the Reporting Period and has identified a material instance of non-compliance with servicing criterion set forth in Item 1122(d)(2)(vii) of Regulation AB with respect to the Platform. Specifically, the Servicer did not prepare reconciliations for all asset-backed securities related bank accounts within 30 calendar days after the bank statement cut-off date, or as such other number of days as specified in the transaction agreements and reconciling items were not resolved within 90 days of their original identification or such other number of days as specified in the transaction agreements.

3. The Servicer had taken responsibility for the servicing criteria set forth in 1122(d)(4)(xi) and 1122(d)(4)(xii) in its previous assessment dated March 28, 2007. The Servicer has since been informed that other servicers have taken responsibility for those servicing criteria in their assessments for the year ended December 31, 2006. Accordingly, the Servicer has restated its previous assessment for the for the period February 24, 2006 to December 31, 2006 to exclude the servicing criteria set forth in 1122(d)(4)(xi) and 1122(d)(4)(xii).

4. PricewaterhouseCoopers LLP, an independent registered public accounting firm, has issued an attestation report for the Platform on the assessment of compliance with the Applicable Servicing Criteria as of December 31, 2006 and for the Reporting Period.

Avelo Mortgage, LLC

By: /s/ David M. Altshuler
Name: David M. Altshuler
Title: Vice President and CFO

Residential Funding Real Estate Holdings, LLC – Option One Mortgage Corporation

from June Reyno:

Once all of this information has been compiled with all their names, titles, addresses, signatures, company affiliation– we should then begin submitting these (i.e. notary public signatures) to various state agencies for confirmation and verification that these “people” are actually who say they are on the paper closing statements (if it can be found) along with the foreclosure processing paperwork from the mortgage servicers. The real class liars in the industry.

These notary public “signatures” can in fact be confirmed because they must be registered with the State Dept. We can demand a “viewing” of that persons’ notary journal in their possession at all times and no one elses. And, whether the named person as it is typewritten in the foreclosure dcouments…”Vice President” who signed payoff statements from the Bank actually holds that “typed in” title and whether they were actually and physically present at the time the notary public verified identification of that person.

By the looks of the hundreds of fradulent paperwork I have personally examined thus far and viewing the names of people pushing foreclosure we do mistakenly think (and the judges mistakenly think this way too unfortunately) that nothing except hard, cold cash green money was exchanged at the closing table to purchase the collaterallized debt obligation. No such thing with securitization is there?

I’m betting with the sensible majority that no one ever paid or had any kind of “liquid cash” to show at closing and that it is by paper appearance only to convince and mislead others that these impostors paid for the property they actually stole from the homeowner upon foreclosure and that the investor was similarly ripped off who put up the money so that only a select few companies by design (going back decades + could line their pockets in the future with billions and billions of $$$ in profit to throw into their corporate treasure chest collected from suffering hardworking middle income American taxpayers!

A perfect example of equity stripping is our San Diego home we lived in for 20+ years. It was foreclosed on 2 years before and we didn’t know it because we sought bankrutpcy protection. We were evicted from our home and thrown out on the street by the foreclosure mill lawyers hired by the Bank and their realtor cohorts March 14, 2009. They succeeded because the pretender lender submitted false forged documents to the court and the Judges.

We purchased the house for $192,900 in July 1989. Our principal balance was reduced to $164,000 under a new loan with Washington Mutual. Throughout the refinancing period in which we borrowed from our equity period we were paying an average amount of about $1,500-$2,500 per month over the course of 20+ years. In April 2006, our house came in on an inflated appraisal value of $650,000. From that, we drew out about $34,000 on equity at refinance which all went back to the economy and for the purpose of preserving our good credit standing with our creditors. The principal balance came to $588,000 according to Option One Mortgage Corporation. Residential Funding Real Estate Holdings, LLC unlawfully purchased the property without notice by bidding against themselves on the auction (again without our knowledge and we were under bankrutpcy protection) for $361,200 when they foreclosed and assigned the house to Litton Loan Servicing/Option One Mortgage/Quality Loan Servicing San Diego. In March 2009 (when I was unlawfully charged with trespassing, vandalism and re-entry of property believing we were protected under the the BK laws and after and unlawful Judgement from the UD Court and was placed under arrest by the San Diego Police Dept.) Island Source II, LLC purchased the house for $211,500 (claiming they are [innocent] Bonafide Purchasers of value under CC 1161(a) for $211,500.

This month, March 12, 2010 Island Source II, LLC dba: Homecomings Financial Network in Minnetonka MN sold it to “InSource Financial Services, Huntington New York”, again, and again in violation of the Bankruptcy automatic stay; selling and transferring this time to a community homebuyer for $385,000 despite our opposition noticesand letters stating our intent to preserve interest filed with the County Recorder’s Office. The Judges [innocently] joined in on the pretender lenders fraud upon the court. Later, our appellate lawyer whom we trusted followed them to go against our interest and helped them to continue living the lie.

We were stripped of $450,000+ in equity.

Is this you?

Our house payment at last refinance in May 2006 $3,919.60 then in April 2008 the ARM adjusted to $5,800.00 monthly payment. Whaaat! Our house was sold and wrongfully foreclosed like millions of other American families who were steered into securitized mortgage loans without their knowledge but no Judge or the court or law enforcement cared enough to help us correct these hurtful and malicious acts.

Where was our “Fiduciary ” Trustee as named in our mortgage contract that should have been of our choice to explain the terms of our mortgage contract to us at the closing table?

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