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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF 18674-2010 -------------------------------------X BAC HOME LOANS SERVICING, LP FKA NOTICE OF MOTION
YASMIN EDWARDS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC AS NOMINEE FOR COUNTRYWIDE BANK, FSB, ITS PLEASE TAKE NOTICE, that upon the affirmation S. JOHN LENOIR, attorney for the defendant YASMIN EDWARDS, duly sworn to on the 19th day of April 2011, and upon all prior pleadings and proceedings herein, the undersigned will apply to this Court at an IAS Part to be assigned, at the Courthouse thereof, located at 360 Adams Street, Brooklyn, New York on the 15th day of June 2011, at 9:30 a.m. or as soon thereafter as counsel can be heard, for an Order: (1) pursuant to CPLR Sections 3211(a)(10) and 1001, dismissing all causes of action against defendant YASMIN EDWARDS, with prejudice, because the court should not proceed in the absence of an indispensable party, to wit, the actual owner of the mortgage and note; and/or (2) pursuant to CPLR Section 3211(a)(1), dismissing all causes of action against defendant YASMIN EDWARDS, with prejudice, because said defendant’s proof that plaintiff is not the actual owner of the mortgage and note and therefore lacks standing to bring this action, is based upon documentary evidence; and/or (3) alternatively, pursuant to CPLR Section 2218, ordering a trial of the issue of whether plaintiff is the actual owner of the mortgage and note and has standing to bring this action; (4) cancelling the Notice of Pendency, if any; (5) awarding sanctions and attorneys’ fees to defendant YASMIN EDWARDS because plaintiff submitted a fraudulent assignment document to the Court; and (6) for such other and further relief as the PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR Rule 2214(b), an answer and supporting affidavits, if any, shall be served at least seven (7) days before the return date of this motion. Dated: New York, New York April 19, 2011 TO: FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP Attorneys for Plaintiff 20 West Main Street Bay Shore, NY 11706 (631) 969-3100 Fax: (631) 919-1582 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF 18674-2010 -------------------------------------X BAC HOME LOANS SERVICING, LP FKA AFFIRMATION IN SUPPORT
OF MOTION TO DISMISS
YASMIN EDWARDS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC AS NOMINEE FOR COUNTRYWIDE BANK, FSB, ITS S. JOHN LENOIR, an attorney duly licensed to practice law in the State of New York, hereby affirms the following I am the owner of the LENOIR LAW FIRM, attorneys for the defendant YASMIN EDWARDS in the above-entitled action, and as such am familiar with the facts and 2. I make this affirmation in support of defendant YASMIN EDWARDS’ motion for an Order: (1) pursuant to CPLR Sections 3211(a)(10) and 1001, dismissing all causes of action against defendant YASMIN EDWARDS, with prejudice, because the court should not proceed in the absence of an indispensable party, to wit, the actual owner of the mortgage and note; and/or (2) pursuant to CPLR Section 3211(a)(1), dismissing all causes of action against defendant YASMIN EDWARDS, with prejudice, because said defendant’s proof that plaintiff is not the actual owner of the mortgage and note and therefore lacks standing to bring this action, is based upon documentary evidence; and/or (3) alternatively, pursuant to CPLR Section 2218, ordering a trial of the issue of whether plaintiff is the actual owner of the mortgage and note and has standing to bring this action; (4) cancelling the Notice of Pendency, if any; (5) awarding sanctions and attorneys’ fees to defendant YASMIN EDWARDS because plaintiff submitted a fraudulent assignment document to the Court; and (6) for such other and further relief as the Court deems just 3. The above-entitled action was commenced by the filing of a Summons and Complaint, copies of which are 4. Defendant YASMIN EDWARDS duly appeared in this action by serving a pro se Verified Answer upon the plaintiff’s attorneys, a copy of which is annexed hereto as 5. In defendant Yasmin Edward’s Verified Answer to Foreclosure Complaint (Exhibit B), Ms. Edwards swore under the penalties of perjury to the following as her first defense: Lack of Standing to Sue: Plaintiff does not have
standing to sue because it was not the legal owner of the
Note and/or Mortgage at the time it commenced this
foreclosure lawsuit.
6. According to the Appellate Division, Second Department, when a foreclosure defendant raises the issue of plaintiff’s standing, the plaintiff must prove standing to bring the action. See US Bank National Association, as Trustee, respondent v. Miguel Madero, et al, 80 A.D.3d 751, 7. In Madero the Court denied summary judgment to plaintiff because plaintiff had not proved standing to bring Where, as here, a plaintiff's standing is put into issue by the defendants, the plaintiff must prove its standing to be entitled to relief (see U.S. Bank, N.A.
v Collymore, 68 AD3d 752, 753, 890 N.Y.S.2d 578; Wells Fargo Bank
Minn., N.A. v Mastropaolo, 42 AD3d 239, 242, 837 N.Y.S.2d 247). "In a
[*4] mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" (U.S. Bank, N.A.
v Collymore, 68 AD3d at 753). "Where a mortgage is represented by a
bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity" (id. at 754). "Either
a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (id.; see LaSalle Bank Natl. Assn. v Ahearn, 59
AD3d 911, 912, 875 N.Y.S.2d 595). Here, the plaintiff failed to
demonstrate its prima facie entitlement to judgment as a matter of law because it did not establish that it had standing, as the lawful holder or assignee of the subject note on the date it commenced this action, to commence the action (see U.S. Bank, N.A. v Collymore, 68 AD3d 752,
890 N.Y.S.2d 578; see also Suraleb, Inc. v International Trade Club,
Inc., 13 AD3d 612, 788 N.Y.S.2d 403; Tawil v Finkelstein Bruckman
Wohl Most & Rothman, 223 AD2d 52, 55, 646 N.Y.S.2d 691).
Accordingly, [*5] the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint as to the Maderos and for an order of reference. 8. Since defendant YASMIN EDWARDS has duly raised the issue of whether plaintiff had standing to bring this action, the plaintiff must prove that it had standing to bring the 9. As set forth below, plaintiff lacked standing to bring this action because it was not the legal owner of the mortgage or note at the time this action was commenced, because the purported assignment to plaintiff (Exhibit C hereto) was invalid due to numerous defects and inaccuracies. 10. An obvious reason that the purported assignment was invalid is that the purported assignor, Countrywide Home Loans, Inc. (“COUNTRYWIDE”) did not exist on the alleged date of assignment. Countrywide was acquired in 2008 by Bank of America, National Association (“BANK OF AMERICA, NA”). See attached financial reports from Google Finance and Yahoo 11. On April 27, 2009, Bank of America, NA changed the name of Countrywide to Bank of America Home Loans Servicing, LP (the plaintiff herein). See Exhibit E. 12. According to the publicly available information, no company named Countrywide Home Loans, Inc. existed in 2010 when the assignment was allegedly executed. Plaintiff was the same company as the former Countrywide, just with a new name. Accordingly, no assignment from Countrywide to
plaintiff was necessary to transfer Countrywide’s interest,
if any, in Ms. Edwards’ mortgage and note.
13. Additionally, Lisa Allinson could not have executed an assignment as Vice President of Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Countrywide (Exhibit C), because Countrywide did not exist in 2010. A company that does not exist cannot have a nominee. 14. Now, plaintiff and Bank of America, NA (which indirectly controls plaintiff – see below) are stuck with the false assignment document they created, not only in this action but in any future foreclosure cases brought against 15. It is respectfully requested, that if the Court finds the purported assignment to be fraudulent and/or fabricated, this action should be dismissed with prejudice as against defendant YASMIN EDWARDS to prevent future frivolous, fraudulent legal action against Ms. Edwards. Otherwise, Bank of America with its deep pockets could keep bringing frivolous actions against Ms. Edwards until she ran out of money to defend herself and lost her home to a fraud. 16. Furthermore, there is no reason for this office or defendant YASMIN EDWARDS to believe that Countrywide owned Ms. Edwards’ alleged mortgage and note in 2008 when Countrywide was acquired by Bank of America, NA, nor that the mortgage and note have not been sold since the date of 17. In fact, given Countrywide’s financial troubles in the mortgage meltdown of 2008, it is likely that Countrywide sold off many of its mortgages and other assets before being acquired by Bank of America in 2008, in a last ditch attempt to raise the cash to survive on its own. 18. Given the likelihood that Countrywide sold defendant YASMIN EDWARDS’ mortgage and note before Countrywide was acquired by Bank of America, NA, plaintiff must prove that Countrywide owned Ms. Edwards mortgage and note in 2008 when Countrywide was purchased by Bank of 19. Additionally, Ms. Edward’s mortgage and note could have been sold at any time since Bank of America bought Countrywide in 2008. Unless plaintiff can show the complete chain of title of the mortgage and note, fully supported by complete MERS records from the date of origination to the present, it cannot prove that it has standing. 20. Furthermore, as discussed below, New York law does not expressly permit MERS to transfer mortgages, so the issue of the legality of each MERS transfer in the alleged chain of title would also have to be resolved in plaintiff’s favor for plaintiff to meet its burden of proving that it had standing to bring this action. See Madero, supra. 21. To compound matters, Lisa Allison, the MERS “Vice
President” who executed the transfer is also a Vice President
of a company called BAC GP, LLC, which is the general partner
(final decision maker) of the plaintiff/alleged assignee BAC
Home Loans Servicing, LP (“THE PURPORTED ASSIGNEE”). See
attached CERTIFICATE OF ASSISTANT SECRETARY OF BANK OF AMERICA, NATIONAL ASSOCIATION, MANAGER OF BAC GP, LLC (“THE CERTIFICATE”) dated March 2, 2010 and annexed as Exhibit F. Lisa Allinson is the second “Vice President” listed on the 22. The “Manager” of BAC GP, LC is the corporate parent Bank of America, NA (which acquired Countrywide in 2008 and 23. The Certificate appoints nine people as Senior Vice Presidents of BAC GP, LLC (the company that controls the plaintiff/assignee), 16 people as Vice Presidents of BAC GP, LLC, 26 people as Assistant Vice Presidents of BAC GP, LLC, and 14 people as Assistant Secretaries of BAC GP, LLC, for a total of 65 officers of BAC GP, LLC (the company that controls the plaintiff/assignee herein). The list of 65 people performing the roles of Senior Vice President, Vice President, Assistant Vice President, and Assistant Secretary of the company that controls the plaintiff/assignee, is a list of robo-signers, including Lisa Allinson, who is the Vice President of both the assignor, MERS as nominee, and the company that controls the plaintiff/alleged assignee, BAC GP, LLC. There is no legitimate reason why BAC GP, LLC would need 65 people to fill four corporate offices. 24. It appears that these “officers” of plaintiff’s Manager were anointed to act, when needed, as MERS “Vice Presidents” or other officers of MERS, to execute assignments to plaintiff on behalf of MERS. See discussion of MERS’ procedure for appointment of Vice Presidents and corporate officers discussed in the case of In re. Ferrel L. Agard, US Bankruptcy Court, Eastern District of New York, Case No. 810- 77338-reg. A courtesy copy of the decision is attached as 25. It is patently improper for Lisa Allinson to assign a mortgage as a “Vice President” of MERS as nominee for the assignor, to an assignee which is controlled by a company of which she is a “Vice President.” The purported assignment was not an "arms length" transaction. 26. Lisa Allinson had a major conflict of interest as Vice President of both MERS and the company that controlled the assignee/plaintiff. As Vice President of MERS, which is entrusted to maintain accurate records of the repeated transfers of title of over half the mortgages in the United States (see Exhibit G hereto), Ms. Allinson had a duty to MERS and the American public to ensure that all assignments executed by MERS were fully investigated and that only legally valid assignments were executed and recorded in the records of MERS. Ms. Allinson’s duties as a Vice President of MERS directly conflicted with her duties as Vice President of the company that controlled the plaintiff/alleged assignee, whose business was to collect assignments and bring 27. Ms. Allinson’s major conflict of interest is especially important because all MERS records of the repeated
transfers of mortgages from one bank to another are kept
secret from the public.
28. Even other "members" of MERS cannot get records regarding a specific loan unless they are the actual servicer of the loan. I personally know this because I joined an organization that is a member of MERS in order to get the MERS assignment records pertaining to the mortgage of another foreclosure defense client. I was unable to find this information on the MERS system, and when I contacted MERS, I was advised that only the servicer of the loan has access to 29. Without access to the MERS records pertaining to defendant YASMIN EDWARDS’ mortgage and note, we have no way of knowing who owned the loan and mortgage on the purported date of assignment (or at any time since the alleged loan was 30. The fact that homeowners such as defendant Yasmin Edwards have no access to the records of MERS pertaining to their mortgages, makes MERS Vice President Lisa Allinson’s duties to homeowners and the American public all the more important, and the conflict of interest between her roles as Vice President of MERS and Vice President of the company that controls the alleged assignee/plaintiff, all the more 31. The purported assignment is also invalid based upon the Kings County Supreme Court decision in Deutsche Bank National Trust Company as Trustee v. Walter Francis, 2011 NY Slip Op 50423U, 2011 N.Y. Misc. LEXIS 1164 (2011). A courtesy copy of the Francis decision is attached as Exhibit 32. In Francis, Justice Arthur Schack dismissed plaintiff’s foreclosure complaint for lack of standing, with prejudice, because plaintiff had presented no evidence of physical possession of the note and mortgage on the date the action was commenced; and because the verified complaint stated that the assignment was “to be recorded” but it was not. Justice Schack checked the Kings County Clerk’s case file and the Automated City Register Information System (ACRIS). He discovered that there was no record of the alleged assignment that was “to be recorded”, notwithstanding that the action had been commenced two years earlier. Justice Schack dismissed the action with prejudice and ordered that the notice of pendency be cancelled. 33. The reasoning of Justice Schack in the Francis case applies to the present case as well. As in Francis, there is no public record of plaintiff ever owning the mortgage and note, and the purported assignment of the mortgage and note were not recorded. Paragraph 4 of the Complaint herein dated 7/26/10 states: “. . . . The note and mortgage were assigned to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing LP by an assignment which is in the process of 34. According to my search on ACRIS, the assignment has not been recorded in the 9 months since it was allegedly executed. See Exhibit I. In accordance with Justice Schack’s ruling, the purported assignment is invalid because there is no public record stating that plaintiff ever owned the mortgage and note, and the mortgage and note were never recorded as required by the assignment document. 35. The purported assignment is also facially invalid because it contains an incorrect description of the interest(s) assigned. In the purported assignment (Exhibit C), the reference to the mortgage is incorrect because the mortgage was not filed in the “office of real property 36. I do not know what MERS or Countrywide or its successors filed in Kings County, but it was not a mortgage on the subject property. All records pertaining to real property in the five counties of New York City are filed with the City Register in New York County. Accordingly, the assignment is invalid in that it does not accurately describe the interests, if any, that were purportedly assigned. See Francis (3rd full paragraph on second page of Exhibit H). 37. Additionally, the Acknowledgment attached to the purported Assignment (Exhibit C) was allegedly executed on 7/23/10 in Los Angeles, California. The out-of-state Acknowledgment did not include a Certificate of Conformity as required under CPLR 2309(c) and Real Property Law Section 299-a. Without the required Certificate of Conformity, the assignment document is invalid under New York law. 38. Furthermore, there is no legal precedent in New York State holding that MERS is allowed to transfer loans and mortgages. Some bloggers have claimed that the March 3, 2011 Bronx County Supreme Court decision in The Bank of New York v. Eddie Sachar, et al., Index Number 0380904/2009 (courtesy copy attached as Exhibit J) held that MERS has the right to 39. Obviously very few who wrote about the Sachar decision had read it. The Court in Sachar made its decision for plaintiff for two independent reasons, neither of which regarded whether MERS can assign mortgages, and neither of 40. The first reason for the Sachar decision was a clause in the mortgage stating in pertinent part that MERS has the right to take any action required of the lender including the right to foreclose and sell the property. See pages 2 and 3 of the Sachar decision (Exhibit J). 41. Accordingly, Sachar was not a general decision that MERS may assign mortgages, but a decision based upon specific wording in that case which gave MERS unusual rights to act on 42. The mortgage herein contained no such clause. Therefore, the first reason for the Sachar decision does not 43. The other reason for the Sachar decision was that the home owner executed an “Owners Estoppel Certificate” which the Court concluded invalidated all defenses to the action. See first full paragraph of the unnumbered fifth (signature) page of the Decision and Order (Exhibit J). Although this holding seems unconscionable, it was the only other reason for the Court’s decision and it had nothing to 44. In the present case, the defendant YASMIN EDWARDS did not execute an owners estoppel certificate, so again the 45. Accordingly, the Bronx Sachar decision is irrelevant to the present action. The two holdings in the Bronx case rely on specific facts that do not exist in the present case against defendant YASMIN EDWARDS, nor in the majority of mortgage foreclosure cases. Nowhere does the Sachar decision purport to decide whether MERS can transfer 46. Furthermore, the Bronx County Supreme Court decision in Sachar is obviously not binding precedent for the Supreme Court in Kings County. Even if the Bronx decision were appealed and sustained by the Appellate Division, First Department, it would not bind the Kings County Supreme Court 47. Although there has been no decision in New York State holding that MERS is permitted to assign mortgages, there is a lengthy and well-reasoned 2011 decision that held that MERS may not transfer mortgages. In the case of In re. Ferrel L. Agard, US Bankruptcy Court, Eastern District of New York, Case No. 810-77338-reg (courtesy copy attached as Exhibit G), the EDNY Bankruptcy Court located in Central Islip, New York stated that MERS assignments would not be accepted in any pending or future bankruptcy cases in which
assignments were executed by MERS either as nominee of the
assignor or as “mortgagee of record.”
48. That for all of the above reasons, the purported assignment of the mortgage and note are invalid, fabricated and fraudulent, and the foreclosure action should be dismissed with prejudice as against defendant YASMIN EDWARDS due to plaintiff’s lack of standing and the fraudulent 49. No previous application for the relief herein WHEREFORE, I respectfully request an Order: (1) pursuant to CPLR Sections 3211(a)(10) and 1001, dismissing all causes of action against defendant YASMIN EDWARDS, with prejudice, because the court should not proceed in the absence of an indispensable party, to wit, the actual owner of the mortgage and note; and/or (2) pursuant to CPLR Section 3211(a)(1), dismissing all causes of action against defendant YASMIN EDWARDS, with prejudice, because said defendant’s proof that plaintiff is not the actual owner of the mortgage and note and therefore lacks standing to bring this action, is based upon documentary evidence; and/or (3) alternatively, pursuant to CPLR Section 2218, ordering a trial of the issue of whether plaintiff is the actual owner of the mortgage and note and has standing to bring this action; (4) cancelling the Notice of Pendency, if any; (5) awarding sanctions and attorneys’ fees to defendant YASMIN EDWARDS because plaintiff submitted a fraudulent assignment document to the Court; and (6) for such other and further relief as the Court deems just Index No. 18674/10 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF 18674-20 ________________________________________________________________ BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP YASMIN EDWARDS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC AS NOMINEE FOR COUNTRYWIDE BANK, FSB, ITS SUCCESSORS AND ASSIGNS, et al. ________________________________________________________________ ________________________________________________________________ MOTION TO DISMISS
________________________________________________________________ ________________________________________________________________ ________________________________________________________________ To: Attorneys for: Service of a copy of the within is hereby admitted. Dated, ________________________________________________________________

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