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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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