Those of you who are familiar with
the fraud of the lending institutions
know what I am talking about.
Those who are NOT familiar,
should BECOME familiar.
After this personal message to you,
below I will print some
court case summaries and websites
for you to show you
what has been going on in America.
Saleena: Here is the story & resource links I promised in
Plant your Seeds: Message from the Council of OM
From: Transcendental Fellowship [mailto:earthlanding@satyuga.org]
Sent: Thursday, September 02, 2010 8:32 PM
To: newagecapitalism@satyuga.org
Subject: Please include us in your prayers
Cherished Co-Creator of the Golden Age:
This is a request for you to include
my mother and myself in your
prayers, visualizations, invocations,
decrees, meditations, or whatever
spiritual practice you have
for calling on
God or the Divine Consciousness
for good in this Earth world.
The family home my parents bought in 1979 in Lakewood, Washington, the only house property we have, has been at risk of being stolen by the dark forces ever since early 2009. In April of 2009, the house was foreclosed on, and sold to Federal National Mortgage Association (FNMA — commonly known as FANNIE MAE) — a quasi-government agency.
By October 9, 2009, we were evicted from the home in the morning, but given entry back into the house by afternoon, because we had filed actions in court and eviction was not legal while the matter was in dispute. Then further threats of eviction continued throughout November into early December. Ever since then, the risk of eviction has continued, while we have been having to continue the litigation in four different courts — two state and two federal.
Those of you who are familiar with the fraud of the lending institutions know what I am talking about. Those who are NOT familiar, should BECOME familiar. After this personal message to you, below I will print some court case summaries and websites for you to show you what has been going on in America.
Suffice it to say in summary, no mortgage loan ever actually took place — the institution calling itself a "lender" actually was NOT a lender, and it loaned nothing. No money came out of its accounts. The property loan "note" my parents signed was not signed by the "lender". It was turned into a check to their accounts. Further, expert lawyers all over the country have been discovering that these so-called "lenders" cannot even be identified. They cannot find the source of the money, because, in truth, the money was created out of thin air — like writing it on a napkin.
See books like Secrets of the Federal Reserve, by Eustace Mullin, and The Creature from Jekyll Island, by G. Ed Griffin.)
Therefore not "repaying" the "loan" doesn't harm them whatsoever. And yet these "lenders" are trying to get their "borrowers" to repay the fictitious "loans", or take our properties.
Under the UCC (Uniform Commercial Code), there are remedies for the general public — you and me — to create money by our signature, to discharge or set off debts. Some people have succeeded in writing bonds, drafts, promissory notes, and bills of exchange, and having them actually accepted by the IRS and other agencies, institutions, and merchants. But such successes are rare. While the system theory is fair, the manipulation and monopolization of the benefits of the system by the inside controllers has prevented most people from getting such instruments accepted and debts discharged.
Therefore, reluctantly, and with guidance from a very good high consciousness friend, we have been suing the lender and FANNIE MAE in state and federal courts for fraud. Beloved Shirsha assisted during 2008 and 2009, and in late 2009 when I returned from California, I took over the work and it has been consuming up to 90% of my productive time ever since. Mother is 85, and while the house property and the court actions are in her name, I have been the one having to conduct much of the legal research and construct all the legal documents and file them. This has been one of the most unpleasant times in my entire life.
The deeper I have gotten into this, the more crystal clear it has become to me that our arguments are true and correct . . . that we are standing in the Light and in the Truth . . . and that we are doing the right thing. We are not just correct spiritually, karmically, and ethically, but legally as well, even down to the federal and state statutes. That is why others engaged in similar cases have been winning. They wouldn't be winning against such formidable forces if they didn't have the truth on their side.
The reason it has been so difficult for us to win is that the foreclosure already took place. Most of the people winning foreclosure cases are those who got it into court BEFORE the foreclosure took place. In our case (thanks, Universe!), we are trying to REVERSE the foreclosure that already took place well over a year ago . . . much more difficult. Our opponents have deep pockets, big law firms, and are ruthless. They have been burying us in paperwork filled with lies and deceptions.
We have now succeeded in proving on the public record that they committed fraud . . . they have admitted it, and even the judge has admitted it . . . and still they keep fighting back tooth and nail, on procedural technicalities.
Why not just let the abusers of the system have their way? Why not walk away from it, let them have the house, and let them have the karma that goes with their actions?
One, on the most 3D level, the Catch 22 is that with this consuming up to 90% of my productive time, I haven't had time to build up much income in anything. Hence losing the house would mean, literally, homelessness. Our first and only million-dollar fortune and a small humanitarian bank were all taken from us by the same international cartel of dark forces a decade ago, and although we have soared and prospered like billionaires SPIRITUALLY since then . . . with a great sense of humor and oceans of Love in our hearts . . . we have never recovered financially.
Yes, I could probably live cramped in a little shack of a place with mother, who has a tiny retirement pension, but that would mean losing most of the furnishings and equipment in our house, as well as the house itself; and exchanging it all for a rather ugly and difficult existence. Shirsha and I are welcome in the homes of MANY friends, and Shirsha's European family, and spiritual communities; but are we really helping the world by being houseguests and not creating our own living situation?
Two, on a more spiritual level of consideration, I have given deep thought to this. All my life I have been a non-fighter . . . a lover, a peacemaker, a flower child, a meditation teacher, heavenly musician, celestial artist, enlightenment author, seminar speaker . . . anything but a warrior or a lawyer. As a child, I was never in a single serious fight — never once. Fighting, whether with words or weapons, is just not my cup of tea. Therefore, it would have been far more consistent with my nature to just walk away from the battle, and go create my own life somewhere, leaving Mom to fend for herself.
But Dad passed away in 2008, I have no blood brothers or sisters, and Mom has no one else to be with. Further, we have at least some spiritual resonance . . . we agree on most things, and share many similar interests. For the most part, we are harmonious and compatible as living partners . . . which I understand is rare in the modern industrialized societies. So I could move back to California, Hawaii, Fairfield, or even India — anywhere; and Shirsha and I could create a new life for ourselves. We could let Mom lose her house, let her live in a little apartment on her tiny income somewhere, and not worry about it. That was certainly an option.
What has happened, instead, is seeing that some people are winning these court cases around the country, and having a mentor who is a genius in these things, encouraging me and guiding me, I have somehow found myself jumping into a role that is very different for me . . . very difficult . . . but somehow, I sense distinctly, in harmony with Divine Will at this time. It is like when David killed the giant Goliath in the biblical story, or when Krishna inspired Arjuna in the Bhagavad Gita to "stand up and fight" for the good of his kingdom.
In some strange way, I have felt that I am only one of millions and millions of people all over the world who are dissolving the last shadows of Kali Yuga, the dark age. The word "fighting" could be used, but more accurately, we're not trying to destroy anyone or harm anything. Obviously, a Light Being — a true and genuine one — doesn't harm a flea. I wish no ill on those who are opposing us. What good would that do? Wishing harm on them would only make the matter worse. What they really need, most desperately need, is to experience . . . to Know . . . the Bliss of Universal Unconditional Love. They have never known that.
So for me, this is NOT revenge, it is not anger, and it is not greed. It is simply intelligence . . . discovering the truth of the law, the truth of actual facts, and standing in that light. It is helping the entire world by making my own contribution, however small, to the global awakening . . . on the one hand, awakening to the transcendental absolute, which is beyond all right and wrong; and on the other hand, seeing the simple and obvious life-supporting influence of justice and fairness emanating from the transcendental absolute.
That which is transcendental, absolute, and ultimate, cannot harm. Neither can the undistorted power that radiates from it. It cannot divide, conquer, kill, steal, deceive, exploit, create pain, cause fear, or cause sorrow. All those negative things only come, and CAN only come, from the mind — and not only the mind, but the dark, distorted, miscreated stage of the unenlightened developing mind.
Therefore, Avatar Lord Krishna did not encourage Arjuna to stand against the enemy because Divinity takes sides or that Divinity is violent. Rather, he did it because the Light stands in its own nature to Shine . . . and if Divinity Shines where people embodying darkness are using force, then their own force backfires on them. That's all!
It's like Aikido . . . the recipient of the blow simply receives the energy of the blow and turns it back around on the attacker.
The mirror reflects. If the face is ugly, it's not the mirror's fault. The mirror is just the innocent reflector.
That's all we're doing in the courts . . . shining the light and serving as the mirror. If the Truth reflects unappealingly back to its sender, what can we do? We didn't initiate the actions that began with the original intent to deceive and exploit. If shining our Light exposes that, then it is the beginning of the healing.
"In the beginning, falsity is like sweet nectar. In the end, it is like bitter poison.
In the beginning, truth is like bitter poison. In the end, it is like sweet nectar." – – the Enlightened Master Osho
Further, from every direction in the spiritual world, we continue getting the confirmation that we are doing the right thing. Those who are 100% in favor of world peace are cheering us on, as they encourage their listeners and readers to STAND in our Light, KNOW Who We Are, be FIRM in our Sovereignty, and EXPOSE the dark for what it is. This, right now, is the time in history when this seems to be most needed.
Unpleasant as it may be, the stem must first come up through the mud before it can blossom as a beautiful lotus in the sun.
Unpleasant as it may be, first the atrocities and crimes of the dark ages must be exposed to the brilliant daylight of awareness. Only then can it all be clearly understood by everyone, and only then can it be seen for what it is . . . never to be repeated ever again.
If you have a different perspective, by all means, share it! I welcome all viewpoints. "Entertain all new ideas royally, for one of them may be the king."
If you don't wholeheartedly agree that my mother should win her house free and clear from the fraudulent lenders . . . if you don't fully Know in your mind and heart about the state and federal laws governing mortgages and are not convinced that we have a right to our property . . . then I highly encourage you to read the resources below and educate yourself. It is a scandal that has reached millions of people. It is well known among a rapidly increasing proportion of the population.
Look in the classified foreclosure listings of any major city newspaper. They go on for PAGES AND PAGES in fine print . . . constituting literally thousands of people losing their homes EVERY DAY. It is estimated a million people a year are losing their homes in the USA alone.
Obtain from Amazon.com (or anywhere) and watch Michael Moore's movie "Capitalism – A Love Story". In there you will see film footage of families being evicted from their homes. You will see the evidence for the illegality of what the lenders are doing. You will see the truth of what is happening right in front of your eyes. Many people say that movie was Moore's "magnum opus".
After all that, if you are still not convinced that I am doing the right thing by helping my mother with this litigation, and helping the world by placing on the public record what the cabal has been doing, then I bless you to go on your way . . . so be it . . . we can agree to disagree, and still be friends. You will finally see the truth someday, and recognize it for what it is.
But if you realize what is truly going on, and agree that we are doing the right thing . . . then pray for us, or include us in whatever decrees, invocations, meditations, visualizations, postulates, mantras, or other practices you may do for manifestation. With great gratitude! Use whatever feelings, mantras, decrees, phrases, or images you wish . . . but if you would like some words to use, these are available as a basic template:
"I Am seeing Taansen and Shirsha Sumeru and Taansen's mother Mikki Freeston restored to their property in Lakewood, Washington . . . free and clear forever of all debts . . . real or unreal . . . free and clear forever of all legal attacks and attempts by courts, banks, and government agencies to take their property from them. I Am celebrating their joy and the joy of millions of others around the world who faced similar situations . . . celebrating their victories over the dark forces . . . and thankful to eternity for the Divine Justice that has been rendered to restore the lives and properties of all those who had their life's work taken from them illegally and unethically. I Am in deep appreciation for the Here and Now Materialization of this Boon, Benefit, and Blessing with the Full Approval of Heaven and Earth. With infinite gratitude, thank you, Cherished Divinity."
Certainly change any of the words you like, to suit your own preferred terminology and language, but however you accomplish this, I personally send my deepest thanks, gratitude, and appreciation to you . . . for taking a few minutes to do this. Every additional focus of a Beloved Child of the Great Central Sun helps add to the inevitable victory for us all . . .
AND, almost as importantly, those of you who have legal and commercial information that you feel may help . . . such as actual cases of people who won against mortgage foreclosures in court and got their properties free and clear . . . how they did it . . . or, names of lawyers who could take us on for little or no money . . . like adding us to class action suits or something . . . such information would be additional strength to help us win . . . and thereby help everyone in touch with us who has a similar situation win.
As Sheldan Nidle often says, "Together, we are victorious" . . .
For the rapid and smooth spread of Heaven on Earth and the Age of Enlightenment Here and Now for All Mankind,
Jai Ma! (Glory to Mother Divine) and Love to Infinity, Taansen
<earthlanding@satyuga.org>
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INFORMATION RESOURCES FOR MORTGAGE FRAUD EDUCATION
Sample Websites (there are plenty more)
www.brasschecktv.com/page/550.html
www.foreclosuredefenseprogram.com
http://privateaudio.homestead.com
www.thehomeownershipprogram.com
http://howtogetridof.com/?source=milktoast
http://remediesinrealestate.com/root/index.html
www.jurisdictionary.com/?refercode=NEWSLETTER
www.redemptionservice.com/contents/packages.asp
Watch
Michael Moore's movie " Capitalism – A Love Story"
Read
Book The Creature from Jekyll Island, by G. Ed Griffin
Book Secrets of the Federal Reserve, by Eustace Mullin
Foreclosures Cancelled Due to Lender Fraud
Supporting Court Cases
Plenty of court decisions have upheld the importance of the note, so much so, that many foreclosure attempts have been dismissed because of it. For example:
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CARPENTER V. LONGAN, 83 U.S. 271 (1872): “The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”
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UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF OHIO, EASTERN DIVISION (2007 WL 3232430, JUDGE CHRISTOPHER A. BOYKO, OPINION AND ORDER 31 OCTOBER 2007).
“This Court issued an Order requiring Plaintiff-Lenders in a number of pending foreclosure cases to file a copy of the executed Assignment demonstrating Plaintiff was the holder and owner of the Note and Mortgage as of the date the Complaint was filed, or the Court would enter a dismissal. The Court has reached today's determination after a thorough review of all the relevant law and the briefs and arguments recently presented by the parties, including oral arguments heard on Plaintiff Deutsche Bank's Motion for Reconsideration.
“However, the attached Note and Mortgage identify the mortgage and promisee as the original lending institution — one other than the named Plaintiff. Ohio law holds that when a mortgage is assigned, moreover, the assignment is subject to the recording requirements of R.C. Sec. 5301.25.”
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United States District Court, S.D. Ohio, Western Division, at Dayton, Nov 15, 2007 – Foreclosure Case, 521 F.Supp.2d 650 (S.D. Ohio 2007)
“Standing and subject matter jurisdiction: To satisfy Article III's standing requirements, a plaintiff must show: (1) it has suffered an injury in fact that is concrete and particularized and actual (2) injury is fairly traceable to the challenged action of the defendant; and (3) as opposed to merely speculative, the injury will be redressed by a favorable decision. An affidavit documenting that the named plaintiff is the OWNER and HOLDER of the NOTE and MORTGAGE; and a corporate disclosure statement. And the Court can confirm standing and the existence of diversity jurisdiction at the time the foreclosure complaint is filed.”
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Wells Fargo Bank, N.A. v. Jordan, 2009 Ohio 1092 (Ohio App. 3/12/2009) 2009 Ohio 1092 (Ohio App. 2009) “In re Foreclosure Cases: Therefore if plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.”
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MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., appellant, v NEBRASKA DEPARTMENT OF BANKING AND FINANCE, appellee, 704 N.W.2d 784, 270 Neb. 529, No. S-04-786, Oct 21, 2005:
"In other words, through its services to its members as characterized by the district court, MERS does not acquire ‘any loan or extension of credit secured by a lien on real property.’ MERS does not itself extend credit or acquire rights to receive payments on mortgage loans. Rather, the lenders retain the promissory notes and servicing rights to the mortgage, while MERS acquires legal title to the mortgage for recordation purposes.
“MERS serves as legal title holder in nominee capacity, permitting lenders to sell their interests in the notes and servicing rights to investors without recording each transaction. But, simply stated, MERS has no independent right to collect on any debt because MERS itself has not extended credit, and none of the mortgage debtors owe MERS any money. Based on the foregoing, we conclude that MERS does not acquire mortgage loans, as defined in (Ohio) Section 45-702(8), and therefore MERS is not subject to the requirements of the Act.
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SUPREME COURT OF KANSAS 289 Kan. 528; 216 P.3d 158; 2009 Kan. LEXIS 834, August 28, 2009 LANDMARK NATIONAL BANK V. KESLER, 40 Kan.App.2d 325, 192 P.3d 177, 2008 Kan.App. LEXIS 138 (2008)
“The court also found that Sovereign's (bank) failure to register its interest with the Fourth County Register of Deeds precluded it from asserting rights to the mortgage after judgment had been entered. MERS, nominee ‘is the mortgagee and is holding that mortgage for somebody else.’ At another time he declared on the record that the nominee ‘is more like a trustee or more like a corporation, a trustee that has multiple beneficiaries — you don't serve one of the beneficiaries — you serve the trustee of the trust. You serve the agent of the corporation.’
“Black's Law Dictionary defines a nominee as ‘[a] person designated to act in place of another, in a very limited way’ and as [a] party who holds bare legal title for the benefit of others or who receives and distributes the funds for the benefit of others. This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves.
"A nominee of the owner of a note and mortgage may not effectively assign the note and mortgage to another for want of ownership interest in said note and mortgage by the nominee. Indeed, in the event that a mortgage loan somehow separates interest of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable.”
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Marty Eugene Box and Tammy Jean Box, Bankruptcy Western District of Missouri – Case No. 10-20086, ORDER DENYING MOTION FOR RELIEF FROM STAY. Chapter 7
“Trustee has challenged BAC's standing to seek relief from the stay. The Trustee asserts a challenge. For the reasons that follow, the Court finds that BAC has not proven that it is the Holder of the Note. Therefore it lacks standing, so its motion for relief from stay will be denied. Serving Company lacked standing to foreclose. A parallel to Belistre V. Ocwen.”
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Kang Jin Hwang, United States Bankruptcy Court, C.D. California, 396 B.R. 757, No. LA08 –153375B; “Debtors. Holder, but not Owner of the Note: The transfer of a negotiable instrument has an additional requirement: the tranferor must indorse the instrument to make it payable to the transferee. May deny standing where movant did not acquire note until after filing motion for relief from stay.”
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Robin Hayes, Debtor, No. 07-13967-JNF, United States Bankruptcy Court, D. Massachusetts, August 19, 2008: “For the reasons set forth below, the Court finds that Deutsche Bank failed to trace the mortgage from Argent Mortgage Company, LLC to itself and thus lacks standing to obtain relief from stay and to defend the Debtor's Objection to the claim filed by AMC. [BK Petition filed 26 June, 2007] The assignment was dated April 16, 2008, but it provided that the effective date of this assignment is October 24, 2005. [Backdated "assignment"]
"Standing": The plain language of section 362 of the Bankruptcy Code requires that one be a party in interest to seek relief from stay. {And Much more} Creditor must show chain of assignments.”
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Darrell Royce Sheridan and Sherry Ann Sheridan, Debtors, Case No. 08-20381-TLM – United States Bankruptcy Court, District of Idaho. “MERS — Party in interest and NO STANDING. Endorsement in Blank; There is no date nor indication of who was or is the transferee. Fieldstone Mortg. Co. may have indorsed the Note in Blank, but this document does not alone establish that either HSBC Bank USA or Fieldstone Mortg. Investment Trust is the Note's Holder.”
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Marty Eugene Box and Tammy Jean Box, Case No. 10-20086, United States Bankruptcy for the Western District of Missouri: “Servicing Co. lacked standing to foreclose. [A parallel to Belistri Ocwen.] BAC has not produced the original Note, nor has it even produced a witness stating that BAC is in possession of the original Note. Indeed even the Affidavit, for what it is worth, fails to make such a statement. Since BAC has failed to demonstrate that the loan was properly assigned to it by Taylor Bean, it lacks standing to seek relief from the stay.”
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Barry Weisband, debtor, Case No. 4:09-bk-05175-EWH United States Bankruptcy Court for the District of Arizona; “GMAC, while it was in possession of the Note at the evidentiary hearing, it failed to demonstrate that the Note is properly payable to GMAC. A special endorsement to GMAC was admitted into evidence with the Note. However, for the Endorsement to constitute part of the Note, it must be on ‘a paper affixed to the instrument’ (A.R.S. Sec 47-3204);
“Here the evidence did not demonstrate that the Endorsement was affixed to the Note. MERS Assignment of the Deed of Trust Did NOT Provide GMAC WITH STANDING. MERS primary function is to act as a document custodian. GMAC, as MERS assignee of the Deed of Trust, ‘stands in the shoes’ of the assignor, taking only those rights and remedies the assignor would have had.”
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Supreme Court of New York, Suffolk County 2006 slip Op 51534U; 2006 N.Y.Misc. LEXIS 2127824 N.Y.S.2d 769; Lasalle Bank National Association as Trustee c/o Chase Home Finance , LLC, Plaintaiff(s) against Michael Lamy, Joan Lamy, Defendants: “Ownership of the note and mortgage may be established by the lending documents themselves or by proof that the plaintiff is the owner of the note and mortgage by reason of an assignment of both the note and mortgage by the owner thereof to the plaintiff or by the owner's indorsement of the Note and its written assignment of mortgage to the plaintiff;
“It is axiomatic that to be effective, an assignment of the note and a mortgage given as security therefor must be made by the owner of such note and mortgage and that an assignments made by entities having no ownership interest in the note and mortgage pass no title there to assignee.
“This is so because the mortgage is merely an incident of, and collateral security for, the debt, and an assignment of the mortgage does not pass ownership of the debt itself.
“The December 29, 2005 assignment of mortgage is thus invalid.”
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WELLS FARGO BANK, N.A. AS TRUSTEE Ci-11 FOR OPTION ONE MORTGAGE LOAN TRUST 2007-CPI ASSET-BACKED CERTIFICATE SERIES 2007-CP1 PLAINTIFF, DANIEL DYMINSKI, DEFENDANT.. CASE MP/ 08-018162 – – “Appearing in the Court File is a purported "allonge" which allegedly endorsed the Mortgage and Note to the Plaintiff. However, when undersigned counsel examined the Court File, this purported allonge was not affixed to the Promissory Note attached to the Plaintiff's Complaint nor, upon information and belief, is this purported allonge currently affixed to the Promissory Note. Furthermore, the purported allonge was not dated or notarized.
“Standard of Review discussion, supra, exhibits attached to the Plaintiff's complaint are part of the complaint, and the allegations made in the complaint do not agree with the exhibits attached, the exhibits control.
“A draft of the 1951 version of the UCC Article 3 included the comment that the indorsement must be written on the instrument itself or an allonge, which as defined in Section ___ , is a strip of paper so firmly pasted, stapled or otherwise affixed to the instrument as to become part of it.”
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853 F.2d 163 Adams v Madison Realty & Development Inc & pc
“This issue presented on this appeal is whether a good faith purchaser is a holder in due course of promissory notes containing indorsements on separate sheets of paper loosely inserted within each note. We answer in the negative and will vacate the judgment.
“The Code substituted the words ‘so firmly affixed as to become a part thereof for the phrase upon a paper upon a paper attached thereto.’
“Mere ownership or possession of a note is insufficient to qualify an individual as a ‘holder’. The instrument must be obtained through a process the Code terms ‘negotiation,’ defined as ‘the transfer of an instrument in such form that the transferee becomes a holder.’ U.C.C. Sec. 3-202(1). If the instrument is payable to order — as is the case with the notes here — negotiation is accomplished ‘by delivery with any necessary
indorsement.’ Empire is not entitled to the status of a holder in due course.”
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In the case, Wet v. Axtell (Mo. 1929) 17 S.W.2d 328, the court indicated that a Trustee in a foreclosure sale must be in possession of the original Note and the Deed of Trust at the time of the sale.
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Countrywide Home Loans vs. Taylor 2007 NY Slip Op 27383
"Upon due deliberation and consideration by the court of the submitted papers, the motion is decided as follows: it is ordered that the plaintiff's motion for an order of reference in this mortgage foreclosure action is denied, without prejudice and with leave to renew upon proper papers, including but not limited to: (1) proper and timely assignments of the subject mortgage, if any, sufficient to establish the plaintiffs ownership of such mortgage at the time the action was commenced; (2) proof of compliance with the requirements of CPLR 3215 (f), including but not limited to a proper affidavit of facts by the plaintiff (or by plaintiffs agent, provided there is proper proof in evidentiary form of such an agency relationship), or a complaint verified by the plaintiff and not merely by an attorney or nonparty with no personal knowledge; and (3) evidentiary proof of compliance with the foreclosure notice of requirements of RPAPL 1303; and it is further ordered that movant shall serve a copy of this order upon all appearing parties, or attorney(s) if represented by counsel, pursuant to CPLR 2103 (b) (1), (2), or (3) and shall thereafter file the affidavit(s) of service with the clerk of the court; and it is further ordered that a copy of this order and proof of service of same shall be annexed as exhibits to any applications resubmitted pursuant to this order; and it is further ordered that with regard to any future applications, if the court determines that such applications have been submitted without proper regard for the applicable statutory and case law, or without regard for the required proofs impose sanctions pursuant to 22 NYCRR subpart 130-1, and may deny those costs and attorneys fees attendant with the filing of such future applications.
…The moving papers establish that the original lender stated in the subject December 19, 2001 was Americas Wholesale Lender. Thereafter, pursuant to the terms of the mortgage Mortgage Electronic Registration Systems (MERS), acting as nominee for the lender executed an assignment of mortgage on March 6, 2007, purporting to assign the mortgage to Countrywide Home Loans, Inc. The notice of pendency and complaint, however, were filed on February 6, 2007, prior to the date of assignment. Therefore Countrywide did not have ownership of the subject mortgage at the time of filing.
Other case law using CW as precedent:
DEUTCHBANK vs. CRUZ 31645/06
U.S.BANK vs. GRANT 11133/07
BANK OF NEW YORK vs. SINGH 22434/07
U.S.BANK vs. AUGUSTE 18695/2007
LASALLE BANK vs. SMALLS 28128/07
PHH MORTGAGE CORP vs. BARBER 36690/07
INDYMAK vs. RODNEY-ROSS 24713/07
LASALLE BANK vs. CHARLEUS, CADET 22733/2007
GMAC MORTGAGE LLC vs. MARSH 2007-17486
GMAC MORTGAGE LLC vs. MATTHEWS 30064/07
DEUTSCHE BANK vs. CRUZ 2085/07
DEUTSCHE BANK vs. NICHOLLS 2248/07
DEUTSCHE BANK vs. RYAN, FRANCIS, ORR 33315/07
DEUTSCHE BANK vs. SAMPSON 26320/07
The purported assignment is dated___________. However, such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff's ownership at the time the action was commenced. Moreover, "foreclosure of a mortgage may not be brought by someone who has no title to it" See Countrywide Home Loans Inc, vs. Taylor, 17 Misc 3d 595 (Sup. Ct. Suffolk Co 2007) Plaintiff's attempt to foreclose upon a mortgage in which it had no legal or equitable interest was without foundation in law or fact. In view of the foregoing, the Court finds that plaintiff has no standing to commence this action.
Kluge vs. Fugazy, 145 AD 2d 537, 536 NYS2d (2nd Dept., 1988) Court held that the assignment of a mortgage without transfer of the debt is a nullity and a cause of action for foreclosure must fail.
Merritt vs. Bartholick, 36 NY 44 (1867) the Court of appeals held that a mortgage is but an incident to debt which it is intended to secure (cites omitted) 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, and recognized as the rule by a long course of judicial decisions. It should be noted that in MERSCORP, Inc v. Romaine, 8 NY3d90, 828 NYS2d 266 (2006) Justice Ciparick, in her concluding opinion specifically notes that the Courts ruling left for another day the argument made by the County of Suffolk and various amici "that MERS has violated the clear prohibition against separating a lien from it's debt and that MERS does not have standing to bring foreclosure actions".
HSBC Bank USA vs. Miller 4786-2008 "Plaintiff lacks standing to maintain this foreclosure action."…in the absence of proof that both the Note and the Mortgage sought to be foreclosed have been assigned to the Plaintiff, the Plaintiff is without standing to maintain a foreclosure action. The Defendant further argues that the Plaintiff has again failed to establish that it is the holder of both the mortgage and the underlying debt. …..The Plaintiff's counsel acknowledges that the note is a negotiable instrument.
UCC 3-104- the note secured by a mortgage is a negotiable instrument.
UCC 3-202 (2) It requires indorsement on the instrument itself or on a paper so firmly affixed thereto as to become a part of.
UCC 3-202 (3) (4) in order to effectuate a valid assignment of the entire instrument
ASSIGNMENT AND LOCATION
DEUTSCHE BANK vs. PEABODY NY SLIP OP 51286 (U)
On August 4, 1997, defendant was served in the action, and in his answer raised the defense that plaintiff lacked standing to bring a foreclosure action because it had not obtained an assignment until after the action had been commenced. The court concluded "[w]here plaintiff is the assignee of a mortgage at the time of service of the complaint, plaintiff has standing and is entitled to commence a proceeding in its own name". The court explained "[d]efendant has not submitted any proof to contradict plaintiff's documentation in support of its proposition that the assignment, including the delivery of the note and mortgage, occurred prior to initiation of the action". 263 AD2d at 938. That documentation established that the note and mortgage had been physically delivered to the plaintiff prior to its commencement of the foreclosure action. In this court's analysis, in Bankers Trust Co. stands for the proposition of a "retroactive" effective date for a written mortgage assignment is valid provided, as was the case there, the note and mortgage were previously physically delivered to the assignee. Again, here, plaintiff offers no evidence that it took physical delivery of the note and mortgage before commencing this action, and again, the written assignment was signed after defendant was served. The assignment's language purporting to give it retroactive effect, absent a prior or contemporary delivery of the note and mortgage, is insufficient to grant it standing.
Defendant's second argument, addressed for judicial economy, that the assignment is invalid because a MERS officer signed the document in Minnesota before a notary public while in the original mortgage, MERS was identified as having a business address in Michigan, lacks merit absent a proffer of evidence that the assignment indeed had not been signed by a duly authorized corporate officer.
AMERICAN BROKERS CONDUIT vs. ZAMILLA INDEX NO 7206-07
Plaintiffs renewed application, upon: the default of all defendants, for an order of reference and related relief for the premises located at 1816 East 32"d Street, Brooklyn, New York (Block 8475, Lot 47, County of King.) is denied without prejudice. The affidavit of merit submitted in support of this application for an order of reference was not executed by an officer of the plaintiff, AMERICAN BROKERS CONDUIT C/O AMERICAN HOME MORTGAGE SERVICING. 4600 REGENT BLVD, IRVING, TX 75063 (AMERICAN BROKERS CONDUIT), or someone with a power of attorney from the plaintiff. Leave is granted to plaintiff to renew its application for an order of reference and related relief upon the plaintiffs presentation to the Court of its compliance with the statutory requirements of CPLR § 32 15 (f), with "an affidavit of facts" executed by someone who is an officer of AMERICAN BKOKERS CONDUIT or someone who has a valid power of attorney from AMERICAN BROKERS CONDUIT. Upon renewal, I will grant the application to amend the caption, pursuant to CPLR § 102 1, to reflect that the plaintiff is AMERICAN BROKERS CONDUIT.
….It is clear that plaintiff American Broker, Conduit c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving Texas 75063 lacks standing to sue since March 5, 2007, when it assigned its ownership of the Zamalloa mortgages to American Brokers Conduit, 538 Broadhollow Road, Melville, Ne\ York 11747, The Court, in Campaign v Barba, 23 AD3d 327, instructed that "[to establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage., and the defendant's default in payment [Emphasis added." See Household Finance Realty Corp. Of New York v Wynn, 19 AD3d 545 (2d Dept 2005); Sears Mortgage corp., v Yahhobi, 19 AD3d 402 (2d Dept 2005); Ocwen Federal Bank FSB v Miller, 18 AD3d 527 (2d Dept 2005); U.S. Bank Trust Nat. Ass'n Trustee v Butti, 16 AD3d 408 (2d Dept 2005); First Union Mortgage CORP. v. Fern, 298 AD2d 490 (2d Dept 2002); Village Bank v Wild Oaks, Holding, Inc., 196 AD2d 812 (2d Dept 1993).
POWER OF ATTORNEY, EMPLOYMENT ISSUES AND OWNSERSHIP
DEUTSCHE BANK VS. CLOUDEN INDEX NO 277/07
ASSIGNMENT, OWNERSHIP AND RECORDED IN WRONG COUNTY/STATE
DEUTSCHE BANK VS. CASTELLANOS 22375/06 05/11/2007
EMPLOYMENT ISSUES, LOCATION AND ASSGINMENTS:
DEUTSCHE BANK VS. HARRIS 35549/07
DEUTSCHE BANK VS EZAGUI 3724/07
EMPLOYMENT ISSUES, OWNERSHIP AND ASSIGNMENT
DEUTSCHE BANK VS CASTELLANOS 22375/06 01/14/2008
INDYMAC BANK FSB VS BETHLEY 2009 NY SLIP OP 50186 (U) (22 MISC 3D 1119(A) ) 02/2009
ASSIGNEMENT, EMPLOYMENT AND PAYMENTS
DEUTSCHE BANK VS. PEABODY 2008 NY SLIP OP 51286 (U)
PAYMENT APPLICATIONS
RIVERA 01-42625 (MS)
STANDING, NO ASSIGNMENT RECORDED AND EMPLOYMENT
BANK OF NEW YORK VS OROSCO 32052/07
FAILURE TO DEMONSTRATE OWNERSHIP/REAL PARTY OF INTEREST
BANK OF NEW YORK VS TORRES,MARTINEZ 31714-2006
CITIMORTGAGE INC VS.BROWN 30755/2007
U.S.BANK VS.ROUNTREE 009148/2007
DEUTSCHE BANK VS. BARNES A0705631
U.S. Bankruptcy Court vs. SHERIDAN 08/20381-TLM (Fieldstone?)
AURORA LOAN SERVICES VS MACPHEARSON 33781/2007
PROPERTY ASSET MGMT, INC VS HUAYTA 009501/2007
HSBC BANK VS CIPRIANI 12365-2007
LASALLE BANK VS AHEARN 2009 NY SLIP OP 01388 (59 AD3d 911)
DLJ MORTGAGE CAPITAL INC VS. PARSONS 07-MA-17
GMAC MORTGAGE LLC VS. SERAFINE 01818-2007
DEUTSCHE BANK VS ALEMAY 11677-2007
DEUTSCHE BANK VS CABAROY 9245-2007
HOLDER IN DUE COURSE AND ASSIGNMENT
COUNTRYWIDE VS BURLIUK 19240-2007
REAL PARTY OF INTEREST, AND DIDN'T FUND THE LOAN
AURORA LOAN SERVICES VS SATTAR 15208/07
EMPLOYMENT, POA AND SELLING OFF A NON PERFROMING LOAN
DEUTSCHE BANK VS GRANT 39192/07
ASSIGNEMENT , OWNERSHIP AND HOLDER IN DUE COURSE.
CHRISTOPHER A. BOYKO, J.: Cases: CASE NO. NO.1:07CV2282, 07CV2532, 07CV2560, 07CV2602, 07CV2631, 07CV2638, 07CV2681, 07CV2695, 07CV2920, 07CV2930, 07CV2949, 07CV2950, 07CV3000 , 07CV3029
OPINION AND ORDER
On October 10, 2007, this Court issued an Order requiring Plaintiff-Lenders in a number of pending foreclosure cases to file a copy of the executed Assignment demonstrating Plaintiff was the holder and owner of the Note and Mortgage as of the date the Complaint was filed, or the Court would enter a dismissal. After considering the submissions, along with all the documents filed of record, the Court dismisses the captioned cases without prejudice. The Court has reached today's determination after a thorough review of all the relevant law and the briefs and arguments recently presented by the parties, including oral arguments heard on Plaintiff Deutsche Bank's Motion for Reconsideration. The decision, therefore, is applicable from this date forward, and shall not have retroactive effect.
LAW AND ANALYSIS
A party seeking to bring a case into federal court on grounds of diversity carries the burden of establishing diversity jurisdiction. Coyne v. American Tobacco Company, 183 F. 3d 488 (6th Cir. 1999). Further, the plaintiff "bears the burden of demonstrating standing and must plead its components with specificity." Coyne, 183 F. 3d at 494; Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982).
The minimum constitutional requirements for standing are: proof of injury in fact, causation, and redressability. Valley Forge, 454 U.S. at 472. In addition, "the plaintiff must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted." Coyne, 183 F. 3d at 494 (quoting Pestrak v. Ohio Elections Comm'n, 926 F. 2d 573, 576 (6th Cir. 1991)). To satisfy the requirements of Article III of the United States Constitution, the plaintiff must show he has personally suffered some actual injury as a result of the illegal conduct of the defendant. (Emphasis added). Coyne, 183 F. 3d at 494; Valley Forge, 454 U.S. at 472.
In each of the above-captioned Complaints, the named Plaintiff alleges it is the holder and owner of the Note and Mortgage. However, the attached Note and Mortgage identify the mortgagee and promisee as the original lending institution – one other than the named Plaintiff. Further, the Preliminary Judicial Report attached as an exhibit to the Complaint makes no reference to the named Plaintiff in the recorded chain of title/interest. The Court's Amended General Order No. 2006-16 requires Plaintiff to submit an affidavit along with the Complaint, which identifies Plaintiff either as the original mortgage holder, or as an assignee, trustee or successor-in-interest. Once again, the affidavits submitted in all these cases recite the averment that Plaintiff is the owner of the Note and Mortgage, without any mention of an assignment or trust or successor interest. Consequently, the very filings and submissions of the Plaintiff create a conflict. In every instance, then, Plaintiff has not satisfied its burden of demonstrating standing at the time of the filing of the Complaint.
Understandably, the Court requested clarification by requiring each Plaintiff to submit a copy of the Assignment of the Note and Mortgage, executed as of the date of the Foreclosure Complaint. In the above-captioned cases, none of the Assignments show the named Plaintiff to be the owner of the rights, title and interest under the Mortgage at issue as of the date of the Foreclosure Complaint. The Assignments, in every instance, express a present intent to convey all rights, title and interest in the Mortgage and the accompanying Note to the Plaintiff named in the caption of the Foreclosure Complaint upon receipt of sufficient consideration on the date the Assignment was signed and notarized. Further, the Assignment documents are all prepared by counsel for the named Plaintiffs. These proffered documents belie Plaintiffs' assertion they own the Note and Mortgage by means of a purchase which pre-dated the Complaint by days, months or years.
Plaintiff-Lenders shall take note, furthermore, that prior to the issuance of its October 10, 2007 Order, the Court considered the principles of "real party in interest," and examined Fed. R. Civ. P. 17 – "Parties Plaintiff and Defendant; Capacity" and its associated Commentary. The Rule is not apropos to the situation raised by these Foreclosure Complaints. The Rule's Commentary offers this explanation: "The provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the
1 Astoundingly, counsel at oral argument stated that his client, the purchaser from the original mortgagee, acquired complete legal and equitable interest in land when money changed hands, even before the purchase agreement, let alone a proper assignment, made its way into his client's possession.
Proper party to sue is difficult or when an understandable mistake has been made. … It is, in cases of this sort, intended to insure against forfeiture and injustice …" Plaintiff-Lenders do not allege mistake or that a party cannot be identified. Nor will Plaintiff-Lenders suffer forfeiture or injustice by the dismissal of these defective complaints otherwise than on the merits.
Moreover, this Court is obligated to carefully scrutinize all filings and pleadings in foreclosure actions, since the unique nature of real property requires contracts and transactions concerning real property to be in writing. R.C. § 1335.04. Ohio law holds that when a mortgage is assigned, moreover, the assignment is subject to the recording requirements of R.C. § 5301.25. Creager v. Anderson (1934), 16 Ohio Law Abs. 400 (interpreting the former statute, G.C. § 8543). "Thus, with regards to real property, before an entity assigned an interest in that property would be entitled to receive a distribution from the sale of the property, their interest therein must have been recorded in accordance with Ohio law." In re Ochmanek, 266 B.R. 114, 120 (Bkrtcy.N.D. Ohio 2000) (citing Pinney v.
Merchants' National Bank of Defiance, 71 Ohio St. 173, 177 (1904).1
This Court acknowledges the right of banks, holding valid mortgages, to receive timely payments. And, if they do not receive timely payments, banks have the right to properly file actions on the defaulted notes – seeking foreclosure on the property securing the notes. Yet, this Court possesses the independent obligations to preserve the judicial integrity of the federal court and to jealously guard federal jurisdiction. Neither the fluidity of Plaintiff's reliance on Ohio's "real party in interest rule" (ORCP 17) and on any Ohio case citations is misplaced. Although Ohio law guides federal courts on substantive issues, state procedural law cannot be used to explain, modify or contradict a federal rule of procedure, which purpose is clearly spelled out in the Commentary. "In federal diversity actions, state law governs substantive issues and federal law governs procedural issues." Erie R.R. Co. v. Tompkins, 304 U.S. 63 (1938); Legg v. Chopra, 286 F. 3d 286, 289 (6th Cir. 2002); Gafford v. General Electric Company, 997 F. 2d 150, 165-6 (6th Cir. 1993).
Plaintiff's, "Judge, you just don't understand how things work," argument reveals a condescending mindset and quasi-monopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel. Their focus is either, "how do I save my home," or "if I have to give it up, I'll simply leave and find somewhere else to live."
In the meantime, the financial institutions or successors/assignees rush to foreclose, obtain a default judgment and then sit on the deed, avoiding responsibility for maintaining the property while reaping the financial benefits of interest running on a judgment. The financial institutions know the law charges the one with title (still the homeowner) with maintaining the property.
There is no doubt every decision made by a financial institution in the foreclosure process is driven by money. And the legal work which flows from winning the financial institution's favor is highly lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit – to the contrary , they should be rewarded for sound business and legal practices. However, unchallenged by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about maximizing returns. Unlike the focus of financial institutions, the federal courts must act as gatekeepers, assuring that only those who meet diversity and standing requirements are allowed to pass through.
Counsel for the institutions are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing in the secondary mortgage market, nor monetary or economic considerations of the parties, nor the convenience of the litigants supersede those obligations.
Despite Plaintiffs' counsel's belief that "there appears to be some level of disagreement and/or misunderstanding amongst professionals, borrowers, attorneys and members of the judiciary," the Court does not require instruction and is not operating under any misapprehension. The "real party in interest" rule, to which the Plaintiff-Lenders continually refer in their responses or motions, is clearly comprehended by the Court and is not intended to assist banks in avoiding traditional federal diversity requirements.
2 Unlike Ohio State law and procedure, as Plaintiffs perceive it, the federal judicial system need not, and will not, be "forgiving in this regard."
3 and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate.
The Court will illustrate in simple terms its decision: "Fluidity of the market" – "X" dollars,
"contractual arrangements between institutions and counsel" – "X" dollars, "purchasing mortgages in bulk and securitizing" – "X" dollars, "rush to file, slow to record after judgment" – "X" dollars, "the jurisdictional integrity of United States District Court" – "Priceless."
CONCLUSION
For all the foregoing reasons, the above-captioned Foreclosure Complaints are dismissed without prejudice.
IT IS SO ORDERED.
DATE: October 31, 2007
S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
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