Onewest Bank, F.S.B. v Drayton – Brooklyn Judge Arthur Schack is a Local Hero, Decision Casts Light on Fraudulent Mortgage Paperwork

First from the NY Daily News…

(Full Decision Below)

Brooklyn judge Arthur Schack is a local hero, decision casts light on fraudulent mortgage paperwork

Brooklyn State Supreme Court Judge Arthur Schack has done it again.

The self-described “little judge from Brooklyn” has dismissed another foreclosure case, this time in favor of an East New York homeowner who did not even have a lawyer.

Schack ruled Thursday that California’s OneWest, the last of several banks that relied on an admitted “robo-signer” to transfer the $492,000 mortgage on Covan Drayton’s Hemlock St. home among them, failed to prove it even owns the property in question.

“To prevent the waste of judicial resources, the instant foreclosure is dismissed without prejudice,” Schack wrote.

His startling, 37-page decision is the latest of several that have turned him into a hero of troubled homeowners across the nation.

With 6 million homes nationwide in foreclosure or facing the imminent risk of foreclosure, the federal government’s response has been shamefully slow.

Only 475,000 homes are in some form of permanent modification. The Obama administration has spent more effort bailing out a few big lenders than millions of little borrowers.

Shack’s opinion, released by the courts Tuesday, is the most detailed picture yet of the shoddy or fraudulent mortgage paperwork too many of those lenders used.

This is not just a matter of minor technicalities, as the banks and their spin masters want us the believe – the same ones who told us the subprime crisis would blow over.

At the heart of the Drayton case is an Austin, Tex., robo-signer named Erica Johnson-Seck. In July, Johnson-Seck admitted in a Florida deposition in another case that she “executes 750 foreclosure documents a week; without a notary present; does not spend more than 30 seconds signing each document; [and] does not read the documents before signing them,” Schack noted.

Johnson-Seck’s signature appears repeatedly in documents connected to Drayton’s mortgage, and in several other foreclosure cases Schack dismissed in the past three years.

At different times, she signed notarized documents assigning the loan, claiming to be a vice president of MERS (a private financial recording service for major banks), a vice president of INDYMAC, a vice president of Deutsche Bank and a vice president of OneWest.

Read more: http://www.nydailynews.com

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From the Decision

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Onewest Bank, F.S.B. v Drayton
2010 NY Slip Op 20429
Decided on October 21, 2010
Supreme Court, Kings County
Schack, J.

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In this foreclosure action, plaintiff ONEWEST BANK, F.S.B. (ONEWEST), moved for an order of reference and related relief for the premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), upon the default of all defendants. The Kings County Supreme Court Foreclosure Department forwarded the motion papers to me on August 30, 2010. While drafting this decision and order, I received on October 14, 2010, in the midst of the present national media attention about “robo-signers,” an October 13, 2010-letter from plaintiff’s counsel, by which “[i]t is respectfully requested that plaintiff’s application be withdrawn at this time.” There was no explanation or reason given by plaintiff’s counsel for his request to withdraw the motion for an order of reference other than “[i]t is our intention that a new application containing updated information will be re-submitted shortly.”

The Court grants the request of plaintiff’s counsel to withdraw the instant motion for an order of reference. However, to prevent the waste of judicial resources, the instant foreclosure action is dismissed without prejudice, with leave to renew the instant motion for an order of [*2]reference within sixty (60) days of this decision and order, by providing the Court with necessary and additional documentation.

First, the Court requires proof of the grant of authority from the original mortgagee, CAMBRIDGE HOME CAPITAL, LLC (CAMBRIDGE), to its nominee, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), to assign the subject mortgage and note on March 16, 2009 to INDYMAC FEDERAL BANK, FSB (INDYMAC). INDYMAC subsequently assigned the subject mortgage and note to its successor, ONEWEST, on May 14, 2009.

Second, the Court requires an affidavit from Erica A. Johnson-Seck, a conflicted “robosigner,” explaining her employment status. A “robo-signer” is a person who quickly signs hundreds or thousands of foreclosure documents in a month, despite swearing that he or she has personally reviewed the mortgage documents and has not done so. Ms. Johnson-Seck, in a July 9, 2010 deposition taken in a Palm Beach County, Florida foreclosure case, admitted that she: is a “robo-signer” who executes about 750 mortgage documents a week, without a notary public present; does not spend more than 30 seconds signing each document; does not
read the documents before signing them; and, did not provide me with affidavits about her employment in two prior cases. (See Stephanie Armour, “Mistakes Widespread on Foreclosures, Lawyers Say,” USA Today, Sept. 27, 2010; Ariana Eunjung Cha, “OneWest Bank Employee: Not More Than 30 Seconds’ to Sign Each Foreclosure Document,” Washington Post, Sept. 30, 2010).

In the instant action, Ms. Johnson-Seck claims to be: a Vice President of MERS in the March 16, 2009 MERS to INDYMAC assignment; a Vice President of INDYMAC in the May 14, 2009 INDYMAC to ONEWEST assignment; and, a Vice President of ONEWEST in her June 30, 2009-affidavit of merit. Ms. Johnson-Seck must explain to the Court, in her affidavit: her employment history for the past three years; and, why a conflict of interest does not exist in the instant action with her acting as a Vice President of assignor MERS, a Vice President of assignee/assignor INDYMAC, and a Vice President of assignee/plaintiff ONEWEST. Further, Ms. Johnson-Seck must explain: why she was a Vice President of both assignor MERS and assignee DEUTSCHE BANK in a second case before me, Deutsche Bank v Maraj, 18 Misc 3d 1123 (A) (Sup Ct, Kings County 2008); why she was a Vice President of both assignor MERS and assignee INDYMAC in a third case before me, Indymac Bank, FSB, v Bethley, 22 Misc 3d 1119 (A) (Sup Ct, Kings County 2009); and, why she executed an affidavit of merit as a Vice President of DEUTSCHE BANK in a fourth case before me, Deutsche Bank v Harris (Sup Ct, Kings County, Feb. 5, 2008, Index No. 35549/07).

Background

Defendant COVAN DRAYTON (DRAYTON) executed the subject [*3] mortgage and note on January 12, 2007, borrowing $492,000.00 from CAMBRIDGE. MERS “acting solely as a nominee for Lender [CAMBRIDGE]” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD,” recorded the instant mortgage and note on March 19, 2007, in the Office of the City Register of the City of New York, at City Register File Number (CRFN) 2007000143961. Plaintiff DRAYTON allegedly defaulted in his mortgage loan payment on September 1, 2008. Then, MERS, as nominee for CAMBRIDGE, assigned the instant nonperforming mortgage and note to INDYMAC, on March 16, 2009. Erica A. Johnson-Seck executed the assignment as a Vice President of MERS, as nominee for CAMBRIDGE. This assignment was recorded in the Office of the City Register of the City of New York, on March 24, 2009, at CRFN 200900084809. However, as will be discussed below, there is an issue whether MERS, as CAMBRIDGE’s nominee, was authorized by CAMBRIDGE, its principal, to assign the subject DRAYTON mortgage and note to plaintiff INDYMAC. Subsequently, almost two months later, Ms. Johnson-Seck, now as a Vice President of INDYMAC, on May 14, 2009, assigned the subject mortgage and note to ONEWEST. This assignment was recorded in the Office of the City Register of the City of New York, on May 22, 2009, at CRFN 2009000155018.

Plaintiff ONEWEST commenced the instant foreclosure action on June 18, 2009 with the filing of the summons, complaint and notice of pendency. On August 6, 2009, plaintiff ONEWEST filed the instant motion for an order of reference. Attached to plaintiff ONEWEST’s moving papers is an affidavit of merit by Erica A. Johnson-Seck, dated June 30, 2009, in which she claims to be a Vice President of plaintiff ONEWEST. She states, in 1, that “[t]he facts recited herein are from my own knowledge and from review of the documents and records kept in the ordinary course of business with respect to the servicing of this mortgage.” There are outstanding questions about Ms. Johnson-Seck’s employment, whether she executed sworn documents without a notary public present and whether she actually read and personally reviewed the information in the documents that she executed.

July 9, 2010 deposition of Erica A. Johnson-Seck in the Machado case

On July 9, 2010, nine days after executing the affidavit of merit in the instant action, Ms. Johnson-Seck was deposed in a Florida foreclosure action, Indymac Federal Bank, FSB, v Machado (Fifteenth Circuit Court in and for Palm Beach County, Florida, Case No. 50 2008 CA 037322XXXX MB AW), by defendant Machado’s counsel, Thomas E. Ice, Esq. Ms. Johnson-Seck admitted to being a “robo-signer,” executing sworn documents outside the presence of a notary public, not reading the documents before signing them and not complying with my prior orders in the Maraj and Bethley decisions.

Ms. Johnson-Seck admitted in her Machado deposition testimony that she was not employed by INDYMAC on May 14, 2009, the day she assigned the subject mortgage and note to ONEWEST, even though she stated in the May 14, 2009 assignment that she was a Vice President of INDYMAC. According to her testimony she was employed on May 14, 2010 by assignee ONEWEST.

Then the Schack goes on to say later in the decision…

Then, plaintiff ONEWEST must address the tangled employment situation of “robosigner” Erica A. Johnson-Seck. She admitted in her July 9, 2010 deposition in the Machado case that she never provided me with affidavits of her employment for the prior three years and an explanation of why she wore so-many corporate hats in Maraj and Bethley. Further, in Deutsche Bank v Harris, Ms. Johnson-Seck executed an affidavit of merit as Vice President of Deutsche Bank. If plaintiff renews its motion for an order of reference, the Court must get to the bottom of Ms. Johnson-Seck’s employment status and her “robo-signing.” The Court
reminds plaintiff ONEWEST’s counsel that Ms. Johnson-Seck, at p. 161 of the Machado deposition, volunteered, at lines 4 – 5 to “gladly show up in his court and provide him everything he wants.”

Lastly, if plaintiff ONEWEST’S counsel moves to renew its application for an order of reference, plaintiff’s counsel must comply with the new filing requirement to submit, under penalties of perjury, an affirmation that he has taken reasonable steps, including inquiring of plaintiff ONEWEST, the lender, and reviewing all papers, to verify the accuracy of the submitted documents in support of the instant foreclosure action.

Conclusion

Accordingly, it is

ORDERED, that the request of plaintiff ONEWEST BANK, F.S.B., to withdraw its motion for an order of reference, for the premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), is granted; and it is further

ORDERED, that the instant action, Index Number 15183/09, is dismissed without prejudice; and it is further

ORDERED, that the notice of pendency in the instant action, filed with the Kings County Clerk on June 18, 2009, by plaintiff ONEWEST BANK, F.S.B., to foreclose a mortgage for real property located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), is cancelled; and it is further

ORDERED, that leave is granted to plaintiff, ONEWEST BANK, F.S.B., to renew, within sixty (60) days of this decision and order, its motion for an order of reference for the premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of Kings), provided that plaintiff, ONEWEST BANK, F.S.B., submits to the Court: (1) proof of the grant of authority from the original mortgagee, CAMBRIDGE CAPITAL, LLC, to its nominee, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., to assign the subject mortgage and note to INDYMAC FEDERAL BANK, FSB; and (2) an affidavit by Erica A. Johnson-Seck, Vice President of plaintiff ONEWEST BANK, F.S.B., explaining: her employment history for the past three years; why a conflict of interest does not exist in how she acted as a Vice President of assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Vice President of assignee/ assignor INDYMAC FEDERAL BANK, FSB, and a Vice President of assignee/plaintiff ONEWEST BANK, F.S.B. in this action; why she was a Vice President of both assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and assignee DEUTSCHE BANK in Deutsche Bank v Maraj, 18 Misc 3d 1123 (A) (Sup Ct, Kings County 2008); why she was a Vice President of both assignor MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. and assignee INDYMAC BANK, FSB in Indymac Bank, FSB, v Bethley, 22 Misc 3d 1119 (A) (Sup Ct, Kings County 2009); and, why she executed an affidavit of merit as a Vice President of DEUTSCHE BANK in Deutsche Bank v Harris (Sup Ct, Kings County, Feb. 5, 2008, Index No. 35549/07); and (3) counsel for plaintiff ONEWEST BANK, F.S.B. must comply with the new Court filing requirement, announced by Chief Judge [*17] Jonathan Lippman on October 20, 2010, by submitting an affirmation,using the new standard Court form, pursuant to CPLR Rule 2106 and under the penalties of perjury, that counsel for plaintiff ONEWEST BANK, F.S.B. has personally reviewed plaintiff ONEWEST BANK, F.S.B.’s documents and records in the instant action and counsel for plaintiff ONEWEST BANK, F.S.B. confirms the factual accuracy of plaintiff ONEWEST BANK, F.S.B.’s court filings and the accuracy of the notarizations in plaintiff ONEWEST BANK, F.S.B.’s documents.

This constitutes the Decision and Order of the Court.

Full decision below…

Check it out…

It is fascinating…

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4closureFraud.org


I sure could use some…

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Onewest Bank, F.S.B. v Drayton
[scribd id=40259583 key=key-2rxs38nur4odcvvnfa5 mode=list]

Comments
13 Responses to “Onewest Bank, F.S.B. v Drayton – Brooklyn Judge Arthur Schack is a Local Hero, Decision Casts Light on Fraudulent Mortgage Paperwork”
  1. Eugene Tapia says:

    I do have an assigment from One west bank, where Brian Burnett attest as aasistant Secretary for MERS. they were file by Marshall Watson the attorney for One west bank,. This are the same robo mills that pay Two million dollars to the attorney general of Florida, and they agreed to stop filing fraudlent documents. thanks..

  2. jada says:

    They all committ fraud, from the polititians, to the bankers, to the court system. They got the money to put everything under the table, dust off the dirt, as they call it. Its not in the news, not in the papers, not on the talk shows, because why,, everything has been put a hush order. The big wigs as they call themselves know exactly what went on, they screwed the middleclass and lower class people. What else is new… They lined their pockets and looking to keep pulling the wool over everyones eyes.. Fraud, if the middleclass or lower class people committed, we would be thrown to the wolves, but because it is the big bankers and big wig investors, it is a hush order. How will anyone make money, if this goes public. Thank the lawyers who care and those who are working for these fraud companies, you will see, what goes around comes around. What a shame.. the truth shall prevail. The constitution states, For the people, By the people, Of the people.. i guess those words do not mean anything anymore..

  3. John Fenner, Esq. says:

    I was handed a Sale in eight days.

    Has anyone else come accross Brian Burnett as a signer for OneWest/Indymac affidavits?

    Data would be useful.

    Thank you.

    • JK Mitchell, Esq. says:

      Yes, I have come across Mr. Burnett has a signer for MERS. For an Indymac to OneWest bank assignment.

      • JK Mitchell, Esq. says:

        I found this to be very interesting because Mr. Burnett is an employee of OneWest Bank. He signed an assignment on behalf of MERS as nominee for Indymac. Any information you can provide would be very helpful.

      • Jennifer says:

        Check Orange County, Florida Assignments, we have found 85 Assignments signed by him.

    • John Castleberry says:

      I have a fraudulent assignment attested by Brian Burnett and notarized by Krystal Price….complaint submitted and complaint pending.

  4. J Glenn Lowe says:

    EVERYONE TELL OBAMA TO CRASH THE BIG BANKS NOW!

    Big Wall Street Banksters created the Foreclose Economy because they are that greedy and “Too Big to Care” about the American Dream and basic Contract Law. It was done by design and with treasonous and willful intent strictly for power and profit.

    The Illegal Securitized Mortgages that became the death blow to our economy actually bet on the foreclosure of the homeowner for as much as a 30 times return on investment. This is true financial terrorism. It is actually better for the investor to foreclose than to help someone stay in their home.

    Want to know how easy it is to fix this problem? Crash all of the Big Banks now and fund local banks only that serve to enrich local economies only. Look at the example of the state owned banks in North Dakota, whose population has only a 4% unemployment rate.

    The Fed and their complicit banks must be abolished to save the Republic!

    It’s the only thing we can do. CRASH THE BIG BANKS NOW “Too Big Too Fail” apparently means “Too Big To Succeed” and “Too Big for their own Wallets”

    The sooner the better. Why don’t we ask a 3rd grade math student what he thinks? The real problem is that a politician who could do something about it has his own mathematical challenges about healthy economies. “Bite the hand that feeds him” (by indicting Banksters), or make millions putting children in the streets for power and profit.

    Apparently ALL politicians are going to make the same choice over and over again. They have always sold the souls of your children and their future and they always will. Take the big Banksters out of the picture. Build a local banking system that cares about its community and helps it thrive instead of sucking the life out of it by bribing and fixing the entire system for itself, taking us all of a cliff with it.

    Crash all the big banks now. Create new local Banks only = No more Wall Street Banksters.

    Problem Solved!

    J Glenn Lowe

    Die Banker Die – A Tribute to the Wall Street Banksters that suck the life from all of us and our economy just to get a nice Christmas Bonus – http://www.youtube.com/watch?v=YGFZ1Jj3ui8

  5. bert says:

    Here in California Mers stated they are Nominee for New Century Mortgage in 2008 However new Century Mortgage sold all it loans and then filed BK in 2007. ASC/Wells Fargo stated to the BK court under Penulty of Perjury American Servicing company acquired servicing rights
    to my note and deed of trust 6/30/2006 Lie Lie Lie The house was not completed and my deed of trust was not printed until nov-14-2006. Also 6/30/2006 The house was stix in the builder name. They did not file a notice of completion until oct 2006.2009 Wells Fargo Attorney Foreclosure Mills Pite Duncon LLC in San Diego california submitted a proof of claim to the federal bk court in 2009 a OG copy of a note. The 2009 note was certified and had a bar code and a mers min number. However my original loan number was erased you could see the lines. The 2010 motion for relief from automatic stay The note did not have the Mers Min Number and no bar code not evan certified.We also notice they erase the min number and my OG loan number from my Deed Of Trust. This Is a Clear Case Of Fraud On The Courts.PLEASE CONTACT ME I WOULD LIKE MY
    CASE TO BE IN THE MEDIA ALL MY FACTS IS PUBLIC RECORDS

  6. Stupendous Man - Defender of Liberty - Foe of Tyranny says:

    You can’t slip anything past the ever perceptive Schack.

    I am curious to see where he goes, and other jurists in surrounding courts go, in relation to 1) the robo-signing and over all fraud that is clearly emerging, and 2) the recent general order in New York requiring more of the plaintiff in filing suit.

  7. Paul L. Bishop says:

    Everyone should see Charles Ferguson’s new documentary ” INSIDE JOB” it is a beautifully done piece that easily explains a great deal of this fraudulent mess. It is very clear that the Government agencies can do nothing, we need to unite and rally in large numbers to get their attention. This is how the Viet Nam war ended, it can happen, large numbers are needed. SEE THE MOVIE

    • Briant Humphrey says:

      Jennifer says:
      April 8, 2011 at 6:48 AM

      You have infomation on Brian Burnett is a signer for 85 other companies, Can you please send me a list of the companies he is doing this for. ?? I also have his name on my documents as A MERS AVP. I will present this in court in California to the Bankruptcy Judge to take action on this fraud.

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