HSBC Bank USA, N.A. v Sene | Two Seperate Notes – “A fraud has been committed upon this Court”

HSBC Bank USA, N.A. as Trustee of behalf of ACE Securities Corp. Home Equity Loan Trust And for the Registered Holders of Ace Securities Corp. Home Equity Loan Trust, Series 2007-HE4, Asset Backed Pass-Through Certificates, Plaintiff,

against

Marie Sene, et al, Defendants.

18600/09

 

Plaintiff was represented by Alissa L. Wilson, Esq., Shapiro, DiCaro & Barak, LLC, 250 Mile Crossing Blvd., Rochester, NY 14624. Defendant was represented by Yolande I. Nicholson, PC, 26 Court St., Brooklyn, NY 11242.

 

Herbert Kramer, J.

The following papers have been read on this motion:

Notice of Motion/Order to Show Cause/Papers Numbered

Petition/Cross Motion and

Affidavits (Affirmations) Annexed _____________________________

Opposing Affidavits (Affirmations) _______ ______________________

Reply Affidavits (Affirmations)______________________________

_______________(Affirmation)______________________________

Other Papers______________________________

Good faith is absent when two versions of the assignment of the note are presented to the Court. Parties are required to come into the court with clean hands despite having instituted the action prior to the effective date of CPLR §3408.[FN1] [*2]

This matter was referred to this Court for a bad faith hearing under the appropriate statutory scheme. See CPLR §3408.

The instant matter illustrated the wild west mentality that was so prevalent in the early part of this past decade, which allowed for practically anyone breathing to obtain a mortgage by signing their name.[FN2] It appears that the process of securitization of mortgages led to major improprieties, this case being a prime example.

However, all of that pales in significance to what follows. During the bad faith hearing, two separate notes with attendant assignments were put into evidence by the plaintiff.

The first was in Exhibit “C.” of plaintiff’s “1.” which is the summons and complaint filed on July 23, 2009.The note itself was endorsed by Marie Sene, only. In addition, there is an allonge, dated July 15, 2009, with the “effective date” of April 30, 2007, signed by Kevin M. Jackson.[FN3]

The allonge is assigned to “HSBC Bank USA, N.A. as Trustee on behalf of Ace Securities Corp. Home Equity Loan Trust and for the Registered Holders of Ace Securities Corp., Home Equity Loan Trust, Series 2007-HE4, asset backed Pass-Through Certificates, without recourse, representation or warranty express or implied…”

The second note was introduced as Exhibit “E.” of plaintiff’s “1.” labeled as the note and assignment. That note included an endorsement from Marjorie Jorgensen, the Collateral Control Manager or ResMae Mortgage Corporation in addition to Ms. Sene’s signature. There was also a purported allonge which was not permitted into evidence. However, the existence of an allonge does not explain the apparent disparity between the two assignments. Both cannot be accurate.[FN4]

This Court emphatically now joins the judicial chorus who have been wary of the paperwork supplied by plaintiffs and their representatives. There is ample reason for Chief Judge’s requirement for an attorney affirmation in residential foreclosure cases. As stated by [*3]Chief Judge Jonathan Lippman,”we cannot allow the courts in New York State to stand idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs-such as a family home-during this period of economic crisis.”[FN5]

Furthermore, the form affidavit which is now required by Administrative Order 548/10 states that “numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities…”. See also, HSBC Bank v. Taher, 932 N.Y.S2d 760 [2011].[FN6]

It is clear in this case, without further hearings, that a fraud has been committed upon this Court. Thus, the only remedy that can be utilized by this Court is to stay these proceedings and any mortgage foreclosure until this matter is cleared up to the satisfaction of this Court.

Further, in connection with this matter, the litigants were directed to submit memorandums of law on issues that arose during the hearing. Plaintiff submitted an affirmation with exhibits. Therein plaintiff attempts to establish Ocwen’s authority to sign as “attorney in fact” for ResMae corporation.

Allegedly, Ocwen’s authority arises from a limited power of attorney attached as exhibit “H.” to Plaintiff’s “1.” The power of attorney between ResMae Mortgage Corporation (the Servicer) and Ocwen, grants the “express power and authority to, for any mortgage loan transferred by the Servicer to Ocwen under that certain Pooling and Servicing Agreement between the Servicer and Deutsche Bank National Trust Company dated March 1, 2006.”

Oddly, the pooling and servicing agreement submitted as plaintiff’s Exhibit “2.” allegedly evidencing Ocwen’s power of attorney is dated April 1, 2007 and is between Ace Securities Corp., Ocwen Loan Servicing, LLC, GMAC Mortgage, LLC, Wells Fargo Bank, National Association, HSBC Bank USA, NA. These submissions fail to establish that Ocwen was granted authority as ResMae’s attorney-in-fact. Regardless, the defect in the assignments remain.

This Court is further reporting the matter to the District Attorney, Kings County, the Attorney General of the State of New York and the U.S. Attorney for the Eastern District of New York. Copies of the two notes are annexed hereto and made a part hereof.

This constitutes the decision and order of the Court.

J.S.C.

Footnotes

 

 

Footnote 1:The plaintiff asserts that the language of “good faith” contained in CPLR § 3408 does not apply as this action was commenced prior to the February 13, 2010 amendment. Plaintiff does not argue that the remainder of CPLR 3408 is applicable, which directs settlement conferences in residential foreclosure matters. This Court disagrees with plaintiff that its obligation to act in good faith throughout the litigation is dependent upon a statutory mandate. Honeywell International v. National Avionics Sys. Corp., 343 F.Supp.2d 272 [2004]. “A mortgagee who is invoking the aid of foreclosure action, may be required, as condition precedent to relief, to do equity.” Farmers’ & Mechanics’Sav. Bank of City of Lockport v. Eagle Bldg. Co. et al., 271 N.Y.S. 306 [1934]. This Court has purposefully cited a decision from 1934 due to the discussion found therein as to the devastating economic conditions at that time, and unfortunately finds many parallels to the current economic climate.

 

Footnote 2: This court was prepared to update its decision regarding reverse redlining and whether the rebuttable presumption followed with the assignment of the note and mortgage. See, M & T Mortgage v. Foy, 858 NYS2d 567 [2008]. In this Court’s view, it is unnecessary to delve into the other legal arguments when faced with the conflicting assignments.

 

Footnote 3:As manager for Resmae Mortgage Corporation by its attorney-in-fact Ocwen Loan Servicing, LLC

 

Footnote 4:It should also be noted that ResMae filed for bankruptcy protection in 2007.

 

Footnote 5:In regards to the issuance of Administrative Order 548/10

 

Footnote 6:The decision outlines the numerous and widespread irregularities specific to HSBC Bank USA, NA, the plaintiff in this case.

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4closureFraud.org

Comments
7 Responses to “HSBC Bank USA, N.A. v Sene | Two Seperate Notes – “A fraud has been committed upon this Court””
  1. linda mckoyl says:

    L.G. says Thank God everybody do not break laws of the land to keep their jobs , for the love of money, to keep vital information covered up, especially all sin will be found out ,it will be brought to the light out of the darkness no more cheating in court, no more ignoring the issues at hand , no more closing of doors, no more UNGODLY WRONGFUL FOUR 4 CLOSURES mortgage fraud real estate rip offs no more wrongful evictions , insurance fraud, mail fraud, no more stealing, cheating, lying, harming, hurting, destroying, and killing others dreams and reputation , and the list goes on until JUDGE JESUS,REAL ESTATE JESUS, MORTGAGE JESUS, HOMES OWNER JESUS LANDS OWNER JESUS, LOANING SERVICING COMPAINES JESUS, BANKER JESUS IN SHORT JESUS AS ALL GODS CHILDREN SAYS NO MORE. I TRUELY DO THANK THIS EARTHLY JUDGE THAT HE WERE CARING ENOUGH TO SEE THAT JUSTICE BE DONE BY ALLOWING HIMSELF TO BE — USED FOR GODS GLORY AS IT IS AN UNGODLY CRYING SHAME WHEN SOME OF GODS EARTHLY CHILDREN BREAK SO VERY MANY LAWS OF THE LAND BUT DO NOT SEE THAT JUSTICE BE DONE TO PLEASE GODS ONLY BEGOTTEN SON,FRAUD CAN NOT BE EARTHLY DISMISSED BY MANY JUST BECA– USE IT IS DONE BY SO VERY MANY, SIMPLY BECA– USE ACCORDING TO GODS WORD FRAUD NO ACQUITTAL MICAH 6 AND 11 AND GODS WORD NEVER COMES BACK VOID. WHATEVER HAPPENED TO LAW BEING FOR LAW BREAKERS? 1 TIMOTHY 1 AND 9 WHATEVER TO GOOD JUST LAWS? NEHEMIAH 9 AND 13 WHATEVER HAPPENED TO THE LAW POINTING TO CHRIST? GALATIANS 3 AND 23 -25 HEBREWS 1O AND 1 WHATEVER HAPPENED TO GUARDED BY THE LAW? GALATAINS 3 AND 23 WHATEVER HAPPENED TLO USING THE LAW LAWFULLY? 1 TIMOTHY 1 AND 8 WHATEVER HAPPENED TO ONE BEING GODLY ABLE WILLING AND READY TO DEFEND ONE SELF? ACTS 26 AND 1 WHATEVER HAPPENED TO THE LORD OUR SHEPHERD SAYING HE WOULD PUT A ROOF OVER OUR HEADS?ENCLOSING WHATEVER IS HAPPENIG TO GODS TEN COMMANDMENTS ? TO GOD STILL BEING IN CONTROL AND IN CHARGE? LAST BUT CERTAINLY NOT LEAST WHATEVER HAPPENED TO ALL VICTIMS WHO WERE AND ARE STILL BEING UNGODLY WRONGFULLY FORECLOSED ON STANDING IN AGREEMENT WITH ONE ANOTHER TO SEND MANY A FLIGHT? PLEASE DO NOT CONTRACT THE THREE LITTLE PIGS TO BUILD YOUR GODLY HOME SWEET HOME AS THE TRY TO BE AND WANT TO BECOME BIG BAD WOLF SATAN WILL TRY TO UNGODLY HUFF AND PUFF AND BLOW IT DOWN HOWEVER THIS WILL NEVER HAPPENED IF IT IS BUILT ON GODLY GOOD SOLID GROUND BY NON OTHER THEN THE FIRST CARPENTAR TO EVEN EXIST ? HIS NAME IS JESUS THE CHRIST JUST PUT HIM FIRST IN YOUR LIFE AND YOU WILL BE SO VERY GLAD THAT YOU DID . I KNOW THAT I AM THANKS FOR ALLOWING ME TO VOICE MY GODLY CHOICE.

  2. Lynne says:

    Thank you for this – dealing with these same shady characters…although no NC attorney or judge will touch them. Good to know SOMEONE has a conscience.

  3. Ali says:

    What I have found to be helpful as a pro se is to buy index cards and write down the laws that pertain to your case, goolgle them and keep them in order of importance to your case, whether you are represented by counsil or not, mant atty’s do not even know htese laws exist or are ignoring them and also know your appeal rights and let the judge know that, no judge wants their rulings to be overturned and are depending on our ignorance of the law. Don’t let anyone intimidate you. Ask if the preceding might be a conflict of interest for the judge. Let them know you mean buisiness!!!!!

  4. Ali says:

    Just remember that these orders if not presedent setting can be used in your cout filings. The judiciary should be ashamed at it ownslf for not following the laws already on the books and new ones do not pertain to laws already broken. Go after them with all you have, all courts everywhere have an obligation to help pro se, pro per litigants, that is also the law.

  5. Beth A> says:

    God bless the judges who get it.
    Sadly they are few and far between.

    HSCB and the likes just think they can do whatever they want….and for the most part — that has been true.

  6. Fury says:

    thank heavens this judge gets the fraud and is willing to do something about it!

  7. j Alonzo says:

    Wow this happens every day yet, we all know they are not going to jack to them. i hope they do and set an example for all the other plaintiffs attorneys to watch out.

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