IN THE UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
IN THE MATTER OF
CARLOS MOTA, CASE NO: 10-13989(shl)
WELLS FARGO BANK, NA, and
HSBC BANK USA NATIONAL
ASSOCIATION AS TRUSTEE FOR
WELLS FARGO ASSET SECURITIES
COMPLAINT OF THE PLAINTIFF PURSUANT TO 11 U.S.C. SECTION 506(A) AND BANKRUPTCY
RULE 3012 TO DETERMINE THE VALUE OF SECURITY AND CREDITOR’S ALLOWED SECURED
CLAIMAND COMPLAINT FOR DAMAGES, SANCTIONS AND INJUNCTIVE RELIEF
Excerpts from the Complaint:
1.3 This Complaint focuses on the fraud perpetrated on the Court and the Plaintiff by the Defendants filing a false proof of claim together with fraudulent documents in support thereof and the Defendants’ fraudulent misrepresentation of the owner of the Plaintiff’ Mortgage Loan and the identity of the real party in interest.
1.4 This Complaint focuses on the fraud perpetrated by the Defendant Wells Fargo by way of its fabrication of documents and unauthorized rubber stamp endorsements.
3.9 On or about July 24, 2010 the Plaintiff filed a petition for Chapter 13 Bankruptcy in the Southern District of New York, Manhattan Division and was assigned case number 10-13989 13-01553-alg (hereinafter the Plaintiff’s Bankruptcy Case).
3.10 On or about July 19, 2010, Proof of Claim Number 3-1 was filed in the Plaintiff’s bankruptcy case identifying the Defendant HSBC as the creditor and further identifying Defendant Wells Fargo, as the party to contact for notice purposes. (Hereinafter the “Proof of Claim 3-1” or “Claim Number 3-1”)
3.11 The Plaintiff believe and therefore allege that at the time of filing the proof of claim 3-1 the law firm of Steven J. Baum, P.C. represented both the Defendant Wells Fargo and Defendant HSBC.
3.12 The Proof of Claim 3-1 was signed by Michelle Marans, Esq. of the law firm of Steven J. Baum, P.C. as attorney for the named purported Creditor, Defendant HSBC.
3.13 Attached to Proof of Claim 3-1 was a copy of a promissory note as between Plaintiff Carlos Mota and MLD bearing a specific endorsement payable to “Wells Fargo Bank, NA” and not the purported creditor, HSBC.
3.14 Proof if Claim 3-1 Further attached a copy of a mortgage as between Plaintiff Carlos Mota and MLD.
3.15 Proof of Claim 3-1 further attached a post-petition Assignment of Mortgage signed by Mr. John Kennerty (“Kennerty”) as a MERS officer acting as “nominee” for “MLD Mortgage, Inc.” on August 13, 2010 which purports to assign both the promissory Note and Mortgage from MLD to the Defendant HSBC.
3.16 Mr. Kennerty does not identify himself as a Wells Fargo employee on the Assignment of Mortgage.
3.17 As set forth more completely herein below, the Plaintiff avers that the Kennerty Assignment is a bogus assignment manufactured by Wells Fargo for the purpose of enticing reliance by the court and the parties in interest.
3.18 Kennerty lacked any personal knowledge regarding the Plaintiff’s mortgage loan and further lacked any personal knowledge to determine that MLD Mortgage, Inc., the entity for which Kennerty was acting as nominee, had any ownership or control over the debtor’s mortgage loan or had the right to transfer the loan.
3.24 On or about December 8, 2010 the Plaintiff filed a Motion Objecting to Claim 3-1 with this court which appears as Document Number 18 on the court’s ECF system. The Objection to Proof of Claim 3-1 is based in part on the questionable authenticity, origin, purpose and effectiveness of the assignment of mortgage.
3.25 Based upon information and belief, the Plaintiff aver that John Kennerty was actually employed by Defendant Wells Fargo and that the Assignment is not valid, it is a false and/or otherwise fraudulent document.
3.26 The Assignment of Mortgage was notarized by Carolyn M. Evans, Notary Public in York County, South Carolina.
3.27 Based upon information and belief, the Plaintiff avers that John Kennerty did not execute the Assignment of Mortgage in the presence of the Notary, Carolyn Evans.
3.28 Based upon information and belief, at the time of the assignment Carolyn Evans was employed by Defendant Wells Fargo and that the notary acknowledgement as well as the Assignment of Mortgage, is not valid, it is a false and/or otherwise fraudulent notarization and fraudulent document.
3.29 The Plaintiff aver that the Assignment presented in this case at the direction of one or more of the Defendants and/or at the request and direction of agents and/or attorneys for Defendant Wells Fargo and/or the Defendant HSBC was manufactured and/or fabricated by the Defendant Wells Fargo at the direction of and with the knowledge and consent of the Defendant HSBC.
3.35 The Note affixed to the proof of claim as per FRBP 3001(c) and FRBP 9011 is required to be a true copy of the original. The Note attached to the proof of claim in this case is not endorsed to the named Creditor, the Defendant HSBC.
3.36 The Defendants omitted to advise the court, the Plaintiff, the Chapter 13 Trustee and other creditors who rely on the integrity of the documents filed by Defendant Wells Fargo and Defendant HSBC and their attorneys, in the Plaintiff’s bankruptcy case, that the purported Assignment of Mortgage submitted in support of the Proof of Claim is a bogus document.
3.37 On or about January 21, 2011 Attorney Natalie Grigg of the law firm of Steven J Baum attempted to amend Proof f Claim 3-1 by filing Claim 3-2 which included a copy of the Note bearing an additional endorsement in blank which did not exist on the promissory note at the time the proof if claim 3-1 was filed.
3.38 Based upon testimony of Wells Fargo’s own employee obtained during the course of litigating the Objection to Claim, Wells Fargo maintains an “endorsement team” to conveniently indorse promissory notes using robo signers and rubber stamp endorsements.
6.3 The Defendants knowingly made a false misrepresentation to the court;
To Wit, the Defendants knowingly fabricated an assignment of mortgage to present to the court and such act of presenting a false fabricated document was committed for the purpose of enticing the reliance of the Court the Chapter 13 Trustee, the Plaintiff and the other creditors in the bankruptcy case;
6.4 The Defendants knowingly made a false misrepresentation to the court;
To Wit, the Defendants knowingly claimed unsubstantiated monies alleged to be owed by the Plaintiff and presented the same to the court. Such act was committed for the purpose of enticing the reliance of the Court, the Chapter 13 Trustee, the Plaintiff and the other creditors in the bankruptcy case and for the financial gain of the Defendants;
6.5 Defendants omitted material, crucial information and facts from the court regarding the Note and Assignment of Mortgage at issue;
To Wit, the Defendants knowingly submitted a Note to the Court which is neither indorsed to the Claim and Defendant HSBC nor is it validly assigned to the Defendant HSBC
6.6 The Plaintiff has been damaged by the actions and omissions of the named Creditor, Defendant HSBC and the Defendant Wells Fargo;
To Wit, in that he has been and continues to be forced to expend his time and expenses toward the defense of this contested matter to protect their rights.
6.7 All parties of interest in the Plaintiff bankruptcy case are harmed by the actions and omissions of the named Creditor, Defendant HSBC and the Defendant Wells Fargo;
To Wit, in that the integrity of the judicial process relied upon has been compromised by the fraudulent acts, fraudulent documents and omissions of the Defendants.
Copy of The Fraudclosure Manual here…
Copy of The Full Complaint Below…