Foreclosure Defense Florida

The Key to Shutting Down Foreclosure Mills- Attacking Their Questionable Assignments

The foreclosure mill industry is predicated on producing then introducing in court questionable and probably legally insufficient assignments of mortgages and other documents.   The fiction created by the mills is that these questionably- produced documents are in fact admissable evidence of the ownership of the notes.   As posted earlier, New York courts are increasingly aware of the questions surrounding these documents and are dismissing cases because of this.

We must continue to attack all these documents and stop foreclosures based on these attacks.   Soon we’ll have good decisions that will support shutting foreclosures down based on questionable documents.   Here are three Florida Orders which form the basis for our FULL OUT ASSAULT ON ASSIGNMENT FRAUD.     More to come based on depositions of the Robo Signers.   Until they come, we need to get our judges thinking about whether they can accept the veracity of the assignments of docs in front of them.




FINALLY- here is one of the New York Opinions that lays out the legal reasoning for dismissing cases for problematic assignments!

Decided on April 19,  2010

Supreme Court, Kings County

The Bank of New York,  as trustee for the benefit of the
Certificateholders, CWABS, Inc., Asset  Backed Certificates, Series 2007-2, Plaintiff,


Sameeh  Alderazi, Bank of America, NA, New York City Environmental Control
Board, new  York City Parking Violations bureau, New York City Transit
Adjudication  bureau, and “John Doe No.1” through “john Doe # 10”, the last ten
names being  fictitious and unknown to the plaintiff, the person or parties
intended being  the person or parties, if any, having or claiming an interest
in or lien upon  the mortgaged premises described in the complaint,


Plaintiff Attorney

Frenkel, Lambert, Wiess, Weisman, Gordon, LLP

Linda P.  Manfredi, Esq.

220 West Main Street

Bayshore, New York 11706  (631) 969-3100

Wayne P. Saitta, J.

Plaintiff  submits an application for an order of reference for the
premises located at  639 East 91st Street, Brooklyn, New York (Block 4751, Lot 31,
County of  Kings).

Upon reading the Affirmation of Linda P. Manfredi, Esq.,  counsel for the
Plaintiff, dated November 20, 2008, together with Plaintiff’s  Memorandum of
Law, dated November 19th, 2008, together with the proposed Ex  Parte Order
Appointing a Referee to Compute, and all exhibits annexed thereto,  the
application is denied without prejudice, with leave to renew upon  providing the
Court with proof of the grant of authority from the original  mortgagee to
MERS specifically to act in its interest as related to the  secured loan
which is the subject of this action.

Plaintiff seeks  summary judgment to foreclose upon the property located at
639 East 91st  Street, (Block 4751, Lot 31), in Kings County.

In order to establish  prima facie entitlement to summary judgment in a
foreclosure action, a  plaintiff must submit the mortgage and unpaid note,
along with evidence of  default. Capstone Business Credit, LLC v. Imperial
Family Realty, LLC, 70 AD3d  882
<> ,  895 NYS2d 199 (2nd Dept 2010). The Second
Department has also required a  showing that the mortgage was valid. Washington Mut.
Bank, FA v. Peak Health  Club, Inc., 48 AD3d 793
<> ,  853 NYS2d 112 (2nd

In this case, Defendant Sameeh Alderazi  borrowed $408,000.00 from
“America’s Wholesale Lender” on January 25, 2007.  The mortgage was recorded in the
Office of the City Register, New York City  Department of Finance on
February 14, 2007. MERS was referred to in the  mortgage as nominee of the
mortgagee, America’s Wholesale Lender, for the  purpose of recording the mortgage.

MERS purported to assign the  mortgage to Plaintiff BANK OF NEW YORK on
July 23, 2008. The assignment was  recorded on September 19, 2008. The
assignment was executed by “Keri Selman,  Assistant Vice President of MERS, as
“authorized agent pursuant to Board of  Resolutions and/or appointment”. However,
no resolution nor other proof of  authority was recorded with the
assignment or submitted to the Court.

A party cannot foreclose on a mortgage without having title, giving it
standing to bring the action. (See Kluge v. Fugazy, 145 AD2d 537, 538 (2nd
Dept 1988 ), holding that a “foreclosure of a mortgage may not be brought by
one who has no title to it and absent transfer of the debt, the assignment of
the mortgage is a nullity”. Katz v. East-Ville Realty Co., 249 AD2d 243
(1st  Dept 1998), holding that “[p]laintiff’s attempt to foreclose upon a
mortgage  in which he had no legal or equitable interest was without foundation
in law  or fact”.

“To have a proper assignment of a mortgage by an authorized  agent, a power
of attorney is necessary to demonstrate how the agent is vested  with the
authority to assign the mortgage.” [*2]HSBC BANK USA, NA v. Yeasmin,  19 Misc
3d 1127(A), 866 NYS2d 92 (Table) N.Y.Sup.,2008. “No special form or
language is necessary to effect an assignment as long as the language shows  the
intention of the owner of a right to transfer it”. Emphasis added, Id.,
citing Tawil v. Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55  (1st
Dept 1996); Suraleb, Inc. v. International Trade Club, Inc., 13 AD3d 612
<>   (2nd
Dept 2004).

The claim in this case is that the mortgage was  assigned by MERS, as the
nominee, to the Plaintiff. However Plaintiff submits  no evidence that
America’s Wholesale Lender authorized MERS to make the  assignment. MERS submits
only its own statement that it is the nominee for  America’s Wholesale
Lender, and that it has authority to effect an assignment  on America’s Wholesale L
ender’s behalf.

The mortgage states that MERS  is solely a nominee. The Plaintiff, in its
Memorandum of Law, admits that MERS  is solely a nominee, acting in an
administrative capacity.

In its  Memoranda, Plaintiff quotes the Court in Schuh Trading Co., v.
Commisioner of  Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), which
defined a nominee as  follows:

The word nominee ordinarily indicates one designated to act  for another as
his representative in a rather limited sense. It is used  sometimes to
signify an agent or trustee. It has no connotation, however,  other than that of
acting for another, or as the grantee of another.. Id.  Emphasis added.

Black’s Law Dictionary defines a nominee as “[a]  person designated to act
in place of another, usually in a very limited way”.  Agency is a fiduciary
relationship which results from the manifestation of  consent by one person
to another that the other shall act on his behalf and  subject to his
control, and consent by the other so to act. Hatton v. Quad  Realty Corp., 100
AD2d 609, 473 NYS2d 827, (2nd Dept 1984). “[A]n agent  constituted for a
particular purpose, and under a limited and circumscribed  power, cannot bind his
principal by an act beyond his authority.” Andrews v.  Kneeland, 6 Cow. 354
N.Y.Sup. 1826.

MERS, as nominee, is an agent of  the principal, for limited purposes, and
has only those powers which are  conferred to it and authorized by its

In the mortgage in  this case, MERS claims, as nominee, that it was granted
the right “(A) to  exercise any or all of those rights, including, but not
limited to the right  to foreclose and sell the Property, and (B) to take
any action required of the  Lender including, but not limited to, releasing
and canceling this Security  Instrument.” However, this language quoted by
MERS is found in the mortgage  under the section “BORROWER’S TRANSFER TO LENDER
OF RIGHTS IN THE PROPERTY”  and therefore is facially an acknowledgment by
the borrower. The fact that the  borrower acknowledged and consented to MERS
acting as nominee of the lender  has no bearing on what specific powers and
authority the lender granted MERS.  The problem is not whether the borrower
can object to the assignees’ standing,  but whether the original lender,
who is not before the Court, actually  transferred its rights to the
Plaintiff. To allow a purported assignee to  foreclosure in the absence of some proof
that the original lender authorized  the assignment would throw into doubt
the validity of title of subsequent  purchasers, should the original lender
challenge the assignment at some future  date.

Furthermore, even accepting MERS’ position that the lender  acknowledges
MERS’ authority exercise any or all of the lenders’ rights under  the
mortgage, the mortgage does not convey the specific right to assign the  mortgage.
The only specific rights enumerated in the [*3]mortgage is the right  to
foreclose and sell the Property. The general language “to take any action
required of the Lender including, but not limited to, releasing and canceling
this Security Instrument” is not sufficient to give the nominee authority to
alienate or assign a mortgage without getting the mortgagee’s explicit
authority for the particular assignment. Alienating a mortgage absent specific
authorization is not an administrative act.

Plaintiff submitted no  other documents which purport to authorize MERS to
assign or otherwise convey  the right of the mortgagor to assign the
mortgage to another party.

A  party who claims to be the agent of another bears the burden of proving
the  agency relationship by a preponderance of the evidence, Lippincot v.
East  River Mill & Lumber Co., 79 Misc. 559, 141 NYS 220 (1913), and “[t]he
declarations of an alleged agent may not be shown for the purpose of proving
the fact of agency”. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing
Corp., 122 AD2d 25, 504 NYS2d 192 (2nd Dept 1986). See also Siegel v. Kentucky
Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 (2nd Dept
1985), Moore v. Leaseway Transp. Corp., 65 AD2d 697, 409 NYS2d 746 (1st Dept
1978). “The acts of a person assuming to be the representative of another
are  not competent to prove the agency in the absence of evidence tending to
show  the principal’s knowledge of such acts or assent to them”. (2 NY Jur
2d,  Agency and Independent Contractors, 26).

Plaintiff has submitted no  evidence to demonstrate that the original
lender, the mortgagee America’s  Wholesale Lender, authorized MERS to assign the
secured debt to Plaintiff.

Thus, Plaintiff has not made out a prima facie case that it is  entitled to
foreclose on the mortgage in question.WHEREFORE, it is ORDERED  that the
Plaintiff’s application for an Order appointing referee to compute  amounts
due to the Plaintiff is denied with leave to renew upon proof of  authority.

This shall constitute the decision and order of this Court.


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