mg v, wf docxllc lps fc mill atty desc

8/3/2019 Mg v, Wf Docxllc Lps Fc Mill Atty Desc

1/8

Page 1 of 5

At a Special Term of the Supreme Courtof the State of New York, hetd in andj for the Sixth Judicial District, at theDetaware County Courthouse, DethiNew York on the 16th day of February,2010.

PRESENT: HONORABLE MOLLY REYNOLDS FITZGEMLDJUSTICE PRESIDING

STATE OF NEW YORKSUPREME COURT : COUNTY OF DELAWARE

Wetts Fargo Bank, N. A., as Trustee for CitigroupMortgage Loan Trust, Series 2005-OPT4, AssetBacked Pass-Through Certificates,

Plaintiff ,-against-Maria Garcia; Luis Zafra; and "JOHN DOE #1"through "JOHN DOE #10" the last ten names beingfictitious and unknown to the Ptaintiff, the personor parties intended being the person or parties, ifany, having or ctaiming an interest in or lien uponthe mortgaged premises described in the comptaint,

Delaware CountY -Clerk".1';iT,"#'t"S':!3fff'tlllllllltllllufilllllllltllllt

DECISION AND ORDERlndex No.: 2009-1536RJI No.: 7009-0436

Defendants.

Ptaintiff commenced this mortgage forectosure action by fil.ing a Notice ofPendency, Summons and Complaint in the Detaware County Clerk's Office on November4,7009, The defendants did not fite an Answer, instead, defendants' moved to dismissthe Comptaint for various reasons inctuding;

(a) Faiture to submit an Affidavit of Facts or a Verified Complaint;


2/8

l'g

At a Speciat Term of the Supreme Courtof the State of New York, hetd in andfor the Sixth JudiciaI District, at theDelaware County Courthouse, DethiNew York on the 16th day of February,2010.

PRESENT: HONOMBLE MOLLY REYNOLDS FITZGEMLDJUSTICE PRESIDING

STATE OF NEW YORKSUPREME COURT : COUNTY OF DELAWARE

Delaware CountY -Clerk"rffi,A.,t#':ff'l,'I ltllll lttltlllttllllllllllllttllll

Wetts Fargo Bank, N. A,, as Trustee for CitigroupMortgage Loan Trust, Series 2005-OPT4, AssetBacked Pass-Through Certificates, DECISION AND ORDER

Plaintiff, lndex No.: 2009-1536RJI No.: 2009-0436-against-

Maria Garcia; Luis Zafra; and "JOHN DOE #1"through "JOHN DOE #10" the last ten names beingfictitious and unknown to the Ptaintiff, the personor parties intended being the person or parties, ifany, having or ctaiming an interest in or lien uponthe mortgaged premises described in the compta'int,

Defendants.

Ptaintiff commenced this mortgage forectosure action by fiting a Notice ofPendency, Summons and Complaint in the Delaware County Cterk's Office on November4,2009, The defendants did not fite an Answer, instead, defendants' moved to dismissthe Complaint for various reasons including:

(a) Faiture to submit an Affidavit of Facts or a Verifjed Comptaint;

Page 1 of 6


3/8

Faiture to submit proper evidentiary proof of the assignment of themortgage;

(c) The ptaintiff does not have standing to commence the forectosure action;(d) Failure to compty with RPApL 51320;(e) The defendant, Luis Zafra, is not a necessary defendant;(f) The defendant, Maria Garcia,s, signature is a forgery;(g) Truth in Lending Act (TILA) violations;(h) Faiture to provide a 90 Day Notice; and(l) Faiture to assert whether the mortgage is a high cost or a sub-prime loan.Ptaintiff opposes the motion to dismiss in its entirety.A motion to dismiss is governed by CPLR S3211 , The statute contains an extremely

comprehensive list of grounds to dismiss the Comptaint. Despite the almost exhaustfvetist of grounds, the defendants' attorney refers to irretevant, immateriat andinappropriate attegations which woutd be better suited to be raised as affirmativedefenses in an Answer.

Att but one of the grounds tisted above by the defendant, have no basis to dismissthe Comptaint and serve no purpose. ln fact, the smattering oi the irrelevant attegationstends to conceal and obfuscate the one legitimate ground for dismissal,.

Likewise, defendants' insutts towards the Court, ptaintiff's attorney and ptaintiff 'stocal counset are unwarranted and are counterproductive in the current mortgageforectosure atmosphere, which invotve mortgage forectosure setttement conferences and

(b)

Page 2 of 6


4/8

negotiated setttements of forectosure actions.This Court wit[ address solely the ground of whether the ptaintiff has legal

capacity or standing to commence the foreclosure action.To estabtish a prima facie case in a mortgage forectosure action, the pl,aintiff

must estabtish the existence of the mortgage, the mortgage note, ownership of themortgage and the defendant's defautt in payment Deutsche Bank Nat. Trust Co. vlAcRae,27 Misc3d 247 (7010). These necessary etements shoutd be set forth in thecomptaint. This Court obtained a copy of the Comptaint (and attached exhibits) fited inthe Detaware County Clerk's Office. The Comptaint and the exhibits estabtish a primafacie case. The Complaint clearly sets forth that the ptaintiff is the owner and hotderof the subject mortgage and note. The ptaintiff explained that the mortgage and notewere assigned to the plaintiff and that the defendant has defautted in payment. Theplaintiff provides copies of the note, mortgage and assignment of mortgage. Theassignment of mortgage ctearty sets forth that the mortgage, note and att obtigationsretated to the note are being assigned to the ptaintiff .

At first blush, it would appear that the ptaintiff has standing to commence theforectosure action and that the motion shoutd be denied.

It is not untit reading the Reply Affirmation to Plaintiff's Opposition toDefendant's Amended Motion to Dismiss (which was submitted subsequent to the motionto dismiss &. appropriate leave or retief dated November 79,2009; the motion to dismiss,quiet titte & attorneys fees dated January 19,2010; the affirmation in opposition to

Page 3 of 6


5/8

defendants motion to dismiss dated January 13, 2010; and the affirmation in oppositionto defendants supptemental motion to dismiss dated January 28,2010) that this Courtbecomes concerned that the ptaintiff may not have standing. The concern is raised byLynn E, Szymoniak, Esg.'s Affidavit, a purported expert witness invotving fraud, whoasserts that Linda Green (tisted as the Vice President of American Home MortgageServicing, lnc., as Successor in interest to Option One Mortgage Corporation) may not bean officer of the corporate ptaintiff and may not have executed the assignment. lnsupport of Attorney Szymoniak's Affidavit are various purported signatures of LindaGreen. A[[ signatures appear to be in a different penmanship. Attorney Szymoniakfurther atteges that Ms. Green is listed as hotding various capacities in different banksand mortgage related entities.

lf in fact this is a forged assignment, the assignment is invalid, nutl and void andthe ptaintiff tacks standing to commence the forectosure action. The recording of theassignment of mortgage provides no protection to the ptaintiff . Stointon v Jacob Kaiserlmprovement Co., 161 AD 603 (1914).

Furthermore, ptaintiff does not provide a copy of a corporate resolution, anaffidavit or other proof that Ms. Green is an officer with authority to bind thecorporation.

This Court does not sympathize, assist nor tegitimize financiat institutions such asWelts Fargo Bank which caused, or at least contributed to, the forectosure crisis grippingthis Nation. Therefore, the Comptaint is disrnissed, without prejudice. lf the ptaintiff

Page 4 of 6


6/8

LIMITED POWER OX' ATTORNEY

Wells Fargo Bank, N.A., successor by merger to Wells Fargo Bank Minuesota, N.A., f/Va Nonvest BankMinuesota, N.A., solely in its capacity as trustee (the "Trustee") of the Tnrsts (as defined belorv) herebyconstitutes and appoints American Horne Mortgage Servicing hc,, solely in its oapacity as masterservicer or selicer (the "Servicer"') of tlte Tlusts, and any other duly appointed officer thereof, rvith fullpower of substitutioll, as its true and larvful attolney-in-fact rvith power and authority in the place andstead of the Trustee and in the name of the Trusteo or iu its orvn name fi'om tirne to tiure in the Selvicer'sdiscretion, for the purpose of servicing rnortgage loans, to take any and all appropriate action and toexecute any and all doouments and instruments which may be necessary ol desirzble to accornplish thepurposes of sewioing moftgage loans, and rvithout limiting the geuerality of the foregoing, the Trusteehereby gives the Seryicer the power and right, on behalf of the Trusts, rvithout assent by the Trustee, fullauthority and porver to execute and deliver on behalf of the Trustee any and all of the follorvinginstruments, to the extent consistent rvith the terms and conditions of the Pooling and ServicingAgreements attached hereto as Exhibit A (the "Trusts") :

(l) all docurnents rvith respect to residential rnortgage loans serviced for the Trustee by theServicer rvhich are customarily and reasouably necessary arrd appropriate to the satisfaction,cancellation, or partial or full release ofmortgages, deeds oftrust or deeds to securc debt uponpayrnent and discharge of all sums secured thereby; (li) instruments appoirrting one or molesubstitute trustees to act in place of the trustees narned in deeds of trust; (iii) affidavits of debt,notice ofdefaull declaration ofdefault, notices offoreclosure, and all such contracts,agreements, deeds, and instruments as arc appropriate to effeot auy sale, transfer or disposition of. real property acquired thlough foreclosure or otherrvise; (iv) court and estate related docunrentsfor the purpose ofseeking the appointment ofa fiduciary for the estate ofan1,deceasedborrower'/defendant; and (v) all other cornparable instruments.

This Limited Porver of Attorney is effective as of the date belorv and shall rernain in frrll force and effectuntil revoked in rvriting by the Trustee or the tennination of the Agreemert or the termination of theSewicer, rvhichever is ealliel.Dated: May 6, 2011 Wells Fargo Bank, N.A.,

as Trustee of the Tlustsv-vwvv vt vt\ ,lBy: Elisabeth A. Brervster

Hurnphries


7/8

SUPREME COURT OF TEIE STATE OF NE\vCOUNTY OF DELAWAREMana Garcia Plaintiff,

-against-

Wells Fargo N.A.LPS dAla DocX, LLCShapiro, DiCaro, [g Barack, LLP

YoRK t.JiY?l?^P"3HllY,?l?i-0G11012011 '1:50:39 PM

i illilil l!il lill llill lllll lllll llll llll

VERIFIED AMENDEDCOMPLAINTrNDEX# 2011518

PRELIMINARY STATEMENTl) Pernicious schemes described herein, targeted the vulnerable members of our society

causing these ro wrongfully either:a. lose their homes; alternativelyb. enter modification agreements clouding and causing these unmarketable;title; or

c. When homeowner requested proof of ownership to engage in honestsettlement, were injured by the use of abuse of process to effectuate awrongful settlement,t by a pretender lender.

2) Every time a foreclosure judgment is granted based on flawed or forged documents ourcourt system is weakened, our entire system of justice is desecrated and the foundationsof our unique system of government is damaged. Unlike totalitarian or more repressiveI Modifications entered by a distressed homeowner with either unscrupulous attorneys/entity based on forgeddocuments, which are not authorized approve modifications produces unmarketable titles.DR 7-102(A)(7), the attorney may not "assist the client in conduct that the lawyer knows to be illegal or fraudulent"and .....conduct in a settlement that the attorney knows has been obtained by fraud. If the client refuses to rectifu thefraud, then the attorney must withdraw.Lawyer deception in negotiations can lead to liability for fraud. ln Slotkin v. Citizens Casualty Co.' 614 F.2d 301(2d Cir. 1979) cert. denied, 449 U.S.981 (1980).


8/8

SUPREME COURT OF THE STATE OFNEW YORKCOLTNTY OF DELAWAREWells Fargo Bank, N.A., as Trustee for Citigroup MortgageLoan Trust, Series 2005-OPT4, Asset Backed Pass-ThroughCertificates,

Plaintiff,-against-

Maria D. Garcia; Luis A. Zafra, and "JOHN DOE #l "through "JOHN DOE #10", the last ten names beingfictitious and unknown to the Plaintiff, the person or partiesintended being the person or parties, if any, having orclaiming an interest in or lien upon the mortgaged premisesdescribed in the complaint, Deiendants.

COPVSUMMONS AND NOTICEIndex No.

PROPERTY ADDRESS: 2406 West Hubbell Hill Road, Margaretville, NY 12455

TO THE ABOVE NAMBD DEFENDANTS:YOU ARE TIEREBY SUMMONED to answer the complaint in this action and to serve

a copy of your answer, or a notice of appearance on the attorneys for the Plaintiff within thirty(30) days after the service of this summons, exclusive of the day of service. The United States ofAmerica. if designated as a defendant in this action, may appear rvitliin sixty (60) days of servicehereof. In case of your failure to appear or answer, judgrnent will be taken against you bydefault for the relief demanded in the complaint.

NOTICB OF NATURE OF ACTION AND RELIEF SOUGHT THE OBJECT ofthe above captioned action is to foreclose a Mortgage to secure $117,865.00 and interest,recorded in the Delarvare County Clerk's Office on June 15, 2005, in Liber 1257 of Mortgages.page 161 covering premises knorvn as 2406 West Hubbell Hill Road, Margaretville, NY 12455.

mg v, wf docxllc lps fc mill atty desc

Documents