HSBC Bank USA, N.A.

v Sene (2012 NY Slip Op 50352(U))

http://www.nycourts.gov/reporter/3dseries/2012/2012_50352.htm

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HSBC Bank USA, N.A. v Sene 2012 NY Slip Op 50352(U) Decided on February 28, 2012 Supreme Court, Kings County Kramer, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2012

Marie Sene, et al, Defendants.

18600/09

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Herbert Kramer, J. The following papers have been read on this motion:

Notice of Motion/Order to Show Cause/Papers Numbered

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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.

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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

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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]

scheme. See CPLR 3408.

of this past decade, which allowed for practically anyone breathing to obtain a mortgage by

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 dated July 15, 2009, with the "effective date" of April 30, 2007, signed by Kevin M.

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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,

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July 23, 2009.The note itself was endorsed by Marie Sene, only. In addition, there is an allonge,

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signing their name.[FN2] It appears that the process of securitization of mortgages led to major improprieties, this case being a prime example.

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The instant matter illustrated the wild west mentality that was so prevalent in the early part

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This matter was referred to this Court for a bad faith hearing under the appropriate statutory

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HSBC Bank USA, N.A. v Sene (2012 NY Slip Op 50352(U))

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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 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

HSBC Bank v. Taher, 932 N.Y.S2d 760 [2011].[FN6]

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.

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"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

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Allegedly, Ocwen's authority arises from a limited power of attorney attached as exhibit

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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

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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,

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Manager or ResMae Mortgage Corporation in addition to Ms. Sene's signature. There was also a

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HSBC Bank USA, N.A. v Sene (2012 NY Slip Op 50352(U))

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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 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.

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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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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.

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