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[*1]

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Supreme Court, Kings County

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 MileCrossing 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

C Bank USA, N.A. v Sene (2012 NY Slip Op 50352(U)) http: //www.nycourts.gov/reporter/3dseries/2012/2012_5

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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]

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,


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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

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 processinvolves 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 thisCourt. 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 datedMarch 1, 2006."

Oddly, the pooling and servicing agreement submitted as plaintiff's Exhibit "2." allegedly


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evidencing Ocwen's power of attorney is datedApril 1, 2007and 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 thediscussion 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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