Motion To Vacate Judgment (Alissa Brinkley)
Motion To Vacate Judgment (Alissa Brinkley)
The Defendant, Alissa Brinkley, in above-entitled action respectfully files her Motion To Vacate
The Foreclosure Judgment entered by this Court, in favor of the alleged Plaintiff Bank Of New York in
the stated action. The Defendant seeks relief from said Judgment and a Dismissal of Action with
The Defendant, Alissa Brinkley, hereby files a Motion To Vacate Judgment, pursuant to
Connecticut Practice Book, Section 52-212, in the matter of Bank Of New York Vs. Alissa Brinkley
1. Defendant Here-Now addresses this Court and all parties concerned and provides proper
legal "Notice", that the Superior Court Of Stamford Connecticut has the absolute power and
jurisdiction to hear and ultimately grant defendant's verified Motion and Request to Open and
Vacate the judgment entered in this matter based on several lawful and ethical grounds.
Defendant Makes Affirmatively Known, that she brings and addresses this Motion to the
sound discretion of the Court for its adjudication. Defendant, in invoking her rights of the
United States Of America and the State Of Connecticut attests that this Court has intrinsic
power, independent of statutory provision, to vacate any judgment obtained by fraud, duress,
unconscionability or mutual mistake. Such stated conditions hence toll any statute of limitations
normally placed on a Motion To Open / Vacate pursuant to Connecticut State and United
States Law.
ORAL ARGUMENT REQUESTED
TESTIMONY IS REQUIRED
(2)
2. The Connecticut Supreme Court, and our Connecticut State Statutes offer unconditional
statutory protection against fraudulent and unconscionable conduct. In special circumstances,
Connecticut Law will permit, and entertain a Motion to Vacate Judgment filed after four months
when there is a showing to the Court of Fraud and unconscionability. C.G.S. Sec. 52-212a
clearly states that "Judgments obtained by fraud may be attacked at any time" (see 180
C. 129, 130 and 181 C. 463, 466-469). In Connecticut, there is no deadline for taking
appropriate legal action, or expiration of rights, for a party who discovers acts of fraud after
judgment has been entered, and/or title vested, as the case may be.
1. Hunt Leibert Jacobson, PC filed the instant foreclosure action Bank Of New York vs. Alissa
Brinkley, et al on August 29, 2007 in the name of a non-existent, deceased entity Bank Of New
York. Bank Of New York had closed, passed away, and ceased to exist as of July 1,2007.
2. The alleged Plaintiff, Bank Of New York, who technically authorized its counsel Hunt Leibert
Jacobson, PC to construct and file the said foreclosure complaint was deceased as an entity at
time of filing, and legally and physically could not speak as they were extinct and inoperable.
3. The departed entity, Bank Of New York, physically could not, and had no legal authority to
bring the instant action and invoke the jurisdiction of Superior Court Of Stamford. This
Honorable Court in Stamford has already been deceived, innocently and unknowingly allowed
Hunt Leibert Jacobson, PC to proceed, maintain the current action, and unlawfully win a
Judgment of Foreclosure based on an action brought by a deceased Plaintiff. This court now
having such new evidence as of today's date of October 29, 2010, lacks subject matter
jurisdiction to proceed and allow the pending auction sale of October 30,2010 to take place
based on a Judgment which was obtained by fraudulent means, and at its minimum gross
negligence.
(3)
4. The alleged Plaintiff(s) lacked valid standing to bring this action, and the known fraudulent
and subject to dismissal pursuant to opinion of the Connecticut Supreme Court and well
established case law. "Other equitable defenses that our Supreme Court has recognized in
foreclosure actions include unconscionability" New Haven Savings Bank v. LaPlace (AC
21388)(2001 ).
5. There Is No Legal Plaintiff: From the onset and commencement of this action, there was no
legally recognizable Plaintiff. The alleged Plaintiff, Bank Of New York, was not breathing and
could not legally be considered a participant, and "necessary party" to this action. The real
question to the court is exactly who was Hunt Leibert Jacobson, PC foreclosing for? If the
unlawful foreclosure did in fact go to conclusion, who then would Hunt Leibert be collecting
for? Payments, and/or proceeds from a sale could not be distributed legally based on a fatally
6. The alleged deceased Plaintiff, and Hunt, Leibert, Jacobson, PC, falsely and with crafty intent
the date of construction of its Complaint, and date of filing of this action on August 29, 2007.
The stated Plaintiff Bank Of New York purports to be the holder/owner of the subject Note and
Mortgage as a result of the alleged Assignment. Such Parties knew that no such Assignment
7. The alleged assignment professedly giving ownership to an already dead Bank Of New York
is a fraudulent instrument manufactured Three (3) Months after this Foreclosure Lawsuit was
filed on August 29, 2007. The alleged deceased Plaintiff and or other criminals constructed a
bogus and legally insufficient (after the fact) document entitled "Assignment Of Mortgage"
which was purported to have been created and executed on November 29, 2007 (See Exhibit
(4)
A).
Legally Void: The infamous "Robo-Signer" and admitted malefactor, Erica Johnson-Seck
purports to have constructed and signed the first and second (Corrective Assignment)
Assignments Of Mortgage. All such legal documents created by Erica Johnson-Seck are
legally void as a matter of law, as Ms. Seck has already confessed and acknowledged to
Florida Attorney Thomas Ice in deposition of July 9, 2009 that she violated numerous multi-
state and federal laws in her professed executive capacity in making assignments, affidavits,
9. Erica Johnson-Seck conflictingly and deceptively represents in the first Allisa Brinkley
Holdings, Inc., which is headquartered and has its place of business in Flint, Michigan, although
Ms. Seck is in reality in Williamson County, Texas professedly with Mai La Thao, the alleged
Notary Public, executing the stated document. Judge Arthur Schack of the Supreme Court in
Kings County, New York sanctioned and took adverse action against the Plaintiff in the matter
of Deutsche Bank vs. Harris {Kings County, Index No. 39192/2007 (05 Feb 2008) for the very
same deception of Erica Johnson-Seck. Judge Schack was particularly troubled in this case by
the purported assignment to Deutsche Bank of 10/23/2007, and the conflicting sworn accounts
as to the identity and role of Erica Johnson Seck. Judge Schack expressed unmistaken
particular dismay that Erick Johnson-Seck, who professes to be a Vice President of Deutsche
Bank, executed the alleged affidavit in Williamson County, Texas, rather than in Pasadena,
California where the grantor Deutsche Bank represented to be headquarted. This raises further
intentional fraudulent misrepresentations by Ms. Seck. In the case cited by Judge Schack,
Erica Johnson Seck unsubstantially represents that she is the Vice-President of Deutsche
Bank, and amazingly has represented in the current Brinkley case to be the Vice President of
(5)
10. Erica Johnson Seck allegedly authorized and created the Assignment Of Mortgage on
November 29,2007 from IndyMac Mortgage Holdings to Bank Of New York despite the fact
that Bank Of New York had expired and ceased to exist on July 1,2007. Bank Of New York,
who was legally dead already for nearly five months is now buying mortgages from Erica
Johnson-Seck? Erica Johnson Seck, nor any other person or entity, can sell any mortgage or
any other type of property to any person, and/or entity that is not living, be it George
11. The Second Assignment Of Mortgage (Corrective Assignment Of Mortgage) created and
allegedly executed by Erica Johnson-Seck as Vice President for IndyMac Mortgage Holdings
(Deceased) and FDIC, on professedly November 12,2008, is for the second (2nd) time a
fraudulent attempt to sell and assign the Alissa Brinkley Mortgage to Bank Of New York who
has at this juncture, since been dead this time for 16 Months (One Year and Six Months) [See
Exhibit B].
12. Third Assignment Of Mortgage In 2009 Sold For Dead Bank By Robo-Signer Roger
Stotts: The soon to be famous Roger Stotts, a discovered and caught "Robo-Signer", and
instance a Vice President Of IndyMac, signing for IndyMac an Affidavit In Support Of Motion
For Summary Judgment on June 8, 2009 although IndyMac closed and ceased to exist on
March 19,2009. Amazingly, fraudster Roger Stotts in the current suit, has created and
executed a Fraudulent Assignment Of Mortgage, assigning and selling the interest in the
alleged Alissa Brinkley mortgage from the Dead financial institution Bank Of New York to
OneWest Bank FSB. Roger Stotts in the Brinkley case professes to be a Vice-President of
Bank Of New York on May 14, 2009, despite the fact that Bank Of New York closed and
ceased to exist on July 1, 2007. Interestingly, Roger Stotts happens to be working for
(6)
deceased Bank Of New York and executing the said Third (3rd) Brinkley Assignment in
Williamson County, Texas, the same place where Erica Johnson-Seck has made herself
famous by executing fraudulent documents for several other banks and entities as a Vice-
13. Erica Johnson Seck Admits That No Notary Is Present While Documents Are Notarized:
Miscreant Erica Johnson-Seck has confessed that all her legal documents such as
Assignments Of Mortgage, and Affidavits Of Debt are not witnessed at the time of signing or
same date by a State Notary, and are further not signed in the presence of a notary. In her
deposition taken by Florida Attorney Thomas E. Ice Ms. Seck states that she does not make a
sworn oath, and in fact does not know what an affidavit is.
Q. And the witnesses who, if you need witnesses on the document, are not sitting in your
office?
A. That's Right.
Q. When they notarize it and they put a date that they're notarizing it, is it the date that you
A. I don't know.
Q. When you execute a sworn document, do you make any kind of verbal
A. I don't know if I know what you're talking about. What's a sworn document?
Q. Well, an affidavit.
A. Oh. No.
A. Right.
A. No there is not.
Q. In fact, the Notaries can't see you sign the documents; is that correct?
14. Judge Arthur Schack of the Kings County Supreme Court, NY, just dismissed a foreclosure
suit on October 21, 2010 due to the fraud and inconsistent statements and representations of
15. The Superior Court Of Stamford, Connecticut relied on multiple fraudulent Assignments Of
Mortages and an Affidavit Of Debt created and signed by Erica Johnson Seck in the Alissa
Brinkley matter. The Foreclosure Judgment in this case was entered in innocent reliance by
the Court on fraudulent and/or criminal actions of Erica Johnson Seck and/or other
participants and conspirators in the unlawful actions and purpose to foreclose on Alissa
Brinkely.
16. Hunt Leibert Jacobson, PC and the deceased Bank Of New York, and/or others with unlawful
purpose have deceptively provided said alleged "Assignments" to this Court as supposed
The Alleged Plaintiff Has No Valid Proof Of Standing And Authority To Foreclose
17.The alleged Plaintiff, Bank Of New York, and/or One West Bank is/are not the "Real Party In
Interest", and have no legal standing to Foreclose on the Defendant Alissa Brinkley's home.
Said Plaintiff(s) have no legal and valid proof of ownership of either the alleged Note or
Mortgage. The Assignments are fraudulent, and the wrongful acts of Erica Johnson Seck and
18.The Superior Court of Stamford Connecticut lacks subject matter jurisdiction and cannot allow a
foreclosure sale to conclude based on a judgment obtained by fraud. The alleged Plaintiff has no
standing, and cannot assign anything to One West Bank or any other entity. Bank Of New York had
closed on July 1, 2007. There is a fatally broken chain of title and no one can claim ownership at this
19. The unlawful conduct complained of herein this Motion, and more particularly the creating and
filing of a Fraudulent Complaint and Assignment of Mortgage are violations of Federal Law
20. The manufacturing and filing of the Sham Assignment Of Mortgage is a violation of 15 USC
1692e - 807 False Or Misleading Representations, 15 USC 1692f - 808 Unfair Practices, and
21. The constructing and filing of the false and fraudulent Complaint in this Foreclosure Lawsuit is
1692f - 808 Unfair Practices, and 15 USC 1692j -812 Furnishing Certain Deceptive Forms.
22.The acts and practices complained of and argued in this Motion To Vacate are incorporated
herein and constitute conduct that is in violation of the Connecticut Unfair Trade Practices Act,
Sec. 42-11 Ob. Unfair trade practices prohibited. Legislative intent. (a) No person shall
engage in unfair methods of competition and unfair or deceptive acts or practices in the
WHEREFORE, based on all of the above cited facts and presentment the Defendant Alissa
Brinkley asks that this unlawful Judgment be vacated and dismissed with prejudice.
All the factual representations in this motion are clear and convincing evidence of a Fraud
Without Recourse
All Rights Reserved Without Prejudice
Respectfully Submitted,
B' S-
Alissa Brinkley
41 Wolfpitt Ave, #7-B
Norwalk, CT 06851
Tel: 203-434-7834
Email: [email protected]
(10)
ORDER
The foregoing Defendant's Motion To Vacate Judgment And Dismiss With Prejudice having been
presented to the court;
By the Court:
Clerk / Judge
Date of Order: _
VERIFICATION
The Defendant, Alissa Brinkley, a living soul and natural person, has read the foregoing and has
personal knowledge of the contents thereof. The same is true based on my own knowledge, except
as to those matters which are therein upon information and belief, and as to those claims or facts, I
believe them to be true. I assert under the penalty of perjury of the laws of the United States Of
America and the laws of the State Of Connecticut that the foregoing is true and correct.
CERTIFICATE OF SERVICE
The Defendant, Alissa Brinkley, hereby certifies that a true and correct copy of the foregoing Motion
To Vacate Judgment has been furnished via U.S. First Class Mail on October 29,2010 to the
office of the Plaintiff's counsel Hunt Leibert, Jacobson, PC, at the address of 50 Weston St,
Hartford, CT 06120.
KNOW YE THAT IndyMac Mortgage Holdings, Inc., ( Assignor,,), havinq an office and
place of business at PO Box 2026. Flint, MI 48501-2026 for the consideration of One
Dollar and other valuable considerations, does hereby assign to Bank of New York as
Trustee under the Pooling and Servicing Agreement Series 2000-C, a California
corporalion, having an address of 155 Noth Avenue, Pasadena, CA 911 01, its successors,
and assigns forever, all the right, title, interest, claim, and demand whatsoever as the said
Assiqno. has or ouqht to have in or to a certain mortgage from Alissa Brinkley a/kJa Alissa
o Brinkley to IndyMac Mortgage Holdings, Inc. dated June 16, 2000 and recorded on June
19, 2000 in Volume 3918 at Page 135 of the Norwalk Land Records, in or to the property
described in said rnortqaqe deed situated in the Town of Norwalk, County of Fairfield and
State of Connecticut, without warranty or representation by, or recourse to, said Assignor,
TO HAVE AND TO HOLD the premises, with all the appurtenances, unto the said
Assignee, its successors and assigns forever, so that neither the Assignor nor its
successors, nor any other person under it or them shall hereafter have any claim, right or
title in or to the premises, or any part thereof; but therefrom it is and they are by these
presents forever barred and secluded
=>::
, . I
INOYMAC MORTGAGE HOLDINGS,
INC.
tc._.~,',.-".:':::~~~/-(~~t~_. , _ By f;u~~~~--Sa"'--
p G\i g~_ti C1k I]. / Y P Its \fiee Presic.i-€nt
STATE OF ~X:UL _
, SS,
PROPElny.
y 1 Wolfpit Avenue Unit 78
"<orVialk,CT 06651
Bri,lUp.y. AtisS3
Fi:e 02463,70G50
1IIIIilll!lllli!lllllllllllllllllliiiIIIIIW'lill!llllll1!llllllill~1111
11JII1I11I1Il U II
.• .,.', EXHIBIT B
CORRECTIVE ASSIGNMENT OF MORTGAGE
TO CORRECT THE RECORDED ASSIGNMENT OF MORTGAGE DATED 6127100AND RECORDeD
ON 1011/03 IN VOLUME 5134 AT PAGE 97
KNOW YE THAT FDIC as Receiver for IndyMac Mortgage Holdings, Inc. ("Assignor.:~~
having an office and place of business at P. O. Box 2026, Flint, MI 48501-0226 for the
. consideration of One Dollar and other valuable considerations, does hereby assign to
Bank of New York, as Trustee of the·Home·Equity Mortgage Loan Asset-Backed
Trust, Series SPMD 2000-8 under the Pooling and'Servicing agreement dated July 1,
2000, ("Assignee") a lending institution, having an address of 1601 Bryan Street, Mail Stop
33.1, Dallas, TX· 75201, Its successors. and assigns forever, all the right, title, interest,
claim, and demand Whatsoever as the said AssignQr has or ought to have in or to a certain
mortgage from Alissa Brinkley a/kJaAlissa D. Brinkley to Indy Mac Mortgage Holdings, Inc.
dated June 16, 2000 and recorded on June 19, 2000 in Volume 3918 at Page 135 of the
Norwalk Land Records, in or to the property described in said mortgage deed situated in
the Town of Norwalk, County of Fairfield and State of Connecticut, without warranty or
representation by, or recourse to, said Assignor.
.: ." ..
TO HAVE AND TO HOLD fneprernises, withal! the appurtenances, unto fhe~j~j'
_ -r'," ."
..•. Assignee, its successors and assigns forever, so that neither the Assignor. nor its ".:', ..
. successors, nor any other Person under it or them shall hereafter have any claim, right or
title in or to·the premises, or any part thereof; but therefrom It Is and they are by these
presents forever barred and secluded.
: 55.
COUNTY OF WI \\, ~~\o/)
On this ~
'6f\n),.~~~·
and saythathe/she
day of ~~.
=::£0
is a \[)'€.t-"11e.s1
, 2008, b~fore me personally ca~e
me krr;;hObeing~.
of ~t-
duly swom, did depose
~whlch
executedthe above instrument that helsheknows the seal of said corporation: that the
seaf~affixe(Hosaid~n5trument is such corporate seal, that it was so afflxedby order 6Mh"e"
BoarcLciDlrectors of saldcorporatlon, and that he/she signed hislher name therl3to'by
meansof electronic process by like order acknowledged.
PROPERTY:
41 Wolfpit Avenue, Unit 78
. ..Norwalk, or 06851
···:Brinldey, Alissa '
. FII~0248$70659
~.: .
• ",-.t.
/', .
. ' ,"
I
After recording please retum to:
HUNT LEIBERT JACOBSON PC
50 Weston Street
Hartford CT 06120
EXHIBIT C
ASSIGNMENT OF MORTGAGE
POOL NUMBER _
KNOW YE THAT Bank of New York, as Trustee of the Home Equity Mortgage Loan
Asset-8acked Trust Series SPMD 2000-8 under the Pooling and Servicing
Agreement dated July 1,2000, ( Assignor"), for the consideration of One Dollar and other
valuable considerations, does hereby assign to OneWest Bank FSB, its successors, and
assigns forever, all the right, title, interest, claim, and demand whatsoever as the said
Assignor has or ought to have in or to a certain mortgage from Alissa Brinkley alkJa Alissa
D. Brinkley to IndyMac Mortgage Holdings, Inc. dated June 16, 2000 and recorded on June
19,2000 in Volume 3918 at Page 135 of the Norwalk Land Records, in or to the property
described in said mortgage deed situated in the Town of Norwalk, County of Fairfield and
State of Connecticut. without warranty or representation by, or recourse to, said Assignor.
TO HAVE AND TO HOLD the premises, with all the appurtenances, unto the said
Assignee, its successors and assipns forever, so that neither the Assignor nor its
successors, nor any other person under it or them shall hereafter have any claim, right or
title in or to the premises, or any part thereof; but therefrom it is and they are by these
presents forever barred and secluded.
~:~LBAN , SB
~1)/~
~ '"'t"'------+--.
Qbn r-~ thrrr b D'Y>\j Its Vi,.,. P=i<'cnt
STATE OF _--='fu:as==--- _
: 55.
COUNTY OF_--->WililillJ..<jiaJ..LillJo;tso\lJDL-
__
;:"'~\;~:1·;~>t.
KAl J. HAINES
t..~·,\;r\ Notary
PUblic. ~tale ct Tex~s
-;..,;. :~
.•f
My Comrms sion Expires
PROPERTY:
\.;'~~~:,1~~l
. AprUDJ,20IJ
41 Woltpit Avenue, Unit 7B
NoIwalk, CT 06851
Signatures Of Roger Stotts Do Not match from
document to document. The Roger Stotts
. Signature On Exibit D-2 is not the same as Stotts
*02483-70659$8*
Signature on Alissa Brinkley Assignment Exhibit c.
It appears to be another act of fraud, likely
numerous Roger Stotts are all signing as Mr. Stotts
....
..... ~.
EXHIBIT D
1:-.. ItltUR(lITC()1 RI I)FT!II· 1~1I1
.i\ d JlCL\L I 'jl« Lll. I', \ \,[j f'( JR fli{(,\\ MW
n If. \ I) . FLORiO.\
L'\IIIHl! "\"
\ II "I
I H ~-l Y t Ii -!j..l!.n,"~4m
But ... 1 thought he is an Attorney in Fact for IndyMac above? But Now VP for MERS?
r-------- ------
;
EXHIBIT 0-3
,ASSIGNMENT OF MORTGAGE
KNOW ALL MEN BY THESE PRESENTS,
I-t$tita r.!)o.rl«'JJMO !lt3JOO5W J·fT'"! AVE., SUITE ,(;1, CCALA, j::!, :,}.141.:.'1l:\!ff.'io'd~~eleda!ltJC'a~~WI.rtJ!~iJf
00I1SICioM.;;OOI1 cree tlU:ll ul $1.0J L'luflar ~e oihef"gaw;!)/'Y.: \i~OJtt" w~·"oo.·&lioo, 11l~ rt!09i~ of ,Y!llch ~oj,ht:rnhjo'
.fIt1I!'ICrllittdg~d cces ~rdJy (rar~ eet O\'ef cote H.Ji)YfAACFEDERAl. BANK..f $ &,
.•~1T:i;Ji'. moll, ~ISI1. ~l~'i!( I!Ifl.d
f!K,',;' lr':OtMACiMM(. F S 8 l'EI"j OI"lCr,alQ(! at t55NOR1H L,'K~:A\'I M:I· 'HI)fl.fXH!. l'AS,\Ol'.\,j.\ <;).,"j
16!;1:'_-t~.t'!
"...,tr, l!~ eete MlI; cad; ;lnd C-."'I)' Qt)~ ob!~!}Q~ ~1!ui!)ed In !OM:!"~r1g.1[lft \ll\(l "in') ~ a,li' ilr~ le
be=.clfle-:::u.e 1h!;'Ol:O
10 ~.AV,F-!l.Nn 70 HOLe· trl't ~~ t1nlo 1!'1!!~liC R;;:;inn..,." rl6 ~r0a5!$O!S ditG lM~if,r'i:;£~j(e-im. ;oz. (if It<,(!7l';(f (ja"! r;l
~~tr~d"'Y'2&(:9,ttu~wl!l1QUtfe<.::)Uf!lean the u~ntl1i.
Roger stotts
VPf,orMERS
Memorandum Of Law
EXHIBIT E
~-------,------~~-'------------------'---.--' ------
'I Onewest Bank, F.S.B. v Drayton
--
,
2010 NY Slip Op 20429
I -
'L
r-
Supreme Court, Kings County
-
Schack,J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law §
431.
I This ol;;nioo is uncorrected and subject to revision before publication in the printed
Official Reports,
against
15183/09
Plaintiff
Carle Place NY
Arthur M. Schack, J.
In this foreclosure action, plaintiffONEWEST BANK, F.S.B. (ONEWEST), moved for an
order of reference and related relief for the premises located at 962 Hemlock Street, Brooklyn,
New York (Block 4529, Lot 116, County of Kings), upon the default of all defendants. The
Kings County Supreme Court Foreclosure Department forwarded the motion papers to me on
August 30, 2010. While drafting this decision and order, I received on October 14, 2010, in the
midst of the present national media attention about "robo-signers," an October 13,201 O-letter
from plaintiffs counsel, by which "[i]t is respectfully requested that plaintiffs application be
withdrawn at this time." There was no explanation or reason given by plaintiffs counsel for his
request to withdraw the motion for an order of reference other than "[i]t is our intention that a
new application containing updated information will be re-submitted shortly."
The Court grants the request of plaintiffs counsel to withdraw the instant motion for an
order of reference. However, to prevent the waste of judicial resources, the instant foreclosure
action is dismissed without prejudice, with leave to renew the instant motion for an order of
[*2]reference within sixty (60) days ofthis decision and order, by providing the Court with
necessary and additional documentation.
First, the Court requires proof of the grant of authority from the original mortgagee,
CAMBRIDGE HOME CAPITAL, LLC (CAMBRIDGE), to its nominee, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), to assign the subject mortgage and
note on March 16, 2009 to INDYMAC FEDERAL BANK, FSB (INDYMAC). INDYMAC
subsequently assigned the subject mortgage and note to its successor, ONEWEST, on May 14,
2009.
Second, the Court requires an affidavit from Erica A. Johnson-Seck, a conflicted "robo-
signer," explaining her employment status. A "robo-signer" is a person who quickly signs
hundreds or thousands of foreclosure documents in a month, despite swearing that he or she has
personally reviewed the mortgage documents and has not done so. Ms. Johnson-Seck, in a July
9,2010 deposition taken in a Palm Beach County, Florida foreclosure case, admitted that she: is
a "robo-signer" who executes about 750 mortgage documents a week, without a notary public
present; does not spend more than 30 seconds signing each document; does not read the
documents before signing them; and, did not provide me with affidavits about her employment in
two prior cases. (See Stephanie Armour, "Mistakes Widespread on Foreclosures, Lawyers Say, "
USA Today, Sept. 27, 2010; Ariana Eunjung Cha, "One West Bank Employee: Not More Than
30 Seconds' to Sign Each Foreclosure Document," Washington Post, Sept. 30, 2010).
In the instant action, Ms. Johnson-Seck claims to be: a Vice President ofMERS in the
March 16,2009 MERS to INDYMAC assignment; a Vice President ofINDYMAC in the May
14, 2009 INDYMAC to ONEWEST assignment; and, a Vice President of ONEWEST in her
June 30, 2009-affidavit of merit. Ms. Johnson-Seck must explain to the Court, in her affidavit:
her employment history for the past three years; and, why a conflict of interest does not exist in
the instant action with her acting as a Vice President of assignor MERS, a Vice President of
assignee/assignor INDYMAC, and a Vice President of assignee/plaintiffONEWEST. Further,
Ms. Johnson-Seck must explain: why she was a Vice President of both assignor MERS and
assignee DEUTSCHE BANK in a second case before me, Deutsche Bank v Maraj, 18 Mise 3d
1123 (A) (Sup Ct, Kings County 2008); why she was a Vice President of both assignor MERS
and assignee INDYMAC in a third case before me, IndymacBank, FSB, v Bethley, 22 Mise 3d
1119 (A) (Sup Ct, Kings County 2009); and, why she executed an affidavit of merit as a Vice
President of DEUTSCHE BANK in a fourth case before me, Deutsche Bank v Harris (Sup Ct,
Kings County, Feb. 5, 2008, Index No. 35549/07).
Third, plaintiffs counsel must comply with the new Court filing requirement, announced
yesterday by Chief Judge Jonathan Lippman, which was promulgated to preserve the integrity of
the foreclosure process. Plaintiffs counsel must submit an affirmation, using the new standard
Court form, that he has personally reviewed plaintiffs documents and records in the instant
action and has confirmed the factual accuracy of the court filings and the notarizations in these
documents. Counsel is reminded that the new standard Court affirmation form states that "[t]he
wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from
these defects may be cause for disciplinary and other sanctions upon participating counsel."
Background
mortgage and note on January 12,2007, borrowing $492,000.00 from CAMBRIDGE. MERS
"acting solely as a nominee for Lender [CAMBRIDGE]" and "FOR PURPOSES OF
RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD," recorded the
instant mortgage and note on March 19, 2007, in the Office of the City Register of the City of
New York, at City Register File Number (CRFN) 2007000143961. PlaintiffDRA YTON
allegedly defaulted in his mortgage loan payment on September 1, 2008.
Then, MERS, as nominee for CAMBRIDGE, assigned the instant nonperforming mortgage
and note to INDYMAC, on March 16,2009. Erica A. Johnson-Seck executed the assignment as
a Vice President ofMERS, as nominee for CAMBRIDGE. This assignment was recorded in the
Office of the City Register ofthe City of New York, on March 24, 2009, at CRFN
200900084809. However, as will be discussed below, there is an issue whether MERS, as
CAMBRIDGE's nominee, was authorized by CAMBRIDGE, its principal, to assign the subject
DRAYTON mortgage and note to plaintiffINDYMAC.
Subsequently, almost two months later, Ms. Johnson-Seck, now as a Vice President of
INDYMAC, on May 14, 2009, assigned the subject mortgage and note to ONEWEST. This
assignment was recorded in the Office of the City Register ofthe City of New York, on May 22,
2009, at CRFN 2009000155018.
Plaintiff ONEWEST commenced the instant foreclosure action on June 18, 2009 with the
filing of the summons, complaint and notice of pendency. On August 6, 2009, plaintiff
ONEWEST filed the instant motion for an order of reference. Attached to plaintiffONEWEST's
moving papers is an affidavit of merit by Erica A. Johnson-Seck, dated June 30, 2009, in which
she claims to be a Vice President of plaintiff ONE WEST. She states, in ~ 1, that "[t]he facts
recited herein are from my own knowledge and from review of the documents and records kept
in the ordinary course of business with respect to the servicing of this mortgage." There are
outstanding questions about Ms. Johnson-Seck's employment, whether she executed sworn
documents without a notary public present and whether she actually read and personally
reviewed the information in the documents that she executed.
On July 9, 2010, nine days after executing the affidavit of merit in the instant action, Ms.
Johnson-Seck was deposed in a Florida foreclosure action, Indymac Federal Bank, FSB, v
Machado (Fifteenth Circuit Court in and for Palm Beach County, Florida, Case No. 502008 CA
037322XXXX MB A W), by defendant Machado's counsel, Thomas E. Ice, Esq. Ms.
Johnson-Seck admitted to being a "robo-signer," executing sworn documents outside the
presence of a notary public, not reading the documents before signing them and not complying
with my prior orders in the Maraj and Bethleydecisions.
Ms. Johnson-Seck admitted in her Machado deposition testimony that she was not
employed by INDYMAC on May 14,2009, the day she assigned the subject mortgage and note
to ONEWEST, even though she stated in the May 14,2009 assignment that she was a Vice
President of INDY MAC. According to her testimony she was employed on May 14, 2010 by
assignee ONEWEST. The following questions were asked and then answered by Ms. Johnson
Seck, at p. 4, line 11 - p. 5, line 4:
Q. Could you state your full name for the record, please.
78729.
A. OneWest Bank.
A. Yes.
A. Yes.
A. Yes.
A.No.
A. Yes.
New York, U.S. Bank. And that's all I can think of off the top of my head.
Then, she answered the following question about her "signing authority," at page 7, lines 3 - 10:
Q. When you say you have signing authority, is your authority to sign
in-fact. IndyMac Bank and IndyMac Federal Bank I now sign as attorney-
Ms. Johnson-Seck admitted that she is not an officer ofMERS, has no idea how MERS is
organized and does not know why she signs assignments as a MERS officer. Further, she
admitted that the MERS assignments she executes are prepared by an outside vendor, Lender
Processing Services, Inc. (LPS), which ships the documents to her Austin, Texas office from
Minnesota. Moreover, she admitted executing MERS assignments without a notary public
[*5]present. She also testified that after the MERS assignments are notarized they are shipped
back to LPS in Minnesota.
LPS, in its 2009 Form 10-K, filed with the U.S. Securities and Exchange
Commission, states that it is "a provider of integrated technology and services to the mortgage
lending industry, with market leading positions in mortgage processing and default management
services in the U.S. [po I]"; "we offer lenders, servicers and attorneys certain administrative and
support services in connection with managing foreclosures [po4]"; "[a] significant focus of our
marketing efforts is on the top 50 U.S. banks [po5]"; and, "our two largest customers, Wells
Fargo Bank, N.A. and JP Morgan Chase Bank, N.A., each accounted for more than 10% of our
aggregate revenue [po5]."LPS is now the subject of a federal criminal investigation related to its
foreclosure document preparation. (See Ariana Eunjung Chao "Lender Processing Services
Acknowledges Employees Allowed to Sign for Managers on Foreclosure Paperwork,"
Washington Post, Oct. 5,2010). Last week, on October 13,2010, the Florida Attorney-General
issued to LPS an "Economic Crimes Investigative Subpoena Duces Tecum," seeking various
foreclosure documents prepared by LPS and employment records for various "robo-signers."
The following answers to questions were given by Ms. Johnson-Seck in the Machado
deposition, at p. 116, line 4 - p. 119, line 16:
Q. Now, given our last exchange, I'm sure you will agree that you are
not a vice president ofMERS in any sense of the word other than being
A. Yes.
A. Sorry.
A.No.
Q. You have no job duties as vice president ofMERS?
A.No.
A.No.
A.No.
A.No.
A. I have no idea.
A.No.
Q. The authority you have says that you can be an assistant secretary, right?A. Yes.
A.No.
Q. - - ofMERS.
You don't have any MERS' employees who report to you? [*6]
A.No.
Q. You don't have any vote or say in any corporate decisions ofMERS?
A.No.
A.No.
A.NQ.
A.No.
A.No.
Q. But you know that you have counterparts all over the country
A. Yes.
A. Yes.
that capacity?
A. I don't know.
A. I don't know.
Q. Take me through the procedure for drafting and - - the drafting and
sign and notarize it, and hand it back to an LPS employee, who then
to the firm.
Q. Very similar to all the other document, preparation of all the other
documents.
A. (Nods head.)
A. Yes.
A.No.
Q. - - other than to make sure that you are authorized to sign as the
A. Yes. [*7]
Q. Okay. As with the other documents, you signed these and took them
A. Yes.
Q. And they will get notarized as soon as they can. It mayor may
A. That's true.
organization?
A. Yes, yes.
A. Yes.
A. Yes.
A. Yes.
A. I don't know.
A. I'm not a big - - I don't, I don't know that much about the ins
and outs ofMERS. I'm sorry. I understand what it's for, but I don't
understand the nitty-gritty.
Q. What is it for?
I know that it was initially created so that a servicer did not have to
apart from the note so that note can be transferred from entity to entity
A. Yes.
Q. And cheaper?
A. Yes.
Moreover, Ms. Johnson-Seck testified that one of her job duties was to sign documents,
which at that time took her about ten minutes per day [po 11]. Further, she admitted, at p. 13,
line [*8]11 - p. 14, line 15, that she signs about 750 documents per week and doesn't read each
document.
Q. Okay. How many documents would you say that you sign on a
guess, today I saw an e-mail that 1,073 docs are in the office for
A. Yes.
A. Yes.
bankruptcy or a foreclosure.
Q. Is it true that you don't read each document before you sign it?
Additionally. she testified about how LPS prepares the documents in Minnesota and ships
them to her Austin office, with LPS personnel present in her Austin office [pp. 16 - 17]. Ms.
Johnson-Seck.described the document signing process, at p. 17, line 6 - p. 18, line 18:
on the documents once they've gone through this quality control process?
purview to make sure that I'm not signing for an entity that I cannot sign
for. And I sign the document and I hand it to the Notary, who notarizes
it, who then hands it back to LPS who uploads the document so that the
A. Yes.
Q. Are all the documents physically, that you were supposed to sign,
A. Yes. [*9J
A.No.
A. Sometimes.
Q. Well, the Notaries are not in your office, correct?
Q. And the witnesses who, if you need witnesses on the document, are
A. That's right.
Q. So you take your ten minutes and you sign them and then you give
Q. You give all, you give the whole group that you just signed to one
Notary?
Ms. Johnson-Seck testified, at p. 20, line 1 - p. 21, line 4 about notaries not witnessing her
signature:
Q. I'm mostly interested in how long it takes for the Notary to notarize
your signature.
A. I can't say categorically because the Notary, that's not the only
A.No.
Q. When they notarize it and they put a date that they're notarizing
it, is it the date that you signed it or is it the date that they're notarizing
it?
A. I don't know.
sworn document?
Q. Well, an affidavit.
A. Oh. No.
A. Right.
A. No there is not.
Q. In fact, the Notaries can't see you sign the documents; is that correct?
correct?
A. Yes.
A. Yes.
A. Yes.
A. Yes.
Q. - - just as you did in this case? Judge Schack also says that you
Company, correct?
A. Yes.
that case?
Q. Okay.
A. I don't remember. Most likely.
A. Yes.
Q. And the court was concerned that there may be fraud on the part
of the bank?
A. I guess.
from you describing your employment history for the past three years,
correct? [* I 1-1
ever came to produce such a document. The last time we spoke, I told
you that in-house counsel was reviewing the whole issue and that's kind
A. From anywhere.
A. And --
Q. And you had it when we met at our deposition back in February 5th.
to comply.
A. I don't know.
Q. Was it settled?
A. I don't know.
After a break in the Machado deposition proceedings, Mr. Ice questioned Ms.
Johnson-Seck about various documents that were subpoenaed for the July 9, 2010 deposition,
including her employment affidavits that I required in both Maraj and Bethley. Ms.
Johnson-Seck answered the following questions at p. 159, line 19 - p. 161, line 9:
Q. So let's start with the duces tecum part of you notice, which is the
list of documents. No.1 was: The affidavit of the last three years of
deponent's employment provided to Judge Schack in response to the
order dated January 31st, 2008 in the case of Deutsche Bank National
New York. 'We talked about that earlier. There is no such affidavit,
correct?
A. Correct.
Q. By the way, why was IndyMac permitted to bring the case in Deutsche
in response to the order dated February 6th, 2009 in the case of IndyMac
Bank, FSB vs, Bethley, New York Slip Opinion 50186, New York
employment history for the past three years; and, why a conflict of
interest does not exist in how she acted as vice president of assignee [* 12]
IndyMac Bank, FSB in the instant action, and vice president of both
in Deutsche Bank vs. Maraj," and it gives the citation and that's the
A.No.
Q. Were you aware of that second opinion where Judge Schack asks
do, send Judge Schack the most recent, and I will gladly show up in
Q. Okay. Well, I sent you this back in March. Have your or your
Discussion
Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a
foreclosure action, upon the default of the defendant or defendant's admission of mortgage
payment arrears, to appoint a referee "to compute the amount due to the plaintiff." In the instant
action, plaintiffONEWEST's application for an order of reference is a preliminary step to
obtaining a default judgment offoreclosure and sale against defendant DRAYTON. (Home Sav.
of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]). Plaintiffs request to withdraw its
application for an order of reference is granted. However, to allow this action to continue
without seeking the ultimate purpose of a foreclosure action, to obtain a judgment offoreclosure
and sale, makes a mockery of and wastes the resources of the judicial system. Continuing the
instant action without moving for an order of reference is the judicial equivalent of a "timeout."
Granting a "timeout" to plaintiffONEWEST to allow it to re-submit "a new application
containing new information ... shortly" is a waste of judicial resources. Therefore, the instant
action is dismissed without prejudice, with leave granted to plaintiffONEWEST to renew its
motion for an order of reference within sixty (60) days ofthis decision and order, ifplaintiff
ONEWEST and plaintiff ONEWEST's counsel can satisfactorily address the various issues
previously enumerated.
cancellation of the notice of pendency. CPLR § 6501 provides that the filing ofa notice of
pendency against a property is to give constructive notice to any purchaser of real property or
encumbrancer against real property of an action that "would affect the title to, or the possession,
use or enjoyment of real property, except in a summary proceeding brought to recover the
possession of real property." The Court of Appeals, in 5308 Realty Corp. v 0 & Y Equity Corp.
(64 NY2d 313, 319 [1984]), commented that "[t]he purpose of the doctrine was to assure that a
court retained its ability to effect justice by preserving its power over the property, regardless of
[* 13]whether a purchaser had any notice of the pending suit," and, at 320, that "the statutory
scheme permits a party to effectively retard the alienability of real property without any prior
judicial review."
CPLR § 6514 (a) provides for the mandatory cancellation ofa notice of pendency by:
within the time limited by section 6512; or if the action has been
final judgment against the plaintiff has not been stayed pursuant
The plain meaning of the word "abated," as used in CPLR § 6514 (a) is the ending ofan
action. "Abatement" is defmed as "the act of eliminating or nullifying." (Black's Law Dictionary
3 [7th ed 1999]). "An action which has been abated is dead, and any further enforcement of the
cause of action requires the bringing of a new action, provided that a cause of action remains (2A
Carmody-Wait 2d § 11.1)." (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further,
Nastasi at 36, held that the "[c]ancellation ofa notice of pendency can be granted in the
exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501
(see 5303 Realty Corp. v 0 & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250
AD2d 451,451-452 [ld Dept 1998]; Siegel, NY Prac § 336 [4th ed])." Thus, the dismissal of
the instant complaint must result in the mandatory cancellation of plaintiff ONE WE ST's notice
of pendency against the subject property "in the exercise of the inherent power of the court."
power of attorney is necessary to demonstrate how the agent is vested with the authority to
assign the mortgage." (HSBC Bank, USA v Yeasmin, 27 Misc 3d 1227 [A], *3 [Sup Ct, Kings
County 2010]). "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]." (Tawil
v Finkelstein Bruckman Wahl Most & Rothman, 223 AD2d 52,55 [ld Dept 1996]). (See
Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612 [2d Dept 2004]).
MERS, as described above, recorded the subject mortgage as "nominee" for CAMBRIDGE.
The word "nominee" is defined as "[a] person designated to act in place of another, usu. in a very
limited way" or "[a] party who holds bare legal title for the benefit of others." (Black's Law
Dictionary 1076 [8th ed 2004 D. "This definition suggests that a nominee possesses few or no
legally enforceable rights beyond those of a principal whom the nominee serves." (Landmark
National Bank v Kesler, 289 Kan 528, 538 [2009D. The Supreme Court of Kansas, in
Landmark National Bank, 289 Kan at 539, observed that:
Idaho, March 12, 2009) (MERS "acts not on its own account. Its [* 14]
(March 19,2009) ("MERS, by the terms of the deed of trust, and its
own stated purposes, was the lender's agent "); La Salle Nat. Bank v
Lamy, 12 Mise 3d 1191 [A], at *2 [Sup Ct, Suffolk County 2006]) ...
assign the note and mortgage to another for want of an ownership interest
The New York Court of Appeals in MERSCORP, Inc. v Romaine (8 NY3d 90 [2006]),
explained how MERS acts as the agent of mortgagees, holding at 96:
Thus, it is clear that MERS's relationship with its member lenders is that of agent with principal.
This is a fiduciary relationship, resulting from the manifestation of consent by one person to
another, allowing the other to act on his behalf, subject to his control and consent. The principal
is the one for whom action is to be taken, and the agent is the one who acts. It has been held that
the agent, who has a fiduciary relationship with the principal, "is a party who acts on behalf of
the principal with the latter's express, implied, or apparent authority." (Maurillo v Park Slope
U-Haul, 194 AD2d 142,146 [2d Dept 1992]). "Agents are bound at all times to exercise the
utmost good faith toward their principals. They must act in accordance with the highest and
truest principles of morality. " (Elco Shoe Mfrs. v Sisk, 260 NY 100, 103 [1932]). (See Sokoloff
v Harriman Estates Development Corp., 96 NY 409 [2001]); Wechsler v Bowman, 285 NY
284 [1941]; Lamdin v Broadway Surface Advertising Corp., 272 NY 133 [1936]). An agent "is
prohibited from acting in any manner inconsistent with his agency or trust and is at all times
bound to exercise the utmost good faith and loyalty in the performance of his duties." (Lamdin,
at 136).
(Lippincott v East River Mill & Lumber Co., 79 Mise 559 [1913]) [*15]
the purpose of proving the fact of agency." (Lexow & Jenkins, Pc. v
Hertz Commercial Leasing Corp., 122 AD2d 25 [2d Dept 1986]; see
also Siegel v Kentucky Fried Chicken of Long Is. 108 AD2d 218 [2d
Dept 1985]; Moore v Leaseway Transp/ Corp., 65 AD2d 697 [1st Dept
another are not competent to prove the agency in the absence of evidence
Therefore, in the instant action, plaintiff ONEWEST failed to demonstrate how MERS, as
nominee for CAMBRIDGE, had authority from CAMBRIDGE to assign the DRAYTON
mortgage to INDYMAC. The Court grants plaintiff ONEWEST leave to renew its motion for an
order of reference, if plaintiff ONEWEST can demonstrate how MERS had authority from
CAMBRIDGE to assign the DRAYTON mortgage and note to INDYMAC.
Then, plaintiff ONE WE ST must address the tangled employment situation of "robo-signer"
Erica A. Johnson-Seck. She admitted in her July 9,2010 deposition in the Machado case that
she never provided me with affidavits of her employment for the prior three years and an
explanation of why she wore so-many corporate hats in Maraj and Bethley. Further, in Deutsche
Bank v Harris, Ms. Johnson-Seck executed an affidavit of merit as Vice President of Deutsche
Bank. If plaintiff renews its motion for an order of reference, the Court must get to the bottom of
Ms. Johnson-Seck's employment status and her "robo-signing." The Court reminds plaintiff
ONEWEST's counsel that Ms. Johnson-Seck, at p. 161 of the Machado deposition, volunteered,
at lines 4 - 5 to "gladly show up in his court and provide him everything he wants."
We cannot allow the courts in New York State to stand by idly and
when that process involves basic human needs - such as a family home -
during this period of economic crisis. This new filing requirement will
playa vital role in ensuring that the documents judges rely on will be
thoroughly examined, accurate, and error-free before any judge is asked [* 16J
(See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is Taking
Shape, New York Times, Oct. 21, 2010; Andrew Keshner, New Court Rules Says Attorneys
Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010).
Conclusion
Accordingly, it is
ORDERED, that the request of plaintiff ONE WE ST BANK, F.S.B., to withdraw its motion
for an order of reference, for the premises located at 962 Hemlock Street, Brooklyn, New York
(Block 4529, Lot 116, County of Kings), is granted; and it is further
ORDERED, that the instant action, Index Number 15183/09, is dismissed without
prejudice; and it is further
ORDERED, that the notice of pendency in the instant action, filed with the Kings County
Clerk on June 18,2009, by plaintiffONEWEST BANK, F.S.B., to foreclose a mortgage for real
property located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116, County of
Kings), is cancelled; and it is further
renew, within sixty (60) days of this decision and order, its motion for an order of reference for
the premises located at 962 Hemlock Street, Brooklyn, New York (Block 4529, Lot 116,
County of Kings), provided that plaintiff, ONEWEST BANK, F.S.B., submits to the Court:
FSB; and
the past three years; why a conflict of interest does not exist in how
in Deutsche Bank v Maraj, 18 Mise 3d 1123 (A) (Sup Ct, Kings County
2008); why she was a Vice President of both assignor MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. and assignee
1119 (A) (Sup Ct, Kings County 2009); and, why she executed an
Deutsche Bank v Harris (Sup Ct, Kings County, Feb. 5, 2008, Index
with the new Court filing requirement, announced by Chief Judge [* 17]
Jonathan Lippman on October 20,2010, by submitting an affmnation,
using the new standard Court form, pursuant to CPLR Rule 2106 and
F.S.B.'s documents and records in the instant action and counsel for
ENTER
1. S. C.
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