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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
CIVIL ACTION
HSBC BANK USA, NATIONAL ASSOCIATION,
AS TRUSTEE FOR THE MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2006-AB1
Plaintiff,
vs. CASE NO.: 2008 CA 000630 NC
TERESA M. MARRA, et al.
Defendants,
___________________________________________/
DEFENDANT TERESA M. MARRAS MOTION TO DISMISS ACTION AND/OR FOR OTHER SANCTIONS AGAINST PLAINTIFF AND COUNSEL FOR PLAINTIFF DUE TO
PLAINTIFFS MATERIAL FRAUD ON THE COURT
Defendant Teresa M. Marra, through undersigned counsel, moves the Court to dismiss
this lawsuit because the plaintiff and its attorneys have purposefully committed material and
culpable fraud on the Court by engaging in purposeful and directed actions that include making
false representations and filing false documents in an effort and attempt to establish its standing
to foreclose a mortgage and to prevail in this foreclosure case.
1. The basic standards governing fraud on the court are reasonably straightforward; as set
forth in Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998):
The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable
scheme calculated to interfere with the judicial systems ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly
hampering the presentation of the opposing partys claim or defense. Aoude v.
Filing # 8956262 Electronically Filed 01/08/2014 06:21:10 PM
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Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). The trial court has the
inherent authority, within the exercise of sound judicial discretion, to dismiss an
action when a plaintiff has perpetrated a fraud on the court, or where a party
refuses to comply with court orders. Kornblum v. Schneider, 609 So. 2d 138, 139
(Fla. 4th DCA 1992). See also Arzuman v. Saud, 843 So. 2d 950 (Fla. 4th
DCA
2003), Piunno v. R.F. Concrete Constr. Inc., 904 so. 2d 658 (Fla. 4th
DCA 2005),
for the same proposition.
2. Well established Florida law gives this Court the inherent authority to dismiss this action
due to the intentional material and culpable fraud on the committed by plaintiff and its attorneys.
I. Case History Relevant To This Motion
3. This foreclosure lawsuit was filed on January 11, 2008 by GreenPoint Mortgage
Funding, Inc. (GreenPoint).
4. In the Complaint, GreenPoint claimed that it owned and held the Note and Mortgage,
but no copy of the note was attached to the Complaint; only a copy of the mortgage was attached
and the foreclosure complaint contained a lost note count.
5. On February 20, 2009, GreenPoint filed a notice of filing claiming that the original note
and mortgage was attached to the notice filed with the court.
6. On the back side of the last page of the "original" Note there is an undated endorsement
in blank from GreenPoint.
7. On July 14, 2009, Greenpoint filed a document entitled Assignment of Mortgage,
executed 36 days after the commencement of this action; said assignment purports to assign both
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the mortgage and the note from Mortgage Electronic Registration Systems, Inc. (MERS) to
GreenPoint.
8. In a July 6, 2010, ex parte Motion to Substitute Plaintiff (that the court granted the next
day) Greenpoint requested that HSBC BANK USA, NATIONAL ASSOCIATION, AS
TRUSTEE FOR THE MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AB1
be substituted in as the Plaintiff in this foreclosure.
9. In the referenced motion to substitute, Greenpoint and its attorneys advised this court,
without any supporting documentation, that :
Subsequent to filing its complaint, Plaintiff became known as HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1 which is now the real party in interest. (Emphasis added.)
10. Counsel for the substituted plaintiff filed a Stipulation for Substitution of Counsel on
May 11, 2011, which did not attach any supporting documentation as required by the rule, but an
Order allowing the substitution was docketed on May 19, 2011.
11. Defendant Marra formally raised the issue of plaintiff's fraud on the court in her
February 8, 2012, pro se Motion to Dismiss with Prejudice, wherein she advised the court that
Plaintiff committed a fraud on the court when it filed the MERS Assignment of Mortgage on
July 14, 2009.
12. Attached to a July 11, 2012, Motion for Leave to File Amended Complaint to Verify the
Complaint, the now substituted Plaintiff HSBC BANK USA, NATIONAL ASSOCIATION,
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AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-AB1, attached a proposed amended complaint wherein plaintiff advised the court that:
GreenPoint, pursuant to an assignment executed on August 10, 2011, (and attached to the
proposed Amended Complaint), assigned the note and mortgage from itself to HSBC BANK
USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE
DEUTSCHE ALT-A SECURITIES INC., MORTGAGE LOAN TRUST, SERIES 2006-
AB1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AB1.
13. However, the original note endorsed in blank by GreenPoint was already filed with
this court in this action on February 20, 2009, so that it is an admission against interest by the
plaintiff and its lawyers that on August 10, 2011, the date of the above referenced assignment of
the mortgage and note, that GreenPoint had no interest in the note to transfer and no authority to
execute the August 10, 2011 assignment that the plaintiff filed with this court as an attachment to
the proposed amended complaint.
14. The proposed Amended Complaint was verified by Bank of America N.A. as
servicing agent for HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR
THE HOLDERS OF THE DEUTSCHE ALT-A SECURITIES INC., MORTGAGE LOAN
TRUST, SERIES 2006-AB1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-AB1.
15. The now substituted plaintiff requested leave to file the Amended Complaint to include
the naming of HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE
HOLDERS OF THE DEUTSCHE ALT-A SECURITIES INC., MORTGAGE LOAN
TRUST, SERIES 2006-AB1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-AB1 as the new plaintiff.
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16. The substituted plaintiff's motion for Leave to File an Amended Complaint to Verify
the Complaint was heard by Magistrate Bailey on October 8, 2012, but no recommended Order
was submitted by the magistrate on the motion.
17. Thereafter, plaintiff, through counsel, filed a Renewed Motion to Amend the
Complaint, and in this motion misadvised the court that in July 2010, GreenPoint had filed an Ex
Parte Motion to Substitute Plaintiff due to an assignment of the subject mortgage to HSBC
BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE
DEUTSCHE ALT-A SECURITIES INC., MORTGAGE LOAN TRUST, SERIES 2006-
AB1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AB1.
18. The plaintiff did not file any assignment of mortgage to support this assertion and the Court
thereafter adopted the recommendation of the Magistrate to deny the plaintiff's renewed motion
to amend the complaint by order filed on September 3, 2013.
19. The substituted plaintiff in this action remains HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1, as no other substitution has been ordered by this Court.
/
/
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FRAUD ON THE COURT
I. PLAINTIFF IS FULLY AWARE THAT ITS OWN Pooling and Servicing Agreement DEMONSTRATES A PRIMA FACIE LACK OF PLAINTIFF'S legal capacity to take an assignment of a non-performing/non-conforming loan in default.
20. The Pooling and Servicing Agreement (PSA) for HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE ALT-A
SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-AB1, MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES, 2006-AB1 is incorporated into this Motion and can be
linked to at the SEC website at: http://www.secinfo.com/dqTm6.v2jq.htm.
21. However, this Court DENIED HSBC BANK USA, NATIONAL ASSOCIATION, AS
TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE ALT-A SECURITIES, INC.,
MORTGAGE LOAN TRUST, SERIES 2006-AB1, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES, 2006-AB1 to be substituted as the plaintiff in this case.
22. Plaintiff and its lawyers told this Court that Greenpoint became HSBC BANK USA,
NATIONAL ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1 so that the later declaration to the court that Greenpoint
had assigned the note and mortgage to HSBC BANK USA, NATIONAL ASSOCIATION, AS
TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE ALT-A SECURITIES INC.,
MORTGAGE LOAN TRUST, SERIES 2006-AB1, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1 in August, 2011 was not possible given that according
to the plaintiff's prior admissions to this court, Greenpoint had already become HSBC BANK
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USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2006-AB1 a year before the claimed August 2011
assignment.
23. Greenpoint was not a party or otherwise involved in this foreclosure action in August 2011
and Greenpoint clearly had no authority, competency or capacity to execute the Assignment of
Mortgage in 2011, and the plaintiff's and plaintiff's lawyers statements to the court to the
contrary at a time the plaintiff and counsel were fully aware of this impossibility constitute clear
and convincing prima facie admissible evidence of fraud on this court and this defendant in this
foreclosure action.
24. The plaintiff and plaintiff's lawyers were fully aware that the closing date in the referenced
pooling and servicing agreement was January 31, 2006; that only performing loans could be
transferred into this trust and that on the date of the purported August 10, 2011 assignment from
GreenPoint, the subject loan was clearly in default and not performing.
25. It is clear, and the plaintiff and its lawyers were fully aware at the time of the filing of its
motion to substitute plaintiff that its own trust agreement - the referenced pooling and servicing
agreement - prohibits the transfer that this August 10, 2011 assignment purports to represent.
There is no way that the subject loan could have been transferred to the Plaintiff trust pursuant to
this assignment.
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26. Further, the subject loan did not qualify as a replacement loan that could be substituted into
the trust pursuant to the plaintiff's own pooling and servicing agreement (PSA) which requires
that any substituted loan must be substituted by January 31, 2008 and must also be performing.
27. And, the Mortgage Loan Purchase Agreement (MLPA) Exhibit J to the PSA (and
referenced by and relied upon by Magistrate Bailey in her order DENYING plaintiff's motion to
substitute, clearly requires that when the loan enters the trust as of the closing date, the original
mortgage note with a complete chain of endorsements, an original assignment of mortgage
executed in blank, the original mortgage, and the originals of any intervening assignments of
mortgage be transferred to the trust.
28. The PSA is the trust agreement that establishes the only legal or effective process by which
this New York Corporate Trust can acquire any loan including the loan that is the subject of this
action. The pooling and servicing agreement is filed of record with the Securities and Exchange
Commission; is a matter of public record and is filed of record by plaintiff in this action.
29. In fact, Section 10.02 of the PSA titled Prohibited Transactions and Activities
specifically prohibits the Trust from acquiring the subject mortgage in this action because
Section 10.02 states:
None of the Depositor, the Securities Administrator, the Master Servicer
or the Trustee shall sell, dispose of or substitute for any of the Loans
(except in connection with (i) the foreclosure of a Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of REMIC I, (iii) the
termination of REMIC I pursuant to Article IX of this Agreement, (iv) a
substitution pursuant to Article II of this Agreement or (v) a purchase of
Loans pursuant to Article II of this Agreement), nor acquire any assets for
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any REMIC (other than REO Property acquired in respect of a defaulted
Mortgage Loan), nor sell or dispose of any investments in the Distribution
Account for gain, nor accept any contributions to any REMIC after the
Closing Date (other than a Substitute Loan delivered in accordance
with Section 2.3), unless it has received an Opinion of Counsel, addressed to the Trustee (at the expense of the party seeking to cause such
sale, disposition, substitution, acquisition or contribution but in no event at
the expense of the Trustee) that such sale, disposition, substitution,
acquisition or contribution will not (a) affect adversely the status of any
REMIC as a REMIC or (b) cause any REMIC to be subject to a tax on
prohibited transactions or contributions pursuant to the REMIC Provisions.
30. The subject mortgage was not original or qualified for transfer to Trustee because the res of
the subject trust cannot consist of loans that do not meet the strict limitations contained in the
PSA that recite and incorporate the REMIC regulations that exist to specify the investments that
qualify for favorable tax treatment. See Section 10.1 Remic Administration, and section 1.1
Definitions, of the PSA and 26 USC 860A-860G.
31. Pursuant to the terms of the pooling and servicing agreement the plaintiff Trust lacks legal
capacity or competency and therefore cannot ever be the owner of Defendants loan despite all
claims of plaintiff and plaintiff's lawyers to the contrary.
32. The subject loan cannot be a qualified replacement mortgage which is defined in the
REMIC code (26 U.S.C 860G) and which definition is incorporated into the PSA.
Substitute Loan: A mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on the date of such
substitution, (i) have an outstanding principal balance, after application of all
scheduled payments of principal and interest due during or prior to the month of
substitution, not in excess of the Scheduled Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a Mortgage Rate not less than (and not more than
one percentage point in excess of) the Mortgage Rate of the Deleted Mortgage
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Loan, (iii) have a remaining term to maturity not greater than (and not more than
one year less than) that of the Deleted Mortgage Loan, (iv) have the same Due
Date as the Due Date on the Deleted Mortgage Loan, (v) have a Loan
33. The plaintiff affirmatively claims that the subject mortgage was in default at the time of the
assignment of mortgage and transfer of the subject loan and note to the plaintiff trust.
34. These facts are prima facie admissible evidence in this case that plaintiff and counsel were
fully aware of at the time the plaintiff made its material and culpable claims of loan ownership
and holder status to this court.
35. Plaintiff and counsel knew or should have known that such claims of holder/owner status
were material and false as it is clear and without debate that the subject mortgage loan did not
meet the credit grade requirement, and was not and could never be a qualified mortgage. and
could never become an asset of the plaintiff trust.
36. REMIC regulations issued by the IRS state:
Defective obligations--(1) Defective obligation defined. For purposes of sections
860G(a)(4)(B)(ii) and 860F(a)(2) [26 USCS 860G(a)(4)(B)(ii) and
860F(a)(2)], a defective obligation is a mortgage subject to any of the
following defects:
(i) The mortgage is in default, or a default with respect to the mortgage is reasonably foreseeable.
(2) Effect of discovery of defect. If a REMIC discovers that an
obligation is a defective obligation, and if the defect is one that,
had it been discovered before the startup day, would have
prevented the obligation from being a qualified mortgage, then,
unless the REMIC either causes the defect to be cured or
disposes of the defective obligation within 90 days of
discovering the defect, the obligation ceases to be a qualified
mortgage at the end of that 90 day period.
26 CFR 1.860G-2(f)
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37. The subject mortgage in default was a defective obligation, not a qualified
mortgage and clearly could not have been a qualified substitute mortgage when
allegedly assigned to Plaintiff.
38. The subject mortgage is not (Real Estate Owned) REO property. This fact is
important with respect to the presentation of prima facie admissible evidence of fraud on
this court by plaintiff and counsel because REO property is defined in and limited by
the PSA in the Definitions section:
A Mortgaged Property, title to which has been acquired by a Servicer on behalf of the Trust Fund through foreclosure, deed in lieu of foreclosure or otherwise.
REO property is Trust property acquired upon the default of a mortgage loan that is already a
part of the mortgage pool.
39. There is No Opinion of Counsel. Another showing of prima facie fraud on the court by
plaintiff and counsel is revealed by the contents of the PSA and the REMIC regulations
incorporated therein that the plaintiff and counsel are held accountable for being fully aware of,
to wit:
A REMIC shall not generally be subject to taxation and pursuant to the PSA, an Opinion of
Counsel is required before the trustee could legally acquire the subject loan by assignment. 26
USCS 860A. Section 2.3(b) states:
the Seller shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal
tax to be imposed on any REMIC, including without limitation, any federal
tax imposed on prohibited transactions under Section 860F(a)(1) of the Code or on contributions after the startup date under Section 860G(d)(1) of the Code, or (b) any REMIC to fail to qualify as a REMIC at any time that
any Certificate is outstanding.
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The PSA defines Opinion of Counsel as follows:
Opinion of Counsel: A written opinion of counsel, who may, without limitation, be salaried counsel for the Depositor, the Servicer, the Securities
Administrator or the Master Servicer, acceptable to the Trustee, except that any
opinion of counsel relating to (a) the qualification of any REMIC as a REMIC or
(b) compliance with the REMIC Provisions must be an opinion of Independent
counsel.
40. In this case there can not be an opinion of independent counsel because the subject mortgage
never qualified as foreclosure property or a qualified substitute mortgage and was a
defective obligation under the REMIC tax provisions.
41. Marras mortgage was not a foreclosure property because it was never bank owned
property.
42. Marras loan was not a qualified substitute mortgage because at the time of substitution it
would have been a defective obligation under the REMIC tax provisions because it was in non-
performing/in default.
43. Foreclosure property is a permitted investment but the property must have first been
included in the Trust as a qualified mortgage so this is not applicable to the subject loan. 26
U.S.C. 860F.
44. The REMIC Code defines Foreclosure property, as follows:
Foreclosure property means property (A) which would be foreclosure property under section 856(e) [26 USCS
856(e)] (without regard to paragraph (5) thereof) if acquired by a real
estate investment trust, and
(B) Which is acquired in connection with the default or imminent default of a qualified mortgage held by the REMIC. 26 USCS 860G
The term foreclosure property does not include property acquired by the real estate investment
trust as a result of indebtedness arising from the sale or other disposition of property of the trust
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described in section 1221(a)(1) [26 USCS 1221(a)(1)] which was not originally acquired as
foreclosure property. 26 USCS 856(e).
Property is not eligible for the election to be treated as foreclosure property if the loan or lease with respect to which the default occurs (or is imminent) was
made or entered into (or the lease or indebtedness was acquired) by the trust
with an intent to evict or foreclose, or when the trust knew or had reason to
know that default would occur ("improper knowledge"). 26 CFR 1.856-6.
45. The Plaintiff and counsel were fully aware that the Plaintiff had no power to acquire or take
assignment of the subject mortgage at the time the plaintiff and counsel advised the court of the
opposite.
46. The reason that the plaintiff cannot ever acquire or take assignment of the subject mortgage
is because such acquisition or assignment is a prohibited transaction under the plaintiff's own
trust agreement:
Section 10.1(b) of the PSA states:
The Closing Date is hereby designated as the Startup Day of each REMIC created hereunder within the meaning of Section 860G(a)(9) of the Code.
Section 10.1(i) of the PSA states:
Following the Startup Day, the Trustee shall not accept any contributions of
assets to any REMIC other than in connection with any Substitute Mortgage
Loan delivered in accordance with Section 2.3 unless it shall have received an
Opinion of Counsel addressed to it to the effect that the inclusion of such assets
in the Trust Fund will not cause the related REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding or subject such REMIC to any tax
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
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47. The purported assignment presented to this court by plaintiff and its counsel is void.
48. Plaintiff and counsel were fully aware of the above at the time they told this court that the
assignment created or transferred legal rights and status to the plaintiff to sue on the underlying
note or foreclose the subject mortgage.
49. Section 11.4 of the Pooling and Servicing Agreement states:
Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
50. Applicable New York common law, made applicable to the Plaintiff pursuant to the specific
terms of its own trust agreement, precludes the trustee from ratifying any ultra vires act of the
trust performed by the agents of the trust in contravention of the PSA. Such an act would be
void.
51. The plaintiff trust and plaintiff's counsel told this court that the plaintiff had legal status and
capacity and competency to foreclose the subject mortgage and to sue on the underlying note
while the plaintiff and counsel were fully aware that plaintiff was precluded from claiming such
status on account of the fact that any effort to do so is clearly ultra vires, in contravention of the
PSA and rendered void.
Fraud on the Court WHEN GreenPoint Was the Plaintiff
52. GreenPoint Mortgage was the plaintiff from January 11, 2008, until July 7, 2010, when the
Court, in reliance on the documents filed by GreenPoint, granted GreenPoints ex parte motion to
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substitute party plaintiff to HSBC BANK USA, NATIONAL ASSOCIATION, AS
TRUSTEE FOR THE MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-
AB1.
53. The March 28, 2008, Assignment of Mortgage and Note from MERS to Greenpoint that
Greenpoint filed with this court (on July 14, 2009) is clear and convincing prima facie admissible
evidence of fraud on the Court committed by Greenpoint and Greenpoint's counsel because at the
time of the filing of said assignment, in July 2009, Greenpoint and its counsel were fully aware
that the March 28, 2008, Assignment of Mortgage and note from MERS, as mortgagee, to
Greenpoint, on it face, established that Greenpoint did not own or hold the note or the subject
mortgage until the March 28, 2008 date of assignment which assignment to Greenpoint occurred
AFTER the filing of this foreclosure action on January 11, 2008.
54. Additionally, at the time that Greenpoint and counsel filed the referenced Assignment of
mortgage AND NOTE from MERS, Greenpoint and counsel were fully aware that MERS does
not ever hold or own promissory notes so that the representation to this court to the contrary is
clear and convincing prima facie admissible evidence of material and culpable fraud on this
court.
55. MERS declared in Mortgage Electronic Registration Systems, Inc. v. Nebraska Department
of Banking, 704 N.W.2d 784,787 (Neb. 2005), that it does not acquire mortgage
loansbecause it only holds legal title to members mortgages in a nominee capacity and that
it does not own the promissory notes secured by the mortgages and has no right to payments
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made on the notes. MERS clearly states that it merely immobilizes the mortgage lien while
transfers of the promissory notes and servicing rights continue to occur. Ibid.
56. Clearly Greenpoint and counsel were fully aware that MERS had no authority to assign the
subject promissory note.
Fraud on the Court By HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2006-AB1
57. At the time that Greenpoint (and the substituted plaintiff, HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1) filed the July 6, 2010 Motion to Substitute Plaintiff,
Greenpoint and HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR
THE MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AB1 and counsel
were fully aware that Greenpoint never became known as HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1.
58. Greenpoint, HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR
THE MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AB1 and counsel
were fully aware at the time of the filing of the July 6, 2010 motion that Greenpoint was in fact
acquired by Capital One, NA in mid-2007 as part of a conversion and merger with North Fork, a
state bank that closed immediately thereafter in August of 2007.
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59. Additionally Greenpoint, HSBC BANK USA, NATIONAL ASSOCIATION, AS
TRUSTEE FOR THE MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-
AB1 and counsel were fully aware at the time of the filing of the July 6, 2010 motion that
HSBC Bank USA, N.A. was established in July 2004 as a National Bank.
60. Plaintiff and plaintiffs attorneys' statement to this court, set out in the July 6, 2010 motion,
that Greenpoint became known as HSBC BANK USA, NATIONAL ASSOCIATION, AS
TRUSTEE FOR THE MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AB1 is
prima facie admissible evidence of material and culpable fraud on this court because plaintiff and
counsel were fully aware that Capital One Financial Corporation filed a Report with the Office
of the Comptroller of the Currency, dated January 2, 2007, wherein Capital One declares that it
had acquired Greenpoint by the date of that Report.
61. Clearly Greenpoint, was an acquisition of Capital One and never become known as HSBC
Bank USA an entirely different banking institution as stated to this court by Greenpoint and
HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-AB1 and counsel.
62. As of July 7, 2010, the Plaintiff in This Case is HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1 and Remains so at the present time.
63. However, at the time that the Motion for Leave to File Amended Complaint to Verify the
Complaint was filed with this court on July 11, 2012 by the substituted plaintiff and counsel for
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substituted plaintiff, which motion incorporated the purported August 10, 2011 assignment of
mortgage (and note) from Greenpoint to HSBC BANK USA, NATIONAL ASSOCIATION,
AS TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE ALT-A SECURITIES INC.,
MORTGAGE LOAN TRUST, SERIES 2006-AB1, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1, the substituted Plaintiff and its lawyers were fully
aware that it had already told the court that Greenpoint became HSBC BANK USA,
NATIONAL ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1.
64. As Magistrate Bailey stated in her Recommended Order which was adopted by order of this
court: GreenPoint had no ability to execute another Assignment of Mortgage in 2011.
(emphasis added)
65. The purported August 10, 2011, assignment of mortgage (and note) from Greenpoint to
HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS
OF THE DEUTSCHE ALT-A SECURITIES INC., MORTGAGE LOAN TRUST, SERIES
2006-AB1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AB1 filed by
plaintiff and counsel is prima facie clear and convincing admissible evidence of deliberate
material and culpable fraud on the Court.
66. Another reason that the substituted plaintiff and counsel were fully aware that the purported
August 10, 2011 assignment of mortgage and note (prepared by Kahane and Associates) was an
impossibility and/or void at the time of the filing of said assignment with this court is because
such a transfer of the subject note and mortgage could not legally happen after the January 31,
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2006 closing date of the PSA that controls HSBC BANK USA, NATIONAL ASSOCIATION,
AS TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE ALT-A SECURITIES INC.,
MORTGAGE LOAN TRUST, SERIES 2006-AB1, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1 and that said PSA only allows new loans to be
transferred into the trust that are performing loans at the time of the transfer.
67. Substituted plaintiff and counsel were fully aware pursuant to the complaint allegations that
at the time that the August 10, 2011 was purportedly executed, the subject mortgage was not
performing (in default) and that the applicable PSA prohibits the transfer this assignment
purports to represent.
68. The Substituted Plaintiff's Renewed Motion for Leave to File Amended Complaint and
Memorandum of Law in Support Thereof filed with this court on May 16, 2013 recounts a self-
serving and clearly erroneous procedural history (as Magistrate Bailey noted).
69. In paragraph 3 of the above referenced renewed motion, substituted plaintiff and counsel
erroneously claimed, and advised this court that back in July 2012, the first filed ex parte motion
to substitute named HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR
THE HOLDERS OF THE DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE LOAN
TRUST, SERIES 2006-AB1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES,
2006-AB1 as the substituted plaintiff.
70. Clearly this is not the case, and substituted plaintiff and counsel were fully aware that the
first motion to substitute dealt with the substitution of HSBC BANK USA, NATIONAL
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ASSOCIATION, AS TRUSTEE FOR THE MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AB1.
71. The substituted plaintiff and counsel were fully aware at the time of the filing of the renewed
motion to substitute, that the statement in this Motion -- [t]hat on or about July 2, 2010, prior
counsel for the Plaintiff filed an Ex Parte Motion to Substitute Plaintiff due to an assignment of
mortgage which transferred the interest on this loan to the current plaintiff, HSBC BANK USA,
NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE
ALT-A SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-AB1,
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES, 2006-AB1. -- was a material
false statement of fact on account of the fact that pursuant to the filings in the court record there
was no assignment dated on or before July 2010 to HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE ALT-A
SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-AB1, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES, 2006-AB1.
72. Substituted Plaintiff directed this Court in the court record to the PSA for HSBC BANK
USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE
DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-
AB1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES, 2006-AB1 which is
filed with the SEC and linked at http://www.secinfo.com/dqTm6.v2Jq.htm.
73. The provisions of this PSA conflict with the substituted plaintiff and the plaintiff's lawyers
claims that the August 10, 2011 Assignment of mortgage (and note) that was created by
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Plaintiffs attorneys and filed with this Court on July 11, 2012 purporting to assign the subject
Mortgage together with the note from GreenPoint to HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE ALT-A
SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-AB1, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES, 2006-AB1 is Fraud on this Court.
74. As Magistrate Bailey noted in her Recommended Order, After taking into consideration the
above-cited information from the PSA, it appears that the transfers that have been variously
asserted by the Plaintiff in several Motions and/or documents attached to those Motions as
conferring standing upon it could not have possibly occurred as the Plaintiff represents. Further,
the Magistrate cannot conceive of any manner in which the Plaintiff could possibly create
additional documentation in an effort to manufacture standing in this action.
75. The determined obfuscation continues in the Renewed Motion to substitute which names the
Plaintiff as GreenPoint Mortgage Funding, Inc..
76. The Renewed motion ignores the fact, and substituted plaintiff and counsel expect this court
to ignore the fact, that HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE
FOR THE MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AB1 is the
substituted Plaintiff in this case.
77. Substituted Plaintiff and counsel also obfuscate by referring to HSBC BANK USA,
NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE
ALT-A SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-AB1,
22
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES, 2006-AB1 in the renewed
motion as the current Plaintiff, which it is not.
78. It is clear that the July 11, 2012 Motion and Purported August 10, 2011 Assignment of
Mortgage together with the note Prepared by Attorneys for Plaintiff, Kahane and Associates,
are fraudulent documents created and filed by Plaintiffs attorneys for the purpose of this
litigation in an effort to manufacture standing, and constitute Fraud on the Court.
79. In July 2010, Plaintiff and plaintiffs lawyers had already told this Court that Greenpoint
became HSBC Bank USA, National Association, as Trustee for the Mortgage Pass-Through
Certificates, Series 2006-AB1.
80. Based on the above described July 2010 statements made to this court, it is clear that there
could be no assignment from Greenpoint to HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE DEUTSCHE ALT-A
SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-AB1, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES, 2006-AB1 in August of 2011 since,
according to the plaintiff, Greenpoint had already become HSBC Bank USA, National
Association, as Trustee for the Mortgage Pass-Through Certificates, Series 2006-AB1, a year
earlier.
81. Greenpoint was out of this case by August 2011, and as Magistrate Bailey stated in her
Recommended Order, GreenPoint had no ability to execute another Assignment of Mortgage in
2011.
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WHEREFORE, Defendants request judgment providing no relief to Plaintiff, and that
the Court dismiss the Complaint with prejudice, and for judgment in favor of Defendant against
Plaintiff, and for an award of attorneys fees and costs, and for such other and further relief as is
deemed equitable and to which defendant proves herself entitled to penalize Greenpoint,
substituted plaintiff and counsel for the above described material and culpable fraud on the court
and on this defendant.
Respectfully submitted,
/s/ April C. Charney, Esq.
April Charney, Esq. FBN 310425, pro bono attorney
Robin L. Stover, Esq. FBN 0064494
Mary Catherine Rooney, Esq. FBN 0089219
GULFCOAST LEGAL SERVICES, INC.
1750 17th
Street, Unit I
Sarasota FL 34234
941-366-1746
Fax: 941-366-2314
With Notice of Email Address for Service of Court Documents pursuant to Fla. R. Jud. Admin.
2.516(b)(1)(A) designated as:
Primary email: [email protected]
Secondary Email: [email protected]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Answer to counsel
for plaintiff, at designated email for service:
Kahane & Associates, P.A.
8201 Peters Road, Ste. 3000
Plantation, FL 33324
This 8th day of January 2014.
/s/ Robin L. Stover, Esq.
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