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NYSCEF DOC. NO. 88
I am before the court by special appearance without waiving any rights remedies or
defenses, statutory or procedural
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS
THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-31CB)
Plaintiff,
-against-
Carlyne Desir, New York City Environmental Control Board, New York City Parking
Violations Bureau, New York City Transit Adjudication Bureau and “JOHN DOE #1
Through “JOHN DOE #10”, the last ten names being fictitious and unknown to the
plaintiff, the person or parties intended being the persons or parties, if any, having or
claiming an interest in or lien upon the Mortgaged premises described in the Complaint,
NOTICE MOTION ORDER
INDEX NO: 507782/2015
NOTICE OF ADVERSE CLAIM, MOTION AND DEMAND FOR AN ORDER,
TO VACATE DECISION AND ORDER OF FORECLOSURE SALE AND
REFEREE JUDGMENT. MOTION TO DISMISS UNVERIFIED COMPLAINT
AND SUMMERY JUDGEMENT, DISMISSING COMPLAINT WITH
PREJUDICE OR CONTINUE TO TRIAL. STAY OF EXECUTION PENDING
APPEAL.
PLEASE TAKE NOTICE, that motion will be heard in the above captioned court. The
defendant CARLYNE DESIR, duly sworn to on 1 day of November, 2016, and upon all
prior pleadings and proceedings documents herein, the undersigned will apply to this
Court at room 955 or Part to be assigned, at the Courthouse thereof, located at 360
Adams Street, Brooklyn, New York 11201 on the 14th day of November 2016, at 9:30
‘Am or as soon thereafter defendant can be heard, for an order. (1) Dismissing all causes
of action against defendant CARLYNE DESIR, with prejudice, because triable issues of
facts still exist and each fact is not disputed. (2) I don’t believe the complaint has been
signed or put under oath. There no verified complaint. (3) Plaintiff did not file the
original mortgage and promissory note with the complaint as required by law and the
court should not proceed in the absence of an indispensable party, to wit, the actual
owner of the mortgage and note for 1192 E46th street Brooklyn New York 11234 (4)
adverse claim (5) dismissing all causes of action against defendant CARLYNE DESIR,
with prejudice, because said defendant’s proof that plaintiff is not the actual owner of the
valid mortgage and valid note and therefore lacks standing to bring this action, is based
upon documentary evidence; and/or (5) cancelling the Notice of Pendency if any and
recording a Satisfaction of mortgage, which indicates that all obligations associated with
this mortgage have been fulfilled (fully paid) (6) awarding sanctions and fees to
defendant CARLYNE DESIR because plaintiff submitted a fraudulent documents (de
1 of 21
INDEX NO. 507782/2015
RECEIVED NYSCEF:
11/02/2016facto) on the Court; and (6) for such other and further relief as the Court deems just and
proper.
PLEASE TAKE FURTHER NOTICE, answer and supporting affidavits, shall be served
and/or attached. Defendant Carlyne Desir hereby objection to decision and order of
foreclosure sale. There are many issues of facts to be determined. This is not a matter in
which everything is undisputed. | don’t believe the complaint have been signed and put
under oath. The complaint was not verified. New York Civil Practice Law and Rules §
3020 verification.
FACTS:
1). Frivolous suit the case holds no merit. Lien was not perfected and no verified
complaint. The Deed of Trust was not signed by the bank.
2). THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF BANK OF NEW YORK, WHERE THERE
EXISTED A GENUINE ISSUE OF MATERIAL FACT
3). Triable issues of facts still exist and each fact is not disputed. I don’t believe the
complaint has been signed or put under oath. 1) There no verified complaint. 2) No
original mortgage and note filed with court 3) need to post bond cost. 4) No Assignment
was pleaded in the complaint. 5) Chain of title broken. 6) No credit given on HUD for
pre-paid tax and insurance 7) No disclosure of the real party funding my loan 8)
undisclosed third party under the statute of frauds 9) adverse claim. I don’t see attorney
has authority from the plaintiff. A triable issue of material fact as to whether Bank of
New York Mellon had a beneficial interest in my property at the time it purported to
initiate foreclosure proceedings. Request for original mortgage and note CPLR 3120:
Discovery, production of documents and things for inspection, dishonor.
4). Court error to enter judgment of foreclosure where the only evidence offered to
support the amount of indebtedness was inadmissible hearsay. Computer printout
purportedly showing fees, expenses, and balance due on note and mortgage was not
admissible under business records exception to hearsay rule where printout was not
authenticated by affidavit and by a records custodian or person with knowledge of
elements required for the business records exception. Admission of witness’s testimony
about the loan balance and the admission of computer printouts witness were called to
authenticate constituted reversible error where witness’s only knowledge about the
amount due came from her review of the printouts, and they had no information about
how and when those records had been prepared or where the data came from. Issue of
sufficiency of evidence to support judgment was properly preserved for appellate review.
Further, challenge to sufficiency of evidence to support judgment is cognizable on appeal
regardless of specificity of objections where trial was a bench trial. “Trial court also erred
in denying motion to dismiss for lack of prosecution — Remand for entry of order of
dismissal.” LLOYD STEVE BURDESHA W and TERESA BURDESHAW, Appellants,
y. THE BANK OF NEW YORK MELLON (FKA The Bank of New York), AS
2 of 21TRUSTEE FOR MASTR ALTERNATIVE LOAN TRUST 2006-2, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-2, Appellee. Ist District, Case No.
1D13-2703.
5) Judge Hon Kenneth P. Sherman completely ignore Motion to Dismiss references on
Florida Capital Bank, N.A. DBA Florida Capital Bank mortgage gave no consideration
for the loan, bank gave “credit”, and there is a default mortgage insurance that paid the
mortgage in full. Securitization loan paid in fall by investors and loan FRAUD. Cross-
Motion has new discoveries loan funding amount. Defendant denies the claims of the
Plaintiff, Affidavit of Nicole Lyn Matthews on September 11, 2015 and a demand that
the Plaintiff prove up its claim of Prima Facie case. The loan is paid off with the original
lender "Florida Capital bank dba Florida Capital Bank Mortgage", its successors and/or
assigns including investors. Contrary to Plaintiffs’ argument, Defendant does not admit
that there was a valid Note or valid mortgage and DOT was properly transferred to the
‘Trust. Furthermore, does not admit to default on making payments on the loan. (1) Denial
and objection to Plaintiff valid note, valid mortgage and default on loan payments (2)
First claim for relief to invalidate lien.
6) New York Civil Practice Law and Rules Rule Fraud Under CPLR § 5105(a)(3) Relief
from judgment or order. It is well settled that "pursuant to CPLR §5015, a court may
vacate a judgment or order on the basis of fraud, misrepresentation, or other misconduct
of an adverse party.” (Beltway Capital, LLC v. Soleil, 104 AD3d 628, 631 [2nd Dep't
2013] citing CPLR §5015 (a)(3).)
“In order to establish prima facie entitlement to summary judgment in
a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with
evidence of default.” (Capstone Bus Credit, LLC v Imperia Family Realty, LLC, 70
AD3d 882, 883 [2d Dept 2010]; see also GRP Loan, LLC v Taylor, 95 AD3d 1172. 1173-
74. [2d Dept 2012]; U.S. Natl. Assn. Tr U/S 6/01/98 [Home Equity Loan Trust 1998-2] v
Alvarez, 49 AD3d 711, 711 [2d Dept 2008].) Plaintiff “must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact.” (See Alvarez v Prospect
Hosp., 68 NY2d 320, 324 [1986].) Plaintiff must tender “evidentiary proof in admissible
form.” (SeeZuckerman v New York, 49 NY2d 557, 562 [1980].)
“When the issue of standing is raised by a defendant, a plaintiff must prove its standing in
order to be entitled to relief.” (GRP Loan, LLC v Taylor, 95 AD3d at 1173.)
“On any application for judgment by default, the applicant shall file proof of service of
the summons and complaint, and proof of the facts constituting the claim, the default and
the amount due.” (CPLR 3215 [f].) The proof must establish a prima facie case.
(See Walley v Leatherstocking Healthcare, LLC, 79 AD3d 1236, 1238 [3d Dept
2010); Green v Dolphy Construction Co., Inc., 187 AD2d 635, 637 [2d Dept
1992]; Silberstein v Presbyterian Hosp. in the City of NY, 96 AD2d 1096, 1096 [2d Dept
1983]; see also Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003] [“viable
cause of action” ].) “There is no mandatory ministerial duty to enter a default judgment
3 of 21against a defaulting party.” (Superior Dental Care, P.C. v Hoffman, 81 AD3d 632,
634[2d Dept 2011] [internal quotation marks and citation omitted].)
7). Assignment of Mortgage dated July 5, 2011 from MERS to Plaintiff, transferring the
Mortgage. There’s no showing that MERS would have had the power or authority to
do so. MERS and Standing, Assignment from MERS when MERS is designated merely
as nominee of lender, and never owned note, is ineffective to confer standing on its
assignee. Bank of New York v. Silverberg, 86 A.D. 34274, 926 N.Y.S. 2d 532 (2d Dep’t
2011) There is no evidence of “MERS’s right to, or possession of, the actual
underlying promissory note” (sce id. at 279), and, if based only upon the Assignment of
Mortgage, Plaintiff would lack standing to maintain this foreclosure action (see id. at
283.) UCC 3-501 requires a lender to “exhibit the note” when the lender
makes demand for payment, and the borrower demands to see the note. UCC
3-501 also requires a servicer to show authority to make a demand for
payment, if it does not own the note, but is merely servicing it (ExHibit A
MERS mortgage assignment).
8). Foreclosing plaintiff must own the note and the mortgage at the inception of the
action, Deutsche Bank National Trust Co. v. Bamett, 88, A.D. 3d 636, 931 N.Y.S, 2d
630, (2d Dep't 2011); Kluge v. Fugazy, 145 A.D. 2d 537, 536 N.Y. S. 2d 92 (2d Dep’t
1988) failed to show that the beneficial interest in the Note and Deed of Trust were
“transferred Bank of N.Y. Mellon v. Dean, 2013 NY Slip Op 23224 (Kings Cty.,
Battaglia, J. July 11, 2013) (plaintiff failed to establish prima facie entitlement to
judgment of foreclosure: Assignment of mortgage from MERS to plaintiff, which did not
purport to assign note, was insufficient to confer standing; unauthenticated Pooling and
Servicing Agreement excerpts did not suffice to establish plaintiff's standing: affidavit in
support of summary judgment motion of physical delivery was neither based on personal
knowledge nor adequately specific and failed to establish that assignor to plaintiff ever
had possession of the note).
BANK SCHEME TO DEFRAUD “any plan, device, or course of action that deprives
another of money or property by means of false or fraudulent pretenses, representations
or promises.” U.S v. Males, 459 F.3d 154, 157 (2d Cir. 2006). “It is, in other words, a
plan to deprive another of money or property by trick, deceit, deception, swindle or
overreaching.” Civil Procedure Rule 60: Relief from Judgment or Order.
9) My loan is paid off with the original lender "Florida Capital bank dba Florida Capital
Bank Mortgage", its successors and/or assigns. All payments owed by the defendant
under the contract have been paid. Plaintiff failed to meet his burden of proof.
Defendant’s Right to Discovery under Civil Rule 36 prior to Summary Judgment.
Requiring Original Documents, FR 2046 balance sheet, 1099 OID, Mandatory filing
pursuant to Title 12 U.S.C. 248 & 347, S3-A registration Statement, 424 B-5
Prospectus, RC-S & RC-B Call schedules, FASB and GAAP, FAS 125, 133, 140, 5,
95 etc. Total Disclosure from the Mortgage Lender from the start of the loan, Iam
demanding a copy of the Bond.
4 of 2110) The original lender never give consideration for the loan, they only give eredit and
money from pool of unidentified lenders/investors. Furthermore, the mortgage agreement
page 2 of 10, letter (O) stated “Mortgage Insurance” means insurance protecting
Lender against the nonpayment of, or default on, the Loan” highlighted (Exhibit B.
Mortgage)attached to Cross-Motion. The Default Insurance mortgage paid the investors
and bank mortgage and/or assignors based on alleged default. THE BANK OF NEW
YORK Mellon FKA The Bank New York, (CWALT 2006-31CB) have failed to establish
a genuine issue of material fact exists concerning Defendant’s Claims. Under The
Pooling and Servicing Agreement Dated September 28, 2006 (“PSA”) and Defendant is
entitled to summary judgment. THE BANK OF NEW YORK Mellon FKA The Bank
New York, (CWALT 2006-31CB) was not Defendant’s original lender and any rights it
possesses comes through the PSA, which is governed by Article 9 of the Uniform
Commercial Code, not Article 3.
11). True and correct copies of pertinent pages of the PSA are attached. The Cut-Off Date
of the Trust was September 1, 2006 and the Trust’s Closing Date was September 28,
2006. Pursuant to the Trust, Defendant’s Note and DOT had to be transferred to the Trust
by the Closing Date, which did not occur (Exhibit C. PSA).
12).My loan was securitized MERS Min #100411741161000062. This is an investment
contract that they are holding me liable for which I’m not a party of the Pooling and
Servicing Agreement (PSA). The mortgage is simply a security agreement which I signed
fraudulently because they failed to disclose that my note was going to be a funding for
the security organization. Read 15 U.S.C. §78¢ Section 10; Swap agreement shall be
yoid and of no force or effect Mortgage amount $332,000.00 and total payments with
interest etc $765, 301.97. The amount of money received from third party (investors)
payments $874,000,000.00 highlighted in SEC documents. Third parties payments are
provided in the securitization documents but undisclosed to both real parties of interest
alleged borrower and investor. Therefore, loan was never in default. Proof mortgage is
PAID. (Exhibit D. (SEC) Securities and Exchange Commission securitization
documents) attached to cross-Motion. The Movant has no basis in fact for attempting
enforcement of the obligation, note or mortgage. The equitable claim for lien on alleged
borrower property 1192 E46th Street Brooklyn New York 11234 is extinguished by
virtue of the fact that amounts $874,000,000.00 received offset any scheduled payments
in the past, present and future. Securitization, Loan Paid and FRAUD. I denied the
amount due, GENUINE ISSUES OF MATERIAL FACT.
13).The chain of title is broken in both the note and mortgage. Mortgage and the note was
bifurcation, they went to MERS as a electronic holder. Countrywide and the Kemp case,
women employee from countrywide testified that none of the note is transferred. MERS
did not take physical possession of the mortgage and note. Where is the chain of title
from Florida Capital Bank, N.A. DBA Florida Capital Bank mortgage to Bank of
America and then to THE BANK OF NEW YORK Mellon FKA The Bank New York,
(CWALT 2006-31CB) Obligation is not secured, split of the note and mortgage (Exhibit
E.) Carlyne Desir notarized affidavit and (Exhibit F.) Bayview, Bank of. America
5 of 21BONY Current owner) highlighted. Bayview documents states that Bank of America is
the current owner of the loan then why am I in court with Plaintiff.
14). [ have a property interest in the financial assets UCC3-306 property interest. Notice
of “Adverse Claim UCC 8-105". I have a proprietary interest in the proceeds from the
security. The Bond that was sold to the investors was done by my signature and identity
without alleged borrower permission. Security investment undisclosed third party under
the statute of frauds. I’m the creditor because I put up the security for the loan
$332,000.00. I can’t find a lien anywhere, which mean mortgage is paid off. I need my
Security Instruments back. GENUINE ISSUES OF MATERIAL FACT.
UCC article 8 entitlement and Kickbacks under 2607 of Title 12 RESPA
California Civil code 2941 release lien
U.C.C. - ARTICLE 8 - INVESTMENT SECURITIES (1994)
§ 8-102 and 8-105. DEFINITIONS.
(a) In this Article:
(1) "Adverse claim" means a claim that a claimant has a property interest in
a financial asset and that it is a violation of the rights of the claimant for
another person to hold, transfer, or deal with the financial asset.
(a) § 8-105 A person has Notice of an adverse claim if:
(1) the person knows of the adverse claim;
(2) the person is aware of facts sufficient to indicate that
there is a significant probability that the adverse claim
exists and deliberately avoids information that would
establish the existence of the adverse claim; or
(3) the person has a duty, imposed by statute or regulation, to
investigate whether an adverse claim exists, and the investigation so
required would establish the existence of the adverse claim.
15). Truth in Lending Disclosure Fraud, conspiracy scheme, conversion and Breach of
contract/agreement. Bayview is my loan servicer and they are the one bringing this action
on behalf of the creditor, Bayview is a third party debt collectors. Securitization is Illegal,
criminal and civil liability. Bayview and Firm of Frenkel, Lambert, Weiss, Weisman &
Gordon, LLP attorney for plaintiff need to CEASE AND DESIST proceedings.
GENUINE ISSUES OF MATERIAL FACT.
Federal Bureau of Investigation (“FBI”), announce that defendant Steven Gordon
Executive of Bayview, in Coral Gables, Florida, pled guilty in Mortgage Securitize
Scheme. The case is U.S. vy. Gordon, case number 08-cr-21103, in the U.S. District
Court for the Southern District of Florida.
6 of 2116). THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-
31CB) Claim is allegedly secured by the Debtor’s real property commonly referred to as
1192 East 46" street Brooklyn New York 11234 (the “Property”). THE BANK OF NEW
YORK Mellon FKA The Bank New York, (CWALT 2006-31CB) has the burden to
prove its legal standing concerning the Promissory Note dated June 22, 2006 (“Note”)
and Deed of Trust recorded on June 22, 2006 (“DOT”) in favor of Florida Capital Bank.
‘A true and correct copy of the Note is attached and the DOT. THE BANK OF NEW
YORK Mellon AKA The Bank New York, (CWALT 2006-31CB) is improperly
attempting to foreclose on my Property base on FRAUD and Breach of contract.
17). Plaintiff Motion is based entirely on the Affidavit of Nicole Lyn Matthews and
Randall Jackson who fails to provide any competent evidence of THE BANK OF NEW
YORK Mellon AKA The Bank New York, (CWALT 2006-31CB) ownership of the
Defendant’s Note. There not a single document attached to the Claim that evidences THE
BANK OF NEW YORK Mellon AKA The Bank New York, (CWALT 2006-31CB)
ownership of Defendant’s loan. No objection to claim of bogus assignments of the DOT.
Defendant’s Cross-Motion should be granted and the THE BANK OF NEW YORK
Mellon AKA The Bank New York, (CWALT 2006-31CB) Claim dismiss and its alleged
lien invalidated as it is admittedly not a perfected secured creditor. The undisputed
evidence is that Defendant’s Note and DOT have never been assigned to the Trust, and
further any alleged attempts to deliver the Note and DOT to the Trust or assign Debtor's
DOT to THE BANK OF NEW YORK Mellon AKA The Bank New York, (CWALT
2006-31CB) were illegal and more than 5 years after the Trust admittedly closed. Finally,
the Note is not negotiable, Pursuan to Article 3.
18). Civil Procedure Rule 60: Relief from Judgment or Order provides in pertinent
part: On motion and upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, decree, order, or proceeding for the following
reasons. (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) that the judgment or
decree is void; This rule does not limit the power of a court to entertain an independent
action to relieve a party from a judgment, decree, order, or proceeding or to set aside a
judgment or decree for fraud upon the court.
19). First Lien security instruments, Master Mortgage form. Master Mortgage, recorded
instrument but no copy of the Master Mortgage is attached to complaint from review of
the mortgage attached. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF
COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2010-12-7967. “We
cannot discern the conditions precedent to the commencement of a foreclosure action.
Thus, based upon the allegation of compliance with the conditions precedent, we can
only presume that these conditions are set forth within the Master Mortgage, which was
not attached to the complaint, in contravention of Civ.R. 10(D). Under these
circumstances, we conclude that a material question of fact existed as to the terms set
forth in the Master Mortgage, and, as the affidavit in support of the motion for summary
judgment did not supply the missing terms of the mortgage or incorporate a copy of the
Master Mortgage, Third Federal failed to meet its initial Dresher burden of establishing
7 of 21the absence of a question of material fact on this issue. Accordingly, the trial court erred
in granting summary judgment in favor of Third Federal.” I need to see the first lien. New
York - Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT (Form
3033) GENUINE ISSUE OF MATERIAL FACT.
Furnished via US certified Mail November 1, 2016 to Joshua Sherer Attorney for
Plaintiff Frenkel Lambert Weiss Weisman & Gordon, LLP. 53 Gibson Street Bay Shore,
NY 11706. Furthermore, an electronic copy was delivered to Plaintiff attorney on the
Si y 1 day of ber, 2016 File: 01-043892-F01
Teserving all ri
IN WITNESS WHEREOF, this Notice of Motion ord
UTGHRISYOMHER Gow?
sof November, 2016. Executed in the presence of: Notary Public - State of Florida
eal) Commission # FF 900869
My Comm. Expres Aug 29, 2019
DEFENDANT’S EMERGENCY MOTION TO VACA‘
defendant, Carlyne Desir, PRO SE DEFENDENT, and hereby file a motion and deand
to vacate foreclosure judgment, pursuant to Civil Procedure Rule 60: Relief from
Judgment or Order states:
Civil Procedure Rule 60: Relief from Judgment or Order provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, decree, order, or proceeding for the following
reasons:... (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) that the judgment or
decree is void; This rule does not limit the power of a court to entertain an independent
action to relieve a party from a judgment, decree, order, or proceeding or to set aside a
judgment or decree for fraud upon the court.
‘The Plaintiff has committed a fraud upon this court which has only become apparent to
the Defendant within the last day. upon discovery that the “lender” bank and others have
engaged in a pattern of fraud and deception across the country and the state of New York
in attempting to foreclose residential properties AFTER it has already been paid in full
PLUS a fee for standing for an undisclosed lender. Plaintiff's allegations that the Plaintiff
has not been paid are false is easily ascertainable by the 10k and 8k filings with
Plaintiff's sworn filings with the SEC, wherein the description of the instant loan
transaction fits exactly with ALL loans that were securitized and eventually sold in shares
to investors around the world.
Plaintiff already been paid in full long before this action was commenced and
contemporaneously with the loan closing. Plaintiff did not disclose that the loan had been
paid, and did not disclose that the true holder in due course and the parties in possession
of indorsement or the note itself have long since been owners of these mortgage
documents, and in fact mislead this Defendant and the Court to believe the contrary.
8 of 21Defendant was only able to discover this fact upon consulting with an expert who advised
me that the pattern and policy of Plaintiff was to treat ALL loans in this manner and that
by granting Plaintiff the right to foreclose the court was essentially giving Plaintiff the
money AND the property.
In fact, based upon the sworn filings of the Plaintiff with a Federal Agency under the
Securities and Exchange Act of 933, Plaintiff admits payment and it is clear that
Payment occurred either PRIOR to the loan closing or within days after the loan closing
took place. According to those filings full payment PLUS a fee of 2.5% was paid to
Plaintiff by a mortgage aggregator, the “lender” never entered the loan on its balance
sheet or in its filings with the FDIC, or any regulatory agency or even to its shareholders,
because the transaction was classified as a service transaction represented solely on
Plaintiff's income statement.
In plain language, Plaintiff has been paid in full and wants the real property too and is
about to get it unless this court allows the case to be tried on its merits. In plain language,
the Plaintiffs own confusion as to what role they play is apparent in the names of entities
used in the complaint, only one of which received judgment. This confusion is easily
understood. Plaintiff filed the foreclosure action and now is intent on taking title to the
property in addition to having been paid in full PLUS a fee for standing in for the
mortgage aggregator, who was the real lender, unregistered in the State of New York to
do business as an investment bank.
The aggregator took title as Trustee of a mortgage pool to which many loans were
assigned, not necessarily all real estate. The aggregator purportedly assigned but did not
record some interest in the note and mortgage in the instant action to a Special Purpose
Vehicle which was owned and operated by an investment bank. The SPV was established
by a CDO (collateralized debt obligation) manager employed by the investment bank.
The CDO manager established what are known as tranches within the SPV and assigned
parts of each pool to each tranche within the SPV. The hierarchy of tranches guarantees
and requires a misapplication of funds out of and contrary to compliance with the terms
of the subject mortgage security instrument and note.
The subject pieces of the pool, that includes pieces of the subject mortgage and note,
were then pledged to the buyers of certificates of debt instruments that were backed by
and in substance convertible into equity shares of ownership of the subject mortgage and.
note. Each buyer received a share of the subject mortgage and note along with a share of
thousands of other mortgages and notes.
Each buyer was shown a AAA securities rating, insurance from AMBAC or similar entity
and a credit default swap that guaranteed payment of the revenue flow. Thus co-obligors
were created, which Plaintiff failed to disclose at any time to this Defendant or this Court
and failed to plead that the holder of the note had not been paid despite over
collateralization of the negotiable instruments and the creation of a reserve pool to make
payment, insurance, guarantees, and credit default swaps. This motion is filed because
Defendant verily believes she will and should prevail on the merits, that the Plaintiff has
9 of 21been paid, that the holder in due course has been paid, and that the affidavits and
representations of counsel were false, known to be false when made, and have been found
to be false repeatedly in other cases around the country.
Defendant intends to file affirmative defenses for set off violations to the Truth in
Lending Act, and a counterclaim for damages for RICO, TILA violations, usury, fraud in
the inducement and fraud in the execution, damages tor appraisal fraud, quie* title, and
malicious abuse of process among other causes of action. The failure to disclose the real
parties, and all the fees paid to the undisclosed parties is a violation on the face of TILA,
the contract between the parties, the Good Faith. Estimate provided to Defendant, and fair
dealing, in addition to a breach and in fact total abdication of the fiduciary duty owed by
a lender to its borrower in which. Underwriting standards were reduced to zero because
the nominal lender did not perceive itself to be at risk.
This includes the undisclosed purchase of insurance that qualifies as mortgage insurance,
credit default swaps that qualify as mortgage insurance, and guarantees from third parties,
including but not limited to the mortgagors who’s negotiable instruments were also
assigned to tranches that had lower priority than that which the subject loan transaction
was assigned, and the payments made by Defendant were in fact allocated and given not
to the holder in due course of the subject mortgage and note, but to the CDO manager for
allocation to tranches and securities which held a higher place in the hierarchy of the
tranches within the SPV.
The entire scheme was intended to trick investors into investing their capital into
securities that were unregistered and unregulated, using the Defendant’s signature as the
issuer of the negotiable instrument which was perceived to give an inflated value to the
derivative security purchased by those victimized investors. This inflation of value was
an exact reflection of the inflation of value that Plaintiff and its co-conspirators paid for
when they hired an appraiser for the loan closing. Thus the borrower and the investor, the
only real parties in interest to the transaction were both tricked, cheated and now, to add
insult to injury, are being sued as the villains in someone else’s scheme.
The Plaintiffs complaint fails to contain sufficient facts to establish who the plaintiff is
and its relationship to the defendant and to the claim for foreclosure of a promissory note,
including the date of the alleged assignment of the mortgage and note, and the identity of
the owner of the subject promissory note. The complaint fails to sufficiently identify who
the plaintiff is and fails to allege facts sufficient to determine the standing of the plaintiff.
Plaintiff attaches documents to its complaint that conflict with the allegations of material
facts in the complaint in which the plaintiff claims that it “BANA owns the Note” and
Mortgage. These allegations conflict with the mortgage attached to the complaint that
identifies THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT
2006-31CB), as the lender with the security interest. These allegations therefore
constitute serious misrepresentations and could be construed as a fraud upon the court.
Additionally plaintiff makes allegations in its complaint that conflict with the documents
attached thereto as to who owned the subject note. When exhibits are inconsistent with
10 of 21the plaintiff's allegations of material fact as to whom the real party of interest is, such
allegations cancel each other out.
Because the facts revealed by Plaintiff's exhibit are inconsistent with Plaintiff's
allegations as to its ownership of the subject note and mortgage, those allegations are
neutralized and Plaintiff's complaint is rendered objectionable. The facts revealed by
Plaintiff's exhibit are inconsistent with Plaintiff's allegations as to its ownership of the
subject note and mortgage, those allegations are neutralized and Plaintiff's complaint is
rendered objectionable. Because the exhibit attached to Plaintiff's complaint is
inconsistent with Plaintiff's allegations as to ownership of the subject promissory note
and mortgage, and because the allegations and exhibits are inconsistent with swom
filings with a Federal Agency (SEC), Plaintiff has failed to establish itself as the real
party in interest and has failed to state a cause of action. In New York, the prosecution of
a foreclosure action is by the owner and holder of the mortgage and the note.
Standing requires that the party prosecuting the action have a sufficient stake in the
outcome and that the party bringing the claim be recognized in the law as being a real
party in interest entitled to bring the claim as of the date of the commencement of the
action. The plaintiff's failure to meet the standing requirements as of the commencement
of this foreclosure action renders the complaint fatally defective and, therefore constitutes
misrepresentation as to who the Plaintiff really is. Further, the failure to join
indispensable and necessary parties, those being the real holders in due course of the
subject loan documents, THE BANK OF NEW YORK Mellon FKA The Bank New
York, (CWALT 2006-3 1CB) wishes to place the borrower and innocent third parties in
untenable situations. The borrower can AGAIN be sued on the same note by a third party
who has not been given notice of this lawsuit (john Does 1-1000).
The borrower has no proper entity against which I can assert affirmative defenses and
claims regarding predatory loan practices, fraud and other causes of action. If the note
was separated from the mortgage then the mortgage is unenforceable by definition. If the
mortgage is unenforceable by definition then any “foreclosure sale” is either void or
voidable. Thus a cloud on title exists even in the presence of the Court’s Judgment to the
contrary. Bidders and third parties without notice could easily be sued in foreclosure by
the real holders in due course thus either encumbering their property with the mortgage
which the Court had intended to extinguish through the foreclosure sale, or losing the
property for which they paid out of their own funds or through the lending and mortgage
of yet another financial institution who will also be subject to losing its security and
suffer a partial or complete loss on a loan where the risks were not apparent because of
the fraud of THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT
2006-31CB).
The assignment cannot post date the filing of this action if assignment does not relate
back to the commencement of the litigation. Progressive Express Insurance Company v.
McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005). where there is
no assignment document presented and the indorsement is suddenly produced during
litigation without a date, it must be presumed that the indorsement was made after the
11 of 21Deutsche Bank v. Francis (Dismissed With Prejudice-Schack)(3/11): I discovered that
there is no record of plaintiff DEUTSCHE BANK ever owning the subject mortgage and
note.? Therefore, with plaintiff DEUTSCHE BANK lacking standing, the instant action is
dismissed with prejudice and the notice of pendency cancelled.
A want of "standing to sue," in other words, is just another way of saying that this
particular plaintiff is not involved in a genuine controversy, and a simple syliogism takes
us from there to a "jurisdictional" dismissal: (1) the courts have jurisdiction only over
controversies; (2) a? Plaintiff found to lack "standing" is not involved in a controversy;
and (3) the courts therefore have no jurisdiction of the case when such a plaintiff purports
to bring it.
Johnston vy. HSBC *\*((complaint), (extrinsic fraud, real party) (3/11)
Extrinsic Fraud: Because the fraud is extrinsic in nature, HSBC is precluded from
raising the doctrine of-- res judicata --as a defense against this Courts obligation to verify
first and foremost that the claimant has federal jurisdiction “real party in interest" status.?
Real Party in interest: HSBC MORTGAGE CORP (USA) (hereinafter, “HSBC") does
not qualify as a? “teal party of interest" pursuant to Rule 17 of the Federal Rules of Civil
Procedure, which provides: "An action must be prosecuted in the name of the real party
in interest." The purpose of this rule is to require that an action be brought "in the name
of the party who possesses the substantive right being asserted under the applicable
law..." 6A WRIGHT,MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE:
CIVIL 2d § 1541 (1990) ("WRIGHT").
ALE y. U.S. Bank (Expunge Mortgage and Assignment*)(1/11)
American Brokers Conduit v. ZAMALLOA- Judge SCHACK 11Sep2007
EMC Mortgage v. Wink - (1/07) MERS, which is not itself the owner and holder of the
note and mortgage, does not have the authority to assign the ownership of the note and
mortgage to plaintiff. Judgment of foreclosure and sale is denied.
WHEREFORE, Defendant requests this court grant Defendant’s motion for
vacating judgment and for all other relief to which these defendants prove themselves
entitled.
J HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via US
certified Mail. Furthermore, an electronic copy was delivered to Plaintiff attorney on the
same day 1 day of November, 2016 to Joshua Sherer Attorney for Plaintiff Frenkel
Lambert Weiss Weisman & Gordon, LLP. 53 Gibson Street Bay Shore, NY 11706 File:
143892-FO1 vo 1, 2016
N Ae coe
P&C L-
CARLYWNE DESIR reserving all rights
IN WITNESS WHEREOF, this Notice of Motion Order and SUPPORTING
AFFIDAVIT is executed under, n the day yvember, 2016.
Executed in the presence of: ? (Seal)
CHRISTOPHER GONEZ
Notary Public - State of Florida
Commission # FF 900869
My Comm. Expires Aug 29, 2019
12 of 21Exlibt A
Brooklyn, NY 11213
Property Location:
Borough of BROOKLYN
NYO-AM 14303705 6/29/2011
This space for Recorder's use
MIN #: 100411741161000062 MERS Phone #: 888-679-6377
ASSIGNMENT OF MORTGAGE
For Value Received, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., the undersigned
holder of the Mortgage described below (herein “Assignot”) whose address is 3300 S.W. 34TH AVENUE,
SUITE 101 OCALA, FL 34474 does hereby grant, sell, assign, transfer and convey unto THE BANK OF NEW
YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2006-31CB,
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-31CB whose address is 101 BARCLAY
ST -4W, NEW YORK ,NY 10286 all benefi interest under that certain security instrument described below
together with the note(s) and obligations therein described and the money due and to become due thereon with
interest and all rights accrued or to accrue under said security instrument.
Original Lender: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS
NOMINEE FOR FLORIDA CAPITAL BANK, N.A. DBA FLORIDA CAPITAL
BANK MORTGAGE
Made By: CARLYNE DESIR, A SINGLE WOMAN
Date of Mortgage: 6/22/2006
Original Loan Amount: $332,000.00
Section: N/A Lot: 56 Block: 7749
Recorded in Kings County, NY on: 7/15/2006, book N/A, page N/A and instrument number 2006000407569
This assignment is not subject to the requirements of Section 275 of the Real Property Law because it is an
assignment within the secondary mortgage market.
This Mortgage has not been assigned unless otherwise stated below:
JN WITNESS WHEREOF, the undersigned has caused this Assignment of Mortgage to be executed on Dated:
nA 1
13 of 21ransfoys (Where a card such as an asset or debit card is used at a merchant), automated telier mac!
‘tiated by telephone, wire transfers, and automated clearinghouse transfers,
(M) “Escrow Items.” Those items that are described in Section 3 will be called “Escrow Items.”
(N) “Miscellaneous Proceeds.” “Miscellaneous Proceeds” means any compensation, settlement, award of damages, or proceeds patd by
‘ny third party (other than Insurance Proceeds, as defined in, and paid under the coverage deseribed in Section 2) for: (f) damage to, os
destruction of, the Property; ii) Condemnation or other taking of all or any part of the Property; (ii) conveyance in lieu of Condemnation o
sale to avoid Condemnation; or (iv) misrepresentations of, or omissions as to, the velue and/or conditton of the Property. A taking of the
Property by any governmental authority by eminent domain is known as “Condemnation.”
(0) “Mortgage Insurance.” “Mortgage Insurance” meatis insurance protecting Lender against the nonpayment of, or deftlt on, the Loan,
(P) “Periodic Payment.” The regularly scheduled zmount due for (D) principal and interest under the Note, and (ii) any emounts under
Section 3 will be cailed “Periodic Payment.”
(Q) “RESPA.” “RESPA” means the Real Estate Setlement Procedures Act (12 U.S.C, § 2601 ef seq.) and its implementing regulation,
Regulation X (24G.F.R. Part 3500), as they might be amended from time to time, ot any additional or successor legislation or regulation
‘hat governs the same subject matter. As used in this Security Instrument, “RESPA” refers to all requirements and restriotions that are
imposed in regard to a “federally related morigage loan” even if the Loan does not qualify as a “federally related mortgage loan” under
RESPA.
(or ATM) transactions, transfers
BORROWER'S TRANSFER TO LENDER OF RIGHTS IN THE PROPERTY
T mortgage, grant and convey the Property to MERS (solely as nominee for Lender and Lender’s successors in inferest) and its
‘successors in interest subject to the terms of this Security Instrument. This means taat, by signing this Security Instrament, | am giving
‘Lender those rights that are stated in this Security Instrument and also those rights that Applicable Law gives to lenders who hold mortgages
‘n real properly. [am giving Lender these rights to protect Lender from possible losses that might result if I fai to:
{A) Pay all the amounts that F owe Lender as stated in the Note including, but not limited to, all renewals, extensions and modifications
of the Notes
(B) Pay, with interest, any amounts that Lender spends under this Security Instrement to protect the value of the Property and Lender’s
rights in the Property; and
(C) Keep all of my other promises and agreements under this Security Instrument and the Note.
Tunderstand and agree that MERS hokds only legal title to the rights granted ky me in this Security Instrument, but, if nevessary to
comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right:
(A) to exercise any or all of those rights, including, but not limited to, the right to foreclose and sell the Property; and
(B) to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument,
DESCRIPTION OF THE PROPERTY
1 T give MERS (solely as nominee for Lender and Lender’s successors in interest) rights in the Property described in (A) through (G)
below:
(A) The Property which is located at:, 1192 EAST 46 STREET
BROOKLYN NEW YORK, 11213 (Property Address).
Payee! Identification Number:
‘This Property fs in KINGS County. It has the following legal doscripti
SEE ATTACHED EXHIBIT "A"
(B) All buildings and other improvements that are located on the Property described in subsection (A) of this section;
{C) All rights in other property that Ihave as owner of the Property described in subsection (A) ofthis section, These rights are known
‘as “easements and appurtenances attached to the Property,”
(D) Allsights that Ihave in the land which lies in the streets or roadsin front of or nextto, the Property described in subsection (A) of
this section;
(E) All fixtures that are now or in the future-will be on the Property describec in subseotions (A) and (B) of this section;
(F) All ofthe rights and property described in subsections (B) through (E) of this section that I acquire in the futures and
{G) All replacements of or additions o the Property described in subsections (B) through (F) of this section and all Insurance Proceeds
for foss or damage to, and all Miscellaneous Proceeds of the Property described in subsections (A) through (F) of this section,
BORROWER'S RIGHT TO MORTGAGE THEPROPERTY AND BORROWER'S OBLIGATION TO DEFEND OWNERSHIP
OF THE PROPERTY
{promise that: (A) T lawfully own the Property; (B) J have the right to mortgage, grant and convey the Property to Lender; and (C) there
are no outstanding claims or charges against the Property, except for those which are of public record.
Tgive a general warranty of title to Lender, This means that I will be fully responsible for any losses which Lender suffers because
someone other than myself has some of the rights in the Property which I promise that I have, I promise that I will defend my ownership of
the Property against any claims of such rights.
PLAIN LANGUAGE SECURITY INSTRUMENT
NEWYORK: Siage Family - Fannio MaoiPraddfe Mac UNIFORM INSTRUMENT with MERS Form 3058 1107
Page 2 of 70
1s, ne. -@00) $4872 Borrower(s) Intials
14 of 21THT206
a Ethbte mom
clase a-2e § 15,958,800 6.008
Clase 18 10,000,000 6.00%
Clase 220 $1,230,000 soos
Class 8-21 § 26,336,000 Posting
Glace 4-226 5,886,250(31 6.008,
Eleco x. faezyoserei2(3) Vertable
Glass Po 4262996 a
Clase RS 109 6.008
Glass M$ 27,490,000 i008
Glass 2 $6,555,000 5.002
Glace 2 $4,807,000 6008
42) This anount te subject to a permitted variance in tne aggregate of plus or
(2) the classes of enttizicates offered by this tree writing prospectus,
Cogether with theiz pase-thieysn rates, the wcthed for caleulsting their
pessrthrowh rotes amd thelr initiel zatiage, oxe Listed in the tables"
Etginaing on poge 4 of ibis tree writing praspectus:
(2) the clase Anz, Clase Av6, Class A-12, Clase Av22 and Glogs ¥ cextiticates
fare interest oniy notional souae certificates. The initiel notional
Gncunes are cet forth in the tale bat are nat included in the oggregate
cEeee Cettiticace belance of all the eerticiestes offered.
(4) the Claes Zo Certificates are principal only certificates ond wil ast
ence
enetive om Trust 2006-2108, a common law trust formed under the laws of
CWALT, Ine.» a Delowsre corporation, is 9 Linite: puzpese finance subsidisty of
Chontlywide Pinenciel Goupetetion. its addzene Le $500 Pork Granada, Calabasas,
California 1302, and its telephone mumber is (@i€) 225-3000.
stonsoR au seizERs
countzywide Kone tosne, Tne. will be the sponsor of the transaction and a seller
SP a pbreioe of the mottasge leant. The senainder of the noregage loans will be
Sag Mrcctiy to the depeeitor by one or more special purpose entities that Were
Htdblishes by cousteywde Finoneia: Comporetion or one of its subsidiaries,
Which acquired the mortgage leone they ave sellieg directly from countrwaice
Hone Loana, ine.
countrywide tone Loans Sexvicing LP.
‘eostex
‘rhe ank of Mow York.
POOLING AND SERVICING AGREEMENT
che pooting and servicing sgrectent among the seilers, the master servicer, the
Aeporitor and she trustee, under hich the iesuiag entity will be tome
Guanes | Cart OM Cate.
Foren mortgage loan conveyed te the iseuing sntity on the closing date, the
S006 vad the date of origination for Chat artgsge loan
date"
Fox ony mortgage loom conveyed to the {ssuing entity after the eloring date, the
Inter of the efigination date for that Rortgege -oan and the Tirst day of the
onth of the conveyance to the issuing entity.
| Cosmeme) Closing Dete.
—
|
|
Ge or shout Septenber 29, 7008:
Tf the aggregate stoted Erincipal belance as of che initial cutmoff date of che
fortgage iaste conveyed £0 the saauing entity on the closing date is less then
Ferssode,000, an scent (the *pre-funding accoust") will be egtabLiched with
the Ucustee on the closing date and funded in am smount eqlal to the difference
(eesrred to a2 the *pre—funded anount”
bresPunded Amount:
as of the date of this fees writing prospectus, che pre-Cundod amount to be
deposited in the pre-funded account se expected 70 be spprouimately
$206, 676, 020
https://www.sec.gov/Archives/edgar/containers/fix270/1375034/00009501 24-06-005662.txt
15 of 21
Page 3 of 47
7/20/2016Exhibit D
Distribution Date: 11/27
101 Barclay Street, 8 West
‘New York, NY 10286
Officer: Matthew Sabino . VALT, Inc.
deen aves ‘i Alternative Loan Trust 2006-31CB
ssociate: Steven Chrysanthis Fo :
212-815-8318 Mortgage Pass-Through Certificates, Series 2006-31CB
Principal Distribution Detail,
nin Wat Tarrant Ena
Car Beate Accretion Principal Roollzed cartieate
| ctass cusip sane |_faanee Principal Distribution Losses actor
‘aL | oxganaas 2p90000000] 19.999.86837 ooo 00 131,201 94 a0 0 99341832174
A |, Glasnaa? fosseonn.00 | 46.338,00000 00 00 100 io
As [> catasieacs 209 500 00 20,000.00 00
a 100 50) 00 0.0 $00
% 00 100 00 $500.00 oan
ts 0.00 000, 150, 600 100 co
% 20 9D a0 O00 8.0, 100 00
Mt 38 249.0888 000 oon sing0sas S00
8 2.00 300 300 000 090 503
ao 100 00 4.00 900 9.00 dian
an 20 1,686 06159, 0.00 Soo] 1656061 $9 ono
an 30 coo 0 800 100 00
4B 500 00 18893 00 0.00, om
As 00 00 800 1.508 80 o.00 oo oo
Ms "100 1.522982.80 0.00 9) 1s12987 $0 S00
Als 200 ‘ai00 00 90 00 oo
al 1109 7628365 9198750, 9.00 67628365 00
Ale 700 J) o.o0 000 i
ais 0 00 00 000 000 a0
an 000 9.00 000 5.0 00
a1 ; 1727661 500 500 172,768.71 500
ap S88 60 000 50 0.00 300
‘ 4005420422:30 too ooo 500 90 200
PO ‘159082 309838 300 00 300098 0
ak 100 300 303 a0 00 at
M onugaeaz4 rrgsaa00.00 | 17472,654.08 0.99893388043
BL CREDA 358/00 00 6350295 28 SSpe93388003
2 taiaenans ‘eor000 00 0.99893385013
5 caidensce 499 00090 0135093385088
5 Saiseaap2 Yet? 000.00 : 9p890385085
3 Shteaiiaeo Hias0s.22 Tiessra ts | aS5ess308368
Tonal 874,000,000.00 | s7i,gns.es.e1| $371,661.77 9465553 ooo] 571,661.77 866 526,879.80
“The Class X Beginning Belance was revised from the Prior Month's Ending Balance to reflect a change in Prefanding,
Page 2
16 of 21EXh bet -
i
as! BAYVIEW 3:
aust
Overbroad Notice of Error (i.e. No Specific Error)
Under the Real Estate Settlement Procedures Act (“RESPA"), a servicer is no: required to
respond to a notice of error that Is “overbroad,” because the servicer cannot reasonably
determine from the notice of error the specific error that the borrower asserts has occurred on
the borrower's
Preview
NYSCEF DOC. NO. 88 I am before the court by special appearance without waiving any rights remedies or defenses, statutory or procedural SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-31CB) Plaintiff, -against- Carlyne Desir, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau and “JOHN DOE #1 Through “JOHN DOE #10”, the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the Mortgaged premises described in the Complaint, NOTICE MOTION ORDER INDEX NO: 507782/2015 NOTICE OF ADVERSE CLAIM, MOTION AND DEMAND FOR AN ORDER, TO VACATE DECISION AND ORDER OF FORECLOSURE SALE AND REFEREE JUDGMENT. MOTION TO DISMISS UNVERIFIED COMPLAINT AND SUMMERY JUDGEMENT, DISMISSING COMPLAINT WITH PREJUDICE OR CONTINUE TO TRIAL. STAY OF EXECUTION PENDING APPEAL. PLEASE TAKE NOTICE, that motion will be heard in the above captioned court. The defendant CARLYNE DESIR, duly sworn to on 1 day of November, 2016, and upon all prior pleadings and proceedings documents herein, the undersigned will apply to this Court at room 955 or Part to be assigned, at the Courthouse thereof, located at 360 Adams Street, Brooklyn, New York 11201 on the 14th day of November 2016, at 9:30 ‘Am or as soon thereafter defendant can be heard, for an order. (1) Dismissing all causes of action against defendant CARLYNE DESIR, with prejudice, because triable issues of facts still exist and each fact is not disputed. (2) I don’t believe the complaint has been signed or put under oath. There no verified complaint. (3) Plaintiff did not file the original mortgage and promissory note with the complaint as required by law and the court should not proceed in the absence of an indispensable party, to wit, the actual owner of the mortgage and note for 1192 E46th street Brooklyn New York 11234 (4) adverse claim (5) dismissing all causes of action against defendant CARLYNE DESIR, with prejudice, because said defendant’s proof that plaintiff is not the actual owner of the valid mortgage and valid note and therefore lacks standing to bring this action, is based upon documentary evidence; and/or (5) cancelling the Notice of Pendency if any and recording a Satisfaction of mortgage, which indicates that all obligations associated with this mortgage have been fulfilled (fully paid) (6) awarding sanctions and fees to defendant CARLYNE DESIR because plaintiff submitted a fraudulent documents (de 1 of 21 INDEX NO. 507782/2015 RECEIVED NYSCEF: 11/02/2016facto) on the Court; and (6) for such other and further relief as the Court deems just and proper. PLEASE TAKE FURTHER NOTICE, answer and supporting affidavits, shall be served and/or attached. Defendant Carlyne Desir hereby objection to decision and order of foreclosure sale. There are many issues of facts to be determined. This is not a matter in which everything is undisputed. | don’t believe the complaint have been signed and put under oath. The complaint was not verified. New York Civil Practice Law and Rules § 3020 verification. FACTS: 1). Frivolous suit the case holds no merit. Lien was not perfected and no verified complaint. The Deed of Trust was not signed by the bank. 2). THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT IN FAVOR OF BANK OF NEW YORK, WHERE THERE EXISTED A GENUINE ISSUE OF MATERIAL FACT 3). Triable issues of facts still exist and each fact is not disputed. I don’t believe the complaint has been signed or put under oath. 1) There no verified complaint. 2) No original mortgage and note filed with court 3) need to post bond cost. 4) No Assignment was pleaded in the complaint. 5) Chain of title broken. 6) No credit given on HUD for pre-paid tax and insurance 7) No disclosure of the real party funding my loan 8) undisclosed third party under the statute of frauds 9) adverse claim. I don’t see attorney has authority from the plaintiff. A triable issue of material fact as to whether Bank of New York Mellon had a beneficial interest in my property at the time it purported to initiate foreclosure proceedings. Request for original mortgage and note CPLR 3120: Discovery, production of documents and things for inspection, dishonor. 4). Court error to enter judgment of foreclosure where the only evidence offered to support the amount of indebtedness was inadmissible hearsay. Computer printout purportedly showing fees, expenses, and balance due on note and mortgage was not admissible under business records exception to hearsay rule where printout was not authenticated by affidavit and by a records custodian or person with knowledge of elements required for the business records exception. Admission of witness’s testimony about the loan balance and the admission of computer printouts witness were called to authenticate constituted reversible error where witness’s only knowledge about the amount due came from her review of the printouts, and they had no information about how and when those records had been prepared or where the data came from. Issue of sufficiency of evidence to support judgment was properly preserved for appellate review. Further, challenge to sufficiency of evidence to support judgment is cognizable on appeal regardless of specificity of objections where trial was a bench trial. “Trial court also erred in denying motion to dismiss for lack of prosecution — Remand for entry of order of dismissal.” LLOYD STEVE BURDESHA W and TERESA BURDESHAW, Appellants, y. THE BANK OF NEW YORK MELLON (FKA The Bank of New York), AS 2 of 21TRUSTEE FOR MASTR ALTERNATIVE LOAN TRUST 2006-2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-2, Appellee. Ist District, Case No. 1D13-2703. 5) Judge Hon Kenneth P. Sherman completely ignore Motion to Dismiss references on Florida Capital Bank, N.A. DBA Florida Capital Bank mortgage gave no consideration for the loan, bank gave “credit”, and there is a default mortgage insurance that paid the mortgage in full. Securitization loan paid in fall by investors and loan FRAUD. Cross- Motion has new discoveries loan funding amount. Defendant denies the claims of the Plaintiff, Affidavit of Nicole Lyn Matthews on September 11, 2015 and a demand that the Plaintiff prove up its claim of Prima Facie case. The loan is paid off with the original lender "Florida Capital bank dba Florida Capital Bank Mortgage", its successors and/or assigns including investors. Contrary to Plaintiffs’ argument, Defendant does not admit that there was a valid Note or valid mortgage and DOT was properly transferred to the ‘Trust. Furthermore, does not admit to default on making payments on the loan. (1) Denial and objection to Plaintiff valid note, valid mortgage and default on loan payments (2) First claim for relief to invalidate lien. 6) New York Civil Practice Law and Rules Rule Fraud Under CPLR § 5105(a)(3) Relief from judgment or order. It is well settled that "pursuant to CPLR §5015, a court may vacate a judgment or order on the basis of fraud, misrepresentation, or other misconduct of an adverse party.” (Beltway Capital, LLC v. Soleil, 104 AD3d 628, 631 [2nd Dep't 2013] citing CPLR §5015 (a)(3).) “In order to establish prima facie entitlement to summary judgment in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of default.” (Capstone Bus Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 883 [2d Dept 2010]; see also GRP Loan, LLC v Taylor, 95 AD3d 1172. 1173- 74. [2d Dept 2012]; U.S. Natl. Assn. Tr U/S 6/01/98 [Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d 711, 711 [2d Dept 2008].) Plaintiff “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (See Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) Plaintiff must tender “evidentiary proof in admissible form.” (SeeZuckerman v New York, 49 NY2d 557, 562 [1980].) “When the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief.” (GRP Loan, LLC v Taylor, 95 AD3d at 1173.) “On any application for judgment by default, the applicant shall file proof of service of the summons and complaint, and proof of the facts constituting the claim, the default and the amount due.” (CPLR 3215 [f].) The proof must establish a prima facie case. (See Walley v Leatherstocking Healthcare, LLC, 79 AD3d 1236, 1238 [3d Dept 2010); Green v Dolphy Construction Co., Inc., 187 AD2d 635, 637 [2d Dept 1992]; Silberstein v Presbyterian Hosp. in the City of NY, 96 AD2d 1096, 1096 [2d Dept 1983]; see also Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003] [“viable cause of action” ].) “There is no mandatory ministerial duty to enter a default judgment 3 of 21against a defaulting party.” (Superior Dental Care, P.C. v Hoffman, 81 AD3d 632, 634[2d Dept 2011] [internal quotation marks and citation omitted].) 7). Assignment of Mortgage dated July 5, 2011 from MERS to Plaintiff, transferring the Mortgage. There’s no showing that MERS would have had the power or authority to do so. MERS and Standing, Assignment from MERS when MERS is designated merely as nominee of lender, and never owned note, is ineffective to confer standing on its assignee. Bank of New York v. Silverberg, 86 A.D. 34274, 926 N.Y.S. 2d 532 (2d Dep’t 2011) There is no evidence of “MERS’s right to, or possession of, the actual underlying promissory note” (sce id. at 279), and, if based only upon the Assignment of Mortgage, Plaintiff would lack standing to maintain this foreclosure action (see id. at 283.) UCC 3-501 requires a lender to “exhibit the note” when the lender makes demand for payment, and the borrower demands to see the note. UCC 3-501 also requires a servicer to show authority to make a demand for payment, if it does not own the note, but is merely servicing it (ExHibit A MERS mortgage assignment). 8). Foreclosing plaintiff must own the note and the mortgage at the inception of the action, Deutsche Bank National Trust Co. v. Bamett, 88, A.D. 3d 636, 931 N.Y.S, 2d 630, (2d Dep't 2011); Kluge v. Fugazy, 145 A.D. 2d 537, 536 N.Y. S. 2d 92 (2d Dep’t 1988) failed to show that the beneficial interest in the Note and Deed of Trust were “transferred Bank of N.Y. Mellon v. Dean, 2013 NY Slip Op 23224 (Kings Cty., Battaglia, J. July 11, 2013) (plaintiff failed to establish prima facie entitlement to judgment of foreclosure: Assignment of mortgage from MERS to plaintiff, which did not purport to assign note, was insufficient to confer standing; unauthenticated Pooling and Servicing Agreement excerpts did not suffice to establish plaintiff's standing: affidavit in support of summary judgment motion of physical delivery was neither based on personal knowledge nor adequately specific and failed to establish that assignor to plaintiff ever had possession of the note). BANK SCHEME TO DEFRAUD “any plan, device, or course of action that deprives another of money or property by means of false or fraudulent pretenses, representations or promises.” U.S v. Males, 459 F.3d 154, 157 (2d Cir. 2006). “It is, in other words, a plan to deprive another of money or property by trick, deceit, deception, swindle or overreaching.” Civil Procedure Rule 60: Relief from Judgment or Order. 9) My loan is paid off with the original lender "Florida Capital bank dba Florida Capital Bank Mortgage", its successors and/or assigns. All payments owed by the defendant under the contract have been paid. Plaintiff failed to meet his burden of proof. Defendant’s Right to Discovery under Civil Rule 36 prior to Summary Judgment. Requiring Original Documents, FR 2046 balance sheet, 1099 OID, Mandatory filing pursuant to Title 12 U.S.C. 248 & 347, S3-A registration Statement, 424 B-5 Prospectus, RC-S & RC-B Call schedules, FASB and GAAP, FAS 125, 133, 140, 5, 95 etc. Total Disclosure from the Mortgage Lender from the start of the loan, Iam demanding a copy of the Bond. 4 of 2110) The original lender never give consideration for the loan, they only give eredit and money from pool of unidentified lenders/investors. Furthermore, the mortgage agreement page 2 of 10, letter (O) stated “Mortgage Insurance” means insurance protecting Lender against the nonpayment of, or default on, the Loan” highlighted (Exhibit B. Mortgage)attached to Cross-Motion. The Default Insurance mortgage paid the investors and bank mortgage and/or assignors based on alleged default. THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-31CB) have failed to establish a genuine issue of material fact exists concerning Defendant’s Claims. Under The Pooling and Servicing Agreement Dated September 28, 2006 (“PSA”) and Defendant is entitled to summary judgment. THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-31CB) was not Defendant’s original lender and any rights it possesses comes through the PSA, which is governed by Article 9 of the Uniform Commercial Code, not Article 3. 11). True and correct copies of pertinent pages of the PSA are attached. The Cut-Off Date of the Trust was September 1, 2006 and the Trust’s Closing Date was September 28, 2006. Pursuant to the Trust, Defendant’s Note and DOT had to be transferred to the Trust by the Closing Date, which did not occur (Exhibit C. PSA). 12).My loan was securitized MERS Min #100411741161000062. This is an investment contract that they are holding me liable for which I’m not a party of the Pooling and Servicing Agreement (PSA). The mortgage is simply a security agreement which I signed fraudulently because they failed to disclose that my note was going to be a funding for the security organization. Read 15 U.S.C. §78¢ Section 10; Swap agreement shall be yoid and of no force or effect Mortgage amount $332,000.00 and total payments with interest etc $765, 301.97. The amount of money received from third party (investors) payments $874,000,000.00 highlighted in SEC documents. Third parties payments are provided in the securitization documents but undisclosed to both real parties of interest alleged borrower and investor. Therefore, loan was never in default. Proof mortgage is PAID. (Exhibit D. (SEC) Securities and Exchange Commission securitization documents) attached to cross-Motion. The Movant has no basis in fact for attempting enforcement of the obligation, note or mortgage. The equitable claim for lien on alleged borrower property 1192 E46th Street Brooklyn New York 11234 is extinguished by virtue of the fact that amounts $874,000,000.00 received offset any scheduled payments in the past, present and future. Securitization, Loan Paid and FRAUD. I denied the amount due, GENUINE ISSUES OF MATERIAL FACT. 13).The chain of title is broken in both the note and mortgage. Mortgage and the note was bifurcation, they went to MERS as a electronic holder. Countrywide and the Kemp case, women employee from countrywide testified that none of the note is transferred. MERS did not take physical possession of the mortgage and note. Where is the chain of title from Florida Capital Bank, N.A. DBA Florida Capital Bank mortgage to Bank of America and then to THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-31CB) Obligation is not secured, split of the note and mortgage (Exhibit E.) Carlyne Desir notarized affidavit and (Exhibit F.) Bayview, Bank of. America 5 of 21BONY Current owner) highlighted. Bayview documents states that Bank of America is the current owner of the loan then why am I in court with Plaintiff. 14). [ have a property interest in the financial assets UCC3-306 property interest. Notice of “Adverse Claim UCC 8-105". I have a proprietary interest in the proceeds from the security. The Bond that was sold to the investors was done by my signature and identity without alleged borrower permission. Security investment undisclosed third party under the statute of frauds. I’m the creditor because I put up the security for the loan $332,000.00. I can’t find a lien anywhere, which mean mortgage is paid off. I need my Security Instruments back. GENUINE ISSUES OF MATERIAL FACT. UCC article 8 entitlement and Kickbacks under 2607 of Title 12 RESPA California Civil code 2941 release lien U.C.C. - ARTICLE 8 - INVESTMENT SECURITIES (1994) § 8-102 and 8-105. DEFINITIONS. (a) In this Article: (1) "Adverse claim" means a claim that a claimant has a property interest in a financial asset and that it is a violation of the rights of the claimant for another person to hold, transfer, or deal with the financial asset. (a) § 8-105 A person has Notice of an adverse claim if: (1) the person knows of the adverse claim; (2) the person is aware of facts sufficient to indicate that there is a significant probability that the adverse claim exists and deliberately avoids information that would establish the existence of the adverse claim; or (3) the person has a duty, imposed by statute or regulation, to investigate whether an adverse claim exists, and the investigation so required would establish the existence of the adverse claim. 15). Truth in Lending Disclosure Fraud, conspiracy scheme, conversion and Breach of contract/agreement. Bayview is my loan servicer and they are the one bringing this action on behalf of the creditor, Bayview is a third party debt collectors. Securitization is Illegal, criminal and civil liability. Bayview and Firm of Frenkel, Lambert, Weiss, Weisman & Gordon, LLP attorney for plaintiff need to CEASE AND DESIST proceedings. GENUINE ISSUES OF MATERIAL FACT. Federal Bureau of Investigation (“FBI”), announce that defendant Steven Gordon Executive of Bayview, in Coral Gables, Florida, pled guilty in Mortgage Securitize Scheme. The case is U.S. vy. Gordon, case number 08-cr-21103, in the U.S. District Court for the Southern District of Florida. 6 of 2116). THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006- 31CB) Claim is allegedly secured by the Debtor’s real property commonly referred to as 1192 East 46" street Brooklyn New York 11234 (the “Property”). THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-31CB) has the burden to prove its legal standing concerning the Promissory Note dated June 22, 2006 (“Note”) and Deed of Trust recorded on June 22, 2006 (“DOT”) in favor of Florida Capital Bank. ‘A true and correct copy of the Note is attached and the DOT. THE BANK OF NEW YORK Mellon AKA The Bank New York, (CWALT 2006-31CB) is improperly attempting to foreclose on my Property base on FRAUD and Breach of contract. 17). Plaintiff Motion is based entirely on the Affidavit of Nicole Lyn Matthews and Randall Jackson who fails to provide any competent evidence of THE BANK OF NEW YORK Mellon AKA The Bank New York, (CWALT 2006-31CB) ownership of the Defendant’s Note. There not a single document attached to the Claim that evidences THE BANK OF NEW YORK Mellon AKA The Bank New York, (CWALT 2006-31CB) ownership of Defendant’s loan. No objection to claim of bogus assignments of the DOT. Defendant’s Cross-Motion should be granted and the THE BANK OF NEW YORK Mellon AKA The Bank New York, (CWALT 2006-31CB) Claim dismiss and its alleged lien invalidated as it is admittedly not a perfected secured creditor. The undisputed evidence is that Defendant’s Note and DOT have never been assigned to the Trust, and further any alleged attempts to deliver the Note and DOT to the Trust or assign Debtor's DOT to THE BANK OF NEW YORK Mellon AKA The Bank New York, (CWALT 2006-31CB) were illegal and more than 5 years after the Trust admittedly closed. Finally, the Note is not negotiable, Pursuan to Article 3. 18). Civil Procedure Rule 60: Relief from Judgment or Order provides in pertinent part: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons. (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court. 19). First Lien security instruments, Master Mortgage form. Master Mortgage, recorded instrument but no copy of the Master Mortgage is attached to complaint from review of the mortgage attached. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2010-12-7967. “We cannot discern the conditions precedent to the commencement of a foreclosure action. Thus, based upon the allegation of compliance with the conditions precedent, we can only presume that these conditions are set forth within the Master Mortgage, which was not attached to the complaint, in contravention of Civ.R. 10(D). Under these circumstances, we conclude that a material question of fact existed as to the terms set forth in the Master Mortgage, and, as the affidavit in support of the motion for summary judgment did not supply the missing terms of the mortgage or incorporate a copy of the Master Mortgage, Third Federal failed to meet its initial Dresher burden of establishing 7 of 21the absence of a question of material fact on this issue. Accordingly, the trial court erred in granting summary judgment in favor of Third Federal.” I need to see the first lien. New York - Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT (Form 3033) GENUINE ISSUE OF MATERIAL FACT. Furnished via US certified Mail November 1, 2016 to Joshua Sherer Attorney for Plaintiff Frenkel Lambert Weiss Weisman & Gordon, LLP. 53 Gibson Street Bay Shore, NY 11706. Furthermore, an electronic copy was delivered to Plaintiff attorney on the Si y 1 day of ber, 2016 File: 01-043892-F01 Teserving all ri IN WITNESS WHEREOF, this Notice of Motion ord UTGHRISYOMHER Gow? sof November, 2016. Executed in the presence of: Notary Public - State of Florida eal) Commission # FF 900869 My Comm. Expres Aug 29, 2019 DEFENDANT’S EMERGENCY MOTION TO VACA‘ defendant, Carlyne Desir, PRO SE DEFENDENT, and hereby file a motion and deand to vacate foreclosure judgment, pursuant to Civil Procedure Rule 60: Relief from Judgment or Order states: Civil Procedure Rule 60: Relief from Judgment or Order provides in pertinent part: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons:... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court. ‘The Plaintiff has committed a fraud upon this court which has only become apparent to the Defendant within the last day. upon discovery that the “lender” bank and others have engaged in a pattern of fraud and deception across the country and the state of New York in attempting to foreclose residential properties AFTER it has already been paid in full PLUS a fee for standing for an undisclosed lender. Plaintiff's allegations that the Plaintiff has not been paid are false is easily ascertainable by the 10k and 8k filings with Plaintiff's sworn filings with the SEC, wherein the description of the instant loan transaction fits exactly with ALL loans that were securitized and eventually sold in shares to investors around the world. Plaintiff already been paid in full long before this action was commenced and contemporaneously with the loan closing. Plaintiff did not disclose that the loan had been paid, and did not disclose that the true holder in due course and the parties in possession of indorsement or the note itself have long since been owners of these mortgage documents, and in fact mislead this Defendant and the Court to believe the contrary. 8 of 21Defendant was only able to discover this fact upon consulting with an expert who advised me that the pattern and policy of Plaintiff was to treat ALL loans in this manner and that by granting Plaintiff the right to foreclose the court was essentially giving Plaintiff the money AND the property. In fact, based upon the sworn filings of the Plaintiff with a Federal Agency under the Securities and Exchange Act of 933, Plaintiff admits payment and it is clear that Payment occurred either PRIOR to the loan closing or within days after the loan closing took place. According to those filings full payment PLUS a fee of 2.5% was paid to Plaintiff by a mortgage aggregator, the “lender” never entered the loan on its balance sheet or in its filings with the FDIC, or any regulatory agency or even to its shareholders, because the transaction was classified as a service transaction represented solely on Plaintiff's income statement. In plain language, Plaintiff has been paid in full and wants the real property too and is about to get it unless this court allows the case to be tried on its merits. In plain language, the Plaintiffs own confusion as to what role they play is apparent in the names of entities used in the complaint, only one of which received judgment. This confusion is easily understood. Plaintiff filed the foreclosure action and now is intent on taking title to the property in addition to having been paid in full PLUS a fee for standing in for the mortgage aggregator, who was the real lender, unregistered in the State of New York to do business as an investment bank. The aggregator took title as Trustee of a mortgage pool to which many loans were assigned, not necessarily all real estate. The aggregator purportedly assigned but did not record some interest in the note and mortgage in the instant action to a Special Purpose Vehicle which was owned and operated by an investment bank. The SPV was established by a CDO (collateralized debt obligation) manager employed by the investment bank. The CDO manager established what are known as tranches within the SPV and assigned parts of each pool to each tranche within the SPV. The hierarchy of tranches guarantees and requires a misapplication of funds out of and contrary to compliance with the terms of the subject mortgage security instrument and note. The subject pieces of the pool, that includes pieces of the subject mortgage and note, were then pledged to the buyers of certificates of debt instruments that were backed by and in substance convertible into equity shares of ownership of the subject mortgage and. note. Each buyer received a share of the subject mortgage and note along with a share of thousands of other mortgages and notes. Each buyer was shown a AAA securities rating, insurance from AMBAC or similar entity and a credit default swap that guaranteed payment of the revenue flow. Thus co-obligors were created, which Plaintiff failed to disclose at any time to this Defendant or this Court and failed to plead that the holder of the note had not been paid despite over collateralization of the negotiable instruments and the creation of a reserve pool to make payment, insurance, guarantees, and credit default swaps. This motion is filed because Defendant verily believes she will and should prevail on the merits, that the Plaintiff has 9 of 21been paid, that the holder in due course has been paid, and that the affidavits and representations of counsel were false, known to be false when made, and have been found to be false repeatedly in other cases around the country. Defendant intends to file affirmative defenses for set off violations to the Truth in Lending Act, and a counterclaim for damages for RICO, TILA violations, usury, fraud in the inducement and fraud in the execution, damages tor appraisal fraud, quie* title, and malicious abuse of process among other causes of action. The failure to disclose the real parties, and all the fees paid to the undisclosed parties is a violation on the face of TILA, the contract between the parties, the Good Faith. Estimate provided to Defendant, and fair dealing, in addition to a breach and in fact total abdication of the fiduciary duty owed by a lender to its borrower in which. Underwriting standards were reduced to zero because the nominal lender did not perceive itself to be at risk. This includes the undisclosed purchase of insurance that qualifies as mortgage insurance, credit default swaps that qualify as mortgage insurance, and guarantees from third parties, including but not limited to the mortgagors who’s negotiable instruments were also assigned to tranches that had lower priority than that which the subject loan transaction was assigned, and the payments made by Defendant were in fact allocated and given not to the holder in due course of the subject mortgage and note, but to the CDO manager for allocation to tranches and securities which held a higher place in the hierarchy of the tranches within the SPV. The entire scheme was intended to trick investors into investing their capital into securities that were unregistered and unregulated, using the Defendant’s signature as the issuer of the negotiable instrument which was perceived to give an inflated value to the derivative security purchased by those victimized investors. This inflation of value was an exact reflection of the inflation of value that Plaintiff and its co-conspirators paid for when they hired an appraiser for the loan closing. Thus the borrower and the investor, the only real parties in interest to the transaction were both tricked, cheated and now, to add insult to injury, are being sued as the villains in someone else’s scheme. The Plaintiffs complaint fails to contain sufficient facts to establish who the plaintiff is and its relationship to the defendant and to the claim for foreclosure of a promissory note, including the date of the alleged assignment of the mortgage and note, and the identity of the owner of the subject promissory note. The complaint fails to sufficiently identify who the plaintiff is and fails to allege facts sufficient to determine the standing of the plaintiff. Plaintiff attaches documents to its complaint that conflict with the allegations of material facts in the complaint in which the plaintiff claims that it “BANA owns the Note” and Mortgage. These allegations conflict with the mortgage attached to the complaint that identifies THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-31CB), as the lender with the security interest. These allegations therefore constitute serious misrepresentations and could be construed as a fraud upon the court. Additionally plaintiff makes allegations in its complaint that conflict with the documents attached thereto as to who owned the subject note. When exhibits are inconsistent with 10 of 21the plaintiff's allegations of material fact as to whom the real party of interest is, such allegations cancel each other out. Because the facts revealed by Plaintiff's exhibit are inconsistent with Plaintiff's allegations as to its ownership of the subject note and mortgage, those allegations are neutralized and Plaintiff's complaint is rendered objectionable. The facts revealed by Plaintiff's exhibit are inconsistent with Plaintiff's allegations as to its ownership of the subject note and mortgage, those allegations are neutralized and Plaintiff's complaint is rendered objectionable. Because the exhibit attached to Plaintiff's complaint is inconsistent with Plaintiff's allegations as to ownership of the subject promissory note and mortgage, and because the allegations and exhibits are inconsistent with swom filings with a Federal Agency (SEC), Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action. In New York, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim as of the date of the commencement of the action. The plaintiff's failure to meet the standing requirements as of the commencement of this foreclosure action renders the complaint fatally defective and, therefore constitutes misrepresentation as to who the Plaintiff really is. Further, the failure to join indispensable and necessary parties, those being the real holders in due course of the subject loan documents, THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-3 1CB) wishes to place the borrower and innocent third parties in untenable situations. The borrower can AGAIN be sued on the same note by a third party who has not been given notice of this lawsuit (john Does 1-1000). The borrower has no proper entity against which I can assert affirmative defenses and claims regarding predatory loan practices, fraud and other causes of action. If the note was separated from the mortgage then the mortgage is unenforceable by definition. If the mortgage is unenforceable by definition then any “foreclosure sale” is either void or voidable. Thus a cloud on title exists even in the presence of the Court’s Judgment to the contrary. Bidders and third parties without notice could easily be sued in foreclosure by the real holders in due course thus either encumbering their property with the mortgage which the Court had intended to extinguish through the foreclosure sale, or losing the property for which they paid out of their own funds or through the lending and mortgage of yet another financial institution who will also be subject to losing its security and suffer a partial or complete loss on a loan where the risks were not apparent because of the fraud of THE BANK OF NEW YORK Mellon FKA The Bank New York, (CWALT 2006-31CB). The assignment cannot post date the filing of this action if assignment does not relate back to the commencement of the litigation. Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So.2d 1281 (Fla. 2nd DCA 2005). where there is no assignment document presented and the indorsement is suddenly produced during litigation without a date, it must be presumed that the indorsement was made after the 11 of 21Deutsche Bank v. Francis (Dismissed With Prejudice-Schack)(3/11): I discovered that there is no record of plaintiff DEUTSCHE BANK ever owning the subject mortgage and note.? Therefore, with plaintiff DEUTSCHE BANK lacking standing, the instant action is dismissed with prejudice and the notice of pendency cancelled. A want of "standing to sue," in other words, is just another way of saying that this particular plaintiff is not involved in a genuine controversy, and a simple syliogism takes us from there to a "jurisdictional" dismissal: (1) the courts have jurisdiction only over controversies; (2) a? Plaintiff found to lack "standing" is not involved in a controversy; and (3) the courts therefore have no jurisdiction of the case when such a plaintiff purports to bring it. Johnston vy. HSBC *\*((complaint), (extrinsic fraud, real party) (3/11) Extrinsic Fraud: Because the fraud is extrinsic in nature, HSBC is precluded from raising the doctrine of-- res judicata --as a defense against this Courts obligation to verify first and foremost that the claimant has federal jurisdiction “real party in interest" status.? Real Party in interest: HSBC MORTGAGE CORP (USA) (hereinafter, “HSBC") does not qualify as a? “teal party of interest" pursuant to Rule 17 of the Federal Rules of Civil Procedure, which provides: "An action must be prosecuted in the name of the real party in interest." The purpose of this rule is to require that an action be brought "in the name of the party who possesses the substantive right being asserted under the applicable law..." 6A WRIGHT,MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1541 (1990) ("WRIGHT"). ALE y. U.S. Bank (Expunge Mortgage and Assignment*)(1/11) American Brokers Conduit v. ZAMALLOA- Judge SCHACK 11Sep2007 EMC Mortgage v. Wink - (1/07) MERS, which is not itself the owner and holder of the note and mortgage, does not have the authority to assign the ownership of the note and mortgage to plaintiff. Judgment of foreclosure and sale is denied. WHEREFORE, Defendant requests this court grant Defendant’s motion for vacating judgment and for all other relief to which these defendants prove themselves entitled. J HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via US certified Mail. Furthermore, an electronic copy was delivered to Plaintiff attorney on the same day 1 day of November, 2016 to Joshua Sherer Attorney for Plaintiff Frenkel Lambert Weiss Weisman & Gordon, LLP. 53 Gibson Street Bay Shore, NY 11706 File: 143892-FO1 vo 1, 2016 N Ae coe P&C L- CARLYWNE DESIR reserving all rights IN WITNESS WHEREOF, this Notice of Motion Order and SUPPORTING AFFIDAVIT is executed under, n the day yvember, 2016. Executed in the presence of: ? (Seal) CHRISTOPHER GONEZ Notary Public - State of Florida Commission # FF 900869 My Comm. Expires Aug 29, 2019 12 of 21Exlibt A Brooklyn, NY 11213 Property Location: Borough of BROOKLYN NYO-AM 14303705 6/29/2011 This space for Recorder's use MIN #: 100411741161000062 MERS Phone #: 888-679-6377 ASSIGNMENT OF MORTGAGE For Value Received, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., the undersigned holder of the Mortgage described below (herein “Assignot”) whose address is 3300 S.W. 34TH AVENUE, SUITE 101 OCALA, FL 34474 does hereby grant, sell, assign, transfer and convey unto THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2006-31CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-31CB whose address is 101 BARCLAY ST -4W, NEW YORK ,NY 10286 all benefi interest under that certain security instrument described below together with the note(s) and obligations therein described and the money due and to become due thereon with interest and all rights accrued or to accrue under said security instrument. Original Lender: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FLORIDA CAPITAL BANK, N.A. DBA FLORIDA CAPITAL BANK MORTGAGE Made By: CARLYNE DESIR, A SINGLE WOMAN Date of Mortgage: 6/22/2006 Original Loan Amount: $332,000.00 Section: N/A Lot: 56 Block: 7749 Recorded in Kings County, NY on: 7/15/2006, book N/A, page N/A and instrument number 2006000407569 This assignment is not subject to the requirements of Section 275 of the Real Property Law because it is an assignment within the secondary mortgage market. This Mortgage has not been assigned unless otherwise stated below: JN WITNESS WHEREOF, the undersigned has caused this Assignment of Mortgage to be executed on Dated: nA 1 13 of 21ransfoys (Where a card such as an asset or debit card is used at a merchant), automated telier mac! ‘tiated by telephone, wire transfers, and automated clearinghouse transfers, (M) “Escrow Items.” Those items that are described in Section 3 will be called “Escrow Items.” (N) “Miscellaneous Proceeds.” “Miscellaneous Proceeds” means any compensation, settlement, award of damages, or proceeds patd by ‘ny third party (other than Insurance Proceeds, as defined in, and paid under the coverage deseribed in Section 2) for: (f) damage to, os destruction of, the Property; ii) Condemnation or other taking of all or any part of the Property; (ii) conveyance in lieu of Condemnation o sale to avoid Condemnation; or (iv) misrepresentations of, or omissions as to, the velue and/or conditton of the Property. A taking of the Property by any governmental authority by eminent domain is known as “Condemnation.” (0) “Mortgage Insurance.” “Mortgage Insurance” meatis insurance protecting Lender against the nonpayment of, or deftlt on, the Loan, (P) “Periodic Payment.” The regularly scheduled zmount due for (D) principal and interest under the Note, and (ii) any emounts under Section 3 will be cailed “Periodic Payment.” (Q) “RESPA.” “RESPA” means the Real Estate Setlement Procedures Act (12 U.S.C, § 2601 ef seq.) and its implementing regulation, Regulation X (24G.F.R. Part 3500), as they might be amended from time to time, ot any additional or successor legislation or regulation ‘hat governs the same subject matter. As used in this Security Instrument, “RESPA” refers to all requirements and restriotions that are imposed in regard to a “federally related morigage loan” even if the Loan does not qualify as a “federally related mortgage loan” under RESPA. (or ATM) transactions, transfers BORROWER'S TRANSFER TO LENDER OF RIGHTS IN THE PROPERTY T mortgage, grant and convey the Property to MERS (solely as nominee for Lender and Lender’s successors in inferest) and its ‘successors in interest subject to the terms of this Security Instrument. This means taat, by signing this Security Instrament, | am giving ‘Lender those rights that are stated in this Security Instrument and also those rights that Applicable Law gives to lenders who hold mortgages ‘n real properly. [am giving Lender these rights to protect Lender from possible losses that might result if I fai to: {A) Pay all the amounts that F owe Lender as stated in the Note including, but not limited to, all renewals, extensions and modifications of the Notes (B) Pay, with interest, any amounts that Lender spends under this Security Instrement to protect the value of the Property and Lender’s rights in the Property; and (C) Keep all of my other promises and agreements under this Security Instrument and the Note. Tunderstand and agree that MERS hokds only legal title to the rights granted ky me in this Security Instrument, but, if nevessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: (A) to exercise any or all of those rights, including, but not limited to, the right to foreclose and sell the Property; and (B) to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument, DESCRIPTION OF THE PROPERTY 1 T give MERS (solely as nominee for Lender and Lender’s successors in interest) rights in the Property described in (A) through (G) below: (A) The Property which is located at:, 1192 EAST 46 STREET BROOKLYN NEW YORK, 11213 (Property Address). Payee! Identification Number: ‘This Property fs in KINGS County. It has the following legal doscripti SEE ATTACHED EXHIBIT "A" (B) All buildings and other improvements that are located on the Property described in subsection (A) of this section; {C) All rights in other property that Ihave as owner of the Property described in subsection (A) ofthis section, These rights are known ‘as “easements and appurtenances attached to the Property,” (D) Allsights that Ihave in the land which lies in the streets or roadsin front of or nextto, the Property described in subsection (A) of this section; (E) All fixtures that are now or in the future-will be on the Property describec in subseotions (A) and (B) of this section; (F) All ofthe rights and property described in subsections (B) through (E) of this section that I acquire in the futures and {G) All replacements of or additions o the Property described in subsections (B) through (F) of this section and all Insurance Proceeds for foss or damage to, and all Miscellaneous Proceeds of the Property described in subsections (A) through (F) of this section, BORROWER'S RIGHT TO MORTGAGE THEPROPERTY AND BORROWER'S OBLIGATION TO DEFEND OWNERSHIP OF THE PROPERTY {promise that: (A) T lawfully own the Property; (B) J have the right to mortgage, grant and convey the Property to Lender; and (C) there are no outstanding claims or charges against the Property, except for those which are of public record. Tgive a general warranty of title to Lender, This means that I will be fully responsible for any losses which Lender suffers because someone other than myself has some of the rights in the Property which I promise that I have, I promise that I will defend my ownership of the Property against any claims of such rights. PLAIN LANGUAGE SECURITY INSTRUMENT NEWYORK: Siage Family - Fannio MaoiPraddfe Mac UNIFORM INSTRUMENT with MERS Form 3058 1107 Page 2 of 70 1s, ne. -@00) $4872 Borrower(s) Intials 14 of 21THT206 a Ethbte mom clase a-2e § 15,958,800 6.008 Clase 18 10,000,000 6.00% Clase 220 $1,230,000 soos Class 8-21 § 26,336,000 Posting Glace 4-226 5,886,250(31 6.008, Eleco x. faezyoserei2(3) Vertable Glass Po 4262996 a Clase RS 109 6.008 Glass M$ 27,490,000 i008 Glass 2 $6,555,000 5.002 Glace 2 $4,807,000 6008 42) This anount te subject to a permitted variance in tne aggregate of plus or (2) the classes of enttizicates offered by this tree writing prospectus, Cogether with theiz pase-thieysn rates, the wcthed for caleulsting their pessrthrowh rotes amd thelr initiel zatiage, oxe Listed in the tables" Etginaing on poge 4 of ibis tree writing praspectus: (2) the clase Anz, Clase Av6, Class A-12, Clase Av22 and Glogs ¥ cextiticates fare interest oniy notional souae certificates. The initiel notional Gncunes are cet forth in the tale bat are nat included in the oggregate cEeee Cettiticace belance of all the eerticiestes offered. (4) the Claes Zo Certificates are principal only certificates ond wil ast ence enetive om Trust 2006-2108, a common law trust formed under the laws of CWALT, Ine.» a Delowsre corporation, is 9 Linite: puzpese finance subsidisty of Chontlywide Pinenciel Goupetetion. its addzene Le $500 Pork Granada, Calabasas, California 1302, and its telephone mumber is (@i€) 225-3000. stonsoR au seizERs countzywide Kone tosne, Tne. will be the sponsor of the transaction and a seller SP a pbreioe of the mottasge leant. The senainder of the noregage loans will be Sag Mrcctiy to the depeeitor by one or more special purpose entities that Were Htdblishes by cousteywde Finoneia: Comporetion or one of its subsidiaries, Which acquired the mortgage leone they ave sellieg directly from countrwaice Hone Loana, ine. countrywide tone Loans Sexvicing LP. ‘eostex ‘rhe ank of Mow York. POOLING AND SERVICING AGREEMENT che pooting and servicing sgrectent among the seilers, the master servicer, the Aeporitor and she trustee, under hich the iesuiag entity will be tome Guanes | Cart OM Cate. Foren mortgage loan conveyed te the iseuing sntity on the closing date, the S006 vad the date of origination for Chat artgsge loan date" Fox ony mortgage loom conveyed to the {ssuing entity after the eloring date, the Inter of the efigination date for that Rortgege -oan and the Tirst day of the onth of the conveyance to the issuing entity. | Cosmeme) Closing Dete. — | | Ge or shout Septenber 29, 7008: Tf the aggregate stoted Erincipal belance as of che initial cutmoff date of che fortgage iaste conveyed £0 the saauing entity on the closing date is less then Ferssode,000, an scent (the *pre-funding accoust") will be egtabLiched with the Ucustee on the closing date and funded in am smount eqlal to the difference (eesrred to a2 the *pre—funded anount” bresPunded Amount: as of the date of this fees writing prospectus, che pre-Cundod amount to be deposited in the pre-funded account se expected 70 be spprouimately $206, 676, 020 https://www.sec.gov/Archives/edgar/containers/fix270/1375034/00009501 24-06-005662.txt 15 of 21 Page 3 of 47 7/20/2016Exhibit D Distribution Date: 11/27 101 Barclay Street, 8 West ‘New York, NY 10286 Officer: Matthew Sabino . VALT, Inc. deen aves ‘i Alternative Loan Trust 2006-31CB ssociate: Steven Chrysanthis Fo : 212-815-8318 Mortgage Pass-Through Certificates, Series 2006-31CB Principal Distribution Detail, nin Wat Tarrant Ena Car Beate Accretion Principal Roollzed cartieate | ctass cusip sane |_faanee Principal Distribution Losses actor ‘aL | oxganaas 2p90000000] 19.999.86837 ooo 00 131,201 94 a0 0 99341832174 A |, Glasnaa? fosseonn.00 | 46.338,00000 00 00 100 io As [> catasieacs 209 500 00 20,000.00 00 a 100 50) 00 0.0 $00 % 00 100 00 $500.00 oan ts 0.00 000, 150, 600 100 co % 20 9D a0 O00 8.0, 100 00 Mt 38 249.0888 000 oon sing0sas S00 8 2.00 300 300 000 090 503 ao 100 00 4.00 900 9.00 dian an 20 1,686 06159, 0.00 Soo] 1656061 $9 ono an 30 coo 0 800 100 00 4B 500 00 18893 00 0.00, om As 00 00 800 1.508 80 o.00 oo oo Ms "100 1.522982.80 0.00 9) 1s12987 $0 S00 Als 200 ‘ai00 00 90 00 oo al 1109 7628365 9198750, 9.00 67628365 00 Ale 700 J) o.o0 000 i ais 0 00 00 000 000 a0 an 000 9.00 000 5.0 00 a1 ; 1727661 500 500 172,768.71 500 ap S88 60 000 50 0.00 300 ‘ 4005420422:30 too ooo 500 90 200 PO ‘159082 309838 300 00 300098 0 ak 100 300 303 a0 00 at M onugaeaz4 rrgsaa00.00 | 17472,654.08 0.99893388043 BL CREDA 358/00 00 6350295 28 SSpe93388003 2 taiaenans ‘eor000 00 0.99893385013 5 caidensce 499 00090 0135093385088 5 Saiseaap2 Yet? 000.00 : 9p890385085 3 Shteaiiaeo Hias0s.22 Tiessra ts | aS5ess308368 Tonal 874,000,000.00 | s7i,gns.es.e1| $371,661.77 9465553 ooo] 571,661.77 866 526,879.80 “The Class X Beginning Belance was revised from the Prior Month's Ending Balance to reflect a change in Prefanding, Page 2 16 of 21EXh bet - i as! BAYVIEW 3: aust Overbroad Notice of Error (i.e. No Specific Error) Under the Real Estate Settlement Procedures Act (“RESPA"), a servicer is no: required to respond to a notice of error that Is “overbroad,” because the servicer cannot reasonably determine from the notice of error the specific error that the borrower asserts has occurred on the borrower's