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908-907-0953 Attorney for Defendant(s) U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR BEAR STEARNS ASSET BACKED SECURITIES TRUST 2004-AC4 Plaintiff VS. BASHEVA TROP, ET AL Defendant SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION OCEAN COUNTY
DOCKET NO: F-F-28757-10 LEGAL MEMORANDUM IN OPPOSITION TO PLAINTIFF¶S MOTION FOR SUMMARY JUDGMENT
________________________________________________ LEGAL MEMORANDUM IN OPPOSITION TO PLAINTIFF¶S MOTION FOR SUMMARY JUDGMENT ____________________________________________________ Lakewood, NJ
Earl S. David, ESQ. On the Brief for Defendant
LEGAL ARGUMENT I. PLAINTIFF¶S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AND PLAINTIFF¶S COMPLAINT SHOULD BE DISMISSED Plaintiff has filed a Motion for Summary Judgment which relies on factually inapplicable decisional law; ignores the threshold issue of legal standing; fails to justify the striking of Defendants contesting Answer; and purports to be supported by a Certification of an authorized representative of Wells Fargo Bank, NA for Plaintiff which is not made on personal knowledge and which is in fact based on incompetent hearsay. Plaintiff has failed to demonstrate the absence of genuine issues of material fact and has failed sustain its burden to be entitled to the entry of summary judgment. Plaintiff¶s own submissions and admissions therein demonstrate that their motion for summary judgment must be denied as a matter of law. Plaintiff relies on the holding of Ocean Cape Hotel Corp. v. Masefield Corp. 63 N.J. Super. 369, 379. (App. Div. 1960) as the standard for summary judgment.This case is inapplicable to the case at bar since it deals with fraudulent representations regarding the lease of a hotel for a period of seven months. It has no bearing to a foreclosure case that contain triable issues of fact which is based on an agreement for a period of thirty years. As per plaintiff¶s absolute right to foreclose, it cites Scheibe V. Kennedy , 64 Wisc., 564 (1885). Besides bringing case law from 1885, plaintiff¶s counsel should at least quote a New Jersey case from the past century. Plaintiff does not have an absolute right to foreclose if it does not own the note which is an issue in this case as noted in defendant¶s certification. A plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest, and where the recording of the assignment of the mortgage post-dates the filing of the complaint, and the plaintiff does not have the requisite ownership interest at the time of filing. As a foreclosure of a mortgage may not be brought by one who has
no title to it and absent a legally effective transfer of the debt, the (post-filing) assignment of the mortgage is a legal nullity. U.S. Bank National Association v. Kosak et al., 2007 NY Slip Op 51680(U)(N.Y. Sup.Ct. 9/4/2007), citing Katz v. East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998] and Kluge v. Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dpet 1988]. In the instant case, Plaintiff¶s own submissions demonstrate that Plaintiff had no interest in the mortgage on May 24, 2010 (the day that the Complaint was filed), since the subject Assignment was not even recorded by the Ocean County Clerk until June 10, 2010. As noted in the MERS assignment, Plaintiff is a trustee of a trust. We have no other information as to who is the actual owner of the note that was signed by defendant. This is relevant to the lawsuit at hand. This can only be disclosed in discovery or in a trial. It would be premature to grant summary judgment with so much crucial information lacking. As such, Plaintiff lacked legal standing to institute this mortgage foreclosure action ab initio. This issue of material fact warrants not only the denial of Plaintiff¶s Motion for Summary Judgment, but a dismissal of the instant action as well. Plaintiff can simply re file when it shows that it is the actual owner of the note. In addition to the disputed issues of material fact as set forth in the Defendants¶ Answer, the Defendants need the opportunity to propound a First Request for Production of Documents upon Plaintiff. These discovery requests will seek information as to the Plaintiff¶s legal standing including the chain of title to the mortgage and note which are factual issues material to not only the Plaintiff¶s claim but also the Counterclaim of the Defendants. As there is a dispute as to the absence of factual issues at this early stage of the proceedings where the case is not fully developed, summary judgment is inappropriate. Velantzas v. Colgate-Palmolive Company, Inc., 109 N.J. 189, 193, 536 A.2d 237 (N.J. 1987): Generally, we seek to afford ³every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case´, and
³When ³critical facts are peculiarly within the moving party¶s knowledge,´ it is especially inappropriate to grant summary judgment when discovery is incomplete, citing United Rental Equip.Co. v. Aetna Life and Casualty Ins. Co., 74 N.J. 92, 99, 376 A.2d 1183 (1977)(citing Robins v. Jersey City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957), and Martin v. Educational Testing Serv., Inc., 179 N.J. Super 317, 326, 431 A.2d 868 (Ch.Div.1981). In cases where a suit is in an early state and not fully developed, the standard by which a court ought to review a judgment terminating it now is from the standpoint of whether there is any basis upon which the plaintiff should be entitled to proceed further. Velantzas, supra at 193, citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 193, 188 A.2d 24 (1963). As the Plaintiff herein did not have the legal standing to institute this foreclosure action ab initio, Plaintiff cannot proceed any further, and thus Plaintiff¶s Motion for Summary Judgment must be denied. Plaintiff also attempts to support its Motion for Summary Judgment with the Certification of Herman John Kennerty who is an authorized representative of Wells Fargo Bank, NA US Bank National Association. Rule 1:6-6 requires that Certifications in support of Motions be made on personal knowledge. Personal knowledge excludes matters based on information and belief. See., e.g., Wang v. Allstate Ins. Co., 125 N.J. 2, 16 (1991); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 153 (1988). The US Bank Certification, which is based on an ³I have examined the records´ statement (which are per se incompetent hearsay) by someone without personal knowledge, is thus incompetent to support the Plaintiff¶s Motion for Summary Judgment as a matter of law and New Jersey procedure. Mr. Kennerty certifies that he is a representative of Wells Fargo. However, Wells Fargo is not listed as plaintiff. Moreover, Mr. Kennerty was never listed on any of the loan documents till date. He probably examined the records when the motion was prepared.
motion also makes reference to and attaches the Assignment (Exhibit ³D´ to the
Certification). This Assignment, which constitutes an admission by the Plaintiff, is the very document demonstrating that Plaintiff had questionable legal interest or ownership in either the note or mortgage at the time that the Complaint was filed, and raises genuine issues of material fact as to when (if ever) Plaintiff came into any ownership rights of either the Note or the Mortgage. The assignment was made by Mortgage Electronic Registration Systems, Inc. (MERS). Courts across the country have struck down MERS assignments as it is a mere ³nominee´ and it does not have the authority to transfer or assign a mortgage that it does not own. See the Kansas Supreme Court decision in Landmark National Bank v. Kesler, 2009 Kan. LEXIS 834 (Aug 28, 2009), where it said "The relationship that MERS has to (to holder of a loan) is more akin to that of a straw man than to a party possessing all the rights given a buyer. A mortgagee and a lender have intertwined rights that defy a clear separation of interests, especially when such a purported separation relies on ambiguous contractual language. The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is ³[o]ne to whom property is mortgaged: the mortgage creditor, or lender.´ Black¶s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323. Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting ³solely´ as the nominee of the lender." It is our humble opinion that the assignment is a mere sham obscuring from the public the actual ownership of a mortgage, thereby creating the opportunity for substantial abuses and prejudice to mortgagors and especially the defendant in this instant action.
Although the Truth in Lending Act (TILA) contains a three year statute of limitations, there is a an equitable tolling doctrine that overrides that time limitation. Various factors of TILA violations include over escrowing, junk charges( yield spread premiums and service release fees, payment of compensation to mortgage brokers and originators by lenders, unauthorized servicing charges(i.e. the imposition of payoff and recording charges), improper adjustments of interest on adjustable rate mortgages, upselling and overages. Most of these factors are hidden to the layman but are exposed by a professional audit. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1389 (3d Cir. 1994). applying equitable tolling where a defendant "unfairly lulled the plaintiff into inaction. When equitable tolling is applied, the one-year period begins to run when the borrower discovers or had reasonable opportunity to discover the fraudulent concealment of charges. Id. (citing Jones v. TransOhio Sav. Ass¶n, 747 F.2d 1037, 1041 (6th Cir. 1984)).The facts of the TILA violations will be brought out at trial, which is the venue for justice in this action. In particular, Defendants failed to disclose certain charges incident to the extension of credit to the Trops (the borrowers) that were associated with the loan transaction on the Truth in Lending Statement and calculated the annual percentage rate based upon improperly calculated, undisclosed or inconsistent amounts ² all in violation of TILA statutes and regulations. As these charges were hidden and concealed, this action is subject to Equitable tolling or other extensions. Likewise, the Real Estate Settlement and Procedures Act claims can be filed after the Statute of limitation expiration based on equitable tolling. In the matter at bar, the plaintiff or lender never responded to the qualified written request. The Answer and Counterclaim were not ³delay tactics´ but are genuine requests for relief that only the Court can grant based on justice as to the particular facts of this case.
Plaintiff has, by its very submissions, demonstrated that there are genuine issues of material fact as to when, if ever, Plaintiff came into any ownership interest in either the Note or Mortgage. Plaintiff¶s submissions demonstrate that there is a genuine issue of material fact that Plaintiff may not have had any legal interest in either the note or the mortgage at the time it filed this
foreclosure action, and has thus demonstrated that it may be without legal standing to institute this action. Summary judgment for Plaintiff is thus inappropriate. Summary Judgment is also improper at this time given that discovery is incomplete. The Certification, which consists of incompetent hearsay, is legally inadmissible and does not in any way support the entry of summary judgment for Plaintiff. If anything, the Certification supports the dismissal of the instant action in favor of the Defendants. The breach of contract was made by the Mortgagee, who sold the mortgage to unknown parties for an undisclosed profit and did not act in good faith with the Mortgagor. Plaintiff¶s Motion for Summary Judgment must thus be denied, and the complaint must be dismissed. Respectfully submitted, Earl S. David (Attorney For Defendant)
Earl S. David Attorney at Law Riviera Executive Center 216 River Ave,Lakewood NJ 08701 Tel. 908-907-0953 Attorney for Defendant(s) U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR BEAR STEARNS ASSET BACKED SECURITIES TRUST 2004-AC4 Plaintiff VS. BASHEVA TROP, ET AL Defendant SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION OCEAN COUNTY
DOCKET NO: F-F-28757-10 CERTIFICATION IN OPPOSITION TO PLAINTIFF¶S MOTION FOR SUMMARY JUDGMENT
I , Basheva Trop, am the defendant in the above captioned matter. I make this certification in opposition to plaintiff¶s motion for summary judgment as I want the Court to give me the following relief :
A. That the summary judgment motion be denied ; and B. That the Plaintiff¶s complaint be dismissed. C. For such other, further relief as the Court shall deem just and equitable.
1. Plaintiff¶s motion must be denied because there are in fact material issues that can only be resolved at trial. 2. Plaintiff has no standing in this foreclosure proceeding as the assignment of the mortgage to plaintiff was not recorded until June 18, 2010 as noted in Exhibit D of plaintiff¶s exhibits and that the lawsuit was commenced on May 24, 2010 . I had no public knowledge of this fact when I was served with the summons and complaint. 3. Although I acknowledge in the mortgage that my lender has the right to transfer the note, I was never notified of the assignment which is a violation of New Jersey statutes, common law and case law as noted further on in paragraph 7. 4. I even sent a qualified written request based on my RESPA rights and I never received a reply from my lender, service provider or plaintiff. See attached letter and postal receipt as evidence that I did in fact make such a claim. Plaintiff or my prior lender are not acting in good faith. I can make the payments but I do not want to make payments if there are discrepancies in the general account. 5. Plaintiff has not established by the facts that it is the owner or holder of the note in due course. Who are the trustees? The MERS assignment hides this information. 6. I take issue with plaintiff¶s certification of proof of amount due. It says that Herman John Kennerty certifies that he is an authorized representative of Wells Fargo Bank., N.A. US Bank National Association. No where in any of the papers, including mortgage, note, assignment, MERS document is there a mention of Wells Fargo Bank. If Wells Fargo Bank is the proper party, then why are they not listed in the caption of the case? My original lender was Union Federal Bank and now it is a trustee representing a trust 7. In a similar foreclosure case in the State of New Jersey, in Bank of New York et al, vs. Michael J. Raftogianis, Atlantic County, Docket No. F-7356-09, quoting foreclosuredefensenationwide.com, ³The court found that there was no meaningful attempt by Bank of New York (hereafter ³BONY´) to comply with applicable New Jersey procedural rules requiring a recitation of all assignments in the chain of title. BONY simple alleged that it had acquired possession of the note prior to the litigation being filed. However, the evidence at trial failed to establish this allegation, with the Court noting that there were missing documents incident to the securitization of the loan including the mortgage loan schedule that should have
been attached to the mortgage loan purchase agreement. The Court also found that the ³MERS assignment was potentially misleading´. ´Judge Todd also stated that additional discovery is to be produced when the foreclosure involves a securitization, lost note claims, or a holder in due course challenge (which may arise in the context of the purported assignment of a toxic loan to a securitized trust prior to the trustee of that trust instituting a foreclosure action, as well as any predatory loan claims against the original lender). Judge Todd recognized that there are dozens of legal issues and inquiries where a foreclosure involves a securitization, and that a borrower has both the right to know who owns the mortgage loan and whether a foreclosing party has the legal right to foreclose.´ 8. As noted above, I was never notified who owns my mortgage loan. A trial is necessary to determine who owns the mortgage and whether the foreclosing party has the legal right to foreclose.
9. My loan was also subject to a MERS assignment as noted in plaintiff¶s motion as noted by Exhibit D. Does MERS have the right to assign my loan? This is a triable issue of fact. 10. As per issue of the statute of limitation that make my TILA and RESPA claims time barred, there is a concept called equitable tolling of the statute of limitations if there are hidden information which I am a victim of. I was forced to use all of the lenders affiliates in procuring my loan and I am suspect that there are illegal fees hidden in the payment schedule that a layperson such as myself could never figure out unless there is an audit which is done by a professional who can figure out and ascertain the actual costs of the loan.
11. Moreover, the complaint and summary judgment motion is hearsay as it was not made by the lender but by their attorney who does not have actual first hand knowledge of the mortgage and is in violation of N.J.R.E 803. The certification from the authorized representative represents Wells Fargo bank which is not listed in the caption. 12. This is my primary residence and I do not want to lose it because of underhanded behavior the lender. 13. I am also claiming predatory lending as the lender should have known that based on my income that I would have a problem making payments. They did not care but were more interested in earning commissions. 14. I am also entitled to mediation sponsored by the State of New Jersey as it was a federally sponsored loan.
I certify that the above statements made by me are true and that if any of the statements are willfully false, I am subject to punishment.
____________________ Basheva Trop
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