SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK
---------------------------------------------------------------------------------------X
THE BANK OF NEW YORK MELLON FKA THE BANK OF INDEX NO.
NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS
CWALT, INC., ALTERNATIVE LOAN TRUST 2006-45T1,
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-45T1
10 - xxxxx
NOTICE OF MOTION
Plaintiff(s),
-againstxxxxxxxxxxxxxxxxxxx, MORTGAGE ELECTRONIC REGISTRATION
REDISTRATION SYSTEMS, INC., ACTING SOLELY AS A
NOMINEE FOR COUNTRYWIDE BANK, N.A., N.Y.S.
COMMISSIONER OF TAXATION AND FINANCE, ODISSEFS
AGORASTOS, MARIA AGORASTOS, DAMIAN J. KENNEDY, GREAT
SENECA FINANCIAL CORP., ET AL,
Defendant(s).
---------------------------------------------------------------------------------------X
PLEASE TAKE NOTICE that upon the annexed affidavit of xxxxxxxxxxx,
Esq. attorney for Defendant, xxxxxxxxxxxxxxxxxxxxxxx, sworn to on the __ day of
September, 2014 and upon all the prior pleadings and proceedings had herein, the
Defendant, through his attorney, will move this Court located at One Court Street,
Riverhead, New York 11901, in front the Honorable PETER H. MAYER, J.S.C., on the
___ day of October 2014 at 9:30 oclock in the forenoon, or as soon thereafter as can be
heard for an order pursuant to :
CPLR 3211(a)(8), CPLR 308, dismissing all of the Plaintiffs alleged causes of
action against Defendant, CPLR 3211 (a)(3) Plaintiffs lack of legal capacity to sue,
CPLR 6514, cancellation of the Notice of Pendency, RPAPL 15 to Compel the

determination of a claim to Real Property and Quiet Title and for such other and further
relief as this Court deems just and proper.
PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214 (b), you are
hereby required to serve copies of your answering affidavits on the undersigned no later
than the seventh (7th) day prior to the date set forth above for the submission of this
motion.
Dated : September ___, 2014
Hauppauge, New York

_______________________________
xxxxxxxxxxxxxxxxx, Esq
xxxxxxx Law Associates, P.C.
Attorney for Defendant
To:
Lisa L. Wallace, Esq.
McCabe, Weisberg & Conway, P.C.
Attorneys for Plaintiff
145 Huguenot Street, Suite 499
New Rochelle, New York 10801
(914) 636 8900
File # 253-2178NY

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK
---------------------------------------------------------------------------------------X
THE BANK OF NEW YORK MELLON FKA THE BANK OF INDEX NO.
NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS
CWALT, INC., ALTERNATIVE LOAN TRUST 2006-45T1,
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-45T1
10 - xxxx
AFFIRMATION IN SUPPORT
Plaintiff(s),
-againstxxxxxxxxxxxxxxx, MORTGAGE ELECTRONIC REGISTRATION
REDISTRATION SYSTEMS, INC., ACTING SOLELY AS A
NOMINEE FOR COUNTRYWIDE BANK, N.A., N.Y.S.
COMMISSIONER OF TAXATION AND FINANCE, ODISSEFS
AGORASTOS, MARIA AGORASTOS, DAMIAN J. KENNEDY, GREAT
SENECA FINANCIAL CORP., ET AL,
Defendant(s).
---------------------------------------------------------------------------------------X
STATE OF NEW YORK
ss:
COUNTY OF SUFFOLK
xxxxxxxxxx Esq., being duly sworn, deposes and says :
1.

The Defendant, xxxxxxxxxxxxxxxx by his attorney, _______________, Esq.,

hereby complains, alleges, affirms and herein Prays for relief by way of a Decree and
Order granting Quiet Title to Defendant relative to the subject real property or,
alternatively dismissing the Plaintiffs Complaint pursuant to CPLR 3211(a)(8),
CPLR 6514, CPLR 308 and CPLR 3211 (a)(3).
2.

Defendant represents that there is an ongoing foreclosure proceeding in effect

governing, concerning or relative to the Parties herein as to subject real property.

3.

IN REM JURISDICTION
Plaintiff herein alleges that at all times relevant hereto, instant action is an In

Rem action relative to the subject property which is within the jurisdiction of the
Supreme Court of Suffolk County where the subject property is so situated and physically
located as fully described herein.
4.

LACK OF PERSONAL JURISDICTION

Defendant seeks to dismiss all of the Plaintiffs alleged causes of action because

the Court does not have personal jurisdiction over Defendant due to Plaintiffs failure to
effect proper service of the Summons and Complaint, thus rendering this action
improperly commenced.
a)

The above entitled action was brought to foreclose upon an alleged mortgage on a

house that I own located at: 121 Cedar Drive, East Hampton, New York 11937.
(the subject property).
b)

The above-entitled action was allegedly commenced by the filing of a Summons

and Complaint.
c)

That I was not properly served with the summons and complaint due to the

Plaintiffs failure to comply with the requirements of CPLR Section 308.

d)

Accordingly, all alleged causes of action against Defendant should be dismissed

pursuant to CPLR Section 3211(a)(8).

e)

CPLR Section 308 states in pertinent part: Personal service upon a natural

person shall be made by any of the following methods:

1. by delivering the summons within the state to the person to be served; or
2. by delivering the Summons within the State to a person of suitable age and
discretion at the usual place of abode of the person to be served and by either

mailing the Summons to the person to be served at his or her last known
residence or by mailing the Summons by first class mail to the person to be
served at his or her actual place of business in an envelope bearing the legend
personal and confidential and not indicating on the outside thereof, by return
address or otherwise, that the communication is from an attorney or concerns an
action against the person to be served, such delivery and mailing to be effected
within twenty days of each other, proof of such service shall be filed with the
Clerk of the Court designeated in the Summons within twenty days of either
such delivery or mailing, whichever is effected later . . .
f)

That the Summons and Complaint was not delivered to Defendant personally.

At the time that service was attempted, Defendant did not live at the subject property.
Defendant lived and still lives at another address, 6 Courtney Way, Red Bank, New
Jersey 07701.
After third attempt at effecting service at the subject property, the servicing agent
affixed the papers to the door and mailed copies to the subject property.
(Exhibit _ Affidavit of Service)
In fact, Plaintiff was aware that Defendant lived at this address as Defendant and
this New Jersey address is noted on the second page of the Summons. Plaintiff being
well aware of Defendants usual place of abode, did not even attempt to properly
effectuate service there. (Exhibit _)
g)

That since the Summons and Complaint was not delivered to Defendant

personally or by mail, nor to a person of suitable age and discretion at Defendants

dwelling place or usual place of abode, nor by delivery or mail to Defendants
workplace, (Defendants actual place of business), nor personally or by mail to any
other address that Plaintiff had reason to believe was Defendants last known address,
service of process was not completed in any manner permitted by CPLR 308
i)

Accordingly, this Court lacks jurisdiction over Defendant due to Plaintiffs failure

to effect proper service of the Summons and Complaint.

j)

That CPLR 3211(a) states in pertinent part: A party may move for judgment

dismissing one or more causes of action asserted against him on the ground that . . . 8. the
Court has not jurisdiction of the person of the Defendant . . .
k)

That pursuant to CPLR 3211(a), Defendant respectfully request that all alleged

causes of action against Defendant be dismissed because the Court does not have
personal jurisdiction over the Defendant because the Summons and Complaint was not
served upon the Defendant in any matter permitted by CPLR 308 or otherwise.
5.

EXPIRED NOTICE OF PENDENCY

The Court should cancel and discontinue this action because Plaintiff initially

filed this action March 22nd, 2010. To date, Plaintiff failed to file an extension order.
The unreasonable delay in Plaintiffs timely prosecution of this action is not
reasonable or excusable and presents great prejudice to the Defendant, the Courts and the
recovering housing market, and as such, Defendant seeks to have this case purged from
the already overburdened Court docket and the action cancelled and discontinued.
As per CPLR 6513, Duration of notice of pendency :
A notice of pendency shall be effective for a period of three years from the date of
filing. Before expiration of a period or extended period, the court, upon motion of the
plaintiff and upon such notice as it may require, for good cause shown, may grant an
extension for a like additional period. An extension order shall be filed, recorded and
indexed before expiration of the prior period.
Plaintiff failed to follow through, conclude and prosecute foreclosure action in good faith.
As per CPLR 6514 (b). Motion for cancellation of Notice of Pendency :
(b) Discretionary cancellation. The court, upon motion of any person aggrieved and
upon such notice as it may require, may direct any county clerk to cancel a notice of
pendency, if the plaintiff has not commenced or prosecuted the action in good faith.

6.

LACK OF STANDING
Defendant engaged AMERICAS WHOLESALE LENDER and entered into a

loan agreement. The terms of the loan were memorialized in a promissory note ("the
Note"), to INDYMAC, which was secured by a Mortgage lien on the Property. Said
Mortgage was recorded on December 27th, 2006 in Suffolk County, New York, Liber:
M00021442 and Page: 398, calling AMERICAS WHOLESALE LENDER Lender
and naming MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (hereinafter
MERS) the Mortgagee of record.
On March 22nd, 2010, THE BANK OF NEW YORK MELLON, (hereinafter
BONY), commenced foreclosure proceedings against the Defendant, recording with the
Suffolk County Clerk, a Notice of Lis Pendens announcing that the Plaintiff intends to
seize the Defendants property.
Plaintiff alleges in the seventh paragraph the Complaint that Plaintiff is the Holder
of the Note and Mortgage, stating that the Mortgage was assigned to Plaintiff by MERS
acting solely as a nominee for AMERICAS WHOLESALE LENDER, by assignment of
Mortgage dated March 11th, 2010
MERS could not have delivered the Note as it has been well established the
Mortgage does not specifically give MERS the authority to assign the underlying Note
(see, Bank of New York v Silverberg, 86 AD3d 274 [2nd Dept. 2007]).
Also, Plaintiff made no mention as to the delivery of the Note. A plaintiff has
standing where it is the holder or assignee of both the subject mortgage and of
the underling note at the time the action is commenced (see, Bank of N. Y. v Silverberg,
86 AD3d 274,926 NJS2d 532 [3d Dept 201 11; US. Bank, N.A. v Collymore, 68 AD3d

752, 890 NYS2d 578 [2d Dept 20001). as a general matter, once a promissory note is
tendered to and accepted by an assignee, the mortgage passes as an incident to the note
(Bank of N. Y. v Silverberg, 86 AD3d 274, supra at 280; see, Mortgage Elec.
Registration Sys., Inc. v Conkley, 41 AD3d 674,838 NYS2d 622 [2d Dept 20071).
By contrast, a transfer of a mortgage without an assignment of the underlying note or
bond is a nullity, and no interest is acquired by it (Bank of N. Y. v Silverberg, 86 AD3d
274, supra at 280; see, LaSalle Bank Natl. Assn. v, Ahearn, 59 AD3d 91 1, 875 NYS2d
595 [3d Dept 20091). Either a written assignment of the underlying note or the physical
delivery of the note prior to the commencement of the foreclosure action is sufficient to
transfer the obligation (US. Bank, N.A. v Collymore, 68 AD3d 752, supra at 754).
In the instant case, the plaintiff failed to establish, prima facie, that it had standing
as its evidence did not demonstrate that the note was physically delivered to it prior to the
commencement of the action (see, Deutsche Bank Nntl. Trust Co. v Rivas, 95 AD3d
1061, 945 NYS2d 328 [2d Dept 20121: HSBC Bank USA v Hernandez, 92 AD3d
843,939 NYS2d 120 [2d Dept 20121). In the Complaint, the Plaintiffs attorney did not
give any factual details of a physical delivery of the note.
7.

MERS MORTGAGE TRANSFERS ILLEGAL / UNENFORCEABLE

United States Bankruptcy Judge Robert Grossman has ruled that MERSs

business practices are unlawful. He explicitly acknowledged that this ruling sets a
precedent that has far-reaching implications for half of the mortgages in this country.
The Judge rejected every aspect of MERSs argument. The Court rejected the
claim that MERS could be both holder of the mortgage as well as nominee of the true
owner. It also found that mortgagee of record is a vague term that does not give one

legal standing as mortgagee. Hence, at best, MERS is only a nominee. It rejected

MERSs claim that as nominee it can assign notes or mortgages a nominee has limited
rights and those most certainly do not include the right to transfer ownership unless there
is specific written instruction to do so. The Judge wrote:
According to MERS, the principal/agent relationship among itself and its members is
created by the MERS rules of membership and terms and conditions, as well as the
Mortgage itself. However, none of the documents expressly creates an agency
relationship or even mentions the word agency. MERS would have this Court cobble
together the documents and draw inferences from the words contained in those
documents.
He went on to disparage MERSs claim that since in legal theory the mortgage
follows the note, the Court should overlook the fact that MERS separated them. He
stopped just short of saying that by separating them, MERS has irretrievably destroyed
the clear chain of title, although he hinted that a future ruling could come to that
conclusion:
MERS argues that notes and mortgages processed through the MERS System are never
separated because beneficial ownership of the notes and mortgages are always held by
the same entity. The Court will not address that issue in this Decision, but leaves open the
issue as to whether mortgages processed through the MERS system are properly
perfected and valid liens. see Carpenter v. Longan, 83 U.S. at 274 (finding that an
assignment of the mortgage without the note is a nullity); Landmark Natl Bank v.
Kesler, 216 P.3d 158, 166-67 (Kan. 2009) ([I]n the event that a mortgage loan somehow
separates interests of the note and the deed of trust, with the deed of trust lying with some
independent entity, the mortgage may become unenforceable).

6.

DEFECTIVE & VOIDABLE ASSIGNMENT

The instant foreclosure action was commenced on March 22nd, 2010 by Plaintiff,

BONY. The Summons and Complaint was created, written and verified by one,
LISA L. WALLACE, Esq., for McCabe, Weisberg & Conway, PC, attorneys for
Plaintiff.
In paragraph seventh of Plaintiffs Complaint, Plaintiff alleges the mortgage
was assigned to Plaintiff by MERS acting solely as a nominee for AMERICAS
WHOLESALE LENDER, by Assignment of Mortgage dated March 11th, 2010 to be
recorded in the Office of the County Clerk of Suffolk County Recording of the said
assignment didnt take place until May 10th, 2010.
This assignment is acknowledged by LISA L. WALLACE, as Vice President for
MERS. The Assignment is labeled to record and return to McCabe, Weisberg &
Conway, PC to the attention of JASON BROOKS. Records indicate that Mr. Brooks is
an Attorney Associate in the New York office who was announced as passing the Conn
Bar Exam in May of 2008.
Public records show that LISA L. WALLACE is a shareholder and managing
attorney for the New York office of the law firm of McCabe, Weisberg & Conway, that
she received her Bachelor's Degree from New York University, cum laude. Ms. Wallace
served as Articles Editor for the New York Litigator, a commercial litigation periodical
published through the New York State Bar Association and was a contributing writer to
the Criminal Justice Journal. She is licensed to practice in the state and federal courts of
New York.
Prior to joining McCabe, Weisberg & Conway, Ms. Wallace worked in the area of
foreclosure and bankruptcy at an established foreclosure firm. She then joined Franklin

Credit Management Corporation as the Assistant Manager of the Legal Department,

where she oversaw the foreclosure and bankruptcy staff. Ms. Wallace also was Counsel
to Escrow Settlement Corp., a national settlement company. She practices in the area of
creditors rights foreclosure and bankruptcy, REO and eviction actions, and loss
mitigation. Nowhere in her background or areas of practice is she alleged to be a Vice
President for MERS.
The verification to Plaintiffs Complaint, signed by LISA L. WALLACE on
March 18th, 2010 cannot be relied upon and appears to be in violation of CPLR 3020
(d)(3). Plaintiffs alleged Holder status and legal standing stems from this fraudulent
transaction. This is a clear act of fraudulent misrepresentation and as such, the
Assignment should be declared void.
It is quite apparent that McCabe, following suit of the former Foreclosure Mill
Attorney Firms, has built and fabricated its own evidence to prosecute this foreclosure.
On November 13th, 2013, Plaintiff then records what purports to be a Corrective
Assignment of Mortgage. This Assignment was again, procured by the Plaintiffs
attorney, McCabe, Weisberg & Conway as it is labled record and return to McCabe,
Weisberg & Conway to the attention of LISA L. WALLACE, (the signor on the previous
assignment).
The document is acknowledged by CECILIA RODRIGUEZ, Assistant Secrretary
for MERS and Notarized by one S. GREENWALD. Conspicuously, this document is
signed and notarized in California. Conspicuous because the assignor is located in,
Illinois for MERS, Virginia for AMERICAS WHOLESALE, the Assignee, BONY in
Texas and the Plaintiffs attorney in New York.

A search of publicly recorded Assignments of Mortgages recorded and filed in

various County Clerks across the Nation, several variations have been found alleging
them to be of CECILIA RODRIGUEZS. (See Exhibit _ Rodriguez Signature Sampler)
Although the signatures allege RODRIGUEZ to be Assistant Secretary for MERS, each
and every signature is different from another and now lends reasonable doubt as to the
validity and authenticity to the Rodriguez signature on the instant Assignment of
Mortgage to the within action, and as such leaves the strict burden of evidentiary proof as
to the authenticity of the signature and until such time, this Assignment of Mortgage can
only be believed to be defective.
Plaintiff records another Assignment of Mortgage dated March 24th, 2014 further
assigning the subject Mortgage from Plaintiff, THE BANK OF NEW YORK MELLON
FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2006-45T1,
MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-45T1 (Assignor) to
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS
TRUSTEE (CWALT 2006-45T1) (Assignee).
That said Mortgage was assigned from MERS / AMERICAS WHOLESALE
LENDER to THE BANK OF NEW YORK MELLON by Assignment of Mortgage dated
March 11th, 2010 recorded May 5th, 2010
Convenient as to how the November 2013 Corrective Assignment of Mortgage
is not referenced as the origination point giving the Assignor the legal right of
Assignment.

More interesting, the document seems to have been prepared by an outside, third
party agency, CT LIEN SOLUTIONS of Glendale, California. A review of CT LIEN
SOLUTIONS company website reveals the nature of their business as;
CT Lien Solutions helps firms perform due diligence, reduce rejections, establish clear
and clean chains of title, safeguard the right to foreclose, and sell or transfer loans.
Well even assess operational workflow to identify areas to reduce costs, inefficiencies,
risk and save money.

We are the industrys most trusted partner for managing real

estate documents and collateral, and your dedicated resource with every jurisdiction in
the nation. With more than 30 years of experience specializing in public record
recording, sourcing and monitoring, our real estate document services include
customizable methods to quickly source, record and track mortgages, deeds and
associated documents on demand.
Upon belief, the duty of preparing an Assignment of Mortgage to clear up a prior
defective Assignment was outsourced to this company.
This Assignment was acknowledged on behalf of the Assignor, BONY
MELLON, by ROBERT G HALL, for BAYVIEW LOAN SERVICING, as Attorney In
Fact, but no power of Attorney is attached as proof of claim and proof of authority to sign
for BONY. Until evidentiary proof can be provided, giving ROBERT G. HALL the
rights to acknowledge this Assignment, it can only be surmised he doesnt have the
authority to do so.
Asserting the chain of Assignments of Mortgage to be defective, Defendant seeks
to have these Assignment declared null, void, legally unenforceable and removed as a
cloud against Defendants title; or in the alternative, proving that Plaintiff is not the true

holder in due course, that Plaintiff lacks legal standing and capacity to sue, a dismissal of
the instant foreclosure action.
Thus, in the instant action, MERS, as nominee for AMERICAN WHOLESALE,
was AMERICAN WHOLESALE agent for limited purposes. It only has those powers
given to it and authorized by AMERICAN WHOLESALE, its principal. Counsel,
McCabe, Weisberg & Conway, failed to submit documents authorizing MERS, as
nominee, to assign the subject mortgage and note to the Plaintiff. MERS lacked authority
to assign the GOLDBERG mortgage, making the assignment defective.
The Appellate Division, Second Department in Bank of New York v Silverberg,
(AD3d 274, 275 [2d Dept 2011]), confronted the issue of whether a party has standing
to commence a foreclosure action when that partys assignorin this case, Mortgage
Electronic Registration Systems, Inc. (hereinafter MERS)was listed in the underlying
mortgage instruments as a nominee and mortgagee for the purpose of recording, but was
never the actual holder or assignee of the underlying notes. The Court held, at 275,
[w]e answer this question in the negative. MERS, in the Silverberg case and in the
instant GOLDBERGS action, never had title or possession of the note. The Silverberg
Court instructed, at 281-282: the assignment of the notes was thus beyond MERSs
authority as nominee or agent of the lender (see Aurora Loan Servs., LLC v Weisblum,
AD3d, 2011 NY Slip Op 04184, *6-7 [2d Dept 2011]; HSBC Bank USA v Squitteri, 29
Misc 3d 1225 [A] [Sup Ct, Kings County, F. Rivera, J.]; LNV Corp. v Madison Real
Estate, LLC, 2010 NY Slip Op 33376 [U] [Sup Ct, New York County 2010, York, J.];
LPP Mtge. Ltd. v Sabine Props., LLC, 2010 NY Slip Op 32367 [U] [Sup Ct, New York
County 2010, Madden, J.]; Bank of NY v Mulligan, 28 Misc 3d 1226 [A] [Sup Ct, Kings
County 2010,Schack, J.]; One West Bank, F.S.B., v Drayton, 29 Misc 3d 1021 [Sup Ct,

Kings County 2010, Schack, J.]; Bank of NY v Alderazi, 28 Misc 3d 376, 379-380 [Sup
Ct, Kings County 2010, Saitta, J.] [the "party who claims to be the agent of another bears
the burden of proving the agency relationship by a preponderance of the evidence"];
HSBC Bank USA v Yeasmin, 24 Misc 3d 1239 [A] [Sup Ct, Kings County 2010,
Schack, J.]; HSBC Bank USA, N.A. v Vasquez, 24 Misc 3d 1239 [A], [Sup Ct, Kings
County 2009, Schack, J.]; Bank of NY v Trezza, 14 Misc 3d 1201 [A] [Sup Ct, Suffolk
County 2006, Mayer, J.]; La Salle Bank Natl. Assn. v Lamy, 12 Misc 3d 1191[A][Sup
Ct, Suffolk County, 2006, Burke, J.]; Matter of Agard, 444 BR [*9] 231 [Bankruptcy
Court, ED NY 2011, Grossman, J.]; but see U.S. Bank N.A. v Flynn, 27 Misc 3d 802
[Sup Ct, Suffolk County 2011, Whelan, J.]).
Moreover, the Silverberg Court concluded, at 283, because MERS was never the
lawful holder or assignee of the notes described and identified in the consolidation
agreement, the . . . assignment of mortgage is a nullity, and MERS was without authority
to assign the power to foreclose to the plaintiff. Consequently, the plaintiff failed to
show that it had standing to foreclose. Further, Silverberg the Court observed, at 283,
the law must not yield to expediency and the convenience of lending institutions. Proper
procedures must be followed to ensure the reliability of the chain of ownership, to secure
the dependable transfer of property, and to assure the enforcement of the rules that
govern real property [emphasis added].
To have a proper assignment of a mortgage by an authorized agent, a power of
attorney is necessary to demonstrate how the agent is vested with the authority to assign
the mortgage. No special form or language is necessary to effect an assignment as long
as the language shows the intention of the owner of a right to transfer it [Emphasis

added]. (Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 [1d
Dept 1996]). (see Real Property Law 254 (9); Suraleb, Inc. v International Trade
Club, Inc., 13 AD3d 612 [2d Dept 2004]).
Asserting the Assignment of Mortgage to be defective, Defendant seeks to have
this Assignment declared null, void, legally unenforceable and removed as a cloud
against Defendants title; or in the alternative, proving that Plaintiff is not the true holder
in due course, that Plaintiff lacks legal standing and capacity to sue, a dismissal of the
instant foreclosure action.
6.

PROMISSORY NOTE SECURITIZATION

Securitization involves the rapid transfer (as per the Plaintiff, Transfer or SALE)

of loans through a chain of parties. The entity that ultimately holds the loan works
through a number of agents, each with different roles and responsibilities. The failure of
any or all of these parties to uphold their legal obligations creates chaos in maintaining
the record title to real property essential to homeownership.
Property law requires recording these sales publically. Notes must be affixed
(permanently) to the security instrument a mortgage without the note has been ruled a
nullity by the Supreme Court. MERSs recommended business practice (with the
servicer retaining the note) would make the mortgages a nullity. Therefore, a
complete chain of title is required to foreclose on property every sale of a mortgage
must be endorsed over to the purchaser, and properly recorded. Without this, it is illegal
to foreclose on property no matter how many payments the Defendant has missed.
Any break in the chain of endorsements along with any break in the chain of title

renders the Power of Sale clause in the security instrument to be a nullity and therefore
no party can foreclose on the real property.
BANK OF NEW YORK MELLON appears to have securitized the loan, through
the Pooling and Servicing Agreement ALTERNATIVE LOAN TRUST 2006-45T1
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-45T1 (hereinafter The
PSA), dated as of December 1st, 2006 between CWALT, INC., (the Depositor)
COUNTRYWIDE HOMES LOANS, INC., PARK GRANADA LLC, PARK MONACO
INC., PARK SIENNA LLC, (the Sellers), COUNTRYWIDE HOME LOANS
SERVICING LP, (the Master Servicer) and THE BANK OF NEW YORK, (the Trustee)
As per the instant PSA, the stated Cut Off Date of the Trust is provided under
Article I-5 as stated Cut Off Date : December 1st , 2006
As per the instant PSA, the stated Closing Date of the Trust is provided under
Article I-5 as stated Closing Date : December 28th, 2006
The Assignment of Mortgage was executed on March 11th, 2010 and recorded
on May 10th, 2010 by the Plaintiff.
Under New York Trust Law, every sale, conveyance or other act of the trust on
contravention of the Trust is Void. EPTL 7-2.4. Therefore, the acceptance of the Note
and Mortgage by the Trustee (BONY) after the Trust closed, would be Void.
see Wells Fargo Bank, N.A. v Erobobo, 042913 NYMISC, 2013-50675.
Defendant seeks an immediate discontinuance of Plaintiffs Action and the
Assignment of Mortgage be declared Null, Void and Legally unenforceable.
The securitization gives rise to a number of genuine issues of material fact that
will preclude Plaintiff from maintaining this action, there being insufficient evidence
presented to the Court that BONY is the legal owner and holder of the Note, that the
Assignment of Mortgage is fabricated and void being a breeder document used by

BONY in facilitating the illegal foreclosure of Defendants property.

It is also believed that there may be genuine issue of material fact whether the
asset pool receive[d] the loan in accordance with the [Pooling and Servicing Agreement]
terms, transferring physically from the Originator to the Sponsor to the Depositor to the
Trust, with all intervening endorsements to the Custodian.
Plaintiff misdeeds in connection with their securitization of billions of dollars of
mortgages have been the subject of numerous investigations, state Attorneys General
lawsuits, court findings of fact, and consent orders. Recently, numerous colleagues of the
Plaintiff agreed, collectively, to pay to the U.S. Treasury a total of approximately $5
billion in civil penalties for their mortgage documentation and foreclosure-related
misconduct. These monetary fines and other civil and criminal actions do not, however,
repair the voluminous number of invalid documents filed all over this country.
These mortgage-backed securities are governed by PSAs, the practices above
make the securities unsecured debt and there is no solution. The securities are no good.
(This would be a Representation & Warrant violation as the MBSs stated that a secured
indebtedness was to be purchased, but since the Trustees of the securitization would not
have the notes, the securities cannot be secured.).
In furtherance of Plaintiffs creation and maintenance of mortgage backed
securities the bundling and packaging of mortgage loans into investment vehicles
Defendant maintains, Plaintiff has filed,
(a)
(b)

Falsified, forged, and/or fraudulently executed mortgage-related

documents and,
Mortgages and deeds of trust assigned to and through MERS,
that Defendants created for the express purposes of hastening their
securitization deals and avoiding the costs of maintaining accurate and
publicly recorded real estate documents regarding transfer and assignment
of mortgages.

Plaintiff systematically created the falsified, forged and/or fraudulently executed

mortgage documents filed with the Suffolk County Clerks Office by what infamously has
become known as robo-signing, which is the practice of signing mortgage assignments,
satisfactions and other mortgage-related documents in assembly-line fashion, often with a
name other than the affiants own, and swearing to personal knowledge of facts of which
the affiant has no knowledge.
Plaintiffs scheme, that failed to disclose and track ownership in mortgages
accurately, was manifested in a private electronic registry many of the Defendants
created called the Mortgage Electronic Registration System (MERS). Through
MERS, Plaintiff disrupted citizens fundamental right to determine through public
searches who holds interests in property.
Plaintiffs systematic schemes have confused, misled, and deceived Defendant,
numerous borrowers, homeowners, and other citizens who relied on the validity of the
Plaintiffs actions.
Plaintiff herein alleges, without confirming the existence or validity thereto, that
any and all debt, loan(s), and or promissory notes relative to, and that which allegedly
have been secured by any security, alleged security instrument, and or alleged
Mortgages referenced herein, have been partially and or fully and completely
Securitized, and or Sold, Assigned, and or Transferred into an Investment and or
Securitized Investment Trust or Pool. As such, and by virtue of the selling, assigning and
or transferring of said, Debt, Loan(s) and Promissory Notes and the lack or absence of
any corresponding assignment of the relative Security, Secured Instrument and or
Mortgage, resulted in any and all Rights, Title, and or Interests to property, allegedly held

by any of the Name or Un-Known Defendants herein relative to the Security, Secured
Instrument and or Mortgage, has been extinguished, relinquished, discharged and or
detached as to any and all debt, loans and or promissory note.
9.

Plaintiff repeats and re-alleges each and every allegation contained in paragraphs

1 through 9 of this Motion as though fully set forth at length herein.

WHEREFORE, Defendant demands judgment as follows :
(a)

requests that the Mortgage and Assignment of Mortgage against the

subject property be deemed null and void and removed from the subject property as a
cloud on Defendants title,
(b)

or, alternatively dismissing the Plaintiffs Complaint, in full.

(c)

and for such other and further relief as this Court deems just and proper.

DATED: September ___, 2014

__________________________
xxxxxxxxxxxxxx, Esq.
Attorney for Defendant

ATTORNEY VERIFICATION
STATE OF NEW YORK)
:ss
COUNTY OF SUFFOLK)
xxxxxxxxxxxxxxxxxx., being duly sworn, deposes and states that he is the attorney for
the Defendant, DAVID GREENBERG in the above entitled action with offices located at
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ;
that he has read the foregoing MOTION and knows the contents thereof ; and that upon
information and belief, the same is true to the deponents own knowledge,

________________________________
xxxxxxxxxxxxxx, Esq.
Attorney for Defendant