I was informed last night that Barbara Bratton—who sued U.S. Bank in 2012 over the foreclosure of her home in Ontario, California–was recently convicted on 6 counts of real estate fraud and now faces up to 6 years in prison. From Highland Community News:
SAN BERNARDINO, Calif. – On April 14, a San Bernardino County jury returned a verdict of guilty on 6 counts of real estate fraud against 58-year-old Barbara Rae Bratton of Upland. Bratton was taken into custody immediately following the guilty finding.
In May 2013, the Ontario Police Department investigated Bratton on suspicion of filing two false grant deeds with the San Bernardino County Recorder’s Office on a house in the 900 block of Locust Street in Ontario. The false deeds were filed a month earlier by Bratton in a fraudulent attempt to take possession of a house she once owned and had lost to foreclosure.
According to District Attorney Sr. Investigation John Vega, who was assigned to the case, the house had been sold to new buyers who then purchased it legally.
“Ms. Bratton owned the house at one time, but had not made a mortgage payment on it for approximately four years resulting in the foreclosure, and two evictions, to finally remove her from the property,” Sr. Investigator Vega said.
Bratton argued in court that the house still belonged to her in spite of years of not making payments on the property. She continuously cited flawed legal theories that some people use to not pay home loans.
What this story refers to as “flawed legal theories” is what reasonable people with correctly calibrated bullshit detectors call “bank fraud.” That is to say, banks routinely and as a matter of course do what Barbara Bratton is purported to have done, i.e., file false documents in county land records. But not one banker has ever gone to jail for doing so. Not one.
Some would say it’s just a loony conspiracy theory that banks do that. Those same people would say that Bratton was a tin-foil-hatter, a “sovereign citizen” who thought everyone was out to get her and she was trying to get something for nothing, apparently the worst crime that can ever be committed.
Except it’s not a conspiracy theory that banks falsify documents—it’s a conspiracy fact. For example, here’s a story from 2014 that undeniably proves just that:
This kind of manufacturing of evidence happens all the time, it’s just that usually, hard evidence of this criminal behavior is hard to come by. However, Wiley got undeniable proof of it this time. He got his hands on a Nationstar (who used to call themselves “Aurora”) internal memo which said this:
So the Feeneys were right–there was no assignment that gave Aurora/Nationstar the right to do anything. SO THEY (AURORA/NATIONSTAR) MADE ONE UP, BACKDATED IT, AND GOT A NOTARY TO SIGN OFF ON IT! And then filed it in the land records of Greene County, Missouri!
And of course, let’s not forget about Lorraine Brown of DocX, who was found guilty of falsifying over a million documents and then filing them in the land records of counties all across the country. She of course was not an employee of a bank, but the documents she falsified were produced on behalf of banks! She and DocX were the patsies for the criminality of the banks.
Hell, just yesterday, Living Lies published an article in which bank employees and mortgage servicing employees emailed each other back and forth about how best to falsify necessary documents to foreclose on a woman who is currently in such fragile health from a battle with cancer that some fear that her imminent eviction as a result of this falsification could literally kill her:
October 27, 2008
From: Michael Barnett
To: Diane Meistad
Subject: RE: Default Assignment Request loan (Fauley, Robynne)
Okay Diane, I had my manager look at this file with me and we have determined that we need the following assignments to correct the chain of assignments:
1) Corrective Assignment from WAMU TO Deutsche Bank (to correct the assignment from RFC to WAMU, which was recorded in error) & Note Allonge
2) Assignment from Deutsche Bank to RFC & Note Allonge
3) Assignment from RFC to LNV Corp (Note allonge in file already)
The assignment from RFC to WAMU was recorded in error so it is not needed. We also have 2 endorsements on the original Note WAMU to RFC to Deutsche Bank which should be cancelled, to correct the Endorsement chain on the Note. We will just need the okay from you via email to cancel these endorsements. Will this work for you? Thanks Michael.
[NOTE: MGC has decided what was done right and wrong in prior transactions for which it has no knowledge, and what now needs to be done in its own best interest to steal and harvest the home. The transfers to and from WAMU as described above would be fraud due to WAMU being defunct. Then there is the request to have RFC cancel out the endorsements and replace with allonges. The third request in the sequence states that an allonge is already in the file from RFC to LNV Corp even though there are no assignments, yet, to support that allonge. That allonge created by MGC is fraudulent, and represents yet another broken sequence in the chain of title.]
Four days after this last email on October 27, 2008, the following two attached assignments are recorded simultaneously in Clackamas County, Oregon (Recorded Assignments – October 31 2008 – Fauley). The first assignment (and I call it the “first” because of its fraudulently back-dated) is executed on “March 10, 2008″ and notarized as such by “Diane Meistad” – Notary Public – State of Minnesota.” The assignor is “Residential Funding Company, LLC fka Residential Funding Corporation” with no Assignee named. NO ASSIGNEE! However, the second assignment is executed on October 27, 2008 with the Assignor named as “Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company) and the Assignee – “Residential Funding Company, LLC.” This assignment is also notarized by “Diane Meistad.” As admitted by Meistad above, RFC was not in title position to transfer the asset as of October 27, 2008. Yet, she acquiesced to MGC’s fraudulent conspiracy to forge, fabricate, and alter documents.
So, Diane Meistad, Michael Barnett, and all the rest of you who where involved in this deceit, this one’s on you. You are the only ones who can put a stop to this injustice. Robynne Fauley, who is elderly and very sick, has suffered immensely from your actions. In six-days she is scheduled to be evicted from her home. Fix this!
We can clearly see then, that the cops and the courts shouldn’t be going after Barbara Bratton or others like her. They should be going after the banks, as Trump might say, “big league.” Because Bratton was right—the bank did steal her home, as they have literally millions of others. As I wrote about Bratton and her case back in 2013:
I want to be clear that I am in no way arguing that because U.S. Bank may be a “paper terrorist,” then that means that Barbara Bratton is a paper terrorist–I believe the exact opposite is true. Indeed, the truth is the ultimate defense. So the truth needs to be determined, namely: who is entitled to the house, Bratton or U.S. Bank? As the consent order with U.S. Bank makes abundantly clear, along with the general fact pattern of the ongoing foreclosure crisis, there is more than enough evidence to come down in favor of Bratton. So if Bratton is in fact the true owner of her property, then that necessarily means the following: the documents she filed are not forgeries but the documents that U.S. Bank filed are forgeries, and should be treated as such.
Throwing Barbara Bratton in jail does not fix the problem of real estate fraud, because the banks are still running wild and free and commit fraud on a scale that is orders of magnitude larger than anything Bratton or any private citizen like her could ever dream of committing. Her sentence is itself just more fraud. God help us. And God help Kimi Vandyk, who sources say is apparently now in a similar situation in the Santa Barbara area.
LIBERTY ROAD MEDIA 
I’ve seen several persons post about this, without even looking for it. It just comes up in my feed. You certainly have a point about the lack of transparency and accountability in the mortgage securitization world. This might not be what some want to hear, but I am also bothered by the fact that this woman has so many people who claim to be her friend or fellow foreclosure fighters, yet seemingly no one was able to stop her from doing this. Why? No competent attorney would recommend she take the action she took – because it could lead to exactly what happened. It’s totally predictable from where I sit. I don’t know the person or the case or the situation, but I am wondering if someone unqualified gave this woman bad advice. If so, that is sad, for both of them.
As a homeowner, I have seen the abuse up close and personal. When the crisis hit, most attorneys didn’t know what was going on, either. It is a relatively new field and the information was sketchy at best. Some attorneys took advantage, as the attorney who deserted us two weeks before the appeal. When we sought help, 80% of the attorneys we queried said they had a conflict of interest due to their relationship with the banks.
Thank you, David Seal, for getting us through our appeal, but prior to that, you know what we had to deal with.
Ms. Bratton, who I know personally, sought the help of government officials who actually helped her by giving her the forms that got her arrested when filing them. There is much more to this story here than meets the eye, but it is indeed a sad tale of the lack of transparency in the mortgage industry and the double standard.
hI Sherry – Just saw your response. You are welcome! I can’t comment on your other attorneys for various reasons, some of which you know and understand, I am sure!
As to the last paragraph of your response, a government official handing her a standard form to be used for recording documents doesn’t mean the government set her up. What set her up was reading bad or mistaken legal theory, spread by persons who didn’t know what they were doing. That is what likely convinced her she could file a document which would make her mortgage vanish. You know the old saying about if it sounds to good to be true?
And logically there are other obvious problems with it that one could glean without picking up a law book (or a keyboard). So, let’s say Borrower thinks lender XYZ really doesn’t have the rights to foreclose that it purports to have, when it pursues a nonjudicial foreclosure. And let’s say Borrower has their reasons for that – robosigning, dates of assignment, notarial problems – whatever. That doesn’t mean that no one owns the rights. It means only that, if she doesn’t know who owns the rights, she doesn’t know who owns the rights. So, Borrower is in a situation where the owner of those rights COULD be (1) lender XYZ, for reasons she is unaware of, (2) lender XYZ, because her legal analysis is not consistent with actual laws, or (3) some unknown entity. Borrower then goes and files documents to “correct” this which purport to say her obligations are fully discharged, and that she has no mortgage, and her loan is paid off in full with no lien or active deed of trust against it. That seems to be what happened here, doesn’t it?
Can you see how that might be fraught with peril? Now in a judicial foreclosure state, XYZ would have to meet its burden of proof as a plaintiff in a judicial proceeding, and prove it has the rights or standing to foreclose. in a nonjudicial state, or in a nonjudicial proceeding, it has no burden, there is no court case, it just forecloses. And the only way to stop it is to file a lawsuit. That means the borrower is now the plaintiff. And therefore the borrower has the burden of proof. And when the borrower goes to court to contest this, the borrower is met with a powerful defense argument to the effect that XYZ doesn’t have to prove standing to pursue a nonjudicial foreclosure. If the plaintiff borrower can prove that XYZ is the wrong entity, it has a case. But that is a tough case to plead, much less prove. And that is why legislative reform is needed, and why a judicial system better would address these things.
I don’t underestimate the difficulty of finding competent counsel for these cases. Or in knowing who is a competent counsel. It is true that most who understand wrongful foreclosure law are working for banks or servicers at law firms where they can’t take on homeowner cases which conflict. But they are out there! If anyone needs a referral in California, they can come to me and I’ll do my best to try to match them up with someone competent.
When I see a borrower who has to go to jail because someone convinced her that she could make her mortgage vanish, I think the courts and prosecutors may be going about it the wrong way. Analogizing to drug crimes, they wised up a long time ago and stopped trying to bust every single casual user of controlled substances. They need to go after the “pushers” of bogus legal remedies and fake legal analysis. Those people should be behind bars, not their dupes.
Very thoughtful comments, David and Sherry!
@David Seal: I trust that you are one of the few ethical lawyers out there that is willing to assist homeowners in what is clearly a rigged system. I have to take exception with your “They need to go after the “pushers” of bogus legal remedies and fake legal analysis.” comment however. They need to go after the bankers, servicers, originators, lawyers, judges, clerks, etc that are all facilitating this illicit conspiracy. THAT’S WHO NEEDS TO BE IN JAIL!!
Please advise should you know of any ethical, experienced attorneys in Georgia who are courageous enough to do the right thing.
COMES NOW Deborah A. Buczek, the Defendant, appearing pro se in the above-named case and files the following RESPONSE and MOTION TO DISMISS:
1. Jessica Bookstaver and Law Firm Rosicki, Rosicki and Associates, PC (hereafter “RR&A”), a mortgage foreclosure mill working in association as attorneys for HSBC BANK USA, NA (hereafter “HSBC”), a corporation operating in violation of the laws of State of New York and in violation of a court order to cease and desist illegal mortgage practices issued by the Attorney General of the State of New York as explained here: “HSBC needs to be held accountable for flouting a state law designed to help people keep their homes, and I would like to commend Attorney General Eric Schneiderman for standing up for New Yorkers against this banking giant,” said Buffalo Comptroller Mark J.F. Schroeder. “Foreclosures are a major problem in Buffalo, and banks should be trying to fix the situation, not make it worse.” Attorney General Schneiderman’s lawsuit against HSBC is part of his ongoing effort to bring much-needed protections to homeowners facing foreclosure. Attorney General Schneiderman’s lawsuit against HSBC is part of his ongoing effort to bring much-needed protections to homeowners facing foreclosure. He proposed a measure that will require plaintiff attorneys to file the proof of personal service, and proof that their client has the right to foreclose on the loan, earlier in the foreclosure process (A. 5582), and legislation that would impose criminal penalties on residential mortgage lenders, servicers and their agents who intentionally engage in fraudulent or deceptive conduct in the preparation, execution or filing of false foreclosure documents (A.7395). Both bills have passed in the Assembly and await Senate approval.
See (https://ag.ny.gov/press-release/ag-schneiderman-sues-hsbc-holding-hundreds-struggling-homeowners-legal-limbo), have committed fraud as set forth in the following:
. For the reasons set forth below, Plaintiff’s case must be dismissed for criminal fraud and lack of standing, and Rosicki, Rosicki and Associates and specifically Jessica Bookstaver, an attorney duly licensed to practice law in the State of New York, must be sanctioned for her acts of perjury before this court.
3. As evidenced by the record of this case, and proven by the Registry of Deeds, the Plaintiff sold “any and all” interests in the real property located at 7335 Derby Road, Derby, New York on June 27, 2017, and for these reasons, the Plaintiff’s Complaint must be dismissed. (SEE: EXHIBIT A Assignment to MTGLQ from HSBC). Based upon this fact, Attorney Jessica Bookstaver, acting with full knowledge of this fact, committed perjury by continuing in foreclosure proceedings under false pretenses before this court. See To commence a foreclosure action, the plaintiff must have a legal or equitable interest in the mortgage (see Wells Fargo Bank.NA. v Marchione,69 AD 3d. 204, 207 [2d Dept. 2009J). A plaintiff has standing where it is both (1) the holder or assignee of the subject mortgage and (2) the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint (see Wells Fargo Bank.NA. v Marchione.69 AD 3d at 207-209; U.S. Bank v Collymore.68 AD3d 752.754(2d Dept. 2009).)
4. This court was provided a certified copy of the original Assignment from HSBC to MTGLQ, but has, yet, refused to address the document. This document constitutes prima facie proof that Bookstaver and her firm Rosicki, Rosicki and Associates do not have authority or standing to proceed in foreclosure because they have sold any alleged interests. This issue is a triable fact before this court. Defendant has demanded trial on this and other issues, and unless the Plaintiff’s Complaint is dismissed, then, the Complaint must proceed to trial.
5. The Assignment to MTGLQ from HSBC proves lack of standing to proceed in foreclosure as a matter of law, and proves fraud on the part of HSBC and Rosicki, Rosicki and Associates.
6. Bookstaver and her law firm do not represent MTGLQ Investors, and MTGLQ is NOT a Plaintiff in this case.
7. MTGLQ INVESTORS, the newly alleged holder in due course of the alleged Note, has not initiated any foreclosure proceedings against this Defendant in this or any other court. Defendant is currently in negotiations with MTGLQ outside of this action filed by the current Plaintiff, and Plaintiff is not a party to any action or negotiations between the Defendant and MTGLQ. For these reasons, the Plaintiff’s Complaint must be dismissed or immediately moved to trial.
8. Pursuant to Bookstaver’s OPPOSITION TO CROSS-MOTION, Bookstaver, under penalty of perjury affirmed stating that she was personally “fully familiar with the facts and circumstances of this case based upon a review of the file maintained by my office”. As such, Bookstaver is fully aware of the fact that her client, HSBC, sold all interests in the note alleged to exist between the Defendant and HSBC to MTGLQ Investors. Bookstaver, again under penalty of perjury, affirmed that her client has ” clearly established a meritorious cause of action for foreclosure”. As such, Bookstaver has knowingly and willfully committed perjury before this court by making these unbiased claims. For these reasons the Plaintiff’s Complaint must be dismissed, or continued immediately to trial.
10. When Bookstaver affirms under penalty of perjury that: “Plaintiff has provided proof of the existence of the note and mortgage by providing copies of both instruments”, she perjures herself yet again. There is not one court in the world that considers this ridiculous statement to validate the existence of an original note. Bookstaver’s claim is nonsensical, incoherent, unsupported by law or fact and false. No proof has ever been provided by HSBC or Rosicki, Rosicki and Associates of the existence of a note. The only thing provided was an affidavit filed by an HSBC employee saying that they saw a copy of a note, which DOES NOT EXIST! Defendant maintains that documents submitted by the Plaintiff are fraudulent, counterfeit of simple do not exist. The legitimacy of the documents alleged to be in the possession of HSBC are an issue for a jury to determine at trail. Denial of a trial on these issues constitutes denial of due process if the Plaintiff’s Complaint can stand on these bases.
11. Bookstavers’s attempt at summary judgment without allowing this court or this Defendant opportunity to validate the documents forged and counterfeited by HSBC and Bookstaver and her cronies constitutes denial of due process as well. Because Plaintiff lacks standing due to the nonexistence of required documentation, the Plaintiff’s Complaint must be dismissing or moved to trial so that a jury can determine these triable issues of fact. For these reasons the Plaintiff’s Complaint must be dismissed.
12. Defendant was found by this court to be entitled to the extension of hearing date. As, such Plaintiff’s motion for summary judgment must be denied until a hearing is held. Complaint must lacks standing to proceed in foreclosure pursuant to CPLR§3211(a)(3) and for this reason the Plaintiff’s Complaint must be dismissed or proceed immediately to trial by jury.
13. Plaintiff lacks standing to proceed in foreclosure pursuant to CPLR § 3211(a)(3) and for this reason Plaintiff’s case must be dismissed.
14. Documentation relied upon by the Plaintiff to establish standing in disingenuous or counterfeit. The legitimacy of all documentation submitted by the Plaintiff is subject to jury determination for authenticity at trial. For this reason, the Plaintiff’s motion for summary judgment, and indeed the entire Complaint, must be dismissed.
15. The assignment of mortgage by the Plaintiff HSBC to MTGLQ investors proves that the original alleged liability between HSBC and the Defendants has been satisfied on its face, and that HSBC was compensated for their interests. Therefore, Bookstaver’s affirmation under penalty of perjury that her and her Plaintiff have standing, again constitutes perjury on Bookstaver’s part. “…constitutes perjury on Bookstaver’s part” “, by omitting these facts from the court.” The documents Jessica Bookstaver submitted were fabricated, forged and false. See EXHIBIT (A) MERS Procedures Manual under Transfer of Beneficial Rights to Member Investors Overview Although MERS tracks changes in ownership of the beneficial rights for loans registered on the MERS® System, MERS cannot transfer the beneficial rights to the debt.
16. The issue of fraud between Bookstaver, Rosicki, Rosicki and Associates and HSBC as Plaintiff and Buczek as Defendant is an issue for a JURY determination at trial. For this reason, Plaintiff’s motion for summary judgment must be denied. “and a trail should be scheduled.”
17. Bookstaver and Rosicki, Rosicki and Associates do not represent Fannie Mae and do not represent MTGLQ. Her claim to do so without proof is lie, she knows this, and therein she perjures herself yet again. Bookstaver claims to represent HSBC, but HSBC admits, by their own hand in the assignment to MTGLQ, that they no longer have any control or authority or interest in the mortgage or note. Neither HSBC, Rosicki, Rosicki and Associates or Bookstaver dispute the fact that they have absolutely no authority or interest in the property at stake here of a type that would allow them foreclosure rights in New York State. They only make a play upon the integrity of the court to falsify enough information in this court that they hope will go undisputed to get away with the illegal foreclosure. The Plaintiff’s and attorney’s histories in this type of case are well known to the Attorney General of New York and the highest courts in the State of New York. For this reason alone, in the interests of justice, this court is obligated to dismiss this complaint, or in the alternative continue onto trial.
The Plaintiff’s and attorney’s histories in this type of case are well known to the Attorney General of New York and the highest courts in the State of New York. For this reason alone, in the interests of justice, this court is obligated to dismiss this complaint, or in the alternative continue onto trial.
18. This Defendant does not concede to the arbitrary settlement of the controversy proposed through a mediator proposed by the Plaintiff. The Plaintiff, having no bona fide interests remaining after selling them away to MTGLQ, cannot even demand this, as they try to do in their revised complaint. For this reason, since the Plaintiff again seeks relief which cannot be granted, the Plaintiff’s Complaint must be dismissed as a matter of law.
19.The Defendant is entitled, as a matter of due process, that before her property may be seized illegally by HSBC and their coconspirators, she is entitled to prove in a court of law the fraud and perjury committed by Rosicki, Rosicki and Associates, Jessica Bookstaver (individually), HSBC, and other attorneys involved. These issues must be determined by a jury, unless this complaint is dismissed.
20. Bookstaver and her firm have misrepresented to this court that they legally represent Fannie Mae and Mers, which is not true. The disingenuous statements of Plaintiff and their counsel merit sanctions against them by this court for misrepresentation. For these reasons the Plaintiff’s untruthful complaint must be dismissed, or continued to trial.
21. Bookstaver has illegally and in bad faith changed the names of the Plaintiff’s to match some of the recorded paper work without filing a new Complaint and without enjoining the parties as Plaintiff’s in violation of law, due process, and failure to give notice to the Defendants of these changes, to receive unjust enrichment by making false claims that they represent other parties which they do not. For this fraud upon the court alone, this court must dismiss the Plaintiff’s illegally altered Complaint as improperly before the court. (NONE of the requirements set forth in the foreclosure requirements in the note or mortgage documents have been complied with on the part of MTGLQ or Fannie Mae, therefore any foreclosure proceeding involving Rosicki and Associates, Bookstaver and the property involved herein would be contrary to the foreclosure requirements of the State of New York. Again, for these reasons this court MUST dismiss the Complaint.
22. The actions of Jessica Bookstaver and Rosicki, Rosicki and Associates continue fraud and satisfy ALL elements of fraud as required for prosecution under NY CPLR § 3016. As such Bookstaver and Rosicki must be sanctioned and prevented from further fraud as a matter of law through injunction of further proceedings by this court. For these reasons this court must dismiss the complaint.
23. All the documents submitted by HSBC, Rosicki, Rosicki and Associates, and Bookstaver must be heavily scrutinized because of their previous documented history of fraudulent foreclosures involving fraudulent documents, upon the suggestion of the New York Attorney General and the Chief Judge of the New York Appeals Courts. This court has already dealt with the historic pattern of fraud perpetrated by HSBC and Rosicki, Rosicki and Associates in the past. Yet, for some reason, despite known and continuing criminal conduct on the part of these parties, they are permitted by this court to continue in their criminal enterprises. To wit, in HSBC Bank USA vs. Ana Hernandez the Appellate Division of the Supreme Court of New York Second Department decided on February 21,2012 that HSBC had fraudulently attempted to foreclose without authority while claiming they had authority with falsified and misrepresented documentation, exact as they attempt to do here. Also, exactly as here, Plaintiff has failed to establish PRIMA FACIE evidence that it has standing to commence action in foreclosure. The Plaintiff’s evidence does NOT demonstrate that the note was ever physically delivered to it prior to commencement of foreclosure proceedings, and thus FAILED to establish that Plaintiff had physical possession of the note prior to commencing this action. See EXHIBIT (B) WILLIAM MCCAFFREY AFFIDAVIT OF May 17th, 2017 and September 10th, 2015 where Republic Bank already sold the note immediately as the loan had been slotted from origin to be securitized and grouped with hundreds of notes in to a “pooled trust” also known as a real estate mortgage investment (REMIC trust). (Emphasis added)
(SEE ALSO: CitiMortgage, Inc. vs. Stosel, 89 A.D.3d 887,888 (2011); Deutsche Bank Natl trust Co vs. Barnett, 88 AD3d at 637; Aurora Loan Servs, LLC vs. Weisblum, 85 AD3d at 108; US Bank, NA vs. Collymore, 68 AD3d at 754. Accordingly, the Supreme Court of New York properly denied the Plaintiff’s motion for summary judgment in EACH of these cases because of the continued fraud HSBC again attempts here. Because the Plaintiff LACKS STANDING as a matter of law as recognized in New York in the cases above, Plaintiff’s motion for Summary Judgment must be dismissed according to this courts already established binding legal precedent. Also, Plaintiff’s entire case must be dismissed for lack of standing requirements established by this court in HSBC BANK USA vs. Hernandez, as a matter of law.
24. This court should note that pursuant to CLPR 2221(e)(2), considering HSBC selling all interests in the alleged, and forged, mortgage interest to MTGLQ Investors, this court should dismiss the entire Complaint of the Plaintiff for lack of standing, fraud, forgery and misrepresentation again, because HSBC sold “any and all interest in the property”. For these reasons the Complaint must be dismissed or continued to trial.
25. Plaintiff DOES NOT meet the requirements of having authority to request a “referee”, “arbitrator”, or any other party to be appointed by this court to deal with their interests, because HSBC no longer has ANY Interest in the real property involved. The New York State Courts have already expressed a well-founded belief that fraud is a routine activity on the part of HSBC and their foreclosure mill Rosicki, Rosicki and Associates, PC and their minions like Jessica Bookstaver. The New York Supreme Courts have already stated that what is apparently being attempted in this case also occurred in HSBC BANK USA, NA vs. Valentin, 2008NY Slip Op 50164(U) [18Misc 3d 1123(A), decided on January 30,2008. Accordingly, Plaintiff HSBC and Jessica Bookstaver have failed to meet the requirements of CPLR§ 3215(f) for a default judgment. Of course, a real estate fraudster like HSBC and their partners in crime Rosicki, Rosicki and Associates and Jessica Bookstaver have disregarded statutory and court procedural requirements as easily as they disregard the law. Their attitude and standard operating procedure has always been “If this court won’t stop them, no one will”. On any application for judgment by default, the Plaintiff shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of Rule 305 of CLPR § 3215(f) or subdivision (a) of Rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party. Where a verified complaint has been served, it may be used as the Affidavit of the facts constituting the claim and the amount due. In such a case, an affidavit to the default shall be made by the party or the party’s attorney. Plaintiff has failed to submit ” proof of the facts” in “an affidavit made by the party.” The affidavit is submitted by Jessica Bookstaver, an attorney for the foreclosure mill known as Rosicki, Rosicki and Associates, PC. There must be an affidavit by an officer of HSBC or a servicing agent possessing a valid power of attorney from HSBC for the express purposes of foreclosure. Additionally, if a power of attorney is presented to this court and it refers to pooling and servicing agreements (which must exist between Seterus, HSBC, Fannie Mae, PHH Mortgage and NOW MTGLQ investors), the court needs to review a properly offered copy of the pooling and servicing agreements to determine if the servicing agent may proceed on the part of the Plaintiff. This Defendant asserts that these required agreements do not exist and that is why Bookstaver attempts now to illegally foreclose without authority on a property that is legally protected under the laws of New York from being illegally seized by the known fraudsters HSBC and Rosicki, Rosicki and Associates, PC. (SEE: EMC Mortgage Corp. Vs. Batista, 15 Misc.3d 1143(A) [Sup Ct, Kings County 2007]; Deutsch Bank Nat Trust Co. vs. Lewis, 14 Misc 3d 1201(A) [Sup Court Suffolk County]; Also, HSBC BANK USA, NA vs. Valentin, supra. For these reasons the Complaint must be dismissed.
Deutsch Bank Nat Trust Co. vs. Lewis, 14 Misc 3d 1201(A) [Sup Court Suffolk County]; Also, HSBC BANK USA, NA vs. Valentin, supra. For these reasons the Complaint must be dismissed.
26. Based upon the foregoing, as proven by the Plaintiff’s reticence in addressing the fact and their ignoring the fact that the Plaintiff indeed sold its interests in the property being foreclosed upon in this action to MTGLQ Investors, the Plaintiff has no authority to foreclose. The false statements to the contrary made by the Plaintiff’s that HSBC can still foreclose upon a property when it has sold ALL interests in that property, as sworn to under oath by Jessica Bookstaver and Rosicki, Rosicki and Associates, are punishable as a class a misdemeanor under section 175.3 and/or section 210.45 of the penal law. Defendant asserts that for violations of CPLR 216 foreclosure attorneys Thomas Rosicki, Cynthia Rosicki, Christine Fox and Jessica Bookstaver should be disbarred and prosecuted for filing false statements in violation of the Rule for statements made before this court under oath, because these statements were perjuriously. These assertions are triable facts that should be presented to a jury at trial, as demanded by this Defendant in her request for a JURY trial., unless this Complaint is dismissed. EXHIBIT (C) DEMAND FOR JURY TRIAL PURSUANT TO CPLR 4102(A)
27. HSBC and its representative and minion Jessica Bookstaver and Rosicki, Rosicki and Associates (foreclosure mill operating in violation of the laws of the state of NEW YORK as set forth above in item 26) have a long and sordid history of stealing real estate through illegal foreclosure proceedings in the state of NEW YORK. SEE EXHIBIT (D) HSBC to Pay $1.92 Billion to Settle Charges of Money Laundering and HSBC reaches $601M settlement over charges of ‘abusive mortgage practices’ Settlement reached with DOJ, HUD, CFPB, Federal Reserve, 49 states February 5, 2016, FORECLOSURE FRAUD REVEALED: YOUR MORTGAGE DOCUMENTS ARE FAKE! Lynn Szymoniak (Credit: CBS News/60 Minutes) 08.12.2013, HSBC settles U.S. fraud charges over foreclosure fees NEW YORK (Reuters) HSBC Holdings Plc (HSBA.L) agreed to pay $10 million to settle U.S. government charges that it defrauded taxpayers by submitting inflated bills to process residential foreclosures. BUSINESS NEWS JULY 1, 2014
SEE: HSBC BANK USA v. BYRD decided March 8, 2017: Decided: March 08, 2017
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Lijue T. Philip, Andrew Morganstern, and Jessica Bookstaver of counsel), for appellant. Ballon Stoll Bader & Nadler, P.C., New York, N.Y. (Pankaj Malik of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated March 16, 2015, which denied its motion pursuant to CPLR 5015(a) to vacate an order of the same court dated April 29, 2013, dismissing the complaint or, in the alternative, in the interest of substantial justice, for leave to renew its motion for an order of reference. ORDERED that the order dated March 16, 2015, is affirmed, with costs.
In November 2005, the defendant Valene Josephs Byrd (hereinafter the defendant) executed an adjustable rate note, pursuant to which she promised to repay the sum of $292,000 that she borrowed from Fremont Investment and Loan (hereinafter Fremont). The note was secured by a mortgage on property owned by the defendant’s grandmother in Queens Village, dated November 16, 2005, and was given to Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for Fremont. In October 2006, HSBC Bank USA (hereinafter HSBC) commenced this foreclosure action alleging that the defendant defaulted on her loan repayment obligations. According to HSBC, in April 2008, the subject mortgage was assigned to it by MERS.
The defendant did not appear in the action, interpose an answer, or otherwise move with respect to the complaint. In 2007, HSBC moved for an order of reference pursuant to RPAPL 1321. In an order entered May 15, 2007, the Supreme Court denied HSBC’s motion without prejudice to renew upon submission of proper papers, including the demand letter forwarded to the defendant. Thereafter, HSBC filed a new motion for an order of reference and included, in support, the affidavit of the supervisor of Fidelity National Foreclosure, which referenced an entirely different matter and a different party than the defendant. In October 2007, the Supreme Court denied that second motion without prejudice, stating that proper documentation or an explanation of the various exhibits submitted in support of the motion must be provided.
In December 2008 the defendant moved to vacate her default. The Supreme Court subsequently marked the motion off the calendar. Thereafter, pursuant to CPLR 3408, several settlement conferences were held about the action. In an order dated January 10, 2013 (hereinafter the January 2013 order), the Supreme Court determined that HSBC had not complied with an earlier order issued in September 2012 and directed HSBC to appear at a status conference on April 25, 2013, file a foreclosure affirmation pursuant to Administrative Order 431/11, and move for an order of reference by April 25, 2013. The January 2013 order also warned HSBC that the failure to comply may be grounds for dismissal without prejudice.
Thereafter, although HSBC Bank appeared at the April 25, 2013, status conference, it had not fully complied with the January 2013 order. In an order dated April 29, 2013 (hereinafter the 2013 order of dismissal), the Supreme Court dismissed the action without prejudice, and cancelled and discharged all notices of pendency filed in the matter.
Approximately fifteen months later, in July 2014, HSBC moved to vacate the 2013 order of dismissal pursuant to CPLR 5015(a), or, in the alternative, in the interest of substantial justice, for leave to renew its motion for an order of reference. In the order appealed from, dated March 16, 2015, the Supreme Court denied the motion on the ground, inter alia, that HSBC failed to provide a reasonable excuse for its failure to comply with the January 2013 order. HSBC appeals. We affirm.
CPLR 5015(a) authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds. These grounds include excusable default (see CPLR 5015[a][1]); newly discovered evidence (see CPLR 5015[a][2]); fraud, misrepresentation, or other misconduct of an adverse party (see CPLR 5015[a][3]); lack of jurisdiction (see CPLR 5015 [a][4]); or upon the reversal, modification or vacatur of a prior judgment or order upon which it is based (see CPLR 5015[a][5]). Here, HSBC did not provide a reasonable excuse for its failure to comply with the January 2013 order or any other basis pursuant to CPLR 5015(a) for vacatur of the 2013 order of dismissal (see, Monroe v. Monroe, 131 AD3d 1212, 1213; Katz v. Marra, 74 AD3d 888, 890). Accordingly, the Supreme Court properly denied the plaintiff’s motion pursuant to CPLR 5015(a) to vacate the 2013 order of dismissal.
HSBC also failed to establish any basis upon which to vacate the 2013 order of dismissal in the interest of substantial justice (see Macias v. New York City Tr. Auth., 240 A.D.2d 196; see e.g. Galasso, Langione & Botter, LLP v. Liotti, 81 AD3d 884, 885; Katz v. Marra, 74 AD3d at 891).
HSBC also failed to establish any basis upon which to vacate the 2013 order of dismissal in the interest of substantial justice (see Macias v. New York City Tr. Auth., 240 A.D.2d 196; see e.g. Galasso, Langione & Botter, LLP v. Liotti, 81 AD3d 884, 885; Katz v. Marra, 74 AD3d at 891). Although the Supreme Court retains “inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice” (Galasso, Langione & Botter, LLP v. Liotti, 81 AD3d at 885; see Katz v. Marra, 74 AD3d at 890; see also Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68; Ladd v. Stevenson, 112 N.Y. 325, 332), “[a] court’s inherent power to exercise control over its judgment is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” (Matter of McKenna v. County of Nassau, Off. of County Attorney, 61 N.Y.2d 739, 742 [internal quotation marks omitted]; see Long Is. Light. Co. v. Century Indem. Co., 52 AD3d 383, 384; Quinn v. Guerra, 26 AD3d 872, 873).
Here, HSBC failed to provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect (see Matter of McKenna v. County of Nassau, Off. of County Attorney, 61 N.Y.2d at 742; Long Is. Light. Co. v. Century Indem. Co., 52 AD3d at 384; Quinn v. Guerra, 26 AD3d at 873) that would constitute a basis for vacatur of the 2013 order of dismissal in the interest of substantial justice. Indeed, the facts of the action militate against vacatur of the 2013 order of dismissal. HSBC did not appeal the 2013 order of dismissal, and it did not seek to reargue the order to address any perceived error of law. HSBC also never provided any explanation as to why it failed to comply with the Supreme Court’s earlier orders, or why it delayed for more than a year before filing its motion to vacate. In addition, HSBC made its two successive motions for an order of reference in 2007, prior to the date it contends the mortgage was assigned to it. Notably, denial of each of those motions by the court was based on HSBC’s failure to provide proper documents in support of each motion (see e.g. HSBC Bank USA, N.A. v. Valentin, 72 AD3d 1027, 1029; HSBC Bank USA, N.A, v. Betts, 67 AD3d 735, 736). Thus, the interest of substantial justice would not be served by vacatur of the 2013 order of dismissal.
HSBC’s remaining contentions either need not be considered considering our determination or are without merit.
Accordingly, under the circumstances of this case, the Supreme Court providently exercised its discretion in denying HSBC’s motion, inter alia, pursuant to CPLR 5015(a) to vacate the 2013 order of dismissal.
In this case This Defendant asserts that all the above-named attorneys were aware that HSBC sold its interests and the alleged debt herein has been satisfied. Since HSBC BANK USA, NA sold all its interests to MTGLQ Investors, as proven by the recorded assignment of interests already given to this court, these attorneys above mentioned no longer represent the true party in interest and they lack standing to proceed in foreclosure against Buczek. These facts were intentionally and fraudulently omitted from this court by HSBC and their accomplices at Rosicki, Rosicki and Associates, particularly by the two attorneys that intentionally made know false representations to this court under oath, namely Christine Fox and Jessica Bookstaver.
Based upon the holdings of the Court of appeals the Plaintiff’s complaint in this case must be dismissed with prejudice, because as held by the Appeals Court in HSBC v. BYRD the Plaintiff’s claims in this case are also without merit based upon the application of the same standard. For These reasons the Complaint must be dismissed.
28. This Defendant respectfully moves that this honorable court dismiss this complaint in its entirety based upon the fraud committed by HSBC and Jessica Bookstaver and Rosicki, Rosicki and Associates on the grounds of fraud, misrepresentation to this court and misconduct if the Plaintiff as set forth above pursuant to CPLR 5015[a][2], and CPLR 5015[a][3], or in the alternative expedite this case to trial based upon the newly discovered evidence of HSBC’s sale of the entirety of its interests in the foreclosure property to MTGLQ Investors. In HSBC BANK USA, NA v. Valentin, 208 Slip Op 50164 (U) [18 Misc 3d 1123(A)] the same perpetrators of fraud (HSBC and Rosicki and their minions) were found guilty of malfeasance and fraud for doing the same thing they attempt to do here, namely foreclose upon a property where they have already relinquished authority and interest to do so. There exists an unchecked and undeniable historic pattern of fraud and malfeasance by HSBC and aiding and abetting by the Foreclosure mill Rosicki, Rosicki and Associates and their accomplices, with which the New York Attorney General’s Office is very familiar. For these reasons the Complaint must be dismissed.
29. Under the New York rule, foreclosure attorneys are supposed to be disbarred and prosecuted for filing false documents as Rosicki, et. al. has done herein. New York Chief Judge Jonathon Lippman was convinced that the courts are seeing “systematic structural failings” in the foreclosure process and that judges and lawyers have a responsibility not to close their eyes to paperwork errors, even if they seem minor, like the ones Rosicki, et. al and HSBC try to sneak past this court’s eyes in this case. Attorney General Schneiderman’s lawsuit against HSBC is part of his ongoing effort to bring much-needed protections to homeowners facing foreclosure. He proposed a measure that will require plaintiff attorneys to file the proof of personal service, and proof that their client has the right to foreclose on the loan, earlier in the foreclosure process (A. 5582), and legislation that would impose criminal penalties on residential mortgage lenders, servicers and their agents who intentionally engage in fraudulent or deceptive conduct in the preparation, execution or filing of false foreclosure documents (A.7395). Both bills have passed in the Assembly and await Senate approval. “Companies like HSBC are brazenly ignoring state law, leaving homeowners across New York stuck in a legal limbo where they can’t even get the legally required settlement conference that could help them keep their homes,” Schneiderman said. “For homeowners facing foreclosure, time is their greatest enemy. Every day spent waiting for a settlement conference is a day that the lender piles on additional interest, fees and penalties and the homeowner falls further behind.”
He cited specifics of one case in which an Erie County resident fell into delinquency after suffering medical issues and losing her job. HSBC filed the proof of service on November 12, 2010 but did not file the RJI until 19 months later. Fees accrued during that period increased the principal balance on her loan by $23,000 by the time she was able to request a modification. Schneiderman’s suit, filed in New York Supreme Court seeks to compel HSBC to file the RJI immediately in all cases in which it has filed a proof of service, and to file an RJI simultaneously with proof of service in all future cases. In cases where HSBC has already failed to file the RJI the suit also seeks to compel HSBC to prepare an accounting of interest charges, penalties and fees ??that accrued beginning 60 days after the filing of proof of service on the homeowner and toll and waive those fees. In addition, it demands HSBC grant restitution for these charges, fees and penalties that have been paid homeowners, and grant damages to homeowners injured by HSBC’s illegal practices. For These reasons the Complaint must be dismissed.
30. In the affirmation that Bookstaver filed on behalf of HSBC under the direction of the Rosicki’s, Bookstaver swore UNDER PENALTY OF PERJURY that she had communicated with a representative of the foreclosing bank and that she personally reviewed all documents and records related to the case and made ” other diligent inquiry” as necessary to confirm the accuracy of the documents. Bookstaver also swore that to the best of her knowledge, information and belief the Summons and Complaint in this case and all other documents filed in support of this action for foreclosure are complete and accurate in all relevant respects. Then she intentionally omitted from this court evidence of her LACK OF STANDING by intentionally omitting the assignment from her handlers at HSBC to MTGLQ INVESTORS. For these reasons the Complaint must be dismissed.
31. The new rule mentioned above are in effect in the Courts of New York because the ensure that judges make doubly sure that there are no errors and that the attorneys are doing their duty and what is legal in the first place. They came about because of the high number of crooked attorneys acting in the way that RR&A and Jessica Bookstaver have been allowed to act for years. The new rule puts these crooked attorneys, especially foreclosure mills like Rosicki, Rosicki and Associates and Jessica Bookstaver on notice that they will no longer be permitted to continue their historical patterns of criminal behavior. For violation of this rule, the Plaintiff’s complaint must be dismissed.
32. Disbarment here is the least of these dishonest attorneys’ problems. By signing a false affirmation Bookstaver has committed the felony of perjury. Committing perjury in this fire clos foreclosure case Bookstaver and the rest of the RICO violating gang at Rosicki, Rosicki and Associates are al guilty all felony of fraud (lying for the purposes of monetary gain) and the felony of attempted grand larceny for trying to take The Buczek’s home under false pretenses without the legal right to do so. For these reasons the Plaintiff’s complaint must be dismissed.
33. If this court were to allow the fraudulent foreclosure proceeding to occur that is being perpetrated by HSBC and their accomplices at Rosicki, Rosicki and Associates, the attempted larceny would then become grand larceny and conspiracy, as well as fracas because they pervert perpetrators fraud will have stolen the house. For these reasons the Plaintiff’s complaint must be dismissed.
34. Since the violations attempted herein by the Plaintiffs are actual serious fraud by them, these crimes are Federal in nature and constitute RICO and Conspiracy violations as well.
35. Based upon the foregoing, all the assertions presented herein by the Defendant to this court are triable issues of fact and should be presented to a JURY at trial.
36.Therefore, based upon the sale of the alleged debt to MTGLQ by HSBC, any alleged debt owed to HSBC is extinguished. Furthermore, Plaintiff HSBC has forfeited any claims of any alleged debt against defendant Deborah Ann Buczek through its sale of interests in the property being foreclosed upon, as evidenced through the assignment of interests in the property to MTGLQ (See Exhibit (A): Assignment of Debt recorded at Erie County Registry) The documents Jessica Bookstaver submitted were fabricated, forged and false. For these reasons the Plaintiff’s complaint must be dismissed.
WHEREFORE, based upon the sale of the alleged debt to MTGLQ by HSBC, as proven by the document of their own making entitled ASSIGNMENT recorded in the Erie County Register of Deeds which was prepared by, recorded by and tendered by HSBC, the alleged debt between this Defendant and the Plaintiff has been extinguished by the Plaintiff’s own actions. Defendant Deborah A. Buczek has validly demonstrated that she is entitled to the relief she seeks, as a matter of law under the New York statutes, and binding legal precedent set forth in this document. Accordingly, the Defendant respectfully requests that this honorable court grant the defendant relief in the form of:
1. Dismissal of the Plaintiff’s Complaint; and,
2. An ORDER demanding that the Plaintiff’s and their minions and coconspirators at Rosicki, Rosicki and Associates, PC must cease and desist from any further harassment or contact with the Defendant in any way whatsoever regarding the real property located at Derby Road in Erie County New York; and,
3. An ORDER decreeing the claims against the Defendant alleged by the Plaintiff are unenforceable and unsupported; and,
4. Whatsoever other relief that this honorable court may so deem just and proper.
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