XXX BANKRUPTCY COURT

EASTERN DISTRICT OF XXX

……………………………………………………………………..X

In re:

Chapter 7

XXX,                                                                 Case No.: XXX

 

Debtor.

……………………………………………………………………..X                         Adv. Pro. No: XXX

XXX,

Plaintiff,

 

v.

 

XXXX

XXX

INC., XXX

XXXX

 

Defendants.

……………………………………………………………………..X

 

MOTION FOR EVIDENTIARY HEARING

COMES NOW, Plaintiff XXX respectfully moves this Court to hold an evidentiary hearing and not a paper hearing to preserve her right of appeal. In support thereof, Debtor states as follows:

1. Debtor files this Motion to seek an evidentiary hearing on the issues raised below. Notably, Debtor seeks this Court to inter alia, avoid the judicial lien on her property based on the reasons discussed below. This Court has jurisdiction pursuant to XXX, et seq, to make findings of a core proceeding regarding the properties in Debtor’s bankruptcy estate.

 

 

The Evidentiary Hearing will enable Debtor to preserve pertinent issues for appeal

2. Debtor understands that “[b]ankruptcy judges enjoy broad discretion as to the type of hearing to conduct…” See XXXX. Further, “where the parties do not request an evidentiary hearing or the core facts are not disputed, the bankruptcy court is authorized to determine contested matters . . . on the pleadings and arguments of the parties, drawing necessary inferences from the record.” In XXX).
3. “[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.” In re Blaise, 219 B.R. 946, 949 (B.A.P. 2d Cir. 1998).
4. A paper hearing in this case would be inappropriate. Without a full and fair evidentiary hearing, the Court will lack the necessary facts to render a just and accurate finding. Besides, allowing an evidentiary hearing would therefore help Debtor preserve the issues for appeal. It is therefore Debtor’s contention that she needs, and is entitled to, an evidentiary hearing, as opposed to a paper hearing, on the issues discussed below:
5. The Plaintiffs in the foreclosure cases lacked standing to institute the cases: The Courts lacked jurisdiction
6. “Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request” XXX.
7. “Where the plaintiff is the assignee of the mortgage and the underlying note at the time the foreclosure action was commenced, the plaintiff has standing to maintain the action” XXX].
8. A plaintiff may not foreclose on a mortgage where the plaintiff does not have title to the mortgage. XXX.
9. As this foreclosure action was commenced by a party that did not yet at the time have an interest in the mortgage and note, the complaint is dismissed without prejudice,  sponte, for lack of standing. XXX]; see also XXXX.
10. In the foreclosure cases, the Plaintiff lacked standing due to the fact that they have not filed it on the record in the form of an Affidavit on behalf of a competent witness with first-hand knowledge and under oath and penalty of perjury to the allegations stated in the Complaints and or alternatively had a witness of a certain Corporate Officer Level testify in person in court.
11. Accordingly, the Plaintiffs in the foreclosure cases never established on the record that there was a real matter in controversy between them and the Debtor nor any injury or damages proven to exist. The foreclosure courts therefore lacked subject matter jurisdiction over the matters due to the fact that the Plaintiffs and their Attorney failed to establish standing by the foregoing means as required as a matter of law. The courts also lack jurisdiction because the Judges failed to require that Plaintiffs prove Standing on the record.
12. The result of the foregoing is that all foreclosure judgments and subsequent orders and sales of the Debtor’s Property are Void.

 

1. 11 U.S. Code § 522(f) avoids the fixing of a lien on an interest of the debtor in exempt property
2. Debtor asserts that the judicial lien on her property should be voided pursuant to 11 U.S. Code § 522(f), because of the following reasons. First, BAC Home Loans Servicing, LP was not the originating lender for either property. On or about February 13, XXX, a document titled “Assignment of Mortgage” was executed assigning the mortgage from MERS, Inc. as nominee of America’s Wholesale Lender to Bank of America, N.A. and recorded under XXX. This document is executed three (3) weeks after the complaint was filed further proving Bank of America, N.A. did not have possession of the note. This document was presented by XXX & XXX, counsel for the creditor.
3. In June XXX, Debtor consulted with a New York licensed attorney who advised her to file for bankruptcy protection. Therefore, on or about June XXX, Debtor filed for Chapter 7 bankruptcy protection in the Eastern District of New York (Brooklyn) under case number 12- 44750-ess. It was stated in Debtor’s Statement of Intention that she would retain the properties and enter into a loan modification with Bank of America for the Residential Property. There were no objections by Bank of America, N.A.
4. Secondly, there has been no (and there has never been) any “certificates” adduced in court as proof of possession of the original note. Only ledger entries in a computer were presented. It is also noteworthy that 99% of all notes were insured and paid off within the 90 days of default.
5. Next, the notes presented in the courts by the creditors were invalid. The note presented for the residential property was endorsed by David A. Spector, who was employed by Countrywide Financial Corporation and not Countrywide Home Loans, Inc. or America’s Wholesale Lender. He therefore lacked authority to endorse the note, and his signature is a stamped signature instead of a “wet ink” original.
6. The note presented for the Howard Beach Property was not properly assigned to US Bank Trust N.A. as Legal Title Trustee for XXX SC6 Title Trust (“Truman Trust”) and neither “Truman Trust” nor Fay Servicing, are included as Plaintiff in the foreclosure case. The endorsement on the note is also ineffective because it appears to be a stamped signature (instead of a live signature) of a well-documented “robo-signer” for Countrywide Home Loans, Michele Sjolander. According to XXX she worked for Recontrust and not Countrywide Home Loans, Inc. in 2007. She further testified there were multiple stamps with her signature on them.
7. Michele testified that while she had some sort of power of attorney to allow others to use her stamps, she did not know who the people using her stamp were, she was never in the same room where the stamps were being used and did not have the security clearance to be in the room where her multiple stamps were being used to endorsed notes. Therefore, she had no control of stamps with her signature or personal knowledge to endorse alleged original notes for a company she wasn’t even employed by. Further, the redactions on the mortgage assignments and cover sheets are indicative of an attempt by the creditor’s counsel to conceal identifying markings. Many of the “assignments” were not cross-referenced under the borrower’s name or address. By redacting public information, i.e. Control recorder numbers and dates recorded, it would deter many from finding the actual recorded document for other valuable information.
8. It is therefore Debtor’s contention that this Court should determine the validity of all claims presented by the creditors in this action. Debtor further contends that the probe into the validity of the claims would show how the creditors unjustly/illegally claim Debtor’s properties. Said determination justifies a declaratory judgment against the Creditors.

• The Plaintiffs in the foreclosure cases are in violation of CFPB

19. On April 26,2023, the Consumer Financial Protection Bureau (CFPB) along with Attomey General Letitia James stated that Servicers and Lenders were knowingly attempting to collect Debts that had already been charged off to time barred pursuant to the UCC. See UCC 3- I l8 (a) (b).
20. In the instant action, as Debtor’s loan was time barred as of January 30, 2018 and January 30, 2022, there can be no question that the attorneys and the Servicers have maliciously prosecuted Ms. XXX by knowingly filing a foreclosure action without any evidence it ever obtained Holder Status as required by Article III of the Constitution and New York Foreclosure Law for an assignee seeking to Foreclose. This court must therefore Vacate the VOID Orders because this court lack subject matter jurisdiction when this case was commenced and lacked subject matter jurisdiction at the time of the default judgement, the final judgement and at the present time.
21. Plaintiffs in the foreclosure cases failed to produce sufficient evidence to prove their claims
22. In this case, the Plaintiffs in the foreclosure cases failed to produce sufficient evidence to support their claims. According to Article III of the US Constitution, any person filing a civil action must provide physical evidence demonstrating a concrete injury prior to initiating the action or foreclosure. In compliance with Article III, New York foreclosure law requires a party seeking to foreclose or initiate a civil action to submit evidence of the injury suffered before commencing the foreclosure or civil action. This principle is well-established in the New York State Supreme Court, Appellate Division, Second Department case of XXX.
23. It is Debtor’s contention that the Plaintiffs in the foreclosure cases filed false Proofs of Claims 5.1 and 6.1 were fraudulently filed to effect the foreclosure judgments. Proof of Claim 5.1 was against the Howard Beach Property, while Proof of Claim 6.1 targeted Debtor’s residence. Debtor contends that the there are no identifiable “holders” as per the DOJ sentencing memorandum of June 3rd 2016. Besides, no party filed and/or presented any fact witness to prove their ownership of the original note, or chain of possession of the original note.
24. It is also notable that the Pooling and Servicing Agreements do not convey “ownership” of the assets of the trust. It only conveys the revenue of that trust. Debtor further asserts that there are no (and there has never been) any “certificates” adduced in court as proof of possession of the original note. Only ledger entries in a computer were presented. It is also noteworthy that 99% of all notes were insured and paid off within the 90 days of default.
25. For proof of claim 5.1, Part 1, question 2 of Form 410, of the proof of claim alleged that the claim had not been acquired from someone else. However, a separate document disclosed that there was “prior management balance”, which shows that the alleged creditor’s assertions were wrong. Further, “U.S. Bank National Association as Legal Title Trustees for Truman 2016 SC6 Title Trust” averred that they are the Creditors. Truman further directed that any and all payments be directed to Fay Servicing LLC. Debtor avers that Truman is not a creditor because there was no privity of contract between the Debtor, on one hand, and Fay or the Howard Beach property servicer on the other hand. Debtor also maintains that Fay the Howard Beach Property Servicer are not creditors because they are “bulk debt buyer”’ or “debt collectors” as opposed to creditors.
26. Regarding Proof of Claim 6.1, “Tiki Series IV Trust” alleged that they were the creditor, and directed that any and all payments be made to “Rushmore Loan Management Services LLC.” First, the alleged creditor failed to prove ownership of the Residential Property Note. There is also no privity between the Debtor and Tiki or its agents. Besides, the lender on the Residential Property’s 2005 Note is America’s Wholesale Lender, but that entity was incorporated in New York in 2008, years after the date of the Residential Property note and mortgage. Exhibit (“A”) In XXX, the Court ruled in favor of the borrower because the plaintiff was not the lender named in the note.  Notably, the court held that the Court lacked subject matter jurisdiction because since the beginning of her relationship with the lender, the defendant has conducted business with lender only under its trade name, and under no other name.
27. Further, in XXX, the Court held that the named plaintiff in the original complaint never existed.  As a result, there was no legally recognized entity for which there could be a substitute. See also XXX. Furthermore, because the Plaintiff had no standing to bring an action, no action in that case ever was commenced, as it was void ab initio. In the absence of standing on the part of the plaintiff, the court has no jurisdiction. XXX.
28. It follows; Tiki and the Residential Property Servicer, Rushmore Loan Management Servicing, and its counsel Courtney Williams, Esq of Gross Polowy lied to the court by filing the Residential Property Proof of Claim without valid evidence of ownership of the debt and/or note.
29. In addition to the foregoing, Debtor maintains that all illegally securitized mortgage (as is the case here), violated the Electronic Signature Act, which act constitutes identity theft. Cumulatively, the opposing parties’ conducts (since the foreclosure actions) have been in violation of the Corporate Transparency Act 2022.
30. This Honorable court should therefore note that the proceedings were based on constant lies as to the owner of the original note. False evidence was presented in that the original note was not presented to the court in support of the proof of claims. Besides, XXX & Associates admitted, in an unrelated case, to fraudulent firm practices in presenting foreclosure cases between 2009-2018 and were penalized by the court XXX.
31. The two fraudulent and illegal foreclosures Index No: 301/2010 E-File 705854/2021 and Index No: 2005/2012 E-File 705175/2021 has led Debtor into filing three bankruptcy causing her and her children years of financial, emotional and mental distress.
32. The foreclosure judgments are void
33. Rule 60(b)(4) permits a court to grant relief from a final judgment where “the judgment is void” for lack of subject matter jurisdiction. See XXX
34. Debtor presents the following case laws, which provide jurisprudence on void judgments:
35. Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, XXX.
36. Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process. See XXX.
37. Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside. XXX.
38. In XXX, the court stated that by law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person). When a judge acts as a trespasser of the law, when a judge does not follow the law, the Judge loses subject-matter jurisdiction and the judges’ orders are not voidable, but VOID, and of no legal force or effect. The U.S. Supreme Court stated that “when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”
39. In XXX, the Court stated that “Jurisdiction can be challenged at any time,” and “Jurisdiction, once challenged, cannot be assumed and must be decided.” See also, Basso v. Utah Power & Light Co. 395 F 2d 906, 910 “Once challenged, jurisdiction cannot be assumed, it must be proved to exist.”; XXX. “It is the duty of all officials whether legislative, judicial, executive, administrative, or ministerial to so perform every official act as not to violate constitutional provisions.”
40. XXX Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. See XXX) “where there is no injured party/no party with standing to sue…no party with capacity to access the court/invoke jurisdiction there can be no ruling that is not an unenforceable nullity/void judgment. The burden of proof rests with the plaintiff to show that his right of possession of the premises is superior to that of the defendant, and to establish every essential element on which to predicate his action-such as that the plaintiff was in actual possession or was entitled to possession at the time of forcible detainer. If the right to possession is in dispute, the person who is in the actual peaceful possession of the property will be presumed to be rightfully in possession, and the burden is on the plaintiff to overcome the presumption.
41. XXX, “When non existent jurisdiction is challenged, all movement is to cease unless/until jurisdiction is proven on and for the record…where there is not and cannot be jurisdiction it is the duty of the court to dismiss… Jurisdiction, once challenged, cannot be assumed and must be decided.”
42. In XXX, the court stated that “without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers. This distinction runs through all the cases on the subject; and it proves, that the jurisdiction of ANY COURT exercising authority over a subject, may be inquired into IN EVERY COURT, when the proceedings of the former are relied on and brought before the latter, by the party claiming the benefit of such proceedings.”
43. XXX; “When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”; XXX “Officers of the court have no immunity, when violating a Constitutional right, from liability. For they are deemed to know the law.”XXX: The US Supreme Court ruled that public Officials (“Judges” are not exempt) who cause “Unauthorized Deprivations” lose their Eleventh Amendment Protection and are subject to suit for damages under 42 U.S.C. § 1983. The key is negligence: acting in excess or without authority or jurisdiction or failing to act when required to do so.
44. Based on the following jurisprudence, it can be clearly seen how the decisions of the foreclosure courts are void, and should be determined as such by the instant court.

CONCLUSION

In light of the foregoing, Debtor respectfully requests that this Court issues an Order:

1. For an evidentiary hearing.
2. Voiding all judicial liens and creditors’ claims over Debtor’s properties, for filing forged notes and failing to prove chain of possession.

• Lastly, Debtor prays for any other Order this Court deems just.

 

 

Date: _________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

I, certified that a copy of the foregoing Motion for Evidentiary Hearing will be served via electronic mail on this _______ to the parties listed below:

 

XXX

XXX

 

XXX

Jeffrey C. Chancas

XXX

 

 

 

 

 

 

XXX

Naomi J. Skura

XXX

XXX

 

XXX

XXX

 

XXX 

Steven Amshen

XXX

 

XXX

 

XXX

 

XXX

XXX 

 

 

XXX

 

XXX

 

XXX

XXX

 

XXX

____________________________________                                                __________________

XXX

Pro Se Debtor

 

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