Indymac Fed. Bank, FSB v. Meisels
| Decision Date | 04 October 2012 |
| Docket Number | No. 8752/09.,8752/09. |
| Citation | 961 N.Y.S.2d 358,37 Misc.3d 1206,2012 N.Y. Slip Op. 51902 |
| Parties | INDYMAC FEDERAL BANK, FSB, Plaintiff, v. Mendel MEISELS et. al., Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Fein Such and Crane, LLP, Rochester, for Plaintiff.
Hanna & Vlahakis, Brooklyn, for Defendant.
In this mortgage foreclosure action, for the premises located at 2062 61st Street, Brooklyn, New York (Block 5528, Lot 33, County of Kings), defendant MENDEL MEISELS (MEISELS) moves, pursuant to CPLR Rule 5015(a)(4), to vacate the July 27, 2010 order of reference granted upon defendant MEISEL's default, for “lack of jurisdiction to render the ... order” to plaintiff INDYMAC FEDERAL BANK, FSB [INDYMAC FED] and then, if vacated, either dismiss the instant action, pursuant to CPLR Rule 3211(a)(1) and (7), or grant leave to defendant MEISELS to file a late answer, pursuant to the CPLR Rule 2004 and § 3012(d).
The Court grants relief to defendant MEISELS. In the instant action, plaintiff INDYMAC FED lacks jurisdiction. It ceased to exist on March 19, 2009, almost three weeks before the instant action commenced on April 9, 2009. If plaintiff INDYMAC FED has jurisdiction and standing it would be the legal equivalent of a vampire—the “living dead.” Further, the Court is concerned that: there are documents in this action in which various individuals claim to be officers of either the “living dead” INDYMAC FED or its deceased predecessor INDYMAC BANK, FSB [INDYMAC]; and, the law firm of Fein, Such & Crane, LLP (FS & C) commenced and prosecuted this meritless action, asserting false material statements, on behalf of a client that ceased to exist 20 days prior to the commencement of the instant action.
If plaintiff INDYMAC FED is a financial “Count Dracula,” then its counsel, FS & C, is its “Renfield.” In the 1931 Bela Lugosi “Dracula” movie, the English solicitor Renfield travels to Transylvania to have Dracula execute documents for the purchase of Carfax Abbey, only to be drugged by Count Dracula and turned into his thrall. Renfield, before his movie death, tells Dracula (“Memorable quotes for Dracula [1931]” at www.imdb.com/title/tt021814/ quotes). FS & C, similar to Renfield, throughout its papers and at oral argument demonstrated its loyalty by not betraying its client and Master, the “living dead” INDYMAC FED.
Further, the Court finds that it is an extraordinary circumstance for a corporate entity that ceased to exist, plaintiff INDYMAC FED, to retain counsel and proceed to foreclose on a mortgage for real property. This extraordinary circumstance requires the Court to: vacate defendant MEISELS' default, because it is impossible for the “living dead” plaintiff, INDYMAC FED, to have jurisdiction; dismiss the instant action with prejudice; and, give FS & C an opportunity to be heard as to why the Court should not sanction it for engaging in frivolous conduct, in violation of 22 NYCRR § 130–1.1(c)(1) and (3), because the instant action is “completely without merit in law” and “asserts material factual representations that are false.”
Defendant MEISELS closed on his $765,000.00 purchase of the subject property, a two-family investment property, on March 7, 2005. The deed was recorded on March 25, 2005, in the Office of the City Register of the City of New York, at City Register File Number (CRFN) 2005000175346. MEISELS, to finance the purchase, borrowed $460,000.00 from INDYMAC and, at the March 7, 2005 closing, executed a mortgage and note for that amount. In the subject mortgage it states that INDYMAC is the “lender” and Mortgage Electronic Registrations Systems, Inc. [MERS] “is a separate corporation that is acting solely as a nominee for Lender” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD.” The subject note states that INDYMAC is the “lender” and the “Note Holder” is “[t]he Lender or anyone who takes this Note by transfer .” MERS, as nominee for INDYMAC, recorded the subject mortgage and note on March 25, 2005, in the Office of the City Register of the City of New York, at CRFN 2005000175347.
Subsequently, INDYMAC failed in the 2008 financial meltdown. The Federal Deposit Insurance Corporation [FDIC] stated in its December 15, 2010 “Failed Bank Information” for INDYMAC and INDYMAC FED:
On July 11, 2008, IndyMac Bank, F.S.B., Pasadena, CA was closed by the Office of Thrift Supervision (OTS) and the FDIC was named Conservator. All non-brokered insured deposit accounts and substantially all of the assets of IndyMac Bank, F.S.B. have been transferred to IndyMac Federal Bank, F.S.B. (IndyMac Federal Bank), Pasadena, CA (“assuming institution”) a newly chartered full-service FDIC-insured institution.
Then, the FDIC, approximately eight months later, on March 19, 2009, transferred the assets of INDYMAC FED to a new bank, OneWest Bank, FSB. The FDIC stated in its December 15, 2010 “Failed Bank Information” for INDYMAC and INDYMAC FED:On March 19, 2009, the Federal Deposit Insurance Corporation
(FDIC) completed the sale of IndyMac Federal Bank, FSB, Pasadena, California, to OneWest Bank, F.S.B., Pasadena, California. OneWest Bank, FSB is a newly formed federal savings bank organized by IMB HoldCo LLC. All deposits of IndyMac Federal Bank, FSB have been transferred to OneWest Bank, FSB.
Meanwhile, MERS, as nominee for INDYMAC, on March 10, 2009, despite INDYMAC's July 11, 2008 corporate demise, assigned the subject mortgage with “all rights accrued under said Mortgage and all indebtedness secured thereby” to INDYMAC FED. This assignment was recorded in the Office of the City Register of the City of New York, at CRFN 2009000085845, on March 25, 2009. No power of attorney authorizing MERS to assign the mortgage was attached or recorded. Further, MERS' assignor, as Vice President of MERS, for the “living dead” INDYMAC, was the infamous robosigner Erica Johnson–Seck. This Court, in several previous decisions, most notably in OneWest Bank, F.S.B. v. Drayton (29 Misc.3d 1021 [Sup Ct, Kings County 2010] ), discussed Ms. Johnson–Seck's robosigning activities. In Deutsche Bank v. Maraj (18 Misc.3d 1123[A] [Sup Ct, Kings County 2008] ), Ms. Johnson–Seck was Vice President of both assignor MERS and assignee Deutsche Bank. In Indymac Bank, FSB v. Bethley (22 Misc.3d 1119[A] [Sup Ct, Kings County 2009] ), Ms. Johnson–Seck was Vice President of both assignor MERS and assignee Indymac Bank. In Deutsche Bank v. Harris (Sup Ct, Kings County, Feb. 5, 2008, Index No. 35549/07), Ms. Johnson–Seck executed an affidavit of merit as Vice President of Deutsche Bank.
This Court observed in Drayton, at 1022–1023:
Ms. Johnson–Seck, in a July 9, 2010 deposition taken in a Palm Beach County, Florida foreclosure case, admitted that she: is a “robo-signer” who executes about 750 mortgage documents a week, without a notary public present; does not spend more than 30 seconds signing each document; does not read the documents before signing them; and, did not provide me with affidavits about her employment in two prior cases.
Moreover, in Drayton, at 1026:
Ms. Johnson–Seck admitted that she is not an officer of MERS, has no idea how MERS is organized and does not know why she signs assignments as a MERS officer. Further, she admitted that the MERS assignments she executes are prepared by an outside vendor, Lender Processing Services, Inc. (LPS), which ships the documents to her Austin, Texas office from Minnesota. Moreover, she admitted executing MERS assignments without a notary public present. She also testified that after the MERS assignments are notarized they are shipped back to LPS in Minnesota.
FS & C, as counsel for the “living dead” plaintiff, INDYMAC FED, commenced the instant action on April 9, 2009 by filing the summons, verified complaint and notice of pendency with the Kings County Clerk. These documents are all dated April 8, 2009. Plaintiff's counsel, FS & C, incorrectly states in the April 8, 2009 complaint that: plaintiff INDYMAC FED is “existing” and “doing business in the State of New York” [¶ 1]; and “the plaintiff is now the owner and holder of the said bond(s)/notes(s) and mortgages securing the same” [¶ 11]. Mark K. Broyles, Esq., the “Renfield” for the “living dead” INDYMAC FED, in his verification of the complaint, dated 20 days after plaintiff INDYMAC FED ceased to exist, states and “I verify that the foregoing statement are true under the penalties of perjury [ emphasis added ].”
In his April 15, 2009 affidavit of amount due, Roger Stotts claims to be Vice President of plaintiff INDYMAC FED, despite the end of its existence on March 19, 2009, and claims, in ¶ 4, “Plaintiff is still the holder of the aforesaid obligation and mortgage” and, in ¶ 7, “I hereby certify that the foregoing statements made by me are true; I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.” Mr. Stotts alleges that defendant MEISELS defaulted in his mortgage loan payments on August 1, 2008. Then, in his June 2, 2009 certificate of conformity, Mr. Broyles swears that “the foregoing acknowledgment of Roger Stotts ... and based upon my review thereof, appears to conform with the laws of the State of New York.” The Court wonders why Mr. Broyles and FS & C continue the charade of representing a deceased corporation and falsely asserting its existence.
Subsequent to the Erica Johnson–Seck March 10, 2009 assignment of the subject mortgage “and all indebtedness secured thereby,” from MERS, as...
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Buckskin Realty Inc. v. Greenberg (In re Buckskin Realty Inc.), Case No. 1-13-40083-nhl
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