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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK
------------------------------------------------------------------------- X
WACHOVIA BANK, NATIONAL ASSOCIATION

Plaintiff, NOTICE OF MOTION

-against-
Index # xxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, ET AL

Defendants.
------------------------------------------------------------------------- X

PLEASE TAKE NOTICE that upon the attached affidavit of

_________________, Esq., sworn to on June ___ , 2014 and upon the exhibits

attached to the affidavit, and upon all proceedings in this case to date, the Defendants

xxxxxxxxxxxxxxx and xxxxxxxxxxxxxxxx , through her attorney, _________________

will move this court at 9:30 a.m. June ____, 2014 at the Supreme Courthouse, 1 Court

Street, Riverhead, New York 11901, IAS Part 7 in front of Honorable Judge

WILLIAM B. REBOLINI, J.S.C. for an Order, pursuant to :

CPLR 3211 (a)(1) , CPLR 3211 (a)(3), CPLR 6513 & 6514 (b);

N.Y. CVP. LAW 3211and Rule 17 F.R. Civ.P. granting the following relief;

Defendant seeks dismissal of the instant action or alternatively, cancellation of the

Lis Pendens and granting such other relief as this Court may deem 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 (7
th
) day prior to the date set forth above for the submission

of this motion.


Dated : June ____ , 2014
Riverhead, New York 11901 ___________________________
, Esq.
Attorney for Defendant

To:
Kozeny, McCubbin & Katz, LLP
Attorneys for Plaintiff
395 North Service Road, Suite 401
Melville, New York 11747




































SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------------------------------------------------------------- X
WACHOVIA BANK, NATIONAL ASSOCIATION

Plaintiff, AFFIDAVIT IN SUPPORT

-against-
Index # xxxxxxxxxxxx

xxxxxx and xxxxxxxx, ET AL

Defendants.
------------------------------------------------------------------------- X

STATE OF NEW YORK
:
COUNTY OF SUFFOLK


_______________ Esq., an attorney duly admitted to practice law before the Courts

of the State of New York, affirms the following to be true pursuant to the penalty of

perjury:


1) I am the attorney for the Defendant and I am fully familiar with the facts and
circumstances as set forth herein based upon a review of the file, review of public records
and discussions with the Defendant.

2) I make this affirmation in support of this motion which seeks the dismissal of the

instant foreclosure action and/or cancellation of the Notice of Pendency.


3) Plaintiff, WACHOVIA BANK, N.A., filed a Notice of Pendency, Lis Pendens,

with a Summons & Complaint initiating a foreclosure proceeding against the Defendants

on June 25
th
, 2008.

4. Defendants submitted an Answer to the Summons and Complaint on August 6
th
,

2008 whereby Defendants interposed affirmative defenses including the assertion that

Plaintiff lacked the standing to bring forth the foreclosure action. In doing so, Defendant

retains the right to motion for dismissal due to lack of standing.


5. On November 22
nd
, 2010, Plaintiff filed a Notice of Withdrawal whereas Plaintiff

requested that its Motion for Summary Judgment and Order of Reference that had a

return Court date of August 28
th
, 2009, be withdrawn, but opted not to discontinue

Action.

6. Plaintiff then extended the Notice of Pendency by way of refilling the Lis

Pendens on May 13
th
, 2011.


7. Thereafter, the only progress on this matter was the consent to change attorney on

January 3
rd
, 2012.


8. Defendants raised the issue of Laches in their Answer to the Summons and

Complaint and reaffirms this defense as there clearly is an unreasonable delay in

Plaintiffs timely prosecution of this action. This action has been on the Courts calendar

for 6 years now.

The Statute of Limitations of three years on a Notice of Pendency has now twice expired.

Plaintiffs delay is not reasonable or excusable and presents great prejudice to the

Defendants as this delay unjustly allows interest and legal fees to continue accruing thus

driving the principal balance due Plaintiff higher by the day.

Defendant can only interpret this as an Acquiescence, Waiver and Abandonment of

rights.
9. 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 and as such the Notice of Pendency should be cancelled as a matter of Law.

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.

As a matter of Legal Statute, the Notice of Pendency should be cancelled.


10. LACK OF STANDING

Plaintiff lacked the legal standing to sue and continues to lack standing to maintain
action.
Defendants engaged CREDIT SUISSE FIRST BOSTON FINANCIAL CORP.
(hereinafter CREDIT SUISSE) and entered into a loan agreement. The terms of the loan
were memorialized in a promissory note ("the Note"), which was secured by a Mortgage
lien on the Property.
Defendants executed the Note naming CREDIT SUISSE as lender and then
separately executed the Mortgage naming MERS, as lender Mortgagee.
A review of the note entered into evidence as an exhibit to the Plaintiffs
foreclosure complaint shows a five page Note. Each page is initialed by the Defendants
on the bottom right, except for the signature page and the attached allonge. It should also
be noted, that each page is numbered according, page 1 of 4 pages, page 2 of 4 pages,
page 3 of 4 pages, page 4 of 4 pages, except for the attached allonge which said
allonge is an apparent post closing added piece to the Note.

The said allonge has an undated endorsement in blank by PETER BROWN for
Lydian Data Services as attorney in fact for CREDIT SUISSE, but no power of attorney
is attached to the proof of claim.
On September 30, 2005 Defendants executed a mortgage to CREDIT SUISSE as
Lender with MORTGAGE REGISTRATION SYSTEMS (M.E.R.S.) as mortgagee of
record.
On June 23
rd
, 2008 M.E.R.S., as nominee for CREDIT SUISSE, assigns said
mortgage to WACHOVIA.
Let it be noted, said assignment was acknowledged by ELPINIKI BECHAKAS,
as Assistant Secretary and Vice President for M.E.R.S. although she is a well known
RoBo Signor for the now defunct illegitimate Law Firm, STEVEN BAUM, the
attorney of record for the Plaintiff, not an employee of any such kind of MERS.
This action now creates an assigned by & sued for conflict of interest.
On June 24
th
, 2008 WACHOVIA files a Notice of Pendency, Summons and
Complaint to foreclose.
On December 4
th
, 2012 said mortgage is further assigned by WELLS FARGO,
N.A. as Successor by Merger for WACHOVIA BANK N.A. to U.S. BANK, N.A., (thus
concluding any possible legal right WACHOVIA may even have to maintain an action).
These assignments of mortgage are fraudulent in nature, the chain of custody for
this mortgage is defective, though the mortgage was assigned, the Note couldnt have
been.
The initial assignment of mortgage as well as the subsequent assignment does not
assign the note, thus, the assignment of a mortgage without the note is defective as the
transfer of the mortgage without the debt is a nullity.
In a decision citing Silverberg, the Court said an assignment of the mortgage without
assignment of the underlying note or bond is a nullity Citimortgage, Inc. v Stosel, 2011
NY Slip Op 8319 )2
nd
Dept) citing U.S. Bank, N.A. v [*2] Collymore, 68 AD3d at 754;
see Bank of NY v Silverberg, 86 AD3d 274, 280, 926 N.Y.S.2d 532.
Secondly, an assignment from MERS to Plaintiff is defective, as MERS had no right or
authority to assign the mortgage or the note. Bank of NY v Silverberg, supra. the
Plaintiff, which merely stepped into the shoes of MERS, its assignor, and gained only
that to which its assignor was entitled . . . did not acquire the power to foreclose by way
of the . . . assignment. Id
Plaintiff lacks legal requisite standing and capacity to sue as MERS never had true
authority to assign the mortgage, and as such, the Complaint should be dismissed

BACKGROUND
Mortgage Electronic Registration Systems (MERS) is a foreign corporation created
in or about 1998 by conspirators from the largest banks in the United States in
order to undermine and eventually eviscerate long-standing principles of real
property law, such as the requirement that any person or entity who seeks to
foreclose upon a parcel of real property:
1) be in possession of the original note,
2) Have a publicly recorded mortgage in the name of the party for whom the
underlying debt is actually owed and who is the holder of the original Promissory
Note with legally binding assignments, and
3) possess a written assignment giving he, she or it actual rights to the payments due from
the borrower pursuant to both the mortgage and note.
The Complaint names the entity, Mortgage Electronic Registration Systems, Inc.,
hereinafter, (MERS) as a nominee for the original mortgagee, CREDIT SUISSE.
The term nominee, as used in the MERS mortgage, is an indefinite reference. It is not
defined in the mortgage. No document is ever recorded in due course to which sets forth
such nomination terms. .. Importantly, the MERS and the lender... purposely chose to
use the specific legal term nominee, and not agent or power-of-attorney. MERS
also chose not to define the term nominee., Mortgage Electronic Registration Systems,
The relationship between the Lender and Mortgage Electronic Registration Systems, Inc.,
must be therefore be derived from the mortgage, MERS governing documents, and public
statements made showing the intent of the parties.
According to the wording of the mortgage; MERS is Mortgage Electronic
Registration Systems, Inc. MERS is a separate corporation that is acting solely as a
nominee for Lender and Lenders successors and assigns. MERS is the mortgagee of
record. MERS is organized and existing under the laws of Delaware, and has an address
and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS.
This language states that MERS is nominee, ad infinitum. They are bound to the
mortgage as nominee and mortgagee, even upon transfer or assignment.
The purpose and function of the nomination is stated in the Borrowers Transfer of
Rights in the Property;
I mortgage, grant and convey the property to MERS (solely as nominee for Lender and
Lenders successors in interest) and its successors in interest subject to the terms of this
Security Instrument. This means that, by signing this Security Instrument, I am giving
Lender those rights that are stated in this Security Instrument and also those rights that
Applicable Law gives to Lenders who hold mortgages on real property.
I understand and agree that MERS holds only legal title to the rights granted by me in
this Security Instrument, but, if necessary to comply with Law or custom, MERS (as
nominee for Lender and Lenders successors and assigns) has the right:
(A) to exercise any or all of those rights, including, but not limited to, the right to
foreclose and sell the Property: and
(B) to take any action required of Lender including, but not limited to, releasing and
cancelling this Security Instrument.
I give MERS (solely as nominee for Lender and Lenders succesors in interest) rights in
the property described . . .
MERS is not the original lender. MERS is not the creditor, beneficiary of the underlying
debt or an assignee under the terms of the Promissory Note. MERS does not hold the
original of the Promissory Note, nor has it ever held the Promissory Note.
The language of the mortgage on its face, indicates that MERS acts as nominee;
1. To only hold the legal title to, the interests granted by Borrower, in this
security instrument (includes all riders), and the note.


2. To exercise any and all of those interests;
-As legal title holder of the mortgage,
-And equitable title holder of the mortgage,
-And nominal assignee of the note, as the person entitled to enforce,
-And nominal assignee of the note, as the holder of the equity of redemption,
-Simultaneously, for the Lender and all future interests
-Only if necessary to comply with law or custom [restrictive endorsement].



3. For the purpose of simultaneously securing (in the present) the Lender and all
future interests in the mortgage and note;

Without attachment of the Lenders security interest under UCC Article 9,
Without perfection of the Lenders security interest under UCC Article 9,
-While requiring the borrower to secure MERS,
-To which it holds the Security Instrument in MERS name, -And holds the title to
the collateral in MERS name

4. Without any consideration given by MERS, which would support a legal
conveyance, of interests in real property, to MERS.

MERS is not acting in the capacity of an accommodation party, accommodating party,
assignee, or trustee. They chose the term nominee, which is a position chosen by
nomination.




MERS Mortgages Can't Be Foreclosed - Federal Judge Rules
In a federal bankruptcy court decision in the influential Eastern District of New
York, Judge Robert Grossman explained in a 37 page decision in re: FERREL L.
AGARD, Case No. 810-77338-reg that MERS must have specific powers from its
"principal" to transfer the mortgage and promissory note, and that the transfer of
the mortgage by MERS does not automatically also transfer the promissory note it
secures. Borrower attorneys nationwide have called suspect the practice of the
splitting of the promissory note from the mortgage using the MERS concept of
"nominee" and "mortgagee of record". MER'S "... argues that any member/lender
which holds a note secured by real property, that assigns that note to another
member by way of entry into the MERS database, need not also assign the mortgage
because legal title to the mortgage remains in the name of MERS, as agent for any
member/lender which holds the corresponding note. MERS's position is that if a
MERS member directs it to provide a written assignment of the mortgage, MERS has
the legal authority, as an agent for each of its members, to assign mortgages to the
member/lender currently holding the note as reflected in the MERS database." In a
classic foreclosure question of whether the plaintiff has standing to sue for the relief
requested, the court went on a detailed analysis of the MERS scheme and basis for
its existence. The court acknowledged the far reaching effect of its decision on
mortgages nationwide. "The Court recognizes that an adverse ruling regarding
MERS's authority to assign mortgages or act on behalf of its member/lenders could
have a significant impact on MERS and upon the lenders which do business with
MERS throughout the United States. However, the Court must resolve the instant
matter by applying the laws as they exist today. It is up to the legislative branch, if it
chooses, to amend the current statutes to confer upon MERS the requisite authority
to assign mortgages under its current business practices." The court went on to say
that the argument that MERS owns 50% of the mortgages in the US is not a reason to
turn a blind eye to the requirements of the law. Also classic is who has the note?
The court said, "By MERS's own account, the Note in this case was transferred
among its members, while the Mortgage remained in MERS's name. MERS admits
that the very foundation of its business model as described herein requires that the
Note and Mortgage travel on divergent paths. Because the Note and Mortgage did
not travel together, Movant must prove not only that it is acting on behalf of a valid
assignee of the Note, but also that it is acting on behalf of the valid assignee of the
Mortgage." The next issue is about the ability of MERS to assign the mortgage.
"Other than naming MERS as "nominee", the Mortgage also provides that the
Borrower transfers legal title to the subject property to MERS, as the Lender's
nominee, and acknowledges MERS's rights to exercise certain of the Lender's rights
under state law. This too, is insufficient to bestow any authority upon MERS to
assign the mortgage. In Bank of New York v. Alderazi, the court found "[t]he fact that
the borrower acknowledged and consented to MERS acting as nominee of the lender
has no bearing on what specific powers and authority the lender granted MERS."
Alderazi, 900 N.Y.S.2d at 824.
Even if it did bestow some authority upon MERS, the court in Alderazi found that the
mortgage did not convey the specific right to assign the mortgage." In wrapping up
its decision, the court said, "However, even if MERS had assigned the Mortgage
acting on behalf of the entity which held the Note at the time of the assignment, this
Court finds that MERS did not have authority, as "nominee" or agent, to assign the
Mortgage absent a showing that it was given specific written directions by its
principal. "This Court finds that MERS's theory that it can act as a "common agent"
for undisclosed principals is not support by the law. The relationship between
MERS and its lenders and its distortion of its alleged "nominee" status was
appropriately described by the Supreme Court of Kansas as follows: "The parties
appear to have defined the word [nominee] in much the same way that the blind
men of Indian legend described an elephant - their description depended on which
part they were touching at any given time."
Plaintiff lacks legal requisite standing, and as such, the Complaint should be dismissed.

11. INVALIDATION THROUGH CONFLICTS OF INTEREST
One day prior to the filing of this foreclosure action, the assignor for M.E.R.S. as
nomine for CREDIT SUISSE, ELPINIKI BECHAKAS, was a known employee of one
Steven J. Baum, Esq. though BECHAKAS signs as Assistant Secretary and Vice
President for M.E.R.S. The Defendant is concerned that the apparent simultaneous
representation of Steven J. Baum, P.C. for both MERS and U.S. BANK could be deemed
a conflict of interest in violation of 22 NYCRR 1200.24, the Disciplinary Rule of the
Code of Professional Responsibility, entitled "Conflict of Interest; Simultaneous
Representation."
Plaintiffs systematic schemes have confused, misled, and deceived borrowers,
homeowners, and other citizens who rely on the validity of publicly filed property
records.
All actions and any subsequent assignment of this mortgage loan should be null,
void and declared invalid as this initial assignment was defective and fraudulent by legal
nature.

12. In accordance with N.Y. CVP. LAW 3211 :

Motion to dismiss (a) (3) the party asserting the cause of action has not legal capacity to

sue;

Defendant further seeks a dismissal of the within foreclosure action because the Plaintiff
nor anyone has the legal capacity to sue on the note or the underlying action because it is
not endorsed making the documents non negotiable instruments.

13. In its complaint to foreclose on the Defendants property, the Plaintiff does not
make a claim that they are the holder of the note, therefore, entitled to enforce the note.
The Plaintiff does not claim that the note was indorsed and negotiated to them. The
Plaintiff merely attached said note and security to the original complaint, as an exhibit
and references an alleged assignment to them, which wasnt even recorded and filed at
the commencement of the action. Further, said evidence provided by the Plaintiff
doesnt prove indebtedness and obligation to them.
Plaintiff is not the true holder in due course and as a matter of Law this Complaint should
be dismissed.
14. If the Plaintiff has received its official status based upon a trail of lies and
illegalities, does the Plaintiff actually have standing to commence these proceedings?
Thus, upon information and belief, Defendant alleges that the Plaintiffs claim is untrue.
There is no evidence that the Defendants Mortgage Note was ever officially transferred
to the now purported holder-in-due-course as the original documents (that being the note
and its security) were assigned by a party which lacked standing to assign them. Thus the
Plaintiff lacks standing to enforce said note, as it is not in legal ownership of said
mortgage. Even if it is in physical possession of the original paperwork (which
Defendant believes to be a complete impossibility), they did not legally obtain possession
of said paperwork, therefore they cannot enforce. Defendant lacks legal standing to
enforce this debt and the Complaint should be dismissed in its entirety. Further, in order
to help better educate the Plaintiff on who is who and what is what, the UCC Article 3
defines its imperative terms and principles as such:
(a) Negotiable instrument (defines Instrument as a negotiable instrument.),
means an unconditional promise or order to pay a fixed amount of money, with or
without interest or other charges described in the promise or order, if it:
(1) is payable to bearer or to order at the time it is issued or first comes
into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction by the person
promising or ordering payment to do any act in addition to the payment of
money, but the promise or order may contain (i) an undertaking or power
to give, maintain, or protect collateral to secure payment, (ii) an
authorization or power to the holder to confess judgment or realize on or
dispose of collateral, or (iii) a waiver of the benefit of any law intended for
the advantage or protection of an obligor.
(b) An instrument is transferred when it is delivered by a person other than its
issuer for the purpose of giving to the person receiving delivery the right to
enforce the instrument.
(c) Whether or not the transfer is a negotiation, vests in the transferee any right of
the transferor to enforce the instrument, including any right as a holder in due
course, but the transferee cannot acquire rights of a holder in due course by a
transfer, directly or indirectly, from a holder in due course if the transferee
engaged in fraud or illegality affecting the instrument.
(d) Unless otherwise agreed, if an instrument is transferred for value and the
transferee does not become a holder because of lack of endorsement by the
transferor, the transferee has a specifically enforceable right to the unqualified
endorsement of the transferor, but negotiation of the instrument does not occur
until the endorsement is made.
15. The Plaintiff attached to its original complaint, a copy of the note as an exhibit.
But in fact since the inception of this action, the Mortgage has been further assigned to
U.S. BANK, thus concluding any rights that the Plaintiff may have even alledgedly had.
Defendant alleges that The Plaintiff does not have the requisite evidence needed to claim
it is the holder of Defendants Note as there is no endorsement period. Defendant asks
whom does this note belong to? For The Plaintiff to prove that it has the right to enforce
Again, as per the UCC Article 3:
(a)"Endorsement" means a signature, other than that of a signer as maker, drawer,
or acceptor, that alone or accompanied by other words is made on an instrument
for the purpose of (i) negotiating the instrument, (ii) restricting payment of the
instrument, or (iii) incurring endorsers liability on the instrument, but regardless
of the intent of the signer, a signature and its accompanying words is an
endorsement unless the accompanying words, terms of the instrument, place of
the signature, or other circumstances unambiguously indicate that the signature
was made for a purpose other than endorsement.

There is an ever-increasing quantity of lawsuits filed on behalf of home owners,
governmental agencies and MBS investors, which have accused OOM, AHM, USBNA
and its affiliates of fraudulently creating documents in order to justify legal entitlement to
institute foreclosure proceedings.
16. Defendant has conducted numerous internet searches regarding the endorsement
of mortgage related documents allegedly indorsed by various named individuals
connected with these mortgage documents.
17. Upon information and belief, Defendant alleges that The Plaintiff intentionally
falsified the Allonge, Assignment and other documents by utilizing well known robo-
signers to place signatures in all the right places, to mirror a set of legally sound
documents, so that they may in fact attempt to foreclose on said documents. Plaintiffs
actions, have rendered the subject documents worthless.
The chain of custody of this Note, Mortgage and subsequent assignments is of a
fraudulent nature and Complaint should be dismissed.
18. 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.
19. 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.
20. All residential mortgage foreclosure actions require an affirmation from the
attorney representing the Plaintiff, as stated in the affirmation attached to this order, that
he/she has inspected all documents. The Plaintiff is also required to provide an affidavit
of regularity/merit from the Plaintiff representative that he/she has reviewed the file in
this case and that he/she documents that all paperwork is correct. The Plaintiffs
representative shall also provide in said affidavit of regularity her/his position, length of
service, training, educational background and a listing of the documents and financial
records reviewed substantiating the review of the amounts owed. The affidavit should
also include that she/he has personally reviewed both the mortgage and the note and any
assignments for accuracy.
21. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs
1 through 20 of this Affidavit in Support of Motion as though fully set forth at length
herein.

WHEREFORE, Defendant respectfully request that this motion be granted as follows :

(a) Plaintiffs Complaint Dismissed,

(b) Plaintiffs Notice of Pendency Cancelled,

(c) Declare assignments of Mortgage null, void and of no effect or force

(f) And that we have such other and further relief as may be just and proper.



_____________________________
Dated : June __ , 2014 , Esq.
Attorney for Defendant


ATTORNEY VERIFICATION




STATE OF NEW YORK)
:ss
COUNTY OF SUFFOLK)

____________________, being duly sworn, deposes and states that he is the attorney for

the Defendants, xxxxxx and xxxxxx in the above entitled action

with offices located at __________________________________________________;

that he has read the foregoing MOTION and knows the

contents thereof ; and that the same is true to the deponents own knowledge,


To :
Kozeny, McCubbin & Katz, LLP
Attorneys for Plaintiff
395 North Service Road, Suite 401
Melville, New York 11747



________________________________
, Esq.
Attorney for Defendants



Sworn to, before me

This_____ day of _____________, 2014


_________________________________
NOTARY PUBLIC

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