In an interview conducted on Saturday October 27th 2012, Queens Foreclosure Attorney Brian McCaffrey said “this case could have been fought and won on its merits” and “it’s a shame that Deutsche Bank was allowed to coast through the process without ever having to prove to the Court that they actually had standing to foreclose”
On October 24, 2012 a foreclosure process that began more than 3 years ago came full circle when the property located at 150-15 108th Avenue, Jamaica, NY 11433 was sold by Deutsche Bank for $245,100.00 to an LLC named RDG QUEENS XVIII LLC.
The LLC making the purchase was registered with the NYS DOS by the accounting firm of SINGER & FALK, INC. whose CEO is Steven Falk. When contacted for this article Mr. Falk was unavailable for comment.
The Queens Foreclosure case was entitled DEUTSCHE BANK NATIONAL TRUST vs. MBAH, CLEMENT ETAL, under index number: 027411/2009.
Although it appears from the record that the prior owner CLEMENT MBAH attempted to protect his interest by making motions in court, his pro-se attempts were too little – too late.
In a decision issued on July 11, 2011 the HONORABLE KEVIN J. KERRIGAN held that the… “Motion by Mbah to vacate the default judgment of foreclosure and sale, issued by this Court on June 15, 2010, as against him is denied. Movant has failed to set forth an excuse for his default or a meritorious defense to foreclosure”
McCaffrey expressed disappointment saying “This case is only one of many where the Plaintiff who did not own the mortgage… was never properly challenged or their case would have failed.”
To understand what Mr. McCaffrey is talking about one needs to look at the history of the ownership of this mortgage which was securitized with thousands of others during the housing and mortgage boom.
You see Deutsche Bank was the “trustee” for a NY established Trust that was formed in 2004 under NY Trust Law. Under NY Law the Trust had a closing date of September 29, 2004, and no mortgage loan could have been assigned into the Trust after that date. NY Trust law states that any act made contrary to the interest of the Trust is void. Moreover, under IRS Code it was unlawful to transfer any asset into the Trust after the closing date.
Deutsche Bank issued a memorandum in 2010 to all holders of its mortgage backed securities shifting the blame for any wrongful foreclosure practices to the servicers, saying “we told them to comply with the law”. This “memorandum” completely misses the point that as the Trustee Deutsche Bank was absolutely responsible for insuring that each and every mortgage in a pool had a collateral file that contained the documents needed to convey and prove ownership.
In this case the Mortgage Loan was never owned by the Trust at all. Instead just prior to starting the foreclosure action an assignment of mortgage was filed in the office of the Queens County Clerk, more than five years after the Trust closed.
It is painfully obvious to anyone who looks that Deutsche Bank did not own the loan, yet Deutsche Bank was able to violate the laws of New York and IRS Code with abandon and take a home away from the homeowner without ever having to prove that they had the right to do so. Surprisingly, all of this was done under the watchful eyes of the Courts of New York State.
Attorney McCaffrey explained that “the Courts take the position that the foreclosure cases brought before them are truthful and have merit unless and until someone proves otherwise.” and “in this case it appears that nobody ever bothered to explore the actual chain of title establishing ownership of the note and mortgage.”
It also appears from the record that the homeowner never bothered to file an answer to the foreclosure complaint and thereby lost his rights to raise the ownership issue.
Mr. McCaffrey provided the following advice to homeowners “don’t bury your head in the sand, if you are falling behind on your mortgage get help fast… pay close attention to every single piece of mail you receive from your lender… if you have been served with foreclosure papers see an attorney immediately – time is not your friend.”
When questioned about banks lying to the Courts about actually owning the loan they are foreclosing on, McCaffrey said “as evidenced by the case in this article a bank that is permitted to foreclose without being challenged has little fear of having the light of truth shined upon its actions”
McCaffrey closed the interview by saying “Many of our Courts have non-profit legal services available to homeowners facing foreclosure, there is no reason why a homeowner should ignore legal action and lose their right to defend their home against a plaintiff that might not even have the right to foreclose.”