| HSBC Bank USA, N.A. v Charlevagne |
| 2008 NY Slip Op 51652(U) [20 Misc 3d 1128(A)] |
| Decided on August 4, 2008 |
| Supreme Court, Kings County |
| Schack, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
HSBC Bank USA,
N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF
RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY
LOAN ASSET-BACKED NOTES, SERIES 2005-3 , Plaintiff,
against Clesca Charlevagne, et al., Defendants. |
The renewed application of plaintiff,
ASSET-BACKED NOTES, SERIES 2005-3
First, the original application for an order of reference and related relief was denied with
leave to renew, in my unpublished decision and order of November 15, 2007, because the
"affidavit of merit" was not made by a party but by Margery Rotundo, who swore that was
"Senior Vice President Residential Loss Mitigation of OCWEN LOAN SERVICING, LLC
[OCWEN], Attorney in Fact for HSBC," and the "Limited Power of Attorney" from HSBC to
OCWEN was defective. In the renewed application, Ms. Rotundo claims in her January 9,
2008-"affidavit of merit and amount due," that she "is the Senior Vice President of Residential
Loss Mitigation of
The late gossip columnist Hedda Hopper and the late United States Representative Bella Abzug were famous for wearing many colorful hats. With all the corporate hats Ms. Rotundo has recently worn, she might become the contemporary millinery rival to both Ms. Hopper and Ms. Abzug. The Court needs to know the employment history of the peripatetic Ms. Rotundo. Did she truly switch employers or did plaintiff have her sign the "affidavit of merit and amount due" as its Senior Vice President solely to satisfy the Court?
Second, the Court still needs to know the employment history of Scott Anderson, who assigned the instant mortgage and note to plaintiff HSBC as Vice President of Mortgage Electronic Registration Systems, Inc. (MERS). Mr. Anderson, like Ms. Rotundo, appears to move from employer to employer. The February 26, 2007 assignment of the instant mortgage and note from MERS, as nominee for DELTA FUNDING CORPORATION (DELTA), according to its recording at the ACRIS (Automated City Register Information System) website, of the Office of the City Register, New York City Department of Finance, on June 28, 2007, at City Register File Number (CRFN) 2007000336168, states that the address of assignee HSBC is c/o OCWEN, 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409 (Suite 100). The assignment was executed by Scott Anderson, Vice President of MERS, whose address, according to notary public Noemi Morales' jurat, is also 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409. In prior decisions (HSBC Bank v Valentin, 18 Misc 3d 1123 (A) [January 30, 2008]; HSBC Bank, N.A. v Cherry, 18 Misc 3d 1102 (A) [December 17, 2007]; HSBC Bank, USA v Antrobus, supra), I found that HSBC, MERS and OCWEN all shared office [*2]space at Suite 100. In Deutsche Bank Nat. Trust Co. v Castellanos, 15 Misc 3d 1143 (A) (May 11, 2007), I found that Deutsche Bank and MTGLQ, Investors, L.P., a Goldman Sachs subsidiary, also claimed to have Suite 100 as their office. Mr. Anderson, in Cherry, swore in an affidavit that he was HSBC's servicing agent, while in Valentin and Antrobus he swore in the assignments, as in the instant case, to be Vice President of MERS.
Third, the Court still does not understand why these large corporations, HSBC, MERS,
OCWEN, Deutsche Bank, and Goldman Sachs, all share office space at Suite 100. Ocwen
Financial Corporation, OCWEN's parent corporation, in its March 31, 2008 Schedule 14A Proxy
Statement, filed with the United States Securities and Exchange Commission (SEC), states that
its corporate headquarters is Suite 100, and at page 10 of its 2007 10-K filing with the SEC,
dated March 31, 2008, Ocwen Financial Corporation states that Suite 100 is 41,860 square feet.
The Court is perplexed as to how HSBC, OCWEN, MERS, Deutsche Bank and Goldman Sachs
can all coexist within the confines of Suite 100's 41,860 square feet.
Real Property Actions
and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the
default of the defendant or defendant's admission of mortgage payment arrears, to appoint a
referee "to compute the amount due to the plaintiff." In the instant action, plaintiff's application
for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and
sale. (Home Sav. Of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]).
shall file proof of service of the summons and the complaint, or
a summons and notice served pursuant to subdivision (b) of rule
305 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 [*3]
been served, it may be used as the affidavit of the facts constituting
the claim and the amount due; in such case, an affidavit as to the
default shall be made by the party or the party's attorney. [Emphasis
added].
Plaintiff's initial application for an order of reference was denied with leave to
renew because the "affidavit made by the party" was by Margery Rotundo, who then
claimed to be an officer of OCWEN. Now, upon renewal she claims that she is plaintiff's Senior
Vice President of Residential Loss Mitigation. As mentioned previously, she has also claimed to
an officer of Nomura Capital & Credit, Inc., and an officer of an unnamed HSBC servicing agent.
The Court is perplexed by Ms. Rotundo's merry-go-round of employment. Is she a Senior Vice
President or Nomura, OCWEN, HSBC or some other employer. The Court needs a satisfactory
explanation of her employment history.
With respect to Scott Anderson, who executed the MERS to HSBC assignment, on
February 26, 2007, he has also worn various corporate hats in prior foreclosure actions before
me. In Valentin, at 2, I observed that Scott Anderson assigned the instant
mortgage from MERS to HSBC, on May 1, 2007. Then, in Cherry, at 3, I observed that:
Scott Anderson, in his affidavit, executed on June 15, 2007, states
he is Vice President of OCWEN. Yet, the June 13, 2007 assignment
from MERS to HSBC is signed by the same Scott Anderson as
Vice President of MERS. Did Mr. Anderson change his employer
between June 13, 2007 and June 15, 2007. The Court is concerned
that there may be fraud on the part of HSBC, or at least malfeasance.
Before granting an application for an order of reference, the Court
requires an affidavit from Mr. Anderson describing his employment
history for the past three years.
Lastly, the court notes that Scott Anderson, in the MERS to
HSBC assignment gave his address as Suite 100.
address listed for HSBC in the assignment.
The Court still doesn't know if Mr. Anderson is Vice President of MERS, Vice President of OCWEN, or both. The same concerns about possible fraud by HSBC, or at least malfeasance, just as in my Valentin, Cherry and Antrobus decisions, still exist. The Court needs to know Mr. Anderson's employment history and why all these banking entities are located within the 41,860 square feet of the ever popular Suite 100.
Therefore, the instant application for an order of reference is denied without
prejudice, with leave to renew. The Court will grant an order of reference to plaintiff HSBC upon
presentation to this court of: an affidavit from Margery Rotundo clarifying her employment
history for the past three years and what corporation she serves as an officer; an affidavit by
either an officer of HSBC or someone with a valid power of attorney from HSBC, possessing
personal knowledge of the facts; an affidavit from Scott Anderson clarifying his employment
history for the past three years and what corporation he serves as an officer; and, an affidavit by
an officer of HSBC explaining why HSBC purchased a nonperforming loan from Delta Funding
Corporation, and why HSBC, OCWEN, MERS, Deutsche Bank and Goldman Sachs all share
office space in Suite 100.
ORDERED, that the application of plaintiff,
ORDERED, that leave is granted to plaintiff,
HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED
NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3,
RENAISSANCE HOME EQUITY LOAN SERIES 2005-3,
This constitutes the Decision and Order of the Court.
ENTER
___________________________
HON. ARTHUR M. SCHACK
J. S. C.