SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF 18674-2010 -------------------------------------X BAC HOME LOANS SERVICING, LP FKA Index No. 18674-2010 COUNTRYWIDE HOME LOANS SERVICING, LP NOTICE OF MOTION Plaintiff, - against - YASMIN EDWARDS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC AS NOMINEE FOR COUNTRYWIDE BANK, FSB, ITS SUCCESSORS AND ASSIGNS, et al. Defendants. -------------------------------------X

PLEASE TAKE NOTICE, that upon the affirmation S. JOHN LENOIR,

attorney for the defendant YASMIN EDWARDS, duly sworn to on the 19th day

of April 2011, and upon all prior pleadings and proceedings herein, the

undersigned will apply to this Court at an IAS Part to be assigned, at

the Courthouse thereof, located at 360 Adams Street, Brooklyn, New York

on the 15th day of June 2011, at 9:30 a.m. or as soon thereafter as

counsel can be heard, for an Order: (1) pursuant to CPLR Sections

3211(a)(10) and 1001, dismissing all causes of action against defendant

YASMIN EDWARDS, with prejudice, because the court should not proceed in

the absence of an indispensable party, to wit, the actual owner of the

mortgage and note; and/or (2) pursuant to CPLR Section 3211(a)(1),

dismissing all causes of action against defendant YASMIN EDWARDS, with

prejudice, because said defendant’s proof that plaintiff is not the

actual owner of the mortgage and note and therefore lacks standing to

2

bring this action, is based upon documentary evidence; and/or (3)

alternatively, pursuant to CPLR Section 2218, ordering a trial of the

issue of whether plaintiff is the actual owner of the mortgage and note

and has standing to bring this action; (4) cancelling the Notice of

Pendency, if any; (5) awarding sanctions and attorneys’ fees to defendant

YASMIN EDWARDS because plaintiff submitted a fraudulent assignment

document to the Court; and (6) for such other and further relief as the

Court deems just and proper.

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR Rule 2214(b),

an answer and supporting affidavits, if any, shall be served at least

seven (7) days before the return date of this motion.

Dated: New York, New York April 19, 2011

________________________ S. John LeNoir LENOIR LAW FIRM Attorneys for Defendant YASMIN EDWARDS

461 Central Park West Suite 3L

New York, N.Y. 10025 (212) 531-0284 Fax: (212) 531-0285 TO: FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP

Attorneys for Plaintiff 20 West Main Street Bay Shore, NY 11706 (631) 969-3100 Fax: (631) 919-1582

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF 18674-2010 -------------------------------------X BAC HOME LOANS SERVICING, LP FKA Index No. 18674-2010 COUNTRYWIDE HOME LOANS SERVICING, LP AFFIRMATION IN SUPPORT Plaintiff, OF MOTION TO DISMISS - against - YASMIN EDWARDS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC AS NOMINEE FOR COUNTRYWIDE BANK, FSB, ITS SUCCESSORS AND ASSIGNS, et al. Defendants. -------------------------------------X

S. JOHN LENOIR, an attorney duly licensed to practice

law in the State of New York, hereby affirms the following

under penalty of perjury:

1. I am the owner of the LENOIR LAW FIRM, attorneys

for the defendant YASMIN EDWARDS in the above-entitled

action, and as such am familiar with the facts and

circumstances herein.

2. I make this affirmation in support of defendant

YASMIN EDWARDS’ motion for an Order: (1) pursuant to CPLR

Sections 3211(a)(10) and 1001, dismissing all causes of

action against defendant YASMIN EDWARDS, with prejudice,

because the court should not proceed in the absence of an

indispensable party, to wit, the actual owner of the mortgage

and note; and/or (2) pursuant to CPLR Section 3211(a)(1),

dismissing all causes of action against defendant YASMIN

2

EDWARDS, with prejudice, because said defendant’s proof that

plaintiff is not the actual owner of the mortgage and note

and therefore lacks standing to bring this action, is based

upon documentary evidence; and/or (3) alternatively, pursuant

to CPLR Section 2218, ordering a trial of the issue of

whether plaintiff is the actual owner of the mortgage and

note and has standing to bring this action; (4) cancelling

the Notice of Pendency, if any; (5) awarding sanctions and

attorneys’ fees to defendant YASMIN EDWARDS because plaintiff

submitted a fraudulent assignment document to the Court; and

(6) for such other and further relief as the Court deems just

and proper.

3. The above-entitled action was commenced by the

filing of a Summons and Complaint, copies of which are

annexed hereto as Exhibit A.

4. Defendant YASMIN EDWARDS duly appeared in this

action by serving a pro se Verified Answer upon the

plaintiff’s attorneys, a copy of which is annexed hereto as

Exhibit B.

5. In defendant Yasmin Edward’s Verified Answer to

Foreclosure Complaint (Exhibit B), Ms. Edwards swore under

the penalties of perjury to the following as her first

defense: Lack of Standing to Sue: Plaintiff does not have

standing to sue because it was not the legal owner of the

3

Note and/or Mortgage at the time it commenced this

foreclosure lawsuit.

6. According to the Appellate Division, Second

Department, when a foreclosure defendant raises the issue of

plaintiff’s standing, the plaintiff must prove standing to

bring the action. See US Bank National Association, as

Trustee, respondent v. Miguel Madero, et al, 80 A.D.3d 751,

915 N.Y.S.2d 612 (2d Dept. 2011).

7. In Madero the Court denied summary judgment to

plaintiff because plaintiff had not proved standing to bring

the action. To quote the Court:

Where, as here, a plaintiff's standing is put into issue by the defendants, the

plaintiff must prove its standing to be entitled to relief (see U.S. Bank, N.A.

v Collymore, 68 AD3d 752, 753, 890 N.Y.S.2d 578; Wells Fargo Bank

Minn., N.A. v Mastropaolo, 42 AD3d 239, 242, 837 N.Y.S.2d 247). "In a

[*4] mortgage foreclosure action, a plaintiff has standing where it is both

the holder or assignee of the subject mortgage and the holder or assignee of

the underlying note at the time the action is commenced" (U.S. Bank, N.A.

v Collymore, 68 AD3d at 753). "Where a mortgage is represented by a

bond or other instrument, an assignment of the mortgage without

assignment of the underlying note or bond is a nullity" (id. at 754). "Either

a written assignment of the underlying note or the physical delivery of the

note prior to the commencement of the foreclosure action is sufficient to

transfer the obligation, and the mortgage passes with the debt as an

4

inseparable incident" (id.; see LaSalle Bank Natl. Assn. v Ahearn, 59

AD3d 911, 912, 875 N.Y.S.2d 595). Here, the plaintiff failed to

demonstrate its prima facie entitlement to judgment as a matter of law

because it did not establish that it had standing, as the lawful holder or

assignee of the subject note on the date it commenced this action, to

commence the action (see U.S. Bank, N.A. v Collymore, 68 AD3d 752,

890 N.Y.S.2d 578; see also Suraleb, Inc. v International Trade Club,

Inc., 13 AD3d 612, 788 N.Y.S.2d 403; Tawil v Finkelstein Bruckman

Wohl Most & Rothman, 223 AD2d 52, 55, 646 N.Y.S.2d 691).

Accordingly, [*5] the Supreme Court should have denied those branches

of the plaintiff's motion which were for summary judgment on the

complaint as to the Maderos and for an order of reference.

8. Since defendant YASMIN EDWARDS has duly raised the

issue of whether plaintiff had standing to bring this action,

the plaintiff must prove that it had standing to bring the

action.

9. As set forth below, plaintiff lacked standing to

bring this action because it was not the legal owner of the

mortgage or note at the time this action was commenced,

because the purported assignment to plaintiff (Exhibit C

hereto) was invalid due to numerous defects and inaccuracies.

10. An obvious reason that the purported assignment was

invalid is that the purported assignor, Countrywide Home

Loans, Inc. (“COUNTRYWIDE”) did not exist on the alleged date

5

of assignment. Countrywide was acquired in 2008 by Bank of

America, National Association (“BANK OF AMERICA, NA”). See

attached financial reports from Google Finance and Yahoo

Finance (Exhibit D).

11. On April 27, 2009, Bank of America, NA changed the

name of Countrywide to Bank of America Home Loans Servicing,

LP (the plaintiff herein). See Exhibit E.

12. According to the publicly available information, no

company named Countrywide Home Loans, Inc. existed in 2010

when the assignment was allegedly executed. Plaintiff was

the same company as the former Countrywide, just with a new

name. Accordingly, no assignment from Countrywide to

plaintiff was necessary to transfer Countrywide’s interest,

if any, in Ms. Edwards’ mortgage and note.

13. Additionally, Lisa Allinson could not have executed

an assignment as Vice President of Mortgage Electronic

Registration Systems, Inc. (“MERS”) as nominee for

Countrywide (Exhibit C), because Countrywide did not exist in

2010. A company that does not exist cannot have a nominee.

14. Now, plaintiff and Bank of America, NA (which

indirectly controls plaintiff – see below) are stuck with the

false assignment document they created, not only in this

action but in any future foreclosure cases brought against

defendant YASMIN EDWARDS.

6

15. It is respectfully requested, that if the Court

finds the purported assignment to be fraudulent and/or

fabricated, this action should be dismissed with prejudice as

against defendant YASMIN EDWARDS to prevent future frivolous,

fraudulent legal action against Ms. Edwards. Otherwise, Bank

of America with its deep pockets could keep bringing

frivolous actions against Ms. Edwards until she ran out of

money to defend herself and lost her home to a fraud.

16. Furthermore, there is no reason for this office or

defendant YASMIN EDWARDS to believe that Countrywide owned

Ms. Edwards’ alleged mortgage and note in 2008 when

Countrywide was acquired by Bank of America, NA, nor that the

mortgage and note have not been sold since the date of

acquisition.

17. In fact, given Countrywide’s financial troubles in

the mortgage meltdown of 2008, it is likely that Countrywide

sold off many of its mortgages and other assets before being

acquired by Bank of America in 2008, in a last ditch attempt

to raise the cash to survive on its own.

18. Given the likelihood that Countrywide sold

defendant YASMIN EDWARDS’ mortgage and note before

Countrywide was acquired by Bank of America, NA, plaintiff

must prove that Countrywide owned Ms. Edwards mortgage and

7

note in 2008 when Countrywide was purchased by Bank of

America. See Madero, supra.

19. Additionally, Ms. Edward’s mortgage and note could

have been sold at any time since Bank of America bought

Countrywide in 2008. Unless plaintiff can show the complete

chain of title of the mortgage and note, fully supported by

complete MERS records from the date of origination to the

present, it cannot prove that it has standing.

20. Furthermore, as discussed below, New York law does

not expressly permit MERS to transfer mortgages, so the issue

of the legality of each MERS transfer in the alleged chain of

title would also have to be resolved in plaintiff’s favor for

plaintiff to meet its burden of proving that it had standing

to bring this action. See Madero, supra.

21. To compound matters, Lisa Allison, the MERS “Vice

President” who executed the transfer is also a Vice President

of a company called BAC GP, LLC, which is the general partner

(final decision maker) of the plaintiff/alleged assignee BAC

Home Loans Servicing, LP (“THE PURPORTED ASSIGNEE”). See

attached CERTIFICATE OF ASSISTANT SECRETARY OF BANK OF

AMERICA, NATIONAL ASSOCIATION, MANAGER OF BAC GP, LLC (“THE

CERTIFICATE”) dated March 2, 2010 and annexed as Exhibit F.

Lisa Allinson is the second “Vice President” listed on the

Certificate.

8

22. The “Manager” of BAC GP, LC is the corporate parent

Bank of America, NA (which acquired Countrywide in 2008 and

renamed it in 2009).

23. The Certificate appoints nine people as Senior Vice

Presidents of BAC GP, LLC (the company that controls the

plaintiff/assignee), 16 people as Vice Presidents of BAC GP,

LLC, 26 people as Assistant Vice Presidents of BAC GP, LLC,

and 14 people as Assistant Secretaries of BAC GP, LLC, for a

total of 65 officers of BAC GP, LLC (the company that

controls the plaintiff/assignee herein). The list of 65

people performing the roles of Senior Vice President, Vice

President, Assistant Vice President, and Assistant Secretary

of the company that controls the plaintiff/assignee, is a

list of robo-signers, including Lisa Allinson, who is the

Vice President of both the assignor, MERS as nominee, and the

company that controls the plaintiff/alleged assignee, BAC GP,

LLC. There is no legitimate reason why BAC GP, LLC would

need 65 people to fill four corporate offices.

24. It appears that these “officers” of plaintiff’s

Manager were anointed to act, when needed, as MERS “Vice

Presidents” or other officers of MERS, to execute assignments

to plaintiff on behalf of MERS. See discussion of MERS’

procedure for appointment of Vice Presidents and corporate

officers discussed in the case of In re. Ferrel L. Agard, US

9

Bankruptcy Court, Eastern District of New York, Case No. 810-

77338-reg. A courtesy copy of the decision is attached as

Exhibit G and further discussed below.

25. It is patently improper for Lisa Allinson to assign

a mortgage as a “Vice President” of MERS as nominee for the

assignor, to an assignee which is controlled by a company of

which she is a “Vice President.” The purported assignment

was not an "arms length" transaction.

26. Lisa Allinson had a major conflict of interest as

Vice President of both MERS and the company that controlled

the assignee/plaintiff. As Vice President of MERS, which is

entrusted to maintain accurate records of the repeated

transfers of title of over half the mortgages in the United

States (see Exhibit G hereto), Ms. Allinson had a duty to

MERS and the American public to ensure that all assignments

executed by MERS were fully investigated and that only

legally valid assignments were executed and recorded in the

records of MERS. Ms. Allinson’s duties as a Vice President

of MERS directly conflicted with her duties as Vice President

of the company that controlled the plaintiff/alleged

assignee, whose business was to collect assignments and bring

foreclosure actions.

27. Ms. Allinson’s major conflict of interest is

especially important because all MERS records of the repeated

10

transfers of mortgages from one bank to another are kept

secret from the public.

28. Even other "members" of MERS cannot get records

regarding a specific loan unless they are the actual servicer

of the loan. I personally know this because I joined an

organization that is a member of MERS in order to get the

MERS assignment records pertaining to the mortgage of another

foreclosure defense client. I was unable to find this

information on the MERS system, and when I contacted MERS, I

was advised that only the servicer of the loan has access to

the MERS records of the loan.

29. Without access to the MERS records pertaining to

defendant YASMIN EDWARDS’ mortgage and note, we have no way

of knowing who owned the loan and mortgage on the purported

date of assignment (or at any time since the alleged loan was

originated).

30. The fact that homeowners such as defendant Yasmin

Edwards have no access to the records of MERS pertaining to

their mortgages, makes MERS Vice President Lisa Allinson’s

duties to homeowners and the American public all the more

important, and the conflict of interest between her roles as

Vice President of MERS and Vice President of the company that

controls the alleged assignee/plaintiff, all the more

improper.

11

31. The purported assignment is also invalid based upon

the Kings County Supreme Court decision in Deutsche Bank

National Trust Company as Trustee v. Walter Francis, 2011 NY

Slip Op 50423U, 2011 N.Y. Misc. LEXIS 1164 (2011). A

courtesy copy of the Francis decision is attached as Exhibit

H hereto.

32. In Francis, Justice Arthur Schack dismissed

plaintiff’s foreclosure complaint for lack of standing, with

prejudice, because plaintiff had presented no evidence of

physical possession of the note and mortgage on the date the

action was commenced; and because the verified complaint

stated that the assignment was “to be recorded” but it was

not. Justice Schack checked the Kings County Clerk’s case

file and the Automated City Register Information System

(ACRIS). He discovered that there was no record of the

alleged assignment that was “to be recorded”, notwithstanding

that the action had been commenced two years earlier.

Justice Schack dismissed the action with prejudice and

ordered that the notice of pendency be cancelled.

33. The reasoning of Justice Schack in the Francis case

applies to the present case as well. As in Francis, there is

no public record of plaintiff ever owning the mortgage and

note, and the purported assignment of the mortgage and note

were not recorded. Paragraph 4 of the Complaint herein dated

12

7/26/10 states: “. . . . The note and mortgage were assigned

to BAC Home Loans Servicing, LP fka Countrywide Home Loans

Servicing LP by an assignment which is in the process of

being recorded.”

34. According to my search on ACRIS, the assignment has

not been recorded in the 9 months since it was allegedly

executed. See Exhibit I. In accordance with Justice

Schack’s ruling, the purported assignment is invalid because

there is no public record stating that plaintiff ever owned

the mortgage and note, and the mortgage and note were never

recorded as required by the assignment document.

35. The purported assignment is also facially invalid

because it contains an incorrect description of the

interest(s) assigned. In the purported assignment (Exhibit

C), the reference to the mortgage is incorrect because the

mortgage was not filed in the “office of real property

records in the County of Kings.”

36. I do not know what MERS or Countrywide or its

successors filed in Kings County, but it was not a mortgage

on the subject property. All records pertaining to real

property in the five counties of New York City are filed with

the City Register in New York County. Accordingly, the

assignment is invalid in that it does not accurately describe

13

the interests, if any, that were purportedly assigned. See

Francis (3rd full paragraph on second page of Exhibit H).

37. Additionally, the Acknowledgment attached to the

purported Assignment (Exhibit C) was allegedly executed on

7/23/10 in Los Angeles, California. The out-of-state

Acknowledgment did not include a Certificate of Conformity as

required under CPLR 2309(c) and Real Property Law Section

299-a. Without the required Certificate of Conformity, the

assignment document is invalid under New York law.

38. Furthermore, there is no legal precedent in New

York State holding that MERS is allowed to transfer loans and

mortgages. Some bloggers have claimed that the March 3, 2011

Bronx County Supreme Court decision in The Bank of New York

v. Eddie Sachar, et al., Index Number 0380904/2009 (courtesy

copy attached as Exhibit J) held that MERS has the right to

assign mortgages.

39. Obviously very few who wrote about the Sachar

decision had read it. The Court in Sachar made its decision

for plaintiff for two independent reasons, neither of which

regarded whether MERS can assign mortgages, and neither of

which applies in the present case.

40. The first reason for the Sachar decision was a

clause in the mortgage stating in pertinent part that MERS

has the right to take any action required of the lender

14

including the right to foreclose and sell the property. See

pages 2 and 3 of the Sachar decision (Exhibit J).

41. Accordingly, Sachar was not a general decision that

MERS may assign mortgages, but a decision based upon specific

wording in that case which gave MERS unusual rights to act on

behalf of the Lender.

42. The mortgage herein contained no such clause.

Therefore, the first reason for the Sachar decision does not

apply in the instant case.

43. The other reason for the Sachar decision was that

the home owner executed an “Owners Estoppel Certificate”

which the Court concluded invalidated all defenses to the

action. See first full paragraph of the unnumbered fifth

(signature) page of the Decision and Order (Exhibit J).

Although this holding seems unconscionable, it was the only

other reason for the Court’s decision and it had nothing to

do with MERS.

44. In the present case, the defendant YASMIN EDWARDS

did not execute an owners estoppel certificate, so again the

Sachar decision does not apply.

45. Accordingly, the Bronx Sachar decision is

irrelevant to the present action. The two holdings in the

Bronx case rely on specific facts that do not exist in the

present case against defendant YASMIN EDWARDS, nor in the

15

majority of mortgage foreclosure cases. Nowhere does the

Sachar decision purport to decide whether MERS can transfer

mortgages in New York. See Exhibit J.

46. Furthermore, the Bronx County Supreme Court

decision in Sachar is obviously not binding precedent for the

Supreme Court in Kings County. Even if the Bronx decision

were appealed and sustained by the Appellate Division, First

Department, it would not bind the Kings County Supreme Court

located in the Second Department.

47. Although there has been no decision in New York

State holding that MERS is permitted to assign mortgages,

there is a lengthy and well-reasoned 2011 decision that held

that MERS may not transfer mortgages. In the case of In re.

Ferrel L. Agard, US Bankruptcy Court, Eastern District of New

York, Case No. 810-77338-reg (courtesy copy attached as

Exhibit G), the EDNY Bankruptcy Court located in Central

Islip, New York stated that MERS assignments would not be

accepted in any pending or future bankruptcy cases in which

assignments were executed by MERS either as nominee of the

assignor or as “mortgagee of record.”

48. That for all of the above reasons, the purported

assignment of the mortgage and note are invalid, fabricated

and fraudulent, and the foreclosure action should be

dismissed with prejudice as against defendant YASMIN EDWARDS

16

due to plaintiff’s lack of standing and the fraudulent

assignment submitted herein.

49. No previous application for the relief herein

prayed for has been made.

WHEREFORE, I respectfully request an Order: (1)

pursuant to CPLR Sections 3211(a)(10) and 1001, dismissing

all causes of action against defendant YASMIN EDWARDS, with

prejudice, because the court should not proceed in the

absence of an indispensable party, to wit, the actual owner

of the mortgage and note; and/or (2) pursuant to CPLR Section

3211(a)(1), dismissing all causes of action against defendant

YASMIN EDWARDS, with prejudice, because said defendant’s

proof that plaintiff is not the actual owner of the mortgage

and note and therefore lacks standing to bring this action,

is based upon documentary evidence; and/or (3) alternatively,

pursuant to CPLR Section 2218, ordering a trial of the issue

of whether plaintiff is the actual owner of the mortgage and

note and has standing to bring this action; (4) cancelling

the Notice of Pendency, if any; (5) awarding sanctions and

attorneys’ fees to defendant YASMIN EDWARDS because plaintiff

submitted a fraudulent assignment document to the Court; and

(6) for such other and further relief as the Court deems just

17

and proper.

Affirmed: New York, New York April 19, 2011

______________________ S. John LeNoir, Esq.

Index No. 18674/10 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF 18674-20 ________________________________________________________________ BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP Plaintiff, - against - YASMIN EDWARDS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC AS NOMINEE FOR COUNTRYWIDE BANK, FSB, ITS SUCCESSORS AND ASSIGNS, et al. Defendants. ________________________________________________________________ ________________________________________________________________

MOTION TO DISMISS ________________________________________________________________ ________________________________________________________________

LENOIR LAW FIRM

Attorneys for: Defendant YASMIN EDWARDS

461 Central Park West, Suite 3L

New York, N.Y. 10025 (212) 531-0284

________________________________________________________________ To: Attorneys for: Service of a copy of the within is hereby admitted. Dated, Attorney(s) for:

________________________________________________________________