SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

============================X

HSBC MORTGAGE CORPORATION,

PLAINTIFF,

-AGAINST-

NOTICE OF MOTION TO DISMISS

OR IN THE ALTERNATIVE FOR
SUMMARY JUDGMENT

INDEX NO. 33339/09

BRYANT PEARSON,NYC PARKING VIOLATIONS BUREAU; NYC TRANSIT ADJUDICATION

BUREAU; JOHN DOE AND JANE DOES ( Said name being fictitious, it being the intent Of
plaintiff to designate any and all occupants of premises Being foreclosed herein, and any
parties, corporation or Entities, if any, having or claiming an interest or lien upon The
mortgaged premises ).

DEFENDANTS

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STATE OF NEW YORK ]

COUNTY OF QUEENS ] SS:

DATE OF RETURNABLE: March 31st 2010

PLACE RETURNABLE: At Queens County Supreme Court House, 88-11 Sutphin Blvd
Jamaica, NY 11435

TIME RETURNABLE: 9:30am or as soon as parties can be heard.

SUPPORTING PAPERS: Affidavit of Bryant Pearson, sworn to on the __th day of February
2010; the Exhibits annexed thereto; and all papers , pleadings and proceedings hereto had
herein.

RELIEF SOUGHT: An Order pursuant to CPLR 3211(a)(1), 3211(a)(3), CPLR 3211 (a)7 CPLR
(a)8, CPLR 3211 and (a) 10 dismissing the summons and complaint upon documentary
evidence that the plaintiff lacks standing to maintain this action, failed to state a cause of
action upon which relief can be granted, improper service of process of defendant, absence
of real parties of interest and failure of plaintiff to make an affirmative allegation within their
complaint pursuant to RPAPL 1302 that plaintiff has standing or authority to bring the
foreclosure action, or in the alternative an order granting summary judgment pursuant CPLR
3212 (b) on the grounds that defendant has inconvertible evidence that supports the relief
requested. An order for the defendant’s pleading to heard pursuant to CPLR 2004 ,CPLR
3012 (c) and 3012 (d)

ANSWERING PAPERS: Answering papers must be filed within ___ days of the return date of
this motion.

Dated February __ 2010

Queens, New York

Respectfully Submitted By:

_______________________
Bryant Pearson-Pro Se

TO: ZAVATSKY, MENDELSOHN & LEVY LLP

ATTORNEY FOR PLAINTIFF

P.O. BOX 510

33 QUEENS STREET

SYOSSET, NEW YORK 11791

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

============================X

HSBC MORTGAGE CORPORATION,

PLAINTIFF,

-AGAINST-

AFFIDAVIT OF SUPPORT OF

MOTION TO DISMISS AND IN THE

ALTERNATIVE FOR SUMMARY
JUDMENT

INDEX NO. 33339/09

BRYANT PEARSON,NYC PARKING VIOLATIONS BUREAU; NYC TRANSIT ADJUDICATION

BUREAU; JOHN DOE AND JANE DOES ( Said name being fictitious, it being the intent Of
plaintiff to designate any and all occupants of premises Being foreclosed herein, and any
parties, corporation or Entities, if any, having or claiming an interest or lien upon The
mortgaged premises ).

DEFENDANTS

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STATE OF NEW YORK ]

COUNTY OF QUEENS ] SS:

I, BRYANT PEARSON; the Defendant, appearing pro-se herein, being duly sworn, depose and
say under penalties of perjury stating the following:

That I am the Defendant in the above entitled action and proceeding and that I am over the
age of 18 years, I am familiar with the facts stated herein and I have personal knowledge of
these facts in the above case.

2. That, I submit this Affidavit in Support of my amended motion to dismiss plaintiff’s

complaint on the grounds that (i) a defense is found upon documentary evidence that the
Plaintiff’s lacks standing to commence this action at the time of filing because of an
unrecorded defective assignment of mortgage . (ii) the plaintiff failed to state a cause of
action where relief could be granted by not having a valid assignment to commence said
action.
(iii) that the Defendant was not properly served with process so the court has no personal
jurisdiction over the defendant and ( (iv)Fraudulent facts and information submitted in the
complaint by plaintiffs attorneys when no assignment had been given to plaintiff (v) real
parities of interest that should be part of this suit are unknown and the defendant putting
the defendant in position to sued by third party creditors that are not privy to this action and
(vi) plaintiff complaint is defective because it contains no affirmative allegation that they
have standing to bring the foreclosure action and that the subject loan has complied with
and fails to meet the requirements of Real Property Actions and Proceedings Law Section
1302

The defendant as a pro-se litigant, it has taken him additional time to become familiar with
his legal defenses, and is only now aware of his legal defenses and counterclaims, and now
wishes to assert the same. The defendant pleading should be should be taken into
consideration under CPLR 2004 and 3012(c) and (d) as if the defendant had pleaded in a
timely manner and in the interest of justice since the defendant was not service with
process personally and upon documentary evidence that plaintiff does not have standing or
a cause of action as result of currently not being able to produce a putative assignment of
mortgage to the court and or the New York City Register Records since commencing these
proceedings even though they fraudulently made an allegation in their hat they are the
owner and holder of said mortgage and note. In addition to plaintiff failing to add necessary
and indispensable parties to the suit who have a real interest as the actually owner of the
mortgage and note as a opposed to the plaintiff who is defined as a mortgage servicer
pursuant to definition of the Truth in Lending Act Section 131(f)2.

The court should use its power to rule sua sponte to dismiss the complaint pursuant to CPLR
3211 and or order a trial if it is determined that defendant has raised triable issues of fact
concerning this action.

The defendant respectfully submits he has not abused his privilege, and became aware of
his defenses and counterclaims upon new legal research, the plaintiff would not be unduly
prejudiced by the defendant's pleading, and the pleading would provide substantive
defenses and therefore not be futile.

Background and Procedural History.

It is alleged that the Defendant Bryant Pearson borrowed $352,000.00 from Citizens
Community Bank on May 28, 2008, which was secured by a mortgage. The mortgage was
recorded at the Office of the City Register of the City of New York, New York City
Department of Finance, on June 13, 2008, at City Register File Number (CRFN)
2008000238814, by Mortgage Electronic Registration Systems, Inc. (MERS), as nominee of
Citizens Community Bank, for purposes of recording the mortgage and acting as mortgagee
of record. (See Exhibit A)

Plaintiff HSBC commenced the instant foreclosure action with the filing of the summons,
complaint, and notice of pendency with the Queens County Clerk, on February 13th, 2009.
(See Exhibit B) Initial service of the summons and complaint was allegedly made on
February,21 2009 by substitute service to a person named “Miss Pearson” and sent by mail
on February 23rd 2009. (See Exhibit C)
Peter G. Zavatsky attorney for plaintiff in paragraph 4 of the complaint alleges that "On
February 11th 2009 the aforesaid mortgage was duly assigned and transferred to the
plaintiff herein for good and valuable consideration, and said assignment was duly recorded
in the County of Queens. Paragraph 8 of the complaint alleges that " At the time of the
commencement of this action, Plaintiff was the holder of the aforementioned mortgage and
underlying debt instrument. Mr. Zavatsky, possibly because he is from Syosset, New York, is
not aware that the City Register is for the City of New York, not the County of Queens.

Upon review, the defendant checked the Automated City Register Information System
(ACRIS) website of the Office of the City Register, New York City Department of Finance on
February 24, 2010 and verified that the Defendant Bryant Pearson’s Mortgage to MERS was
recorded on June 13, 2008, as stated by counsel for HSBC. However, as of February 24,
2010, ACRIS shows there has never been an assignment of the Citizens Community Bank
mortgage and note by MERS. (See Exhibit D) Even if the assignment took place and was not
recorded, Mr. Zavatsky has failed to present the court with any documentary evidence of an
unrecorded assignment. Without any shred of evidence of an assignment from MERS to
HSBC Court must conclude that HSBC is not the owner of the mortgage and note.

If the defendant Pearson's mortgage and note have not yet been assigned to HSBC, HSBC
faces a major complication in having the instant mortgage and note assigned.

The Federal Deposit and Insurance Corporation issued a press release on May 1, 2009 on
their website that Citizens Community Bank, Ridgewood, New Jersey, was closed May 1st
2009 by the New Jersey Department of Banking and Insurance, which appointed the Federal
Deposit Insurance Corporation (FDIC) as receiver. (See Exhibit E) The press release goes on
to state that “to protect the depositors, the FDIC entered into a purchase and assumption
agreement with North Jersey Community Bank, Englewood Cliffs, New Jersey, to assume all
of the deposits of Citizens Community Bank….. North Jersey Community Bank paid a
premium of 0.67 percent to acquire all of the deposits of the failed bank.

The February 13, 2009 complaint, in unequivocal language recites in ¶'s 2 and 3 the details
about the execution and recording of the Citizen’s Community Bank mortgage and note to
defendant Pearson. The complaint then states:

7. On February 11th 2009 the aforesaid mortgage was duly assigned and transferred to the
plaintiff herein for good and valuable consideration, and said assignment was duly recorded
in the County of Queens.

8. At the time of the commencement of this action, Plaintiff was the holder of the
aforementioned mortgage and underlying debt instrument.

More than 12 months (376 days to be exact) have elapsed from February 13th 2009 to
February 24th, 2010. Yet, there is no evidence of the alleged assignment from MERS to
HSBC. The only evidence that HSBC may be involved in this matter is on the face of cover
page in ACRIS of the original mortgage recorded by MERS as nominee of Citizen Community
Bank where it instructs the City Register to send the recorded version to the plaintiff at an
address in New York. As a result HSBC may be the servicer of said mortgage but regardless
of this fact and according to section 131(f)2 of the Truth In Lending Act
Which states “A servicer of a consumer obligation arising from a consumer credit transaction
shall not be treated as the owner of the obligation for purposes of this section on the basis
of an assignment of the obligation from the creditor or another assignee to the servicer
solely for the administrative convenience of the servicer in servicing the obligation this Court
must conclude that HSBC never had the authority to enforce the mortgage and note by
assignment of mortgage for administrative purposes, nor have they ever never been, the
owner of the obligation in the instant foreclosure action.

As a result of this statue of the Truth In Lending Act which clearly defines the plaintiff as not
being the owner of the defendant’s promissory note even with an assignment of mortgage,
real parities of interest that should be part of this suit are unknown and the defendant can
be sued again by third party creditors that are not privy to this action in addition to being
denied a proper party to assert counterclaims against for fraud, deceptive lending and truth
in lending violations.

It is upon reasonable belief that such assignment was created by the Lender Process
Servicing the default servicer and actual party giving documentation to support the plaintiff
claims to ZAVATSKY, MENDELSOHN & LEVY under the LPS Network Agreement cannot
communicate with the servicer who is the movant in the case. ZAVATSKY, MENDELSOHN &
LEVY can only send a NewTrak “issue” to LPS. LPS has what it calls “document execution
teams” for every LPS “Servicer Partner.” These teams do not include lawyers or trained
paralegals but rather include individuals who have been trained to produce documents. In
order to create the the illusion of standing LPS document execution teams will prepared sign
as a Vice President or Assistant Secretary of Citizens Community Bank an assignment of
mortgage from Citizens Community Bank Note from MERS as nominee directly to HSBC, and
date it with an effective date of February, 13th 2009 or sometime thereafter.

In the recent case of Niles and Angela Taylor, 2009 WL 1885888 (Bankr. E.D. Pa. 2009),
Judge Diane Weiss Sigmund described in great detail the above as to how the default
mortgage servicing and foreclosure systems really work.

The servicer in Taylor was HSBC Mortgage Corp; the out-source provider was Lender
Processing Services, Inc., f/ka/ Fidelity National Information Services, Inc.; the national law
firm was Moss Codilis LLP; and the local law firm Udren Law Office.

It should also be noted that the Affidavit of Service from Donald L. Wolman on February 21st
2009 at 10:10am is defective on its face and contains 2 statements that are bonafied
misrepresentations of alleged service. The process server claims he served a Miss Pearson
at 110 Beach Street 59th Street, Averne, New York 11692. This process server’s statements
are false because the defendant has been divorced for 4 years and there is no Miss Pearson
that resides with him or is on the lease at this residence. (See Exhibit F) The affidavit is also
devoid of facts associated with service in person or by mail because 110 Beach Street 59th
Street, Averne, New York 11692 is an apartment complex and nowhere on the affidavit does
it state the unit that Mr. Pearson apartment number was when serving said person by
suitable service or service by mail. For the record Mr. Pearson lives in apartment #401
evidence by the lease as an exhibit.

Arguments
To foreclose on a mortgage, a party must have title to the mortgage. The instant
assignments are both nullities. The Appellate Division, Second Department (Kluge v Fugazy,
145 AD2d 537, 538 [2d Dept 1988]), held that a "foreclosure of a mortgage may not be
brought by one who has no title to it and absent transfer of the debt, the assignment of the
mortgage is a nullity." Citing Kluge v Fugazy, the Court (Katz v East-Ville Realty Co., 249
AD2d 243 [1st Dept 1998], held that "[p]laintiff's attempt to foreclose upon a mortgage in
which he had no legal or equitable interest was without foundation in law or fact."

It is the law’s policy to allow only an aggrieved person to bring a lawsuit….a want of “stan
ding to sue,” in other words, is just another way of saying that this particular plaintiff is not
involved in a genuine controversy, and a simple syllogism takes us from there to a
“jurisdictional” dismissal: (1) the courts have jurisdiction only over controversies; (2) a
plaintiff found to lack “standing” is not involved in a controversy; and (3) the courts
therefore have no jurisdiction of the case when such a plaintiff purports to bring it. (Prof.
David Siegel, NY Practice 4th Ed., § 136, p. 232).

Failure To State to Cause of Action Where Relief Can Be Granted.

Plaintiff's pleading fails to state a cause of action. In the present case the Plaintiff claim to
have assigned and recorded the mortgage but has not produced any evidence to that effect.
Almost a year has passed since plaintiff has filed their summons and complaint, they still do
not possess a valid assignment of mortgage recorded in the Automated City Register
Information System. The Plaintiff in this case failed to satisfy certain conditions precedent
prior to the filing of this action. Furthermore, they failed to state a cause of action upon
which relief can be granted.

The legal standards to be applied in evaluating a motion to dismiss are well-settled. In

determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to
CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action (Cooper
v 620 Prop. Assoc., 242 AD2d 359 [2d Dept 1997],

The instant action by the Plaintiff revealing that they never had any standing is "a waste of
judicial resources." This conduct, as noted in Levy, must be deterred. In Weinstock v
Weinstock, 253 AD2d 873 (2d Dept 1998), the Court ordered the maximum sanction of
$10,000.00 for an attorney who pursued an appeal "completely without merit," and holding,
at 87, that "[w]e therefore award the maximum authorized amount as a sanction for this
conduct (see, 22 NYCRR 13-1) calling to mind that frivolous litigation causes a substantial
waste of judicial resources to the detriment of those litigants who come to the Court with
real grievances [Emphasis added]." Citing Weinstock, the Appellate Division, Second
Department, in Bernadette Panzella, P.C. v De Santis, 36 AD3d 734 (2d Dept 2007), affirmed
a Supreme Court, Richmond County $2,500.00 sanction, at 736, as "appropriate in view of
the plaintiff's waste of judicial resources.

The Court, in Campaign v Barba, 23 AD3d 327 (2d Dept 2005), instructed that "[t]o establish
a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the
existence of the mortgage and the mortgage note, ownership of the mortgage, and the
defendant's default in payment.

CPLR 3211(a)(7) permits the court to dismiss a complaint that fails to state a cause of
action. The Plaintiff in this case failed to establish a cause of action in the complaint
pursuant to CPLR 3211 (a)(7). The court must also accept as true all of the facts alleged in
the complaint and any factual submissions made in opposition to the motion (see 511 West
232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Sokoloff v Harriman Estates Dev.
Corp., 96 NY2d 409; Also Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 493).

Thus, according to this defendant the pleadings in the complaint fail to state a cause of
action which is leading to a waste of judicial resource as mentioned above. The dismissal of
the summary judgment clearly shows that the plaintiff failed to provide assignment note of
the mortgage to prove a valid mortgage and thus a cause of action.

It is true that on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court
must afford the pleadings a liberal construction, accept the allegations of the complaint as
true, and provide the plaintiff the benefit of every possible favorable inference (see CPLR
3026; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591; Leon
v Martinez, 84 NY2d 83, 87-88). However, factual allegations consisting of bare legal
conclusions or that are inherently incredible or that are flatly contradicted by the
documentary evidence are not entitled to such consideration (see Pincus v Wells, 35 AD3d
569, 570 [2006]; Syracuse Orthopedic Specialists, P.C. v Hootnick, 16 AD3d 1019, 1020
[2005]; Tectrade Intl. v Fertilizer Dev. & Inv., 258 AD2d 349, 349 [1999]; Biondi v Beekman
Hill House Apt. Corp., 257 AD2d 76, 81 [1999]; Wilson v Hochberg, 245 AD2d 116, 116
[1997]; Kliebert v McKoan, 228 AD2d 232, 232 [1996]; SRW Assoc. v Bellport Beach Prop.
Owners, 129 AD2d 328, 331 [1987]. When evidentiary material is considered, "the criterion
is whether the proponent of the pleading has a cause of action, not whether he has stated
one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]. Furthermore, Vague and
conclusory allegations are insufficient. Gordon v. Dino De Laurentiis Corp., 141 AD2d 435,
436 (1st Dep't 1988)

Moreover, in order "to establish a cause of action in conversion, the plaintiff must show legal
ownership or an immediate superior right of possession to a specific identifiable thing ……'"
(Estate of Giustino v Estate of DelPizzo, 21 AD3d 523, 523 [2005], quoting Independence
Discount Corp. v Bressner, 47 AD2d 756, 757 [1975.

Therefore the Defendant contends that Plaintiff has failed to state a cause of action because
they have not affirmatively set forth the assignment of the note upon which liability is
predicated, either by express reference or by attaching a copy of the assignment.

Failure to Serve Defendant personally with Summons and Complaint

The attached affidavit identified as (Exhibit G) states that the defendant didn't answer the
summons and complaint in a timely matter because he has never been served personally
with process personally at either the subject property or the address the plaintiff claims they
did. Also the process server admits to never having served the defendant personally at any
address and purports to have served an unknown party for that matter of suitable age to
accept summons and complaint on behalf of defendant. (Exhibit I Affidavit of Service dated
02/21/2009).

Rule 317 and 318 of NYCPL gives an opportunity to a person to defend his case that he was
not served and seek reversal of the judgment. Rule 317 of NYCPL provides:
A person served with a summons other than by personal delivery to him or to his agent for
service designated under rule 318, within or without the state, who does not appear may be
allowed to defend the action within one year after he obtains knowledge of entry of the
judgment, but in no event more than five years after such entry, upon a finding of the court
that he did not personally receive notice of the summons in time to defend and has a
meritorious defense.

Plaintiff has the burden to show that service satisfied CPLR Section 308(2). Once Defendant
testified that he was not served, the presumption of adequate service created by the
process server's affidavit was rebutted and plaintiff had the burden of going forward to show
evidence that the acts of service were in fact carried out.( NYS Higher Education Services
Corp v. Ruth Srebrenik, 562 N.Y.S.2D 363).

This motion to dismissed is filed because Defendant verily believes based on the evidence
and issues triable facts presented he will and should prevail on the merits, that the Plaintiff
does not have any documentary evidence to prove that they are the holder in due course or
have authority to represent the holder in due course, and that the affidavits and
representations of counsel were false when made, and have been false repeatedly in other
cases around the State. Defendant intends to file a separate action in federal court for set
off violations to the Truth and Lending Act, and claim for damages and fraud in the
inducement and fraud in the execution, damages for appraisal fraud, quiet title.

If the court were to allow the plaintiff in this case to prevail in light of serious
misrepresentation and fraud upon the court, it would result in major injustice to the
defendant. The court cannot be in a position of enabling plaintiff and its attorneys to
commit material misrepresentation or felony crimes.

WHEREFORE, Defendant requests that this action be dismissed for reason pleaded above
and in the interest of justice.

Pursuant to Civil Practice Law and Rules Section 2214 (b), answering affidavits, if any, are
required to be served upon the undersigned at least twenty one (21) days before the
returned date of this motion.

Sworn to before me this ____

Day of ________, 20 ________. Respectfully Submitted

----------------------------------------. -------------------------

Notary Bryant Pearson

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of the foregoing has been delivered
by mail to: ZAVATSKY, MENDELSOHN & LEVY LLP, ATTORNEY FOR PLAINTIFF P.O.
BOX 510 33 QUEENS STREET SYOSSET, NEW YORK 11791