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At a Special Term of the Supreme Court of the State of New York, hetd in and for the Sixth Judicial District, at the Detaware County Courthouse, Dethi New York on the 16th day of February,
2010.

PRESENT: HONORABLE

MOLLY REYNOLDS FITZGEMLD

JUSTICE PRESIDING

STATE OF NEW YORK SUPREME COURT

Delaware CountY -Clerk -".1';iT,"#'t"S':!3fff'

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: COUNTY OF DELAWARE

Wetts Fargo Bank, N.

A., as Trustee for Citigroup

DECISION AND ORDER

Mortgage Loan Trust, Series 2005-OPT4, Asset Backed Pass-Through Certificates,

Plaintiff
-against-

lndex No.: 2009-1536 RJI No.: 7009-0436

Maria Garcia; Luis Zafra; and "JOHN DOE #1" through "JOHN DOE #10" the last ten names being fictitious and unknown to the Ptaintiff, the person or parties intended being the person or parties, if any, having or ctaiming an interest in or lien upon the mortgaged premises described in the comptaint, Defendants.

Ptaintiff commenced this mortgage forectosure action by fil.ing a Notice of

Pendency, Summons and Complaint in the Detaware County Clerk's Office on November

4,7009, The defendants did not fite an Answer, instead, defendants' moved to dismiss
the Comptaint for various reasons inctuding;

(a)

Faiture to submit an Affidavit of Facts or a Verified Complaint;

Page 1 of 5

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At a Speciat Term of the Supreme Court of the State of New York, hetd in and for the Sixth JudiciaI District, at the Delaware County Courthouse, Dethi New York on the 16th day of February,
2010.

PRESENT: HONOMBLE MOLLY REYNOLDS FITZGEMLD

JUSTICE PRESIDING

STATE OF NEW YORK SUPREME COURT

Delaware CountY -Clerk -"rffi,A.,t#':ff'l,'

I

: COUNTY OF DELAWARE
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Wetts Fargo Bank, N. A,, as Trustee for Citigroup Mortgage Loan Trust, Series 2005-OPT4, Asset Backed Pass-Through

Certificates,

DECISION AND ORDER

Plaintiff,
-againstMaria Garcia; Luis Zafra; and "JOHN DOE #1" through "JOHN DOE #10" the last ten names being fictitious and unknown to the Ptaintiff, the person or parties intended being the person or parties, if any, having or ctaiming an interest in or lien upon the mortgaged premises described in the compta'int, Defendants.

lndex No.: 2009-1536 RJI No.: 2009-0436

Ptaintiff commenced this mortgage forectosure action by fiting a Notice of

Pendency, Summons and Complaint in the Delaware County Cterk's Office on November

4,2009, The defendants did not fite an Answer, instead, defendants' moved to dismiss
the Complaint for various reasons including:

(a)

Faiture to submit an Affidavit of Facts or a Verifjed Comptaint;

Page 1 of 6

(b)

Faiture

to submit proper evidentiary proof of the

assignment

of

the

mortgage;

(c) (d) (e) (f) (g) (h) (l)

The ptaintiff does not have standing to commence the forectosure action; Failure to compty with RPApL 51320; The defendant, Luis Zafra, is not a necessary defendant; The defendant, Maria Garcia,s, signature is a forgery;

Truth in Lending Act (TILA) violations;

Faiture to provide a 90 Day Notice; and Faiture to assert whether the mortgage is a high cost or a sub-prime loan.

Ptaintiff opposes the motion to dismiss in its entirety.

A

motion to dismiss is governed by CPLR S3211 , The statute contains an extremely

comprehensive list of grounds to dismiss the Comptaint. Despite the almost exhaustfve

tist of grounds, the defendants' attorney refers to irretevant, immateriat

inappropriate attegations which woutd be better suited
defenses in an Answer.

and

to be raised as affirmative

Att but one of the grounds tisted above by the defendant, have no basis to dismiss the Comptaint and serve no purpose. ln fact, the smattering oi the irrelevant attegations

tends to conceal and obfuscate the one legitimate ground for dismissal,.
Likewise, defendants' insutts towards the Court, ptaintiff's attorney and ptaintiff 's

tocal counset are unwarranted and are counterproductive in the current mortgage
forectosure atmosphere, which invotve mortgage forectosure setttement conferences and

Page 2 of 6

negotiated setttements of forectosure actions.

This Court wit[ address solely the ground

of whether the ptaintiff has legal

capacity or standing to commence the foreclosure action. To estabtish a prima facie case in a mortgage forectosure action, the pl,aintiff must estabtish the existence of the mortgage, the mortgage note, ownership of the mortgage and the defendant's defautt in payment Deutsche Bank Nat. Trust Co. v lAcRae,27 Misc3d 247 (7010). These necessary etements shoutd be set forth in the

comptaint. This Court obtained a copy of the Comptaint (and attached exhibits) fited in the Detaware County Clerk's Office. The Comptaint and the exhibits estabtish a prima facie case. The Complaint clearly sets forth that the ptaintiff is the owner and hotder
of the subject mortgage and note. The ptaintiff explained that the mortgage and note

were assigned to the plaintiff and that the defendant has defautted in payment. The

plaintiff provides copies of the note, mortgage and assignment of mortgage. The
assignment of mortgage ctearty sets forth that the mortgage, note and att obtigations

retated to the note are being assigned to the ptaintiff

At first blush,

it would

appear that the ptaintiff has standing to commence the

forectosure action and that the motion shoutd be denied.

It is not untit reading the Reply Affirmation to Plaintiff's Opposition to

Defendant's Amended Motion to Dismiss (which was submitted subsequent

to the motion

to dismiss

&.

appropriate leave or retief dated November 79,2009; the motion to dismiss,

quiet titte & attorneys fees dated January 19,2010; the affirmation in opposition to

Page 3 of 6

defendants motion to dismiss dated January 13, 2010; and the affirmation in opposition

to defendants supptemental motion to dismiss dated January 28,2010) that this Court
becomes concerned that the ptaintiff may not have standing. The concern is raised by Lynn E, Szymoniak, Esg.'s Affidavit, a purported expert witness invotving fraud, who asserts

that Linda Green (tisted as the Vice President of American Home Mortgage

Servicing, lnc., as Successor in interest to Option One Mortgage Corporation) may not be

an officer of the corporate ptaintiff and may not have executed the assignment. ln support of Attorney Szymoniak's Affidavit are various purported signatures

of

Linda

Green. A[[ signatures appear to be in a different penmanship. Attorney Szymoniak

further atteges that Ms. Green is listed as hotding various capacities in different banks
and mortgage related entities.

lf in fact this is a forged assignment, the assignment is invalid, nutl and void and
the ptaintiff tacks standing to commence the forectosure action. The recording of the
assignment of mortgage provides no protection to the ptaintiff

Stointon v Jacob Kaiser

lmprovement Co., 161 AD 603 (1914).

Furthermore, ptaintiff does not provide a copy of a corporate resolution, an

affidavit or other proof that Ms. Green is an officer with authority

corporation.

to bind the

This Court does not sympathize, assist nor tegitimize financiat institutions such as
Welts Fargo Bank which caused, or at least contributed

to, the forectosure crisis gripping

this Nation. Therefore, the Comptaint is disrnissed, without prejudice. lf the ptaintiff

Page 4 of 6

LIMITED POWER

OX'

ATTORNEY

Wells Fargo Bank, N.A., successor by merger to Wells Fargo Bank Minuesota, N.A., f/Va Nonvest Bank Minuesota, N.A., solely in its capacity as trustee (the "Trustee") of the Tnrsts (as defined belorv) hereby constitutes and appoints American Horne Mortgage Servicing hc,, solely in its oapacity as master servicer or selicer (the "Servicer"') of tlte Tlusts, and any other duly appointed officer thereof, rvith full power of substitutioll, as its true and larvful attolney-in-fact rvith power and authority in the place and stead of the Trustee and in the name of the Trusteo or iu its orvn name fi'om tirne to tiure in the Selvicer's discretion, for the purpose of servicing rnortgage loans, to take any and all appropriate action and to execute any and all doouments and instruments which may be necessary ol desirzble to accornplish the purposes of sewioing moftgage loans, and rvithout limiting the geuerality of the foregoing, the Trustee hereby gives the Seryicer the power and right, on behalf of the Trusts, rvithout assent by the Trustee, full authority and porver to execute and deliver on behalf of the Trustee any and all of the follorving instruments, to the extent consistent rvith the terms and conditions of the Pooling and Servicing Agreements attached hereto as Exhibit A (the "Trusts") :

(l) all docurnents rvith respect to residential rnortgage loans serviced for the Trustee by the
Servicer rvhich are customarily and reasouably necessary arrd appropriate to the satisfaction, cancellation, or partial or full release ofmortgages, deeds oftrust or deeds to securc debt upon payrnent and discharge of all sums secured thereby; (li) instruments appoirrting one or mole substitute trustees to act in place of the trustees narned in deeds of trust; (iii) affidavits of debt, notice ofdefaull declaration ofdefault, notices offoreclosure, and all such contracts, agreements, deeds, and instruments as arc appropriate to effeot auy sale, transfer or disposition of real property acquired thlough foreclosure or otherrvise; (iv) court and estate related docunrents

for the purpose ofseeking the appointment ofa fiduciary for the estate ofan1,deceased
borrower'/defendant; and (v) all other cornparable instruments. This Limited Porver of Attorney is effective as of the date belorv and shall rernain in frrll force and effect until revoked in rvriting by the Trustee or the tennination of the Agreemert or the termination of the Sewicer, rvhichever is ealliel.
Dated: May 6, 2011

Wells Fargo Bank, N.A.,

as Trustee of the
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Tlusts
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By: Elisabeth A. Brervster Hurnphries

SUPREME COURT OF TEIE STATE OF COUNTY OF DELAWARE Mana Garcia Plaintiff,

-against-

NE\v

YoRK

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VERIFIED AMENDED COMPLAINT

rNDEX# 2011518
Wells Fargo N.A. LPS dAla DocX, LLC Shapiro, DiCaro, [g Barack, LLP

PRELIMINARY STATEMENT

l)

Pernicious schemes described herein, targeted the vulnerable members of our society
causing these ro wrongfully either:

a. lose their homes; alternatively b. enter modification agreements

title; or

clouding and causing these unmarketable;

c. When

homeowner requested proof

of ownership to

engage

in

honest
a

settlement, were injured by the use of abuse of process

to effectuate

wrongful settlement,t by a pretender lender.

2) Every time a foreclosure judgment is granted based on flawed or forged documents our
court system is weakened, our entire system of justice is desecrated and the foundations of our unique system of government is damaged. Unlike totalitarian or more repressive I
Modifications entered by a distressed homeowner with either unscrupulous attorneys/entity based on forged
documents, which are not authorized approve modifications produces unmarketable titles.

DR 7-102(A)(7), the attorney may not "assist the client in conduct that the lawyer knows to be illegal or fraudulent" and .....conduct in a settlement that the attorney knows has been obtained by fraud. If the client refuses to rectifu the
fraud, then the attorney must withdraw.

Lawyer deception in negotiations can lead to liability for fraud. ln Slotkin v. Citizens Casualty Co.' 614 F.2d 301 (2d Cir. 1979) cert. denied, 449 U.S.981 (1980).

SUPREME COURT OF THE STATE OF NEW YORK COLTNTY OF DELAWARE

COPV
SUMMONS AND NOTICE
Index No.

Wells Fargo Bank, N.A., as Trustee for Citigroup Mortgage Loan Trust, Series 2005-OPT4, Asset Backed Pass-Through Certificates,

Plaintiff,
-against-

Maria D. Garcia; Luis A. Zafra, and "JOHN DOE #l " through "JOHN DOE #10", the last ten names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Deiendants.

PROPERTY ADDRESS: 2406 West Hubbell Hill Road, Margaretville,

NY 12455

TO THE ABOVE NAMBD DEFENDANTS:

YOU ARE TIEREBY SUMMONED to answer the complaint in this action and to serve
a copy

of your answer, or a notice of appearance on the attorneys for the Plaintiff within thirty

(30) days after the service of this summons, exclusive of the day of service. The United States

of

America. if designated as a defendant in this action, may appear rvitliin sixty (60) days of service

hereof. In case of your failure to appear or answer, judgrnent will be taken against you by
default for the relief demanded in the complaint.

NOTICB OF NATURE OF ACTION AND RELIEF SOUGHT THE OBJECT of

the above captioned action is to foreclose a Mortgage to secure $117,865.00 and interest, recorded in the Delarvare County Clerk's Office on June 15, 2005, in Liber 1257 of Mortgages. page 161 covering premises knorvn as 2406 West Hubbell Hill Road, Margaretville,

NY 12455.