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NO WITNESS = NO CASE (Installment 8)
RE: NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, OFFICE OF FORENSIC EXAMINER’S (OCTOBER 13, 2009 FORENSIC EVALUATION REPORT) (hereinafter "REPORT")
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The intent of this installment, will be to further explore the legal issues of "Standing and Capacity".
Essentially, Installment #8 picks up where Installment #5 left off: "So who ‘resurrected’ the BankEast naked mortgage with respect to the Center Harbor property? You must have guessed by now: It was FDIC Agent Daniel Sklar!
Now that we know "who did it". The question then becomes "how did he do it?" And, did "he do it legally?"
The bulleted questions below raise some material issues that require an explanation before the "how" question can be reasonably answered. As the Readers will see, all the questions revolve around the legal question of "Standing".
- Whether BONHAM/FDIC, after BankEast failed in 1991, produced legal evidence to the Court to prove "Standing" when its Attorney Daniel Sklar filed an Appearance and Claim with the Grafton County Superior Court in opposition to DEFENDANT’s Petition To Quiet Title to the High Birches Springs water source, in September 1994;
- Whether BONHAM/FDIC produced legal evidence of "Standing" to make its claim against the Petition To Quiet Title (to the Center Harbor real estate owned by the Jean Vorisek Family Trust [TRUST]), in Belknap Superior Court [BSC], in re: docket # 97-E-202. (The case was dismissed in 1998, by BSC citing "lack of subject matter jurisdiction".)
- Whether the Resolution Trust Corporation's [RTC] partnership with Regional Financial Services [RFS] purchased a legal assignment from BONHAM/FDIC with respect to the 1988 BankEast commercial line of credit loan to Business Assets Management, Inc, and Senter Cove Development Company, Inc., in order to make its claim against the High Birches Springs water rights, and/or the 1989 BankEast ‘naked mortgages’.
- Whether the RTC/RFS Partnership produced legal evidence to the Court to prove "Standing" to intervene and make its claim against the TRUST’s Petition to Quiet Title to the Center Harbor real estate in BSC in re: [docket # 00-E-115]
- Whether all the numerous and subsequent alleged ‘chain of title’ assignments of the initial 1988 BankEast commercial line of credit (that was first claimed, in 1994, by BONHAM/FDIC) that allegedly transferred legal "Standing" to Ingomar, LP and SN Serving Corporation, Inc, and then to SN Commercial, Inc., were legal with respect to NH RSA 477:3-a, and other legal requirements, both state and federal.
- And, if not: Whether SN Commercial produced legal evidence to the Court to prove "Standing" to foreclose against the TRUST’s Real Estate, in BSC, in re: Petition to Foreclose in re: docket #05-E-078. (SN Commercial’s foreclosure Petition was ultimately granted. The Trust Center Harbor real property was foreclosed upon on September 27, 2007. DEFEDANT was evicted and arrested May 15, 2009.)
NOTE: If you are a new Reader of this series "NO WITNESS = NO CASE", you may want to begin with reading the seven prior installments before you read this one. The Series main objective is to lay out DEFENDANT’s rebuttal argument, and "Affirmative Defenses" to the State’s REPORT "Testimony" that was faxed to the Laconia District Court [LDC] in re: 09-CR-1293-4 and 09-CR-4147 minutes prior to the hearing on the merits of the May 15-16 arrests in re: 1293-4 (in both cases the DEFENDANT is charged with misdemeanor criminal trespass).
In re: 1293-4 the misdemeanor was an "A" classification, which entitled her to a Public Defender attorney. In re: 4147 the charges were classified a "B" and therefore the DEFENDANT had to defend herself, pro se. The REPORT "Testimony" was also submitted to the court in re: 09-CR-4147: the subsequent arrests of the DEFENDANT after the Belknap County Superior Court ORDER that GRANTED DEFENDANT’s MOTION for a Temporary Restraining Order against Waukewan Holdings, LLC.
Recall that in Installment #7 in re: Southern v. Mendum, 1831 WL 1104, at * 7 (N.H. 1831) The New Hampshire Supreme Court found that:"[T]he interest of the mortgagee is not in fact real estate, but a personal chattel, a mere security for the debt, an interest in the land is inseparable from the debt, an incident to the debt, which cannot be detached from its principal."). Consistent with New Hampshire case law in re: Carpenter v Longen 83 US 271274, (1872) US Supreme Court found that "An assignment of the NOTE carries the mortgage with it, while and assignment of the latter alone is a nullity….". Recent mortgage foreclosure decisions have consistently supported the issue that ‘naked mortgages’ are nullities. (Some of these decisions have been excerpted, and/or cited below.)
Serial Readers will also "Recall" that in Installment #5 that "The State’s interpretation of DEFENDANT’s descriptive statements to OIGs with respect to the FDIC’s failure to make a claim for its portion of the CLD law suit pursuant to its 1991 Creditor Agreement was condensed into this one very convoluted, deceptive, and lacking in "Candor to the Tribunal" sentence below":
- "BankEast, which according to Ms Allan improperly had become the mortgagee of the land property in the October 1989 Judgment, failed, and assets were claimed by the FDIC. She indicates that the FDIC’s representative was Daniel Sklar, "the very same attorney who was a party to the fraud upon me, and the Northern Hillsborough Superior Court, in a conspiracy with Devine Millimet and Shaheen Gordon, "who failed to appear at a settlement hearing on May 2, 1994"."
For the benefit of all the Readers, an "excerpt" of what has already been laid out in Installment #5, with respect to the "Circumstances surrounding the ‘Resurrection’ of the BankEast naked mortgages, and the role of "her attorneys" has been reprinted below: ( with all the facts set out below, this the State could have discovered prior to submitting its Expert Witness Testimony in the form of the October 12, 2009 REPORT)
"By October 13, 2009, the State, and the public knew that BankEast had failed in October, 1991":
- It is public record that the FDIC appointed BONHAM as its agent receiver for the failed bank, and not The Resolution Trust Corporation.
- It is public record that Attorney Daniel Sklar was one of the local New Hampshire attorneys that was retained to represent BONHAM as BankEast’s receiver.
- Discovered after Installment #5 was posted, it is a matter of public record that Attorney Sklar was BankEast’s attorney in Chapter 11 Bankruptcy that proceeded the bank’s failure.
- It is public record that Attorney Daniel Sklar represented BankEast in its law suit against BAM, Senter et al. That has been laid out in PART 2 - Installment #4 where the DEFENDANT has recounted several apparent RULE 3.3 violations, which include actions taken by Attorney Sklar.
- It is an undisputed fact that Attorney Sklar was well informed with respect to the facts surrounding the BankEast credit line that was opened in favor of the borrowers, BAM and Senter et al. Attorney Sklar has already confirmed these facts in deposition testimony to the FDIC in re: Petition to Quiet Title brought by BAM, Senter et al in Belknap Superior Court docket 97-E-202. (which was dismissed for lack of subject matter jurisdiction).
- It was Attorney Sklar, who when asked by the FDIC, to produc the original of the February, "1991 Mortgage Discharge" where the bank exchanged it rights to secured mortgages, for other collateral, produced the original "Mortgage Discharge" from his file. The "Mortgage Discharge" was signed by BankEast Agent Deborah Blondin. The "Mortgage Discharge" was not recorded in the Belknap County Registry of Deeds.
- The BankEast "Mortgage Discharge" (attached to the 1991 Creditor’s Agreement) that was created at the request of First Equity Insurance (one of "her DEVINE attorneys" other clients) as part of the 1991 Superseding Agreement, in which the bank agreed to exchange its mortgage collateral for other collateral: to include, but not limited to 1) the Ecotech stock (Refer to Alan Teale/First Equity Ins/Ecotech Fraud Installment #2), and 2) interests in ongoing law suits. One of those law suits was BAM, Senter v CLD Engineers.
Installment #5 also described the efforts DEFENDANT made to attempt to make her not so "paranoid" ‘Grievances’ known to the various Branches of the State’s government, and in the recounting of her January 9, 2009 letters to the OIGs of the SEC and US DOJ, which were incorporated in to State’s REPORT "Testimony" in Sources of Information 6. These actions included filing Appeals with the New Hampshire Supreme Court where:
- DEFENDANT lost both times: She was Ordered to paid $250,000 to Upton in 1996; and then found that in 2006 she still owed $850,000 to SN/Arkley/Ingomar et al. The equity value of the Center Harbor (real) property at that time was $335,000. The high foreclosure bid was $245,000 leaving approximately $600,000 still owed by the DEFENANT to SN/Arkley/Ingomar LP.)
Installment #5 also emphasized that the State’s REPORT "Testimony" to the LDC that DEFENDANT reported to the OIGs that:
- "The BankEast creditor, if any, did not appear to claim its portion of the settlement as per its February, 1991 Creditor’s Agreement."
- "At that time BankEast had failed, and the FDIC had already made claims to be the receiver of the company’s assets." (FDIC retained BONHAM to be the receiver of BankEast, and not RTC)
- "At that time, the FDIC’s representative, Attorney Daniel Sklar -the very same attorney who was a party to the fraud upon me and the No. Hillsborough Superior Court along with Devine Millimet and Shaheen Gordon – was Noticed."
- "He failed to appear." (It is public information that he personally was notified of the closing)
So, given all the above, how can the Readers begin to answer the "how" questions to their satisfaction? For Readers who are not attorneys, a reasonable person may want to understand what the law requires for a person to have "Standing" in a court of law.
- "Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011).
- A litigant must have both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to "show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress." Id. at 12.
- In comparison, "prudential standing encompasses the general prohibition on a litigant’s raising another person’s legal rights." Id. (citation and quotation signals omitted); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009)."
The issue of "Standing" has been the focus of several recently decided mortgage/foreclosure cases: (Excerpts of certain cases have been highlighted below. These cases support DEFENDANT’s "Affirmative Defenses":
- Which, include among other issues, that the ALL BankEast successors all lacked "Standing" to make a claim against the High Birches Spring Water source upon which Netmark International, Inc. had an Easement Deed;
- and/or, upon the alleged BankEast naked mortgage to the Center Harbor Property owned by TRUST.
- The State knew or had reason to know that it’s REPORT "Testimony" also lacked "Standing". There is credible evidence that the State knew that its REPORT was a ‘fraud upon the court’. Therefore, it was the compilation of the State’s prior actions, which culminated in the October 13, 2009 REPORT "Testimony" that became the proximate cause for the LDC subsequent Orders (05/05/2010 & 12/20/2010). The legal effect of the REPORT, coupled with the LDC Orders, caused the denial of the DEFENDANT’s Constitutional Rights to Due Process as enumerated in Installments #6 and #7.
In order to get a clearer picture of DEFENDANT’s fact set, an "excerpt" from a recently decided case by New York Supreme Court (NYSC) Queens County (that is material to the issue of "Standing" of successors in interest to a failed bank) has been used as an example. As the Readers will see, the DEFENDANT’s fact set has been interjected into the Court’s ruling in re:ONEWEST BANK, FSB as successor in Interest to INDYMAC BANK, FSBPlaintiff, -against-KATHLEEN CUMBERBATCH, Defendant:
A. The NYSC found that "A plaintiff establishes that it has standing where it demonstrates that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note (see Bank of N.Y. v Silverberg, 86 AD3d 274 [2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2011])."
- The New Hampshire in its REPORT "Testimony" to the LDC was fully aware that one of DEFENDANTs "Affirmative Defenses" was that she had evidence that Waukewan Holding LLC was "not a bone fide purchaser" of the Center Harbor real property due to the fact that that the SN et al successors in interest to the BankEast 1988 Commercial line of credit had never produced any proof of claim to the note that was signed by BAM and Senter. And, the State was aware that there was NO evidence of any NOTE EVER signed by TRUST, which was the titled owner of the Center Harbor real property. In a ‘nutshell’: They never had "Standing".
- The State was aware of its own Supreme Court ruling that a ‘naked mortgage’ is merely considered chattel. And, that a ‘naked mortgage without an accompanying note is a nullity. And, that a fraud upon the court is also a ‘nullity’.
- The State, in order to insure that those material issues were never presented to LDC dismissed them as "paranoid delusions", and the LDC without "due process" made the above cited Orders.
B. The NYSC, and DEFENDANT’s added inserted facts, succinctly state the legal issue that the BankEast assignees had with their Petition to foreclose on the Center Harbor real estate when it found: "The subject mortgage names IndyMac Bank, F.S.B. as the lender, and the note is made payable to IndyMac Bank, F.S.B. and does not bear any endorsement."
- The State’s REPORT "Testimony" author admitted to the LDC that he had been in ex-parte communications with DEFENDANT’s Public Defender (in violation of Rule 1.6), and that he had been informed that part of her "Affirmative Defense", to the LDC, would be that there never was a NOTE endorsed to BankEast by the TRUST. Therefore, when BankEast failed, BONHAM could have never made a legal claim against a NOTE from the TRUST in favor of BankEast. If BONHAM had any claim at all, it would possibly have had ‘Standing’ to collect it at the May 2, 1994 settlement closing in re: Senter v CLD. But, as it already has been reported: BONHAM made no claim at that time.
C. "Plaintiff OneWest alleged in its complaint, and when seeking the judgment, that it is the "holder" of the subject mortgage and underlying note. It makes no claim that it is a holder of the subject mortgage and note based upon the assignment offered by defendant Cumberbatch in support of her motion."
- Clearly, the State’s Prosecutor knew, or had the ability to know due to the State’s communication with DEFENDANT’s Public Defender that the Waukewan Holdings Affidavit of Ownership was going to be challenged by the DEFENDANT. And, that challenge would raise material issues of the ‘Standing’ of the BONHAM/FDIC/RTC assignments after BankEast failed.
D. Here is where the NYSC began to find a similar problem to that which occurred in the DEFENDANT’s fact set: "Rather", the Court continued:
1."Plaintiff OneWest asserts that IndyMac Bank, F.S.B. went into receivership and the Federal Deposit Insurance Corporation (FDIC), as receiver, transferred the assets of IndyMac Bank, F.S.B. to IndyMac Federal Bank, FSB on July 11, 2008."
- The State was aware that the Public Records in the Belknap County Registry of Deeds show that when BankEast failed its surviving assets were transferred to FDIC's agent BONHAM. The filing is a general statement and no specific assets are listed. However, the FDIC records, for accounting purposes, are required to keep a full and complete record of all the transferred assets.
- A further review of the records in the Belknap Registry of Deeds shows no subsequent transfer of any rights in assignment to any of BankEast’s assets in BONHAM’s account with respect to ‘any assets of BAM, Senter, or the TRUST to The Resolution Trust Corporation were recorded. A plan reading of NH RSA 477:3-a, would mandate that such a recording of the assignment was required.
2. "Plaintiff OneWest also asserts that all assets of IndyMac Federal Bank, FSB, including the subject note, thereafter were sold on March 19, 2009 to OneWest."
- Here too, the only "assertions" in support of the Waukewan Holdings Affidavit that it is a ‘bone fide purchaser’ comes via the Affidavit "Testimony" of Victor Parisi (a known uber robo signer) that was submitted to Belknap Superior Court by SN et al, by and through its McLane Attorneys who were also "her former attorneys". (Parties related to the DEFENDANT filed a Motion in New Hampshire US District Court in re: 06-cv-224-SM for the requirement of original documentation. The case was dismissed for lack of subject matter jurisdiction before the Motion was reached.
- The State, knew, or had reason to know that neither the Parisi, nor the Waukewan Holdings Affidavits would stand the scrutiny of a full and fair hearing. Therefore, the State’s Prosecutor made certain that there was no hearing on the merits of the State’s four arrests of the DEFENDANT. NO WITNESS = NO CASE.
- The State was also fully aware that in several pleadings on file in the Belknap County Court, in related civil cases, an August 1994 letter from the FDIC’s central office stated that none of its Agents ever received any ‘assets of interest’ of BAM, Senter, or the TRUST. (This would include both BONHAM and RTC.)
- The FDIC August letter was later refuted by an FDIC employee in re: 97-E-202. There is a signed Affidavit on file in re: 05-E-078 that an eye witness came forward, albeit late in the day, to say that he overheard FDIC lawyer Daniel Cadigan (in re: 97-E-202) coaching the FDIC witness to suborn perjury. That claim was dismissed by Judge McHugh in his Order as being fictional. No evidentiary hearing was held to establish the truth of the witness’ claim even though he submitted an Affidavit signed under oath.
- Additionally, pursuant to NH RSA 477-3a, the BankEast naked mortgage has been on record at the Belknap Registry of Deeds since 1989. It was never discharged as Upton claimed to the NHSC in the 1996 Professional Conduct case for fees that was brought by the DEFENDANT.
3. "Plaintiff OneWest, however, has failed to offer any evidence to demonstrate the establishment of a FDIC receivership in connection with IndyMac Bank, F.S.B., the note was part of the assets of such FDIC receivership, or the FDIC, as receiver, transferred such assets to IndyMac Federal Bank, FSB." Furthermore, the copy of the bill of sale presented by plaintiff OneWest indicates that the FDIC, as receiver of IndyMac Federal Bank, FSB, sold only those "Assets," as defined in a "Servicing Business Asset Purchase Agreement" dated March 19, 2009, to OneWest. "Plaintiff OneWest has not presented evidence of the establishment of an FDIC receivership in connection with IndyMac Federal Bank, FSB, or a copy of the March 19, 2009 agreement (or relevant parts thereof), to show the subject note was one of the assets sold to OneWest."
- Consistent with the above cited NYSC concerns, the State knew that there is no record in the Belknap County Registry of Deeds of the alleged assignment or sale from BONHAM to The RTC of the 1988 BankEast commercial line of credit; or, the alleged 1989 BankEast naked mortgage that allegedly secured the TRUST’s real property in Center Harbor as per requirements of NH RSA 477:3-a.
- The lack of that initial filing puts into jeopardy all the other alleged subsequent assignments, in which, Mr. Parisi had testified were the basis for the proof of SN et al claims to foreclose on the subject real property located in Center Harbor (The Reader will recall in Installment #6 the State’s concerns that if it did not shut the DEFENDANT up she would get "more data to understand the alleged conspiracy better".)
4. "Nor has plaintiff OneWest presented any evidence that it was in physical possession of the note at the time of the commencement of the action and the note was endorsed in its favor or in blank (see UCC § 1-201[20] [" ‘[h]older’ means a person who is in possession of a document of title or an instrument or an investment certificated security drawn, issued or indorsed to him or to his order or to bearer or in blank"])."
- Considering that the State was fully aware of evidence that DEFENDANT was ready, willing, and able to produce in her "Affirmative Defenses" that in the first instance NO NOTE existed between the TRUST, the owner of the Center Harbor real property, and BankEast. Therefore NO NOTE could have been taken as an FDIC asset, and subsequently allegedly assigned however many times it may have been. The facts are very clear. None of the "Claiming Parties" had "Standing to make any claims against ‘assets of interest’ of BAM, Senter, or TRUST. A full and fair hearing on the merits of the matter would have resolved the issue in favor of the DEFENDANT.
- And, further considering that the State was fully aware of its own laws, it knew that the BankEast naked mortgage alone would not be sufficient evidence to support Waukewan Holdings Affidavit that it was a 'bone fide purchaser' of the real property in Center Harbor. In fact, the State knew that in a full and fair hearing Waukewan Holdings would be found not to be a ‘bone fide purchaser’ of the Center Harbor real property.
Therefore, the State knew what the NYSC ultimately found in the above cited case, which is: "Under these circumstances, defendant Cumberbatch has presented a possible meritorious defense based upon lack of standing (see generally Bank of N.Y. v Silverberg, 86 AD3d 274 [2011]; U.S. Bank, N.A. v Adrian Collymore, 68 AD3d 752 [2009])."
It is now up to the Readers to determine whether the questions posed at the very beginning of this Installment, which the DEFENANT was prepared to present to the LDC would have been found to be " a possible meritorious (affirmative) defense based upon lack of standing" of SN Commercial to foreclose on the TRUST’S real property in Center Harbor, NH.
Key points to consider when making a "Standing" determination according to another recently decided case by Judge J. Michael Seabright, in Hawaii United States District Court in re: Deutsche Bank National Trust Company are:
- "Standing" is a plaintiff’s requirement."
- "That Plaintiff has no "Standing" to foreclose because it has not established that it was validly assigned the Mortgage and Note."
- "There is no evidence establishing that Plaintiff was validly assigned the mortgage and note on the subject property.
- The issue of whether Plaintiff was validly assigned the Mortgage and Note is inextricably intertwined with the merits of the Plaintiffs claims seeking to foreclose."
- "…that for a "Standing", a mortgagee must have "a sufficient interest in the Mortgage to have suffered an injury from [the mortgagor’s] default"."
The Reader should be aware that RTC/RFS partnership claimed in its court pleadings to have paid the FDIC $11.57 for the rights to collect upon $850,000. (and perhaps more if there was a kick back scheme with the parties that illegally foreclosed upon the High Birches Springs water rights) The $850,000 amount had been established sua sponte by Judge Kenneth McHugh. One has to wonder what the final agreed upon price was when the RFS/RTC partnership sold its alleged rights in the 1988 BankEast commercial line of credit to the next party in line? If Mr. Parisi’s Affidavit is to be believed, subsequent sales of the same asset were transacted another 6 or more times. Considering that the alleged loan was over due by more than a decade, what could be the net present value discount of $11.57 to all the successors?
Reality Check: Does any of the above pass the "I smell a rat" test?
Installment #9 will explore the issues that prompted the OIG of US DOJ to refer the DEFENDANT’s "Grievances" forward to US DOJ Criminal Division, the US Department of State, and the US Social Security Administration.
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