Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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The following six orders by Judge Jack M. BATTAGLIA, of Kings, should be of interest:

Deutsche Bank v COLEY, Justice Jack M. BATTAGLIA, Kings, Index No. 05220/2007 (26 Mar 2008)
In Deutsche Bank v COLEY, Justice BATTAGLIA denies an unopposed application for a default and an order of reference based upon several defects in the plaintiff's pleadings and application.  In this decision, Justice BATTAGLIA notes that he had previously denied an order of reference in this same case on 05 Sep 2007.  Justice BATTAGLIA first points out that the affidavit of reference is by a person who is neither an officer nor an employee of the plaintiff and he points out that this person is NOT shown to have personal knowledge of the matters upon which the affiant testifies.  He points out "The Limited Power of Attorney cannot confer testimonial competence."  He notes that the adjustable rate note is not acknowledged or authenticated.  (Nationally, most promissory notes are NOT authenticated, while mortgages ARE, but I believe that the promissory note may be also recorded in NY.)  Justice BATTAGLIA also points to a failure to PROVE that the borrower was given the required notice of default required within the promissory note and mortgage (conditions precedent).  He states that the affidavit of a person unrelated to the demand (and located in another state) is inadequate proof of such notice.  Justice BATTAGLIA therefore denied the application with leave to renew.  Justice BATTAGLIA's opinions are useful reads as he seems to find some defects not yet noted or identified by fellow jurists on the Kings County Bench!
 
Deutsche Bank v COWAN, Justice Jack M. BATTAGLIA, Kings, Index No. 29356/2006 (25 Mar 2008)
In Deutsche Bank v COWAN, Justice BATTAGLIA denies an unopposed application for a default and an order of reference based upon several defects in the plaintiff's pleadings and application.  Justice BATTAGLIA notes that an order of reference was previously denied by his order dated April 13, 2007, and that the identified defects have NOT been since cured.  It is noteworthy that this rather clearly shows that Judge BATTAGLIA must have been a pioneer in requiring plaintiffs to meet their affirmative prima facia burden of proof and in sua sponte denial of foreclosure when the plaintiff's pleadings are defective!  The actual order contains essentially the same elements as to identified defects shown in the Deutsche Bank v COLEY case (rendered the following day), though the order of these defects is different.  Justice BATTAGLIA therefore denied the application with leave to renew.  Note that this is a two year old case and the plaintiff cannot seem to get together the required PROOF!
 
Deutsche Bank v MAROLLA, Justice Jack M. BATTAGLIA, Kings, Index No. 04970/2007 (25 Mar 2008)
In Deutsche Bank v MAROLLAa case decided the same date as COWAN above Justice BATTAGLIA denies an unopposed application for a default and an order of reference based upon several defects in the plaintiff's pleadings and application.  Justice BATTAGLIA notes that an order of reference was previously denied by his order dated August 23, 2007, and that the identified defects have NOT been since cured. (Apparently, the plaintiff figured that if they just WAITED a while that Judge BATTAGLIA would FORGET that he had demanded certain PROOF.)  Two of the three defects identified in COWAN and COLEY above -- unacknowledged promissory note and failure to prove notice of default -- are also present in this case.  Justice BATTAGLIA therefore denied the application with leave to renew.
 
Deutsche Bank v STEWART, Justice Jack M. BATTAGLIA, Kings, Index No. 18415/2007 (25 Mar 2008)
In Deutsche Bank v STEWARTa case decided the same date as COWAN and MAROLLA above, Justice BATTAGLIA denies an unopposed application for a default and an order of reference based upon several defects in the plaintiff's pleadings and application.  This case though identifies somewhat different reasons for denial of the order of reference and therefore merits a read.  Justice BATTAGLIA notes that an order of reference was previously denied by his order dated October 23, 2007, and that the identified defects have NOT been since cured.  Justice BATTAGLIA notes that while the plaintiff's affidavit of amount due was executed by an officer of the plaintiff that the plaintiff is NOT shown to have obtained its interest in the note and mortgage until May 23, 2007.  Justice BATTAGLIA notes a failure to show that the affiant had personal knowledge of the matters asserted and in particular to be qualified to testify about the books and records of the prior holder Justice BATTAGLIA cites LODATO v Greyhawk North America, LLC, 39 A.D.3d  494, 495 [2nd Dept 2007] in support of this common sense holding.  (Folks should note that this is a COMMON DEFECT in a plaintiff's case... the affidavit asserts knowledge of the alleged mortgage accounting from BEFORE the date that the plaintiff is asserted to have obtained its interest in the mortgage!)  Next Justice BATTAGLIA notes that there is no proof as to the mailing of the notice of default.  Finally, Justice BATTAGLIA notes that a non-military affidavit is also missing from the pleadings.  Justice BATTAGLIA therefore denied the application with leave to renew.
 
Fremont Invesment and Loan v ABADAN, Justice Jack M. BATTAGLIA, Kings, Index No. 36478/2006 (14 Feb 2008)
In Fremont Invesment and Loan v ABADAN, Justice BATTAGLIA denies an unopposed application for a default and an order of reference based upon several defects in the plaintiff's pleadings and application.  Justice BATTAGLIA notes that an order of reference was previously denied by his order dated May 31, 2007 (Note: this was WELL BEFORE the BOYKO ruling), and that the identified defects has NOT been since cured. Justice BATTAGLIA otes that the affidavit of service of the summons and complaint was executed and notarized in Georgia, but was NOT accomonied by a certificate of conformity.  (There is no indication whether the defendant is acually IN Georgia or whether this is just another perjured affidavit by someone clearly LACKING personal knowledge.)  Next Justice BATTAGLIA notes that the promissory note lacks an authentication and he states that this lack of acknowledgement renders it inadmissible as evidence.  Justice BATTAGLIA notes the absence of any evidence of service of the contracutally required notice of default (conditions precident), citing appellate case authority.  .Finally, he notes the absence of a valid non-military affidavit.  Justice BATTAGLIA therefore denied the application with leave to renew.
 
US Bank NA v PIERRE, Justice Jack M. BATTAGLIA, Kings, Index No. 34878/2006 (25 Mar 2008)
In US Bank NA v PIERRE, Justice BATTAGLIA denies an unopposed application for a default and an order of reference based upon several defects in the plaintiff's pleadings and application.  This is the fourth case decided by Judge BATTAGLIA on March 25, 2006, with one additional case (Deutsche Bank v COLEY) decided the immediate following day.  In this decision, Justice BATTAGLIA notes that he had previously denied an order of reference in this same case on 24 Jul 2007.  Otherwise, the language of this decision is substantially identical to the COLEY decision (above) handed down the following day and is pretty much the same as COWAN except as to sequence of identified defects.   
 
Judge Jack M. BATTAGLIA is a Justice of the Supreme Court of New York for Kings County (Brooklyn).  [See http://www.nycourtsystem.com/Applications/JudicialDirectory/Bio.php?ID=7029782 ]
 
Overall, these decisions by Justice BATTAGLIA distinguish him as a pioneer in sua sponte examination of plaintiff's foreclosure filings.  His orders are short, easy reads, but include good reference as to other authority in support of his decisions.
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