On Monday April 14, 2014 in the New York State Supreme Court in the County of Queens the motion brought on by an Order to Show Cause will be marked ‘fully submitted’. The underlying action in this case was “fraught with irregularities” said Brian McCaffrey attorney for Rosemary Fernandez, a homeowner who has tried for years to obtain a loan modification from what she calls the big bank.
In papers submitted to the Court Mr. McCaffrey highlighted the fact that the Plaintiff US Bank through Wells Fargo and Carrington Mortgage had submitted two different copies of the note as evidence. McCaffrey wrote: ‘These facts coupled with the dubious affidavits of the process server who is the subject of numerous disciplinary actions resulting from violations of the law governing process servers brings back memories of by gone era where foreclosure Plaintiff’s ran roughshod over our legal system and played fast and loose with family homes by participating in foreclosure abuses highlighted by the public embarrassment that was Steven J. Baum.’
The case, U.S. Bank v Rosemary Fernandez was commenced in July of 2008, at a time when robo-signing, false affidavits and fraudulent documents were the norm in our judicial foreclosure system. Unbeknownst to Fernandez the Plaintiff had moved through this case unabated until she learned of the action by being contacted by a real estate agent who told her that her home was going to be sold at auction.
As a result of that notification, Fernandez proceeded along a path of serial pro-se bankruptcy filings to ward off the sales. These filings were ill advised and worked to Fernandez’s detriment. After filing her last bankruptcy Fernandez contacted McCaffrey who attempted to assist her in the bankruptcy matter unsuccessfully. McCaffrey explained that ‘She had too many prior cases and that prejudiced her case’. After the bankruptcy Court ruled against her it appeared that Fernandez had lost her home, however a few weeks later Fernandez received another Notice of Sale from the Court and as a result there was a slight crack in the door.
Having reviewed the State Court file it became apparent to McCaffrey that Fernandez had never been served with the foreclosure papers and as a result had never appeared in the foreclosure case. The order to show cause drafted by McCaffrey points out the foreclosure abuses and inconsistencies in the case put on by U.S. Bank and the apparent lack of credibility of the process server who submitted affidavits of service describing someone that Fernandez has never known.
McCaffrey closed his arguments to the Court by writing: ‘Before the Court today is one of those cases that but for the Grace of God would have slipped through the proverbial cracks in our judicial system resulting in yet another wrongful foreclosure.’
The Judge in this case is the Honorable Janice A. Taylor, she signed the Order to Show Cause on March 28, 2014 ordering the parties to complete their document submissions by April 14, 2014. Judge Taylor is expected to issued a ruling within 60 days of the final submissions.