* Brooklyn man saved from foreclosure
* Judge: Phone call with officer of defunct lender a fraud
By Jessica Dye and Jonathan Stempel
NEW YORK, Aug 15 (Reuters) - Shouting "Bah, humbug!," a New York judge threw out the planned foreclosure against a Brooklyn man based on an alleged fraudulent Christmas Eve phone call confirming the paperwork was in place to take his home away.
The judge, Arthur Schack, said US Bancorp's (USB.N) US Bank NA unit cannot foreclose on the Brooklyn home of Dario Trujillo, who faced foreclosure proceedings begun in July 2008 by Downey Savings and Loan. Downey failed four months later and was bought by Minneapolis-based US Bancorp.
Schack is a state Supreme Court justice in Brooklyn known for criticizing perceived abuses in mortgage servicing.
He was angered after lawyer Margaret Carucci said in a sworn affidavit that a Downey officer on Dec. 24, 2010 claimed to have personally reviewed and could vouch for the accuracy of the paperwork underlying Trujillo's foreclosure -- although Downey had long ceased to exist.
"Ms. Carucci affirmed under the penalties of perjury that she communicated on Christmas Eve 2010 with the officer of a defunct financial institution," Schack wrote. "This is a deceptive trick and fraud upon the court. It cannot be tolerated. This Christmas Eve conduct, in the words of Ebenezer Scrooge, is 'Bah, humbug!'"
Schack directed Carucci and her law firm at the time, Westbury, New York-based Druckman Law Group, to explain at a hearing on Sept. 12 why they should not be sanctioned.
Nicholas Perciballi, a lawyer for the Druckman firm, had no comment on the ruling. Carucci is no longer employed by the firm and efforts to reach her were unsuccessful. US Bancorp had no immediate comment. A lawyer for Trujillo could not immediately be located.
The sworn affirmation is a new requirement in all New York foreclosure cases, instituted last year to cut back on foreclosure fraud and abuse.
But during oral argument, Schack discovered the mortgage and note for Trujillo's property had been assigned to U.S. Bank NA, part of U.S. Bancorp.
Schack has previously come down hard on errors in residential foreclosure cases.
Last July, for example, he threw out a foreclosure action over improper documentation and threatened to sanction the head of HSBC Bank USA, part of HSBC Holdings Plc (HSBA.L), for "false statements" in a case against another Brooklyn homeowner.
The case is Downey Savings and Loan Association FA v. Trujillo et al, New York State Supreme Court, Kings County, No. 22260/2008. (Reporting by Jessica Dye and Jonathan Stempel; editing by Andre Grenon)
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