DEUTSCHE BANK TRUST CO. AMERICAS v. PICON | NYSC Vacates JDGMT "ASMT Mortgage from MERS to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff"

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DEUTSCHE BANK TRUST CO. AMERICAS v. PICON | NYSC Vacates JDGMT “ASMT Mortgage from MERS to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff”

DEUTSCHE BANK TRUST CO. AMERICAS v. PICON | NYSC Vacates JDGMT “ASMT Mortgage from MERS to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff”

[PDF].DEUTSCHE v PICON w RePOST since the content was possibly hacked

2011 NY Slip Op 31747(U)

DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, 9350 Waxie Way San Diego, CA 92123 Plaintiff,

v.

DANILO PICON, MAGALYS T. PICON, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST NATIONAL BANK OF ARIZONA, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE,
JOHN DANIELS, YVETTE “DOE” Defendants.

No. 1070/08, Motion Seq. No. 4.

Supreme Court, Queens County.

June 22, 2011.

BERNICE D. SIEGAL, Judge.

EXCERPT:

Once the issue of standing is raised by the Defendant, the burden is placed on the Plaintiff to prove, as in the instant matter, that it owns the Note underlying the action and the validity of any associated assignment (TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2d Dep’t 2006]). A demonstration by the Plaintiff that it owns the Mortgage, without a showing that it also owns the Note is a nullity and any action for foreclosure based on the ownership of the mortgage alone must fail (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]). This result is mandated because the mortgage is “but an incident to the debt which it is intended to secure,” and without more, it provides the holder with no actionable interest on which to commence a foreclosure action (Merritt v Bartholick, 36 NY 44, 45 [1867].

While a written assignment or physical transfer of the Note is sufficient to result in an implicit transfer of an associated Mortgage, an assignment of the Mortgage, without an explicit assignment of the Note, will not result in an assignment of that Note (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2d Dept 2009]).

In the case before us, Plaintiff only proffers evidence that the mortgage was transferred to the Plaintiff (through MERS, as nominee for Firs National Bank of Arizona [“Arizona”]) via an Assignment of Mortgage dated January 7, 2008. It does not, critically, provide evidence that the Note itself was transferred to the Plaintiff.

The only documents the Plaintiff submits in connection with the issue of the ownership and assignment of the Note are a copy of the original Adjustable Rate Note Agreement between Arizona and the Defendant dated March 8, 2006, and a copy of an undated allonge between Arizona and the First National Bank of Nevada [“Nevada”], seemingly transferring Arizona’s interest in the Note to Nevada. Although not dated, it is only logical for the court to assume that the allonge was executed prior to any purported assignment of the Note to the Plaintiff. If we were to assume otherwise, it would imply that Arizona was assigning to Nevada a Note that it did not own (since such Note had already been purportedly assigned to the Plaintiff).

Critically, Plaintiff does not provide documents demonstrating that the Note itself was assigned to Plaintiff, such as from MERS (as nominee for Arizona), from Arizona itself, or from a third-party such as Nevada.

The only interpretation the court can adduce from such evidence is that although it is possible that Nevada may own both the Mortgage and the Note since a valid transfer of a Note (in this case through the undated allonge), effectively transfers an associated Mortgage, the assignment of the Mortgage from MERS (as nominee for Arizona) to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff.

Since the allonge indicates that the Note is the property of Nevada and not Arizona, Arizona was never in a position to assign the Note to Plaintiff. Therefore, even if Plaintiff holds the Mortgage, without evidence that it also owns the Note, it lacks standing to pursue the foreclosure action at bar. Consequently, Plaintiff’s acquisition of the Mortgage without the underlying Note is insufficient to sustain a foreclosure action and Defendant’s motion to dismiss based on the Plaintiff’s lack of standing is granted.

[…]

The other issues raised in Defendant’s Order to Show Cause including the 1) motion to dismiss due to a failure to state a cause of action under CPLR 3211, and 2) a motion to vacate the default judgment and allow an answer under CPLR 317 are deemed moot as they are subsumed or deemed irrelevant in light of this court’s decision above. Based on the forgoing, it is

ORDERED that Defendant’s motion to vacate the default judgment and dismiss the action is granted; it is further

ORDERED that Defendant’s motion to have the case dismissed with prejudice due to fraud is denied.

The foregoing constitutes the decision and order of the court.

[…]

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4 Responses to “DEUTSCHE BANK TRUST CO. AMERICAS v. PICON | NYSC Vacates JDGMT “ASMT Mortgage from MERS to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff””

  1. Judith Pope says:

    Have applied for a loan modification thru bank Of America .. was told Deutsch bank was the investor for my mortgage and they don’t want to be bothered with loan mods whether due to health or not . told this by modif officer for BAC. These people have the power to take my home after 2 yrs of negotiations with this company. How sad–cancer-bone disease-perm disability. Now the loss of my beloved home. It is what it is.

  2. mark says:

    Picon vs Deutsche bank. This case was won by my brother the law office of Keith Scott Lederman. He has a significant win rate against these banks trying to foreclose on people improperly. Now the banks have met their match. He is the Zipper man.

    mark

  3. debra e slater says:

    hello mark,i was also just illegally foreclosed on by wells fargo with a.s.c. as my servicer i applied for a hamp loan on jan 6th 2011 to modify for more affordable paymts. i sent all required documents and my hardship affidavit that my husband also on the title had moved out and we divorced and that my daughter destiny had a stroke and was now epileptic,cortically blind and with many learning disabilities.except wait they also started a foreclosure proceeding against me running concurrent with my modification. they drew out the process for 12 months and i had upwards of 5 different home preservation specialists and they postponed a foreclosure sale 7 times to allow a.s.c. to process my modification so i could afford to keep my primary and only residence a beautiful custom built log home on 5 acres in snohomish ,washington 98290 i purchased with proceeds $302,000 from selling my prior primary residence to developers ,i put $224,000 down and purchase price was $617,500 it over appraised at $651,000 in 2006. i also spent over $100,000 in remodeling loghome and another 6000 sq ft building on same property.it is not a property you can get again with any amount of $ damages after it is taken by deutche bank national trust comany as trustee for sound view home loan trust 2006-3 .so anyway i am still residing with my three minor children in my home although i was illegally foreclosed on mid- modification as on jan 7th of 2012 they gave me a brand new home preservation specialist from a.s.c.on jan 20th 2012 they supposedley sold my home at auction and have commenced an order to show cause an evictions proceedings and unlawful detainer as deutche bank wanted possession of my property the court commissioner issued a writ of restitution for deutsche bank after a less than 5 min order to show cause hearing which i want to contest although plaintiffs attorneys after service routh crabtreee olsen all withdrew as counsil for the plaintiff and substituted lane powell as attorneys .i just met with an attorney and qualified for justice legalaid but they said they had limited resources and would not help represent me post-foreclosure as to qualify based on her couculations i would have to prove $4,500 a month in income to qualify for a hamp modification even if they managed to recind the foreclosure in order to lower my payments she said from my huge $3,254 a month ive been paying to $1,400 a month completely affordable to me only i was never even after all that time denied for a hamp loan (except them trying to say it wasnt my primary residence and they had my $10 a month p.o. box as apt.#22 and i clarified that by managers of post office faxing my $10 a month mailbox only.) but they knew from first 3 bank statements as verification of income that i made $3,200 a month including my disabled childs s.s.i. of $689 a month .anyways without someone filing something in my case the attorney can take his writ of restitution to snohomish county sherrifs and evict me and my 3 children enolled in elem school and special education classes and i fear if i dont do something immidiately in my case i will have to pack all our stuff and we have no new place to go. i want to fight back the same way against deutuche bank a huge conglomerant who bought my home in a distressed auction with no warranty as to title or condition and were promised nothing i feel i was in modification hell with many many sleepless nights worrying that modification would never happen and trustee sale would beat them to the punch using me as the bag. i want to challenge based on dismall failure on wells fargo and a.s.c. s part to basically throw my file behind someones desk and it sat there gathering dust and it then was passed off to someone else in some totally new dept. and resigning and redating and refaxing same documents over and over 60 pgs. sometimes i lose hope i will lose everything i have worked past 25 yrs straight with my own housecleaning business to build something good for my 5 children to see it be taken by some huge bank who wont be harmed in any way tho this will cause irrepairable injury to me and my family and finances i think $3,200 for 1 single mom is alot in this terrible economy and im proud of how hard ive worked to keep our home thru all of this barely being able to pay anything but the huge pymtson our mortgage not to mention my ruined credit. i ordered a complete title history on my home it was $385 from old republic title where my original title was filed it takes 3 business days and it called alein 360 which means everything i want to challenge deutche bank on illegal transfer of my title and super amazing yet im guessing by his offices hes spendy probably $260 an hr which i cant afford yet he told me if i pay for lein 360 title tolook for gaps and discrepencies in assignment or transferof filings for lost title affidavits etc which is how i want to proceed by someone helping me file it says after a trustee sale a borrower may maintain a cause of action for violation of the consumer protection act ,material defects in the foreclosure proceedure or fraud , but that i could only seek money damages which no matter how much wouldnt give me my beautiful home i invested all my life saving and sweat equity into for the past 6 years it says a judgement claim in my favor consistent with r.c.w 4.156190would beome ajudgement lein on the real property.im really praying that you will help me mark by forwarding my info to the attorney who won your brothers case im sure you know how incredibly terrible this is firsthand watching your brother struggle and almost lose his home but come out victorious in the end tho it wont get rid of those new premature gray hairs this has caused everyone involved as our housing crisis continued headline news i wish all effected would revolt and withdraw all $ from top worth my wells fargo/americas servicing company bank of america who i heard just halted all foreclosures until they could get there heads heads out of there asses before were all homeless except the rich what about all us taxpayers what will they do without us. thanks a million so appreciate hearing something good come out of this mess debra.ellen.f@gmail.com thanks

  4. debra e slater says:

    sorry i meant the worst offenders wells fargo,bank of america and chase bank who just lost their $24 combined monthly incentives from feds based of dismall failure to forclose instead of modify i read thru aggreements they entered to fannie mae that they would not reasign any mortgages who could be modified using the billions set aside for hamp to stabalize the housing market by obamas .now is almost too late unless they start returning homes stolen to their rightful owners.i also saw i was supposed to have been offered mediation and a face to face which i never was .i also want to challenge as to unlawful service for any jan 20th sale date.

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