At an lAS Term, Part 29 of the Supreme
Court of the state of New York, held in· and
for the County of Kings, at the Courthouse,
at Civic Center, Brooklyn, New York, on
the 5th day of May, 2015.
Hon. Wayne P. Saitta, Justice.
DEUTSCHE BANK TRUST COMPANY AMERICAS AS
DOMINIC CODIO; JP MORGAN CHASE BANK, N.A.;
MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.,
AS NOMINEE FOR AEGIS FUNDING D/B/A AEGIS HOME
EQUITY; NEW YORK CITY ENVIRONMENTAL CONTROL
BROAD; NEW YORK CITY PARKING VIOLATION BUREAU;
NEW YORK CITY TRANSIT ADJUDICATION BUREAU;
JOHN DOE, (Said name being fictitious, it being the intention
of Plaintiff to designate any and all occupants of premises
being foreclosed herein, and any parties, corporations or
entities, if any, having or claiming an interest or lien upon
the mortgaged premises),
Plaintift DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, (hereinafter
“Plaintiff”), moves this Court for an Order pursuant to CPLR §3212 for Summary Judgment
against the Defendant and granting further relief as this Court deems just and proper.
Upon reading the Notice of Motion by Michel Lee, Esq., Attorney for Plaintift DEUTSCHE
BANK TRUST COMPANY AMERICAS AS TRUSTEE, dated June 6th, 2013 together with the
Affirmation in Support of Plaintiff’s Motion for Summary Judgment and Reference of Michel
Lee, Esq., dated June 6th, 2013 and all exhibits annexed thereto; the Memorandum of Law in
Support of Plaintiff’s Motion for Summary Judgment and Reference of Michel Lee, Esq., dated
June 6th, 2013; the Affirmation of Michel Lee, Esq., dated June 6th, 2013; the Reply Affirmation
of Jason J. Oliveri, Esq., Attorney for Plaintiff, DEUTSCHE BANK TRUST COMPANY AMERICAS AS
TRUSTEE, dated June 6th, 2013 and all exhibits annexed thereto; the Attorney’s Affirmation in
Opposition to Plaintiff’s Motion for Summary Judgment and Reference of S. John Lenoir, Esq.,
Attorney for Defendant, DOMINIC CODIO, dated November 25th, 2013, together with the
Defendant’s, DOMINIC CODIO, affidavit in Opposition to Plaintiff’s Motion for Summary
Judgment and Reference, dated November 25th, 2013 and all exhibits annexed thereto; the
Memorandum of Law in Further Support of Plaintiff’s Motion for Summary Judgment by Jason J.
Oliveri, Esq., dated December 18th, 2013; and after argument of counsel and due deliberation
thereon, Plaintiff’s motion for Summary Judgment and an Order of Reference is denied for the
reasons set forth below.
Plaintiff moves for summary judgment, striking Defendant DOMINIC CODIO’s answer,
granting a default judgment against all other Defendants, amending the caption to substitute
“Deborah Thomas”, “Andre F Codio”, and “Alex Codio” for “John Doe”, and for Order
appointing a Referee to compute the amounts owing to Plaintiff.
Plaintiff brings this motion after the Second Department’s March 2, 2012 reversal of this
Court’s order of June 23, 2011, which granted dismissal of Plaintiff’s complaint based upon lack
of standing. The Second Department held that by producing an “allonge to note”, Plaintiff
made a sufficient showing to warrant denial of that branch of Defendant’s motion which had
sought dismissal based upon lack of standing.
Plaintiff brought this action to foreclose on a mortgage on the premises located at 631
East 32nd Street in Brooklyn, NY. The mortgage secured a note in the amount of $528,000.00,
executed by Defendant CODIO, in favor of AEGIS WHOLESALE CORPORATION.
Plaintiff states that on June 1, 2007, the note was “transferred” to Plaintiff and that the
mortgage was subsequently assigned to Plaintiff on March 16, 2010.
Defendant DOMINIC CODIO filed an answer containing a general denial, an affirmative
defense of lack of standing to sue, as well as asserting that Plaintiff failed to allege that it is the
legal owner and holder of the Note.
In response to this motion, Defendant CODIO submits an affidavit dated November 25,
2013, in which he states that on June 28, 2012, Plaintiff’s former counsel, Fincey Johns, Esq. of
Knuckles, Komosinski & Elliott, LLP, appeared at the office of his counsel and showed him and
his counsel an original promissory note with an allonge on a separate page following the note.
Johns provided Defendant and his counsel with copies of the promissory note and allonge he
presented that day.
Defendant states that the signature on the note shown to him by Johns on June 28,
2012, did not bear his signature.
Plaintiff argues that because the Defendant defaulted on his obligation under the
mortgage, it is entitled to summary judgment and an Order of Reference to calculate the
amounts owing to it. Plaintiff argues that it has been in possession of the note indorsed in its
favor and mortgage since the commencement of the underlying action. Plaintiff also argues
that because Defendant CODIO did not respond to a notice to admit the authenticity of the
note Plaintiff claims he signed, he is now precluded from challenging the signature on the note.
Defendant CODIO argues that Plaintiff’s motion must be denied as it has not eliminated
all questions of fact as to each element of its right to foreclose on the mortgage. Defendant
argues that the affidavit of merit of Stephen Maxwell submitted by Plaintiff in support of its
motion fails to establish that Plaintiff has the legal right to bring the underlying action against
Defendant. Defendant also argues that issues contained in Plaintiff’s purported notice to
admit, which include the underlying elements of Plaintiff’s alleged claims, were issues in
dispute and therefore inappropriate for a notice to admit. Defendant’s counsel further argues
that he never received the notice to admit and therefore it should be deemed a nullity.
Where, as in this case, a plaintiffs standing to commence a foreclosure action is placed
in issue by the defendant in his answer, it is the plaintiff’s burden to prove that it has standing
to be entitled to relief. Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 995 N.Y.S.2d 118, 118-
19 (2nd Dept 2014). In order to prove standing, Plaintiff must demonstrate that it was assigned
the note or was in possession of the note prior to the commencement of the action on March
Plaintiff is incorrect in its assertion that the order of the Appellate Division, which
reversed dismissal of this action, precludes Defendant’s challenge to Plaintiff’s standing. The
Appellate Division did not hold that Plaintiff established that it was the transferee prior to the
commencement of the action, but only that it made a sufficient showing to warrant denial of
Defendant’s motion to dismiss for lack of standing. To be entitled to summary judgment in the
face of Defendant’s affirmative defense of lack of standing, Plaintiff must eliminate all
questions of fact as to its standing.
Assignment of the Mortgage
Plaintiff submits an assignment of mortgage, dated March 16, 2010, in which the
Defendant’s mortgage was assigned by MERS, as nominee for Aegis Wholesale Corporation, to
the Plaintiff. The assignment on its face purports to assign the mortgage only and not the note.
“[T]he mere assignment of the mortgage without an effective assignment of the underlying
note is a nullity .. “. U.S. Bank, N.A. v. Adrian Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578,
580 (2nd Dept 2009).
Plaintiff also fails to offer any proof of authority of MERS to assign the mortgage on behalf
of Aegis Wholesale Corporation. The mortgage did not authorize MERS to assign the mortgage
or note. In the section entitled (/Borrower’s Transfer to Lender of Rights in the Property”, the
mortgage only gave MERS right as a nominee, and it did not give MERS the right to assign the
underlying mortgage, or the note. Plaintiff has submitted no evidence of MERS’ authority to
assign the mortgage or note. Bank of New York v. Silverberg, 86 A.D.3d 274, 281, 926 N.Y.S.2d
532, 538 (2nd Dept 2011).
A more serious problem with the assignment is that it is inconsistent with the allonge.
The assignment purports to be from MERS as nominee of Aegis Wholesale Corporation to
Plaintiffs. However, the purported allonge contains special endorsements from Aegis
Wholesale Corporation to Aegis Mortgage Corporation; then from Aegis Mortgage Corporation
to Residential Funding Company, LLC; and then from Residential Funding LLC to Plaintiff
DEUTSCHE BANK TRUST COMPANY, LLC.
Aegis Wholesale Corporation could not both negotiate the note to Aegis Mortgage
Corporation and assign the note to Deutsche Bank. Similarly the note could not be both
negotiated by Residential Funding Co., LLC to Deutsche Bank and assigned by Aegis Wholesale
Corporation to Deutsche Bank.
Negotiation of the Note
In addition to the purported assignments, Plaintiff also claims that the note was indorsed
and negotiated to it prior to the commencement of the action.
Plaintiff relies on the affidavit of Stephen Maxwell, Senior Litigation Analyst of Ocwen Loan
Servicing, LLC, the servicer of the Plaintiff, to establish that Plaintiff was in possession of the
note at the time the action was commenced.
Maxwell states that on or about June 1, 2007, the loan was transferred to Plaintiff as
trustee for Residential Funding Company, LLC and appends a copy of portions of a Pooling-and
Servicing Agreement dated June 1, 2007.
However, Maxwell does not state in his affidavit when the original note was physically
delivered to Plaintiff. The Pooling and Servicing Agreement is not evidence of the date of
physical delivery of the note.
Where an affidavit, in this case of the Plaintiff’s servicing agent, fails to give any factual
details as to the physical delivery of the note, it fails to establish that the Plaintiff had physical
possession of the note prior to commencement of the action. US Bank Nat. Ass’n v. Weinman,
123 A.D.3d 1108, 2 NYS3d 128 (2nd Dept 2014).
Furthermore, in examining the records appended to Plaintiff’s papers, there are two
different versions of the note annexed, one annexed as 11Exhibit A”, which includes a purported
allonge, and one annexed as part of 11Exhibit B”, which does not.
Defendant, in his affidavit, states that the signature on the note annexed as 11Exhibit A”
is not his, while the signature on the note annexed as 11Exhibit B”, which does not have an
allgone, bears his signature. Neither signature is acknowledged.
Defendant further attests that prior counsel for Plaintiff, Fincey John, Esq. of Knuckles,
Komosinski & Elliott, LLP, came to Defendant’s attorney’s office on June 28, 2012 and showed
them an original note, with an allonge, which corresponds to the version of the note annexed
as “Exhibit A”. Defendant states the signature, which appears on the note shown to them by
Plaintiff’s attorney, is not his.
In addition, Defendant submits a report of a Roger Rubin, a “Question Document
Examiner”, together with an affidavit of Rubin swearing to the truth of the contents of his
report. Rubin states that he examined handwriting exemplars provided to him by Defendant
and a copy of the note filed with the City Register, which Defendant admits bears his signature.
Rubin concluded, based on the exemplars and the note filed with the City Register, that the
signature on the note which was shown to Defendant by Plaintiff’s prior counsel, (which
corresponds to the version annexed as 11 Exhibit A”), is not CODIO’s signature.
Plaintiff produced an original note in court which had an allonge attached to it and
corresponded to the version annexed as “Exhibit A”.
The allonge contained the three endorsements, two purportedly signed by Lynn Harris as
secretary of Aegis Wholesale Corporation and Aegis Mortgage Corporation, respectively. The
Court observed that the two signatures on the allonge by Lynn Harris are clearly different
signatures. The Court gave Plaintiff the opportunity to produce Lynn Harris to attest to the
authenticity of her signatures. Counsel for Plaintiff stated he attempted to locate Harris but
was unable to do so.
Defendant’s denial of the signature on the note with the allonge, and report of Rubin
are sufficient to raise a question of fact as to whether Defendant signed the note to which the
allonge was attached.
Plaintiff argues that because Defendant failed to respond to a notice to admit dated
April 3, 2013, he is deemed to have admitted the genuineness of the copy of the note annexed
to the notice to admit. The copy of the note attached to the notice to admit included the
Defendant’s counsel states in his affirmation that the notice to admit was never
received at his office. Plaintiff has submitted no affidavit of service or other proof that the
notice to admit was in fact served.
Further, it is not proper to use a notice to admit as to facts that are in contention. In his
answer, CODIO challenged the Plaintiff’s claim to have been assigned the note, and submitted a
copy of what he alleged to be the note he signed, which did not contain an allonge. Thus,
whether the note he signed was the version to which the allonge was attached was put in
dispute long before Plaintiff sent the notice to admit.
Also, the copy of the note sent with the notice to admit contains a certification by Aegis
Mortgage Corporation that it is a true and accurate copy. This copy contained the purported
allonge bearing an endorsement of the note from Residential Funding Company, LLC to Plaintiff.
As Aegis Mortgage Corporation endorsed the note to Residential Funding Company, LLC,
the endorsement by Residential Funding to Plaintiff necessarily occurred after the note was out
of Aegis’ possession, and in the possession of Residential Funding Company, LLC. At the time
Aegis certified the copy of the note, there would not have been an endorsement by Residential
· on the purported allonge.
This raises a question as to whether the “certified” copy of the note annexed to the
notice to admit was genuine, or whether the allonge was added to that copy of the note after it
had been certified by Aegis.
By reason of the foregoing, Defendant cannot be precluded on the basis of the notice to
admit from challenging whether the signature on the note that has the allonge attached, is his.
Defendant has raised a question of fact as to whether the note with the allonge bears his
signature .. Further, the different signatures of Lynn Harris and the discrepancies between the
allonge and the assignment raise questions about the genuineness of the allonge, precluding
Plaintiff annexed affidavits of service on the remaining Defendants, who have failed to
appear in this matter, and seeks to amend the caption to name DEBORAH THOMAS, ANDRE
CODIO and ALEX CODIO as Defendants. However, Plaintiff had not provided an affidavit of
merit as to its complaint against the JOHN DOEs or even alleged whether the JOHN DOEs have a
claim against the property, or what the claim is. At this point default judgment against the
JOHN DOEs is not warranted.
WHEREFORE, Plaintiff’s motion seeking summary judgment against DOMINIC CODIO, to
amend the caption and for a default judgment against Deborah Thomas, Andre Codio and Alex
Codio is denied.
This shall constitute the decision and order of this Court.
HON. WAYNE P. SAI1TA
J s c J.S.C.