WELLS FARGO BANK, NA

against

AINSLEY W. DALRYMPLE, ALEX SMITH;
TISHURA SMITH

excerpt:

There was no testimony whether the process server ever tried to check the mortgage document which must have included detailed personal information of DALRYMPLE. There was no evidence showing sincere communication between the plaintiff and the process server to find out the actual dwellng place of DALRYMPLE who testified that he made numerous notifications to the plaintiff about his residence since his default in the mortgage payment. The process server did not testify about any effort to find out DALRYMPLE’ s place of employment and to serve him there. The inquiry by the process server to Alex Smith at 96 Meadowbrook Road or to an unidentified neighbor of 184 Beverly Road is no more than a check of D ALR YMPLE’ s residence. The record in the DMV or Post Offce should be the beginning of the search for the whereabout of defendant but not the final answer to the inquiry of the address for the purpose of the nail and mail service. The Court determines that the due diligence requirement to serve under CPLR ~308 (1) or (2) is not satisfied.

The nail and mail service can be made by affixing the summons and complaint to the door of either “the actual place of business, dwellng place or usual place of abode” of the defendant. See CPLR ~308( 4). The process server testified that he affxed the summons and complaint at the premise of 184 Beverly Road and mailed the same to the last known address of DALRYMPLE. However, DALRYMPLE testified that he did not live there but lived at 96 Meadowbrook Road at the time of service. Plaintiff did not offer any evidence or testimony showing that DALRYMPLE actually lived at 184 Beverly Road at the time of service. The alleged statement by an unidentified neighbor of 184 Beverly Road is hearsay and lacks credibility without any information for identification. The reports from DMV or Post Office can be useful as the last known residence but not as the address of actual place of business, dwellng place or usual place of abode. The Cour determines that the purported nail and mail service on DALRYMPLE did not satisfy the statutory requirement under CPLR ~308( 4).

Accordingly, it is
ORDERED, that DALRYMPLE’ S motion to vacate the default judgment is granted.

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F. DANA WINSLOW
NYS SUPREME COURT JUSTICE
Before the House of Representatives
DECEMBER 2,2010
ON
CAUSES AND EFFECTS OF THE FORECLOSURE CRISIS
HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY
FORECLOSED JUSTICE:
CAUSES AND EFFECTS OF THE FORECLOSURE CRISIS
Hon. F. Dana Winslow
December 2, 2010

Excerpts:

3.2.4 Robo·signing. Questionable validity of signatures on assignments and affidavits
attesting to ownership of the Note and Mortgage. Examples:

3.2.4.1 Signed by: “Duly Authorized Officer,” “Authorized Signer,” “Attomey·in·
Fact” or “Authorized Agent.” What do these titles mean? What is the function
afthe person signing the documents, and what is the basis of their personal
knowledge?

3.2.4.2 Same person signs several documents, in several different capacities: e.g.,
“Vice President of [Assignor Mortgagee)” is also the “Assistant Secretary of
the Servicer” for the Plaintiff Mortgagee, and an employee of the law firm
bringing the foreclosure action.

3.2.5 Validity of notary stamps on assignments.

3.2.5.1 Assignment documents notarized several months after the assignment was
purportedly effected.

3.2.5.2 Notarized in blank – name of the person whose signature was purportedly
witnessed is omitted.

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SUPREME COURT – STATE OF NEW YORK
Present:
HON. F. DANA WINSLOW,
Justice
INDEX NO.: 010723/07

THE BANK OF NEW YORK AS TRUSTEE FOR NASSAU COUNTY
CERTIFICATE HOLDERS, CWABS, INC. ASSETBACKED
CERTIFICATES, SERIES 2006-10,

-against-

NAGI ELSERAFY; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., ACTING
SOLELY AS A NOMINEE FOR COUNTRYWIDE
HOME LOANS, INC.

Excerpts:

[…]

By assignment, dated December 14 2007, MERS as nominee for
COUNTRYWIDE, assigned its “right, title and interest” in the Mortgage, together with
the note or obligation described in said mortgage and the money to or to become due
. thereon” to plaintiff (the “Assignment”). The Assignment contains a clause which
provides that it is “effective as of February 2 2007.” ELSERAY argues that at the time
of commencement of this action, plaintiff was not the owner and holder of the Note and
Mortgage, and as such, had no standing to commence this action.

<SNIP>

In the case at bar, it is undisputed that the execution date of the Assignment
occurred after the commencement of this foreclosure action. The issue as to whether
plaintiff has standing hinges on whether the deemed effective date of the written
Assignment confers upon plaintiff an interest in the Note and Mortgage as of that date.
The execution date is generally controllng and a written assignment claiming an earlier
effective date is deficient unless it is accompanied by proof that the physical delivery of
the note and mortgage was, in fact, previously effectuated.” Wells Fargo Bank, N.A. v.
Marchione supra at 619 quoting LaSalle Bank Nat’ l Assn v. Ahearn, 59 AD3d 911 at
912.

The Court finds that plaintiff has failed to submit evidence in admissible form
demonstrating that plaintiff took physical possession of the Note and Mortgage prior to the
commencement of this action. The language set forth in the Assignment purporting to
render the Assignment effective prior to commencement of the action is insufficient to
confer standing upon plaintiff to commence this action. Moreover, the Complaint, verified
by plaintiff s counsel pursuant to CPLR ~3020( d)(3) and filed with the County Clerk
almost six months prior to the date of the Assignment, includes as paragraph 4, an
averment, not based on information and belief, that the “plaintiff is stil the owner and
holder of the note and mortgage” which statement, the Court finds, has no support in the
record. See Wells Fargo Bank, N.A. v. Marchione supra.

In light of the Court’ s determination that plaintiff has failed to demonstrate that it
had standing to commence this action, the Court need not reach ELSERAY’ s other
ground for vacatur, namely, lack of personal jurisdiction.

Based on the foregoing, it is

ORDERED, the motion by defendant NAGI ELSERAY to dismiss the complaint
pursuant to CPLR ~3211(a)(3) is granted.

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