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U.S. Bank Natl. Assoc. v Murillo | NYSC Judge Winslow Vacates Judgment “Sewer Service, No Process Records = Null & Void Service”

U.S. Bank Natl. Assoc. v Murillo | NYSC Judge Winslow Vacates Judgment “Sewer Service, No Process Records = Null & Void Service”


SUPREME COURT – STATE OF NEW YORK

U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE THE STRUCTURED ASSET INVESTMENT
LOAN 2005-10,
Plaintiff,

-against-

SOLEDAD MURILLO, LUIS DUQUE, BANK
UNITED, FSB,
Defendants.

EXCERPTS:

The process server, Gary Cardi, testified that he was a six-year “self employed”
former Police Officer, and that he received service assignments from A&J Process
Service, which was located on the same floor, at the same address, as the local business
office of plaintiff’s counsel , Steven J. Baum, PC. Mr. Cardi stated that on April 5, 2008
at approximately 11 :30 a. , he served the Summons and Complaint upon Soledad Murilo
personally pursuant to CPLR 308(1) and upon the co-mortgagor Luis Duque by
substituted service pursuant to CPLR 308(2). According to Mr. Cardi, service was made
at defendants ‘ home, 934 Southern Drive , Franklin Square, New York, with additional
mailings to the same address.

[…]

In response, Mr. Spinell argued, essentially, that the failure to keep or produce
records is of no consequence. “Since Nassau County, as I am aware of, does not require a
process server to be licensed, the process server cannot be mandated or penalized for
failng to maintain records required of licensed process servers. As a matter of law, failure
to keep records shall not automatically void purported service and this can be found in the
Appellate Division case Feierstein versus Mullan under 120 Misc2d 574, 467 NYS2d 478
Appellate Term 1983.

Mr. Spinell is wrong. Article 8 and Article 8-A of the General Business Law
govern the duties of process servers. GBL Artcle 8 applies to all process servers (who
meet the statutory definition), and GBL Article 8-A (not applicable here) applies to all
process servers in eities having a population of one milion or more. Under GBL Article
, a process server is defined as a person, other than an attorney or a par to an action
acting on his own behalf, who (a) derives income from the service of papers in an action;
(b) has effected service in five or more actions or proceedings in the twelve month
period immediately preceding the service in question. GBL ~89-t. The definition does not
distinguish between licensed or unlicensed process servers. Thus, even if Nassau County
does not presently require a process server to be licensed, all process servers are subject to
the State s record keeping mandate, and may be penalized for non-compliance. GBL ~
89-u requires each process server to maintain a legible record of all service made by him
as prescribed by that section, and specifies the information required in the log. Compliance
with GBL ~89-u is subject to enforcement by the attorney general, and civil penalties may
be imposed. GBL 89-v. (The licensing requirement, imposed upon process servers by
local ordinance, mayor may not coincide with the more stringent statutory requirements
applicable to process servers in cities having a population of one milion or more. See
GBL Article 8-A; GBL 89-cc.

Mr. Spinellj’ s legal argument – that the failure to maintain records does not void
purported service — is invalid. The case cited by Mr. Spinell, a 1983 decision of the
Supreme Court, Appellate Term, First Deparment, is neither controllng nor relevant.
That case held that non-compliance with the licensing provisions of the New York City
Administrative Code was not grounds for dismissal.

See Feierstein v. Mullan, 120
Misc.2d 574. The Feierstein case did not deal with the record-keeping requirements of
GBL Article 8 or Article 8-A. Mr. Spinell has not cited, and the Court’ s own research
has not revealed, any authority for the proposition proffered by Mr. Spinell, nor any
controllng authority on the issue at bar.

This Court holds – seemingly for the first time – that the failure, at a traverse
hearing, to produc( records kept in accordance with the requirements of GBL 89-u may
result in dismissal of the action. The Court adopts the reasoning articulated by its
companion court in First Commercial Bank of Memphis v. Ndiaye, 189 Misc.2d 523
(Sup. Ct., Queens Co., 2001). See also Inter-Ocean Realty Assoc. v. JSA Realty Corp.,
152 Misc.2d 901 (Civ. Ct., NY County, 1991). In First Commercial Bank, a foreclosure
action, the licensed process server produced a computer-generated log book at a traverse
hearing. The Court found that this method of record-keeping failed to comply with the
precise requirements of GBL 89-cc and local regulations applicable to licensed process
servers in New York City. The Court noted that the purpose of these record-keeping
requirements was ‘C combat the continuing problem of process serving abuse, known as
sewer service,” and to ensure the reliabilty of the records presented in support of
jurisdiction. Accordingly, the Court held that the testimony of the process server who
failed to keep records in accordance with the statutory requirements could not be credited.
This failure to keep appropriate records was considered a failure to comply with the rules
of the court regarding the production of records at a traverse hearing.
See 22 NYCRR ~20S.29. The Court held that, absent a showing of good cause for non-compliance, the
underlying cause of action should be dismissed for lack of jurisdiction.

[…]

ORDERED, that the application of defendant Soledad Murilo, to vacate the
Judgment in this action pursuant to CPLR 5015(a) (4) is granted. The court determines
that the purported service upon defendants is null and void, and the matter is dismissed for
lack of jurisdiction. This constitutes the Order of the Court.

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Judges See Little Improvement in Foreclosure Procedures, But Where’s The Note?

Judges See Little Improvement in Foreclosure Procedures, But Where’s The Note?


Wall Street Journal-

F. Dana Winslow, a N.Y. State Supreme Court Justice in Long Island’s Nassau County, said there has been only “a marginal improvement in what is being submitted to the court.”

For example, financial institutions are “showing a better chain of title” about who owns the debt, he said. “But I’m not seeing any additional clarity on who has control over the actual mortgage note signed by the borrower and lender and where the note is.”

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[NYSC] Judge F. Dana Winslow Grants Vacatur of Default Judgment Due To “NAIL & MAIL” (Process Service) WELLS FARGO v. DALRYMPLE

[NYSC] Judge F. Dana Winslow Grants Vacatur of Default Judgment Due To “NAIL & MAIL” (Process Service) WELLS FARGO v. DALRYMPLE


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.

Continue below…

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F. DANA WINSLOW NYS SUPREME COURT JUSTICE “Foreclosed Justice: Causes and Effects of the Foreclosure Crisis

F. DANA WINSLOW NYS SUPREME COURT JUSTICE “Foreclosed Justice: Causes and Effects of the Foreclosure Crisis


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.

Continue Below…

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NYSC FINDS BNY FAILED TO SUBMIT ADMISSIBLE EVIDENCE: Bank of New York v. Elserafy 2010

NYSC FINDS BNY FAILED TO SUBMIT ADMISSIBLE EVIDENCE: Bank of New York v. Elserafy 2010


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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