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Onewest Bank v Cumberbatch | NYSC “failed to offer any evidence to demonstrate the establishment of a FDIC receivership in connection with IndyMac Bank, F.S.B.”

Onewest Bank v Cumberbatch | NYSC “failed to offer any evidence to demonstrate the establishment of a FDIC receivership in connection with IndyMac Bank, F.S.B.”


NEW YORK SUPREME COURT – QUEENS COUNTY

ONEWEST BANK, FSB as successor in
Interest to INDYMAC BANK, FSB
Plaintiff,

-against-

KATHLEEN CUMBERBATCH,
Defendant.

EXCERPT:

A plaintiff establishes that it has standing where it demonstrates that it is both the
holder or assignee of the subject mortgage and the holder or assignee of the underlying note
(see Bank of N.Y. v Silverberg, 86 AD3d 274 [2011]; U.S. Bank, N.A. v Collymore,
68 AD3d 752 [2011]).

The subject mortgage names IndyMac Bank, F.S.B. as the lender,3 and the note is
made payable to IndyMac Bank, F.S.B. and does not bear any endorsement. Plaintiff
OneWest alleged in its complaint, and when seeking the judgment, that it is the “holder” of
the subject mortgage and underlying note. It makes no claim that it is a holder of the subject
mortgage and note based upon the assignment4 offered by defendant Cumberbatch in support
of her motion. Rather, plaintiff OneWest asserts that IndyMac Bank, F.S.B. went into
receivership and the Federal Deposit Insurance Corporation (FDIC), as receiver, transferred
the assets of IndyMac Bank, F.S.B. to IndyMac Federal Bank, FSB on July 11, 2008.

Plaintiff OneWest also asserts that all assets of IndyMac Federal Bank, FSB, including the
subject note, thereafter were sold on March 19, 2009 to OneWest.

Plaintiff OneWest, however, has failed to offer any evidence to demonstrate the
establishment of a FDIC receivership in connection with IndyMac Bank, F.S.B., the note was
part of the assets of such FDIC receivership, or the FDIC, as receiver, transferred such assets
to IndyMac Federal Bank, FSB. Furthermore, the copy of the bill of sale presented by
plaintiff OneWest indicates that the FDIC, as receiver of IndyMac Federal Bank, FSB, sold
only those “Assets,” as defined in a “Servicing Business Asset Purchase Agreement” dated
March 19, 2009, to OneWest. Plaintiff OneWest has not presented evidence of the
establishment of an FDIC receivership in connection with IndyMac Federal Bank, FSB, or
a copy of the March 19, 2009 agreement (or relevant parts thereof), to show the subject note
was one of the assets sold to OneWest. Nor has plaintiff OneWest presented any evidence
that it was in physical possession of the note at the time of the commencement of the action
and the note was endorsed in its favor or in blank (see UCC § 1-201[20] [“ ‘[h]older’ means
a person who is in possession of a document of title or an instrument or an investment
certificated security drawn, issued or indorsed to him or to his order or to bearer or in
blank”]). Under these circumstances, defendant Cumberbatch has presented a possible
meritorious defense based upon lack of standing (see generally Bank of N.Y. v Silverberg,
86 AD3d 274 [2011]; U.S. Bank, N.A. v Adrian Collymore, 68 AD3d 752 [2009]).

[…]

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