SUPREME COURT – STATE OF NEW YORK
HON. F. DANA WINSLOW,
INDEX NO.: 010723/07
THE BANK OF NEW YORK AS TRUSTEE FOR NASSAU COUNTY
CERTIFICATE HOLDERS, CWABS, INC. ASSETBACKED
CERTIFICATES, SERIES 2006-10,
NAGI ELSERAFY; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., ACTING
SOLELY AS A NOMINEE FOR COUNTRYWIDE
HOME LOANS, INC.
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.
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
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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