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DEUTSCHE BANK TRUST CO. AMERICAS v. PICON | NYSC Vacates JDGMT “ASMT Mortgage from MERS to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff”

DEUTSCHE BANK TRUST CO. AMERICAS v. PICON | NYSC Vacates JDGMT “ASMT Mortgage from MERS to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff”


[PDF].DEUTSCHE v PICON w RePOST since the content was possibly hacked

2011 NY Slip Op 31747(U)

DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, 9350 Waxie Way San Diego, CA 92123 Plaintiff,

v.

DANILO PICON, MAGALYS T. PICON, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST NATIONAL BANK OF ARIZONA, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE,
JOHN DANIELS, YVETTE “DOE” Defendants.

No. 1070/08, Motion Seq. No. 4.

Supreme Court, Queens County.

June 22, 2011.

BERNICE D. SIEGAL, Judge.

EXCERPT:

Once the issue of standing is raised by the Defendant, the burden is placed on the Plaintiff to prove, as in the instant matter, that it owns the Note underlying the action and the validity of any associated assignment (TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2d Dep’t 2006]). A demonstration by the Plaintiff that it owns the Mortgage, without a showing that it also owns the Note is a nullity and any action for foreclosure based on the ownership of the mortgage alone must fail (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]). This result is mandated because the mortgage is “but an incident to the debt which it is intended to secure,” and without more, it provides the holder with no actionable interest on which to commence a foreclosure action (Merritt v Bartholick, 36 NY 44, 45 [1867].

While a written assignment or physical transfer of the Note is sufficient to result in an implicit transfer of an associated Mortgage, an assignment of the Mortgage, without an explicit assignment of the Note, will not result in an assignment of that Note (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2d Dept 2009]).

In the case before us, Plaintiff only proffers evidence that the mortgage was transferred to the Plaintiff (through MERS, as nominee for Firs National Bank of Arizona [“Arizona”]) via an Assignment of Mortgage dated January 7, 2008. It does not, critically, provide evidence that the Note itself was transferred to the Plaintiff.

The only documents the Plaintiff submits in connection with the issue of the ownership and assignment of the Note are a copy of the original Adjustable Rate Note Agreement between Arizona and the Defendant dated March 8, 2006, and a copy of an undated allonge between Arizona and the First National Bank of Nevada [“Nevada”], seemingly transferring Arizona’s interest in the Note to Nevada. Although not dated, it is only logical for the court to assume that the allonge was executed prior to any purported assignment of the Note to the Plaintiff. If we were to assume otherwise, it would imply that Arizona was assigning to Nevada a Note that it did not own (since such Note had already been purportedly assigned to the Plaintiff).

Critically, Plaintiff does not provide documents demonstrating that the Note itself was assigned to Plaintiff, such as from MERS (as nominee for Arizona), from Arizona itself, or from a third-party such as Nevada.

The only interpretation the court can adduce from such evidence is that although it is possible that Nevada may own both the Mortgage and the Note since a valid transfer of a Note (in this case through the undated allonge), effectively transfers an associated Mortgage, the assignment of the Mortgage from MERS (as nominee for Arizona) to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff.

Since the allonge indicates that the Note is the property of Nevada and not Arizona, Arizona was never in a position to assign the Note to Plaintiff. Therefore, even if Plaintiff holds the Mortgage, without evidence that it also owns the Note, it lacks standing to pursue the foreclosure action at bar. Consequently, Plaintiff’s acquisition of the Mortgage without the underlying Note is insufficient to sustain a foreclosure action and Defendant’s motion to dismiss based on the Plaintiff’s lack of standing is granted.

[…]

The other issues raised in Defendant’s Order to Show Cause including the 1) motion to dismiss due to a failure to state a cause of action under CPLR 3211, and 2) a motion to vacate the default judgment and allow an answer under CPLR 317 are deemed moot as they are subsumed or deemed irrelevant in light of this court’s decision above. Based on the forgoing, it is

ORDERED that Defendant’s motion to vacate the default judgment and dismiss the action is granted; it is further

ORDERED that Defendant’s motion to have the case dismissed with prejudice due to fraud is denied.

The foregoing constitutes the decision and order of the court.

[…]

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NYSC Denies Summary Judgment “Chase is either servicing Wells Fargo’s mortgage, or has acquired unrecorded assignment of the mortgage” | PIZZUTO v. SORIANO

NYSC Denies Summary Judgment “Chase is either servicing Wells Fargo’s mortgage, or has acquired unrecorded assignment of the mortgage” | PIZZUTO v. SORIANO


ANTHONY PIZZUTO, Plaintiff,
v.
ALLAN SORIANO; WELLS FARGO BANK, NATIONAL ASSOCIATION; BENEFICIAL HOMEOWNER SERVICE CORPORATION; CHASE HOME FINANCE, L.L.C.; VIRGINIA ADAMS; and RICHARD ADAMS, Defendants.

No. 101892/09, Motion No. 2.

Supreme Court, Richmond County.

May 5, 2011.

Excerpt:

Helena Soriano first encumbered the subject property in the amount of $20,000.00 on August 26, 1999. This first mortgage was made to Beneficial Homeowner Service, Corp. [“Beneficial”]. On April 11, 2007, Helena Soriano obtained a second mortgage of $289,000.00 from Ameripath Mortgage Corporation {“Ameripath”) with the Mortgage Electronic Registration Systems, Inc (“MERS”) acting as the servicer of the mortgage. On August 28, 2008, this mortgage was assigned to Wells Fargo. Chase is either servicing Wells Fargo’s mortgage, or has acquired unrecorded assignment of the mortgage.

[…]

Therefore, summary judgment must not be granted to the non-defaulting defendants.

Accordingly, it is hereby:

ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to vacate the default judgment granted in favor of the plaintiff, Anthony Pizzuto, is denied; and it is further

ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to vacate the settlement order granted to Anthony Pizzuto on July 13, 2010 is denied; and it is further

ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to reargue the default judgment granted in favor of the plaintiff, Anthony Pizzuto, is denied; and it is further

ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to defer the referral specified in the settlement order granted to Anthony Pizzuto on July 13, 2010 is denied; and it is further

ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause that seeks to dismiss the complaint by Anthony Pizzuto is denied; and it is further

ORDERED, that the motion made by Wells Fargo Bank, National Association and Chase Home Finance L.L.C. in their order to show cause seeking summary judgment against Anthony Pizzuto is denied; and it is further

ORDERED, that the reference to the previously appointed Referee proceed as directed in the settlement order of July 13, 2010.

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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.

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WHOA!! NYSC Order To Show Cause “EXPUNGE SAID MORTGAGE & IT’S ASSIGNMENT” Alfred Lewis Enterprises. v. U.S. BANK

WHOA!! NYSC Order To Show Cause “EXPUNGE SAID MORTGAGE & IT’S ASSIGNMENT” Alfred Lewis Enterprises. v. U.S. BANK


excerpt:

may be heard why and Order should not be made allowing Plaintiff the following relief:

1. Declaring the Mortgage dated March 2,2005 between Darie Edmundson and Fremont Bank and its’ assignment to Defendant dated May 1,2006 placing a lien upon 522 Bainbridge Street Brooklyn, N.Y. Block 15 10 Lot 20
2. Directing the Clerk of the County of Kings to expunge said mortgage and it’s assignment from the Kings County records.

SUFFICIENT CAUSE APPEARING HEREIN, Let personal service of this Order and the papers upon which it is based may be made to Steven J. Baum P.C.,

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CA IMPORTANT NOTICE: TRO & Order To Show Cause On DEUTSCHE, AURORA LOAN SERVICES

CA IMPORTANT NOTICE: TRO & Order To Show Cause On DEUTSCHE, AURORA LOAN SERVICES


IMPORTANT NOTICE: On January  24, 2011 the plaintiffs, on behalf of the potential Class applied for and received another Temporary Restraining Order and Order to Show Cause against the defendants in this action. If you are a potential class member, please call this office at 714-372-2264  NOW!

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GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
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