MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., as nominee for U.S.
BANK, N.A. f/k/a FIRSTAR BANK, N.A.
successor in interest to ALLIANCE
MORTGAGE BANKING CORP.,
against
CARMEN POBLETE
excerpt:
An examination of the plaintiff’s papers submitted herein reveals that they do not contain proof of plaintiff‘s standing to commence this action. The papers assert the plaintiff, Mortgage Electronic Registration Systems, Inc. (MERS), is the “nominee” for the original mortgagee, Alliance Mortgage Banking Corp. The papers also assert that U.S. Bank, formerly known as First Star Bank, is the successor in interest to the original mortgagee. Furthermore plaintiff has submitted a certificate of merger between U.S. Bank of Oregon and U.S. Bank of Minnesota. Thus the court is unable to ascertain from the papers which party is the record owner of the mortgage, whether or not the mortgage was assigned, and the nature of the relationship between the mortgagee and the plaintiff.
Additionally, plaintiff has submitted, inter alia, an affidavit in support from ”Gregg V. Speer, Vice President,” who claims to be familiar with the books and records maintained by the plaintiff. However the Mr. Speer has failed to identify what entity he represents. Additionally, the affidavit does not specifically recite the facts of this particular default, the facts concerning the subject property, and when the default notice was sent. Indeed the affidavit only contains boilerplate recitations that could relate to any property or defendant.
Furthermore, the copy of the mortgage included in the plaintiff’s papers is barely legible.
Accordingly, as plaintiff has not established its standing to institute this action or prima facie entitlement to relief the proceeding is dismissed
I go through hundreds of cases each week and I have been saving this one for a rainy day. We’ll it’s raining today.
SUPREME COURT – STATE OF NEW YORK I.A.S. PART XXXVI SUFFOLK COUNTY PRESENT: HON. PAUL J. BAISLEY, JR., J.S.C.
DATED: MAY 10. 2010
The Court is at a loss to understand how a purported “correcting assignment” can be executed eight days before the assignment it is purporting to correct. Moreover, the Court is at a loss as to the identity of the true holder of the mortgage at the time of the commencement of the action (irrespective of any arguments regarding the validity of the purported assignment(s) by MERS as nominee of the original mortgagee; see, for example, US Bank, N.A. II Collymore, 200 NY Slip Op 09019 [2d Dept 2009]), While it is well established that any issues as to a plaintiff’s standing to commence a foreclosure action are waived by the defendant-mortgagor’s failure to appear and answer (HSBC Bank v Dammond, 59 A03d 679 l2d Sept 2009]), the contradictory and conflicting submissions on this motion implicate far more than the more issue of “standing.” Indeed, the submissions appear to have been drafted with utter disregard for the facts, or for counsel’s responsibilities as an officer of the Court, and border on the fraudulent.
In the the circumstances, the motion, which is unsupported either factually or legally, is denied in all respects. Moreover, in light of the failure of the movant to establish that any party was in fact the holder of the mortgage (and the underlying note, see KLuge v Fugm:y, 145 AD2d [2d Sept 1988J) at the time of the commencement of this action – an omission that in the circumstances may not be corrected by mere amendment — the Court, on its own motion, hereby directs the plaintiff to show cause why the complaint should not be dismissed; and further directs Steven J. Baum, P.c. and Heather A. Johnson, Esq., the attorney of record for the plaintiff in this action and the scrivener of the affirmation referred to above, to appear before the undersigned on June 24, 2010 at II :00 a.m. to show cause why sanctions should not be imposed on plaintiff and/or its attorney(s) for frivolous conduct pursuant to 22 NYCRR §130-1.1 (c).
I go through hundreds of cases each week and I have been saving this one for a rainy day. We’ll it’s raining today.
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