Deutsche Bank National Trust Co., AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2006-AR25, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR25 UNDER THE POOLING AND SERVICING AGREEMENT DATED JULY 1, 2006, Petitioner,

against

Elaine Turner, PERCIVAL TURNER, YVETTE JEFFRIES, JOHN DOE, JANE DOE, RICHARD ROE, CORA COE, Respondent.

EXCERPT:

Petitioner may not designate a party as “John Doe” or “Jane Doe” when there is actual knowledge of the party’s identity. “If none of the name is known, then a completely fictitious name may be utilized. However, such a designation can only be made if the designating party does not know all or part of the other party’s name; otherwise, the party must be identified to the extent that his or her name is known.” First Federal Savings and Loan Association of Rochester v. Souto, 158 Misc 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993). Further, “a petition naming the respondent as John Doe’ or Jane Doe’ is subject to dismissal if the true identity of the respondent is known to the petitioner when the proceeding is commenced.” Varveris v. Infante, N.Y.L.J. Sept. 15, 1993, p. 25, col. 3 (Civ. Ct. Queens Co.), citing ABKCO Industries v. Lennon, 52 AD2d 435; Capital Resources Corp. v. “John Doe” and “Jane Doe”, N.Y.L.J. June 17, 1992, p. 25, col. 6 (Civ. Ct. Kings Co.).

In the instant case, there has been no evidence or testimony presented to suggest that Petitioner had actual knowledge of the presence or identity of Gerda Southwell. However, petitioner has failed to demonstrate that any effort, let alone a diligent effort, was made to determine the identity(ies) of the occupant(s) of the premises. “It is clearly implicit in CPLR 1024 that the unusual authority it sanctions should not be availed of in the absence of a genuine effort to learn the true name of the party.” Chavez v. Nevell Mgmt. Co., Inc., 69 Misc 2d 718; 330 N.Y.S. 2d 890 (Civ. Ct. New York Co., 1972); 2 Weinstein-Korn-Miller, New York Civ. Prac., par. 1024.04. “Petitioner by means of the CPLR is duty bound not to proceed with or to permit an eviction proceeding to go forward in the name of a John Doe or Jane Doe’ when they could with diligence find out the true name, or actually have knowledge of the true name or names.” Green Point Savings Bank v. John and Jane Doe, N.Y.L.J. July 12, 1995, p. 31, col. 2; See Teachers College v. Walterding, 351 N.Y.S. 2d 587 (App. Term, 1st Dept, 1974) and Chavez v. Nevell Mgmt. Co., supra. Petitioner must further establish that a diligent effort has been made to ascertain the identity of the party. “It must be demonstrated that the persons named as unknown are actually unknown. To make that showing, counsel should present an affidavit [*4]stating that a diligent inquiry has been made to determine the names of such parties.” Capital Resources Corp. v. John Doe, 154 Misc 2d 864; 586 N.Y.S. 2d 706 (Civ. Ct. Kings Co., 1992); Chavez v. Nevell Mgmt. Co., supra; 2 Weinstein-Korn-Miller, NY Civ. Prac., par. 1024.04.

Petitioner has presented no evidence or testimony to demonstrate a diligent effort was made to ascertain the identity(ies) of the occupant(s). This is a two-family dwelling where the respondent has resided consistently since October 2008. In a two-family home the identity of any occupants’ could have been ascertained with a minimal amount of effort. Petitioner could have knocked on Ms. Southwell’s door, asked the prior owners if anyone else resided in the building, or checked the names on the mailboxes. Petitioner produced no evidence that any effort was made at all. “A diligent effort to learn the party’s name is a condition precedent to the use of CPLR §1024, which should therefore be turned to only as a last resort.” George Tut & Company v. Jane Doe, 2008 Slip Op 28264; 20 Misc 3d 815; 862 N.Y.S. 2d 428 (Civ. Ct. Kings Co., 2008); Siegel, NY Prac. §188 at 304 (3d ed). “If a petitioner knows a party’s name, or fails to demonstrate that diligent efforts were made to learn a party’s name, then use of a fictitious name is not authorized by CPLR 1024 and the petition is rendered fatally defective as to that party.” Pinnacle Bronx East v. Bowery Residents Committee Inc., 2006 NY Misc. LEXIS 4025; 235 N.Y.L.J. 60 (Civ. Ct. Bronx Co., 2006), citing Triborough Bridge and Tunnel Auth. v. Wimpfheimer, 165 Misc 2d 584; 633 N.Y.S. 2d 695 (App. Term, 1st Dept. 1995); First Fed. Savings and Loan Assoc. of Rochester v. Souto, 158 Misc 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993). Accordingly, respondent’s motion is granted and the petition is dismissed without prejudice. As the proceeding is dismissed on the basis of failure to name a necessary party, the court need not address the additional grounds raised for dismissal.

This is the decision and order of the Court.

[ipaper docId=58946023 access_key=key-18mlbl9k9l3ztxqx9caj height=600 width=600 /]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

NBC–

A fire that killed three people in the Bronx revealed the dangers of illegally subdivided apartments, but what is less widely known is the building’s cloudy ownership status.

At dispute is a question over who was actually responsible for maintaining the property.

Click image below to go to video and article…

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

New York Times-

The promise made by a mortgage company in San Diego could not have been more blunt. “Accredited Home Lenders offers an unusually broad line of subprime mortgage products for wholesale mortgage brokers,” the company’s Web site boasted in its heyday.

“Send us your toughest loans, and let us earn your business.”

Those were the days: from 2005 to 2007, Accredited made $29 billion in subprime loans.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

DING DING DING…Let the fight begin!

GMAC faces New York foreclosure brawl

By RICHARD WILNER
Last Updated: 1:36 AM, July 6, 2010
Posted: 1:31 AM, July 6, 2010

A Bronx homeowner is scheduled for a courtroom battle royale later this month — facing off in Manhattan bankruptcy court against the largest foreclosure mill in the state to see if the firm’s client, GMAC Mortgage, has the right to toss her from her Pelham Gardens home.

Also at issue is whether the law firm, Steven J. Baum PC, may have a conflict of interest problem.

The lawyer for the homeowner, David Shaev, claims in recently filed court papers that a Baum lawyer allegedly represented GMAC without disclosing she worked for Baum.

The thorny issue is of growing interest to New York judges — who last year faced more than 50,350 foreclosure actions, according to RealtyTrac, many of which were brought by banks that have sold or securitized the loans. Such actions make proving which entity owns the loan difficult.

That issue is key — banks that can’t prove they own a loan can’t legally foreclose. At times, lenders and law firms have been chastised for taking short cuts to gloss over the ownership issue.

Complicating matters is that most delinquent homeowners battle foreclosure actions without a lawyer and get steamrolled.

But that may be changing.

On June 3, Bankruptcy Judge Allan Gropper denied a bank’s attempt to move against a homeowner because it couldn’t prove it owned a mortgage.

Five days later, Brooklyn state court Judge Wayne P. Saitta, citing a bank’s “egregious” misrepresentation, awarded a homeowner $10,000 in sanctions when the bank tried to evict knowing it didn’t own the mortgage.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.