SUPREME COURT – STATE OF NEW YORK

Index No. 10123/09

PRESENT:
Honorable Karen V. Murphy
Justice of the Supreme Court

JP. Morgan Mortgage Acquisition Corp.,

v.

Richard Simmons, Eleanor Simmons, Bank of
America, NA, First Chicago, et aI.,

Excerpts:

The Notice of Pendency fied May 27 2009 stated that Plaintiff “is also in possession
of the original note with a proper endorsement and/or allonge and is therefore the holder of
both the note and mortgage” and the complaint contained a similar allegation however
Margaret Dalton, a self proclaimed “Officer” of EMC Mortgage Corporation, a non-par,
submitted an ‘ affidavit of lost note’ sworn to on Januar 27, 2010. It is not clear whether the
alleged servicer, EMC has authority to act on Plaintiff’s behalf in this matter , as no power
of attorney was submitted to the Court. The basis for Ms. Dalton s purported knowledge of
the circumstances surrounding the assignment in question are not clearly stated in her
affidavit, which by its terms, is contradictory. Bald assertions of possession of the original
note, without more, in light of the conflicting evidence, is not sufficient to establish a prima
facie case.

Furthermore, the assignment recorded on May 20, 2009 specifically states that it is
an “assignment of mortgage ” and makes no reference to the note. Thus, a question of fact
exists as to whether the note was ever assigned or delivered to Plaintiff. It may well be that
the note was neither assigned nor delivered to Plaintiff prior to commencement of this action
and Plaintiff would then be without authority to bring this action.

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SUPREME COURT – STATE OF NEW YORK

PRESENT:
Honorable Karen V. Murphy
Justice of the Supreme Court

Index No. 5541/09

IN THE MATTER OF:

MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC. as NOMINEE for ENCORE
CREDIT CORP.,
-against-
DIANA ESPOSITO a/kla DIANE ESPOSITO;
BANK OF AMERICA, N. ; NASSAU COUNTY
CLERK,

Excerpt:

The supporting affidavits are in conflict with the recorded satisfaction in that the
satisfaction executed by MERS as nominee for Encore states that there had been no
assignments. There is a purported, and as yet unrecorded assignment from MERS as nominee
for Encore to Bank of America dated March 12, 2009. This Court is left to question the
motivation behind MERS’ assignment of a mortgage previously satisfied of record during
the pendency of this matter. There is no proof that MERS physically delivered the note and
mortgage to Bank of America prior to the date ofthe assignment. (See Wells Fargo Bank,
N.A. v. Marchione , 2009 WL 3380639 (2d Dept. , 2009)).

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SUPREME COURT – STATE OF NEW YORK
TRIAL TERM. PART 17 NASSAU COUNTY
Index No. 23255/09

PRESENT:
Honorable Karen V Murphy
Justice of the Supreme Court

WACHOVIA BANK, NATIONAL ASSOCIATION
3476 Stateview Boulevard
Ft. Mil, SC 29715

-against-

ANGEL VARGAS, MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS INC. AS NOMINEE
FOR CONTINENTAL MORTGAGE BANKERS,
INC. D/B/A FINANCIAL EQUITIES, ET AL.,

EXCERPT:
Plaintiff has not provided a copy of an alleged servicing agreement between Plaintiff and Wells Fargo Bank, N.A. A vice president of Wells Fargo Bank, N.A. has provided what purports to be an affidavit of facts, however it is not clear that they are authorized to do so.

Additionally the subject mortgage was allegedly modified by Defendant Vargas and yet another entity known as Americas Servicing Company (“Wells Fargo Bank, N.A. doing business as America’s Servicing Company).

The Plaintiff herein lacks standing to bring this action. The purported assignment assigned the mortgage but makes no mention of the debt or note. (Kluge v. Fugazy, 145 2d 537, 536 N. 2d 92 (2d Dept., 1988); U.S. Bank, N.A. v. Collymore 68 A.D.3d 752, 890 N. 2d 578 [2d Dept., 2009]).

Under the circumstances Plaintiff has failed to establish that it is entitled to the relief sought and the complaint is dismissed with prejudice.

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Judge Murphy deserves an applause for the great job of questioning all facts and making no assumptions.

SUPREME COURT – STATE OF NEW YORK
TRIAL TERM. PART 17 NASSAU COUNTY

PRESENT:
Honorable Karen V. Murphv
Justice of the Supreme Court

ONEWEST BANK, FSB
155 North Lake Avenue
Pasadena, CA 91101,
Plaintiff(s),

-against-

ALEXADER ROTH, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.
AS NOMINEE FOR E*TRADE WHOLESALE
LENDING CORP., ET AL.,
Defendant(s).

Excerpts:

In this matter Plaintiff failed to establish that it is entitled to the relief sought. It is well settled that a foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of mortgage is a nullity. (Kluge v. Fugazy, 145 A. 2d 537 538536 N. 2d 92 (2d Dept. , 1988)). While Plaintiff alleges that it is the holder of both the note and mortgage, the record before the Court suggests otherwise and raises factual issues as well as issues of credibility that can not be determined herein. (see .J Capelin Assoc. v. Globe Mfg. Corp. 34 N. 2d 338 341 313 N. 2d 776 357 N. 2d 478 (1974)).

The Complaint filed September 4, 2009 stated that Plaintiff is “the owner and holder of a note and mortgage being foreclosed.” Bald assertions of possession of the original note without more, in light of the conflicting evidence, is not sufficient to establish a prima facie case.

Furtermore, the assignment recorded on October 1 , 2009 specifically states that it is an “assignment of mortgage ” and makes no reference to the note. Thus, a question of fact exists as to whether the note was ever assigned or delivered to Plaintiff. It may well be that the note was neither assigned nor delivered to Plaintiff prior to commencement of this action and Plaintiff would then be without authority to bring this action.

A stamp on the copy of the note provided by Plaintiff appears to be an indorsement of the note in blan, by the original lender, and is not dated (U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752 890 N. 2d 578 (2d Dept. , 2009)). Additional issues regarding the timing of that indorsement on the note and whether MERS, at the time it executed the Assignment of Mortgage had authority, let alone the abilty, to assign the note and/or whether, in fact the note had already been assigned at the time of the purported assignment of the mortgage exist (id).

ORDERED that movant shall serve a copy of this Order upon all parties, or their attorneys if represented by counsel and shall there after file affidavits of service with the County Clerk and it is further,

ORDERED that a copy of this Order and proof of service of same be anexed as exhibits to any future applications regarding the subject mortgage and note.

The foregoing constitutes the Order of this Court.

Dated: September 1 , 2010
Mineola, N.
NASSAU COUNTY
COUNTY CLERK’S

ONEWEST BANKS GET THE BOOT, MERS ASSIGNMENT MENTIONS NO NOTE

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