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Not all New York cases

October 20, 2010, 11:26 AM ET

By Chad Bray

New York is instituting new filing requirements in order to ensure the integrity of the home foreclosure process, the state’s chief judge said Wednesday.

Lawyers bringing foreclosure claims will now be required to file an affirmation that they themselves have taken reasonable steps to verify the accuracy of documents filed in support of residential foreclosures.

“We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs–such as a family home–during this period of economic crisis,” said New York State Chief Judge Jonathan Lippman in a statement.

The new filing requirement goes into effect immediately. In new cases, the affirmation must be filed along with the initial request for judicial intervention. In pending cases, it must accompany a request for judgment or must be submitted to the court referee if a judgment has been entered, but the property hasn’t yet sold.

Continue reading…WALL STREET JOURNAL

.

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New York courts will become the first in the United States to require lawyers handling foreclosures for banks and servicers to take steps to ensure the procedure is done properly, the state’s top judge said on Wednesday.

Agency looking into whether industry has broken criminal laws

msnbc.com news services

WASHINGTON — The foreclosure-document crisis just keeps on growing, and now the FBI is getting into the fray.

A federal law enforcement official told the Associated Press that the agency is in the initial stages of trying to determine whether the financial industry may have broken criminal laws in the mortgage foreclosure crisis.

The official said the question is whether some in the industry were acting with criminal intent or were simply overwhelmed by events in the wake of the housing market’s collapse. The official spoke on condition of anonymity because the investigation is just getting under way.

Big lenders are trying to move past the foreclosure-document crisis, saying they are now confident their paperwork is accurate. But they are facing so much organized resistance that they can’t just snap up their briefcases, declare the crisis over and move on.

Consider the opposition:

• Attorneys general in all 50 states are jointly investigating whether lenders violated state laws.
• Lawyers for evicted homeowners are preparing lawsuits against major lenders.
• State judges have signaled they will review the banks’ foreclosure documents with skepticism.
• Lawmakers on Capitol Hill plan to hold hearings.

The document crisis, in other words, appears far from over.

Continue reading…MSNBC

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SUPREME COURT – STATE OF NEW YORK
Present:
HON. F. DANA WINSLOW,
Justice
INDEX NO.: 010723/07

THE BANK OF NEW YORK AS TRUSTEE FOR NASSAU COUNTY
CERTIFICATE HOLDERS, CWABS, INC. ASSETBACKED
CERTIFICATES, SERIES 2006-10,

-against-

NAGI ELSERAFY; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., ACTING
SOLELY AS A NOMINEE FOR COUNTRYWIDE
HOME LOANS, INC.

Excerpts:

[…]

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.

<SNIP>

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
912.

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.

[ipaper docId=39737082 access_key=key-26pv9o08343uzoitrdtj height=600 width=600 /]

NEW YORK STATE SUPREME COURT – QUEENS COUNTY
Present:
Honorable JAMES J. GOLIA
Justice
Index No: 13555/07

WELLS FARGO BANK, N.A., D/B/A
AMERICA’S SERVICING COMPANY,

against

ROXANNE CAMPBELL, AMERICA’S SERVICING
COMPANY, MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. AS NOMINEE
FOR WILMINGTON FINANCE, INC., NEW
YORK CITY ENVIRONMENTAL CONTROL BOARD,
NEW YORK CITY PARKING VIOLATIONS
BUREAU, NEW YORK CITY TRANSIT
ADJUDICATION BUREAU, MR. KANE,

Excerpt:

Standing is a threshold issue. If standing is denied, the pathway to the courthouse is blocked.(Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801A[ 2003]) Therefore, the court first considers the issue of plaintiff’s standing.

A plaintiff has standing to maintain an action upon alleging an injury in fact that falls within its zone of interest” (Silver v Pataki, 96 NY2d 532, 539 [2001]). The requirement that a litigant asserting a claim have an injury in fact — an actual stake in the matter being adjudicated — ensures that a person seeking judicial review has some concrete interest in prosecuting the action, which casts the dispute in a form capable of judicial resolution (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772, 573 N.E.2d 1034, 570 NYS2d 778 [1991]).

To have standing in an action for foreclosure of a mortgage the action must be brought by one who has title to it (Kluge v Fugazy, 145 AD2d 537 [2d Dept 1988]) and an assignee of a mortgage does not have standing unless the assignment is complete at the time the action is commenced. (See U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept 2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709 [2d Dept 2009]). A retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of an assignment.” (Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 210, 887 N.Y.S.2d 615 [2d Dept 2009]).

[ipaper docId=39561306 access_key=key-of37m6lhm801q1hn0at height=600 width=600 /]

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.

[ipaper docId=39560979 access_key=key-o8t973eukhmnfy8gt66 height=600 width=600 /]

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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INDEX NO. 16 150-2008
SUPREME COURT – STATE OF NEW YORK
I.A.S. PART 17 – SUFFOLK COUNTY
P R E S E N T :
Hon. PETER H. MAYER
Justice of the Supreme Court

BENEFICIAL HOMEOWNER SERVICE CORPORATION,

v.

TODD L. MASOTTI

In this foreclosure action, the plaintiff filed a summons and complaint on April 24, 2008, which essentially alleges that the defendant-homeowner(s), Todd L. Masotti and Michelle Casey, defaulted in payments with regard to a mortgage, dated September 20,2004, in the principal amount of $311,842.43, for the premises located at 38 Crestwood Lane, Farmingville, New York. Although the plaintiff annexes a power of attorney permitting “LPS Default Solutions, Inc.” to act on its behalf, the affidavit of merit is by an employee of “Lender Processing Services, Inc.” According to the court’s database, a foreclosure settlement conference was held on June 23,2010. The plaintiff now seeks a default order of reference and requests amendment of the caption to remove the “Doe” defendants. The plaintiffs application is denied for the following reasons:

(1) failure to submit evidentiary proof of compliance with the requirements of CPLR 3215(f), including but not limited to a proper affidavit of facts by the plaintiff [or by plaintiffs agent, provided there is proper proof in evidentiary form of such agency relationship], or a complaint verified by the plaintiff and not merely by an attorney or non-party, such as a servicer, who has no personal knowledge; and

(2) failure to submit an affidavit in support, which is in a properly sworn form, as required by CPLR 15 2 3 0 9( b) .

This constitutes the Decision and Order of the Court.
Dated: August 6, 2010

[ipaper docId=38641780 access_key=key-2jrk2t2b6rlp1l232q2d height=600 width=600 /]

SUPREME COURT – STATE OF NEW YORK
IAS PART 10 – SUFFOLK COUNTY

HON. JOHN J.J. JONES, JR.

CHASE HOME FINANCE

v.

LUCIUS D. PAGANO

In addition, and notwithstanding the plaintiffs failure to establish compliance with paragraph 22 of the mortgage, there are two [2] other issues that must be addressed on any renewed application herein. The first issue is the legal effect of the allonge that is attached to the promissory note dated Oct. 18, 2005. This allonge clearly states that the note was endorsed by United Mortgage Corp. to the order of Greenpoint Mortgage Funding, Inc. The plaintiff’s application fails to address the fact of this clear and unequivocal endorsement of the note to Greenpoint. The second issue that the plaintiff needs to address is the execution of the mortgage assignment on Dec. 15,2009 by M.E.R.S to the plaintiff, Chase Home Mortgage. The assignment was executed by George Schmergel, on behalf of M.E.R.S. It appears that this person is also the plaintiffs attorney. Therefore, on any renewed application, the plaintiff shall set forth an explanation of the apparent dual role of counsel.

This constitutes the decision and order of the court in the disposition of this exparte application
for an order of reference, which is to be marked “not signed”.
-X

[ipaper docId=38514265 access_key=key-24ttr1afzi6cge5z6p9e height=600 width=600 /]

SUPREME COURT – STATE OF NEW YORK
I.A.S. PART XIII SUFFOLK COUNTY

HON. MELVYN TANENBAUM
Justice

US BANK N.A.,
-against-
ORLANDO BORJA ET AL.,

ORDERED that this motion by plaintiff seeking an order granting summary judgment, amending the caption of the action and appointing a referee to compute the sums due and owing to plaintiff in this mortgage foreclosure action is granted.

The Court has repeatedly directed plaintiffs counsel, Steven J. Baum, P.c., to submit proposed orders of reference in proper form and counsel’s office has repeatedly failed to comply.

Accordingly, plaintiff’s counsel is hereby directed to submit a proposed order for the appointment of a referee in the forn required by this Court. Any further failure to comply with this order shall be deemed wilful.

Dated: July 30, 2010

[ipaper docId=38403301 access_key=key-oxrh4ni75w4jougmy90 height=600 width=600 /]

Supreme Court of the State of New York, held
in and for the County of Kings, at the
courthouse at 360 Adams Street

David Schmidt
Justice of the Supreme Court

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC.,

v.

Bibi Roopen

To cancel the claim for the surplus monies on the above Index Number 1694 1/04 by the Claimant Merrill Lynch Mortgage Lending, Inc. Attorney Steven J. Baum. P.C. and to grant me, Bibi Roopan, the surplus monies on deposit in this matter. for the reasons that Neither Wilshire Credit Corporation, who owned the second mortgage to the premise commonly known as 14 Cypress Court Brooklyn, NY 11208, nor its parent company, Merrill Lynch Mortgage Lending. were present at the foreclosure and therefore did not claim their share of the foreclosure at that time (Notice of Appearance). En addition. Wilshire Credit Corporation transferred the mortgage loan to Strategic Recovery Group, LLC, db Aquara Loan Services, Its Successors and/or Assigns, P.O. Box 61026 Anaheim, CA 92803-6126 on October 29.2008 and on July 6,2010, Strategic Recovery Group sent me a letter to settle in full for $30,497.10.

Pending the hearing of this motion it is ordered that to cancel & stop the claim for the surplus monies on the above index Number 16941/04 by Claimant Merrill Lynch Mortgage Lending, Inc, Attorney Steven J. Baum, PC and for the surplus monies to stay at the courts until judgement by the judge and also that Merrill Lynch Mortgage Lending

DO NOT GET ME SURPLUS MONIES.

[ipaper docId=38400746 access_key=key-lbmrzg8avt9qtqcyhmp height=600 width=600 /]

I guess WELLS FARGOT…

This statement from Wells Fargo appears on NY TIMES 10/1/2010:

A Wells Fargo spokeswoman said “the affidavits we sign are accurate.”

SUPREME COURT – STATE OF NEW YORK
I.A.S. PART XXXVI SUFFOLK COUNTY

PRESENT:
HON, PAUL J. BAISLEY, JR., J.S.C.

INDEX NO.: 16038/2008
MOTION DATE: 11/24/2008
Plaintiff, MOTION NO.: 001 MI)

PLAINTIFF’S ATTORNEY:
STEVEN J. BAUM, P.C.
P.O. Box 1291
Buffalo, New York 14240- 1291

Wells Fargo v. Oleg Dmitriev

Plaintiffs application is defective because there is no “affidavit made by the party” of “the facts constituting the claim, the default and the amount due” as required by CPLR §3215(f). The proffered “affidavit of merit and amount due” of Jeffrey Stephan identifies him as “the Limited Signing Officer of GMAC MORTGAGE LLC, servicer,” but no proof of Mr. Stephan’s authority to execute such affidavit on behalf of plaintiff is offered. The proffered affidavit does not otherwise comply with the requirements of CPLR $2309(c) for an out-of-state affidavit. In addition, the facts and dates recited in the affidavit regarding the consolidated mortgage and consolidated note that are the subject of this floreclosure action are at variance with the underlying documents.

In light of the foregoing, the motion for an order of reference is denied, without prejudice to renewal on proper papers.

Proposed order of reference marked “not signed.”
Dated: March 16, 2009

Paul J. Baisley, JR
J.S.C.
–

[ipaper docId=37975402 access_key=key-281pa58f9x2mia6kmvxp height=600 width=600 /]

SUPREME COURT – STATE OF NEW YORK
I.A.S. PART XXXVI SUFFOLK COUNTY
PRESENT:
HON. PAUL J. BAISLEY, JR., J.S.C.

GMAC v. JOSEPH A. REMKUS

The note itself reflects that it was executed and delivered by the mortgagor to E*Trade. MERS is not mentioned in the note and is given no rights therein. Accordingly, the court is unable to discern from the submissions a factual or legal basis for MERS’ purported assignment of‘the underlying note to plaintiff. Moreover, even if the purported assignment were valid in all respects, plaintiffs submissions establish that at the time of the commencement of this action plaintiff was not the owner of the mortgage and note sued upon.

The Court notes that the questionable validity of the purported assignment is further reflected by the fact that it appears to have been executed on behalf of MERS by the same person, Jeffrey Stephan, who executed the “affidavit of merit” on behalf of the plaintiff in this action.

In light of the foregoing, the motion to appoint a referee is denied.

Proposed ex-parte order marked “not signed.”

Dated: July 28, 2008
–

Contiune reading the NY Case below…I have others similar

[ipaper docId=37996746 access_key=key-279npgf582mdsw8wg1g9 height=600 width=600 /]

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).

Dated: May 10. 2010

[ipaper docId=37796861 access_key=key-1qsedtbin3aqnf0ty1c1 height=600 width=600 /]

Dated: March 24. 2010
Lyons, New York

Mortgage Electronic Registration Systems (MERS) moves under Article 11 of the Real Property Tax Law (RPTL) and within the limitations period set forth in RPTL § 1137 for an order setting aside a deed issued pursuant to a tax foreclosure proceeding under Article 11. The operative facts are uncomplicated and undisputed.

The central question presented in the instant matter are the rights, if any, Wilmington Finance and/or MERS gained under RPTL §I 125(a) by virtue of these references in the Mortgage.

To accept MERS’ argument would require the County to read every mortgage from A to Z to make sure there are no “Nominees” of the Lender entitled to notice of tax foreclosure in lieu of or in addition to the Lender.

Second, the Mortgage from which MERS derives its claim of right to statutory notice under RPTL § 1125 is by no means crystal clear as to what MERS’ involvement as “Nominee” requires after the recording of the mortgage. Indeed, MERS does not explain what role the “Nominee” plays in the recording of a mortgage, or thereafter, except perhaps as something akin to a power-of-attorney or agent, albeit with independent standing. If the later is the case, it is incumbent upon the “Nominee” to state its status as one due notice in the separate declaration of interest form required under section RPTL §1126, which the County does have a categorical duty to read.

According, the application of MERS shall be, and the same hereby is, denied.

[ipaper docId=37751868 access_key=key-24fih6oxf1j7dp0inp5q height=600 width=600 /]

Further,it appears that there is a conflict of interest in that MERS is both a plaintiff and defendant, at least as far as the original caption shows.

EXCERPTS:

On November 7, 2007, Mortgage Electronic Registration Systems, Inc., (MERS), as nominee for Lend America, assigned the mortgage to Central Mortgage Company (CMC). The assignment states that November 10, 2006 mortgage was made by Defendant Caughman to MERS as nominee for Lend America.

The caption of the action lists MERS, ,as nominee for Lend America, as the plaintiff. Defendants are Sherri Caughman, MERS, as nominee for Lend America, John Doe and Jane Doe.

In this motion, plaintiff seeks an order striking Defendant Caughman’s answer; the appointment of a Referee to compute the amount due and owing and the amendment of the caption. The amended caption would substitute CMC as plaintiff, in place and instead of MERS, as nominee for Lend America. In the amended caption, Sherri Caughmann would remain as a defendant, MERS, as nominee for Lend America, would be added as a defendant and Mr. Caughman and Vicki Douglas were added as defendants.

In support of its motion, plaintiff argues that it is entitled to summary judgment because it has made out a prima facie case and that defendant’s answer does not show that there are any issues of fact which would warrant denial of its motion.

Defendants, in opposing the motion, contends that MERS has no standing, as a nominee, to bring action because its status as nominee is limited and does not give it the power to transfer or assign ownership rights in property on behalf of the party for which it is acting as nominee. They add that MERS has said that it is not in possession of the original promissory note and, as such it allegations are inconsistent with its exhibits. Thus, defendants conclude, this raises issues of fact.

Continuing, defendants conted that the mortgage and note involved here were issued in Violation of the Federal Truth in Lending Act in that plaintiff did not provide them with the disclosures required under 15USC1639(a)(1) and (a)(2)(A) and 12 CFR 226.32. These violations, say defendants, leaves them with a “continuing right” to rescind the deal, which they claim to do in their opposition.

Upon review, defendants’ motion is granted. Neither MERS nor CMC has shown that it had the mortgage and note at the time the action was commenced. Further,it appears that there is a conflict of interest in that MERS is both a plaintiff and defendant, at least as far as the original caption shows.

The parties are directed to appear before this court on May 4, 2010 at 9:30 am for a conference.

Dated: March 23, 2010

……………………
J.S.C.
Diary

[ipaper docId=37722059 access_key=key-1akzldm7itgz0kpme1z9 height=600 width=600 /]

Judge Thomas A. Adams knows exactly what he is doing! Watch for more of his slam dunks…

WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS FOR MERRILL LYNCH MORTGAGE INVESTORS TRUST, MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2005

– against –

STUART BRENNER, et aI.

INDEX NO. : 014812/09

AUGUST 20, 2010

Defendant’ s answer contains a defense of “lack of standing.” Plaintiff has failed to establish it was the holder of the note and the mortgage securing it when the action was commenced. In that regard, plaintiff relies on an undated assignment of the mortgage by MERS as nominee acknowledged by a Texas notary on July 18, 2009. The note sued on does not contain an indication it has been negotiated. The undated assignment by MERS contains a provision at the assignment of the mortgage is “TOGETHER with the notes described in said mortgage.” The record before me is devoid of proof that MERS as nominee for purposes of recording had authority to assign the mortgage. However, assuming it had such authority since it is a party to the mortgage and such authority might be implied , there has been a complete failure to establish MERS, as a non-party to the note, to negotiate its transfer. A transfer of the note effects a transfer of the mortgage MERS vs. Coakley, 41 AD3 674), the assignment of a mortgage without a valid transfer of the mortgage note is a nullity (Kluge vs. Fugazv, 145 AD2 537).

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NEW YORK SUPREME COURT NASSAU

In support of its standing to maintain the action when the action was commenced is an “Assignment of Mortgage” executed by MERS as nominee of Home Funds Direct which includes a provision indicating the assignment is TOGETHER with the bond or note. . . ” . Not only has plaintiff failed to establish MERS’ right as a nominee for purposes of recording to assign the mortgage, more importantly, no effort has been made to establish the authority of MERS, a non-party to the note, to transfer its ownership. Without establishing ownership of the note at the time the action was instituted, the plaintiff lacked a right to maintain the action.

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NY SUPREME COURT: FINAL DISPOSITION

Here, there are no allegations or evidence that MERS was the owner of the note such that it could assign it to LPP. Thus, the assignment from MERS was insufficient to confer ownership of the note to LPP and it has no standing to bring this action. Kluge v. F umz ~1, 45 AD2d at 538 (holding that the assignment of a mortgage without transfer of the debt is a nullity); Johnson v. Melnikoff, 20 Misc3d 1142(A), “2 (Sup Ct Kings Co. 2008), n. 2, afr, 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS which did not include the underlying debt were a legal nullity); m e Elect ro pic Registration Svstem v, Coakley, 41 AD3d 674 (2d Dept 2007)(holding that MERS had standing to bring foreclosure proceeding based on evidence that MERS was the lawful holder of the promissory note and the mortgage).

Thus, even assuming arguendo that the language of the assignment from MERS to LPP could be interpreted as purporting to assign not only the mortgage but also the note, such assignment is invalid since based on the record, MERS lacked an ownership interest in the note. $ee LaSalle Bank Nat. Ass’n v. Lamv, 12 Misc3d 1191(A), “3 (Sup Ct Suffolk Co. 2006) (noting that “the mortgage is merely an incident of and collateral security for the debt and an assignment of the mortgage does not pass ownership of the debt itself ’);

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YOU AIN’T FOOLING THIS JUDGE! Dated 8/18/2010

Lets see how they produce the assignment from 2005!  We bet we already know!

Plaintiff subsequently purchased the aforementioned mortgage and note from Defendant. However, an Assignment of Mortgage from Defendant to Plaintiff has been lost and was never recorded. Plaintiff, as the current holder of the note, desires to foreclose on the subject mortgage.

However, Plaintiff cannot do so because of the break in chain of title.

the Clerk of the County of Suffolk be directed to record an Order reflecting the assignment of mortgage as Lancaster Mortgage Bankers as original assignor to Indymac Bank, FSB, as the assignee with an effective date-of December 20,2005. The Plaintiff interests originates from a mortgage from Hem-Ur Nekhet to Lancaster Mortgage Bankers, in the principal amount of $608,000.00, dated December 20,2005 and recorded on February 9,2006 in CRFN: 2006000079624. Plaintiff subsequently purchased the aforementioned mortgage and note from Defendant.

She goes on and hand writes the following:

Insufficient proof of ownership of mortgage to make up for lost assignment of mortgage, service was pursuant to BCC 306 on a corporation that is alleged to no longer be in operation and the proposed judgment says that the summons & complaint were filed in Suffolk County

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Supreme Court of the State of New York, held
in and for the County of KINGS, at
the Courthouse located at 360 Adams
Street, Brooklyn, NY on the 2nd day of
June, 2010

“WHY an order should not be made dismissing the within action due to Plaintiffs lack of standing; together with such other and further relief as this Court may deem just and equitable;”

ORDERED, that pending the hearing . . of this motion, the Plaintiff Mortgage Electronic Registration System as Nominee for US Bank, N.A., and any of its attorneys, agents, successors and assignees, be and are hereby restrained from implementing or any way pursuing the closing of title on any third party sale of the premises known as 81 Woodbine Street, Brooklyn, NY 11221; and Plaintiff Mortgage Electronic Registration System as Nominee for US Bank, N.A., and any of its attorneys, agents, successors and assignees be and are hereby restrained from evicting Liborio Munoz and his family and any other occupants from the premises known as 81 Woodbine Street, Brooklyn, NY 11221.

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