BANK NATIONAL ASSOCIATION 2005 2005 HE2 v. MERINO (2007)

It is ORDERED that the motion by the plaintiff for an order of reference in this mortgage foreclosure action is denied, with leave to renew upon proper papers, which comply with the requirements set forth in CPLR § 3215(f), including but not limited to an affidavit of merit by a party, as well as proof of proper assignments of the subject mortgage, sufficient to establish the plaintiff's ownership rights and proper standing at the time the action was commenced;  and it is further

ORDERED that the movant shall serve a copy of this Order upon all appearing parties, or their attorney(s) if represented by counsel, within twenty (20) days after the date of this Order pursuant to CPLR 2103(b)(1), (2) or (3), and shall thereafter file the affidavit(s) of service with the Clerk of the Court;  and it is further

ORDERED that a copy of this Order and proof of service of same shall be annexed as exhibits to any motion to renew.

 With regard to the proof necessary on an application for judgment by default, CPLR § 3215(f) states, in relevant part, that “[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint ․ and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party ․ Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due;  in such case, an affidavit as to the default shall be made by the party or the party's attorney.”   In a judgment of foreclosure proceeding, an order of reference is simply a preliminary step towards obtaining such a default judgment (Home Sav. of Am., F.A. v. Gkanios, 230 A.D.2d 770, 646 N.Y.S.2d 530 [2d Dept. 1996] ).

 In support of the plaintiff's motion, counsel submits an affidavit of purported facts by Andrew Goldberg, who alleges to be the attorney-in-fact for the plaintiff.   Mr. Goldberg, however, is not a party to this action and there is no evidence that he is authorized to act on behalf of the plaintiff for purposes of satisfying the proofs required by statute.   Without an affidavit by the plaintiff regarding the facts constituting the claim and amounts due or, in the alternative, an affidavit by the plaintiff that its agent has the authority to set forth such facts and amounts due, the statutory requirements of CPLR § 3215(f) are not satisfied.   Likewise, without either a proper affidavit by the party or a complaint verified by the party, not merely by an attorney with no personal knowledge, the entry of judgment by default is erroneous (see, Peniston v. Epstein, 10 A.D.3d 450, 780 N.Y.S.2d 916 [2d Dept. 2004];   Grainger v. Wright, 274 A.D.2d 549, 713 N.Y.S.2d 182 [2d Dept. 2000];   Finnegan v. Sheahan, 269 A.D.2d 491, 703 N.Y.S.2d 734 [2d Dept. 2000];   Hazim v. Winter, 234 A.D.2d 422, 651 N.Y.S.2d 149 [2d Dept. 1996];   Mullins v. DiLorenzo, 199 A.D.2d 218, 606 N.Y.S.2d 161 [1st Dept. 1993] ).   Therefore, the plaintiff's motion must be denied.

Even if the plaintiff did have an attorney-in-fact for purposes of satisfying the requirements of CPLR 3125(f), after reviewing Mr. Goldberg's affidavit, the Court is unable to ascertain who that attorney-in-fact actually is, and on whose behalf Mr. Goldberg actually executed the affidavit.   In the first paragraph of his affidavit, Mr. Goldberg, himself, is identified as the attorney-in-fact for the plaintiff.   His signature on the affidavit, however, suggests that Mr. Goldberg may have executed the affidavit with apparent authority for another purported attorney-in-fact.   In this regard, listed above Mr. Goldberg's signature is “U.S. Bank National Association, as Trustee, By Barclays Capital Real Estate Inc. dba HomEq Servicing, attorney in fact” (“Barclays/HomEq Servicing”).   In addition to Mr. Goldberg's signing for Barclays/HomEq Servicing, it appears that he also executed the affidavit with apparent authority for yet another attorney-in-fact, plaintiff's own counsel, Rosicki, Rosicki & Associates.   The Rosicki firm is listed as attorney-in-fact below Mr. Goldberg's signature.   In essence, therefore, it appears that Mr. Goldberg executed the subject affidavit on his own behalf, on behalf of Barclays/HomEq Servicing, and on behalf of Rosicki, Rosicki & Associates, all as purported attorneys-in-fact for the same plaintiff, in the same foreclosure proceeding.   In any event, none of the purported attorneys-in-fact are parties to this action and there is no evidence that any are authorized to act on behalf of the plaintiff for purposes of satisfying the proofs required by statute (CPLR § 3215[f] ).

 Questions regarding the validity of the alleged mortgage assignments also preclude granting of judgment for the plaintiff.   In this regard, the moving papers establish that the original lender stated in the subject January 5, 2005 mortgage (No. 0069985638-9604), was Argent Mortgage Company, LLC (“Argent”).   The mortgage was then purportedly assigned by Argent to Ameriquest Mortgage Company (“Ameriquest”), by assignment dated January 5, 2005.   By another assignment, dated January 5, 2005, the mortgage was then allegedly assigned by Ameriquest to the plaintiff.

Both assignment forms include handwritten insertions and modifications to the form.   For example, the original mortgage loan number (# 0069985638-9604), which was typewritten at the top of each assignment, has been crossed out by hand on both assignments, thereby raising questions as to whether or not these assignments are applicable to the subject mortgage.   Furthermore, both assignments were apparently executed simultaneously by the same individual, as the purported agent for both assignors.   First, the assignment from Argent to Ameriquest was executed by Jose Burgos as agent for Argent. On the same date, however, the purported assignment from Ameriquest to the plaintiff was also executed by Mr. Burgos, this time as agent for Ameriquest.   In effect, the mortgage was purportedly assigned by Mr. Burgos to Mr. Burgos, and then, in turn, by Mr. Burgos to the plaintiff.

 The moving papers contain no proof that Mr. Burgos had either entity's authority to act in a dual agency capacity.   Therefore, the Court is unable to conclude that the assignments were validly executed, nor that the plaintiff had an ownership interest in the subject mortgage at the time of the filing of this action.   Since a party has no foundation in law or fact to foreclose upon a mortgage without establishing its legal or equitable interest, the plaintiff's motion must be denied (Katz v. East-Ville Realty Co., 249 A.D.2d 243, 672 N.Y.S.2d 308 [1st Dept. 1998] ).   Foreclosure of a mortgage may not be brought by one who has no title to it and absent an effective transfer of the debt, the assignment of the mortgage is a nullity (Kluge v. Fugazy, 145 A.D.2d 537, 536 N.Y.S.2d 92 [2d Dept. 1988] ).

Based on the foregoing, the plaintiff has failed to establish that it has standing as a plaintiff in this matter.   As a result, the Court is unable to conclude that the affidavit in support of the motion from the plaintiff's purported attorney-in-fact is, in fact, a proper party affidavit as required by CPLR § 3215(f).  Therefore, the motion is denied, as the entry of judgment under these facts would be error (see, Peniston v. Epstein, 10 A.D.3d 450, 780 N.Y.S.2d 916 [2d Dept. 2004];  Grainger v. Wright, 274 A.D.2d 549, 713 N.Y.S.2d 182 [2d Dept. 2000];  Finnegan v. Sheahan, 269 A.D.2d 491, 703 N.Y.S.2d 734 [2d Dept. 2000];  Hazim v. Winter, 234 A.D.2d 422, 651 N.Y.S.2d 149 [2d Dept. 1996];  Mullins v. DiLorenzo, 199 A.D.2d 218, 606 N.Y.S.2d 161 [1st Dept. 1993] ).

This constitutes the Decision and Order of the Court.

PETER H. MAYER, J.