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[*1] Deutsche Bank National Trust Company, AS TRUSTEE FOR THE

CERTIFICATE HOLDERS OF CARRINGTON MORTGAGE LOAN TRUST
2005-OPT2, ASSET-BACKED CERTIFICATES, SERIES 2005-OPT2, Plaintiff
against Debra Abbate, CARMELA ABBATE, KIM FIORENTINO, BOCCE
COURT HOMEOWNERS ASSOCIATION, INC., NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT
ADJUDICATION BUREAU, NEW YORK CITY PARKING VIOLATIONS
BUREAU, and "JOHN DOE No. 1" through "JOHN DOE # 10," the last ten names
being fictitious and unknown to the plaintiff, the person or parties intended being
the person or parties, if any, having or claiming an interest in or lien upon the
Mortgaged premises described in the Complaint, Defendants.

100893/07

SUPREME COURT OF NEW YORK, RICHMOND COUNTY

2009 NY Slip Op 52154U; 25 Misc. 3d 1216A; 901 N.Y.S.2d 905; 2009 N.Y. Misc.
LEXIS 2887; 242 N.Y.L.J. 81

October 6, 2009, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND
WILL NOT BE PUBLISHED IN THE PRINTED
OFFICIAL REPORTS.
PUBLISHED IN TABLE FORMAT IN THE NEW
YORK SUPPLEMENT.
For Defendant: Robert E. Brown, Esq.
JUDGES: Joseph J. Maltese, Justice of the Supreme
Court.
OPINION BY: Joseph J. Maltese

HEADNOTES OPINION

[**1216A] [***905] Joseph J. Maltese, J.

Mortgages--Assignment--Retroactive Assignment.
The defendants Kim Fiorentino, Debra Abbate, and
COUNSEL: For Plaintiff: Law firm of Frenkel Lambert Carmella Abbate's motion to dismiss the plaintiff's
Weiss & Weisman. complaint is granted in its entirety.

2009 NY Slip Op 52154U, *1; 25 Misc. 3d 1216A, **1216A;
901 N.Y.S.2d 905, ***905; 2009 N.Y. Misc. LEXIS 2887
This is an action to foreclose a mortgage dated
February 24, 2005, upon the property located at 25 Bocce
Court, Staten Island, New York. The mortgage was
originated by Suntrust Mortgage Inc. ("Suntrust") and
was recorded in the Office of the Clerk of Richmond
County on April 26, 2005. The plaintiff filed the
Summons, Complaint, and Notice of Pendency on March
[*2] 1, 2007. 1 However, Suntrust assigned the first
mortgage on this property to Option One Mortgage
Corporation, which was executed on July 6, 2007.
Another assignment to plaintiff Deutsche Bank National
Trust Company ("Deutsche Bank") was executed on
March 7, 2007. Both assignments, which were recorded
on July 23, 2007, contained a clause expressing their
intention to be retroactively effective: the first one to date
back to February 24, 2005, and the second one to
February 28, 2007. 2 On November 19, 2007, this court
issued an order of foreclosure and sale on the subject
property. This court also granted two orders to show
cause to stay the foreclosure on January 9, 2008 and
April 8, 2008. 3
1 Defendants' exhibit A
2 Defendants' exhibit C.
3 Plaintiff's exhibits D & F.
Discussion
The Appellate Division, Second Department ruled
and reiterated in Kluge v. Kugazy the well established law
that "foreclosure of a mortgage may not be brought by
one who has no title to it . . . ." 4 The Appellate Division,
Third Department has similarly ruled that an assignee of
a mortgage does not have a right or standing to foreclose
a mortgage unless the assignment is complete at the time
of commencing the action. 5 An assignment takes the
form of a writing or occurs through the physical delivery
of the mortgage. 6 Absent such transfer, the assignment
of the mortgage is a nullity. 7
4 Kluge v. Fugazy, 145 AD2d 537, 536 N.Y.S.2d
92 [2d Dept 1988].
5 LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d
911, 875 N.Y.S.2d 595 [3d Dept 2009]; Bankers
Trust Co. v. Hoovis, 263 AD2d 937, 694 N.Y.S.2d
245 [3d Dept 1999].
6 Flyer v. Sullivan, 284 AD 697, 134 N.Y.S.2d
521 [1st Dept 1954].
7 Kluge v. Fugazy, 145 AD2d 537, 536 N.Y.S.2d
92, supra note 4.
Page 2
Retroactive Assignments of a Mortgage are Invalid
The first issue this court must resolve is whether the
clauses in the July 6, 2007 and March 7, 2007
assignments setting the effective date of the assignment
to February 24, 2005 and February 28, 2007 respectively
are permissible. This court rules that, absent a physical or
written transfer before the filing of a complaint,
retroactive assignments are invalid.
Recently, trial courts have been faced with the
situation where the plaintiff commenced a [*3] action
before the assignment of the mortgage. 8 In those cases
the trial courts have held, . . . where there is no evidence
that plaintiff, prior to commencing the foreclosure action,
was the holder of the mortgage and note, took physical
delivery of the mortgage and note, or was conveyed the
mortgage and note by written assignment, an
assignment's language purporting to give it retroactive
effect prior to the date of the commencement of the
action is insufficient to establish the plaintiff's requisite
standing. . . 9
8 See, Washington Mutual Bank v. Patterson, 21
Misc 3d 1145[A], 875 N.Y.S.2d 824, 2008 NY Slip
Op 52507[U][2008]; See also, Indymac Bank,
FSB v. Bethley, 22 Misc 3d 1119[A], 880
N.Y.S.2d 873, 2009 NY Slip Op 50186[U][2009];
See also, New Century Mortgage Corp. v.
Durden, 22 Misc 3d 1118[A], 880 N.Y.S.2d 874,
2009 NY Slip Op 50175[U][2009].
9 Washington Mutual Bank v. Patterson, 21
Misc 3d 1145[A], 875 N.Y.S.2d 824, 2008 NY Slip
Op 52507[U][2008].
In this case, the plaintiff failed to offer any
admissible evidence demonstrating that they became
assignees to the mortgage on or before March 1, 2007; as
such, this court agrees with its sister courts and finds that
the retroactive language contained in the July 26, 2007
and March 7, 2007 assignments are ineffective. This
court therefore rules that it lacks jurisdiction over the
subject matter when the plaintiff has no title to the
mortgage at the time that it commenced the action.
The next issue this court must resolve is whether the
defendants waived subject matter jurisdiction because
they did not raise that issue in their prior applications to
this court.
Affirmative Defense of Standing

2009 NY Slip Op 52154U, *3; 25 Misc. 3d 1216A, **1216A;
901 N.Y.S.2d 905, ***905; 2009 N.Y. Misc. LEXIS 2887
At the outset of any litigation, the court must
ascertain that the proper party requests an adjudication of
a dispute. 10 As the first step of justiciability, "standing to
sue is critical to the proper functioning of the judicial
system." 11 Standing is a threshold issue; if it is denied,
"the pathway to the courthouse is blocked." 12
10 Caprer v. Nussbaum, 36 AD3d 176, 825
N.Y.S.2d 55 [2006]
11 Id; Credit-Based Asset Servicing and
Securitization, LLC v. Akitoye, 22 Misc. 3d
1110[A], 880 N.Y.S.2d 223, 2009 NY Slip Op
50076[U] [2009] citing Saratoga County
Chamber of Commerce, Inc. v. Pataki, 100 NY2d
801, 812, 798 N.E.2d 1047, 766 N.Y.S.2d 654
[2003], cert denied 540 U.S. 1017, 124 S. Ct. 570,
157 L. Ed. 2d 430 [2003].
12 Id.
The doctrine of standing is designed to "ensure that a
party seeking relief has a sufficiently cognizable stake in
the outcome so as to present a court with a dispute that is
capable [*4] of judicial resolution." 13 "Standing to sue
requires an interest in the claim at issue in the lawsuit that
the law will recognize as a sufficient predicate for
determining the issue at the litigant's request." 14 Where
the plaintiff has no legal or equitable interest in a
mortgage, the plaintiff has no foundation in law or in fact.
15
13 Id. citing Society of Plastics Indus. v. County
of Suffolk, 77 NY2d 761, 772, 573 N.E.2d 1034,
570 N.Y.S.2d 778 [1991].
14 Katz v. East-Ville Realty Co., 249 AD2d 243,
672 N.Y.S.2d 308 [1st Dept 1998]; Kluge v.
Fugazy, 145 AD2d 537, 536 N.Y.S.2d 92, supra
note 4.
15 Id.
A plaintiff who has no standing in an action is
subject to a jurisdictional dismissal since (1) courts have
jurisdiction only over controversies that involve the
plaintiff, (2) a plaintiff found to lack "standing is not
involved in a controversy, and (3) the courts therefore
have no jurisdiction of the case when such plaintiff
purports to bring it." 16
16 Security Pac. Natl. Bank v. Evans, 31 AD3d
278, 820 N.Y.S.2d 2 [1st Dept 2006, Catterson, J.,
dissenting] citing Siegel, NY Prac § 136, at 232
[4th ed].
Page 3
On November 7, 2005, in the case of Wells Fargo
Bank Minn. N.A. v. Mastropaolo ["Mastropaolo"], this
court found that "Insofar as the plaintiff was not the legal
titleholder to the mortgage at the time the action was
commenced, [the Bank] had no standing to bring the
action and it must be dismissed." 17 Erroneously, this
court "[o]rdered, that the plaintiff's summary judgment
motion is denied in its entirety and that this action is
dismissed with prejudice." 18
17 Wells Fargo Bank Minnesota N.A. v.
Mastropaolo, Sup Ct, Richmond County, Nov.7,
2005, Maltese, J., index No. 101817/2005.
18 Id.
This Court should have ordered that this matter was
dismissed without prejudice, which would have given the
plaintiff the right to start the action again after it had
acquired title to the note and mortgage. Unfortunately,
the plaintiff, did not seek a motion to reargue that error,
which would have been corrected promptly. Instead, the
plaintiff appealed the decision to the Appellate Division,
Second Department, which rightfully reversed the
decision 18 months later on May 29, 2007 based upon the
dismissal with prejudice as opposed to a dismissal
without prejudice to refile the action. However, in what
appears to be dicta, the court went on to discuss whether
lack of standing is tantamount to lack of subject matter
jurisdiction. The court further stated that the failure of the
initial pro se defendant to make a pre-answer motion or a
motion to dismiss, the defense of lack of standing would
be waived. But the Appellate Division did not address the
issue of subject matter jurisdiction, which may not be
waived.
[*5] In the instant case, this court is again faced
with similar facts, which raise the issue that the Bank
must have title to the mortgage before it can sue the
defendant. Clearly, having title to the subject matter (the
mortgage) is a condition precedent to the right to sue on
that mortgage. This has always been the case, but since
the Appellate Division, Second Department's comments
in Mastropaolo, that issue has been clouded.
At the time that the plaintiff improperly commenced
the action, the pathway to the Courthouse should have
been blocked. Deutsche Bank had no legal foundation to
foreclose a mortgage in which it had no interest at the
time of filing the summons and complaint. Lack of a
plaintiff's interest at the beginning of the action strips the
court's power to adjudicate over the action. 19 Lack of

2009 NY Slip Op 52154U, *5; 25 Misc. 3d 1216A, **1216A;
901 N.Y.S.2d 905, ***905; 2009 N.Y. Misc. LEXIS 2887
interest and controversy is protected by the umbrella of
subject matter jurisdiction. Whenever a court lacks
jurisdiction, a defense can be raised at any time and is not
waivable. 20 In other words, for there to be a cause of
action, there needs to be an injury. At the time that the
action was commenced, the instant plaintiff suffered no
injury and had no interest in the controversy. Since the
plaintiff filed this action to foreclose the mortgage before
it had title to it, there was no controversy between the
existing parties when the action commenced. Therefore,
the court lacked subject matter jurisdiction to adjudicate
the present case. The defendants are consequently entitled
to a dismissal without prejudice because the court lacked
jurisdiction over a non-existent controversy.
19 Siegel, NY Prac § 136, at 232 [4th ed].
20 Id.
Accordingly, it is hereby:
Page 4
ORDERED, that the defendants Kim Fiorentino,
Debra Abbate, and Carmella Abbate's motion to dismiss
the plaintiff's complaint is granted, without prejudice to
the plaintiff having the right to refile within the time
provided by the Statute of Limitations; and it is further
ORDERED, that the parties and counsel shall appear
before this court to further conference this matter on
November 20, 2009 at 11:00AM.
ENTER,
DATED: October 6, 2009
Joseph J. Maltese
Justice of the Supreme Court