Você está na página 1de 2

-~

_ _

_______

1
1
I

SHORT FORM ORDER

Index No:

03004912005

SUPREME COURT STATE OF NEW YORK IASTRIAL PART 9 SUFFOLK COUNTY

PRESENT:

Hon.

EDWARD D. BURKE Acting Justice of Supreme Court

Motion IUD : Mot Seq# :

NONE - Exparte 001 MD ORDER NOTSIGNED

1
I
1
I

Trustee C/O Chase Home Finance, LLC 10790 Rancho Bernard0 Road San Diego, CA 92127,

LASALLE BANK NATIONAL ASSOCIATION, as


I

STEVEN J. BAUM, ESQ.


I I
I I

Attorneys for Plaintiff(s) 220 Northpointe Parkway, Suite G Amherst, New York 14428

Plaintiff(s),

- against -

I
I I I

I
~

i i
~

MICHAEL LAMY, JOAN LAMY, JOHN DOE, the name being fictitious, it being the intention of Plaintiff to desi nate any and all occupants of premises being foreclosef herein, and any parties, corporations or entities, if any, having or claiming an interest in or lien upon the Mortgaged Premises,
Defendant(s).

; ;I
I

I
I

I
~

Affidavits and supporting papers

Upon the following papers numbered 1 to 3 read on this motion by the plaintiff for an order fixing the defaults of the mortgagors and appointing a referee to compute ;Notice of MotiodOrder to Show Cause and supporting papers 1 to 3 ;Notice of Cross Motion and supporting papers ;Answering Affidavjts and supporting papers .; Replying
; Other

;( f ) it is,

ORDERED that this ex-parte application (#OO 1) by the plaintiff for an order, inter alia, fixing the defaults of the mortgagor defendants and appointing a referee to compute amounts due under the terms of the note and mortgage that are the subject of this foreclosure action is considered under 1 CPLR 32 15 and RPAPL 1312 and is denied. It is well established that a plaintiff seeking a default 1 judgment must establish the following: 1) due service of the summons and complaint within one (1) l year of the interposition of the plaintiffs motion; 2) a default in answering or otherwise appearing on the part of the defendants; and 3) facts which constitute cognizable claims against the defendants (CPLR 3215(b)(c); Beaton v Transit Facility Corp., 14 AD3d 637, 789 NYS2d 314; Morgan v Bagayyoko, 1 AD3d 582, 767 NYS2d 631). It is also well established that one of the elements of a cognizable claim for foreclosure of a mortgage is that the plaintiff is the owner of the note and mortgage at the time of the commencement of the foreclosure action (Kluge v Fugazy, 145 AD2d 11 537, 536 NYS2d 92; see, also, Katz v Eastville Realty Co., 249 AD2d 243,672 NYS2d 308).

1 1

~~

LaSalle Bank v. Lamy Index No: 030049/2005

[COPY

1
\

Page 2 of 2 Pages

Review of the plaintiffs complaint reveals that there are no allegations that the plaintiff is the owner of the note and mortgage and that it was so on the date of the commencement of this action. Indeed, the documentation attached to the moving papers indicates that the plaintiff was not the owner of the note and mortgage at the time this action was commenced. Rather, the plaintiff is the purported assignee of Mortgage Electronic Registration Systems, Inc. (MERS), who was named in the mortgage indenture as nominee of the original lender for recording purposes only. Clearly, the purported assignment of the note and mortgage by one without ownership thereof, is a nullity.
This court, and others, have repeatedly held that Mortgage Electronic Registration Systems, Inc. (MERS) has no standing to prosecute a mortgage foreclosure action as nominee of the original lender but, instead, must establish that it is the owner of the note and mortgage at the time of the commencement of the action by a duly executed assignment thereof to MERS or otherwise (see, Mortgage Electronic Registration Systems, Inc. v Burek, 4 Misc3d 1030, 298 NYS2d 346; see, also, Challenges to MERSStanding, by Kenneth M. Block and JeffreyR.Steiner, 11/16/05 NYLJ [p. 5 col. 21).

Here, the plaintiff stands before this court as the purported assignee of a mere nominee of the true owner of the note and mortgage. The plaintiffs complaint fails to allege that it is the owner of the note and mortgage which are the subject of this action. As such, the plaintiff is not entitled to the relief demanded since it failed to establish facts constituting cognizable claims against the defendants for a judgment of foreclosure and sale of the subject premises by default (CPLR 3215). In view of the foregoing, the instant motion is denied and the proposed order of reference is marked Not Signed.

Dated: March :3/ ,2006.

Você também pode gostar