Purported Non-Compliance with Requirements of Administrative Order 548/10 Insufficient to Vacate Judgment of Foreclosure and Sale

By Matthew D. Donovan on March 19th, 2013

Posted in Administrative Order 548/10, CPLR 3408, CPLR 5015

In a February 19, 2013, decision by Justice Whelan, the court denied plaintiff-mortgagee-lender’s motion to vacate a judgment of foreclosure and sale, as well as the order of reference, and to extend the notice of pendency. Plaintiff moved on the basis of an alleged failure by a prior servicer to comply with the new substantive requirements of Administrative Order 548/10 (the “Admin. Order”). The underlying foreclosure action was commenced in January 2008. Defendant-mortgagor-borrower failed to answer and appear. A judgment of foreclosure and sale was granted in July 2010, which noted that defendant was in default for an amount in excess of $350,000. The court began its analysis of plaintiff’s motion by reiterating its previous finding that the Admin. Order and its additional substantive requirements “constitute[d] an impermissible exercise of the rule making authority vested in the chief administrator of the courts” and therefore was “an unauthorized intrusion upon the jural relations of the parties to this action and upon the court.” The court then found that, in any event, the attorney affirmation and the servicer affidavit submitted by the prior servicer were in compliance with the requirements of the Admin. Order. Noting that the foreclosure action had been pending for over 1,800 days, the court concluded that “[t]he time had come” for an end to the litigation.

US Bank v Castillo, Sup Ct, Suffolk County, January 19, 2013, Whelan, J., Index No. 2161/08

"The courts are really starting to swing back in favor of the banks and are increasingly showing  “the time had come for an end to the litigation” mindset." -Robert E. Brown, Esq.

ResCap Told to Seek New Foreclosure-Review Deal With U.S.

Residential Capital LLC should try to negotiate a new foreclosure-review process with federal regulators before seeking a bankruptcy court order to halt the $300 million program, a judge said.

U.S. Bankruptcy Judge Martin Glenn in Manhattan told ResCap today he wouldn’t rule immediately on the company’s request to suspend its obligation to find any damages suffered by borrowers who went through foreclosure. ResCap, through its GMAC Mortgage unit, agreed to the review under a settlement with U.S. regulators before filing for bankruptcy last year.

The review, which may cost about $300 million, is a waste of money because a new federal policy allows a lump-sum payment to be split among borrowers, a lawyer for ResCap said today. That would be cheaper than paying PricewaterhouseCoopers LLP to conduct the review, the company said.

“You have to negotiate with the Fed and then come back to me,” Glenn said, referring to the U.S. Federal Reserve, which is requiring the review. “I’m not ruling today, I’m making that crystal clear.”

The review may yield $35 million to $60 million to homeowners who have been harmed, the official committee of ResCap creditors said in court papers.

The company has asked Glenn to declare that costs of paying damages found by the review are unsecured claims, which would give them a lower repayment priority than other company debts.

ResCap, based in New York, filed for bankruptcy in May with plans to sell most of its assets and resolve legal claims related to residential mortgage-backed securities.

Last year, in what the U.S. called the largest federal- state civil settlement its history, the nation’s five largest mortgage servicers committed $20 billion in relief for borrowers plus payments of $5 billion to governments.

The case is In re Residential Capital LLC, 12-12020, U.S. Bankruptcy Court, Southern District of New York (Manhattan).

Click here for full article "Bloomberg News"

DECISION: U.S. National Association v. Said

Summary Judgement was granted in favor of the homeowner where the Court determined the bank lacked standing due to a defective MERS assignment.

u.s. v. said by

Mortgage Buyer Lacks Personal Knowledge of Default; Judge Blocks Foreclosure Bid

Mortgage Buyer Lacks Personal Knowledge of Default; Judge Blocks Foreclosure Bid

Brendan Pierson

New York Law Journal

The buyer of a mortgage that is already in default cannot foreclose on the mortgage because it does not have personal knowledge of the default, a state judge has ruled, though the buyer may be able to remedy that if it can get an affidavit from the mortgage's previous owner.

In a Feb. 14 order in FTBK Investor II v. Joshua Management, 810164/11, Manhattan Supreme Court Justice Paul Wooten also rejected several other arguments put forward by the mortgage borrower attempting to avoid default.

The defendant in the case, Joshua Management, originally took out a mortgage from Washington Mutual to buy a property at 2866 Frederick Douglass Blvd. in Harlem in 2005. In 2008, Washington Mutual was seized by the federal Office of Thrift Supervision and then put in control of the Federal Deposit Insurance Corp. It was subsequently sold to JPMorgan Chase & Co.

In May 2011, Chase began a foreclosure action against Joshua, alleging it had stopped making mortgage payments in December 2010. In fall 2011, the mortgage was transferred to a company called NY Brooklyn Investor and then to FTBK Investor II. FTBK took the place of Chase in the foreclosure action and moved for summary judgment.

Joshua opposed, arguing that FTBK had not shown that the mortgage was ever transferred from Washington Mutual to Chase. Joshua acknowledged that FTBK is in physical possession of the mortgage document, but said that it had to provide a record that the document was delivered from Washington Mutual to Chase.

0.

Furthermore, Joshua argued that because the alleged default happened before FTBK acquired the mortgage, FTBK could not foreclose on it because it lacked personal knowledge of the default.

Wooten rejected Joshua's first argument, finding that FTBK does not have to show that the mortgage was individually transferred from Washington Mutual to Chase because federal law gives the Office of Thrift Supervision and the FDIC the power to transfer Washington Mutual's assets without individual assignments….

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However, he did accept Joshua's second argument, that FTBK did not have personal knowledge of the default….

______________________________________

FTBK Investor Ii LLC v. Joshua Management LLC, 810164/11

Supreme Court, New York County, Part 7

810164/11

New York Law Journal

03-07-2013

Cite as: FTBK Investor Ii LLC v. Joshua Management LLC, 810164/11, NYLJ 1202590547576, at *1 (Sup., NY, Decided February 2013)

Justice Paul Wooten

Decided: February 2013

Additional Defendants

New York State Department of Taxation and Finance, New York City Department of Finance, New York City Environmental Control Board, Castle Oil Corp., New York City Department of Housing Preservation and Development, and "John Doe No. I" to "John Doe No. Xxx," Inclusive, the Last Thirty Names Being Fictitious and Unknown to Plaintiff, the Persons or Parties Intended Being the Tenants, Occupants, Persons or Corporations, If, any, Having or Claiming an Interest In or Lien Upon the Premises Described In the Complaint

*1

Motion sequences 003 and 004 are hereby consolidated for purposes of disposition. In this action, FTBK Investor II, LLC, as Trustee for N.Y. Brooklyn Investor II Trust 1 (plaintiff) seeks to foreclose upon a mortgage secured by property located at 2866 Frederick Douglas Boulevard, New York, New York and owned by defendant Joshua Management, LLC (Joshua). The mortgage agreement and an Amended and Restated Promissory Note (Note) in the amount of $2,812,500.00 were originally executed by Joshua in favor of Washington Mutual Bank, F.A.

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(WaMu). In motion sequence 003, Plaintiff moves for an order granting it summary judgment on its complaint, striking Joshua's answer, appointing a referee to compute the sums due and owing to plaintiff, entering a default judgment against non-appearing defendants New York State Department of Taxation and Finance, New York City Environmental Control Board and New York City Department of Housing Preservation and Development and dismissing the complaint without prejudice as against de

fendants John DOE No.1 to John Doe No. XXX. In motion sequence 004, plaintiff moves, by Order to Show Cause (OSC), for the appointment of a temporary receiver. Joshua opposes these motions on the grounds that the plaintiff lacks standing to foreclose upon the mortgage and has failed to adequately demonstrate that Joshua is in default with respect to the Note.

BACKGROUND

On August 12, 2005, Joshua signed a promissory note and mortgage agreement in favor of WaMu in order to obtain a loan in the amount of $2,812,500.00. The loan was secured by property located at 2866 Frederick Douglass Boulevard, New York, New York. The mortgage was recorded with the Office of the City Register on August 26, 2005 (see Affirmation of Jerold C. Feuerstein, Esq. [Feuerstein Aff.], exhibits A, B).

On September 25, 2008, the United States Office of Thrift Supervision (OTS) seized WaMu and placed it into the receivership of the Federal Deposit Insurance Corporation (FDIC). That same day, the FDIC transferred and/or sold most of WaMu's assets, including its deposit liabilities and its secured debts and loans to JPMorgan Chase & Co. (Chase). Pursuant to 12 USC §1821(d)(2)(G)(i)(II), the FDIC, as receiver of a failed bank, is authorized to "transfer any asset or liability of the institution in default…without any approval, assignment, or consent with respect to such transfer." WaMu's loans were transferred to Chase through a Purchase of Assumption Agreement (the PAA) executed by FDIC and Chase on September 25, 2008 (id., exhibit C). As proof that the Note and mortgage executed by Joshua was one of the loans transferred to Chase, the plaintiff relies on an affidavit signed by Robert C. Schoppe (Schoppe

*3

Affidavit), an authorized representative of the FDIC. The Schoppe Affidavit claims that "Chase acquired certain of the assets, including all loans and all loan commitments, of Washington Mutual." However neither the Schoppe Affidavit nor the PAA mention or refer to any specific loans.

On August 19, 2011, the subject mortgage was assigned and the Note endorsed over to N.Y. Brooklyn Investor II, LLC, a New York limited liability company (NY Brooklyn Investor). On September 12, 2011, NY Brooklyn Investor assigned the mortgage and Note over to the plaintiff (id., exhibits D, E). Both of these assignments were registered and recorded on October 3, 2011 (id.).

Pursuant to the terms of the Promissary Note, Joshua was obligated to make monthly payments of $15,600.48, starting on October 1, 2005. Plaintiff claims that Joshua is in default because it failed to tender any monthly payments on the Note on or after December 1, 2010. The mortgage agreement provides that the mortgagors are in default when they fail to make any regular payment under the Note "so that it was received by the [lender] within 15 days after the date when due" (id., exhibit B). Section 5.3 of the Mortgage, provides in pertinent part, "Upon the occurrence of any Event of Default, all sums secured hereby shall become immediately due and payable, without notice or demand…and Lender may…(b) Foreclose this Security Instrument as provided in Section 7 or otherwise realize upon the Property…" (id.). By letter dated April 22, 2011, counsel for Chase informed Joshua that Chase was exercising its option to declare the entire principal amount of the loan in default, together with all accrued and unpaid interest and to commence a foreclosure proceeding against Joshua (id., exhibit G).

Prior to its assigning the mortgage and Note to NY Brooklyn Investor, Chase commenced this action to foreclose upon the property via a summons and complaint dated May 20, 2011. In addition to Joshua, Chase named various other parties with an interest in the property as well as defendants John Doe No.1 through John Does No. XXX, as potential tenants of or unknown creditors or lien holders on the property. On July 12, 2011, Joshua

*4

interposed an answer which, inter alia, raised seven affirmative defenses: (1) failure to state a cause of action; (2) unclean hands; (3) denial of default and, alternatively that default was "wrongfully induced by the Plaintiff; (4) denial of any non-monetary default; (5) failure to provide notice and a cure period; (6) reservation of the right to amend the answer to include new affirmative defenses; and (7) denial of waiver of affirmative defenses. On November 16, 2011, this Court signed an order amending the caption of this action to reflect the substitution of FTBK Investor II, LLC, as trustee for NY Brooklyn Investor II Trust I as the plaintiff in the action.

In motion sequence 003, plaintiff moves for an order granting summary judgment, striking Joshua's answer, and appointing a referee to compute the sums due and owing to Plaintiff. Joshua opposes this relief. Plaintiff also seeks an order dismissing the John Doe defendants without prejudice and entering a default judgment against defendants New York State Department of Taxation and Finance, New York City Environmental Control Board and New York City Department of Housing Preservation and Development, all of whom have failed to answer the complaint or otherwise appear in this action. Joshua does not offer any opposition to the granting of this relief. In motion sequence 004, Plaintiff moves, by OSC for the appointment of a temporary receiver for the property. Joshua opposes.

CONTENTIONS OF THE PARTIES

Plaintiff asserts that it is the valid holder of the Note and mortgage, signed by Joshua, that Joshua has failed to make the required payments pursuant to the Note and is therefore in default. As such, plaintiff proffers that it has established a prima facie case that it is entitled to foreclose on the property. Plaintiff also maintains that Joshua's answer does not raise any meritorious defenses that would negate the plaintiff's prima facie showing. In addition to producing the indorsed Note, the mortgage agreement, and the two mortgage assignments, plaintiff has also submitted an affidavit from Brian Shatz (Shatz), the managing member of the plaintiff trustee. Shatz states that he has personal knowledge of the existence of Joshua's default and the amount of the principal balance due "based upon Plaintiff's books and records"

*5

(Feuerstein Aff., Shatz Affid., ¶21). Shatz states in his affidavit that he reviewed files maintained in the ordinary course of business by plaintiff and Chase that relate to the loan that is the subject of this action.

Joshua contends that summary judgment should be denied because plaintiff has failed to provide any proof that the mortgage and note were transferred from the FDIC to Chase, plaintiff's predecessor-in-interest, and therefore plaintiff has failed to sufficiently demonstrate that it has standing to foreclose on the mortgage. Joshua further claims that plaintiff lacks standing because there is no endorsement or allonge on the Note evidencing its valid assignment to Chase. Furthermore, Joshua claims that Shatz's affidavit is insufficient proof of Joshua's default on the Note because he has not demonstrated sufficient personal knowledge of the circumstances surrounding Joshua's alleged default.

In reply, plaintiff claims that a formal assignment of the mortgage and note to Chase was not necessary to effectuate a transfer. Plaintiff also submits a Supplemental Affidavit from Shatz. In his Supplemental Affidavit, Shatz claims that he reviewed the files concerning the subject loan before plaintiff acquired the loan from NY Brooklyn Investor, including all loan related files such as the underwriting file, loan documents, payment histories, default and acceleration letters and other correspondences. Shatz indicates in the Supplemental Affidavit, that the documents he reviewed were presented to him as "business records of the predecessors in interest to NY Brooklyn (and Plaintiff for that matter) and they appeared to [him] to be consistent with similar business records customarily held in the mortgage lending industry" (Feuerstein Reply Aff., Shatz Sup. Affid. at p. 3).

With regards to the appointment of a temporary receiver, plaintiff relies on section 5.3 of the mortgage agreement which states that in the event of a default" Mortgagee may…[h]ave a receiver appointed as a matter of right on an ex parte basis without notice to Mortgagor and without regard to the sufficiency of the Property or any other security for the indebtedness secured hereby and, without the necessity of posting a bond or security, such receiver shall take

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possession and control of the Property and shall collect and receive all of the rents, issues and profits thereof" (Feuerstein Aff., exhibit B). Plaintiff contends that this provision, read in conjunction with Real Property §254(10), entitles it to have a receiver appointed for the Property regardless of the sufficiency of the current property management. Moreover, plaintiff asserts that Joshua has failed to properly manage the subject property. Joshua again contends that plaintiff provides insufficient proof that it is the valid holder of the note and mortgage. Joshua also disputes plaintiff's contentions that it is not managing the property effectively, and argues that the appointment of a receiver could disrupt its management and is otherwise not necessary to protect the plaintiff's collateral.

STANDARD

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v. AJI Indus. Inc., 10 NY3d 733, 735 [2008]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v. Citibank Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212[b]).

When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all

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reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc., 65 NY2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary judgment should be denied (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]).

In moving for summary judgment in a mortgage foreclosure action, plaintiff establishes a prima facie right to foreclose by producing the mortgage, the assignment, if any, the unpaid note and evidence of default (see CitiFinancial Co. (DE) v. McKinney, 27 AD3d 224, 226 [1st Dept 2006]; LPP Mortgage, Ltd v. Card Corp., 17 AD3d 103, 104 [1st Dept 2005]; Hypo Holdings, Inc. v. Chalasani, 280 AD2d 386 [1st Dept 2001]). Once the plaintiff satisfies that burden, it is incumbent on the party opposing foreclosure to come forward with evidence sufficient to raise a triable issue of fact as to a bona fide defense such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff (see CitiFinancial, 27 AD3d at 226; Mahopac Nat. Bank v. Baisely, 244 AD2d 466, 467 [2nd Dept 1997]). Where the defendant has put standing into issue, the plaintiff can demonstrate its standing and entitlement to relief by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced (see U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 753 [2nd Dept 2009]; see also Bank of New York v. Silverberg, 86 AD3d 274, 279 [2nd Dept 2011]; Countrywide Home Loans, Inc. v. Gress, 68 Ad3d 709, 709 [2nd Dept 2009]).

DISCUSSION

Usually, an assignment of a mortgage and underlying note can be effectuated either through a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action (Collymore, 68 AD3d at 754). Joshua argues that the plaintiff cannot establish that it has standing because it cannot demonstrate that the mortgage and underlying note was validly assigned to Chase, plaintiff's predecessor-in-interest, prior to the commencement of this action. Plaintiff has provided a written assignment of both the mortgage and the underlying Note from Chase to NY Brooklyn Investor and from NY

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Brooklyn Investor to plaintiff. However, plaintiff does not have written proof of the assignment to Chase from either WaMu or the FDIC, as receiver. The only proof that plaintiff has offered regarding the transfer of the subject loan from WaMu to the FDIC and/or Chase is the affidavit by Schoppe, the FDIC representative. As stated above, the Schoppe affidavit does not refer to any specific loans or mortgages but merely asserts that all of WaMu's loans were transferred to Chase after WaMu's seizure by the FDIC.

Joshua acknowledges that the plaintiff is in physical possession of the note and mortgage, but argues that the motion must be denied because the plaintiff has not provided any admissible evidence such as an affidavit or documents which would demonstrate that the loan documents were delivered to Chase prior to the commencement of this action. Plaintiff may have demonstrated that it was validly assigned the loan from Chase and NY Brooklyn Investor, but Joshua insists that plaintiff must also demonstrate that Chase was validly assigned the note and mortgage from WaMu and/or the FDIC as receiver prior to the commencement of this action.

Based on the above facts, Joshua argues that the evidence proffered by the plaintiff to demonstrate its standing is insufficient. The Court disagrees. Plaintiff correctly points out that the FDIC clearly had the authority to transfer the loans in bulk to Chase pursuant to 12 USC §1821 (d)(2)(G)(i)(II), and that an individual negotiation, i.e. assignment, of each loan was not required. Pursuant to 12 USC §1821 (d)(2)(G)(i)(II), the FDIC, as receiver of a failed bank, is authorized to "transfer any asset or liability of the institution in default…without any approval, assignment, or consent with respect to such transfer." According to the express terms of the statute, a valid transfer of the assets of a failed bank from the FDIC occurs even without a formal assignment instrument. As evidenced by the terms of the PAA, Chase acquired all assets of WaMu, with certain exceptions not applicable to this action. Specifically, section 3.1 of the PAA provides that, with the exception of the assets not applicable to this action, "[Chase] hereby purchases from the receiver [FDIC], and the Receiver hereby sells, assigns, transfers,

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conveys, and delivers to the Assuming Institution, all right, title, and interest of the Receiver in and to all of the assets…of the Failed Bank [WaMu]" (Reply papers).

Citing to JP Morgan Chase Bank, N.A. v. 334 Marcus Garvey Boulevard Corp. (Sup Ct, Kings County, Dec. 5, 2011, Rosenberg, J., index No. 26152/09) and JP Morgan Chase Bank, N.A. v. 1770 Realty Corp. (Sup Ct, Kings County, Jan. 29, 2010, Gerges, J., index No.7655/09), plaintiff argues that it can therefore prove Chase's prior ownership of notes and mortgages obtained from WaMu without having to show that the loan documents were individually negotiated and assigned. The Court agrees with plaintiff. There is sufficient documentation to establish that OTS closed WaMu on September 25, 2008 and appointed the FDIC as WaMu's receiver. That same day, the FDIC transferred the bulk of WaMu's assets to Chase pursuant to the PAA. Joshua does not challenge the legality of the transfer or the PAA itself and indeed numerous courts have accepted these transactions as legitimate conveyances of WaMu assets to Chase (see 290 at 71 v. JP Morgan Chase Bank, 2009 WL 3784347, Case No A-09-CA=576-SS[WD Texas 2009] [finding that PAA validly transferred lease from WaMu to Chase]; Grealish v. WaMu, FA, 2009 WL 2170044, Case No 2:08-CV-763 TS [D Utah 2009]; Hilton v. Washington Mut. Bank, 2009 WL 3485953, No C09-1191 SI [ND Cal 2009]). Accordingly, Joshua's claim that the Note had to have been individually negotiated and physically endorsed to Chase through an allonge is legally incorrect.

Joshua argues that even if plaintiff is correct that Chase received a valid transfer of WaMu's assets from the FDIC, this does not rule out the possibility that the mortgage could have been transferred to another lender prior to WaMu's seizure by the FDIC. Thus Joshua argues that plaintiff must provide proof of Chase's prior ownership of the Note and mortgage beyond the PAA and/or the Schoppe affidavit. There is some caselaw supporting Joshua's position, but the Court does not find it persuasive (see FTBK Investor II LLC v. Mercy Holding LLC, 36 Misc3d 1219(A) *5 [Sup Ct. Kings County 2012]). In making this argument based on its analysis of state law, Joshua overlooks the broad powers granted to OTS which enjoys "plenary and exclusive authority…to regulate all aspects of the operations of Federal savings associations" and its authority "occupies the entire field of lending regulation for federal savings associations" (see 12 CFR §§545.2, 560.2[a]). To this end, OTS Regulation 560.2(b) expressly preempts state regulation of federal thrift activities dealing with lending by federal savings associations including, inter alia, terms of credit, loan related fees, disclosure or advertising and processing, origination or servicing of loans (see 12 CFR §560.2(b); see also Monroig v. Washington Mut. Bank, FA, 19 AD3d 563, 564 [2nd Dept 2005]). There can be no dispute that 12 USC §1821 (d)(2)(G)(i)(II), as it pertains to the broad authority of the OTS and FDIC to transfer mortgages without assignment, pertains to lending, and thus any contrary New York state law or judicial decision would be preempted by federal law (see JP Morgan Chase Bank, N.A. v. 1770 Realty Corp., Sup Ct, Kings County, Jan. 29, 2010, Gerges, J., index No.7655/09, slip op at 16-18; JP Morgan Chase Bank, N.A. v. 334 Marcus Garvey Boulevard Corp., Sup Ct, Kings County, Dec. 5, 2011, Rosenberg, J., index No. 26152/09, slip op at 7-8). Thus, the Court finds that Joshua's contention that the transfer of the mortgage and Note to Chase must be negotiated and/or recorded individually to demonstrate proof of assignment is without merit.

Furthermore, as plaintiff points out, while Joshua argues that the plaintiff has failed to prove valid ownership of the subject loan documents, Joshua fails to give any rational explanation as to how Chase and then the plaintiff obtained possession of the loan documents if in fact WaMu transferred the loan prior to its collapse as Joshua suggests. Faced with plaintiff's strong prima facie showing as to ownership, Joshua cannot point to any credible evidence which suggests that the underlying note was not assigned to Chase from the FDIC and thereafter, from Chase to NY Brooklyn Investor, and then to plaintiff.

However, Joshua also claims that plaintiff has failed to provide sufficient documentary evidence of Joshua's alleged default on payment of the note, arguing that the Shatz affidavit is insufficient to demonstrate default because Shatz had no involvement with the loan and mortgage at the time of the purported default, and thus lacks sufficient personal knowledge of

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the circumstances concerning Joshua's alleged default. In his original affidavit, Shatz says only that he reviewed the files of the plaintiff and Chase, as plaintiff's predecessor-in-interest and knows that the allegations in the complaint concerning Joshua's default are true based on his review of the plaintiff's books and records (see Shatz Affidavit). As a member of the plaintiff assignee, Shatz only reviewed the loan documents created by Chase long after the alleged default took place and has no personal knowledge of the circumstances surrounding the default and or the acceleration of the mortgage by Chase. Furthermore Shatz can not represent that the records that he reviewed were kept by Chase in the ordinary course of business and his affidavit does not even specify or attach copies of the documents upon which he relies (see FBTK Investor II, 2012 WL 3064864 at *5). Even if the documents were attached, they would not be admissible as business records of Chase without an affidavit of a Chase employee indicating that such records were kept in the regular course of Chase's business (see CPLR 4518[a]; Lodato v. Greyhawk N.Am., LLC, 39 AD3d 494, 495 [2nd Dept 2007]). Moreover, Shatz lacks personal knowledge of the facts of the subject mortgage and note prior to its transfer to NY Brooklyn Investor. While the supplemental affidavit of Shatz attempts to cure some of the deficiencies, it is still inadequate and a party can not be permitted to make out his prima facie case on reply (see Cotter v. Brookhaven Mem. Hosp. Med. Ct., Inc., 97 AD3d 524 [2d Dept 2012]; Hawthorne v. City of New York, 44 AD3d 544 [1st Dept 2007]). Therefore, plaintiff cannot meet its burden to demonstrate that Joshua defaulted on the note, and accordingly its motion for summary judgment should be denied without prejudice with leave to renew. Plaintiff's motion seeking an order dismissing the John Doe defendants without prejudice and entering a default judgment against defendants New York State Department of Taxation and Finance, New York City Environmental Control Board and New York City Department of Housing Preservation and Development is granted without opposition.

In motion sequence 004, plaintiff moves for the appointment of a temporary receiver pursuant to section 5.3(a) of the mortgage agreement and Real Property Law 254(10). Since

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the language in the mortgage agreement allowing for the appointment of a receiver without regard to the sufficiency of the property is contingent upon proof of default, and plaintiff has not yet demonstrated that Joshua defaulted on the mortgage, the application for appointment of a temporary receiver is also denied without prejudice with leave to renew.

CONCLUSION

Accordingly, it is

ORDERED that the portions of plaintiff's motion in Motion Sequence 003 seeking summary judgment on its complaint, striking defendant Joshua's answer, and seeking the appoint a referee to compute sums due and owing to plaintiff are denied without prejudice with leave to renew; and it is further,

ORDERED that the portion of plaintiff's motion in Motion sequence 003 seeking to dismiss the complaint without prejudice as against defendants John Doe No.1 to John Doe No. XXX is granted without opposition; and it is further,

ORDERED that the portion of plaintiff's motion in Motion Sequence 003 seeking a default judgment as against defendants New York State Department of Taxation and Finance, New York City Environmental Control Board and New York City Department of Housing Preservation and Development is granted without opposition; and it is further,

ORDERED that Motion Sequence 004 is denied in its entirety without prejudice with leave to renew; and it is further,

ORDERED that counsel for plaintiff is directed to serve a copy of this Order with Notice of Entry upon all parties and upon the Clerk of the Court who is directed to enter judgment accordingly; and it is further,

ORDERED that the parties are directed to appear for a Status Conference on March 13, 2013 at 11:00 a.m., at 60 Centre Street, Room 341, Part 7.

Expand state buyouts in devastated Staten Island neighborhoods

STATEN ISLAND, N.Y. -- After getting so much attention early on in the citywide and national coverage of the devastation caused by Hurricane Sandy, Staten Island more or less fell out of the public eye as other places hit hard by the storm became the iconic symbols of the catastrophe. That’s just as well as far as many storm victims here are concerned. Most were weary of film crews and “disaster tourists” browsing their neighborhoods.

Click here for the full story: silive.com

SERRANO V. HSBC | FL 4TH DCA – SUMMARY JUDGMENT REVERSED: DISPUTE RELATED TO PARAGRAPH 22 CONDITION PRECEDENT TO FORECLOSURE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2013

GIL L. SERRANO, ONELIA SERRANO and TIULANG VALDES,
Appellants,

v.

HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR WELLS
FARGO ASSET SECURITIES CORPORATION, MORTGAGE ASSETBACKED
PASS-THROUGH CERTIFICATES, SERIES 2007-PA1,
Appellee.

No. 4D11-1767

[February 20, 2013]

PER CURIAM.

Appellants Gil L. Serrano, Onelia Serrano, and Tiulang Valdes, defendants below, appeal a final summary judgment of foreclosure in favor of appellee HSBC Bank USA, N.A. as Trustee for Wells Fargo Asset SecuritiesCorporation, Mortgage Asset-Backed Pass-Through Certificates, Series 2007-PA1. We reverse the summary judgment because there remains a genuine issue of material fact regarding whether appelleecomplied with the condition precedent contained in the mortgage to provide pre-suit notice of acceleration. See Dominko v. Wells Fargo Bank, N.A., 102 So. 3d 696 (Fla. 4th DCA 2012). We find no merit in the other issues briefed by appellants.

Reversed and remanded.

STEVENSON, GERBER and CONNER, JJ., concur.

COPY OF DECISION 

Courtesy of  4closurefraud.org

ANOTHER WIN FOR THE LAW OFFICES OF ROBERT E. BROWN, P.C.!

In Citibank, N.A., v. JF, Index No. 501820/2012, Supreme Court, Kings County, Foster & Garbus on behalf of Citibank sought to enforce a note against our clients in the amount of $ $111,790.44 Dollars. 

The Plaintiff did not provide the date of note, the loan number, or the original loan amount; nor does the Complaint indicate whether any payments were made, the amount due or whether the loan was accelerated.   Remarkably, the Complaint only alleges “Upon information and belief, Defendant(s) borrowed money from Plaintiff or Plaintiff’s assignors pursuant to a promissory note.”  The Complaint also falsely alleges “Plaintiff is the original creditor and is not required to be licensed by the NYC Department of Consumer Affairs.”

The Defendants did not execute a note with the Plaintiff, nor did they borrow money from the Plaintiff.  On February 7, 2007, Defendants did sign a note with Geneva Mortgage Corp. – not with the Plaintiff.  Furthermore,  Defendants did not receive any of with the requisite statutory notices prior to commencing this action which purportedly arises out of the Defendants’ default on a promissory note.  As such, the Plaintiff has failed to comply with a condition precedent for the commencement of the law suit. 

Faced with the motion to dismiss the lawsuit, Foster & Garbus voluntarily discontinued the action against the Defendants.  This is the FIFTH time, we have successfully defended a homeowner in an action brought by Foster & Garbus on behalf of Citimortgage or Citibank seeking to collect on the note from a second mortgage.  

CPLR 3216 IS A GREAT TOOL WHEN DEALING WITH STAGNANT FORECLOSURE CASES.....

A little over 90 days ago, we had sent the bank's attorney a CPLR 3216 letter demanding the bank resume prosecution against our client. Because of this letter, the bank has dismissed the case and cancelled the Lis Pendens. 

CPLR 3216 is a great tool to force banks that are sitting on cases to either fish or cut bait!

Soon You Can Flee Your Underwater Home. But It Will Cost You

For some homeowners, March 1 will be Liberation Day. That’s when Fannie Mae and Freddie Mac will start allowing some homeowners who have been stuck in their homes—unable to move because they owe more than the property is worth—to relinquish the houses and cancel their debt.

The new rules (PDF) for deed-in-lieu transactions apply to people who are current or less than 90 days late on their mortgage payments. To the extent that the change makes it easier for people to move—to take a new job, shift locations following the death of a spouse or caregiver, or if they become ill and can no longer afford the house payment—it should help the economic recovery. The change also will benefit military personnel who are relocated.

To be eligible to turn over the house keys, homeowners must be making payments of at least 55 percent of their monthly income for the house and must be able to document a “hardship” that requires a move, such as a spouse’s death. The home must be clean and not damaged. Homeowners may also have to surrender as much as 20 percent of personal assets, excluding retirement accounts, to partially meet the loan’s unpaid balance, depending on the borrower’s financial situation. The program does not affect second mortgages. Mortgage servicers can offer up to $6,000 for second-lien holders to release borrowers from the loans, but there’s no requirement that the holders agree. This could limit participation.

FOR THE FULL STORY: YAHOO FINANCE

Mortgage Forgiveness Debt Relief Act Survives Plummet from Fiscal Cliff

The Mortgage Forgiveness Debt Relief Act of 2007, which allows homeowners that are forgiven a portion of their mortgage debt to exclude the amount forgiven from their taxable income, was extended through December 31, 2013.


The Mortgage Forgiveness Debt Relief Act allows taxpayers to exclude this forgiven debt from their income when the debt pertains to their primary residence. This provides greater incentive for distressed homeowners to participate in loss mitigation and foreclosure avoidance options, as their participation is less costly since no increased taxable income exposure exists.

THE FULL ARTICLE CAN BE FOUND HERE: FLORIDA BANKRUPTCY RELIEF

DECISION: Wells Fargo Bank, N.A. v Sposato // Possible robosigning of the Mortgage Assignment ... ..

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND DCM PART

WELLS FARGO BANK, N.A., as Trustee for Option One
Mortgage Loan Trust 2007–02, Asset-Backed Certificates,
Series 200702
Plaintiff,

against

JOYCE SPOSATO, CITY OF NEW YORK PARKING
VIOLATIONS BUREAU and JACK RIVERA,
Defendants.

Upon the foregoing papers, the motion of defendant, Joyce Sposato is granted to the extent
herein provided.

This is an action to foreclose a mortgage dated November 8, 2006, upon the property located at 99 Excelsior Avenue, Staten Island, New York. The mortgage was originated by Option One Mortgage Corporation (“Option One”) and was recorded in the Office of the Clerk of Richmond County on December 15, 2006 (see Defendant’s Exhibit 1). Plaintiff filed the Summons, Complaint,and Notice of Pendency on April 8, 2008 (see Defendant’ Exhibit 2). However, it was not until the following day, April 9, 2008, that Option One executed the “Assignment of Mortgage” with note on the property to plaintiff Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust2007-2, Asset-Backed Certificates, Series 2007-2 (“Wells Fargo”), which was recorded in the Office of the Clerk of Richmond County on April 18, 2008 (see Defendant’s Exhibit 4). Upon defendant’s default in appearing or answering, this Court granted a default Judgment of Foreclosure and Sale on
October 14, 2008 (see Defendant’s Exhibit 12). The foreclosure sale, initially scheduled to be held on December 4, 2008, was cancelled upon defendant’s first order to show cause, dated December 1, 2008 (see Plaintiff’s Exhibit I), but was ultimately conducted on November 29, 2011, with the property being sold to plaintiff for the sum of $443,634.00 (see Defendant’s Exhibit 13). Defendant Joyce Sposato (hereinafter defendant) now moves by order to show cause to, interalia, vacate the October 14, 2008 Judgment of Foreclosure and set aside the enduing sale on numerous grounds, including plaintiff’s alleged lack of standing (see CPLR 5015[a][2], [3], [4]).

In support of her position that plaintiff lacked standing, defendant sets forth three arguments:  
(1) the Mortgage Assignment to Trust upon which plaintiff relies to show ownership of the note was executed after the commencement of the action; 

(2) The Mortgage Assignment to Trust is invalid since it was executed by a “robosigner”, Topako Love, who lacked capacity to act on behalf of the originating lender, Option One, and 

(3) plaintiff has failed to demonstrate that it duly acquired the mortgage and note in accordance with the terms of the “Pooling and Servicing Agreement for Option One Mortgage Loan Trust 2007-2, Asset-Backed Certificates, Series 2007-2.” According to defendant, said agreement prohibited plaintiff from accepting the note as a trust asset because, interalia, pursuant to its terms, any transfer to the Trust must come from a depositor, rather than originator.

In opposition to the application, plaintiff relies largely upon the representations made by Option One’s “Assistant Secretary”, Cindi Ellis, whose April 17, 2008 Affidavit of Merit and Amounts Due submitted in support of the Order of Reference states: “The plaintiff became the owner of the note and mortgage as a result of a purchase thereof for valuable consideration prior to the commencement of this action.” It further states: “the assignment of Mortgage memorializing plaintiff’s interest has not yet been recorded1; however, plaintiff has standing to prosecute the foreclosure action in its capacity as beneficial owner and holder of the note and mortgage” (see Defendant’s Exhibit 8, para 2). According to plaintiff, these representations settle the question of ownership of the note at the time of commencement of the action, and accordingly, the validity of plaintiff’s standing to foreclose. Plaintiff likewise relies on defendant’s concession (see Defendant’s Affirmation in Support, para 10), that her particular loan was included among the mortgages that were pooled into the trust filed with the SEC on March 1, 2007, and is listed in the Free Writing Prospectus relating thereto. However, plaintiff fails to counter defendant’s claim that the Mortgage Assignment to Trust was executed by a robo-signer employed by Lender Processing Services, Inc. of Dakota, MN, rather than by Option One. Nor does plaintiff provide details as to when, where, how and for what consideration it obtained transfer of the “beneficial owner[ship]…of the note” prior to the written assignment.

This Court is mindful that, while the use of its equitable power to set aside its own judicial sale should be exercised “sparingly and with great caution” (Guardian Loan Co. v. Early, 47 NY2d515, 520), even in the absence of any demonstration of fraud, collusion, mistake or misconduct which casts suspicion on the fairness of the sale itself (id., 520-521; Federal Natl. Mtge. Assn. v. New York Fin. & Mtge. Co., 222 AD2d 647), it is not powerless to act in order to prevent its own judgments and decrees from being made into “instrument[s] of injustice” (Guardian Loan Co. v. Early, 47 NY2d at 520; see Matter of Ziede v. Mei Ling Chow, 94 AD3d 771). Moreover, while this exercise of restraint is typically informed by the interests of persons other than the judgment creditor and debtor, who should normally be entitled to rely upon the regularity of the foreclosure sale, those interests will not be affected by a vacatur in this case, since plaintiff, the alleged wrongdoer, purchased the property itself. Under these circumstances, the element of “irreparable harm” which traditionally has barred relief based on allegations of presale acts of misconduct, e.g., fraud or misrepresentation, simply is not implicated (see Manufacturers & Traders Trust Co. v. Fay, 79 AD3d 825, 826).

It is well settled that in order to establish a prima facie case in an action to foreclose a mortgage, a plaintiff must establish its ownership or possession of the note, the relevant mortgage, and defendant’s default in payment at the time the action is commenced (see Mortgage Elec Registration Sys, Inc. v. Coakley, 41 AD3d 674; Household Fin. Realty Corp. of NY v. Winn, 19 AD3d 545, 546). Thus, the assignee of a note and mortgage has no right or standing to foreclose upon same unless the assignment (which may be affected by physical delivery) is complete as of the time of commencement (see LaSalle Bank Nat. Assn. v. Ahearn, 59 AD3d 911, 912; Bankers Trust Co. v. Hoovis, 236 AD2d 937, 938). In this context, standing has long been defined as “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” (Carprer v. Nussbaum, 36 AD3d 176, 182). Accordingly, “if standing is denied, the pathway to the courthouse is blocked” (Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 812).

As set forth above, however, defendant’s challenge to the judgment pursuant to CPLR 5015(a)(2) and (3) may well have merit, since the moving papers contain some evidence of fraud and/or misrepresentation, while newly validated evidence of possible robosigning of the Mortgage Assignment to Trust by Topako Love on behalf of Option One, whose signature was notarized in a state where the latter has no offices, and whose capacity to sign on behalf of Option One has been drawn into question, could provide defendant with a viable ground to seek vacatur of the judgment. Curiously, plaintiff has failed to offer any evidence in support of the efficacy of Love’s signature. 


In light of the foregoing, it appears that the judgment of foreclosure and ensuing sale should be vacated in the interest of justice pursuant to CPLR 5015(a)(2) and (3); that defendant’s default be vacated; and that she be granted leave to serve and file a late answer within 20 days of the date of service upon her of a copy of this order with notice of entry.


This constitutes the decision and order of the Court.



E N T E R, DATED: January 7, 2013
Joseph J. Maltese Justice of the Supreme Court

A DISH CALLED WANDA: Bikini babe calls doc a XXX pervert in lawsuit

A sexually obsessed orthopedist went from X-rays to X-rated with an alluring patient, texting her a photo of his penis to cap years of creepy come-ons, a shocking new lawsuit charges. Dr. Mark Sherman targeted 9/11 widow Wanda Arena after lifting her phone number from a patient file when she came to him for surgery on a torn ACL in 2009, according to the complaint. The toned fitness competitor, who flaunts her physique in string bikini contests, freaked out when Sherman sent the perverted picture in the wee hours of Oct. 5.

  Read more: http://www.nydailynews.com/new-york/xxxx-article-1.1236129#ixzz2HzHxl5Sa

Surgeon sexted women using phone numbers from medical files: lawsuit

JPMorgan Is Sued by National Credit Union Administration

The National Credit Union Administration said in a complaint filed yesterday in federal court in Kansas, that the offering documents for residential mortgage-backed securities underwritten or sold by Washington Mutual to the credit unions contained false and misleading information about the underlying home loans. 

 “The damage caused by the actions of firms like Washington Mutual has been extremely expensive to contain and repair, and that job isn’t finished, yet,” NCUA Board Chairman Debbie Matz said in a statement.

CLICK HERE FOR FULLY STORY: BLOOMBERG.COM

Bank of America Extends Retreat From Mortgages

Bank of America is continuing a large-scale retreat from its costly expansion into the home mortgage market, a shift that concentrates more power in the hands of its biggest rivals and leaves fewer options for some home buyers.

The bank, which already has sharply scaled back in making mortgages, on Monday sold off about 20 percent of its loan servicing business as part of its agreement to pay the housing finance giant Fannie Mae more than $11 billion to settle a bitter dispute over bad mortgages.

THE FULL STORY CAN BE FOUND HERE: NY TIMES

Chase - Mortgage Settlement

Our client received this letter (below) from Chase - because of the recent mortgage settlement, her loan was forgiven.

If you have any questions regarding your mortgage, predatory lending or how we can help you to fight back against foreclosure please feel free to contact us.


Law Offices of Robert E. Brown, P.C.
2409 Richmond Rd., Staten Island, New York 10306
Phone: 718-979-9779
  Letter from Chase

Financial Freedom Acquisition LLC v. Evelyn L. Jackson et al.

Defendant was improperly served with The Notice of Default in the Mortgage and the summons and complaint against the Alzheimer's patient defendant was allegedly served on the administrator of the wrong nursing home. Many discrepancies were found with the descriptions of each person served. The complaint is dismissed for improper service of process, and the action is dismissed. 

FULL DECISION BELOW

Decided on December 24, 2012

Supreme Court, Queens County

Financial Freedom Acquisition LLC against Evelyn L. Jackson a/k/a EVELYN L. JACKSON BROOKS, et al.

8473/2011



For the Plaintiff: Stein, Wiener & Roth, LLP, by Gerald Roth and Robert Sambursky, Esqs., One Old Country Road, suite 113, Carle Place, New York 11514

Guardian Ad Litem: Christina Cline, Esq., 224 Nassau Boulevard South, Garden City South, New York 11530

Charles J. Markey, J.

Papers Numbered and Read:

Report of the Guardian Ad Litem Christina Cline, Esq......................................................1

Affirmation of Services by Christina Cline, Esq., dated December 9, 2012.......................2

The Court's prior order dated October 26, 2012, and entered on November 19, 2012.......3

CHARLES J. MARKEY, J.
In a sua sponte decision by the undersigned, dated October 26, 2012, and entered on November 19, 2012, the Court observed that the plaintiff financial institution submitted a proposed order for this Court's consideration to name a referee to compute sums allegedly due to the plaintiff in this mortgage foreclosure case.
In that decision, and based on a review of the plaintiff financial institution's papers, the undersigned already had grave concerns on the legitimacy of the service of process and the mental condition of the homeowner who was confined to a nursing home. In that order, this Court decided to appoint Christina Cline, Esq., a distinguished lawyer with an expertise in elderly law to act as the guardian ad litem for defendant Evelyn L. Jackson a/k/a Evelyn L. Jackson brooks. The Court asked Ms. Cline to make an extensive investigation and submit proposed findings, recommendations, and conclusions. Finally, the Court set Ms. Cline's fee at $275.00 fee per hour, plus expenses, and such fees and expenses shall be paid to her by the plaintiff. The hourly fee is modest when Ms. Cline's professional credentials and significant experience are taken into consideration. [*2]
Ms. Cline, taking her fiduciary appointment with admirable seriousness of purpose, set forth on her appointed task immediately, overcoming considerable time constraints and permitted the appointment to override her other pressing matters. The Court is impressed with the extensive report submitted by Ms. Cline, her investigation and recommendations. The Court adopts Ms. Cline's report in all respects, without exception, as though it were made by the undersigned. The Court ratifies and adopts all of the findings and conclusions contained therein. In brief, the results of Ms. Cline's investigation confirmed all of the undersigned's worst fears and suspicions when the Court issued its order in October.
The case law is already expansive on the rampant abuses in the mortgage foreclosure field. Documentary filmmaker Joel Sucher, in a series of articles for American Banker, Huffington Post, and in several other blogs available on the internet, has been an eloquent champion against the bullying, corrosive, and abusive tactics used by "servicers" of mortgages in debt. In one article dated March 26, 2012, for American Banker, entitled "Behind Every Distressed Asset' Is a Distressed Human Being," Joel Sucher, whose forthcoming film is entitled " Foreclosure Diaries," concerning the current financial crisis, states:I'm intrigued by the Orwellian phraseology that megabanking executives and the mortgage industry have coined to describe their work. They trade, for instance, in "distressed assets."
What's a distressed asset? From what I understand, an asset, like a subprime mortgage, is distressed because it fails to churn out the revenue stream it was originally supposed to produce. But post-crash, with a nod to obfuscation, "distressed assets" have become "legacy assets."
It doesn't take [contemporary Italian essayist and philosopher] Umberto Eco to figure out the real meaning of these dehumanizing terms: for the millions of people whose assets - - their homes - - are underwater, it's their lives that have become truly distressed.
The Court will quote extensively from the report of Christina Cline, Esq., because the abuses that occurred in the case at bar would have overwhelmed a powerless individual such as defendant Evelyn Jackson, had the undersigned's earlier apprehensions not been aroused leading to the appointment of Ms. Cline. Ms. Cline's report to the Court, in pertinent part, states:
INTEREST OF MY WARD
2. My ward owns one half share of the property which is the subject of this foreclosure action. There is nothing in the court file that indicates that my ward is the sole owner. A view of the ACRIS records does not reveal how the property is held.
BACKGROUND
3. This action is one of FORECLOSURE upon a reverse mortgage. The defendant, [*3]EVELYN L. JACKSON, a/k/a EVELYN L. JACKSON BROOKS, and Harding Brooks allegedly signed a mortgage agreement with FINANCIAL FREEDOM SENIOR FUNDING CORPORATION, a subsidiary of Lehman Brothers Bank, FSB on May 21, 2004.
4.The mortgage allowed for an indebtedness of $475,000.00 with interest. At the closing the following payments were made: $215,745.00, Initial Payment of the loan which consisted of: $16,668.00, closing costs; $142.150.86, payment of liens; $53,285.71, loan advance; $3,640.43. At the time the action was commenced there was a balance due to Plaintiff in the amount of $217,225.40.
5. On February 21, 2010, Harding Brooks died.
6.On March 9, 2011, FINANCIAL FREEDOM SENIOR FUNDING CORPORATION, a subsidiary of LEHMAN BROTHERS BANK, FSB assigned the mortgage to Plaintiff, FINANCIAL FREEDOM ACQUISITION.
DEFAULT on the MORTGAGE
7.On October 13, 2010 the assignee of the Mortgage, Financial Freedom Acquisition, L. L.C. sent a letter entitled "Home Equity Conversion Mortgage Repayment Notice" addressed to Evelyn L. Jackson-Brooks at 109-14 177th St. Jamaica, New York 11433. In part the letter states "Upon the occurrence of a maturity event, including the borrower's decision to permanently leave and no longer occupy the subject property as a primary residence, the loan becomes due and payable." It continues in the second paragraph, with information and assistance to which the borrower is entitled. Defendant, EVELYN L. JACKSON defaulted on the mortgage.
8. A Lis Pendens was filed in April 2011.
9. Plaintiff filed a summons and complaint in Queens Supreme Court.
10.Defendant did not appear in the action nor did she submit an answer in the action.
11. Plaintiff submitted a motion for an Order of Reference upon which the Court issued an Order appointing your affiant in connection with the motion.

INVESTIGATION
12.My ward, EVELYN L. JACKSON, the defendant in this action, currently resides at the Hollis Manor Nursing Home located at 191-06 Hillside Ave. Hollis, NY 11432, having been placed in the facility on May12, 2010, by her son, Will Jackson. Her admitting diagnosis in 2010 was Alzheimer's disease, macular degeneration, seizure disorder, and hypertension. [*4]
13. Prior to being placed in Hollis Park Nursing Home by her son, Ms. Jackson resided at her home located at 109-14 177th Street, Jamaica, New York 11433 the premises of this action.
JURISDICTION
14. The Affidavit of Service submitted by plaintiff in support of personal jurisdiction over defendant, Evelyn L. Jackson, a/k/a Evelyn L. Jackson Brooks states the following:
a. that on 4/12/11 at the Hillside Manor Nursing Home located at 191-06 Hillside Ave, Hollis, NY 11432 Andrew Ceponis served the summons and complaint bearing Index No. 8473-11 & filing date 04/06/11upon individual Evelyn L. Jackson a/k/a Evelyn L. Jackson Brooks defendant therein by delivering thereat a true copy of each to said defendant personally; deponent knew said person so served to be the person described as said defendant therein named. She identified herself as such.
b. The description of Evelyn L. Jackson is given as a female, black, grey hair of 85 years of age only 5ft. 3in. weighing 105lbs.
15. On December 4, 2012 I visited the defendant Evelyn L. Jackson at the Hollis Park Nursing Home - - NOT the Hillside Manor Nursing Home, as indicated in the Affidavit of Service - - where Ms. Jackson has been since May 12, 2010. I found Ms. Jackson a pleasant elderly woman. I inquired of her regarding the service of the summons and complaint, the notice of default, the judgment, and of the underlying mortgage on her house she has absolutely no recollection of anything about this action. I inquired of her as to her family members and the information she provided me is completely inaccurate and different from that supplied to me by the nursing home staff. I inquired of SHARON SELBERG, who functions as both receptionist and director of social activities, whether she was present when EVELYN L. JACKSON was allegedly served with the Summons and Complaint, and she informed me that she had no recollection of any such event.
16. I inquired of Dr. Riki Koenigsberg, the resident Psychologist who advised me that EVELYN L. JACKSON suffers from Alzheimer's disease, dementia, and macular degeneration. When I inquired whether Ms. Jackson would be able to understand the documents even if one assumed that she was in fact served with any of them. I was informed by Dr. Koenigsberg that Ms. Jackson's eyesight is so poor that she can not even see her food never mind read legal documents. I asked if her eyesight had been poor in July 2011 and was informed that it had been just as poor at that time and in fact that it had been poor in May12, 2010 upon her admission to Hollis Park Nursing Home.
17. Dr. Koenigsberg also informed me that even if she had been able to see the papers she would have had no concept of the importance of the documents as her Alzheimer's disease and dementia had progressed to the point that she could neither understand not conceptualize the [*5]importance of a summons, complaint or a notice of default.
18. The Affidavit of Service submitted by plaintiff in support of personal jurisdiction over defendant, Evelyn L. Jackson, a/k/a Evelyn L. Jackson Brooks states the following:
a. that on 4/12/11 at the Hillside Manor Nursing Home located at 191-06 Hillside Ave, Hollis, NY 11432 Andrew Ceponis served the summons and complaint bearing Index # 8473-11 & filing date 04/06/11-upon individual Evelyn L. Jackson a/k/a Evelyn L. Jackson Brooks B/S/U Nathan Heilweil as Administrator of the Hillside Manor Nursing Home 3 story brick defendant therein named by delivering thereat a true copy of each to said defendant personally; deponent knew said person so served to be the person described as said defendant therein. (S)he identified (her) himself as such.
b. The description of NATHAN HEILWEIL is given as a male, white, brown hair of 54 years of age, height-6' 1" weighing 210lbs.
19. On November 12, 2012 I spoke to NATHAN HEILWEIL who informed me that he had no recollection of ever being served in this matter and referred me to the Edith Gonzalez in the Comptroller's office to review the records contained in Ms. Jackson's file. "Edith Gonzalez" indicated that Ms. Jackson's file contained a large manilla envelope with a date stamp of August 22, 2012. The envelope contained a notice of default dated 7/27/12. Ms. Gonzalez indicated that the envelope had been delivered to the Nursing Home and forwarded to her office and that it had been retained by her in the Controller's office. There is nothing in the nursing home file that indicates that Ms. Jackson ever received the Summons and Complaint or the Notice of Default, or a copy of any Judgment entered against her.
20. While there, I inquired of Mr. Heilweil and he informed me that he is 62 years of age 5'9" tall weighing 190-200 lbs and has grey hair.

NOTICE OF DEFAULT IN THE ACTION
21. Upon visiting the Hollis Park Nursing Home, I was informed that they had an envelope in Ms. Jackson's file, but that Ms Jackson never received it.

APPLICABLE LAW: APPOINTMENT OF AGUARDIAN AD LITEM
22. Mrs. Jackson is an incapacitated person. Even though she had not been judicially declared incapacitated, in an Article 81 proceeding the Court still has certain obligations with respect to the proceeding in which a party is incapacitated.
23. CPLR 1201 states that "a person shall appear by his guardian ad litem . . . if he is an [*6]adult incapable of adequately prosecuting or defending his rights." (CPLR 1201).
24. The appointment by a guardian ad litem for an adult incapable ofadequately prosecuting or defending his rights" is made by the courtin accordance with CPLR 1202 . . . .
* * ** * * ** *
25. CPLR 1203 states that, ". . . No default judgment may be enteredagainst an adult incapable of adequately protecting his rights forwhom a guardian ad litem has been appointed unless twenty dayshave expired since the appointment." (Emphasis added.)
26. While the statutes are vague if not silent with regard to aplaintiff's obligation when dealing with an incapacitated defendant,case law is replete with the court's interpretation that Article 12places an obligation upon a party to advise the court of the possibilitythat another party may suffer an incapacity or that he or she is aperson "incapable of adequately prosecuting or defending hisrights."(CPLR 1201)
* * ** * * ** *
The papers submitted in support of the application present a strongevidentiary showing that at the time the action was commenced and atthe time the default judgment was entered, the decedent Defendant,Evelyn L. Jackson, although not judicially declared an incompetent,was "an adult incapable of adequately prosecuting or defending herrights" (CPLR 1201). As such, she should have been represented inthe action by a guardian ad litem. In fact "it is questionable whether any appearance by the defendant . . . either pro se or by an attorney, without the appointment of a guardian ad litem, would have been authorized." (Rand v Lockwood, 65 Misc 2d 182 [Sup Ct Nassau County 1970]). A person specified in CPLR 1201 may only appear by a guardian ad litem.
* * ** * * ** *
CONCLUSIONS

31. From the examination and analysis of the entire file herein, the "Home Equity Conversion Mortgage Repayment Notice," the Summons and Complaint, the affidavit of services, the Notice of Default, and the affidavit of service: the files held by Hollis Nursing Home; the conversations with Nathaniel Heilwell, "EDITH GONZALEZ", the comptroller and other members of the nursing home staff, and my own investigation, my conclusions in this matter are as follows:

The Notice of Default in the Mortgage was improperly served upon defendant, Evelyn L. [*7]Jackson at 109-14 177th Street, Jamaica, New York 11433. In light of the fact that defendant's absence from the premises forms the basis of the default sending the Mortgage Repayment Notice denied the defendant of her right to notice and the opportunity to timely repay the balance amount and HUD services prior to the Foreclosure proceeding. As plaintiff had actual knowledge (plaintiff's action is based upon the fact that defendant was not living at the premises) of this condition precedent to the commencement of the action, the action must be dismissed.

32. As to the affidavits of service I find the following irregularities:

A.Service upon Evelyn L. Jackson

1. disparities in location of service— affidavit of service states that defendant, Jackson was served at Hillside Manor Nursing Home— while she is a resident of Hollis Park Manor Nursing Home. The Name is clearly displayed in the front of the building and it would seem difficult to mistake the name if the process server had been there.

2. disparities in description of individual served— affidavit of service describes defendant Jackson as a black female with grey hair being 85 years of age, 5'1" and 105 lbs. Ms. Jackson is 92 years of age.

B. Service upon Evelyn L. Jackson B/S/U NATHAN HEILWEIL as Administrator of the Hillside Manor Nursing Home.

1. disparities in person served—Mr Heilweil is the Administrator of the Hollis Park Manor Nursing Home.

2. disparities in description of person served— The Affidavit of Service contains a description of NATHAN HEILWEIL as a male, white, brown hair of 54 years of age, height-6' 1" weighing 210lbs. In fact, Mr. Heilweil is 62 years of age 5'9" tall weighing 190-200 lbs and has grey hair.

33. While counsel alleges in paragraph 13 of the affirmation in support of the instant motion that a notice pursuant to RPAPL 1303 was served with the Summons and Complaint no mention of that notice is indicated in the affidavit of service of the summons and complaint, nor is there any separate affidavit in the court file or in the Motion for an Order of Reference.

34. The Notice of the Default in the Action was served again at Hillside Manor Nursing Home.

35. The Motion for an Order of Reference was served again at Hillside Manor Nursing Home.

36. There is no indication of service of the notice of 3215(g)(3)(I) 20 day notice before [*8]the entry of judgment.

37. Paragraph 24 of the affirmation of counsel states that all of the defendants herein are of full age and none of said defendants is an incompetent or absentee. Clearly defendant is incapacitated.

38. The estate of Harding Brooks was not served and there is nothing to indicate that there are no heirs at law of Harding Brooks who would be entitled to notice especially as there is nothing to indicate that the property was held by Harding Brooks and Evelyn L Jackson a/k/a Evelyn L Jackson-Brooks as tenants by the entirety giving her rights to the entire property upon Harding Brooks' death.
39. Thus, I conclude:

(1) the condition precedent to the commencement of the action has not been properly completed,
(2) that jurisdiction of this Court over EVELYN L. JACKSON has not been properly obtained in that she was not properly served and
(3) that there is no indication that the notice pursuant to RPAPL 1303 was served upon defendant Jackson,
(4) that the Notice that the action should not have proceeded without the appointment of a Guardian ad Litem for Ms Jackson in accordance with CPLR 1201. The action must be dismissed or in the alternative that defendant should be returned to her position upon the service of the "Home Equity Conversion Mortgage Repayment Notice" as the court did in Oneida Nat. Bank & Tr. Co. v Unczur, 37 AD2d 480, 483 [4th Dept. 1971].

In light of the irregularities and the failure of plaintiff to comply with the applicable law and statutes, it should be responsible for any and all additional costs, interests, incurred as a result of the delay in the proceeding.

The Court adopts each and every one of the findings, recommendations, and conclusions quoted above by Ms. Cline. The Court finds that defendant Jackson had no mental competency so as to understand what papers she was receiving, assuming arguendo that papers had indeed been served on her. Second, aside from Ms. Jackson's dementia and lack of mental competency, the Court finds that the nursing home's administrator was not properly served as contended by the plaintiff.

The Court, finally, thanks Ms. Cline for the great amount of time, effort, and energy spent [*9]in preparing a comprehensive report.

The Court, entirely agreeing with Ms. Cline's report, dismisses the complaint for the improper service of process, as set forth above. The Clerk is thus directed to dismiss the action.

Concerning the appropriate fee, Ms. Cline's accompanying affirmation of services indicates that she has worked 18.2 hours on the report. The Court previously awarded her a fee of $275.00 per hour. Accordingly, the Court awards Ms. Cline the sum of $5,005.00 for her fees. The Court further awards Ms. Cline the sum of $575.00 for expenses.
In sum, the plaintiff shall pay Ms. Cline the sum of $5,580.00 within 20 days of the service upon it by Ms. Cline of a copy of this order bearing the County Clerk's dated stamp of entry. If such sum is not paid by the plaintiff timely, the Court shall convene a hearing and entertain an application by Ms. Cline for higher fees based upon a re-evaluation of whether Ms. Cline's services should have been compensated at the rate of $550.00 per hour.

The complaint is dismissed for improper service of process, and the action is dismissed.
The foregoing constitutes the decision, opinion, order, and Judgment of the Court.
_______________________________
J.S.C.