JUDGE MAYER ECHOES JUDGE SHACK: ANOTHER NY CASE….THINGS ARE CHANGING!!!!

If you can get through the formatting errors, it is worth reading. Judge Mayer clearly states that

“The original lender, WMC Mortgage Corp., apparently had the mortgage assigned to entities other than this plaintiff: however, there is no proof of assignments annexed to the moving papers and no proof that this plaintiff is the proper plaintiff.”

Thus standing comes to the forefront AGAIN as the pretender lenders try as they might, find it increasingly difficult to finesse basic rules of law and basic rules of procedure. The message is clear as is the moral of the story: don’t assume anything and challenge everything. We have seen here at livinglies weblog countless documents demonstrating a pattern of behavior that involves fabrication and forgery of documents, many times right in the office of the attorneys pursuing foreclosure on behalf of “clients” who have no interest in the mortgage and never did. Look closely and you will see notarization before the document is dated, notarization in one place and signing in another, many times thousands of miles apart. If these entities were on the level they would have no problem producing the right documentation in the right place at any time. Instead we find that if the mortgage is NOT delinquent or in default, they don’t have the documents but once they do declare the default, documents start emerging out of nowhere.

Judge Mayer means business. He “gets it” and says that he will dismiss with prejudice on this last chance (similar to Judge Shack), if they don’t prove they are the correct party to bring the foreclosure. My opinion is they probably can’t and they won’t bring such “proof” to court because it will be scrutinized now and could lead someone to be found in contempt or worse.

The cases are coming faster now. The scheme is unraveling and Judges are getting wise to wiseguy tactics of finesse and intimidation.

Thank you Jeff for this contribution. See if you can get a clean copy so we can clean this one up.

ANOTHER NY CASE….THINGS ARE CHANGING!!!!

SUPREME COURT – STATE OF NEW YORK
I.A.S. PART 17 – SUFFOLK COUNTY
Justice<R. H. MAYER
Justice of the Supreme Court
. X _l_______l___________—__—_—-_———–
WI;I,I S F ARGO BANK NATIONAL
,4SS0(_’1.4 I ION, as trustee for BANK OF
AMERIC’ 2 reclo:;urr: actions, and evidentiary proof of proper service of said special summons; (5) failure
to submit e\ identiary proof, including an affidavit from one with personal knowledge, of compliance with
tlic requirements of CPLR 532 15(g)(3) regarding the additional notice by mail of summonses in
forwlosurrt xtioiis. and proof of proper service of said additional mailing; and it is further
ORDERED that, inasmuch this action was initiated prior to September 1,2008 and no final order
of judgment has been issued, and inasmuch as the plaintiff has identified the loan in foreclosure as a
“cubprimc home loan” as defined in RPAPL $1304, pursuant to 2008 NY Laws, Ch. 472, Section 3-a, the
defendant lionieovmer is entitled to a voluntary settlement conference, which is hereby scheduled for
December 116,2009 at 9:30 am before the undersigned, located at Room A-259, Part 17, One Court Street,
Rikerhead. VY 1 1(>01 (63 1-852- 17601, for the purpose of holding settlement discussions pertaining to the
rights and cibligations of the parties under the mortgage loan documents, including but not limited to,
determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing
his or her hcime. and evaluating the potential for a resolution in which payment schedules or amounts may
be ~fiodificdo r other workout options may be agreed to, and for whatever other purposes the Court deems
appropriate and it is further
ORDERED that at any conference held pursuant to 2008 NY Laws, Ch. 472, Section 3-a, the
plaintii’f’ s h~l la ppt’ar in person or by counsel, and if appearing by counsel, such counsel shall be fully
mthorized to dispclse of the case, and all future applications must state in one ofthe first paragraphs ofthe
aitorncy’k afirmation whether or not a Section 3-a conference has been held; and it is further
ORDERED that the piairitiff shall promptly serve a copy of this Order upon the homeowner
delelidant( s ) at all hown addresses via certified mail (return receipt requested), and by first class mail, and
upon all othcr defendants via first class mail, and shall provide proof of such service to the Court at the time
of any schctluled Conference, and annex a copy of this Order and the affidavit(s) of service of same as
exhihits to any niotion resubmitted pursuant to this Order; and it is further
ORDERED that with regard to any scheduled court conferences or future applications by the
plaintiif. if the Court determines that such conferences have been attended, or such applications have been
submitted. ui ithout proper regard for the applicable statutory and case law, or without regard for the required
proofs delinxited herein, the Court may, in its discretion, dismiss this case or deny such applications with
prejudice c i ~ i do r impose sanctions pursuant to 22 NYCRR 5 130-1, and may deny those costs and attorneys
fees atrenda i t mith the filing of such future applications.
[* 2]
bt’ells I.;rrgo Bank v Melgar
l t ~ d t3?0~. 3761 9-2007
P q e .r’
I n tliis foreclosure action, the plaintiff filed a summons and complaint on December 4,2007, which
essentiaIl> Jleges that the defentiant-homeowner(s), Martha L. Melgar and Pedro Reyes, defaulted in
payments u ith reprd to a mortgage, dated May 5,2005, in the principal amount of $258,400.00, and given
by the deteildnnt-homeowner(s) for the premises located at 68 Cranberry Street, Central Islip, New York
1 I722 Tile original lender, WMC Mortgage Corp., apparently had the mortgage assigned to entities other
than this p l i~nt iff: however, there is no proof of assignments annexed to the moving papers and no proof
that this pla ntiff is the proper plaintiff. The plaintiff now seeks a default order of reference and requests
amendmeni of the caption to substitute tenant(s) in the place and stead of the “Doell defendants. For the
reasom set i r t h hereiin, the plaintiffs application is denied.
In slqqx)rt of this application, the plaintiff submits an affidavit from Valerie Clark, Sr. Vice
I’rvsident 01 Saxon Mortgage Services as the alleged attorney-in-fact for the plaintiff, and a non-party to
this action: iowevcr, there is no sufficient evidentiary proof that such person or entity has authority to act
on behall’ 01 the lender-mortgage holder.
In rc levant part, CPLR $32 15(a) states: “When a defendant has failed to appear, plead or proceed
tu trial ofai- action re,ached and called for trial, or when the court orders a dismissal for any other neglect
to proceed. the plaintiff may seek a default judgment against him.” With regard to proof necessary on a
motion for cefault in general, CPLR 32 1 5(f) states, in relevant part, that “[oln any application forjudgment
by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the
facts constiluting the claim, the default and the amount due by affidavit made by the party . . . Where a
verified complaint has been serveld, it may be used as the affidavit of the facts constituting the claim and
h e amount due: in such case, an affidavit as to the default shall be made by the party or the party’s attorney.
Proof‘ot’iiiaili yg the notice required by [CPLR 32 15(g)], where applicable, shall also be filed.”
With regard to a judgment of foreclosure, an order of reference is simply a preliminary step towards
obtaining a default judgment (Home Sav. ojxm., FA. v. Gkanios, 230 AD2d 770,646 NYS2d 530 [2d Depi
1996 1 ) Without an affidavit by the plaintiff regarding the facts constituting the claim and amounts due or,
11-1 the alteri-ative. ‘in affidavit by the plaintiff that its agent has the authority to set forth such facts and
mouiits due, the sfatutory requirements are not satisfied. In the absence of either a proper affidavit by the
party or 3 ccymplairt 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 AD3d 450, 780 NYS2d 919 [2d Dept
2004 1 : Gi.tringu \ * Wrighl, 274 AD2d 549, 7 13 NYS2d 182 [2d Dept 20001; Finnegan v. Sheahan, 269
4D2tl 401. 7G NYS2d 734 [2d Dept 20001; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dep1
1 996 1 )
In support of’the motion, the movant fails to submit the required affidavit made a party. Further.
uithnut a pioperly of’ered copy of a power of attorney, the Court is unable to ascertain whether or not a
plaintitTs s:rvicin;A agent. for example, may properly act on behalf of the plaintiff to set forth the facts
constituting the claim, the default and the amounts due, as required by statute. In the absence of either a
verijied coiilplalnt x a proper affidavit by the party or its authorized agent, the entry ofjudgment by defauli
IS erroneouj ( \ee iLl’ullins 1’. DiLorenzo, 1 99 AD2d 2 18; 606 NYS2d 16 1 [ 1 st Dept 19931; Hazim v. Winter.
234 1\1)2d -22.65 1 NYS2d 149 [2d Dept 19961; Finnegan v. Sheahan, 269 AD2d 491,703 NYS2d 734
Il!d I k p t r’OOO]). I‘lierefore, the application for an order of reference is denied.
\n‘itli regard to a mortgage assignment which is executed after the commencement of an action and
[* 3]
U’ells Furgo Bmk v Melgar
Index !Vo. 3 761 9-2007
Page 4
which statt s that i t is effective as of a date preceding the commencement date, such assignment is valid
wherc the c elaulting defendant appears but fails to interpose an answer or file a timely pre-answer motion
that assert4 the defense of standing, thereby waiving such defense pursuant to CPLR 321 1 [e] (see, HSBC
13crnk 03‘41 ’ /hmr’noi?d,5 9 AD3d 679, 875 NYS2d 490 1445 [2d Dept 20091). However, it remains settled
that foreclc sure ol’a mortgage may not be brought by one who has no title to it and absent transfer of the
debt. the assignmcnt of the mortgage is a nullity (Kluge v Fugazy, 145 AD2d 537,536 NYS2d 92 [2d Dept
1988 11. I 11-tliermore. a plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the
plaintifl’ha~n o legal or equitable interest (Kutz v East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308
[ 1” Ilept 1098 1). I f an assignment is in writing, the execution date is generally controlling and a written
dssignment claiming an earlier effective date is deficient, unless it is accompanied by proof that the physical
delivci? of the notc and mortgage was, in fact, previously effectuated (see, Bankers Trust Co. v Hoovis, 26 3
’iDZd 93 7 (338.6’14 NYS2d 245 [1999]). Plaintiffs failure to submit proper proof, including an affidavit
from one with per:,onal knowledge, that the plaintiff is the holder of the note and mortgage, requires denial
01 the plaintiff’s application for an order of reference.
I- or Iinxc1cmu-e actions commenced on or after February 1,2007, RPAPL 5 1303( 1) requires that the
“toreclosin g party in a mortgage foreclosure action, which involves residential real property consisting of
ouner-occupied o qe-to-four-family dwellings shall provide notice to the mortgagor in accordance with the
provi\ions of thi. section with regard to information and assistance about the foreclosure process.”
I’ursumt to KPAPL 1303(2), the “notice required by this section shall be delivered with the summons and
complaint to commence a foreclosure action . . . [and] shall be in bold, fourteen-point type and shall be
printed on I:olorecl paper that is other than the color of the summons and complaint, and the title of the
notice shall be in bold. twenty-point type [and] shall be on its own page.” The specific statutorily required
language afthe nctice is set forth in RPAPL §1303(3), which was amended on August 5,2008 to require
additional language fbr actions commenced on or after September 1, 2008.
I hc plaintiff’s summons and complaint and notice of pendency were filed with the County Clerk
on er after- Februarj 1,2007, thereby requiring compliance with the notice provisions set forth in RPAPL
8 1-30; Plaintiff has failed to submit proper evidentiary proof, including an attorney’s affirmation, upon
which the t ‘ourt may conclude that the requirements of RPAPL 5 I303(2) have been satisfied, specifically
regarding the content. type size and paper color of the notice. Merely annexing a copy of a purportedly
compliant notice does not provide a sufficient basis upon which the Court may conclude as a matter of law
that the plaintiff has complied with the substantive and procedural requirements of the statute. Since the
plaintiff ha: failed to establish compliance with the notice requirements of RPAPL $1303, its application
fix an order of reference must be denied.
I ( pro\ idt additional protection to homeowners in foreclosure, the legislature enacted RPAPL,
1320 to I equire a mortgagee to provide additional notice to the mortgagor-homeowner that a foreclosure
aciion has t)een commenced. I n this regard, effective August 1, 2007 for foreclosure actions involving
rcs~clential property containing not more than three units, RPAPL 5 1320 imposes a special summons
requiremenl. in adJitiion to the usual summons requirements. The additional notice requirement, which
niust be in I-oldfacc type. provides an explicit warning to defendant-mortgagors, that they are in danger of
losing their iome and having a defaultjudgment entered against them ifthey fail to respond to the summons
bv sen ing 611 ansuer upon the mortgagee-plaintiff s attorney and by filing an answer with the court. The
notice also infhrim defendant-homeowners that sending a payment to the mortgage company will not stop
tlic foieclostire act ion, and advises them to speak to an attorney or go to the court for further information
[* 4]
Wells k argo Bank v Mrlgar
Index .No. 3 761 9-2007
Puge i
on ho\\, to answer the summons. The exact form and language of the required notice are specified in the
siaiuie P1aintlft.s failure to submit an attorney’s affirmation of compliance with the special summons
requiremen1 s of RPAPL 5 1320, and proof of proper service of the special summons, requires denial of the
plaintiff%\ application for an order of reference.
\x, itti regard to a motion for a defaultjudgment sought against an individual in an action based upon
nonpa) mcnt of‘a contractual obligation, CPLR $32 15(g)(3)(i) requires that “an affidavit shall be submitted
that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry
of such judgment. by mailing a copy of the summons by first-class mail to the defendant at his place of
residence 11- an eni!elope bearing the legend ‘personal and confidential’ and not indicating on the outside
of the em elope that the communication is from an attorney or concerns an alleged debt. In the event such
mailing is rt.turned as undeliverable by the post office before the entry of a default judgment, or if the place
ofresideiu ofthe defendant is unknown, a copy of the summons shall then be mailed in the same manner
to the defendant at the defendant’:; place of employment if known; if neither the place of residence nor the
place ofernploynimt ofthe defendant is known, then the mailing shall be to the defendant at his last known
residence Pursuant to CPLR 32 1 5 (g)(3)(iii), these additional notice requirements are applicable to
residential riortgage foreclosure that were commenced on or after August 1 2007. Since the moving papers
fail 1 o establish compliance with the additional mailing requirements of CPLR $32 15(g), the application
for an ordsi ol’refvrence must be denied.
0 ’lhi. constitutes the Decision and Order of the Court.
Ilated tober 5 , 2009

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