Opinion
14120/09
10-17-2011
Confidential Lending LLC, Plaintiff, v. Viola Nurse, Caryn Nurse, New York City Environmental Control Board, Charles Laing, Iris Laing, and "John Doe No.1" through "Jane Doe #10", the last 10 names being fictitious and unknown to the Plaintiff, the persons or parties intended being the occupants, tenants, persons or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.
Plaintiff was represented by Solomon J. Borg, Esq. of Cox Padmore Skolnick & Shakarchy LLP
Defendant Viola Nurse was represented by Vernita Charles, Esq.
Genine D. Edwards, J.
In this foreclosure action, plaintiff moves to dismiss defendant Viola Nurse's affirmative defenses and counterclaims pursuant to CPLR §3211(a)7 and/or sever the counterclaims pursuant to CPLR §603; for summary judgment pursuant to CPLR §3212; for a default judgment against Caryn Nurse, New York City Environmental Control Board, Charles Laing and Iris Laing pursuant to CPLR §3215; for the appointment of a referee; and to amend the caption to strike the names John Doe and Jane Doe. Defendant Viola Nurse opposes the motion based upon, inter alia, plaintiff's lack of standing and her defenses and counterclaims.
FACTS
The following is an abbreviated version of the facts pertinent to this decision. Defendant Viola Nurse states that she set out to help defendants Charles and Iris Laing ("Laing") avoid the foreclosure of their home. To accomplish this goal, Wesley Thompson, a broker, assisted the parties in arriving at an agreement, whereby defendant Viola Nurse would purchase the property and obtain a mortgage, and then defendants Laing would give defendant Viola Nurse the monthly mortgage payments. It is unclear how defendant Viola Nurse met defendants Laing or Mr. Thompson, and on whose behalf Mr. Thompson worked. Defendant Viola Nurse accepted $10,000.00 for her generosity. After a year, defendants Laing were supposed to obtain a mortgage and purchase the property from defendant Viola Nurse.
The subject premises 780 Rogers Avenue, in Brooklyn, New York, was owned by 780 Rogers Avenue Associates, Inc., a corporation wherein defendants Laing allegedly had an interest. On June 14, 2007, defendant Viola Nurse and 780 Rogers Avenue Associates, Inc. executed a contract for the sale of the subject premises. However, on August 13, 2007, Rogers Avenue Holding, LLC allegedly assigned all of its rights, title and interest in the subject premises to defendant Viola Nurse. On that same date, defendant Viola Nurse executed a mortgage note and mortgage for the subject premises. These documents obligated defendant Viola Nurse to pay Jay Kimmel, as Nominee, the principle sum of $550,000.00 by August 13, 2008, and monthly installments of interest only payments commencing September 13, 2007 and the 13th of every month until the principal amount was paid in full. Neither the mortgage note nor the note discloses the name of the actual lender, who is Jay Kimmel's principal.
Besides the aforementioned documents, defendant Viola Nurse executed a collateral mortgage on her home, located at 869 Lenox Road in Brooklyn, New York to Jay Kimmel, as Nominee; an unentitled document, indicating that the subject premises were purchased by defendant Viola Nurse for investment purposes only; two disbursal authorizations, as well as other documents. In addition, defendant Viola Nurse's daughter, defendant Caryn Nurse executed a guarantee and pledge agreement.
Defendant Viola Nurse made all monthly interest payments from September 2007 to December 2008. Thereafter, defendant Viola Nurse failed to make any further payments.
ANALYSIS
It is well established that in a foreclosure action it is plaintiff's burden to provide admissible evidence of its standing as the lawful holder of the subject note and mortgage at the time the action was commenced. See US Bank Nat'l Asso'n. v. Madero, 80 AD3d 751, 915 N.Y.S.2d 612 (2d Dept. 2011); Aurora Loan Services, LLC v. Weisblum, __A.D.3d__, 923 N.Y.S.2d 609 (2d Dept. 2011); Bank of New York v. Silverberg, __N.Y.S.2d__, 2011 NY Slip Op. 05002 (2d Dept. 2011); U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 890 N.Y.S.2d 578 (2d Dept. 2009). Standing is a threshold issue, which if not established obliterates the plaintiff's ability to seek redress for its claim, including the foreclosure of a mortgage. Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 766 N.Y.S.2d 654 (2003) cited in HSBC Bank v. Taher, 32 Misc 3d 1208(A), 2011 NY Slip Op. 51208(U). Of course, standing may be demonstrated by proof that the plaintiff's agent, such as a nominee, entered a mortgage on its behalf. Bank of New York v. Alderazi, 28 Misc 3d 376, 900 N.Y.S.2d 821 (Sup. Ct., Kings County 2010). The status of the nominee depends upon the relationship to the principal and nominee's authorized powers, which are normally limited. Lasalle Bank v.Bouloute, 28 Misc 3d 1227(A), 2010 NY Slip Op. 51513(U) (Sup. Ct., Kings County 2010); Bank of New York, 28 Misc 3d 376; Bank of New York v. Alderazi, 31 Misc 3d 1209 (A), 2011 NY Slip Op. 50547(U); OneWest Bank v. Drayton, 29 Misc 3d 1021, 910 N.Y.S.2d 857 (Sup. Ct., Kings County 2010).
As noted by Justice Saitta in, Bank of New York v. Alderazi, 28 Misc 3d 376,
in Schuh Trading Co. v Commissioner of Internal Revenue (95 F2d 404, 411 [7th Cir 1938]), which defined a nominee as follows: "the word nominee ordinarily indicates one designated to act for another as his representative in a rather limited sense. It is used sometimes to signify an agent or trustee. It has no connotation, however, other than that of acting for another, or as the grantee of another." (Emphasis added.) Black's Law Dictionary 1076 (8th ed 2004) defines a nominee as "[a] person designated to act in place of another, [usually] in a very limited way." Agency is a fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. (Hatton v Quad Realty Corp., 100 AD2d 609 [2d Dept 1984].) *379 "[A]n agent constituted for a particular purpose, and under a limited and circumscribed power, cannot bind his principal by an act beyond his authority." (Andrews v Kneeland, 6 Cow 354, 357 [NY Sup Ct 1826].)
In the case at bar, plaintiff contends that Jay Kimmel executed the mortgage and note as its nominee. Indeed, the parties to the mortgage note and mortgage are defendant Viola Nurse and Jay Kimmel, as Nominee. However, contrary to the ordinary course of business, neither document defines who Jay Kimmel is a nominee of, nor defines Mr. Kimmel's authorized powers. To support its contention that Mr. Kimmel is its nominee, plaintiff annexes Exhibit "A", to its reply affidavit wherein Peter Weiss, plaintiff's President, names Mr. Kimmel as plaintiff's nominee. This document is accorded very little probative value. First, the document is dated six days prior to the closing date, which is suspect considering the work a lender must engage in to prepare to render a loan. Second, the document fails to specifically set forth the nominee's powers. What is compelling and persuasive however, is Exhibit "B", annexed to plaintiff's reply affidavit, which requests Mr. Kimmel to assign the subject mortgage and note to plaintiff. Indeed, a copy of this alleged assignment executed by Jay Kimmel (without any identification as a nominee) is annexed as Exhibit "J", to plaintiff's motion. It is pellucidly clear that if Mr. Kimmel was acting as plaintiff's nominee from the inception of the loan, pursuant to Exhibit "A", then there would be no need for Exhibit "B", the alleged assignment from Mr. Kimmel to plaintiff.
Here, there is no credible evidence of any relationship between Jay Kimmel, as Nominee and plaintiff, nor Mr. Kimmel's authorized powers as a nominee. Certainly, plaintiff proffers not one scintilla of plausible evidence denoting such an agency. Hence, this Court finds that Mr. Kimmel is not plaintiff's nominee. Neither can the assignment be deemed valid since there is no evidence of whether Mr. Kimmel had the authority to assign the mortgage to the plaintiff.
Moreover, plaintiff failed to comply with Chief Administrative Judge Ann T. Pfau's Administrative Order 548/10 (dated October 20, 2010).
Accordingly, it is
ORDERED that plaintiff's motion is denied with leave to renew within sixty days of this order. Plaintiff shall provide credible and admissible proof of its standing as well as compliance with Administrative Order 548/10. Failure to comply with this order will result in a dismissal of this action and cancellation of the notice of pendency.
This constitutes the decision and order of this Court.
ENTER,
_______________________
Genine D. Edwards
A.S.C.J.