Opinion
3921/2008
12-13-2011
Citigroup Global Markets Realty Corp., Plaintiff, v. Howard Smith, ET AL, Defendants.
Plaintiff's attorney in this case is Peter T. Roach and Associates, 125 Michael Drive, Suite 105, Syosset, NY 11791
, J.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
PapersNumbered
Order to Show Cause/Notice of Motion and
Affidavits/Affirmations Annexed....................................1
Answering Affidavits/Affirmations.................................
Reply Affidavits/Affirmations.........................................
Memoranda of Law..........................................................
Other..................................................................................
Plaintiff's brings this application for an Order of Reference, in this mortgage foreclosure action. The mortgagor, Howard Smith has not served an answer and is in default.
Plaintiff was assigned the subject mortgage for 424 Hart Street, Brooklyn, on January 11, 2008 by the assignor Mortgage Electronic Registration Systems (MERS). The mortgage was executed on December 8, 2006, between the lender, American Brokers Conduit and the borrower, Howard Smith. In the mortgage, it is stated that MERS "is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns."
"In 1993, the MERS system was created by several large participants in the real estate mortgage industry to track ownership interests in residential mortgages." Matter of Merscorp, Inc. v. Romaine, 8 NY3d 90, 96 (2006). For a detailed overview of the MERS system see, Matter of Merscorp, supra and Bank of New York v. Silverberg, 86 AD3d 274 (2nd Dep't, 2011)
MERS, was not a party to the underlying note, for $568,000, also dated January 11, 2008, between American Brokers Conduit and Howard Smith. Accordingly, when MERS assigned the mortgage to Plaintiff, Citigroup Global Markets Realty Corp. there was no assignment of the subject note and "a transfer of [a] mortgage without the debt is a nullity, and no interest is acquired by it." (citations omitted) Bank of New York v Silverberg, 86 AD3d at 280, (2nd Dep't, 2011). Apparently., there was an attempt made to transfer the note to Plaintiff, as the note contains an undated endorsement to Citimortgage, Inc., which is obviously a different corporate entity than the Plaintiff, Citigroup Global Markets Realty Corp. There is no evidence submitted as to the relationship between these two corporations. There is also no evidence that Plaintiff owns this note.
The Appellate Division, Second Department's decision in Silverberg, holds that a plaintiff does not have standing to bring a foreclosure action if, as here, it does not own the note. Here, any objection to Plaintiff's standing has been waived, as the debtor has not served an answer or moved to dismiss. See, Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 (2nd Dept, 2007).Notwithstanding this waiver on standing, it would be inappropriate to grant Plaintiff an order of reference, where it is clear that it cannot make out its prima- facie case of entitlement to Judgment. In Horizon Bancorp v Pompee, 82 AD3d 935 (2d Dept 2011) ), the Court held that "[t]o establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish existence of a promissory note and a related mortgage referable to the subject property, its ownership of the mortgage, and the default of the defendant." (See Campaign v Barba, 23 AD3d 327 (2nd Dep't, 2005), Ocwen Federal Bank FSB v. Miller, 18 AD3d 527 (2d Dept 2005).
In the present case, since the assignment of the mortgage from MERS to Citigroup Global Markets Realty was a nullity, and no interest was acquired by it (See, Silverberg, supra), the Plaintiff cannot show that it owns the mortgage and consequently does not meet its burden of making out a prima facie case. "Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default." Green v Dolphy Constr. Co. 187 AD2d 635 (2nd Dep't, 1992)
Accordingly, Plaintiff, Citigroup Global Markets Realty Corp's application for an Order of Reference is denied.
This shall constitute the decision and order of the Court.
ENTER:
_________________________
ANTHONY J. CUTRONA
Justice, Supreme Court