In order to effect a valid assignment, the assignor must be "divested of all control over the thing assigned." Coastal Commercial Corp. v. Kosoff Sons, 10 A.D.2d 372, 376 (N.Y.App.Div. 4th Dep't 1960); see In re estate of Jordan, 605 N.Y.S.2d 596 (N.Y.App.Div. 4th Dep't 1993); see also Miller v. Wells Fargo Bank Int'l Corp., 540 F.2d 548, 557-58 (2d Cir. 1976). Defendants' conduct is instructive as to their intention to assign the rights and duties of the 1979 Contract to Pozzi Canegrati s.n.c. and later to Simplex s.r.l.
It was WPA, not SRF, that accepted 32 payments from the defendant totaling $82,352 from October 1991 through May 1994 pursuant to the terms of that amendment, including 10 payments after July 22, 1993, the date of the purported assignment of SRF assets to the plaintiff. Under these circumstances, it cannot be said that WPA "intended . . . to transfer some present interest" in the defendant's mortgage and note to SRF when it executed the assignment in 1989 ( Matter of Jordan, 199 AD2d 998; see Gruen v. Gruen, 68 NY2d 48, 55; McCarthy v. Pieret, 281 NY 407, 409). "Under New York law, an assignment occurs only where the assignor retains no control over the funds, no authority to collect and no power to revoke" ( Natwest USA Credit Corp. v. Alco Standard Corp., 858 F Supp 401, 413; see Miller v. Wells Fargo Bank Intl. Corp., 540 F2d 548, 558).
The court concluded that the document effectuated a present inter vivos gift in part because the verbs "release" and "consider" are in the present tense; significantly, however, we note that both verbs are limited by the phrase "at the time of my death." Thus, we conclude that the document did not effectuate an inter vivos gift ( see Matter of Jordan, 199 AD2d 998; see also McCarthy v. Pieret, 281 NY 407, 408-410, rearg denied 282 NY 800; cf. Gannon v. McGuire, 160 NY 476). Moreover, "the agreement did not constitute a valid will substitute. `[I]f the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will'" ( Jordan, 199 AD2d at 998, quoting Gruen, 68 NY2d at 53). Therefore, we reverse the order insofar as appealed from and grant the petition to the extent of determining that the note and mortgage continue in full force and effect.
It is well settled that "[n]o particular words are necessary to effect an assignment; it is only required that there be a perfected transaction between the assignor and assignee, intended by those parties to vest in the assignee a present right in the things assigned" (Leon v. Martinez, 84 N.Y.2d 83, 88; see Mele v. Travers, 293 A.D.2d 950; Tawil v. Finkelstein Bruckman Wohl Most Rothman, 223 A.D.2d 52, 55; Whalen v. Gerzof, 206 A.D.2d 688, 690; Coastal Commercial Corp. v. Kosoff Sons, 10 A.D.2d 372, 376; Property Asset Mgt., Inc. v. Chicago Title Ins. Co., 173 F.3d 84, 87 [2d Cir 1999]). In order for an assignment to be valid, the assignor must be "divested of all control over the thing assigned" (Coastal Commercial Corp. v. Kosoff Sons, supra at 376; see Matter of Jordan, 199 A.D.2d 998 [the correct test to determine the validity of an assignment is whether the assignor intended to transfer some present interest]; see also Miller v. Wells Fargo Bank Intl. Corp., 540 F.2d 548, 557-558 [2d Cir 1976]). When a valid assignment is made, the assignee steps into the assignor's shoes and acquires whatever rights the latter had (see Furlong v. Shalala, 156 F.3d 384, 392 [2d Cir 1998]).
These intentions, however "...ceased by closure when the heart which willed and chose each benevolence was stilled by death. The charity was personal, not transmissible to the discretion of executor or next of kin" (Arming v. Steinway et al., 35 Misc.220, 71 NYS 810 [Supreme, Kings Co.1901]; see, Gruen v. Gruen 68 NY2d 48, 505 N.Y.S.2d 849 [1986]; Matter of Estate of Jordan 199 AD2d 998, 605 N.Y.S.2d 596 [4th Dept.1993]. Mr. Longworth was under no obligation to transfer the property at that time and his declining to do so, standing on its own, cannot form the basis for a cause of action.
These intentions, however "...ceased by closure when the heart which willed and chose each benevolence was stilled by death. The charity was personal, not transmissible to the discretion of executor or next of kin" (Arming v. Steinway et al., 35 Misc.220, 71 NYS 810 [Supreme, Kings Co.1901]; see, Gruen v. Gruen 68 NY2d 48, 505 N.Y.S.2d 849 [1986]; Matter of Estate of Jordan 199 AD2d 998, 605 N.Y.S.2d 596 [4th Dept.1993]. Mr. Longworth was under no obligation to transfer the property at that time and his declining to do so, standing on its own, cannot form the basis for a cause of action.
These intentions, however “... ceased by closure when the heart which willed and chose each benevolence was stilled by death. The charity was personal, not transmissible to the discretion of executor or next of kin” (Arming v. Steinway et al., 35 Misc. 220, 71 N.Y.S. 810 [Supreme, Kings Co.1901] ; see, Gruen v. Gruen 68 N.Y.2d 48, 505 N.Y.S.2d 849 [1986] ; Matter of Estate of Jordan 199 A.D.2d 998, 605 N.Y.S.2d 596 [4th Dept.1993]. Mr. Longworth was under no obligation to transfer the property at that time and his declining to do so, standing on its own, cannot form the basis for a cause of action.
As indicated above, a pre-action written assignment of a note, with or without a concomitant written assignment of the mortgage, is sufficient to effect a transfer of the note and the mortgage to the assignee, irrespective of delivery, under the principal/incident rule (see PHH Mortg. Corp. v. Israel, ––– A.D.3d ––––, 992 N.Y.S.2d 355, 2014 WL 4627577 [2d Dept 2014], supra; MLCFC 2007–9 Mixed Astoria, LLC v. 36–02 35th Ave. Development, LLC, 116 A.D.3d 745, 983 N.Y.S.2d 604, supra ). The proper test to determine the validity of an assignment is whether the assignor intended to transfer some present interest to the transferee (see In re Stralem, 303 A.D.2d 120, 758 N.Y.S.2d 345 [2d Dept 2003] ; Matter of Jordan, 199 A.D.2d 998, 605 N.Y.S.2d 596 [4th Dept] ). When a valid assignment is made, the assignee steps into the assignor's shoes and acquires whatever rights the latter had (In re Stralem, 303 A.D.2d 120, 758 N.Y.S.2d 345, supra; Furlong v. Shalala, 156 F.3d 384, 392 [2d Cir.1998] ).
Here, the deed demonstrates that plaintiff conveyed to defendant a one-half interest in the subject premises with the intent of making a present, complete transfer of the subject interest, which became an effective gift when he delivered the deed to her (see, Rubenstein v Rosenthal, 140 AD2d 156 [the elements of an effective gift are the intent on the part of the donor to make a present transfer, delivery of the gift to the donee, and acceptance by the donee]; see also Matter of Carroll, 100 AD2d 337). Moreover, since plaintiff concedes that the subject conveyance was a gift and there is no contrary documentary proof to demonstrate the imposition of any conditions associated with the subject conveyance, the deed unequivocally establishes that plaintiff gave an unqualified, gift to defendant as a matter of law (cf. Matter of Estate of Jordan, 199 AD2d 998). Having been effectuated, this gift is irrevocable (In re Maijgren's Estate, 193 Misc 814.)
Indeed, Greg Beyer testified that it was his father David Beyer who kept all the records relating to the mortgage, informed him when the mortgage was in default and consulted attorneys for the purpose of prosecuting the foreclosure action against the Cullinans. Despite the alleged assignment to his father and children, the failure of David Beyer to relinquish control of the mortgage interest is evidence that the assignment was invalid and meant to avoid the consequences of then ongoing investigations which revealed that David Beyer through Sterling Financial was engaging in reverse redlining by knowingly soliciting high interest loans with balloon payments for low income home owners ( see, Coastal CommercialCorp., v Samuel Kosoff Sons Inc., 10 AD2d 372, 199 NYS2d 852; TPZ Corp v Dabbs, 25 AD3d 787, 808 NYS2d 746; In re Estate ofJordan, 199 AD2d 998, 605 NYS2d 596). Thus, not only will plaintiffs be unable to assert the usury exemption set forth in Banking Law 590-a(1), but in the absence of a valid assignment plaintiffs have no standing to bring the foreclosure action ( see, 1-6 Bergman on New York Mortgage Foreclosures 6.05, [Matthew, Bender Co. Inc., 2007]; see alsoTerwin Advisors, LLS v ASHA Balbuchan, 15 Misc 3d 1127 A, 2007 NY Misc Lexis 2968; Mele v Travers, 293 AD2d 950, 741 NYS2d 319; Votta v Votta Enters., 249 AD2d 536, 672 NYS2d 118; TerwinAdvisors, LLS v ASHA Balbuchan, 15 Misc 3d 1127 A, 2007 NY Misc Lexis 2968).