Summary
In Saxon Mortgage Services v. Jackman, 38 Misc 3d 1204(A), 2012 WL 6758044 (Sup. Ct. Kings Co. 2012), as here, a loan servicer commenced a foreclosure action as the purported holder of the note and mortgage without ever revealing that it was maintaining the action as the servicing agent of the owner of the note.
Summary of this case from Pryce v. Nationstar Mortg.Opinion
No. 41546/2007.
2012-12-20
SAXON MORTGAGE SERVICES, Plaintiff, v. Debbie JACKMAN, et. al., Defendants.
LAURA LEE JACOBSON, J.
Plaintiff seeks an Order of Reference in this mortgage foreclosure proceeding which affects the real property located at 251 East 52nd Street, Brooklyn, New York and registered at Block 4658, Lot 48. The defendants oppose the Order and challenge the standing of the plaintiff to being this action.
At a conference held before me, the plaintiff acknowledged that it does not own the note which was sold to Morgan Stanley in 2007. Plaintiff submitted an affirmation in which it alleged that after the sale of the debt to Morgan Stanley, the latter entered into an agreement with plaintiff to service the defendant's loan. It is not clear whether the defendant was ever notified of the fact that the plaintiff was not the owner of the note and mortgage. What is clear is that nowhere in the summons and complaint is it revealed that the plaintiff is maintaining this action as the agent or servicing agent of the owner of the note. In fact, the complaint never reveals the basis upon which the plaintiff brings this action. The complaint advises the defendant and the Court as to where the plaintiff's principal place of business is located, and that the plaintiff is the sole, true and lawful holder of the bond/note and mortgages securing same. Conveniently, the word “Owner” is excluded.
In order to have standing to commence this proceeding, the plaintiff must establish that it has the right to proceed with this matter. In a similar case recently decided by the Appellate Division, 2nd Department, the appellate court allowed the action to proceed because the complaint identified the owner of the note and mortgage and stated that the action was expressly maintained in the servicing agent's capacity. (CWCapital Asset Management, LLC v. Great Neck Towers, LLC, 99 AD3d 850 [ (October, 2012) ] ). Here, however, the plaintiff fails to properly set forth its status in the complaint and never reveals that there is a principal and the identity of the principal.
Accordingly, the defendant's application to dismiss this foreclosure action based on the lack of standing of the plaintiff is granted. The complaint is dismissed and the Notice of Pendency is vacated and deemed void.
This constitutes the decision and Order of the Court.