Opinion
521553/16
03-28-2019
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR J.P. MORGAN MORTGAGE ACQUISITION TRUST 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2, v. Norbert ALLEN; FIA Card Services, N.A. ; New York City Transit Adjudication Bureau; and, John Doe No.1 Through #6, and Jane Doe #1 Through #6, the Last Twelve Names Being Fictitious, it Being the Intention of, Plaintiff to Designate Any and All Occupants, Tenants, Persons or Corporations, if Any, Having or Claiming an Interest in or Lien Upon the Premises Herein, Defendants.
Attorney for Plaintiff, David Gantz, Esq., McCalla Raymer Leibert Pierce LLC, 420 Lexington Avenue, Suite 840, New York, New York 10170, (347) 286-7409
Attorney for Plaintiff, David Gantz, Esq., McCalla Raymer Leibert Pierce LLC, 420 Lexington Avenue, Suite 840, New York, New York 10170, (347) 286-7409
By notice of motion filed on January 16, 2019, under motion sequence two, plaintiff U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2 (hereinafter USBNA) has moved for an order: (1) granting a default judgment against all defendants pursuant to CPLR 3215 ; (2) securing the discharge of record of an encumbrance on the mortgage premised; and (3) declaring that USBNA holds a priority mortgage secured by the property.
BACKGROUND
On December 5, 2016, USBNA commenced this action against Norbert Allen (hereinafter Allen) by filing a summons, notice of pendency and verified complaint with the Kings County Clerk's office (KCCO). On October 19, 2018, USBNA filed a supplemental summons and amended verified complaint against Norbert Allen, Card FIA services, and New York City Transit Adjudication Bureau. No defendant has appeared or answered the amended complaint.
The amended complaint alleges eight allegations of fact in support of a declaratory judgment. In sum and substance USBNA's amended complaint alleges that Allen owns certain real property located at 956 East 106th Street, Brooklyn, New York also known as Block 8213, Lot 65 (hereinafter the subject property). On or about March 8, 2006, Allen issued a mortgage (hereinafter the subject mortgage) encumbering the subject property in the amount of $ 480,000.00 in favor of Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), solely as nominee for WMC Mortgage Corp. (hereinafter WMC). The mortgage was used to refinance the subject property and was not recorded. USBNA seeks a declaration that the subject mortgage is a first and paramount lean against the subject property.
LAW AND APPLICATION
CPLR 3215 provides in pertinent part as follows:
(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached 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 ...
(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint ... and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party ... Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney.
USBNA's motion papers are supported by an affirmation of David Gantz (hereinafter Gantz) as counsel to J.P. Morgan Chase Bank, N.A. Gantz's affirmation simply refers to the annexed affidavits of service of the pleadings as evidence of proper service in accordance with CPLR 3215. Gantz does not aver personal knowledge of any of the allegations of fact set forth in the amended complaint. Gantz does aver, without documentary support, that J.P. Morgan Chase Bank, N.A. is the servicer for USBNA. The motion papers contains no evidence demonstrating that J.P. Morgan Chase Bank, N.A., is either the servicer or the attorney-in-fact for USBNA.
The amended verified complaint in the instant action is verified by J.P. Morgan Chase Bank, N.A., as attorney-in-fact for USBNA and not by USBNA. The motion papers, however, did not include a power of attorney establishing J.P. Morgan Chase Bank, N.A.'s authority to act on USBNA's behalf (cf. Deutsche Bank Natl. Tr. Co. v. Rudman , ––– NYS3d ––––, 2019 NY Slip Op 02061 [2nd Dept 2019] ). Even assuming, for the sake of argument, that J.P. Morgan Chase Bank, N.A., is indeed the attorney-in-fact for USBNA, the statutory powers granted to an attorney-in-fact under Section 5-1501 of the General Obligations Law, do not include the power to swear or sign an affidavit in the name of the principal (see Cymbol v. Cymbol , 122 AD2d 771, 772 [2nd Dept 1986] ). Therefore, the complaint may not serve as an affidavit of USBNA pursuant to CPLR 105 (u).
Accordingly, USBNA's motion for a default judgment is denied for failure to comply with CPLR 3215 (f) ( HSBC Bank USA, N.A. v. Betts , 67 AD3d 735 [2nd Dept 2009] ). The denial is with leave to renew upon presentation of an affidavit in admissible form submitted, either by the plaintiff or an individual, with proof of authority to speak and act for the plaintiff, with personal knowledge of the relevant facts constituting the claim, the default, and the amount due (Id .).
Although, the notice of motion stated that it sought an order securing the discharge of record of an encumbrance on the mortgage premised and a declaration that USBNA holds a priority mortgage secured by the property, the relief sought in the wherefore clause of USBNA's counsel was somewhat different. The wherefore clause sought a declaration that the subject mortgage in the amount of $ 480,000.00 is a first and paramount lien against the subject property. It also sought an order directing the Kings County Clerk's office to record a copy of the subject mortgage. In sum, USBNA provided no sworn allegations of fact from anyone with personal knowledge supporting any of the relief requested in the motion.
CONCLUSION
The motion of U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2 for an order granting a default judgment against all defendants pursuant to CPLR 3215 is denied.
The motion of U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2 for an order declaring that it holds a priority mortgage secured by the property is denied.
The motion of U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2 for an order directing the Kings County Clerk's office to record a copy of the subject mortgage is denied.
The foregoing constitutes the decision and order of this Court.