Deutsche Bank Natl. Trust Co. v Stevens – An Assignee of Such a Mortgage Does Not Have Standing to Foreclose Unless the Assignment is Complete at the Time the Action is Commenced

Deutsche Bank Natl. Trust Co. v Stevens
2010 NY Slip Op 50909(U)
Decided on May 18, 2010
Supreme Court, Kings County
Lewis, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Deutsche Bank Natl. Trust Co. v StevensDecided on May 18, 2010

Supreme Court, Kings County

Deutsche Bank National Trust Company as Trustee under the Pooling and Servicing Agreement Dated as of February 1, 2007, GSAMP Trust 2007-FM2, Plaintiff,

against

Wilhelmena Stevens, Defendant.

15862/08

Plaintiff Attorney: Jeffrey A Kosterich & Assoc

Defendant Attorney: Wilhelmena Stevens Pro se

Yvonne Lewis, J.

The plaintiff, Deutsche Bank National Trust Company moves for an order granting it summary judgment, appointing a referee to compute, deleting from the caption the remaining defendants sued herein as “JOHN DOE ONE” through “JOHN DOE TEN” and awarding plaintiff costs and sanctions for frivolous conduct pursuant to 22 NYCRR § 130.

Plaintiff commenced this action on June 2, 2008 to foreclose a mortgage executed by defendant Wilhelmena Stevens on October 26, 2006 and encumbering the property at 517 Christopher Street in Brooklyn. The mortgage was given to secure a loan from Fremont Investment & Loan (Fremont) in the amount of $225,000.00. The plaintiff became the holder of the mortgage by assignment from MERS (as nominee of Fremont) dated June 11, 2008.

In response to the summons and complaint, Ms. Stevens sent the plaintiff’s counsel a handwritten letter, dated June 16, 2008, wherein she stated, in sum and substance, that her loan originated with Fremont, that The plaintiff’s name was not mentioned anywhere in the loan documents and that she desired proof as to The plaintiff’s status as the mortgagor.

When a court is deciding a motion for summary judgment, it can search the record and, even in the absence of a cross motion, may grant summary judgment to a non-moving party (CPLR 3212[b]; Dunham v Hilco Constr. Co., Inc., 89 NY2d 425 [1996]).

“Where the plaintiff is the assignee of the mortgage and the underlying note at the time the foreclosure action was commenced, the plaintiff has standing to maintain the action” (Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547 [2003]; see Natl. Mtge. Consultants v Elizaitis, 23 AD3d 630, 631 [2005]). On the other hand, “foreclosure of a mortgage may not be brought by one who has no title to it” (Kluge v Fugazy, 145 AD2d 537, 538 [1988]) and an assignee of such a mortgage does not have standing to foreclose unless the assignment is complete at the time the action is commenced (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204 [2009]; Lasalle Bank Nat. Assn. v Ahearn, 59 AD3d 911 [2009]).

Since it is clear from the face of the summons that this action was commenced on June 2, [*2]2008, which is prior to the date of the mortgage assignment, and the record contains no proof demonstrating that there was a physical delivery of the mortgage prior to June 2, 2008, this court finds that The plaintiff has no standing to maintain this action.

Accordingly, The plaintiff’s motion is denied in all respects, and this action is dismissed without prejudice (see Citigroup Global Markets Realty Corp. v Randolph Bowling, 25 Misc 3d 1244[A], 2009 NY Slip Op 52567[U] [2009]).

The foregoing constitutes the decision and order of the court.

ENTER,

____________________________

Yvonne Lewis, JSC

4closureFraud

Comments
8 Responses to “Deutsche Bank Natl. Trust Co. v Stevens – An Assignee of Such a Mortgage Does Not Have Standing to Foreclose Unless the Assignment is Complete at the Time the Action is Commenced”
  1. frustrated homeowner says:

    So American Home Mortgage was servicing our loan which went from American Brokers Conduit to Bank One or whatever and now after they filed two notices of default, they assigned the mortgage to Deutsche Bank. So do we have a chance to get our home back then?

  2. lisamarie says:

    So can the bank foreclosing go get an assignment of mortgage within a few days of filing for forclosure? Also are the banks suppose to file a lispends (?) Prior to filing for forclosure or after? Its all confusing. If the assignment is dated 8 days after filing foreclosure is it any good?

  3. Ian says:

    In the Deutschbank case, “the assignments must be complete”, does this mean the ABCDE chain of assignments from the depositor to the sponsor, the sponsor to the originator, etc. which is a necessary part of each and every securitized loan? Or just the assignment mentioned?

  4. Willow says:

    Here’s my question: If MERS is only on the DOT and they DO NOT HOLD THE NOTE EVER because they are not a party to the promissory note nor are they ever assigned the note (those notes are assigned to the pool as a MBS), then how the hell did Deutsche Bank get to foreclose at all? I should think the SOMEBODY needs to take a long, hard look at that assignment and start taking depositions of every person who has their name attached to it. Like NOW.

    • Right on … The judge or judges writing that ruling seem to have thought it sufficient to throw the motion for summary judgment out for whatever grounds first appeared sufficient, never even beginning to tackle the issue of the illegitimate alleged MERS assignment. Note that since the Attorneys General of the 50 States have begun deeply investigating MERS, and the Senate has been pressing it, that electric eel worm CEO of MERS finally told the Senate that MERS has “recently suspended robo-signers”, which should mean it has “outlawed” all those who ever alleged to assign in MERS name (but I am sure the worm has not turned that much). http://westlawnews.thomson.com/Securities_Litigation/News/2010/11_-_November/Legal_challenges_to_foreclosure_middleman_are_mounting/ .. Why robo-signers (those who have pretended to assign in MERS name) were not “fired” and “declared outlaw” instead of just “suspended” (and since only “suspended” – knowing that MERS is a very slick electric eel worm – how many were suspended and for how long(?) is the question – they should go to prison for such fraud) was not stated in the article.

  5. Stupendous Man - Defender of Liberty - Foe of Tyranny says:

    Well, she was able to defeat this suit based on standing but she may be in for a tougher defense when they refile, which they will likely do.

    The finality of the courts decision stands in contrast to many others of Arthur Schack, and his brethren jurists. It seems they have not been dismissing cases. Instead they have been merely denying the order of reference with leave to reapply within so many days, but only upon compliance with a contemporaneous court order that typically asks for some specific performance by Plaintiff. In this way the court does not relinquish jurisdiction.

    The case of IndyMac Bank v Bethley exemplifies this. Denial of the order of reference, and the court order, issued on February 6, 2009. 16 months hence there has been no compliance by plaintiff in re the courts order. The case remains in the jurisdiction of the court. And it languishes.

    Deutsche v Stevens IS a victory. But likely she will be fighting again. And next time the post commencement assignment will not be an issue.

    • Tim says:

      Yes but if she refiles a case, the defence will still undoubtedly challenge the validity of the original note, MERS tesified to a supreme court, I forget which one but undeed did testify that they never kept original notes, in fact they said they are purposly destroyed once uploaded into MERS system to prevent double uploading of the same notes. So in this fact alone any good lawyer should be able to challenge these so called original notes that are created on the forclosure mills computers and fraudently signed. Not to mention most of these loans that were done throught mers have been sold many times over, so they have to show original paerwork transfering the notes each time the note changed hands and prove it was hand delivered. Now common sence tells me if mers advertises : the no paerwork way of doing mortgage assignments, then how can they show up in court with any of the real evidence, they already told a supreme court they dont have ANY notes or proof of transfers. its all fraud and fake paperwork, how do you think places like docx stay in business? they are all under federal investigation. I dont understand how just before they forclose, MERS can assign my note to a fake owner of note to try to defraud the court and forclose on our properties. I have spent hundreds of hours researching all of this and I feel like im missing something, so please tell me? how can they even bring a case at all if they dont own the note today, and if they dont own the note today, how can they transfer the note in the first place to a new owner of note or assignee just to forclose, meaning they cant forclose in mers name, so they transfer out of mers name. my mortgage is filed in palm beach county public records, it shows mers and act mortgage, act leding corp as party 2 along with my name as party 1. Act Lending corp has ceased operations from what I have read but I see that they are assigning mortgaes to americas servicing company aka wells fargo mortgage like crazy on the palm beach county records. I assume ACT Lending corp is attempting to assign mortgages because they dont have standing to file a forclosure case. if i am right then act lending didnt have standing to file and dont own my loan, so how can they transfer my note? and then use that assignment to forclose? in addition neither act lending or americas servicing company was my original loan, my loan was done with homecomings financial but within one year was sold to act lending through mers, now the kicker here is that for the last 5 years I have been paying my mortgage payments to americas servicing company aka wells fargo but that is not filed in public record, so have i been paying someone for 5 years that doesnt even own my note? finally, when mers transfers my note in 2004 from homecoming financial to act lending, Mers or whomever filed with the court a release of the original mortgage, however the physical address on that release is not my address, my address is 5130 and the release of mortage says 5730, just one number off but we are not talking about being a penny or nickel off here, this is someones home, i see how people get forclosed on that are not even in default.

      • To Tell The Truth says:

        Homecomings Financial was/is part of GMAC/Ally, Indymac? Deutsche…they dont or never owned anything…servicer only…not even trustees…? What would happen if we all counter sued the banks??? Or bring up unethical charges against the unethical lyers/lawyers that are giving a bad rep to the ethical ones? What is the statute of limitation for a bank to refile a new case to replace the old lawsuit? And if the case is dismissed without prejudice, and not refiled, should not the bank remove that lis pen-dis from the tax roll and the credit reports or is it the homeowner that is to do that?

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