Federal Natl. Mtge. Assn. v Isaiah

[*1] Federal Natl. Mtge. Assn. v Isaiah 2012 NY Slip Op 51386(U) Decided on July 25, 2012 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 25, 2012
Supreme Court, Queens County

Federal National Mortgage Association, Plaintiff,

against

Thomas Isaiah, HELEN ISAIAH, EUGENE ISAIAH, "JOHN DOE' and "JANE DOE," said names being fictitious, parties intended being possible tenants or occupants of premises, Defendants.



4269/1985



Appearances of Counsel:

For the Defendants/Claimants/Movants: Law Offices of Perry Ian Tischler, P.C., by Perry Ian Tischler, Esq., 38-39 Bell Boulevard, Bayside, New York 11361

For the State of New York:Eric T. Schneiderman, Esq., Attorney General of New York State, by Michael Sullivan, Esq., Senior Attorney, 120 Broadway, New York, New York 10271

Charles J. Markey, J.

Papers Numbered

Notice of Motion - Affidavits - Exhibits...........................................................1-4

Answering Affidavits - Exhibits......................................................................5-6

Reply Affidavits................................................................................................7-8

"What's in a name?" was Juliet's question in Shakespeare's Romeo and Juliet [Act II, scene 2, lns. 1-2]. As can be seen from the issues posed in this case, that question takes decisive importance for a draftsman of any durable power of attorney and serves to remind of the importance of observing corporate formalities.

The present motion is by Atlantis Asset Recovery ("Atlantis"), as alleged attorney [*2]in fact for Claimants Thomas Isaiah and Helen Isaiah for an order confirming the referee's report and upon confirming the report, for an order directing the Office of the New York State Comptroller to disburse all of the surplus monies, plus accrued interest currently on deposit with the Office of the State Comptroller, to the named Claimants, Thomas Isaiah and Helen Isaiah, or, in the alternative, for an Order of Reference to ascertain the priority of liens.

This foreclosure action proceeded to a Judgment of Foreclosure and Sale on August 14, 1985, then to a public Sale. The Referee filed a Report of Sale on April 1, 1986. The plaintiff was paid in full on the underlying outstanding obligation. The Referee then deposited the sum of $14,675.23 in the Office of the Clerk of Queens County. The Commissioner of Finance transferred these funds to the New York State Comptroller.

The Claimants, Thomas Isaiah and Helen Isaiah, who claim that, on or about January 15, 1980, they became co-owners of the subject premises, known as 144-43 167th Street, Springfield Gardens, in Queens County, New York, pursuant to a deed, filed a Notice of Claim on June 6, 2011. No other notices of claim have been filed.

Counsel for Atlantis asserts that it entered into an asset recovery agreement dated March 30, 2011 with the claimant Thomas Isaiah and that it entered into an asset recovery agreement dated April 8, 2011 with claimant Helen Isaiah ("the Agreements"). In the Agreements the Claimants each engaged Atlantis to recover approximately $5,305.89 of $21,223.59 in surplus monies, plus accrued interest, in exchange for a fee in the amount of 15% of the value of any recovery. Counsel for Atlantis further asserts that Thomas Isaiah signed a document designated as a "LIMITED POWER OF ATTORNEY," dated April 6, 2011 and Helen Isaiah signed a document designated as a "LIMITED POWER OF ATTORNEY," dated April 13, 2011, each of which appointed Atlantis as attorney-in-fact to seek full recovery of the owed surplus moneys on deposit as a result of the foreclosure sale.

Atlantis moved previously for the similar relief, but failed to serve Eugene Isaiah, who is also an owner of the premises. The Court denied the application with leave to renew. See, Federal Nat. Mortg. Ass'n v Isaiah, 33 Misc 3d 1222(A), 2011 WL 5528967, 2011 NY Slip Op 52049(U) [Sup Ct Queens County 2011] [decision by the undersigned]. Atlantis has moved again for an order of distribution.

The same issue posed in this case, also involving Atlantis, was previously ruled upon by the undersigned in Federal Nat. Mortg. Ass'n v Campbell, 33 Misc 3d 1229(A), 2011 WL 6016046, 2011 NY Slip Op 52155(U) [Sup Ct Queens County 2011], on [*3]reconsideration, 36 Misc 3d 1201(A), 2012 WL 2383506, 2012 NY Slip Op 51147(U) [Sup Ct Queens County 2012].

Atlantis, upon the foregoing papers, has failed to demonstrate that it has authority to act on behalf of the claimants Helen Isaiah and Thomas Isaiah. The durable, limited powers of attorney, granted "Atlantis Asset Recovery LLC" (emphasis supplied) as opposed to Atlantis, authority to act as agents of Thomas Isaiah and Helen Isaiah. Likewise, the Agreements are with Atlantis Asset Recovery LLC (emphasis supplied) - - not Atlantis. See, the discussion in the undersigned's decisions in Federal National Mortgage Association v Campbell, Federal Nat. Mortg. Ass'n v Campbell, 33 Misc 3d 1229(A), 2011 WL 6016046, 2011 NY Slip Op 52155(U), supra, on reconsideration, 36 Misc 3d 1201(A), 2012 WL 2383506, 2012 NY Slip Op 51147(U), supra.

Accordingly, the motion is denied without prejudice to the filing of another motion - - in proper form - - to confirm the Referee's report of sale and distribution of the surplus by Atlantis Asset Recovery LLC on behalf of the claimants Thomas Isaiah and Helen Isaiah.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

July 25, 2012