Deutsche Bank Natl. Trust Co. v Lewis

[*1] Deutsche Bank Natl. Trust Co. v Lewis 2006 NY Slip Op 52368(U) [14 Misc 3d 1201(A)] Decided on November 29, 2006 Supreme Court, Suffolk County Mayer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2006
Supreme Court, Suffolk County

Deutsche Bank National Trust Company, as Trustee of Ameriquest Mortgage Securities, Inc. Asset- Baked Pass Through Certificates Series 2005-R7, under the Pooling and Servicing Agreement Dated as of August 1, 2005, Without Recourse, Plaintiff(s),

against

Alexander Lewis, Rudine Lewis, Midland Credit Management, Inc, and "John Doe," Defendant(s).



2864-2006



Forsyth, Howe, O'Dwyer, Kalb & Murphy

Attorneys for Plaintiff

1 Chase Square

Suite 1900

Rochester, New York 14604

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Affirmed [*2]Statement of Regularity by the plaintiff, dated July 25, 2006 [FN1], and supporting papers; and now upon Due Deliberation and Consideration by the Court of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiff's application for an Order of Reference in this mortgage foreclosure action is denied, with leave to renew upon proper papers, which comply with the requirements set forth in CPLR 3215(f), including but not limited to submission of: (1) a copy of the "Agreements" referred to the purported Limited Power of Attorney annexed to the moving papers and dated February 22, 2006; and (2) a properly affixed corporate seal of the plaintiff, as referred to on page 4 of said purported Limited Power of Attorney; and it is further

ORDERED that movant shall serve a copy of this Order with Notice of Entry upon all appearing parties, or their attorney(s) if represented by counsel, pursuant to CPLR 2103(b)(l), (2) or (3) and shall thereafter file the affidavit(s) of service with the Clerk of the Court; and it is further

ORDERED that a copy of this Order shall be annexed as an exhibit to any motion to renew.

The plaintiff's papers (#

002) are resubmitted pursuant to the prior Order of this Court, dated June 22, 2006, which denied the plaintiff's motion for an order of reference in this foreclosure action. In its papers, the plaintiff annexes a purported Limited Power of Attorney, which allegedly permits the Servicing Agent, AMC Mortgage Services, Inc., to act on its behalf in these proceedings; however, the Limited Power of Attorney document limits the Agent's powers only to those "mortgage loans serviced by the Servicer pursuant to the terms and conditions of the [pooling and servicing] Agreements ..." Paragraph 11 of the document also states that the Limited Power of Attorney "is not intended to extend the powers granted to the Servicer under the Agreements or to allow the Servicer to take any action with respect to the Mortgages, Deeds of Trust or Mortgage Notes not authorized by the Agreements." In addition, although the Limited Power of Attorney purports to have the plaintiff's corporate seal affixed, no such seal is actually affixed.

Without a properly offered copy of the Agreements referenced in the Limited Power of attorney, the Court is unable to ascertain whether or not the plaintiff's Servicing Agent may properly act on behalf of the plaintiff, to set forth the facts constituting the claim, the default and the amounts due, as required by statute. In the absence of either a verified complaint or a proper affidavit by the party or its authorized agent, the entry of judgment by default is erroneous (see Mullins v. DiLorenzo, 199 AD2d 218; 606 NYS2d 161 [1st Dept 1993]; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dept 1996]; Finnegan v. Sheahan, 269 AD2d 491, 703 NYS2d 734 [2d Dept 2000]). Therefore, the plaintiff's motion must again be denied. [*3]

The foregoing constitutes the Decision and Order of the Court.

Peter H. Mayer, J.S.C. Footnotes

Footnote 1: Plaintiff's papers fail to include a Notice of Motion, which renders them procedurally defective; the Court will nevertheless address the substantive flaws of the papers so as to facilitate a proper renewal motion upon which the requested relief may be granted.