U.S. Bank Natl. Assn. v Bernard

[*1] U.S. Bank Natl. Assn. v Bernard 2008 NY Slip Op 50247(U) [18 Misc 3d 1130(A)] Decided on February 14, 2008 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 19, 2008; it will not be published in the printed Official Reports.

Decided on February 14, 2008
Supreme Court, Kings County

U.S. Bank National Association, as Trustee for CSAB Mortgage-Backed Pass-Through Certificates, Series 2006-2 c/o America's Servicing Company, Plaintiff,

against

Simone Bernard, et. al., Defendants.



29003/07



Appearances:

Plaintiff:

Tracy M. Fourtner, Esq.

Steven J. Baum, PC

Buffalo NY

Defendant: No Opposition submitted by defendants to plaintiff's request for Judgment of Foreclosure and Sale.

Arthur M. Schack, J.

Plaintiff's application, for an order of reference for the premises located at 1347 De Kalb Avenue, Brooklyn, New York (Block 3234, Lot 53, County of Kings) is denied without prejudice, with leave to renew upon providing the Court with: a copy of a valid assignment of the instant mortgage and note to plaintiff U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-2 (U.S. BANK); a satisfactory explanation as to a possible conflict of interest by plaintiff's counsel, Steven J. Baum, P.C., with respect to the July 19, 2007 assignment of the instant mortgage and note from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), as nominee for CREDIT SUISSE FINANCIAL CORPORATION (CREDIT SUISSE) BANK, by an attorney employed by plaintiff's counsel, and then the representation of assignee plaintiff U.S. BANK; a valid power of attorney for the "affidavit of merit" in support of the instant application or an "affidavit of merit" executed by an officer of plaintiff U.S. BANK; and, an affidavit by an officer of plaintiff U.S. BANK explaining why plaintiff purchased a nonperforming loan.

Background

Defendant SIMONE BERNARD borrowed $503,200.00 from CREDIT SUISSE

on June 28, 2006. The note and mortgage were recorded in the Office of the City Register, New York City Department of Finance on July 19, 2006, at City Register File Number (CRFN) 2006000408675. MERS, the nominee of CREDIT SUISSE for the purpose of recording the mortgage, assigned the mortgage to the plaintiff U.S. BANK on July 19, 2007, with the assignment recorded on August 24, 2007, at CRFN 2007000439317. The assignment was executed by "Ronald W. Zackem, Esq., On behalf of MERS by Corporate Resolution dated 7/19/07." Neither a corporate resolution nor a power of attorney to Mr. Zackem was recorded with the assignment. Thus, the assignment is invalid and plaintiff U.S. BANK lacks standing to bring the instant foreclosure action.

Further, the assignor, Mr. Zackem, according to the Office of Court Administration's Attorney Registration, has as his business address, "Steven Baum, P.C., P.O. Box 1291 Buffalo, NY 14202-1291." Nineteen days subsequent, on August 7, 2007, plaintiff's counsel, Steven J. Baum, P.C., commenced the instant action on behalf of assignee U.S. BANK, with the filing of a notice of pendency, and the summons and complaint in the Kings County Clerk's Office. The Court is concerned that the apparent simultaneous representation of Steven J. Baum, P.C. for both MERS and U.S. BANK could be deemed a conflict of interest in violation of 22 NYCRR § 1200.24, the Disciplinary Rule of the Code of Professional Responsibility, entitled "Conflict of Interest; Simultaneous Representation."

Also, plaintiff's moving papers for an order of reference and related relief fails to present an "affidavit made by the party," pursuant to CPLR § 3215 (f). The instant application contains an "affidavit of merit and amount due," dated October 1, 2007, by Dawn Ward, "Vice President of WELLS FARGO BANK, N.A. D/B/A AMERICA'S SERVICING COMPANY, attorney in fact for the plaintiff." Attached to her affidavit is a copy of a "Limited Power of Attorney," dated August 28, 2006, from U.S BANK, appointing WELLS FARGO BANK, N.A. as its attorney-in-fact to perform various enumerated services, by executing documents "if such documents are required or permitted under the terms of the related servicing agreements . . . in connection with [*2]Wells Fargo Bank, N.A.['s] . . . responsibilities to service certain mortgage loans . . . held by U.S. Bank in its capacity as Trustee." There is no listing in the "Limited Power of Attorney" of any of these "certain mortgage loans." The Court is at a loss to determine if U.S. BANK, as Trustee for CSAB Mortgage-Backed Pass-Through Certificate, Series 2006-2, is covered by the "Limited Power of Attorney." Additionally, the "Limited Power of Attorney" is defective, because it is a photocopy, not an original. Plaintiff's counsel failed to comply with the requirements of CPLR § 2105, by affixing to the document an attorney's certification that the document has been compared with the original "and found to be a true and complete copy."

The instant foreclosure application states that defendant BERNARD defaulted on her mortgage payments by failing to make her April 1, 2007 payment. Yet, 110 days later, almost four months subsequent to defendant BERNARD'S alleged payment default, on July 19, 2007, plaintiff U.S. BANK was willing to take an assignment of the instant nonperforming loan from MERS, as nominee for CREDIT SUISSE. Thus, the Court needs a satisfactory explanation as to why U.S. BANK would purchase a nonperforming loan from MERS, as nominee for CREDIT SUISSE.

Discussion

Plaintiff U.S. BANK must have "standing" to bring this action. The Court of Appeals (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d, 901, 812 [2003]), cert denied 540 US 1017 [2003]) held that "[s]tanding to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress." In Carper v Nussbaum, 36 AD3d 176, 181 (2d Dept 2006), the Court held that "[s]tanding to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request." If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1d Dept 2002]).

In the instant action, the July 19, 2007 assignment from MERS to U.S. BANK is defective. Therefore, U.S. BANK has no standing to bring this action. The recorded assignment by "Ronald W. Zackem, Esq. On behalf of MERS by Corporate Resolution dated 7/19/07," has neither the corporate resolution nor a power of attorney. Real Property Law (RPL) § 254 (9) states:

Power of attorney to assignee. The word "assign" or other words of

assignment, when contained in an assignment of a mortgage and bond

or mortgage and note, must be construed as having included in their

meaning that the assignor does thereby make, constitute and appoint

the assignee the true and lawful attorney, irrevocable, of the assignor,

in the name of the assignor, or otherwise, but at the proper costs and

charges of the assignee, to have, use and take all lawful ways and means

for the recovery of the money and interest secured by the said mortgage

and bond or mortgage and note, and in case of payment to discharge

the same as fully as the assignor might or could do if the assignment

were not made. [Emphasis added]

To have a proper assignment of a mortgage by an authorized agent, a power of attorney is [*3]necessary to demonstrate how the agent is vested with the authority to assign the mortgage. "No special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it [Emphasis added]." (Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 [1d Dept 1996]; see Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612 [2d Dept 2004]).

To foreclose on a mortgage, a party must have title to the mortgage. The instant assignment is a nullity. The Appellate Division, Second Department (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]), held that a "foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity." Citing Kluge v Fugazy, the Court (Katz v East-Ville Realty Co., 249 AD2d 243 [1st Dept 1998], held that "[p]laintiff's attempt to foreclose upon a mortgage in which he had no legal or equitable interest was without foundation in law or fact."

It is clear that plaintiff U.S. BANK, with the invalid assignment of the instant mortgage and note from MERS, lacks standing to foreclose on the instant mortgage. The Court, in Campaign v Barba, 23 AD3d 327 (2d Dept 2005), held that "[t]o establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant's default in payment [Emphasis added]." (See Household Finance Realty Corp. of New York v Wynn, 19 AD3d 545 [2d Dept 2005]; Sears Mortgage Corp. v Yahhobi, 19 AD3d 402 [2d Dept 2005]; Ocwen Federal Bank FSB v Miller, 18 AD3d 527 [2d Dept 2005]; U.S. Bank Trust Nat. Ass'n v Butti, 16 AD3d 408 [2d Dept 2005]; First Union Mortgage Corp. v Fern, 298 AD2d 490 [2d Dept 2002]; Village Bank v Wild Oaks Holding, Inc., 196 AD2d 812 [2d Dept 1993]).

Even if plaintiff can cure the assignment defect, plaintiff's counsel then has to address the apparent conflict of interest in the purported representation of both the assignor of the instant mortgage, MERS, and the assignee of the instant mortgage, U.S. BANK. 22 NYCRR § 1200.24, of the Disciplinary Rules of the Code of Professional Responsibility, entitled "Conflict of Interest; Simultaneous Representation," states in relevant part:

(a) A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is

likely to be adversely affected by the acceptance of the proffered

employment, or if it would be likely to involve the lawyer in representing

differing interests, except to the extent permitted under subdivision (c)

of this section. (b) A lawyer shall not continue multiple employment if the

exercise of independent professional judgment in behalf of a client

will be or is likely to be adversely affected by the lawyer's representation

of another client, or if it would be likely to involve the lawyer in

representing differing interests, except to the extent permitted under

subdivision (c) of this section. (c) In the situations covered by subdivisions (a) and (b) of this [*4]

section, a lawyer may represent multiple clients if a disinterested lawyer

would believe that the lawyer can competently represent the interest

of each and if each consents to the representation after full disclosure

of the implications of the simultaneous representation and the

advantages and risks involved. [Emphasis added] The Court needs to know if both MERS and U.S. BANK were aware of the

apparent simultaneous representation by plaintiff's counsel, Steven J. Baum, P.C., and whether they consented. If plaintiff moves to renew its application for an order of reference, the Court needs an affirmation by Steven J. Baum, Esq., the principal of Steven J. Baum, P.C., explaining if both MERS and U.S. BANK consented to simultaneous representation in the instant action with "full disclosure of the implications of the simultaneous representation and the advantages and risks involved." The Appellate Division, Fourth Department, the Department in which both Mr. Zackem and Mr. Baum are registered, (In re Rogoff, 31 AD3d 111 [2006]) censured an attorney, for inter alia, violating 22 NYCRR § 1200.24, by representing both a buyer and sellers in the sale of a motel. The Court, at 112, found that the attorney, "failed to make appropriate disclosures to either the sellers or the buyer concerning dual representation." Further, the Court, at 113, censured the attorney, after it considered the matters submitted by respondent in mitigation, including

that respondent undertook the dual representation at the insistence of

the buyer, had no financial interest in the transaction and charged the

sellers and the buyer one half of his usual fee. Additionally, we note

that respondent cooperated with the Grievance Committee and has

expressed remorse for his misconduct.

Next, if plaintiff's counsel can cure the assignment defect and explain his apparent simultaneous representation, the matter of the "affidavit of merit" must be addressed. Plaintiff must comply with CPLR § 3215 (f) by providing an "affidavit made by the party," whether by an officer of U.S. BANK, or someone with a valid power of attorney from U.S. BANK, to execute foreclosure documents for U.S. BANK, as Trustee for CSAB Mortgage-Backed Pass-Through Certificates, Series 2006-2. If plaintiff presents a power of attorney and it refers to a servicing agreement, the Court needs to inspect the servicing agreement. (EMC Mortg. Corp. v Batista, 15 Misc 3d 1143 (A), [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v Lewis, 4 Misc 3d 1201 (A) [Sup Ct, Suffolk County 2006]). If a power of attorney is presented, it must be an original or a copy certified by an ttorney, pursuant to CPLR § 2105. The "Limited Power of Attorney" presented in the instant application is a photocopy without the certification. Plaintiff's counsel must comply with the statutory requirement that if a copy of a power of attorney is submitted, "an attorney admitted to practice in the court of the state may certify that it has been compared by him with the original and found to be a true and complete copy. (See Security Pacific Nat. Trust Co. v Cuevas, 176 [*5]Misc 2d 846 [Civ Ct, Kings County 1998]).

Lastly, the Court needs to have a satisfactory explanation from an officer of U.S. BANK as to why it would purchase a nonperforming loan from MERS, as nominee of CREDIT SUISSE. The Court wonders if U.S. BANK is violating a corporate fiduciary duty to its stockholders with the purchase of a loan that defaulted 110 days prior to its assignment from MERS to U.S. BANK.

Conclusion

Accordingly, it is

ORDERED that the application of plaintiff U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-2, for an order of reference for the premises located at 1347 De Kalb Avenue, Brooklyn, New York (Block 3234, Lot 53, County of Kings) is denied without prejudice, and it is further

ORDERED that leave is granted to plaintiff U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-2, to renew its application for an order of reference for the premises located at 1347 De Kalb Avenue, Brooklyn, New York (Block 3234, Lot 53, County of Kings), upon presentation to the Court, within forty-five (45) days of this decision and order of: (1) a valid assignment of the instant mortgage and note to plaintiff, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-2; (2) an affirmation from Steven J. Baum, Esq., the principal of Steven J. Baum, P.C., explaining if both MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., the assignor of the instant mortgage and note, and U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-2, the assignee of the instant mortgage and note, pursuant to 22 NYCRR § 1200.24 consented to simultaneous representation in the instant action, with "full disclosure of the implications of the simultaneous representation and the advantages and risks involved" explained to them; (3) compliance with the statutory requirements of CPLR § 3215 (f), by an affidavit of facts executed by someone with authority to execute such an affidavit, and if the affidavit of facts is executed by a loan servicer, a copy of a valid power of attorney to the loan servicer and the servicing agreement authorizing the affiant to act in the instant foreclosure action; and (4) an affidavit from an officer of plaintiff U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-2, explaining why plaintiff would purchase a nonperforming loan from MERS, as nominee for CREDIT SUISSE FINANCIAL CORPORATION.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK [*6]

J. S. C.