39 Misc.3d 1221(A), 2013-50686, The Bank of New York v. Cepeda
| Date | 02 May 2013 |
| Citation | 39 Misc.3d 1221(A),972 N.Y.S.2d 142 |
| Docket Number | 2013-50686 |
| Parties | The BANK OF NEW YORK as Trustee for the Certificateholders CWALT, Inc. Alternate Loan Trust 2005-58 Mortgage Pass-Through Certificates, Series 2005-58, Plaintiff, v. Swenda A. CEPEDA, et. al., Defendants. No. 10596/08. |
Page 1221(A)
Editorial Note:
This decision has been referenced in a table in the New York Supplement.
The following papers numbered 1-1 read on this motion:
Papers Numbered:
Notice of Motion/Exhibits ____1
__________
In this foreclosure action, plaintiff, THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATE LOAN TRUST 2005-58 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-58(BNY), moves to: vacate an order of reference issued by another Justice of the Supreme Court, Kings County for the premises, located at 45 Cumberland Street, Brooklyn, New York (Block 2030, Lot 2, County of Kings), filed in the Kings County Clerk's Office on July 9, 2009; and, have the Court issue a new order of reference for the subject premises. On June 26, 2012, that Justice of the Supreme Court granted the instant motion " on default subject to review by the foreclosure department." Subsequently, that Justice of the Supreme Court, in an order dated February 26, 2013, recused himself from the instant action. The instant motion and underlying papers were sent to me as the new IAS Justice for this foreclosure action.
After a thorough review of plaintiff's papers, the Court finds that plaintiff BNY cannot prove that it owns the subject mortgage and note. Therefore, plaintiff BNY has no right to foreclose and the Court dismisses the instant action and cancels the notices of pendency. As will be explained, the instant motion is granted to the extent of vacating the 2009 order of reference, but the instant action is dismissed without prejudice.
Background
Defendant SWENDA A. CEPEDA (CEPEDA) borrowed $588,5000.00 from COUNTRYWIDE BANK, N.A. (COUNTRYWIDE) on September 26, 2005. The mortgage to secure the note was recorded by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), " acting solely as a nominee for Lender [COUNTRYSIDE]" and " FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD," in the Office of the City Register of the City of New York, New York City Department of Finance, on November 9, 2005, at City Register File Number (CRFN) 2005000623741.
Defendant CEPEDA allegedly defaulted in his mortgage loan payments with the September 1, 2007 payment. Subsequently, on March 27, 2008, 209 days after defendant CEPEDA defaulted, M. Kelly Michie, 1st Vice President of MERS, " acting solely as a nominee of Countrywide Bank, N.A." assigned the nonperforming CEPEDA mortgage and note to plaintiff BNY. This was recorded in the Office of the City Register of the City of New York, New York City Department of Finance, on May 23, 2008, at CRFN 2008000210182.
Plaintiff BNY, four days after the MERS assignment to plaintiff BNY, on March 31, 2008, commenced the instant action with the filing of the subject summons, complaint and original notice of pendency. As noted above, another Justice of the Supreme Court, Kings County, appointed a referee who on or about November 10, 2009 executed a report. According to ¶ 6 of the attorney's affirmation in support of the instant motion:
Plaintiff seeks to vacate the prior order of this court because plaintiff is unable to confirm that a proper review of the records was made and a proper notary taken when the prior affidavit, executed by Keri Selman in support of the previous order, was signed. Plaintiff is unable to confirm said information because the records, sufficient to demonstrate such compliance conclusively, were not maintained at that time. Therefore, submitted herewith is a new affidavit, in support of an order of reference, which was executed after a review of the business records and in compliance with notary requirements.
Ms. Selman has a documented history as a robosigner. While in the instant action she executed the affidavit of merit for the original motion for an order of reference on May 15, 2008 as Assistant Vice President of plaintiff BNY, she has executed other documents presented to this Court as " foreclosure specialist of Countrywide Home Loans, Inc.," " Assistant Vice President of MERS" and " Vice President of Countrywide Home Loans."
On November 16, 2007, I denied an application for an order of reference in Bank of New York a Trustee for the CertificateHolders of CWABS, Inc. Asset-Backed Certificates, Series 2008 v. Nunez, et. al., Index No. 10457/07, in which the same Ms. Selman, in her affidavit of merit, claimed to be " Vice President of COUNTRYWIDE HOME LOANS, Attorney in fact for BANK OF NEW YORK." In my decision in The Bank of New York, as Trustee for the Certificateholders CWALT, Inc. Alternative Loan Trust 2006-OC1 Mortgage Pass-Through Certificates, Series 2006-OC1 v. Mulligan (28 Misc.3d 1226[A] [Sup Ct Kings County 2010] ), at * 4, I was presented with an affidavit of merit, dated August 23, 2007, from Ms. Selman, in which she claimed to be " a foreclosure specialist of Countrywide Home Loans, Inc. Servicing Agent for BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC1." In Bank of New York as Trustee for Certificateholders CWABS, Inc. Asset-Backed Certificate Series 2006-22 v. Myers (22Misc.3d 1117[A] [Sup Ct, Kings County 2009] ), I found that Ms. Selman assigned the subject mortgage to plaintiff BNY on June 28, 2008 as Assistant Vice President of MERS, nominee for Homebridge Mortgage Bankers Corp., and five days later executed an affidavit of merit as Assistant Vice President of plaintiff BNY.
Therefore, the Court agrees with plaintiff BNY to vacate the other Supreme Court Justice's original 2009 order of reference. However, with respect to that branch of the instant motion to issue a new order of reference, plaintiff has several problems.
First, plaintiff BNY fails to demonstrate how the assignment of the subject mortgage and note from MERS to BNY is valid. As will be explained, there is no authority for M. Kelly Michie, 1st Vice President of MERS, " acting solely as a nominee of Countrywide Bank, N.A.," to assign the subject mortgage and note.
Second, the affidavit of merit attached to the instant motion is not executed by an officer of plaintiff BNY, but by Elysha James Armbruster, Assistant Vice President of Bank of America, N.A., who claims, in ¶ 1 of his affidavit of merit, that " I am authorized to sign this affidavit on behalf of Bank of America, N.A. as successor by merger to BAC Home Loans Servicing LP (" BANA" ), as an officer of BANA, the servicing agent for plaintiff." There is no valid power of attorney provided by plaintiff BNY to demonstrate how BANA is plaintiff BNY's servicing agent. Further, attached to exhibit C of the instant motion is the Referee's Report of November 11, 2009. Schedule C attached to the Referee's Report is an affidavit, dated September 17, 2009, by Mary Kist, Vice President of " BAC Home Leans Servicing, L.P., attorney in fact [for plaintiff BNY] pursuant to a power of attorney recorded in Kings County on 1/9/09 as CRFN No. 2009000008160." I checked the official ACRIS (Automated City Register Information System) website of the New York City Department of Finance and discovered that this power of attorney, dated August 15, 2005, was originally recorded on October 31, 2005 in Lockport, New York, in the Office of the Niagara County Clerk at Liber 3337, Page 123 and subsequently in ACRIS on January 9, 2009. However, the power of attorney is from The Bank of New York, " as Trustee under the Pooling and Servicing Agreements" to " Countrywide Home Loans Servicing LP and its authorized officers" to execute foreclosure documents. There is no mention of BAC Home Loans Servicing, LP or BANA in this recorded power of attorney.
Third, plaintiff's counsel presents the Court in the instant motion with an affirmation by counsel, that on December 11, 2012 " I received a communication from the following representative ... of plaintiff ... Elysha James Armbruster, Assistant Vice President Bank of America, NA servicer for Plaintiff," confirming the accuracy of the documents and the notarizations, pursuant to Administrative Order 431/11 of the Chief Administrative Judge." Absent a valid power of authority, Mr. Armbruster is not a representative of plaintiff BNY.
Discussion
In a foreclosure action, a plaintiff must plead and prove as part of its prima facie case its ownership of the mortgage and note. The Court, in Campaign v. Barba (23 A.D.3d 327 [2d Dept 2005] ),...
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