Deutsche Bank Nat'l Trust Co. v. Carlin, 2015-07571, Index No. 7648/13.
| Decision Date | 05 July 2017 |
| Docket Number | 2015-07571, Index No. 7648/13. |
| Citation | 61 N.Y.S.3d 16,152 A.D.3d 491 |
| Parties | DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for the Holders of Morgan Stanley ABS Capital I Inc., Trust 2005–HE3, Mortgage Pass–Through Certificates, Series 2005–HE3, respondent, v. Andrew P. CARLIN, appellant, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
152 A.D.3d 491
61 N.Y.S.3d 16
DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for the Holders of Morgan Stanley ABS Capital I Inc., Trust 2005–HE3, Mortgage Pass–Through Certificates, Series 2005–HE3, respondent,
v.
Andrew P. CARLIN, appellant, et al., defendants.
2015-07571, Index No. 7648/13.
Supreme Court, Appellate Division, Second Department, New York.
July 5, 2017.
Harvey Sorid, Uniondale, NY, for appellant.
Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
In an action to foreclose a mortgage, the defendant Andrew P. Carlin appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered April 15, 2015, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him and an order of reference.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellant and an order of reference is denied.
In 2005, the defendant Andrew P. Carlin (hereinafter the defendant) executed a note in favor of WMC Mortgage Corp. (hereinafter WMC) and a mortgage on his property in favor of Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for WMC. Pursuant to paragraph 18 of the mortgage, the defendant was entitled to a notice of default prior to the mortgagee demanding payment of the loan in full.
By written assignment dated May 9, 2012, MERS, as nominee for WMC, assigned the mortgage to the plaintiff. In 2013, the plaintiff commenced this mortgage foreclosure action, alleging, among other things, that the defendant defaulted on the subject loan, that it had complied with the RPAPL 1304 notice requirement, and that it was the owner and holder of the note and mortgage. In his answer, the defendant denied the material allegations in the complaint...
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