Petitioner Deutsche Bank National Trust Company brought a holdover Petition against the Respondents Norma Cordova, "Jane" Cordova, Guadalupe Lleiba, Dennis Guzman, John Doe and Jane Doe. The holdover Petition, dated October 31, 2018, alleges that Respondent Norma Cordova previously held title to 1 Mitchell Court, Hempstead, New York. It is also alleged that all Respondents reside at the premises without permission from Petitioner.
This proceeding was commenced pursuant to RPAPL § 713.
Petition paragraph 4, alleges that a foreclosure sale was held pursuant to the Judgment of Foreclosure and Sale signed on April 23, 2018. The said premises was sold to Petitioner on September 4, 2018.
Paragraph 5 of the Petition alleges that Respondents were duly served with the Ten Day Notice to Quit.
Paragraph 6 of the Petition states that a certified copy of the Referee's Deed was exhibited to Respondents.
The Ten Day Notice to Quit and Tenant's Rights to Norma Cordova states that Petitioner became the owner of the premises. The Notice further states in part:
"TEN (10) DAY NOTICE TO QUIT
Deutsche Bank National Trust Company, as Trustee for New Century Home Equity Loan Trust, Series 2005-C, Asset Backed Pass-Through Certificates is now the owner of the Premises and demands that, within ten (10) days after service on you of this notice you and all occupants vacate and surrender possession of the Premises to Deutsche Bank National Trust Company for New Century Home Equity Loan Trustem Services 2005-C, Asset-Backed Pass-Through Certificates. Failure to remove therefrom and surrender possession will result in court proceedings being instituted against you. Please see Page 2 of this Notice for instructions on how to deliver possession.
***FAILURE TO COMPLY WITH THIS NOTICE TO QUIT WILL RESULT IN THE COMMENCEMENT OF SUMMARY PROCEEDINGS TO EVICT YOU FROM THE PREMISES***
Deutsche Bank National Trust Company, as Trustee for New Century Home Equity Loan Trust, Series 2005-C, Asset Backed Pass-Through Certificates, By Ocwen Loan Servicing, LLC, as attorney in fact
By: /s/ Jacqueline S. Michaelson
Title: Contract Management Coordinator
C/O Ocwen Loan Servicing, LLC
1661 Worthington Road, Suite 100
West Palm Beach, FL 33409"
Also attached is the Limited Power of Attorney, dated September 20, 2016. This document, executed by Deutsche Bank, appoints Ocwen Loan Servicing, LLC as Servicer and Attorney-in-Fact, as follows:
"LIMITED POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that Deutsche Bank National Trust Company, a national banking association organized and existing under the laws of the United States, and having its usual place of business at 1761 East St. Andrew Place, Santa Ana, California, 92705, as Trustee under and pursuant to the agreements (‘Agreements’) governing the trusts referenced on Exhibit A hereto (‘Trusts’), hereby constitutes and appoints Ocwen Loan Servicing, LLC as servicer (the ‘Servicer’), for the Trusts, by and through the Servicer's officers, the Trustee's true and lawful Attorney-in-Fact, in the Trustee's name, place and stead and for the Trustee's benefit, in connection with all mortgage loans serviced by the Servicer pursuant to the Agreements solely for the purpose of performing such acts and executing such documents in the name of the Trustee necessary and appropriate to effectuate the following enumerated transactions in respect of any of the mortgages or deeds of trust (the ‘Mortgages’ and the ‘Deeds of Trust’ respectively) and promissory notes secured thereby (the ‘Mortgage Notes’) for which the undersigned is acting as Trustee for various certificateholders (whether the undersigned is named therein as mortgagee or beneficiary or has become mortgagee by virtue of endorsement of the Mortgage Note secured by any such Mortgage or Deed of Trust) and for which Ocwen Loan Servicing, LLC is acting as the Servicer."
The Limited Power of Attorney specifically provides, in paragraph 2(g), the following authority to Ocwen:
"g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;"
Furthermore, paragraph 8 of the Limited Power of Attorney provides that Ocwen can institute eviction proceedings:
"8. The full enforcement of and preservation of the Trustee's interests in the Mortgage Notes, Mortgages or Deeds of Trust, and in the proceeds thereof, by way of, including but not limited to, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:"
Presently before the court is Respondent Norma Cordova's motion to dismiss, dated December 4, 2018, on the grounds that the Petitioner's Predicate Ten Day Notice is invalid. Respondent contends that the Ten Day Notice is invalid because:
"7. The 10 Day Notice to Quit served upon the respondent was issued on behalf of the petitioner by a party lacking the authority to do so. A copy of the 10 Day Notice to Quit and attached Limited Power of Attorney are annexed hereto as Exhibit 2.
8. It is well established that that an attorney or agent of the landlord must provide proof of his or her ability to bind the landlord when giving notice to terminate a tenancy. This rule is established in Seigel v. Kentucky Fried Chicken of Long Is. (108 AD2d 218 [2d Dept 1985], affd 67 NY2d 792 [1986] ), which states:
‘[A] notice of termination [of tenancy] signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and which is not authenticated or accompanied by proof of the [latter's] authority to bind the landlord in the giving of such notice, is legally insufficient to terminate the tenancy.’ ( 108 AD2d at 223.)
11. Here, the 10 day notice to quit (Ex. 2) was signed by Jacqueline S. Michaelson with the title of Contract Management Coordinator. The attached limited power of attorney (Ex. 2) does not specifically authorize Jacqueline S. Michaelson nor identify a list of title holders authorized to execute the notice. Further, it is not clear if the signor is an employee of the petitioner, Deutsche Bank, or Ocwen Loan Servicing, the purported party with authority to act.
12. Based on the foregoing, Jacqueline S. Michaelson does not have authority to issue a notice to quit in the matter and as such the notice is jurisdictionally defective."
In opposition, Petitioner submits counsel's Affirmation, dated January 3, 2019. Counsel posits that the Limited Power of Attorney "clearly and unequivocally" allows Ocwen to act in these eviction proceedings. Petitioner states that the 10 Day Notice to Quit is valid because:
"6. The 10 day notice to quit was evidently signed ‘By Ocwen Loan Servicing, LLC as attorney in fact’ for Petitioner in this case. The name of the employee of Ocwen Loan Servicing (hereinafte
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