Indymac Bank F.S.B. v. Garcia

• Decision Date: 22 June 2010
• Docket Number: No. 7282–2008.,7282–2008.
• Parties: INDYMAC BANK F.S.B., Plaintiff(s), v. Luddy Brito GARCIA, Mortgage Electronic Registration Systems, Inc., acting solely as a nominee for Sterling National Mortgage Company, Inc., Subsidiary of Federally Chartered Bank, its successors and assigns, and “John Doe # 1” through “John Doe # 10”, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendant(s).
• Court: New York Supreme Court

28 Misc.3d 1202
957 N.Y.S.2d 636
2010 N.Y. Slip Op. 51127

INDYMAC BANK F.S.B., Plaintiff(s),
v.
Luddy Brito GARCIA, Mortgage Electronic Registration Systems, Inc., acting solely as a nominee for Sterling National Mortgage Company, Inc., Subsidiary of Federally Chartered Bank, its successors and assigns, and “John Doe # 1” through “John Doe # 10”, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendant(s).

No. 7282–2008.

Supreme Court, Suffolk County, New York.

June 22, 2010.

Eschen, Frenkel & Weisman, LLP, Bay Shore, attorneys for plaintiff.

Luddy Brito Garcia, Huntington Station, Defendant pro se.

PETER H. MAYER, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated June 2, 2009, 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 plaintiff's application (seq.# 002) for an order of reference in this foreclosure action is considered under 2009 N.Y. Laws, Ch. 507, enacted December 15, 2009, and 2008 N.Y. Laws, Ch. 472, enacted August 5, 2008, as well as the related statutes and case law, and is hereby denied without prejudice and with leave to resubmit upon proper papers, for failure to submit proper evidentiary proof, including an affidavit from one with personal knowledge, of a valid indorsement of the note or assignment of the mortgage, sufficient to establish the plaintiff's ownership of the note and mortgage at the time the action was commenced; and it is further

ORDERED that the plaintiff shall promptly serve a copy of this Order upon the defendant-homeowner(s) at all known addresses and upon all other answering defendants, via first class mail, and shall promptly file the affidavit(s) of such service with the County Clerk and annex a copy of this Order and the affidavit(s) of service as exhibits to any motion resubmitted pursuant to this Order; and it is further

ORDERED that with regard to any scheduled court conferences or future applications by the plaintiff, if the Court determines that such conferences have been attended, or such applications have been submitted, without proper regard for the applicable statutory and case law, or without regard for the required proofs delineated herein, the Court may, in its discretion, dismiss this case or deny such applications with prejudice and/or impose sanctions pursuant to 22 NYCRR § 130–1, and may deny those costs and attorneys fees attendant with the filing of such future applications.

By Order dated November 24, 2009, this Court scheduled a foreclosure settlement conference for December 23, 2009, which was adjourned to February 24, 2010. The defendant-homeowner, Luddy Brito Garcia, failed to appear at both. The plaintiff now seeks a default order of reference and requests amendment of the caption to substitute a tenant in the place and stead of the “Doe”...