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Mortgage Electronic Registration Systems, Inc. v. Nacci

Other Lower Courts

January 9, 2008

Mortgage Electronic Registration Systems, Inc., as nominee for Lending Key, Plaintiffs,
v.
Barbara Nacci, Anthony Nacci, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Counsel for Plaintiffs Law Offices of Edward A. Wiener, P.C.

Counsel for Defendants Shaw, Licitra, Gulotta, Esernio Henry, P.C.

OPINION

Leonard B. Austin, J.

U.S. Bank National Association, as Trustee for Terwin Mortgage Trust 2005-4HE, Asset-Backed Certificates, Series 2005-4HE ("U.S. Bank") moves for a writ of assistance awarding it possession of the premises 2109 Willoughby Avenue, Wantagh, New York. Defendants Barbara Nacci and Anthony Nacci (collectively "Nacci") cross-move for an order vacating the foreclosure sale.

BACKGROUND

Nacci were the owners of real property located at 2109 Willoughby Avenue, Wantagh, New York ("Property"). Nacci defaulted in the payment of the mortgage on the Property which resulted in the commencement of this action seeking to foreclose on the mortgage.

A judgment of foreclosure and sale dated April 27, 2006 confirmed the report of the successor referee, Michael J. Langer, Esq., and directed that the Property be sold at public auction under the supervision of the successor referee on a Tuesday September 18, 2007 at 11:30 a.m in the Calender Control Part of this Court.

The auction was, in fact, held on September 18, 2007. Plaintiff Mortgage Electronic Registration Systems, Inc., as nominee for Lending Key ("MERS") was the successful bidder at auction. Upon completion of the auction, MERS assigned its rights, title and interest in and to the Terms of Sale and Judgment of Foreclosure and Sale to U.S. Bank and directed the referee to delivery the deed to U.S. Bank.

The Referee's Report shows a total due on the mortgage, including accrued interest and allowable fees and expenses, to be $522,078.55. The amount bid at sale was $499,723.29 resulting in a deficiency of $22,355.26.

Nacci asserts the foreclosure sale should be vacated because it was not properly conducted. Initially, Nacci alleges that the foreclosure sale was improper because the judgment of foreclosure and sale permitted only the MERS to make a credit bid at the auction. Any bidder other than the MERS was required to pay the entire bid in cash. Since U.S. Bank was not the Plaintiff in this action and allegedly made a credit bid, the foreclosure sale was not conducted in accordance with the terms of the judgment of foreclosure and sale. Therefore, the sale should be vacated and the deed voided.

In response to these allegations, U.S. Bank asserts that it was not the successful bidder at auction. It claims MERS was the successful bidder at auction. Upon the completion of the auction, MERS assigned its rights to U.S. Bank, pursuant to the terms of a written Assignment of Bid. The ...


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