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Deutsche Bank Nat. Trust Co. v. Castellanos

Other Lower Courts

January 14, 2008

Deutsche Bank National Trust Company, As Trustee of Argent Mortgage Securities, Inc. Asset-Backed Pass Through Certificates, Series 2005-W4 Under the Pooling and Servicing Agreement Dated as of November 1, 2005, Without Recourse, Plaintiff,
v.
Gustavo Castellanos, Argent Mortgage, LLC, and New York State Department of Taxation and Finance, Defendants.

Editorial Note:

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

COUNSEL

Plaintiff: Richard F. Komosinski, Esq., Knuckles & Komosinski, PC.

Defendant: No Opposition submitted by defendants to plaintiff's' Judgment of Foreclosure and Sale.

OPINION

Arthur M. Schack, J.

Plaintiff's renewed application for a judgment of foreclosure and sale for the premises located at 78 Van Siclen Avenue, Brooklyn, New York (Block 3932, Lot 45, County of Kings) is denied without prejudice. In my prior decision in this case, issued on May 11, 2007, 15 Misc.3d 1134 (A), I enumerated various defects in plaintiff's (Deutsche Bank) application. This renewed application does not address any of these defects. Further, my review of the instant application raises two additional matters that must be satisfactorily addressed or I will dismiss the instant action with prejudice.

As noted in my May 11, 2007 decision, Deutsche Bank lacks standing to bring this action since January 19, 2007, the day when Deutsche Bank assigned the instant mortgage and note to MTGLQ Investors, L.P. Goldman Sachs calls MTGLQ Investors, L.P. a "significant subsidiary" in exhibit 21.1 of its November 25, 2006 10-k Filing with the Securities and Exchange Commission. I explained ( citing Saratoga County Chamber of Commerce, Inc. v Pataki, 100 N.Y.2d 81, 812 [2003], cert denied 540 U.S. 1017 [2003], Carper v Nussbaum, 36 A.D.3d 176, 181 [2d Dept 2006], and Stark v. Goldberg, 297 A.D.2d 303 [1st Dept 2002)]) how Deutsche Bank now lacks standing to pursue this action. Further, I held, at 5-6:

It is clear that plaintiff Deutsche Bank lacks standing to sue since January 19, 2007, when it assigned its ownership of the Castellanos' mortgage loan to the Goldman Sachs subsidiary, MTGLQ Investors, L.P. The Court, in Campaign v Barba, 23 A.D.3d 327, instructed that

"[t]o establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant's default in payment [Emphasis added]." (See Household Finance Realty Corp. of New York v Wynn, 19 A.D.3d 545 [2d Dept 2005]; Sears Mortgage  Corp. v Yahhobi, 19 A.D.3d 402 [2d Dept 2005]; Ocwen Federal Bank FSB v Miller, 18 A.D.3d 527 [2d Dept 2005]; U.S. Bank Trust Nat. Ass'n Trustee v Butti, 16 A.D.3d 408 [2d Dept 2005]; First Union Mortgage Corp. v Fern, 298 A.D.2d 490 [2d Dept 2002]; Village Bank v Wild Oaks Holding, Inc., 196 A.D.2d 812 [2d Dept 1993]).

However, in light of the fact that Deutsche Bank has established the existence of the mortgage and the note, and defendant's default in payment, the Court is denying the judgment of foreclosure and sale without prejudice. If Deutsche Bank moves to substitute assignee MTGLQ Investors L.P. as plaintiff, pursuant to CPLR 1021 and no other material facts change, the Court will grant the substitution of plaintiff to MTGLQ Investors L.P., which will allow the proper mortgagee, the one with standing, to receive a judgment of foreclosure and sale. ( East Coast Properties v Galang, 308 A.D.2d 431 [2d Dept 2003]; Lincoln Savings Bank, FSB v Wynn, 7 A.D.3d 760 [2d Dept 2004]; CPLR 1018; GOL 13-101).

Plaintiff Deutsche Bank has failed to move to substitute MTGLQ Investors, L.P. as plaintiff. Two additional matters plaintiff needs to address in a renewed motion In my recent review of the moving papers in the renewed motion, I noticed that the July 21, 2006-"affidavit of merit" was executed by Jeff Rivas, who claims to be Deutsche Bank's Vice President Default Timeline Management. On the same day, Mr. Rivas executed, before the same notary public, M. Reveles, a mortgage assignment from Argent Mortgage Company, LLC, claiming to be Argent's Vice President Default Timeline Management. Did Mr. Rivas somehow change employers on July 21, 2006 or he is concurrently a Vice President of both assignor Argent Mortgage Company, LLC and assignee Deutsche Bank? If he is a Vice President of both the assignor and the assignee, this would create a conflict of interest and render the July 21, 2006-assignment void.

Also, Mr. Rivas claims that Argent Mortgage Company, LLC is located at 1100 Town and Country Road, Suite 200, Orange, California, while Deutsche Bank has its offices at One City Boulevard West, Orange, California. Did Mr. Rivas execute the assignment at 100 Town and Country Road, Suite 200, and then travel to One City Boulevard West, with the same notary public, M. Reveles, in tow? The Court is concerned that there may be fraud on the part of Deutsche Bank, Argent Mortgage Company, LLC, and/or MTGLQ Investors, L.P., or at least malfeasance. If plaintiff renews its motion for a judgment of foreclosure and sale, the Court requires a satisfactory explanation by Mr. Rivas of his recent employment history.

In my May 11, 2007 decision, in discussing the January 19, 2007 assignment from Deutsche Bank to MTGLQ ...


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