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U.S. Bank Nat. Assn. v. Bernard

Other Lower Courts

February 14, 2008

U.S. Bank National Association, as Trustee for CSAB Mortgage-Backed Pass-Through Certificates, Series 2006-2 c/o America's Servicing Company, Plaintiff,
v.
Simone Bernard, et. al., Defendants.

Editorial Note:

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

COUNSEL

Plaintiff: Tracy M. Fourtner, Esq. Steven J. Baum, PC

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

OPINION

Arthur M. Schack, J.

Plaintiff's application, for an order of reference for the premises located at 1347 De Kalb Avenue, Brooklyn, New York (Block 3234, Lot 53, County of Kings) is denied without prejudice, with leave to renew upon providing the Court with: a copy of a valid assignment of the instant mortgage and note to plaintiff U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-2 (U.S. BANK); a satisfactory explanation as to a possible conflict of interest by plaintiff's counsel, Steven J. Baum, P.C., with respect to the July 19, 2007 assignment of the instant mortgage and note from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), as nominee for CREDIT SUISSE FINANCIAL CORPORATION (CREDIT SUISSE) BANK, by an attorney employed by plaintiff's counsel, and then the representation of assignee plaintiff U.S. BANK; a valid power of attorney for the "affidavit of merit" in support of the instant application or an "affidavit of merit" executed by an officer of plaintiff U.S. BANK; and, an affidavit by an officer of plaintiff U.S. BANK explaining why plaintiff purchased a nonperforming loan.

Background

Defendant SIMONE BERNARD borrowed $503,200.00 from CREDIT SUISSE on June 28, 2006. The note and mortgage were recorded in the Office of the City Register, New York City Department of Finance on July 19, 2006, at City Register File Number (CRFN) 2006000408675. MERS, the nominee of CREDIT SUISSE for the purpose of recording the mortgage, assigned the mortgage to the plaintiff U.S. BANK on July 19, 2007, with the assignment recorded on August 24, 2007, at CRFN 2007000439317. The assignment was executed by "Ronald W. Zackem, Esq., On behalf of MERS by Corporate Resolution dated 7/19/07." Neither a corporate resolution nor a power of attorney to Mr. Zackem was recorded with the assignment. Thus, the assignment is invalid and plaintiff U.S. BANK lacks standing to bring the instant foreclosure action.

Further, the assignor, Mr. Zackem, according to the Office of Court Administration's Attorney Registration, has as his business address, "Steven Baum, P.C., P.O. Box 1291 Buffalo, NY 14202-1291." Nineteen days subsequent, on August 7, 2007, plaintiff's counsel, Steven J. Baum, P.C., commenced the instant action on behalf of assignee U.S. BANK, with the filing of a notice of pendency, and the summons and complaint in the Kings County Clerk's Office. The Court is concerned that the apparent simultaneous representation of Steven J. Baum, P.C. for both MERS and U.S. BANK could be deemed a conflict of interest in violation of 22 NYCRR 1200.24, the Disciplinary Rule of the Code of Professional Responsibility, entitled "Conflict of Interest; Simultaneous Representation."

Also, plaintiff's moving papers for an order of reference and related relief fails to present an "affidavit made by the party, " pursuant to CPLR 3215 (f). The instant application contains an "affidavit of merit and amount due," dated October 1, 2007, by Dawn Ward, "Vice President of WELLS FARGO BANK, N.A. D/B/A AMERICA'S SERVICING COMPANY, attorney in fact for the plaintiff." Attached to her affidavit is a copy of a "Limited Power of Attorney," dated August 28, 2006, from U.S. BANK, appointing WELLS FARGO BANK, N.A. as its attorney-in-fact to perform various enumerated services, by executing documents "if such documents are required or permitted under the terms of the related servicing agreements . . . in connection with Wells Fargo Bank, N.A. ['s] . . . responsibilities to service certain mortgage loans . . . held by U.S. Bank in its capacity as Trustee." There is no listing in the "Limited Power of Attorney" of any of these "certain mortgage loans." The Court is at a loss to determine if U.S. BANK, as Trustee for CSAB Mortgage-Backed Pass-Through Certificate, Series 2006-2, is covered by the "Limited Power of Attorney." Additionally, the "Limited Power of Attorney" is defective, because it is a photocopy, not an original. Plaintiff's counsel failed to comply with the requirements of CPLR 2105, by affixing to the document an attorney's certification that the document has been compared with the original "and found to be a true and complete copy."

The instant foreclosure application states that defendant BERNARD defaulted on her mortgage payments by failing to make her April 1, 2007 payment. Yet, 110 days later, almost four months subsequent to defendant BERNARD'S alleged payment default, on July 19, 2007, plaintiff U.S. BANK was willing to take an assignment of the instant nonperforming loan from MERS, as nominee for CREDIT SUISSE. Thus, the Court needs a satisfactory explanation as to why U.S. BANK would purchase a nonperforming loan from MERS, as nominee for CREDIT SUISSE.

Discussion

Plaintiff U.S. BANK must have "standing" to bring this action. The Court of Appeals ( Saratoga County Chamber of Commerce, Inc. v Pataki,100 N.Y.2d 901, 812 [2003]), cert denied 540 U.S. 1017 [2003]) held that "[s]tanding to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress." In Carper v Nussbaum,36 A.D.3d 176, 181 (2d Dept 2006), the Court held that "[s]tanding to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the ...


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