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NYCTL 2005-A Trust v. Davis

January 21, 2009

NYCTL 2005-A TRUST, AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN FOR THE NYCTL 2005-A TRUST, PLAINTIFFS,
v.
GEORGE E. DAVIS, BARBARA DAVIS, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Arthur M. Schack, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The defendant did not answer this motion for an order of reference.

Plaintiffs' renewed motion, upon the default of all defendants, for a judgment of foreclosure and sale on a tax lien certificate for the premises located at 713 Fifth Avenue, Brooklyn, New York (Block 899, Lot 6, County of Kings) is denied without prejudice. In the original motion, the "affidavit of facts," submitted in support of this application for a default judgment of foreclosure and sale, was not executed by an officer of plaintiff, NYCTL 2005-A TRUST, (THE TRUST), or someone with a power of attorney from THE TRUST. Plaintiffs' attempt to cure this defect in this renewed motion by presenting a new affidavit from its servicing agent, claiming that he has the power to make his affidavit due to selected portions presented of an uncertified copy of an alleged Servicing Agreement between THE TRUST and other parties. This does not meet the statutory requirements of CPLR § 3215 (f). Leave is granted to THE TRUST to renew its motion for a judgment of foreclosure and sale upon presentation to the Court, within ninety (90) days of this decision and order, of THE TRUST's compliance with the requirements of CPLR § 3215 (f), with "an affidavit of facts" executed by someone who is an officer of THE TRUST or someone who has a valid power of attorney from THE TRUST.

Background

The Trust purchased certain tax liens from the City of New York on July 27, 2005. These liens, including the tax lien for the premises at 713 Fifth Avenue, Brooklyn, New York ( Block 899, Lot 6, County of Kings) were recorded in the Office of the City Register, New York City Department of Finance, on September 15, 2005, at City Register File Number (CRFN) 2005000516779.

In my unpublished decision and order, dated January 8, 2008, I denied plaintiffs' motion for a judgment of foreclosure and sale for plaintiffs' failure to present an "affidavit made by the party," pursuant to CPLR § 3215 (f). The original motion for a judgment of foreclosure and sale had an affidavit by Albert Fiorello, "the Authorized Signatory of PLYMOUTH PARK TAX SERVICES, LLC, the servicing agent for the plaintiffs, who are the holders of the tax lien certificate being foreclosed in this action." For reasons unknown to the Court, plaintiffs failed to provide any power of attorney authorizing PLYMOUTH PARK TAX SERVICES, LLC, to go forward with the instant foreclosure action. Therefore, I denied the motion for a judgment of foreclosure and sale without prejudice, for plaintiffs' to "to renew its motion for a judgment of foreclosure and sale of the premises located at 713 Fifth Avenue, Brooklyn, New York (Block 899, Lot 6, County of Kings), upon presentation to the Court of its compliance with the statutory requirements of CPLR § 3215 (f), with an affidavit of facts by someone with authority to execute such an affidavit."

Plaintiffs, in their renewed motion for a judgment of foreclosure and sale, present an affidavit in support of the motion from Mr. Fiorello, dated April 25, 2008 [exhibit E of motion]. Mr. Fiorello states:

1. I am an Authorized Signatory of PLYMOUTH PARK TAX SERVICES, LLC, D/B/A/ XSPAND, Inc., which is the Servicer for plaintiffs herein pursuant to Servicing Agreement dated June 1, 2005.

PLYMOUTH PARK TAX SERVICES, LLC, D/B/A XSPAND, Inc., in its capacity as Servicer, manages and administers tax liens held by Plaintiffs, including the subject tax lien.

2. Pursuant to Article II, Section 2.01 of said Agreement, Servicer has full power and authority to "prepare, execute, acknowledge and deliver, in connection with any foreclosure action . . . on behalf of the applicable parties to this Agreement, the following documents:

(i) affidavit of verification of debt, (ii) affidavit in support of default judgment, (iii) affidavit in support of motion for summary judgment, (iv) affidavit regarding testimony before referee, (v) computation of amount due, (vi) combined verification, oath and designation regarding the appointment of an administrator with the surrogate court and (vii) such other oaths, affidavits and/or documents as may be necessary for the prosecution of the foreclosure action." A relevant portion of the Servicing Agreement is annexed as an exhibit to the accompanying Attorney's Affirmation.

Several uncertified photocopied pages of a purported Servicing Agreement, dated June 1, 2005, between THE TRUST, Issuer, XSPAND, Inc., Servicer, PLYMOUTH FINANCIAL COMPANY, INC., Service Guarantor, and THE BANK OF NEW YORK, Paying Agent and Collateral Agent and Custodian [exhibit F of motion] are presented to the Court. Even if this is acceptable in place of a valid power of attorney from THE TRUST, the signature page presented with the alleged signature of Ryan Bittner, Assistant Treasurer of THE BANK OF NEW YORK, claims that the BANK OF NEW YORK is the "Indenture Trustee, "not "Paying Agent and Collateral Agent and Custodian," and this page does not show XSPAND, Inc., ...


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