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Credit Suisse Financial Corp. v. Lisvonsce

Supreme Court, Kings County

August 14, 2012

Credit Suisse Financial Corporation, Plaintiff,
v.
Jean Lisvonsce A/K/A LISVONCE JEAN, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR CREDIT SUISSE FINANCIAL CORPORATION, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, UNITED STATES OF AMERICA, NEW YORK CITY PARKING VIOLATIONS BUREAU, Defendants.

Plaintiffs were represented by Ted Eric May, Esq. of Sheldon May & Associates, P.C.

Defendant Jean Lisvonsce was represented by Menez Jean-Jerome, Esq.

Jack M. Battaglia, Justice, Supreme Court

In this mortgage foreclosure action commenced on July 11, 2007, plaintiff Credit Suisse Financial Corporation moves for an order "confirming the Referee's Report to Compute, and for a Judgment of Foreclosure and Sale. The mortgaged property is located at 1363 East 53rd Street, Brooklyn; the mortgagor is defendant Jean Lisvonsce.

This Court issued an Order of Reference on August 24, 2009, appointing Sean R. Smith, Esq. as Referee. Plaintiff subsequently moved for an order "confirming the Referee's Report to Compute, and for a Judgment of Foreclosure and Sale." With a Decision and Order dated December 13, 2011, this Court denied the motion, "with leave to renew with an affirmation in compliance with Administrative Order of the Chief Administrative Judge of the Courts, AO/548/10... and AO/431/11...; together with a proposed Judgment of Foreclosure and Sale that follows the court's recommended form, or, if not, one accompanied by counsel's affirmation detailing any difference from the court's recommended form and a statement as to why the latter is not fully appropriate here."

With this motion, Plaintiff renews its prior motion, purportedly to comply with the conditions for renewal imposed by the 2011 Decision and Order. Plaintiff submits a Foreclosure Affirmation of Ted Eric May, Esq. of the firm Sheldon May & Associates, P.C., and an Affidavit of Merlobel Custodio, described as "Document Control Officer, for Select Portfolio Servicing, Inc., the servicing agent and Attorney in Fact for the Plaintiff." Although not attached to the Affidavit, Plaintiff submitted to the Referee a copy of a Limited Power of Attorney dated May 10, 2006, given to Select Portfolio Servicing, Inc. by DLJ Mortgage Capital, Inc. As defendant/mortgagor Lisvonsce notes in the opposition to this motion, DLJ Mortgage Capital, Inc. is not Plaintiff.

On October 20, 2010, "in response to recent disclosure by major mortgage lenders of significant insufficiencies — including widespread deficiencies in notarization and robosigning' of supporting documents — in residential foreclosure filings in courts nationwide, " an Administrative Order of the Chief Administrative Judge of the Courts "instituted a new filing requirement in residential foreclosure cases to protect the integrity of the foreclosure process and prevent wrongful foreclosures." (See New York State Unified Court System, Press Release, New York Courts First in Country to Institute Filing Requirement to Preserve Integrity of Foreclosure Process, October 20, 2010.)

In operative part, the Administrative Order provided:

"[E]ffective immediately, plaintiff's counsel in residential mortgage foreclosure actions shall file with the court in each such action an affirmation, in the form attached hereto, at the following times:
...
In cases pending on such effective date, where no judgment of foreclosure has been entered, at the time of filing either the proposed order of reference or the proposed judgment of foreclosure.
..."

(Administrative Order of the Chief Administrative Judge of the Courts, AO/548/10, October 10, 2010.)

On March 2, 2011, but "effective November 18, 2010, nunc pro tunc, " the form of counsel's affirmation was revised, and a supporting affidavit by "a representative of plaintiff" was permitted "in addition to such other information as the court may require." (See Administrative Order of the Chief Administrative Judge of the Courts, AO/431/11, March 2, ...


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