859 N.Y. S. 2d 895
Decided on 08 November 2008
This case is a renewed application for an order of reference? for a specified property located in Brooklyn, New York. Originally, this application was already denied by the Court in its Order dated 30 January 2008 but with permission to renew upon compliance with the recitals therein.
The factual backdrop is as follows: Defendants Valentin and Ruiz borrowed $340,000 from Delta Funding Corporation, both mortgage and the note was duly recorded in the Office of the City Register, N.Y. in 2005. Delta's nominee, Mortgage Electronic Registration Systems, Inc. (MERS) assigned and recorded the mortgage and note to Plaintiff HSBC in 2007.
Plaintiff submitted as documentary evidence an affidavit of J. Dybas alleging therein that she is the Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC. It was further claimed that OCWEN is the servicing agent and attorney in fact of the holder of the note and mortgage. Dybas, not being an officer of OCWEN is not the party referred within the ambit of the "affidavit made by the party" under Civil Practice and Law Rules (CPLR) ? 3215(f).
An affidavit of Scott Anderson as Vice President of MERS admitting assignment of the note and mortgage was also submitted. However, the Court observed in another case it heard that Anderson in an affidavit represented himself as Vice President of OCWEN and with the exact office address. This case involved the very same parties, HSBC, MERS, and OCWEN. Yet in another case of foreclosure involving Deutsche Bank and Goldman Sachs, the same address for Goldman Sachs and the assignee appeared in the assignment. Thus leading the Court to believe that there appeared to be a likelihood of fraud or malfeasance on the part of HSBC.
The Court denied the application but granted Plaintiff, leave of court to renew the application within forty five (45) days by submission of the following documents:
a) An affidavit of facts by either an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts as required by the (CPLR) ? 3215(f).
b) An affidavit from Scott Anderson, describing his employment history for the past three years;
c) An affidavit from the officer of HSBC explaining the reason HSBC would purchase a nonperforming loan from Delta Funding.
In compliance with the aforesaid Order, the renewed application for an order of reference was filed. Anderson of OCWEN submitted an affidavit alleging that OCWEN was in fact granted the limited power of attorney to execute affidavit of merits in connection with foreclosures in Renaissance Home Equity Loan Trust; albeit a copy of the power of attorney was attached to it and submitted to the Court, counsel for the plaintiff failed to certify the same.
And more importantly on the issue as to the reason why a nonperforming loan was purchased by HSBC, Anderson explained that the loan was transferred in 2005 from Delta to HSBC as Trustee when it was performing, with MERS as nominee in title.
The Court ruled that Anderson was lying because it was on the basis of the assignment of the loan by Anderson from MERS to HSBC that recordation was made before the Office of the City Register, N.Y. in 2005 as well as its transfer of title by him as Vice President of MERS to HSBC at the OCWEN office in 2007, in his capacity as servicer. Clearly, Anderson acted both as assignor and as servicing agent.
? An application for an order of reference is a preliminary step in obtaining a default judgment of foreclosure and sale (Home Sav. Of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]). In an order of reference, it allows the Court to appoint a referee to compute the amount due to the plaintiff when the defendant fails to appear or when he admits of the arrears in mortgage payments. See Real Property Actions and Proceedings Law (RPAPL) ? 1321
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