American Brokers Conduit v. Zamalloa

Full title: AMERICAN BROKERS CONDUIT C/O AMERICAN HOME MORTGAGE SERVICING, 4600 REGENT…

Court: Supreme Court of the State of New York, Kings County

Date published: Sep 11, 2007

2007 N.Y. Slip Op. 32806 (N.Y. Sup. Ct. 2007)

Opinion

0007206/2007.

September 11, 2007.

DECISION ORDER

ARTHUR M. SCHACK, Justice.

The following papers numbered 1 read on this motion Papers Numbered

: : Proposed Judgment of Foreclosure and Sale with Affidavits and Exhibits Annexed 1

Plaintiff's application for a judgment of foreclosure and sale for the premises located at 1816 East 32^nd Street, Brooklyn, New York (Block 8475, Lot 47, County of Kings) is denied without prejudice. Plaintiff, American Brokers Conduit/ c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving Texas 75063, lacks standing to bring this matter before the Court. Plaintiff, after commencing this action on February 28, 2007, assigned the instant mortgages on March 5, 2007 to American Brokers Conduit, 538 Broadhollow Road, Melville, New York 11747, with the assignments recorded on April 3, 2007 at the Office of the City Register of the City of New York, CRFN Numbers 2007000169450 and 2007000169451.

The Court, as will be explained, has no choice but to deny the application for a judgment of foreclosure and sale without prejudice. Plaintiff American Brokers Conduit c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving Texas 75063 lacks standing to proceed with this action since March 5, 2007.

Discussion

The Court of Appeals, in Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 812 (2003), cert denied 540 US 1017 (2003), declared 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." Professor David Siegel, in NY Prac, § 136, at 232 [4^th ed] instructs that:

[i]t is the law's policy to allow only an aggrieved person to bring a lawsuit . . . A want of "standing to sue," in other words, is just another way of saying that this particular plaintiff is not involved in a genuine controversy, and a simple syllogism takes us from there to a "jurisdictional" dismissal: (1) the courts have jurisdiction only over controversies; (2) a plaintiff found to lack "standing" is not involved in a controversy; and (3) the courts therefore have no jurisdiction of the case when such a plaintiff purports to bring it.

In Caprer v Nussbaum, 36 AD3d 176, 181 (2nd 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 litigant's request." If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. Stark v Goldberg, 297 AD2d 203 (1^st Dept 2002).

It is clear that plaintiff American Brokers Conduit c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving Texas 75063 lacks standing to sue since March 5, 2007, when it assigned its ownership of the Zamalloa mortgages to American Brokers Conduit, 538 Broadhollow Road, Melville, New York 11747, The Court, in Campaign v Barba, 23 AD3d 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 AD3d 545 (2nd Dept 2005); Sears Mortgage Corp, v Yahhobi, 19 AD3d 402 (2nd Dept 2005); Ocwen Federal Bank FSB v Miller, 18 AD3d 527 (2nd Dept 2005); U.S. Bank Trust Nat. Ass'n Trustee v Butti, 16 AD3d 408 (2nd Dept 2005); First Union Mortgage Corp. v Fern, 298 AD2d 490 (2nd Dept 2002); Village Bank v Wild Oaks, Holding, Inc., 196 AD2d 812 (2nd Dept 1993).

However, in light of the fact that American Brokers Conduit c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving Texas 75063 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 American Brokers Conduit c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving Texas 75063 moves to substitute assignee American Brokers Conduit, 538 Broadhollow Road, Melville, New York 11747, pursuant to CPLR § 1021, and no other material facts change, the Court will grant the substitution of plaintiff to American Brokers Conduit, 538 Broadhollow Road, Melville, New York 11747, American Brokers Conduit, 538 Broadhollow Road, Melville, New York 11747, which will allow the proper mortgagee, the one with standing, to receive a judgment of foreclosure and sale. East Coast Properties, v Galang, 308 AD2d 431 (2nd Dept 2003); Lincoln Savings Bank, FSB v Wynn, 7 AD3d 760 (2nd Dept 2004); CPLR § 1018; GOL § 13-101.

Conclusion

Accordingly, it is

ORDERED that the application of plaintiff American Brokers Conduit/ c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving Texas 75063 for a judgment of foreclosure and sale for the premises located at 1816 East 32^nd Street, Brooklyn, New York (Block 8475, Lot 47, County of Kings) is denied without prejudice.

This constitutes the Decision and Order of the Court.