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FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
__________________ -------x
Deutsche Bank National Trust Company as Trustee for
American Home Mortgage Assets Trust 2007-1 Mortgage-
Backed Pass-Through Certificates, Series 2007-1,
Plaintiff,
REPLY AFFIRMATION
-against- IN FURTHER SUPPORT OF
MOTION FOR REARGUMENT
Royal Blue Realty Holdings, Inc., Board of Managers of
130 Barrow Street Condominium Homeowners
Association, Yu International, Inc. dba SY Marble &
Granite Importers & Distributors, NY State Department of Index No. 107030/2009
Taxation and Finance, State of New York, New York City,
City of New York Environmental Control Board, City of
New York Parking Violations Bureau, and "JOHN DOE
#1"
through "JOHN DOE #10", the last ten names being
fictitious and unknown to the Plaintiff, the person or parties
intended being the person or parties, if any, having or
claiming an interest in or lien upon the mortgage premises
described in the complaint,
Defendants.
-- - -------------------------------X
Martin Shaw, an attorney duly admitted to practice law in the Courts of the State
of New York affirms the following to be true under the penalties of perjury:
1. I am a partner at Lester Bleckmer & Shaw LLC, the attorneys for defendant
Royal Blue Realty Holdings, Inc. ("Royal Blue") in this action and, as such, am fully familiar with
the facts set forth herein.
2. I respectfully submit this reply affirmation in further support of Royal
Blue's motion for an order, pursuant to CPLR Rule 2221, granting Royal Blue reargument of its
motion to dismiss plaintiff's Amended Complaint, and upon such reargument, dismissing
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plaintiff's Amended Complaiñt, together with such other and further relief as this Court deems just
and proper.
Reargument Should Be Granted And
Upon Reargument, Plaintiff's Amended
Complaint Sheu!d Be_Dismissed
3. Royals Blue's motion is based on the fact that plaintiff lacked standing in
2009 when the action was commcñced. It is respectfully submitted that the Court overlooked
certain relevant and uncontested facts, including but not limited to (i) gaps in the mortgage chain
and (ii)that plaintiff was not the owner of the subject note and was not in possession of the subject
note (the "Note") on the date of the commencement of this action.
4. This foreclosure action was commenced by plaintiff, Deutsche Bank
National Trust Company as Trustee For Americañ Home Mortgage Assets Trust 2007-1,
Mortgage-Backed Pass-Through Certificates, Series 2007-1 ("Plaintiff-Trustee") in 2009.
Note"
5. Based on the "Affidavit of Lost sworn to by Melissa Kelsey on April
4, 2019 (the "Kelsey Aff."), a copy of which is annexed as Exhibit A, Plaintiff-Trustee was n_ot
the owner or in possession of the subject Note in 2009 when the action was commenced.
6. Rather than Plaintiff-Trustee being the owner of or in possession of the Note
in 2009, Ms Kelsey swears that "the original Note endorsed in blank was deposited with Deutsche
Bank National Trust Company, as custodian, on or about October 10, 2006; Deutsche Bank
National Trust Company retained possession of the original Note until about August 29, 2011
..."
when it released the original Note to AHMSI (see Kelsey Aff. page 2 of 4 at paragraphs 11
A.(i) and (ii)).
7. Itis respectfully submitted that Royal Blue's motion to reargue its motion
dismiss the Amended Complaint is not procedurally defective. First, the full transcript of the oral
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argument before Justice McMahon on October 2, 2018 in which the motion to dismiss was denied
was attached to Royal Blue's moving papers and the single sentence Order denying Royal Blue's
motion was attached by my reference to itin paragraph 12_of my moving affirmation as CEF Doc.
No. 62. Second, by Stipulation dated March 25, 2019 and e-filed on April 1, 2019 (CEF Doc. No.
84), counsel agreed that Royal Blue's time to "move for reargument/review of the Court's
chain'"
previous denial of the motion to dismiss due to 'gap in is extended to the date which istwo
(2) weeks from the date of the Notice of Entry of the Court's Order on Royal Blue's motion to
dismiss the Amended Complaint under Index No. 850071/2016. As the Notice of Entry of the
Court's Order under Index No. 850071/2016 was e-filed on April 30, 2019, Royal Blue's time to
move for reargument was extended to May 14, 2019, when the motion was e-filed.
8. As a result, this motion for reargument is timely and Plaintiff-Trustee's
attorneys should be estopped from disavowing a stipulation itentered into.
Royal Blue's Motion to Dismiss
Should Be Granted As Plaintiff
Has No Standing _
Plaintiff-Trustee Failed To Meet Its Burden
That It Owned The Original Note And
Mortgage When The Action Was
Commenced And Cannot Establish Standine
9. As noted previously in Royal Blue's moving papers, the issue of standing
requires an inquiry into whether a litigant has "an interest ... in the lawsuit that the law will
request."
recognize as a sufficient predicate for determining the issue at the litigant's In the motion
to dismiss pursuant to CPLR 3211(a)(3), Royal Blue alleged that Plaintiff-Trustee failed to
establish its standing. Under CPLR 3211 (a)(3), a defendant may seek dismissal if the party
asserting the cause of action lacks legal capacity to sue.
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10. In a mortgage foreclosure action, a plaintiff has standing where it isboth
the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at
the time the action is commenced. Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532
(2nd
Dep't 2011). Here, plaintiff failed to demonstrate itsprima facie entitlement to judgment as
standing...."
a matter of law because itdid not establish that ithad US Bank Natl. Assn. v Madero,
(2nd
80 A.D.3d 751, 915 N.Y.S.2d 612 Dep't 2011).
Aff.1
11. The Kelsey clearly establishes that Plaintiff-Trustee lacked standing
as the original Note was not physically delivered to Plaintiff-Trustee, or in itspossession prior to
commencement of this action. See U.S. Bank N.A. v. Askew, 138 A.D.3d 402, 402, 27 N.Y.S.3d
856, 856 (1st Dept. 2016). Aurora Loan Services. LLC v. Taylor, 25 N.Y.3d 355 (2015).
12. Critically, Plaintiff-Trustee provided documentation that a third party,
Deutsche Bank National Trust Company, as custodian, (the "Custodian") was in possession of the
original note in 2009, on the date that this action was commenced, ten (10) years ago. For this
reason alone, the Amended Complaint should have been dismissed.
13. The Appellate First Department noted in Wells Fargo Bank v Ho-
Division,
(1"
Shing, 168 A.D.3d 126 92 N.Y.S.3d 194 Dept. 2019) that when the plaintiff took possession
of the consolidated note it became the assignee and transferee of the mortgage. The Court held
that "the holder of the note is deemed the owner of the underlying mortgage loan with standing to
foreclose."
14. Following the decision set forth in Wells Fargo Bank v Ho-Shing, supra,
Plaintiff-Trustee did not have standing to commence this action in 2009.
It isnoteworthy that the Kelsey Aff. was not provided to Royal Blue until after Royal Blue
e-filed itsmotion for reargument.
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15. Plaintiff-Trustee has admitted that Custodian took possession of the subject
Note on or about October 10, 2006 and did not relinquish possession of the Note until about August
29, 2011 (see Kelsey Aff. page 2 of 4 at paragraphs 11 A.(i) and (ii)).
16. Based on this admission and the Appellate Division's ruling in Wells Fargo
Bank v Ho-Shing, supra, Custodian was the holder of the note and is deemed to be the owner of
the underlying mortgage loan. As such, Custodian would have had standing to foreclose in 2009,
but Plaintiff-Trustee did not have standing to commence the action.
17. The Plaintiff-Trustee's lack of standing is also tacitly acknowledged and
admitted in paragraph 54 of the affirmation in opposition to Royal Blue's motion of Jamie C.
Karpf, Esq., attorney for the Plaintiff-Trustee, dated July 8, 2019. Ms. Karpf stated that, according
to the Pooling and Servicing Agreement ("PSA") and American Home Mortgage Assets Trust
2007-1, Mortgage-Backed Pass-Through Certificates, Series 2007-1 (the "Trust") the subject Note
to"
was supposed to have "belonged the Trust.
18. . Nevertheless, the fact that Custodian took possession of the subject Note on
or about October 10, 2006 (prior to commencement and formation of the Trust) and did not
relinquish possession of the Note until about August 29, 2011, is also indicative of the fact that
Custodian was the holder of the note and requires the determination that only Custodian had
standing to foreclose in 2009 and that Plaintiff-Trustee lacked standing to commence this action.
19. As a result of Plaintiff-Trustee's (i) failure to establish that ithad standing,
ten (10) years ago, in 2009, in order to commence this action and (ii)inability to establish that it
was the lawful holder or assignee of the note and mortgage in 2009 prior to the date of the
commencement of this action, the mortgage chain was broken, and Royal Blue's motion to dismiss
the Amended Complaint, pursuant to CPLR 3211(a)(3), should have been granted.
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The Chain Of Mortgages Is Broken Due
To Defective Assignments And, As A Result,
Plaintiff Failed To Meet Its Burden That It
Had Standine When The Action Was Commenced
20. The chain of mortgages on which Plaintiff-Trustee is seeking to foreclose
are dated from December 1998 and allegedly continue through and including September 21, 2006,
with the last mortgage being the 2006 CEMA that is the subject matter of the instant foreclosure
action.
21. In order for Plaintiff-Trustee to have the capacity to maintain this
foreclosure action, the chain of mortgages, from 1998 through 2006, must be unbroken through
the date of the last mortgage of the chain.
22. As noted above, Plaintiff-Trustee failed to provide any evidentiary proof
that it was in possession of the Note and mortgage in 2009 at the time of the commencement of
this and therefore Plaintiff-Trustee lacked to commeñce the action. Plaintiff-
action, standing
Trustee failed to meet itsburden to prove that itowned the note and mortgage underlying the action
(1st
in 2009 when the action was commenced. HSBC Bank USA v Lugo, 169 A.D.3d 543 Dept.
(2nd
2019); TBZ Coro. v. Dabbs 25 A.D.3d 787, 808 N.Y.S.2d 746 Dept. 2006); Deutsche Bank
Trust Co. Americas v. Picon, 2011 Misc Lexis 3131, 2011 NY Slip Op31736(U) (Sup. Ct, Queens
Co. 2011).
23. There is no documentation provided by Plaintiff-Trustee of any assignment
by AHMAI or transfer or assignment of the ownership of the notes and/or mortgages that may
have been entered into post-June 23, 2005.
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24. As was previously stated in Royal Blue's moving papers, as was the case in
Bank of N.Y. v. Silverberg, supra, Plaintiff-Trustee, could only be assigned that which MERS was
able to assign and did assign to American Home Mortgage ("AHM").
25. Due to the fact that MERS did n_ot have the right to assign the underlying
notes, as the assignment of the notes was beyond MERS's authority as nomiñêc or agent of
Holder" "Lender,"
AHMAI, as "Note and Plaintiff-Trustee did n_o_t acquire the power to foreclose
by way of the MERS to AHM to Plaintiff-Trustee assignments or any corrected assignment.
In sum, because MERS was never the lawful holder or
assignee of the notes described and identified in the
consolidation agreement, the corrected assignment of
mortgage is a nullity, and MERS was without authority to
assign the power to foreclose to the plaintiff. Consequently,
the plaintiff failed to show that ithad standing to foreclose.
Accordingly, the Supreme Court should have granted the
defendants'
motion pursuant to CPLR 3211 (a) (3) to dismiss
the complaint insofar as asserted against them for lack of
standing. Bank of N.Y. v. Silverberg, supra.
26. Royal Blue therefore met its burden of establishing, by documents
proffered by and admitted to by Plaintiff-Trustee, that itlacked standing as a matter of law and
that dismissal of the action pursuant to CPLR 3211 (a) (3) should have been granted. (See BAC
(2nd
Home Loans Servicing, LP v Rychik, 2018 N.Y. App. Div LEXIS 3507 Dept. 2018).
27. Therefore, not only was there was a break in the mortgage chain on the date
of the execution and assignment of the 2006 CEMA, but Plaintiff-Trustee has failed to provide
any evidentiary proof that itwas the actual holder or assignee of the Note and mortgage in 2009 at
the time of the commencement of this action.
28. Plaintiff-Trustee admits itwas not the holder or owner of the Note in 2009
and therefore cannot establish that it had standing in 2009 to commence this action due to its
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inability to establish that itwas the lawful holder or assignee of the note and mortgage prior to the
commencement of this action. Therefore, Royal Blue's motion to dismiss the Amended Complaint,
pursuant to CPLR 3211(a)(3), should have been granted.
29. Wherefore, itis respectfully requested Royal Blue's motion for rearguracñt
be granted and upon reargument, that the Amended Complaint be dismissed; and that Royal Blue
be granted such other and further relief that the Court deems just and proper.
Dated: New York, New York
July 22, 2019
Mart Shaw
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Index No. 107030/2009
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
__. _____________________________________________________________________
Deutsche Bank National Trust Company as Trustee for
American Home Mortgage Assets Trust 2007-1 Mortgage-
Backed Pass-Through Certificates, Series 2007-1,
Plaintiff,
-against-
Royal Blue Realty Holdings, Inc., et al.,
Defendants.
REPLY AFFIRMATION IN FURTHER SUPPORT OF MOTION FOR REARGUMENT
_______________
MARTIN SHAW, ESQ.
Lester Bleckner & Shaw LLP
Attorneys for Defendant
Royal Blue Realty Holdings, Inc.
350 Fifth Avenue, Suite 3301
New York, New York 10118
Tel. (212) 279-4490; ext. 204
Fax (212) 279-4495
________________ _________
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts
of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in the annexed document are not frivolous.
Dated: .................................... Signature ...................................................
Print Signers Name.......................................
Service of a copy of the within is hereby admitted.
Dated:
......................................................
Attorney(s) for
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NO. 139 RECEIVED NYSCEF: 07/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK __________________ -------x Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2007-1 Mortgage- Backed Pass-Through Certificates, Series 2007-1, Plaintiff, REPLY AFFIRMATION -against- IN FURTHER SUPPORT OF MOTION FOR REARGUMENT Royal Blue Realty Holdings, Inc., Board of Managers of 130 Barrow Street Condominium Homeowners Association, Yu International, Inc. dba SY Marble & Granite Importers & Distributors, NY State Department of Index No. 107030/2009 Taxation and Finance, State of New York, New York City, City of New York Environmental Control Board, City of New York Parking Violations Bureau, and "JOHN DOE #1" through "JOHN DOE #10", the last ten names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgage premises described in the complaint, Defendants. -- - -------------------------------X Martin Shaw, an attorney duly admitted to practice law in the Courts of the State of New York affirms the following to be true under the penalties of perjury: 1. I am a partner at Lester Bleckmer & Shaw LLC, the attorneys for defendant Royal Blue Realty Holdings, Inc. ("Royal Blue") in this action and, as such, am fully familiar with the facts set forth herein. 2. I respectfully submit this reply affirmation in further support of Royal Blue's motion for an order, pursuant to CPLR Rule 2221, granting Royal Blue reargument of its motion to dismiss plaintiff's Amended Complaint, and upon such reargument, dismissing 1 of 9 FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019 plaintiff's Amended Complaiñt, together with such other and further relief as this Court deems just and proper. Reargument Should Be Granted And Upon Reargument, Plaintiff's Amended Complaint Sheu!d Be_Dismissed 3. Royals Blue's motion is based on the fact that plaintiff lacked standing in 2009 when the action was commcñced. It is respectfully submitted that the Court overlooked certain relevant and uncontested facts, including but not limited to (i) gaps in the mortgage chain and (ii)that plaintiff was not the owner of the subject note and was not in possession of the subject note (the "Note") on the date of the commencement of this action. 4. This foreclosure action was commenced by plaintiff, Deutsche Bank National Trust Company as Trustee For Americañ Home Mortgage Assets Trust 2007-1, Mortgage-Backed Pass-Through Certificates, Series 2007-1 ("Plaintiff-Trustee") in 2009. Note" 5. Based on the "Affidavit of Lost sworn to by Melissa Kelsey on April 4, 2019 (the "Kelsey Aff."), a copy of which is annexed as Exhibit A, Plaintiff-Trustee was n_ot the owner or in possession of the subject Note in 2009 when the action was commenced. 6. Rather than Plaintiff-Trustee being the owner of or in possession of the Note in 2009, Ms Kelsey swears that "the original Note endorsed in blank was deposited with Deutsche Bank National Trust Company, as custodian, on or about October 10, 2006; Deutsche Bank National Trust Company retained possession of the original Note until about August 29, 2011 ..." when it released the original Note to AHMSI (see Kelsey Aff. page 2 of 4 at paragraphs 11 A.(i) and (ii)). 7. Itis respectfully submitted that Royal Blue's motion to reargue its motion dismiss the Amended Complaint is not procedurally defective. First, the full transcript of the oral 2 2 of 9 FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019 argument before Justice McMahon on October 2, 2018 in which the motion to dismiss was denied was attached to Royal Blue's moving papers and the single sentence Order denying Royal Blue's motion was attached by my reference to itin paragraph 12_of my moving affirmation as CEF Doc. No. 62. Second, by Stipulation dated March 25, 2019 and e-filed on April 1, 2019 (CEF Doc. No. 84), counsel agreed that Royal Blue's time to "move for reargument/review of the Court's chain'" previous denial of the motion to dismiss due to 'gap in is extended to the date which istwo (2) weeks from the date of the Notice of Entry of the Court's Order on Royal Blue's motion to dismiss the Amended Complaint under Index No. 850071/2016. As the Notice of Entry of the Court's Order under Index No. 850071/2016 was e-filed on April 30, 2019, Royal Blue's time to move for reargument was extended to May 14, 2019, when the motion was e-filed. 8. As a result, this motion for reargument is timely and Plaintiff-Trustee's attorneys should be estopped from disavowing a stipulation itentered into. Royal Blue's Motion to Dismiss Should Be Granted As Plaintiff Has No Standing _ Plaintiff-Trustee Failed To Meet Its Burden That It Owned The Original Note And Mortgage When The Action Was Commenced And Cannot Establish Standine 9. As noted previously in Royal Blue's moving papers, the issue of standing requires an inquiry into whether a litigant has "an interest ... in the lawsuit that the law will request." recognize as a sufficient predicate for determining the issue at the litigant's In the motion to dismiss pursuant to CPLR 3211(a)(3), Royal Blue alleged that Plaintiff-Trustee failed to establish its standing. Under CPLR 3211 (a)(3), a defendant may seek dismissal if the party asserting the cause of action lacks legal capacity to sue. 3 3 of 9 FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019 10. In a mortgage foreclosure action, a plaintiff has standing where it isboth the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced. Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532 (2nd Dep't 2011). Here, plaintiff failed to demonstrate itsprima facie entitlement to judgment as standing...." a matter of law because itdid not establish that ithad US Bank Natl. Assn. v Madero, (2nd 80 A.D.3d 751, 915 N.Y.S.2d 612 Dep't 2011). Aff.1 11. The Kelsey clearly establishes that Plaintiff-Trustee lacked standing as the original Note was not physically delivered to Plaintiff-Trustee, or in itspossession prior to commencement of this action. See U.S. Bank N.A. v. Askew, 138 A.D.3d 402, 402, 27 N.Y.S.3d 856, 856 (1st Dept. 2016). Aurora Loan Services. LLC v. Taylor, 25 N.Y.3d 355 (2015). 12. Critically, Plaintiff-Trustee provided documentation that a third party, Deutsche Bank National Trust Company, as custodian, (the "Custodian") was in possession of the original note in 2009, on the date that this action was commenced, ten (10) years ago. For this reason alone, the Amended Complaint should have been dismissed. 13. The Appellate First Department noted in Wells Fargo Bank v Ho- Division, (1" Shing, 168 A.D.3d 126 92 N.Y.S.3d 194 Dept. 2019) that when the plaintiff took possession of the consolidated note it became the assignee and transferee of the mortgage. The Court held that "the holder of the note is deemed the owner of the underlying mortgage loan with standing to foreclose." 14. Following the decision set forth in Wells Fargo Bank v Ho-Shing, supra, Plaintiff-Trustee did not have standing to commence this action in 2009. It isnoteworthy that the Kelsey Aff. was not provided to Royal Blue until after Royal Blue e-filed itsmotion for reargument. 4 4 of 9 FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019 15. Plaintiff-Trustee has admitted that Custodian took possession of the subject Note on or about October 10, 2006 and did not relinquish possession of the Note until about August 29, 2011 (see Kelsey Aff. page 2 of 4 at paragraphs 11 A.(i) and (ii)). 16. Based on this admission and the Appellate Division's ruling in Wells Fargo Bank v Ho-Shing, supra, Custodian was the holder of the note and is deemed to be the owner of the underlying mortgage loan. As such, Custodian would have had standing to foreclose in 2009, but Plaintiff-Trustee did not have standing to commence the action. 17. The Plaintiff-Trustee's lack of standing is also tacitly acknowledged and admitted in paragraph 54 of the affirmation in opposition to Royal Blue's motion of Jamie C. Karpf, Esq., attorney for the Plaintiff-Trustee, dated July 8, 2019. Ms. Karpf stated that, according to the Pooling and Servicing Agreement ("PSA") and American Home Mortgage Assets Trust 2007-1, Mortgage-Backed Pass-Through Certificates, Series 2007-1 (the "Trust") the subject Note to" was supposed to have "belonged the Trust. 18. . Nevertheless, the fact that Custodian took possession of the subject Note on or about October 10, 2006 (prior to commencement and formation of the Trust) and did not relinquish possession of the Note until about August 29, 2011, is also indicative of the fact that Custodian was the holder of the note and requires the determination that only Custodian had standing to foreclose in 2009 and that Plaintiff-Trustee lacked standing to commence this action. 19. As a result of Plaintiff-Trustee's (i) failure to establish that ithad standing, ten (10) years ago, in 2009, in order to commence this action and (ii)inability to establish that it was the lawful holder or assignee of the note and mortgage in 2009 prior to the date of the commencement of this action, the mortgage chain was broken, and Royal Blue's motion to dismiss the Amended Complaint, pursuant to CPLR 3211(a)(3), should have been granted. 5 5 of 9 FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019 The Chain Of Mortgages Is Broken Due To Defective Assignments And, As A Result, Plaintiff Failed To Meet Its Burden That It Had Standine When The Action Was Commenced 20. The chain of mortgages on which Plaintiff-Trustee is seeking to foreclose are dated from December 1998 and allegedly continue through and including September 21, 2006, with the last mortgage being the 2006 CEMA that is the subject matter of the instant foreclosure action. 21. In order for Plaintiff-Trustee to have the capacity to maintain this foreclosure action, the chain of mortgages, from 1998 through 2006, must be unbroken through the date of the last mortgage of the chain. 22. As noted above, Plaintiff-Trustee failed to provide any evidentiary proof that it was in possession of the Note and mortgage in 2009 at the time of the commencement of this and therefore Plaintiff-Trustee lacked to commeñce the action. Plaintiff- action, standing Trustee failed to meet itsburden to prove that itowned the note and mortgage underlying the action (1st in 2009 when the action was commenced. HSBC Bank USA v Lugo, 169 A.D.3d 543 Dept. (2nd 2019); TBZ Coro. v. Dabbs 25 A.D.3d 787, 808 N.Y.S.2d 746 Dept. 2006); Deutsche Bank Trust Co. Americas v. Picon, 2011 Misc Lexis 3131, 2011 NY Slip Op31736(U) (Sup. Ct, Queens Co. 2011). 23. There is no documentation provided by Plaintiff-Trustee of any assignment by AHMAI or transfer or assignment of the ownership of the notes and/or mortgages that may have been entered into post-June 23, 2005. 6 6 of 9 FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019 24. As was previously stated in Royal Blue's moving papers, as was the case in Bank of N.Y. v. Silverberg, supra, Plaintiff-Trustee, could only be assigned that which MERS was able to assign and did assign to American Home Mortgage ("AHM"). 25. Due to the fact that MERS did n_ot have the right to assign the underlying notes, as the assignment of the notes was beyond MERS's authority as nomiñêc or agent of Holder" "Lender," AHMAI, as "Note and Plaintiff-Trustee did n_o_t acquire the power to foreclose by way of the MERS to AHM to Plaintiff-Trustee assignments or any corrected assignment. In sum, because MERS was never the lawful holder or assignee of the notes described and identified in the consolidation agreement, the corrected assignment of mortgage is a nullity, and MERS was without authority to assign the power to foreclose to the plaintiff. Consequently, the plaintiff failed to show that ithad standing to foreclose. Accordingly, the Supreme Court should have granted the defendants' motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against them for lack of standing. Bank of N.Y. v. Silverberg, supra. 26. Royal Blue therefore met its burden of establishing, by documents proffered by and admitted to by Plaintiff-Trustee, that itlacked standing as a matter of law and that dismissal of the action pursuant to CPLR 3211 (a) (3) should have been granted. (See BAC (2nd Home Loans Servicing, LP v Rychik, 2018 N.Y. App. Div LEXIS 3507 Dept. 2018). 27. Therefore, not only was there was a break in the mortgage chain on the date of the execution and assignment of the 2006 CEMA, but Plaintiff-Trustee has failed to provide any evidentiary proof that itwas the actual holder or assignee of the Note and mortgage in 2009 at the time of the commencement of this action. 28. Plaintiff-Trustee admits itwas not the holder or owner of the Note in 2009 and therefore cannot establish that it had standing in 2009 to commence this action due to its 7 7 of 9 FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019 inability to establish that itwas the lawful holder or assignee of the note and mortgage prior to the commencement of this action. Therefore, Royal Blue's motion to dismiss the Amended Complaint, pursuant to CPLR 3211(a)(3), should have been granted. 29. Wherefore, itis respectfully requested Royal Blue's motion for rearguracñt be granted and upon reargument, that the Amended Complaint be dismissed; and that Royal Blue be granted such other and further relief that the Court deems just and proper. Dated: New York, New York July 22, 2019 Mart Shaw 8 8 of 9 FILED: NEW YORK COUNTY CLERK 07/22/2019 07:53 PM INDEX NO. 107030/2009 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/22/2019 Index No. 107030/2009 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK __. _____________________________________________________________________ Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2007-1 Mortgage- Backed Pass-Through Certificates, Series 2007-1, Plaintiff, -against- Royal Blue Realty Holdings, Inc., et al., Defendants. REPLY AFFIRMATION IN FURTHER SUPPORT OF MOTION FOR REARGUMENT _______________ MARTIN SHAW, ESQ. Lester Bleckner & Shaw LLP Attorneys for Defendant Royal Blue Realty Holdings, Inc. 350 Fifth Avenue, Suite 3301 New York, New York 10118 Tel. (212) 279-4490; ext. 204 Fax (212) 279-4495 ________________ _________ Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: .................................... Signature ................................................... Print Signers Name....................................... Service of a copy of the within is hereby admitted. Dated: ...................................................... Attorney(s) for 9 of 9