Motion-Secondary: Wells Fargo Bank, N.A., As Trustee, For The Certificateholders Of Morgan Stanley Abs Capital I Inc., Trust 2005-Wmc5, Mortgage Pass-Through Certificates, Series 2005-Wmc5 v. Ronfayzi Inc., People Of The State Of New York, New York City Environmental Control Board, New York City Transit Adjudication Bureau, New York City Department Of Finance, John Doe

On December 06, 2017 a Motion-Secondary was filed involving a dispute between Wells Fargo Bank, N.A., As Trustee, For The Certificateholders Of Morgan Stanley Abs Capital I Inc., Trust 2005-Wmc5, Mortgage Pass-Through Certificates, Series 2005-Wmc5, and John Doe, New York City Department Of Finance, New York City Environmental Control Board, New York City Transit Adjudication Bureau, People Of The State Of New York, Ronfayzi Inc., for Real Property - Mortgage Foreclosure - Residential in the District Court of Queens County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
----------------------------------------------------------------------X
WELLS FARGO BANK, N.A., AS TRUSTEE, FOR THE
CERTIFCATEHOLDERS OF MORGAN STANLEY ABS
CAPITAL I INC., TRUST 2005-WMC, MORTGAGE
PASS THROUGH CERTIFICATES, SERIES 2005-
WMC5, Index No.: 716943/2017

Plaintiff,

-against-
AFFIRMATION IN
RONFAYZI INC., PEOPLE OF THE STATE OF NEW FURTHER SUPPORT OF
YORK, NEW YORK CITY ENVIRONMENTAL PLAINTIFF’S MOTION FOR
CONTROL BOARD, NEW YORK CITY TRANSIT SUMMARY JUDGMENT
ADJUDICATION BOARD, NEW YORK CITY
DEPARTMENT OF FINANCE, JOHN DOE (Those
unknown tenants, occupants, persons or corporations or
their heirs, distributes, executors, administrators, trustees,
guardians, assignees, creditors or successors claiming an
interest in the mortgaged premises),

Defendants.
----------------------------------------------------------------------X

TERENCE D. WATSON, an attorney duly admitted to practice in the State of New York,

pursuant to New York Civil Practice Law and Rules (“CPLR”) section 2106, and under the

penalty of perjury, affirms as follows:

1. I am an attorney with Fidelity National Law Group, co-counsel for Plaintiff,

Wells Fargo Bank, N.A., as Trustee, for the Certifcateholders of Morgan Stanley ABS Capital I

Inc., Trust 2005-WMC, Mortgage Pass Through Certificates, Series 2005-WMC5 (“Plaintiff”) in

the above captioned action (the “Action”).

2. I have knowledge of the facts set forth herein based upon a review of the files

maintained by my office, except those facts set forth upon information and belief, and as to those

facts, I believe them to be true.

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3. I respectfully submit this affirmation in further support of Plaintiff’s motion for

summary judgment (the “Motion”), solely limited to certain purported defenses raised by

defendant Almando Izquierdo (“Defendant”) which challenge the validity of Plaintiff’s Mortgage

(as defined below).

INTRODUCTION

4. Defendant challenges the validity of Plaintiff’s Mortgage on the basis that the

power of attorney used to execute the Mortgage on behalf of his deceased mother, Merline

McDowell, was allegedly induced by fraud and/or was forged. Defendant, however, has not, and

cannot show that Plaintiff’s predecessor had any notice of the alleged fraud. Nor has Defendant

supported any claim of forgery. Consequently, Plaintiff’s predecessor was a bona fide

encumbrancer for value without any notice of any alleged fraud, and Mortgage is therefore

protected under the Real Property Law (“RPL”) section 266.

5. Even if the challenged power of attorney was induced by fraud or was forged as

alleged by Defendant, the Mortgage would remain a valid and enforceable lien on the Property

for the following reasons.

6. First, the deed conveying an interest in the Property to Walter McDowell was

executed by Merline McDowell, as opposed to being executed on her behalf pursuant to

authority granted under the challenged power of attorney. Consequently, notwithstanding

Defendant’s allegations concerning the power of attorney, Walter McDowell held an interest in

the Property that he was able to, and did in fact encumber through the Mortgage.

7. Second, the deed conveying an interest in the Property to Walter McDowell

included the “right of survivorship.” Consequently, notwithstanding Defendant’s allegations

concerning the power of attorney, Walter McDowell acquired Merline McDowell’s interest in

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the Property upon Merline McDowell’s death.

8. Third, even if Merline McDowell’s interest in the Property was unencumbered by

the Mortgage during her lifetime and ownership, such interest, upon being transferred to Walter

McDowell upon Merline McDowell’s death, became subject to the Mortgage under the after-

acquired title doctrine.

9. In other words, notwithstanding Defendant’s allegations of fraudulent inducement

and/or forgery related to the power of attorney, Plaintiff’s Mortgage is a valid and enforceable

lien on the entire Property because Walter McDowell held an undivided half interest in the

Property that he was able to, and did in fact encumber through the Mortgage, and the remaining

half interest in the Property that he acquired upon Merline McDowell’s death became subject to

the Mortgage under the after-acquired title doctrine.

10. Accordingly, Plaintiff respectfully requests the entry of an Order granting the

Motion, and entering a declaratory judgment that Plaintiff’s Mortgage is a valid, enforceable first

mortgage lien encumbering the entirety of the Property, together with such other and further

relief the Court deems equitable and just.

BACKGROUND

11. Merline McDowell a/k/a Merlene McDowell (“Merline McDowell”) acquired title

to real property located at 177-26 Ursina Road, St. Albans, New York 11434 (Block 12484, Lot

105) (the “Property”) by deed dated November 14, 1974 and recorded in the Office of the City

1116. See Accompanying Affidavit of Cynthia May, sworn to May 1, 2020 (the “May Aff.”), at

¶ 5, and Exhibit A thereto.

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Merline McDowell’s Pre-Existing Mortgages

12. Merline McDowell obtained two (2) loans secured by mortgages on the Property

during her sole ownership of the Property. See May Aff. at ¶ 6.

13. Specifically, Merline McDowell obtained a loan in the original principal amount

of $12,000.00 from The Chase Manhattan Bank, which loan was secured by a mortgage on the

Property that was recorded on November 25, 1974 at Reel 801, Page 1119 (the “Chase

Mortgage”). See May Aff. at ¶ 7 and Exhibit B.

14. A satisfaction of the Chase Mortgage was recorded on May 6, 1998 at Reel 4857,

Page 1700. See May Aff. at ¶ 8 and Exhibit C.

15. In addition, Merline McDowell obtained a loan in the original principal amount of

$28,600.00 from Champion Mortgage Company, which was secured by a mortgage on the

Property that was recorded on July 7, 2000 at Reel 5622, Page 1926 (the “Champion Mortgage”).

See May Aff. at ¶ 9 and Exhibit D.

Merline McDowell Conveyed An Interest In the Property With The Right Of Survivorship

16. By deed dated February 17, 2005, and recorded on April 15, 2006 at

CRFN2005000220495 (the “Deed”), Merline McDowell conveyed the Property to her brother,

Walter McDowell II (“Walter McDowell”) and to herself, “as Joint Tenants with Rights of

Survivorship.” See May Aff. at ¶ 11 and Exhibit E.

17. It bears noting that Merline McDowell’s signature on the Deed is notarized, and

the Deed was not signed on her behalf under authority granted under the challenged power of

attorney.

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Plaintiff’s Loan and Mortgage

18. Merline McDowell and Walter McDowell obtained a loan from WMC Mortgage

Corp. in the original principal amount of $250,000.00 (the “Loan”), which was secured by a

mortgage on the Property that was recorded on April 15, 2005 at CRFN2005000220497 (the

“Mortgage”). See May Aff. at ¶ 12 and Exhibit F.

19. A portion of the proceeds of the Loan was used to pay off and satisfy the prior

Champion Mortgage on the Property. See May Aff. at ¶ 13. Specifically, $24,390.26 of the

Loan proceeds were used to satisfy the Champion Mortgage. Id. and Exhibits H and I.1

20. The Mortgage was assigned to Plaintiff by assignment dated May 24, 2012, and

recorded on June 20, 2012 at CRFN2012000242775. See May Aff. at ¶ 14 and Exhibit J.

The Power of Attorney

21. Walter McDowell executed the Mortgage on his own behalf, as well as on behalf

of Merline McDowell pursuant to a power of attorney recorded on April 15, 2005 at

CRFN2005000220496 (the “POA”). See May Aff. at ¶ 15 and Exhibit G.

22. Merline McDowell granted authority under the POA to not only her brother,

Walter McDowell, but also to her sister, and to Defendant. See Exhibit G to May Aff. Each

were authorized to act “SEPARATELY” under the terms of the POA. Id.

Subsequent Mortgage and Conveyances

23. Merline McDowell and Walter McDowell obtained a loan from JPMorgan Chase

Bank, N.A. in the original principal amount of $50,000.00, which was secured by a mortgage on

1 Plaintiff has a viable claim for an equitable lien under the doctrine of equitable subrogation related to the payoff
of the Champion Mortgage in the amount of $24,390.26 plus interest. See Exhibit H to May Aff. See also Wells
Fargo Bank, NA v. Edsall, 22 Misc. 3d 1113(A) (Sup. Ct. Suffolk Cty. 2009) (citing Great E. Bank v. Chang, 227
A.D.2d 589, 589 (2d Dep’t 1996) (where “the funds of a mortgagee are used to discharge a prior lien upon the
property of another, the doctrine of equitable subrogation applies to prevent unjust enrichment by subrogating the
mortgagee to the position of the senior lienholder.”

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the Property that was recorded on January 15, 2008 at CRFN 2008000019132 (the “JPMorgan

Mortgage”). See May Aff. at ¶ 17 and Exhibit K.

24. A satisfaction of the JPMorgan Mortgage was recorded on October 21, 2015 at

CRFN2015000376698. See May Aff. at ¶ 17 and Exhibit L.

25. Upon information and belief, Merline McDowell passed away on or about

November 25, 2009. See May Aff., at ¶ 19 and Complaint, attached as Exhibit N to the May

Aff., at ¶ 3. Consequently, Walter McDowell, who acquired an interest in the Property with the

right of survivorship, became the sole owner of the Property upon Merline McDowell’s death.

See Exhibit E to the May Aff.

26. Upon information and belief, Walter McDowell passed away on or about

November 25, 2009. See May Aff. at ¶ 20 and Complaint, attached as Exhibit N to the May

Aff., at ¶ 3.

27. Finally, by deed dated May 26, 2016, and recorded at CRFN2016000207152 on

June 20, 2016, a copy of which is attached as Exhibit M to the May Affidavit, Walter McDowell

III, “as sole surviving heir of WALTER MCDOWELL, deceased, the surviving joint tenant of

MERLENE MCDOWELL aka MARLINE MCDOWELL, deceased” conveyed the Property to

Ronfayzi, Inc. See May Aff. at ¶ 21 and Exhibit M.

PROCEDURAL HISTORY

28. The Action was commenced with the filing of a summons, complaint (the

“Complaint”), notice of pendency and certificate of merit on December 6, 2017 (NYSCEF Doc.

Nos. 1-4). A copy of the Complaint is attached as Exhibit N to the May Aff. The Complaint

seeks, inter alia, to foreclose on the Mortgage. Id.

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29. On January 22, 2018, Defendant filed a verified answer to the Complaint (the

“Answer”), a copy of which is attached as Exhibit O to the May Aff.

30. Through his Answer, Defendant alleges that:

[t]he transfer of ownership from Merline McDowell to Merline
McDowell and Walter McDowell, II as joint tenants with the rights
of survivorship was obtained through fraudulent means through the
use of a power of attorney that was fraudulently obtained while
Merline McDowell was hospitalized. Thus the subject mortgage
that Walter McDowell, II obtained using this power of attorney
was obtained under fraudulent means. Likewise, the conveyance
of the subject property to Ronfayze, Inc. was done through
fraudulent means because Walter McDowell, III did not have legal
authority to transfer the property.

See Answer, Exhibit O to May Aff. at p. 4.

31. As set forth above, Defendant incorrectly asserts that the Deed conveying an

interest in the Property to Walter McDowell was signed on Merline McDowell’s behalf under

authority granted under the challenged POA. See Answer, Exhibit O to May Aff. at p. 4. In

actuality, Merline McDowell’s signature on the Deed is notarized, and as a result, she is

statutorily presumed to have signed the Deed. See Exhibit E to May Aff. and CPLR § 4538.

32. In addition, and as demonstrated below, Defendant’s claim that the Mortgage is

invalid and unenforceable is without merit, and as a result, the Motion should be granted.2

ARGUMENT

I. No Material Issue of Fact Exists To Preclude The
Entry of Summary Judgment In Plaintiff’s Favor

33. Under CPLR § 3212(b), a motion for summary judgment “shall be granted if,

upon all the papers and proof submitted, the cause of action or defense shall be established

2
Defendant’s Answer also asserts purported defenses of lack of standing, Plaintiff not holding the underlying note,
improper notice, and usury which are addressed in the accompanying Affirmation of Kathleen Puscheck, Esq., and
the Memorandum of Law filed in support of the Motion.

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sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.”

34. “The proponent of a summary judgment motion must make a prima facie showing

of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any

material issues of fact from the case.” Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851,

487 N.Y.S.2d 316, 317 (1985). “Once this showing has been made, however, the burden shifts

to the party opposing the motion for summary judgment to produce evidentiary proof in

admissible form sufficient to establish the existence of material issues of fact which require a

trial of the action.” Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986).

35. Where the opposing party proffers nothing more than allegations which, lacking

any evidentiary support whatever, are highly suspect, if not simply incredible, “the court should

grant the motion for summary judgment.” Van Dorn Realty Corp. v. Sundee Int’l Corp., 190

A.D.2d 516, 518 (1st Dep’t 1993).

36. In this regard, “‘[i]t is well settled that the shadowy semblance of an issue or bald

conclusory assertions, even if believable, are not enough to defeat a motion for summary

judgment.’” Orange County-Poughkeepsie Ltd. Partnership v. Bonte, 37 A.D.3d 684, 687 (2d

Dep’t 2007) (citation omitted); see also Cioffi-Petrakis v. Petrakis, 72 A.D.3d 868, 869 (2d

Dep’t 2013) (“conclusory and unsubstantiated assertions [are] insufficient to defeat . . . summary

judgment”); Fotiatis v. Cambridge Hall Tenants Corp., 70 A.D.3d 631, 632 (2d Dep’t 2010)

(“‘[t]he party opposing the motion must demonstrate the existence of a factual issue requiring a

trial . . . , not mere conjecture, suspicion, or speculation’”) (citation omitted)); Lo Breglio v.

Marks, 105 A.D.2d 621, 622-23 (1st Dep’t 1984) (“a ‘shadowy semblance of an issue’ or mere

conclusory allegations even if believable, are insufficient” to defeat summary judgment”).

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37. Therefore, “when there is no genuine issue to be resolved at trial, the case should

be summarily decided, and an unfounded reluctance to employ the remedy will only serve to

swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly

adjudicated.” Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974).

38. There are no material facts in dispute to prevent the Motion from being granted.

II. Plaintiff’s Predecessor Was A Bona Fide Encumbrancer For Value

39. Plaintiff’s predecessor is a bona fide encumbrancer for value without notice of the

fraud alleged by Defendant, and as a result, the Mortgage is entitled to protection under RPL

266.

40. RPL § 266 provides, in pertinent part, that:

This article does not in any manner affect or impair the title of a
purchaser or encumbrancer for a valuable consideration, unless it
appears that he had previous notice of the fraudulent intent of his
immediate grantor, or of the fraud rendering void the title of such
grantor.

41. In other words, a bona fide encumbrancer for value “is protected in its title unless

it had previous notice of a fraud nullifying the title of its grantor.” Fleming-Jackson v. Fleming,

41 A.D.3d 175, 176, 838 N.Y.S.2d 506 (1st Dept. 2007) Merritt v Merritt, et al., 47 A.D. 3d 689

(2d Dep’t 2008).

42. For example, “[f]orged deeds and/or encumbrances or those executed under false

pretenses which constitute fraud in the factum are void ab initio.” Wells Fargo Bank, N.A. v.

Edsall, 22 Misc. 3d 1113(A), 880 N.Y.S.2d 877 (S. Ct. Suffolk Co. 2009) citing Marden v.

Dorothy, 160 N.Y. 39, 54 NE 726 (1899); GMAC Mtg. Corp. v. Chan, 56 A.D.2d 521, 867

N.Y.S.2d 204 (2d Dep’t 2008); Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 (2d Dep’t 2007).

Consequently, “[t]he interests of subsequent bona fide purchasers or encumbrancers for value are

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thus not protected under RPL § 266 when their title is derived from a forged deed or one that is the

product of fraud in the factum.” Id. citing Ameriquest Mtg. Co. v. Gaffney, 41 A.D.3d 750, 839

N.Y.S.2d 203 (2d Dep’t 2007); LaSalle Bank Natl. Assn. v. Ally, 39 A.D.3d 597, 835 N.Y.S.2d 264

(2d Dep’t 2007).

43. “In contrast, a fraudulently induced deed is merely voidable, not void.” Edsall, 880

N.Y.S.2d at 877 (citations omitted). “Thus, the remedy of rescission of a fraudulently induced deed

and the cancellation of any purchase money mortgage issued in connection therewith is not

available against a bona fide purchaser or encumbrancer for value.” Id. citing RPL § 266; Fleming–

Jackson v. Fleming, 41 A.D.3d 175, 838 N.Y.S.2d 506 (1st Dep’t 2007); Fischer v. Sadov Realty

Corp., 824 N.Y.S.2d 434, 34 A.D.3d 630 (2d Dep’t 2006); Miner v. Edwards, 221 A.D.2d 934, 634

N.Y.S.2d 306 (2d Dep’t 1995).

44. This is a well-established legal principle. For example, in Valentine v. Hunt, 115

N.Y. 496 (1889), the Court of Appeals addressed the validity of subsequent conveyances of

property, and the enforceability of a mortgage secured by the property after the property was

initially obtained by fraud and undue influence. In that action, the respondents argued that since the

initial conveyance of the property (to Richards) was invalid due to fraud and undue influence, the

subsequent conveyance (from Richards to Austin), and the mortgage on the property (provided by

Austin to Lunt) must all be cancelled. The Court Appeals disagreed:

All this seems contrary to natural justice and reason and it is
opposed, we think, to those rules and principles of established equity
by which courts are governed in cases of this nature. It certainly is
not a matter of course for a court of equity to set aside and declare a
conveyance so obtained to be void, and transactions depending upon
it invalid. When its jurisdiction is invoked for that purpose it applies
the maxim that he who seeks equity must do equity. In the case
before us the money was loaned by Mrs. Lunt on the faith and credit
of a title, ownership and possession, which the grantor had conferred

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upon the mortgagor. As against the defendant, therefore, an innocent
and bona fide mortgagee, the grantor and those in privity with her are
estopped from denying that the apparent titlewas the real and true
title.

The mortgage is good upon its face; the records and the possession of
the property by the mortgagor show that she had a right to execute it,
and that is enough, in the first instance, to sustain its validity. To
show its invalidity the plaintiff sets up collateral matter nowhere
appearing of record, or to have been brought to the attention of the
mortgagee. It is unavailing. The deed from the plaintiff’s ancestor
conveyed an estate in fee simple to her grantee, and when recorded it
was, as to all persons acquiring rights, under it, clothed with all the
guaranties which the law can bestow. It was transferable by deed,
and the purchaser acquired all the rights of an owner. He might
again sell or mortgage it, and to one receiving it as purchaser, or as
security without knowledge of any secret fraud, it was free from any
taint which as between the original parties might have infected their
transaction. Whatever might be their guilt or condition, a court of
equity will not visit its consequences upon him.

115 N.Y. at 502-503.

45. Similarly, in Swanstrom v. Day, 93 N.Y.S. 192 (Sup. Kings Cty., 1905), the court

addressed the validity of a mortgage provided by a son after he acquired the subject property by

exerting undue influence over his father. The court set aside the deed conveying the property to the

son, but held that “the mortgage given by the son cannot be set aside, for the mortgagee had no

notice or knowledge of the son’s undue influence in getting the conveyance to him.” 93 N.Y.S. at

194. In this regard, the court explicitly held that “[o]ne who gets title to real or personal property by

fraud or undue influence, is able to convey good title to a purchaser for value and without notice.

He has title until it is avoided by the grantor.” Id.; see also Tompkins v. Rodenberger, 103 N.Y.S.

2d 368, 373 (Sup. Tioga Cty., 1951) (“[i]t is adjudicated that the deed in question was obtained from

the plaintiff by the fraud of the defendant Rodenberger, and that the same be therefore set aside and

cancelled of record. It is also adjudicated that the mortgage of the defendant bank is a valid lien

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upon said premises, superior to any rights of the plaintiff”).

46. In other words, a bona fide encumbrancer for value “is protected in its title unless it

had pervious notice of a fraud nullifying the title of its grantor.” Fleming-Jackson v. Fleming, 41

A.D.3d 175, 176, 838 N.Y.S.2d 506 (1st Dept. 2007). Accordingly, where a party seeking to vacate

or subordinate a mortgage on the basis of fraud, but does not, or cannot allege that the mortgagee

participated in, knew of, or should have known of the fraud, that party’s claim should be dismissed.

Merritt v. Merritt, 47 A.D.3d 689, 849 N.Y.S.2d 888 (2d Dept. 2008) (allegedly defrauded owner’s

claims dismissed where she “failed to allege any facts that the defendants [mortgagees] were on

notice of the fraud allegedly committed by the plaintiff’s son Travis Merritt so as to deprive [them]

of the status of good faith encumbrances for value”).

47. In this regard, a mortgagee, such as Plaintiff, makes a prima facie showing that it

is a bona fide encumbrancer for value by proof that the grantor was the record owner of the

property, and that he granted the encumbrance or transfer. Wavecrest (UK) Limited v. Venture

Telecom, 2010 WL 898082 (S. Ct. Queens Co. 2010). Here, Plaintiff has made a prima facie

showing that it is a bona fide encumbrancer since Merline McDowell and Walter McDowell held

title to the Property at the time the Loan was provided in exchange for the Mortgage. See

Exhibits E and F to May Aff.

48. In addition, Merline McDowell’s signature on the POA is notarized, and in this

regard, CPLR § 4538 provides that:

Certification of the acknowledgment or proof of a writing, except a
will, in the manner prescribed by law for taking and certifying the
acknowledgment or proof of a conveyance of real property within the
state is prima facie evidence that it was executed by the person who
purported to do so. A conveyance of real property, situated within
another state, territory or jurisdiction of the United States, which has
been duly authenticated, according to the laws of that state, territory

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or jurisdiction, so as to be read in evidence in the courts thereof, is
admissible in evidence in the state.

(Emphasis added).

49. In accordance with CPLR § 4538, the Second Department has repeatedly held that

an acknowledged signature is prima facie evidence that it was executed by the person who

purported to do so, absent a handwriting expert or a disinterested witness with personal knowledge

to establish otherwise. See Clark v. Mortgage Services Unlimited, 78 A.D.3d 1104 (2d Dep't 2010).

50. Significantly, the party seeking to avoid a transaction has the burden of proving a

mortgagee’s notice of his transferor’s fraud. Maiorano v. Garson, 65 A.D.3d 1300, 886

N.Y.S.2d 190 (2d Dep’t 2009).

51. Defendant, however, has not, and cannot show that Plaintiff’s predecessor had

any notice of the alleged fraud. Indeed, Defendant has already acknowledged that the Mortgage

is valid:

Q. I just want to clarify one thing. You testified earlier that
the mortgage loan is valid; correct?

A. Yes.

See Transcript of January 16, 2019 Deposition of Defendant, attached as Exhibit A, at tr.121:8-

11.

52. Likewise, Defendant has not supported his claim of forgery. In accordance with

CPLR § 4538, the Second Department has repeatedly held in this regard that an acknowledged

signature is prima facie evidence that it was executed by the person who purported to do so, absent

a handwriting expert or a disinterested witness with personal knowledge to establish otherwise. See

Clark v. Mortgage Services Unlimited, 78 A.D.3d 1104 (2d Dep't 2010).

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53. For example, in Paciello v. Graffeo, 32 A.D.3d 461, 462-63 (2d Dep’t 2006), the

Second Department held that:

A certificate of acknowledgment attached to an instrument such as a
deed raises a presumption of due execution, which presumption, in a
case such as this, can be rebutted only after being weighed against
any evidence adduced to show that the subject instrument was not
duly executed. (Citations omitted). A certificate of acknowledgment
should not be overthrown upon evidence of a doubtful character,
such as the unsupported testimony of interested witnesses, nor upon a
bare preponderance of evidence, but only on proof so clear and
convincing as to amount to a moral certainty. (Citations omitted).

(Emphasis added).

54. Indeed, the Second Department has consistently applied this rationale to summarily

reject claims of forgery similar to that asserted here by Defendant.

55. In Clark v. Mortgage Services Unlimited, supra, the court held that the plaintiff’s

testimony that her acknowledged signatures on two deeds were forged was insufficient to show

proof of forgery, or to rebut the presumption of due execution on either deed, particularly where,

like here, “the plaintiff submitted no evidence, such as the affidavit of a handwriting expert or of a

lay witness who was present at the execution of the deeds or who was otherwise familiar with her

handwriting, to establish that the signatures on the deeds were not hers.” See also JPMorgan Chase

Bank, N.A. v. Bauer, 92 A.D.3d 641 (2d Dep’t 2012) “[S]omething more than a bald assertion of

forgery is required to create an issue of fact contesting the authenticity of a signature,” and

[defendant’s] “affidavit was alone inadequate to raise an issue of fact necessitating a trial” (internal

citations omitted). Accord, Beshara v. Beshara, 1 A.D.3d 837 (2d Dep’t 2008); Rivera v.

Hernandez, 277 A.D.2d 301, 301-02 (2d Dep’t 2000) (“[t]he plaintiff claimed that his

acknowledged signature on a deed transferring ownership of the property to the defendant alone was

forged. However, the plaintiff failed to provide proof of forgery ‘so clear and convincing as to

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amount to a moral certainty’”); Presvelis v. Forella, 2008 WL 2481825 (Sup. Ct. Queens Co. 2008)

(“Plaintiff did not call a handwriting expert, and, therefore, cannot establish that the subject deed

was a forgery at the time it was executed”); Osborne v. Zornberg, 16 A.D.3d 643 (2d Dep’t 2005)

(“plaintiff submitted only her own affidavit attesting to the alleged forgery of her signature on the

deed. This unsupported testimony of an interested witness is insufficient to rebut the presumption of

due execution of the deed”).3

56. Consequently, Plaintiff’s predecessor in interest was a bona fide encumbrancer

for value, and as a result, the Mortgage is protected under RPL § 266, and the Motion should be

granted on this basis alone.

III. Walter McDowell Encumbered The Entire Property Without Reliance On The POA

57. Alternatively, the Mortgage is a valid and enforceable lien on the entire Property

even if Defendant is able to prove his allegations related to the POA.

58. Specifically, the Mortgage is a valid and enforceable lien on the entire Property

because Walter McDowell held an undivided half interest in the Property that he was able to, and

did in fact encumber through the Mortgage, and the remaining half interest in the Property that

he acquired upon Merline McDowell’s death became subject to the Mortgage under the after

acquired title doctrine.

A. Walter McDowell Obtained An Interest In The Property

59. Through the Deed, Merline McDowell conveyed an undivided half interest in the

Property to her brother, Walter McDowell. See May Aff. at ¶ 11 and Exhibit E.

3 Counsel for Plaintiffserved discovery demands on defendant seeking information concerning the alleged
forgery. Despite repeated requests, Defendant has failed to provide such information, including an alleged
handwriting expert’s report. See Plaintiff’sDiscovery Requests, Defendant’s written response, and counsel for
Plaintiff’s follow-up correspondence, attached as Exhibits B, C and D, respectively.

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60. Merline McDowell executed the Deed, and her signature is notarized. See Exhibit

E to May Aff. In other words, the Deed was not signed on behalf of Merline McDowell pursuant

to the challenged POA.

61. Finally, under CPLR § 4538, an acknowledged signature is prima facie evidence

that it was executed by the person who purported to do so, absent a handwriting expert or a

disinterested witness with personal knowledge to establish otherwise. See Clark v. Mortgage

Services Unlimited, 78 A.D.3d 1104 (2d Dep't 2010).

B. Walter McDowell Encumbered His Property Interest

62. Defendant’s allegations of fraud and/or forgery relative to the POA, if true, may

raise an issue as to whether Walter McDowell signing the Mortgage on behalf of Merline

McDowell, pursuant to the POA, encumbered Merline McDowell’s interest in the Property. The

allegations of fraudulent inducement and/or forgery related to the POA do not, however, affect

Walter McDowell’s right to subject his own undivided interest in the Property to the Mortgage.

63. Ne

Case Info

Judge

Robert Ian Caloras Track Judge’s New Case

Case No.

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Document Filed Date

December 22, 2020

Case Filing Date

December 06, 2017

County

Parties

GARY, CHARLES EDWARD Attorney for the Defendant
GRUBEA, JESSICA JOY Attorney for the Plaintiff
Hinshaw & Culbertson LLP Attorney for the Plaintiff
John Doe Defendant
MATTHEWS, VICTOR L. Attorney for the Plaintiff
NEW YORK CITY DEPARTMENT OF FINANCE Defendant
NEW YORK CITY ENVIRONMENTAL CONTROL BOARD Defendant
NEW YORK CITY TRANSIT ADJUDICATION BUREAU Defendant
PEOPLE OF THE STATE OF NEW YORK Defendant
POLOWY, AMY E. Attorney for the Plaintiff
RONFAYZI INC. Defendant
TORDESILLAS, BERNARD JAMES Attorney for the Defendant
WATSON, TERENCE DURANT Attorney for the Plaintiff
WELLS FARGO BANK, N.A., AS TRUSTEE, FOR THE CERTIFICATEHOLDERS OF MORGAN STANLEY ABS CAPITAL I INC., TRUST 2005-WMC5, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-WMC5 Plaintiff
EMMA FUSCO Attorneys for Plaintiffs
RONALD PARK Attorneys for Plaintiffs
Brian McGrath Attorneys for Plaintiffs
FELICIA MURRAY Attorney
LISA BRADLEY Attorney
KATHLEEN PUSCHECK Attorney
JESSICA KENNINGTON Attorney

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