Preview
FILED: SUFFOLK COUNTY CLERK 08/09/2021 04:00 PM INDEX NO. 032744/2007
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/09/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------------- ¬------------------------- X
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS
TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS OF IXI
REAL ESTATE CAPITAL TRUST 2004-HE4, MORTGAGE
PASS THROUGH CERTIFICATES, SERIES 2004-HE4,
Index # 32744/2007
Plaintiff,
-against-
RAYMOND J. HANCOCK A/K/A RAYMOND
HANCOCK;
BENEFICIAL NEW YORK INC.;
MONTAUK AUTOMATIC, INC;
MORGANSTERN & QUATELA;
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
AS NOMINEE FOR GUARANTY RESIDENTIAL LENDING INC.;
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE;
PEOPLE OF THE STATE-OF NEW YORK;
RICHARD VITELLO;
DENISE HANDCOCK;
Defendants.
__-------------..------------------------------------------------------X
STATE OF NEW YORK )
) SS.:
COUNTY OF NASSAU )
MICHAEL C. MANNIELLO, an attorney duly admitted to practice law in the
Courts of the State of New York, hereby affirms the following to be true under penalty of
perjury:
1. I am associated with Roach & Lin, P.C. attorneys for DBI/ASG Mortgage
Holdings, LLC ("DBI/ASG") successor in interest to Defendant MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR GUARANTY
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RESIDENTIAL LENDING INC., as such am fully familiar with the facts and circumstances
set forth herein. I respectfully submit this affirmation in support of DBI/ASG's request for a
temporary restraining order and for the ultimate relief requested by the within application.
2. D B I /A S G M o r tg ag e H o 1d in g s , L L C (hereinafter "DBI") is
the current holder of a certain Note and Mortgage affecting the property at 36 Delmar Lane,
Commack, NY 11725 ("Premises") which are the subject of the within action. Therefore it
has standing to being the within application.
3. The Note and Mortgage dated March 31, 2003 were originated by Guaranty
Residential Lending, Inc. A copy of the Note to Guaranty Residential Lending, Inc. and
the Mortgage (made to "Mortgage Electronic Registration Systems, Inc. as Nominee for
Inc."
Guaranty Residential Lending as nominee) are annexed hereto as Exhibit "A". The
mortgage was recorded on May 30, 2003 and was assigned to DBI by Assignment of
Mortgage recorded June 27, 2017 (Exhibit "B").
4. A copy of the Complaint filed in the within action on October 17, 2007 is
"C"
annexed to Plaintiff's application for an Order of Reference (Exhibit hereto).
Therefore in 2007 when the within action was commenced, the Mortgage was held by
MERS and Plaintiff named MERS as a defendant. As demonstrated by Plaintiff's own
pleading, the mortgage being foreclosed in the within action was recorded July 6, 2004 (See
"C" -
Complaint as part of Exhibit and Recording Abstract as Exhibit "F") over a year
after the MERS Mortgage now held by DBI. While MERS is named as defendant in the
within action, there is absolutely no allegation, pleading or claim whatsoever in the
Complaint filed herein (See Exhibit "C") demonstrating how the Plaintiff's mortgage is
superior in any way to DBI's mortgage. In fact the Complaint at paragraph SIXTEENTH
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sets out the information regarding the MERS mortgage (now held by DBI) and at paragraph
TWENTIETH sets forth that the MERS mortgage is senior to Plaintiff's mortgage. Nowhere
in the filed Complaint is there any evidence that the MERS Mortgage now held by DBI was
satisfied. Paragraph FIFTEENTH of the Complaint contains generic amorphous allegations
in the alternative.
5. As stated in the affidavit submitted herewith, upon acquiring the Note and
MERS Mortgage in 2017, DBI thoroughly examined the file regarding the status of the Note
and Mortgage itwas acquiring. Nothing in DBI's review indicated thatthe Note and Mortgage
were satisfied. All information indicated that the Note remained a valid debt due, and the
Mortgage was a valid and open lien on the Premises. DBI has further researched the matter
and to date no proof of payment in satisfaction of the Note and Mortgage has been discovered.
6. Plaintiff has no legitimate basis for the allegations made in paragraph
FIFTEENTH of the Complaiñt as they relate to the DBI Note and Mortgage. Paragraph
FIFTEENTH of the Complaint states:
"Upon information and belief, allthe defendants herein have or claim to have some
interest in or lienupon said mortgaged premises or come part thereof which interest or
lien, ifany, has accrued subsequent to the lien of Plaintiff's mortgage, or has been paid
or equitably subrogated to Plaintiff's mortgage, or has been duly subordinated thereto.
"B" "C"
The reason for naming said defendants is setforth in Schedule and/or that is
complaint."
attached to the
(See Complaint as part of Exhibit "C").
"B"
Schedule then states that "Plaintiff believes Defendant [MERS] has been paid
superior."
in full, and that the lien of Plaintiff is These allegations are ridiculously generic,
contradictory, and entirely unsupported. On what information and what beliefs were they
made ? After alleging same in the Complaiñt, Plaintiff submitted absolutely nothing to the
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Court to establish them. Neither the affidavit of facts submitted in support of the Order of
Reference nor the Judgment contain a whisper of this claim. "In an action to determine
title pursuant to RPAPL article 15, the plaintiff "has an affirmative duty to show that title
defendants' title"
lies in it,which is not satisfied merely by pointing to weaknesses in
(Crawford v Town of Huntington, 299 AD2d 446, 447 [2d Dept 2002]).
7. In the Second Cause of Action at Paragraph TWENTIETH, the Complaint
alleges the MERS Mortgage "be declared invalid and extinguished pursuant to Article 15 of
Law."
the Real Property Actions and Proceedings (See Complaint as part of Exhibit "C").
Paragraph TWENTY-FIRST of the Complaint sets forth three decretal paragraphs that the
Judgment of Foreclosure should contain in order to secure the relief sought by the Second
Cause of Action, yet none of those paragraphs are in fact in the entered Judgment (Exhibit
switch."
"D"). Plaintiff has pulled a classic "bait and MERS is named as a defendant and
Plaintiff's basis for that is contained in the Second Cause of Action, and pled at paragraph's
TWENTTIETH and TWENTY-FIRST of the Complaint. Yet Plaintiff then did nothing to
pursue that Cause of Action and the entered Judgment is silent as to granting any reliefthereon
to Plaintiff. RPAPL § 1521of Article 15 of the RPAPL, the titleupon which Plaintiff 's
second of action against MERS is based, provides for very specific items to be included in a
Judgment"
"Final to be issued upon such a cause. One of the requirements is that the
Judgment ""shall also declare that any party whose claim to an estate or interest in the property
..."
has been adjudged invalid RPAPL § 1521(1). "RPAPL 1521 required the Supreme Court,
in itsjudgment, to declare that their claim to the property was invalid and that they were
barred from asserting any future claims to that property (see Astwood v Bachinsky, 186
A.D.2d 949, 589 N.Y.S.2d 622 ; Keller v Village of Castleton-on-Hudson, 173 A.D.2d 979,
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569 N.Y.S.2d 491; Greater N.Y Sav. Bank v Stavropoulos, 59 A.D.2d 733, 398 N.Y.S.2d
696; Orrino v Norbon Homes, 35 A.D.2d 732, 315 N.Y.S.2d 215).
(Crawford v Town of Huntington, supra at 447 [2d Dept 2002]). The Judgment of
Foreclosure and Sale entered herein (Exhibit "D") contains no such decree and is therefore
ineffective to grant any relief on the Second Cause of action. Itseems that Platniff could not
sustain any relief on the second cause of action and abandoned same. However, Plaintiff is
attempting to have the MERS interest (now held by DBI) extinguished by including itas a
defendant as if its lien is subordinate and subject to foreclosure - which it is not. The
Judgment is entirely ineffective as against MERS or its successors or assigns.
7. CPLR 5015 provides for vacatur of a Judgment entered upon: "3. fraud,
party."
misrepresentation, or other misconduct of an adverse NY CLS CPLR R 5015. "[A]
movant seeking relief from ajudgment under this paragraph, at leaston the ground of extrinsic
action."
fraud, need not show that he has a meritorious defense or cause of
(Shaw v Shaw, 97 AD2d 403, 403 [2d Dept 1983]). Plaintiff named MERS as a defendant and
"void"
sought to have the MERS Mortgage deemed or unenforceable pursuant to Article 15 by
way of the Second Cause of Action in the Complaiñt. However, Plaintiffthen abandoned that
Second Cause of Action and proceeded to foreclose its interest and treated the MERS
Mortgage (now held by DBI) as if it were a junior lienholder. There is nothing in the
application for an Order of Reference (Exhibit "C") in support of Plaintiff's claim pursuant
to Article 15 to extinguish the MERS mortgage. There is nothing in the entered Judgment
(Exhibit "D") decreeing the MERS Mortgage has been satisfied and therefore should be
extinguished. Plaintiff had no basis to include MERS in thisaction from the startand have it
bound by the entered Judgment as if itwere a junior lienholder. Continuation of this action
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"misrepresentations"
with MERS as a named defendant would be a continuation of the made
in the Complaint, and the Court should not permit it.
8. No prior application for the relief sought herein has been made to this or
any other court by the Movant.
9. Plaintiff's counsel has been noticed of the application for a temporary
restraining order pursuant to court rules (Exhibit "G").
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WHEREFORE, I respectfully request that the court grant the instant application in
all respects, that the Judgment be vacate as against MERS, that the second cause of action as
against MERS be dismissed, and that the action be dismissed as against MERS, together with
such other and further relief as the court deems just, proper and
equitable.
Dated: Syosset, New York
August 9, 2021
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Preview
FILED: SUFFOLK COUNTY CLERK 08/09/2021 04:00 PM INDEX NO. 032744/2007 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/09/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------- ¬------------------------- X DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS OF IXI REAL ESTATE CAPITAL TRUST 2004-HE4, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2004-HE4, Index # 32744/2007 Plaintiff, -against- RAYMOND J. HANCOCK A/K/A RAYMOND HANCOCK; BENEFICIAL NEW YORK INC.; MONTAUK AUTOMATIC, INC; MORGANSTERN & QUATELA; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR GUARANTY RESIDENTIAL LENDING INC.; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; PEOPLE OF THE STATE-OF NEW YORK; RICHARD VITELLO; DENISE HANDCOCK; Defendants. __-------------..------------------------------------------------------X STATE OF NEW YORK ) ) SS.: COUNTY OF NASSAU ) MICHAEL C. MANNIELLO, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following to be true under penalty of perjury: 1. I am associated with Roach & Lin, P.C. attorneys for DBI/ASG Mortgage Holdings, LLC ("DBI/ASG") successor in interest to Defendant MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR GUARANTY 1 of 7 FILED: SUFFOLK COUNTY CLERK 08/09/2021 04:00 PM INDEX NO. 032744/2007 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/09/2021 RESIDENTIAL LENDING INC., as such am fully familiar with the facts and circumstances set forth herein. I respectfully submit this affirmation in support of DBI/ASG's request for a temporary restraining order and for the ultimate relief requested by the within application. 2. D B I /A S G M o r tg ag e H o 1d in g s , L L C (hereinafter "DBI") is the current holder of a certain Note and Mortgage affecting the property at 36 Delmar Lane, Commack, NY 11725 ("Premises") which are the subject of the within action. Therefore it has standing to being the within application. 3. The Note and Mortgage dated March 31, 2003 were originated by Guaranty Residential Lending, Inc. A copy of the Note to Guaranty Residential Lending, Inc. and the Mortgage (made to "Mortgage Electronic Registration Systems, Inc. as Nominee for Inc." Guaranty Residential Lending as nominee) are annexed hereto as Exhibit "A". The mortgage was recorded on May 30, 2003 and was assigned to DBI by Assignment of Mortgage recorded June 27, 2017 (Exhibit "B"). 4. A copy of the Complaint filed in the within action on October 17, 2007 is "C" annexed to Plaintiff's application for an Order of Reference (Exhibit hereto). Therefore in 2007 when the within action was commenced, the Mortgage was held by MERS and Plaintiff named MERS as a defendant. As demonstrated by Plaintiff's own pleading, the mortgage being foreclosed in the within action was recorded July 6, 2004 (See "C" - Complaint as part of Exhibit and Recording Abstract as Exhibit "F") over a year after the MERS Mortgage now held by DBI. While MERS is named as defendant in the within action, there is absolutely no allegation, pleading or claim whatsoever in the Complaint filed herein (See Exhibit "C") demonstrating how the Plaintiff's mortgage is superior in any way to DBI's mortgage. In fact the Complaint at paragraph SIXTEENTH 2 of 7 FILED: SUFFOLK COUNTY CLERK 08/09/2021 04:00 PM INDEX NO. 032744/2007 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/09/2021 sets out the information regarding the MERS mortgage (now held by DBI) and at paragraph TWENTIETH sets forth that the MERS mortgage is senior to Plaintiff's mortgage. Nowhere in the filed Complaint is there any evidence that the MERS Mortgage now held by DBI was satisfied. Paragraph FIFTEENTH of the Complaint contains generic amorphous allegations in the alternative. 5. As stated in the affidavit submitted herewith, upon acquiring the Note and MERS Mortgage in 2017, DBI thoroughly examined the file regarding the status of the Note and Mortgage itwas acquiring. Nothing in DBI's review indicated thatthe Note and Mortgage were satisfied. All information indicated that the Note remained a valid debt due, and the Mortgage was a valid and open lien on the Premises. DBI has further researched the matter and to date no proof of payment in satisfaction of the Note and Mortgage has been discovered. 6. Plaintiff has no legitimate basis for the allegations made in paragraph FIFTEENTH of the Complaiñt as they relate to the DBI Note and Mortgage. Paragraph FIFTEENTH of the Complaint states: "Upon information and belief, allthe defendants herein have or claim to have some interest in or lienupon said mortgaged premises or come part thereof which interest or lien, ifany, has accrued subsequent to the lien of Plaintiff's mortgage, or has been paid or equitably subrogated to Plaintiff's mortgage, or has been duly subordinated thereto. "B" "C" The reason for naming said defendants is setforth in Schedule and/or that is complaint." attached to the (See Complaint as part of Exhibit "C"). "B" Schedule then states that "Plaintiff believes Defendant [MERS] has been paid superior." in full, and that the lien of Plaintiff is These allegations are ridiculously generic, contradictory, and entirely unsupported. On what information and what beliefs were they made ? After alleging same in the Complaiñt, Plaintiff submitted absolutely nothing to the 3 of 7 FILED: SUFFOLK COUNTY CLERK 08/09/2021 04:00 PM INDEX NO. 032744/2007 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/09/2021 Court to establish them. Neither the affidavit of facts submitted in support of the Order of Reference nor the Judgment contain a whisper of this claim. "In an action to determine title pursuant to RPAPL article 15, the plaintiff "has an affirmative duty to show that title defendants' title" lies in it,which is not satisfied merely by pointing to weaknesses in (Crawford v Town of Huntington, 299 AD2d 446, 447 [2d Dept 2002]). 7. In the Second Cause of Action at Paragraph TWENTIETH, the Complaint alleges the MERS Mortgage "be declared invalid and extinguished pursuant to Article 15 of Law." the Real Property Actions and Proceedings (See Complaint as part of Exhibit "C"). Paragraph TWENTY-FIRST of the Complaint sets forth three decretal paragraphs that the Judgment of Foreclosure should contain in order to secure the relief sought by the Second Cause of Action, yet none of those paragraphs are in fact in the entered Judgment (Exhibit switch." "D"). Plaintiff has pulled a classic "bait and MERS is named as a defendant and Plaintiff's basis for that is contained in the Second Cause of Action, and pled at paragraph's TWENTTIETH and TWENTY-FIRST of the Complaint. Yet Plaintiff then did nothing to pursue that Cause of Action and the entered Judgment is silent as to granting any reliefthereon to Plaintiff. RPAPL § 1521of Article 15 of the RPAPL, the titleupon which Plaintiff 's second of action against MERS is based, provides for very specific items to be included in a Judgment" "Final to be issued upon such a cause. One of the requirements is that the Judgment ""shall also declare that any party whose claim to an estate or interest in the property ..." has been adjudged invalid RPAPL § 1521(1). "RPAPL 1521 required the Supreme Court, in itsjudgment, to declare that their claim to the property was invalid and that they were barred from asserting any future claims to that property (see Astwood v Bachinsky, 186 A.D.2d 949, 589 N.Y.S.2d 622 ; Keller v Village of Castleton-on-Hudson, 173 A.D.2d 979, 4 of 7 FILED: SUFFOLK COUNTY CLERK 08/09/2021 04:00 PM INDEX NO. 032744/2007 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/09/2021 569 N.Y.S.2d 491; Greater N.Y Sav. Bank v Stavropoulos, 59 A.D.2d 733, 398 N.Y.S.2d 696; Orrino v Norbon Homes, 35 A.D.2d 732, 315 N.Y.S.2d 215). (Crawford v Town of Huntington, supra at 447 [2d Dept 2002]). The Judgment of Foreclosure and Sale entered herein (Exhibit "D") contains no such decree and is therefore ineffective to grant any relief on the Second Cause of action. Itseems that Platniff could not sustain any relief on the second cause of action and abandoned same. However, Plaintiff is attempting to have the MERS interest (now held by DBI) extinguished by including itas a defendant as if its lien is subordinate and subject to foreclosure - which it is not. The Judgment is entirely ineffective as against MERS or its successors or assigns. 7. CPLR 5015 provides for vacatur of a Judgment entered upon: "3. fraud, party." misrepresentation, or other misconduct of an adverse NY CLS CPLR R 5015. "[A] movant seeking relief from ajudgment under this paragraph, at leaston the ground of extrinsic action." fraud, need not show that he has a meritorious defense or cause of (Shaw v Shaw, 97 AD2d 403, 403 [2d Dept 1983]). Plaintiff named MERS as a defendant and "void" sought to have the MERS Mortgage deemed or unenforceable pursuant to Article 15 by way of the Second Cause of Action in the Complaiñt. However, Plaintiffthen abandoned that Second Cause of Action and proceeded to foreclose its interest and treated the MERS Mortgage (now held by DBI) as if it were a junior lienholder. There is nothing in the application for an Order of Reference (Exhibit "C") in support of Plaintiff's claim pursuant to Article 15 to extinguish the MERS mortgage. There is nothing in the entered Judgment (Exhibit "D") decreeing the MERS Mortgage has been satisfied and therefore should be extinguished. Plaintiff had no basis to include MERS in thisaction from the startand have it bound by the entered Judgment as if itwere a junior lienholder. Continuation of this action 5 of 7 FILED: SUFFOLK COUNTY CLERK 08/09/2021 04:00 PM INDEX NO. 032744/2007 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/09/2021 "misrepresentations" with MERS as a named defendant would be a continuation of the made in the Complaint, and the Court should not permit it. 8. No prior application for the relief sought herein has been made to this or any other court by the Movant. 9. Plaintiff's counsel has been noticed of the application for a temporary restraining order pursuant to court rules (Exhibit "G"). 6 of 7 FILED: SUFFOLK COUNTY CLERK 08/09/2021 04:00 PM INDEX NO. 032744/2007 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/09/2021 WHEREFORE, I respectfully request that the court grant the instant application in all respects, that the Judgment be vacate as against MERS, that the second cause of action as against MERS be dismissed, and that the action be dismissed as against MERS, together with such other and further relief as the court deems just, proper and equitable. Dated: Syosset, New York August 9, 2021 7 of 7