Motion for Stipulated Judgment in U.S. Bank Na, As Trustee, For The Chase Mortgage Finance Corporation Multi-Class Mortgage Pass-Through Certificates, Series 2006-S1 v. Joseph R. Baldi Jr. A/K/A JOSEPH R. BALDI A/K/A JOSEPH BALDI, Brookhaven Memorial Hospital Medical Center, American Express Centurion Bank, Pride Acquisitions Llc, Midland Funding Llc| Trellis.Law

On October 07, 2014 a Motion-Secondary was filed involving a dispute between U.S. Bank Na, As Trustee, For The Chase Mortgage Finance Corporation Multi-Class Mortgage Pass-Through Certificates, Series 2006-S1, and American Express Centurion Bank, Brookhaven Memorial Hospital Medical Center, Joseph R. Baldi Jr. A K A Joseph R. Baldi A K A Joseph Baldi, Midland Funding Llc, Pride Acquisitions Llc, for Foreclosure (residential mortgage) in the District Court of Suffolk County.

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SUPREME COURT STATE OF NEW YORK
COUNTY OF SUFFOLK
-------------------------- ----------X rw4419
U.S. BANK NA AS TRUSTEE FOR THE CHASE
MORTGAGE FINANCE CORPORATION MULTI-CLASS
MORTGAGE PASS-THROUGH CERTIFICATES SERIES

2006-S1,
Index No. 68274/2014

Plaintiff, AFFIRMATION IN SUPPORT OF ORDER
TO SHOW CAUSE TO STAY SALE
- against -

JOSEPH R. BALDI, JR. A/K/A JOSEPH R. BALDI A/K/A
JOSEPH BALDI; BROOKHAVEN MEMORIAL HOSPITAL
CENTER; AMERICAN EXPRESS CENTURION BANK;
PRIDE ACQUISITIONS LLC; MIDLAND FUNDING LLC,

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

RONALD D. WEISS, an attorney duly admitted to practice before this Court affirms as

follows:

1. I am the attorney representing the Defendant JOSEPH R. BALDI, JR. A/K/A JOSEPH

R. BALDI A/K/A JOSEPH BALDI (the "Defendants") in this foreclosure action by U.S. BANK NA

AS TRUSTEE FOR THE CHASE MORTGAGE FINANCE CORPORATION MULTI-CLASS

MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-S1, (the "Plaintiff") against the

Defendant's property located at 3 Cattle Walk, East Hampton, NY 11937 (the "Property").

2. I am filing this Affirmation in Support of Defendant's Order to Show Cause to Stay the

Foreclosure Sale scheduled for September 16, 2019 at 11:30 a.m. Attached hereto as Exhibit A is a

copy of the Notice of Sale.

3. Notice has been given in advance upon Plaintiff's counsel, RAS Boriskin, LLC, with

offices at 900 Merchants Concourse, Suite 310, Westbury, NY 11590 via facsimile to (516) 280-7674,

and upon Gabrielle Weglein, Esq, Referee via email to awealein@optonline.net. Attached hereto as

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Exhibit B is a copy of the letter giving 24 hour notice.

4. Upon information and belief, Defendant has not previously sought relief similar to that

which is requested herein.

5. The basis for this motion are as follows:

a. Plaintiff failed to effectuate service upon defeñdañt pursuant to CPLR 308;

b. Defendant's Jurisdictional Defenses are not waived;

c. Defendant's meritorious defêñses should be cêñsidered on the merits of

Plaintiff's lack of standing and the Defendant should be allowed discovery;

d. Defendant has a reasonable excuse for extension to file answer;

e. Lack of Standing;

f. Standard to a Pursuant to CPLR 2201 - Via a Potential Loss
Stay Proceediñg §
Mitigation Alternative

g. Need for Good-Faith Settlemcñ‡ Negotiations

PROCEDURAL BACKGROUND

6. The Summons and Complaint in this matter was filed on or about October 7, 2014. A

copy of the Summons and Complaint is annexed hereto as Exhibit C.

7. Upon information and belief Defendant has not interposed an Answer to the Complaint.

8. Three foreclosure settlement conferences were conducted on March 11, 2016, April 6,

2016 and June 1, 2016, whereupon the matter was released from the foreclosure conference part.

9. Plaintiff filed a motion for Summary Judgment on or about May 15, 2018. Plaintiff's

motion was thereafter granted on October 31, 2018 and entered on or about November 9, 2018. A copy

of the decision is attached as Exhibit D.

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10. Plaintiff filed its Motion for Judgment of Foreclosure on or about April 11, 2019. The

Judgment of Foreclosure and Sale was signed on June 7, 2019 and entered on June 21, 2019. A copy

of the Judgment of Foreclosure and Sale is annexed hereto as Exhibit E.

11. A Foreclosure Sale is now scheduled for September 16, 2019 at 11:30 a.m.

L PLAINTIFF FAILED TO EFFECTUATE SERVICE UPON DEFENDANT
PILRSUANT TO CPLR 308

12. Plaintiff failed to properly serve the Defendant with service, in that the Defendant was

not personally served, or otherwise served per the requirements of the NY CPLR 308, thereby denying

the Defendant due process in this matter.

13. Defendant Joseph Baldi primarily resides at 2728 Thomson Avenue, Unit 248, Long

Island City, NY 11101 and has publicly lived there since 2012, firstas a tenant and later as the owner of

the premises. (Annexed hereto as Exhibit F is documentation regarding Mr. Baldi's
supporting

maintenance of the apartment in Long Island City.)

14. Pursuant to one of the Plaintiff's affidavits of service, the process server allegedly

completing service of the Summons and Complaint upon Joseph Baldi on October 29, 2014 at 3 Cattle

Walk, East Hampton, NY 11937 after attempting service on October 8, 2014, October 23, 2014 and

October 28, 2014. (Annexed hereto as Exhibit G are the Affidavit of Service.)

15. Defendant alleges that the process server did not actually complete proper service upon

him.

16. In this case, service under CPLR and was improper Pursuant to CPLR
308(1) 308(2)

308(1) and 308(2) personal service upon a natural person is as follows:

Personal service upon a natural person shall be made by any of the following
methods:

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1. By delivering the summons within the state to the person to be served; or

2. By delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of abode of
the person to be served and by either mailing the summons to the person to be served
at his or her last known residence or by mailing the summons first class mail to
by
the person to be served at his or her actual place of business in an envelope bearing
confidential"
the legend "personal and and not on the outside thereof,
indicating by
return address or otherwise, that the communication is from an attorney or concerns
an action against the person to be served, such and to be effected
delivery mailing
within twenty days of each other; proof of such service shall be filed with the clerk
of the court designated in the summons within days of either such or
twenty delivery
mailing, whichever is effected later; service shall be complete ten days after such

filing; proof of service shall identify such person of suitable age and discretion and
state the date, time and place of service, except in matrimonial actions where service
hereunder may be made pursuant to an order made in accordance with the provisions
of subdivision a of section two hundred thirty-two of the domestic relations law.

17. While it appears that Plaintiff attempted service upon the Defendant the
by affixing

summons and complaint to the door of the property located at 3 Cattle Walk, East Hampton, NY 11937,

Defendant Joseph Baldi was not aware of this service. He was not served a at his place or
copy dwelling

usual place of abode in Island as required. Defendant had no of that Plaintiff
Long City way knowing

was attempting service of the Summons & Complaint.

18. Based upon such alleged service of process, the alleged service of process is defective,

and the Court lacks jurisdiction over the Defendant.

19. Since the service of the summons and complaint Defendant has not received service of

the summons and complaint at her place or usual place of and therefore, service has
"dwelling abode",

not been completed pursuant to CPLR 308.

20. Accordingly, the Court lacks jurisdiction over the Defendant due to Plaintiff failure to

effectuate proper service.

21. Courts in this jurisdiction held that itis "axiomatic that the failure to serve process in an

action leaves the court without personal jurisdiction over the and all subsequent proceedings
defendant,

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void."
are thereby rendered null and McMullen v. Arnone, 79 A.D.2d 496, 499, 437 N.Y.S.2d 373 (2nd

Dept. 1981). Moreover, tenants who reside in the premises subject to a foreclosure action are necessary

parties to said action and must allbe served pursuant to NY CPLR 308. See, Polish Nat. Alliance v.

White Eagle Hall Co., 98 A.D.2d 400, 404, 470 N.Y.S.2d 642 (2nd Dept. 1983); Flushing Say. Bank v.

CCN Realty Corp., 73 A.D.2d 945, 424 N.Y.S.2d 27 (2nd Dept. 1980).

22. NY CPLR 308(1) provides that personal jurisdiction is obtained over the defendant ifthe

summons is delivered within the state to the person to be served. NY CPLR 308(2) provides that the

person might be served by delivery of the summons to the person of suitable age and discretion and

subsequent mailing of the papers to the person's dwelling or usual place of adobe. See N.Y. C.P.L.R.

308(1) and 308(2).

23. CPLR 308(2) requires strict compliance with the service requirements and even if the

defendant becomes aware of the pending action that would not be sufficient to cure service defect. See,

Banker's Trust Co. of Cal. N.A. v. Tsoukas, 303 A.D.2d 343, 756 N.Y.S.2d 92 (2nd Dept. 2003); Bank

of America National Trust & Savings v. Herrick, 233 A.D.2d 35, 650 N.Y.S.2d 754 (2nd Dept. 1994);

Raschel v. Rish, 69 N.Y.2d 694 (1986); Feinstein v. Bergner, 48 N.Y.2d 234 (1979).

24. Therefore, given the lack of Jurisdiction, this Court should grant Defendant's Order to

Show Cause, and stay the sale of the sale of the subject premises until a determination can be reached.

II. DEFENDANT'S JURISIDICTIONAL DEFENSES ARE NOT WAIVED

25. Because the Defendant did not answer the Summons & Complaint and dispute service of

process, he did not waive his rights to assert jurisdictional defenses including lack of subject matter

jurisdiction.

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26. The Defendant was never served and was not made aware of this foreclosure action at the

time of the alleged service of the Summons and Complaint and therefore did not answer the complaint,

however the Defendant does not waive jurisdictional defenses by not answering.

27. Cases hold that waiver of such rights which only occurs when an answer was filed which

does not contain certain defenses. In the matter of Deutsche Bank Nat. Trust Co. v. McRae (27 Misc.3d

247, 894 N.Y.S.2d 720, 2010 N.Y. Slip Op. 20020), the Plaintiff brought a motion for an order of

reference where the defendant had failed to interpose an answer. The Plaintiff brought a motion to

reargue after the motion for an order of reference was denied without prejudice as the Plaintiff had failed

to submit evidence of proper assignment. Upon reargument, the court affirmed itsprior order and held

that:

"Although recent decisions by the Second Department have held that a defendant waives

standing where it isnot raised in the answer or pre-answer motion to dismiss (see, Wells Fargo
[2nd
Bank Minn. V. Mastropaolo, 42 A.D. 3d 239, 244, 837 N.Y.S. 2d 247 Dept. 2007]; HSBC
[2nd
Bank USA v. Dammond, 59 A.D.3d 679, 680, 875 N.Y.S.2d 490 Dept.2009]; Countrywide
[2nd
Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625, 883 N.Y.S.2d 135 Dept.2009])), those
cases are distinguishable. In both Mastropaolo and Delphonse, the defendants filed answers

containing either counterclaims or affirmative defenses without asserting a standing defense [see,
Mastropaolo 42 A.D. 3d at 240, 837 N.Y.S. 2d 247; Delphonse, 64 A.D. 3d at 625, 883 N.Y.S.
2d 135]. In so doing, the defendants acknowledged that the plaintiff was a proper party for the
prosecution of these foreclosure actions. By stark contrast, Defendant has not appeared or
standing..."
filed an answer and therefore has not waived the right to challenge Plaintiff's
(emphasis added)

28. In the similar matter of Citigroup Global Markets Realty Corp. v. Randolph Bowling ( 25

Misc.3d 1244(A), 2009 WL 4893940 (N.Y.Sup.)) the Plaintiffhere also moved for an Order ofReference

where the Court raised the question of service and in the absence of any appearañce by the
standing

defendant and dismissed the action without prejudice, sua sponte. Judge Carolyn E. Demarest ruled:

"Although recent decisions by the Second Department have held that a defendant waives
the standing defense where it is not raised in the answer or pre-answer motion to dismiss (see Wells
Fargo Bank Minn. V. Mastropaolo, 42 A.D. 3d 239, 244 [2d Dept 2007]; HSBC Bank USA v. Dammond,
59 A.D.3d 679, 680 [2d Dept 2009]; Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624,
625[2d Dept 2009] ), those cases are distinguishable from the present matter. In both Wells Fargo V.

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Mastropaolo and Countrywide v. Delphonse, the defendant filed answers containing either couriterclaims
or affirmative defenses without a defense (see Mastropaolo, 42 AD3d at 240;
asserting standing
Delphonse 64 AD3d at 625). In so doing, those defendants tacitly acknowledged that the plaintiff was a
proper party for the prosecution of those foreclosure actions. In the present action, defcedsñt has not
appeared or filed an answer and has therefore not waived the right to challenge plaintiff's
standing. Particularly significant is the observation in Dammond that itwas that the respondent was
served"
personally and the defendant did not raise the standing defense until "immediately prior to the
property"
date scheduled for the sale of the (Dammond, 59 AD3d at 680). In the present action, the
defendant has not been personally served and, as discussed supra, it is the defendant even had
unlikely
notice of this foreclosure action as the plaintiff did not serve the summons, complaint, or the present
..."
motion on the defendant (emphasis added).

29. Therefore, based on recent caselaw, the serious jurisdictional objectiom to the Plaintiff's

standing are not waived and need to be considered this Court. Accordingly, the Defendant has
by

retained this office for the defense of this foreclosure action and propose the late Answer by the

Defendant. (Annexed hereto as Exhibit H is Defendant's Proposed Answer).

III. DEFENDANTS MERITORIOUS DEFENSES SHOULD BE CONSIDERED ON
THE MERITS OF PLAINTIFF'S LACK OF STANDING AND THE DEFENDANT
SHOULD BE ALLOWED DISCOVERY

30. In order to pursue a residential foreclosure action, the Plaintiff needs to show that ithas

standing.

31. The Defendant did not waive as a meritorious defense.
standing

32. To show standing the Plaintiff must demonstrate documentation a valid chain of
showing

mortgage ownership allowing itto assert that the Plaintiff has the undisputable right to be the only party

before the Court entitled to the requested relief.

33. "Standing requires an inquiry into whether a litigant has 'an interest . .. in the lawsuit

request'"
that the law will recognize as a sufficient predicate for the issue at the litigant's
determining

(Midland Mortg. Co. v Imtiaz, 110 AD3d 773, 773 [2d Dept. Caprer v Nussbaum, 36
2013], quoting

AD3d 176, 182 [2d Dept. 2006] ; see also U.S. Bank Natl. Assn. v Sharif 89 AD2d 723, 724 [2d Dept.

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2011] ["foreclosure of a mortgage may not be brought by one who has no title to it"], quoting Kluge v

Fugazy, 145 AD2d 537, 538 [2d Dept. 1988]). "In a mortgage foreclosure action, a plaintiff has standing

where it is both the holder or assignee of the subject mortgage and the holder or assignee of the

commenced"
underlying note at the time the action is (Imtiaz, 110 AD3d at 773, quoting Bank of N.Y. v

Silverberg, 86 AD3d 274, 279 [2d Dept. 2011]; Homecomings Financial, LLC v Guldi, 108 AD3d 506,

507-08 [2d Dept. 2013]; see U.S. Bank N.A. v Dellarmo, 94 AD3d 746, 748 [2d Dept. 2012]; U.S. Bank,

N.A. v Collymore, 68 AD3d 752 [2d Dept. 2009). To show status as holder of the note, the plaintiff must

show that ithad physical possession of the note, with appropriate endorsements, at the time the action

commenced (see UCC 3-104; Dellarmo, 94 AD3d at 749-50; Mortgage Elec. Registration Sys., Inc. v

Coakley, 41 AD3d 674 [2d Dept. 2007]).

34. The Plaintiff has not produced proof that it is in possession of all the loan documents.

The Plaintiff does not overcome this problem by assertion that itholds the original loan documents since

the copies given by the Plaintiff as proof òf its are and appeared to be copied from other
standing blurry

copies.

35. Therefore, Defendant's Order to Show Cause should be granted.

IV. DEFENDANT HAS REASONABLE EXCUSE FOR EXTENSION TO FILE AN ANSWER

36. CPLR 2004. Extensions of time generally. Except where otherwise expressly

prescribed by law, the court may extend the time fixed by statute, rule or order for doing any act,
any

upon such terms as may be just and upon good cause shown, whether the application for extension is

made before or after the expiration of the time fixed.

default"
37. Pursuant to §5015 (a)(1) a judgment can be set aside based upon "excusable

and therefore this Court should vacate the default judgment based on lack of notice.

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38. CPLR 5105 (1)(a) which deals with relief from judgment or order states:

(a) On motion. The court which rendered a judgment or order may relieve a party

from itupon such terms as may be just, on motion of any interested party with

such notice as the court may direct, upon the ground of:

1. excusable default, if such motion is made within one year after service of a

copy of the judgment or order with written notice of its entry upon the moving

party or , if the moving party has entered the judgment or order, within one

year after such entry;

(2nd
39. As stated Swensen v MV Transp., Inc., 89 A.D. 924; 933 NYS2d 96 Dept. 2011) to

vacate a default in opposing summary judgment motion, the defaulting party must demonstrate under

CPLR 5015(a)(1) a reasonable excuse for the defaults in opposing the motion and potentially meritorious

opposition to the motion. As stated in Swensen:

To vacate his default in opposing the motion of the defendants MV
Transportation, Inc., and Jeffrey Salley (hereinafter together the

appellants), the plaintiff was required to demonstrate a reasonable excuse
for the default in opposing the motion and a potentially meritorious
opposition to the motion (see CPLR 5015 [a] [1]; Ogunmoyin v 1515

Broadway Fee Owner, LLC, 85 AD3d 991 [2011]; Legaretta v Ekhstor,
74 AD3d 899 [2010] ; Rivera v Komor, 69 AD3d 833 [2010]; Nowell v
NYU Med. Ctr., 55 AD3d 573 [2008]). The determination of what
constitutes a reasonable excuse lieswithin the Supreme Court's discretion
(see White v Incorporated Vil. of Hempstead, 41 AD3d 709, 710 [2007]),
and the Supreme Court has the discretion to accept law office failure as a
reasonable excuse (see CPLR 2005) where that claim is supported by a
credible"
"detailed and explanation of the default or defaults at issue

(Henry v Kuveke, 9 AD3d 476, 479 [2004]).

40. The determination of what constitutes reasonable excuse for default lies within the trial

court's discretion. As in Swenson, the Court stated:

Here, the plaintiffs counsel provided a detailed and credible explanation
for his default in this matter, which included various acts of misconduct
and deception by his former associate attorney who worked on the
plaintiff s matter. The plaintiff also demonstrated a potentially meritorious
appellants'
opposition to the motion for summary judgment.

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683' 2"
Also see Eastern Sav. Bank FSB v Charles 103 46 A.D.3d 959 N.Y.S.2d 704 De t

~2013,' 2"
Green A leM t.Cor . vAronis 46A.D.3d669 865 N.Y.S.2d 355 D t2008'Levi

2"
v. Levi 46A.D.3d 519 520 848 N.Y;S.2d 228 De t2007.

41. Here, the Defendant has stated that he has primarily in Long Island City since 2012. See

Exhibit F.

42. Therefore, given the fact that the Plaintiff would not be prejudiced by allowing Defendant

to interpose an Answer, and Defendant's Order to Show Cause should be granted.

V. LACK OF STANDING

43. In order to pursue a residential foreclosure action, the Plaintiff needs to show that it has

standing.

44. "Standing requires an inquiry into whether a litigant has 'an interest... in the lawsuit

request'"
that the law will recognize as a sufficient predicate for determining the issue at the litigant's

(Midland Mortg. Co. v Imtiaz, 110 AD3d 773, 773 [2d Dept. 2013], quoting Caprer v Nussbaum, 36

AD3d 176, 182 [2d Dept. 2006]; see also U.S. Bank Natl. Assn. v Sharif, 89 AD2d 723, 724 [2d Dept.

[" it"
2011] foreclosure of a mortgage may not be brought by one who has no title to ], quoting Kluge v

Fugazy, 145 AD2d 537, 538 [2d Dept. 1988]). "In a mortgage foreclosure action, a ha standing

where it is both the holder or assignee of the subject mortgage and the holder or assignee of the

commenced"
underlying note at the time the action is (Imtiaz, 110 AD3d at 773, quoting Bank of N.Y. v

Silverberg, 86 AD3d 274, 279 [2d Dept. 2011]; Homecomings Financial, LLC v Guldi, 108 AD3d 506,

507-08 [2d Dept. 2013]; see US. BankNA. v Dellarmo, 94 AD3d 746, 748 [2d Dept. 2012]; US, Bank,

NA. v Collymore, 68 AD3d 752 [2d Dept. 2009). To show status as holder of the note, the plaintiff must

show that it had physical possession of the note, with appropriate endorsements, at the time the action

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commenced (see UCC 3-104; Dellarmo, 94 AD3d at 749-50; Mortgage Elec. Registration Sys., Inc. v

Coakley, 41 AD3d 674 [2d Dept. 2007]).

45. The Plaintiff has not produced proof that itobtained the loan through a proper assignment

or that ithas held the original loan documents on the date that this litigation started. As will be shown

the assignment to the Plaintiff is defective. The Plaintiff does not overcome this problem by assertion

that it holds the original loan documents since the copies given the Plaintiff as proof of its
by standing

are blurry and appeared to be copied from other copies.

46. One element in proving is proof that the Plaintiff has actual physical possession
standing

of original loan documents.

47. The defects with the Plaintiff's alleged are as follows:
standing

a. Lack ofProduction of Originals

48. As stated above the Plaintiff has not produced the actual originals at the Defendant's

attorney's office as required by Discovery Demands.

49. The Defendant has wishes to engage in where it seeks to inspect the loan
discovery

documents kept by the Plaintiff to ascertain whether the Plaintiff is in possession of the originals.

50. As quoted from EMC Mortgage v. Gass, 37 Misc. 3d 678, 953 NYS2d 455, 2012 2012

NY Slip Op 22252 (August 29, 2012):

"Standing requires an inquiry into whether a litigant has an interest in the
lawsuit that the law will recognize as a sufficient predicate for determining
request"
the issue at the litigant's (Bank of NY v. Silverberg, 86 AD3d
274, 279 [internal quotations and citations omitted.]). A plaintiff in a
foreclosure action must be either the holder or assignee of the note and
mortgage to have standing to commence the action (HSBC Bank v.

Hernandez, 92 AD3d 843; LaSalle Bank National Assoc. v. Ahearn, 59
AD3d 911). An assignment of the mortgage without an assignment or
physical delivery of the note is a nullity.

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51. In US Bank v. Collymore, 68 A.D.3d 752, 890 NYS 2d 578, 2009 NY Slip Op 09019

2nd
(Appel. Div. December 1, 2009) the Appellate Division denied the plaintiff Summary Judgment

and held that genuine issues of fact existed as to whether the bank had standing to bring the foreclosure

action. The Court in Collymore stated:

Where, as here, standing is put into issue by the defendant, the plaintiff must prove

its standing in order to be entitled to relief (see Wells Fargo Bank Minn., N.A. v

Mastropaolo, 42 AD3d 239, 242 [2007] ; TPZ Corp. v Dabbs, 25 AD3d 787, 789

[2006] ; see also Society ofPlastics Indus. v County o fSu ffolk, 77 NY2d 761, 769 [1991]).
In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or

assignee of the subject mortgage and the holder or assignee of the underlying note at the

time the action is commenced (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41

AD3d 674 [2007]; Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547

[20031; 754*754 First Trust Natl. Assn. v Meisels,234 AD2d 414 [1996]). Where a

mortgage is represented by a bond or other instrument, an assignment of the mortgage
without assignment of the underlying note or bond is a nullity (see Merritt v

Bartholick, 36 NY 44, 45 [1867] ; Kluge v Fugaz y, 145 AD2d 537, 538 [1988]). Either a

written assignment of the underlying note or the physical delivery of the note prior to the

commencement of the foreclosure action is sufficient to transfer the obligation, and the

mortgage passes with the debt as an inseparable incident (see Weaver Hardware Co. v

Solomovitz,235 NY 321 [1923]; Payne v Wilson, 74 NY 348, 354-355 [1878] ; LaSalle
Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912 [2009] ; Mortgage Elec. Registration Sys.,
Inc. v Coakley, 41 AD3d at 674; Flyer v Sullivan, 284 App Div 697, 699 [1954]).

52. Since the alternative to an assignment of the note is a physical delivery of the original

note to the Plaintiff prior to the commencement of the foreclosure action, itmay also be sufficient to

assert standing. However, here there is no proof that the Plaintiff is in possession of the original loan.

53. Here the Plaintiff makes no effort to show that itis in possession of the original loan

documents and all evidence which are blurred and reduced copies of the loan documents. This shows

that the Plaintiff is only in possession of copies of such documents.

54. Therefore, given lack of production of the original loan documents, Defendant's Order to

Show Cause should be granted.

b. Lack_of Notice o f_Assignnien_t

55. The Defendant did not receive notice of the assignments.

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56. As part of Helping Families Save Their Home Act (the "Act"), congress amended Section

131 of the Trust in Lending Act (15USC §1641)("TILA") to include a new provision (Section 131(g))

that requires the assignee of a mortgage loan to notify a consumer borrower that his loan has been

transferred. This notice requirement became effective immediately upon the President's signature on

May 19, 2009, so that steps to implement it should be taken immediately.

57. Pursuant to 131(g), of the Act the new owner or assignee of a mortgage loan must

notify the borrower in writing within 30 days after his mortgage loan is sold or otherwise transferred.

The notice must include:

i. The assignee's identity, address and phone number

ii. The date of transfer

iii. Contact information for an agent or party havin

Case Info

Judge

Thomas Whelan Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

September 13, 2019

Case Filing Date

October 07, 2014

County

Parties

AMERICAN EXPRESS CENTURION BANK Defendant
BORISKIN, SARA Z. Attorney for the Plaintiff
BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER Defendant
Joseph R. Baldi JR. A/K/A JOSEPH R. BALDI A/K/A JOSEPH BALDI Defendant
LEOPOLD, SAUL O Attorney for the Plaintiff
MIDLAND FUNDING LLC Defendant
PRIDE ACQUISITIONS LLC Defendant
Stiene, Charles Attorney for the Plaintiff
U.S. BANK NA, AS TRUSTEE, FOR THE CHASE MORTGAGE FINANCE CORPORATION MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-S1 Plaintiff
WEISS, RONALD D. Attorney for the Defendants
JENNIFER NOVEMBRE Attorney
GABRIELLE WEGLEIN Attorney
JAMES ROBERTSON Attorney
HEINO MULLER Attorney
PATRICK FEDUN Attorneys for Plaintiffs

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