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Decision 2

Decision 2

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Published by Foreclosure Fraud
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Published by: Foreclosure Fraud on May 31, 2012
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11/30/2013

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Deutsche Bank Natl. Trust Co. v Vasquez
2012 NY Slip Op 31395(U)May 8, 2012Supreme Court, Nassau CountyDocket Number: 4924/11Judge: Thomas A. AdamsRepublished from New York State Unified CourtSystem's E-Courts Service.Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case.This opinion is uncorrected and not selected for officialpublication.
 
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HON. THOMAS A. ADAMS.
Supreme Cour Justice
TRIAL/IAS, PART 25
NASSAU COUNTYDEUTSCHE BANK NATIONAL TRUST COMPANY ASTRUSTEE FOR THE REGISTERED HOLDERS OFMORGAN STANLEY ABS CAPITAL I
INC. TRUST
2007-HE7 MORTGAGE PASS-
THROUGH CERTIFICATES,
SERIES 2007-
HE7
Plaintiff
(s) ,
MOTION DATE: 1/17/12
INDEX NO.: 4924/11
SEQ. NO.
against-
NELSON VASQUEZ, EDIS VASQUEZ,
PETRO, INC.,
COMMISSIONERS OF THE STATE
INSURACE FUN,
"JOHN DOE #1" through "JOHN DOE #12" et
al,
Defendant (s) .
Motion by defendants Nelson and Edis Vasquez pursuant to CPLR 2221 for
reargument
of this court'
s order dated September 7
2011 which denied defendants' application to vacatea default in timely answering the complaint is granted, and upon reargument the prior order is
vacated and the motion is granted and defendants
' default is excused and defendants
' proposed
answer annexed to the original moving papers as Exhibit "
F" is deemed timely served.
This
action in foreclosure
is brought by plaintiff
Deutsche Bank National Trust
Company as Trustee for the Registered Holders of
Morgan Stanley ABS Capital I Inc.
, Trust2007-
HE7
, Mortgage Pass Through Certificates
, Series 2007-
HE7. The plaintiff Trust holds
securities backed by mortgages
, one of
which secures the
subject propert
located in
Hempstead, New York
, at 664
Wilis
Street. The propert
was purchased by defendants
Nelson Vasquez and Edis Vasquez in 2006
, and was originally encumbered by a mortgage in
the sum of$435
100.
00 in favor lender New Century Mortgage Corporation (New Century).
Acting as nominee for New Century, Mortgage Electronic Registration Systems
, Inc.
(hereafter MERS) recorded the mortgage in January of2007 with the Nassau County Clerk
, and
on November 16,
2009
, again acting as nominee for New Century, electronically assigned the
mortgage to the
plaintiff Trust. The MERS signature affixed to the Assignment is dated January
2011. The County Clerk recording receipt for the Assignment is dated March 30
, 2011. The
first default in payment occurred September 1
2010.
[* 1]
 
- 2 -
Index No. 4924/11
Regarding the authority
ofthe nominee
MERS, the Mortgage states:
MERS" is Mortgage Electronic Registration Systems
, Inc.
MERS is a
separate corporation that is
acting
solely as
nominee
for Lender and
Lender
s successors and assigns. . . FOR
PUROSES OF
RECORDINGTHIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD (italicemphasis supplied).
Defendants defaulted in timely answering the complaint, and on the prior application
sought leave to vacate their default and serve a late answer. By order dated September 7
, 2011
this court denied the motion holding that defendants failed to establish a reasonable excuse for
the default and failed to offer a meritorious defense. They now seek reargument.
The motion for reargument is designed to afford a
part "
an opportunity to establish that
the court overlooked or misapprehended relevant facts or misapplied (a)
controllng principle
oflaw
(Foleyv.
Roche68 AD2d 558
567 (Ist Dept 1979)).
As this court has
overlooked a principle of law, which is discussed below
, the motion for
reargument is granted and the merits of the prior motion are
examined.
When moving to extend the time to answer or to compel the acceptance of
an untimely
answer
, defendants must establish a
reasonable excuse for the default and
demonstrate a
meritorious defense to the action(Maspeth Federal Sav. and Loan Assoc.
v.
McGown
AD3d 890
, 891 (2d Dept 2010)). On the prior motion defendants asserted "
law office failure
to excuse the delay in serving an answer
, and as a proposed
meritorious defense
, asserted
inter-
alia
that plaintiff lacked standing to bring this action, as the Trust
was not an assignee or a
holder of the Mortgage Note at the time this action was commenced.DISCUSSION - STANDING
It is well established that "foreclosure of a mortgage may not be brought by one who has
no title to it and absent transfer
ofthe debt
, the assignment ofthe mortgage is a
nullty"
(Kluge
v.Fugazy,
145 AD2d 537
, 538 (2d Dept
1988)). In answer to defendants
' prior motion
, the
plaintiff Trust for the first time produced a copy of the Adjustable Rate Note dated December
2006 by which defendants Nelson and Edis Vasquez promised to pay $435
100.
00 "
to the
order
" of the New Century
Mortgage Corporation
, the Lender. Plaintiff produced only a copy
the Note which is not indorsed, either to plaintiff or in blank
, and thus has not been negotiated.
Negotiation is necessary to render plaintiff
a "
holder
" as defined by the Uniform Commercial
Code.
At the outset
, it us useful to review the
governing statutes for the rules of
transfer
[* 2]

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