Decided on October 6, 2009 Supreme Court, Richmond County

Deutsche Bank National Trust Company, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CARRINGTON MORTGAGE LOAN TRUST 2005-OPT2, ASSET-BACKED CERTIFICATES, SERIES 2005-OPT2, Plaintiff against Debra Abbate, CARMELA ABBATE, KIM FIORENTINO, BOCCE COURT HOMEOWNERS ASSOCIATION, INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK CITY PARKING VIOLATIONS BUREAU, and "JOHN DOE No. 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 Mortgaged premises described in the Complaint, Defendants.


Plaintiff was represented by the law firm of Frenkel Lambert Weiss & Weisman. Defendant was represented by Robert E. Brown, Esq. Joseph J. Maltese, J.

The defendants Kim Fiorentino, Debra Abbate, and Carmella Abbate's motion to dismiss the plaintiff's complaint is granted in its entirety.

2007 respectively are permissible."[FN4] The Appellate Division. Both assignments. This court . The mortgage was originated by Suntrust Mortgage Inc. contained a clause expressing their intention to be retroactively effective: the first one to date back to February 24. The plaintiff filed the Summons. 2008 and April 8. and the second one to February 28. Third Department has similarly ruled that an assignee of a mortgage does not have a right or standing to foreclose a mortgage unless the assignment is complete at the time of commencing the action. 2007. ("Suntrust") and was recorded in the Office of the Clerk of Richmond County on April 26. 2007. 2007 assignments setting the effective date of the assignment to February 24.[FN5] An assignment takes the form of a writing or occurs through the physical delivery of the mortgage. . Staten Island. 2005. Complaint. which were recorded on July 23. 2007. 2007.[FN1] However. upon the property located at 25 Bocce Court. 2005 and February 28. 2007. Suntrust assigned the first mortgage on this property to Option One Mortgage Corporation. which was executed on July 6. 2005. Kugazy the well established law that "foreclosure of a mortgage may not be brought by one who has no title to it .[FN7] Retroactive Assignments of a Mortgage are Invalid The first issue this court must resolve is whether the clauses in the July 6. 2007 and March 7.This is an action to foreclose a mortgage dated February 24. Second Department ruled and reiterated in Kluge v. This court also granted two orders to show cause to stay the foreclosure on January 9. [FN3] Discussion The Appellate Division. the assignment of the mortgage is a nullity. . 2007.[FN2] On November 19. New York. . this court issued an order of foreclosure and sale on the subject property. Another assignment to plaintiff Deutsche Bank National Trust Company ("Deutsche Bank") was executed on March 7. 2008. and Notice of Pendency on March [*2]1.[FN6] Absent such transfer. 2005.

was the holder of the mortgage and note. this court agrees with its sister courts and finds that the retroactive language contained in the July 26. trial courts have been faced with the situation where the plaintiff commenced a [*3]foreclosure action before the assignment of the mortgage. This court therefore rules that it lacks jurisdiction over the subject matter when the plaintiff has no title to the mortgage at the time that it commenced the action. . 2007 and March 7. .[FN8] In those cases the trial courts have held. took physical delivery of the mortgage and note. .[FN9] In this case. where there is no evidence that plaintiff. the court must ascertain that the proper party requests an adjudication of a dispute. prior to commencing the foreclosure action. 2007. absent a physical or written transfer before the filing of a complaint. retroactive assignments are invalid. "standing . the plaintiff failed to offer any admissible evidence demonstrating that they became assignees to the mortgage on or before March 1. 2007 assignments are ineffective. as such. or was conveyed the mortgage and note by written assignment. Affirmative Defense of Standing At the outset of any litigation. The next issue this court must resolve is whether the defendants waived subject matter jurisdiction because they did not raise that issue in their prior applications to this court.rules that. . Recently.[FN10] As the first step of justiciability. . an assignment's language purporting to give it retroactive effect prior to the date of the commencement of the action is insufficient to establish the plaintiff's requisite standing.

which rightfully reversed the decision 18 months later on May 29."[FN17] Erroneously."[FN16] On November 7. that the plaintiff's summary judgment motion is denied in its entirety and that this action is dismissed with prejudice.[FN15] A plaintiff who has no standing in an action is subject to a jurisdictional dismissal since (1) courts have jurisdiction only over controversies that involve the plaintiff. Instead."[FN11] Standing is a threshold issue. the plaintiff. [the Bank] had no standing to bring the action and it must be dismissed. in the case of Wells Fargo Bank Minn. Mastropaolo ["Mastropaolo"]."[FN14] Where the plaintiff has no legal or equitable interest in a mortgage."[FN18] This Court should have ordered that this matter was dismissed without prejudice. N. the plaintiff appealed the decision to the Appellate Division. "the pathway to the courthouse is blocked. the plaintiff has no foundation in law or in fact. 2007 based upon the dismissal with prejudice as opposed to a dismissal without prejudice to refile the . this court found that "Insofar as the plaintiff was not the legal titleholder to the mortgage at the time the action was commenced.A. if it is denied. which would have given the plaintiff the right to start the action again after it had acquired title to the note and mortgage. Unfortunately. (2) a plaintiff found to lack "standing is not involved in a sue is critical to the proper functioning of the judicial system. did not seek a motion to reargue that error. 2005. this court "[o]rdered. Second Department. and (3) the courts therefore have no jurisdiction of the case when such plaintiff purports to bring it." [FN12] The doctrine of standing is designed to "ensure that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable [*4]of judicial resolution. v."[FN13] "Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request. which would have been corrected promptly.

action. The defendants are consequently entitled to a dismissal without prejudice because the court lacked jurisdiction over a non-existent controversy. Since the plaintiff filed this action to foreclose the mortgage before it had title to it. this court is again faced with similar facts.[FN20] In other words. in what appears to be dicta. Clearly. This has always been the case. a defense can be raised at any time and is not waivable. Deutsche Bank had no legal foundation to foreclose a mortgage in which it had no interest at the time of filing the summons and complaint. [*5] In the instant case. The court further stated that the failure of the initial pro se defendant to make a pre-answer motion or a motion to dismiss. having title to the subject matter (the mortgage) is a condition precedent to the right to sue on that mortgage. but since the Appellate Division. Therefore. for there to be a cause of action. At the time that the plaintiff improperly commenced the action. Whenever a court lacks jurisdiction. However. the court went on to discuss whether lack of standing is tantamount to lack of subject matter jurisdiction. the court lacked subject matter jurisdiction to adjudicate the present case. which raise the issue that the Bank must have title to the mortgage before it can sue the defendant. At the time that the action was commenced. there needs to be an injury. the pathway to the Courthouse should have been blocked. Lack of a plaintiff's interest at the beginning of the action strips the court's power to adjudicate over the action.[FN19] Lack of interest and controversy is protected by the umbrella of subject matter jurisdiction. the instant plaintiff suffered no injury and had no interest in the controversy. that issue has been clouded. there was no controversy between the existing parties when the action commenced. the defense of lack of standing would be waived. But the Appellate Division did not address the issue of subject matter jurisdiction. . Second Department's comments in Mastropaolo. which may not be waived.

Bankers Trust Co. that the defendants Kim Fiorentino. Footnote 6: Flyer v. Footnote 4: Kluge v. it is hereby: ORDERED. and Carmella Abbate's motion to dismiss the plaintiff's complaint is granted. 284 AD 697 [1st Dept 1954]. Maltese Justice of the Supreme Court Footnotes Footnote 1: Defendants' exhibit A Footnote 2: Defendants' exhibit C. 145 AD2d 537 [2d Dept 1988]. that the parties and counsel shall appear before this court to further conference this matter on November 20. Debra Abbate. Footnote 3: Plaintiff's exhibits D & F. Fugazy.Accordingly. Footnote 5: LaSalle Bank Natl. ENTER. v Ahearn. v. and it is further ORDERED. Sullivan. 2009 at 11:00AM. Hoovis. 2009 Joseph J. without prejudice to the plaintiff having the right to refile within the time provided by the Statute of Limitations. DATED: October 6. . 59 AD3d 911 [3d Dept 2009]. 263 AD2d 937 [3d Dept 1999]. Assn.

Patterson. Richmond County. index No. 15. Footnote 19: Siegel. Fugazy. Mastropaolo. . Footnote 13: Id. 145 AD2d 537. Evans. 2008 NY Slip Op 52507(U)[Dec. Kluge v. Bank v. at 232 [4th ed]. Durden. J. Footnote 9: Washington Mutual Bank v. Footnote 15: Id. 31 AD3d 278 [1st Dept 2006. 36 AD3d 176 [2006] Footnote 11: Id. 2009 NY Slip Op 50186(U)[Feb. Washington Mutual Bank v. Natl. supra note 4. LLC v. NY Prac § 136. See also. 2005. 2008 NY Slip Op 52507(U)[Dec. Nov. 249 AD2d 243 [1st Dept 1998]. citing Society of Plastics Indus. 22 Misc 3d 1118(A).7. 145 AD2d 537. 2. Catterson. County of Suffolk. 2009 NY Slip Op 50076[U] [2009] citing Saratoga County Chamber of Commerce. Indymac Bank. Nussbaum. FSB v. Pataki... 2008]. See also. 22 Misc 3d 1119(A). Footnote 8: See. Footnote 16: Security Pac. New Century Mortgage Corp. East-Ville Realty Co. Sup Ct. 77 NY2d 761. Footnote 10: Caprer v. 21 Misc 3d 1145(A). Credit-Based Asset Servicing and Securitization. 2009]. 101817/2005. Maltese. Patterson. NY Prac § 136. v. 2009]. cert denied 540 US 1017 [2003]. v.Footnote 7: Kluge v. Footnote 12: Id. Footnote 14: Katz v. dissenting] citing Siegel. Inc. Fugazy. supra note 4. 21 Misc 3d 1145(A). 772 [1991]. at 232 [4th ed]. 2009 NY Slip Op 50175(U)[Feb. Bethley. J. v. 812 [2003].A. 15. 2008].. Footnote 18: Id. Footnote 17: Wells Fargo Bank Minnesota N. 6. 100 NY2d 801. Akitoye. v.

.Footnote 20: Id.

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