Certified Forensic Loan Auditors, LLC

  Upcoming Classes

Search CFLA's Article Archive:

U.S. Bank N.A. v Friedman | NYSC

Plaintiff having failed to establish that it owned the Note on the date this case was commenced, it does not have standing to maintain this action

stopforeclosurefraud.com | April 1, 2014






LEONARD FRIEDMAN, KARYN FRIEDMAN, NATIONAL CITY BANK, and “JOHN DOE#l” through “JOHN DOE#lO” 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 or lien upon the mortgaged premises described in the complaint, Defendants.


Index No.: 032128/11

In this foreclosure action, the Court, in a Decision and Order dated June 28, 2013, having granted the Plaintiff summary judgment as to the execution and delivery of the Note and Mortgage and the Defendants’ default thereunder, but have denied summary judgment on the issue of Plaintiffs standing- specifically, when the Original Note, indorsed by the original lender, had been delivered to Plaintiff1

– the matter was tried before me on February 28, 2014, and the Plaintiff called as its sole witness, Rashad Blanchard, an employee of Ocwen, which subsequently became the servicer of this loan. Mr. Blanchard testified that Plaintiff had possession of the original indorsed Note based on: 1) his having examined it approximately 30 days ago and 2) that the original indorsed Note had been delivered to Plaintiff on April 16, 2007 based on the records of the original servicer, Well Fargo Bank. As Plaintiff failed to lay a proper foundation for the admission of the Well Fargo Bank records, they are inadmissible hearsay (Unifund CCR Partners v Youngman, 89 AD3d 1377, 1377-78 [4th Dept 2011]; Palisades Collection, LLC v Kedik, 67 AD3d 1329 [4th Dept 2009]; accord JP Morgan Chase Bank, NA. v Rads Group, Inc., 88 AD3d 766 [2d Dept 2011]) and all that has been established is that Plaintiff had possession of the original indorsed Note some 30 days ago – long after this case was commenced. Thus, Plaintiff having failed to establish that it owned the Note on the date this case was commenced, it does not have standing to maintain this action and the Complaint is dismissed on that basis.

This constitutes the decision and order of the Court.
Dated: New City, New York
March 21, 2014

Attorneys for Plaintiff
780 Third Avenue
New York, NY 10017

Attorneys for the Borrowers
134 Rt. 59, Suite A
Suffern, NY 10901

1 With respect to standing, where, as here, a defendant has put standing in issue, the plaintiff must prove its standing, that is that it had been assigned the mortgage and note prior to the commencement of the foreclosure (Deutsche Bank National Trust Company v Haller (100 AD3d 680, 682 [2d Dept 2012]). A valid assignment can be effectuated by a written assignment of the mortgage and note executed by one with authority, or by indorsement and delivery of the note – the mortgage following the note by operation of law (Bank of New York v Silverberg, 86 AD3d 274 [2d Dept 2011]; US. Bank, NA. v Collymore, 68 AD3d 752 [2d Dept 2009]).

Here, the documents show that MERS purported to assign the Note and Mortgage on behalf of ABC to Plaintiff on August 1 7, 2011. As MERS had no apparent authority to assign the Note, this assignment assigned nothing (Bank of New York v Silverberg, 86 AD3d 274 [2d Dept 274 [2d Dept 2011]; Aurora Loan Services, LLC v Weisblum (85 AD3d 95 [2d Dept 2011]). Plaintiff, however, does not now rely on this written assignment but on an assignment by delivery of the Note under an undated indorsement prior to the commencement of the case. In support thereof, Plaintiff has submitted the Note, indorsed by an officer of ABC, and the Affidavit of an Assistant Vice President of American Home who avers, “based on the books and records of Plaintiff and [American Home],” that the indorsed Note had been delivered to Plaintiff “since on or before January 16, 2007.” These records have not been submitted nor an explanation why, if they did, Plaintiff felt the need to do a written assignment in 2011. Deutsche Bank National Trust Company v Haller (100 AD3d 680, 682 [2d Dept 2102]) now requires more stringent proof where a plaintiff is trying to prove standing by delivery of the note under an undated indorsement, particularly where the plaintiff’s conduct has been inconsistent with such asserted prior assignment. Thus, in Haller, where the plaintiff was asserting standing by virtue of a note delivered under an undated indorsement, the Second Department said:

“Here, the evidence submitted by the Plaintiff in support of its motion did not demonstrate that the note was physically delivered to it prior to the comrnencernent of the action. The affidavit from the plaintiffs servicing agent did not give any factual details of a physical delivery of the note and, thus failed to establish that the plaintiff had physical possession of the note prior to commencing this action.”

Download Case PDF.


Back to April 2014 Archive

CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

SEE BELOW- http://www.certifiedforensicloanauditors.com

Call us toll free at 888-758-2352

Bookmark and Share
Facebook Like us on Facebook
Twitter Follow us on Twitter
YouTube View our YouTube Videos
LinkedIn Connect to us on Linkedin
BBB Logo


Contact us or view our Sample Documents & Audits by completing the form below.

  • Reload
  • Should be Empty:


DVD Sets Only $99


FREE Mortgage Fraud Analysis


Order Cutting-Edge Services Now


Quiet Title Packages from Licensed Attorneys


Affiliate Services


CFLA Sponsored Attorney Links


Take-Home Education Package