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Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

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Present: HONORABLE FREDERICK D.R. SAMPSON
Justice

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EMC MORTGAGE CORP., IAS PART 31

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Plaintiff(s), Index
No.: 24351/07

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Motion Calendar
-against- Date: September 30, 2010

Cal. No.: 13

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Seq. No.: 3
JEANETTA TOUSSAINT,

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Defendant(s).
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HON. FREDERICK D.R. SAMPSON

The following papers numbered 1 to 6 read on defendant’s Jennetta Toussant Order to


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Show Cause for an Order vacating the Judgment of Foreclosure and Sale.

PAPERS
NUMBERED
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Order to Show Cause, Affidavit, Exhibits..................................... 1-3


Opposing Affirmation, Exhibits.................................................... 4-5
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Reply Affirmation.......................................................................... 6
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Upon the foregoing papers, the Court grants those branches of defendant Toussants pro se
Order to Show Cause which sought to vacate the Judgment of Foreclosure and Sale, based on
plaintiff’s lack of standing and dismisses the complaint.
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This action was commencing by filing the Lis Pendens, Summons and Complaint with the
Queens County Clerk on October 1, 2007. The assignment of the mortgage to plaintiff was executed
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on October 2, 2007 and recited that it was effective September 25, 2007.

In order to commence a foreclosure action, plaintiff must have a legal and equitable interest
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in the subject mortgage (Wells Fargo Bank v Machine 69 AD3rd 204). Here, the subject mortgage
was not assigned until October 2, 2007, which was after the action was commenced on October 1,
2007. A retroactive assignment to September 25, 2007 cannot be used to confer standing upon the
foreclosure action commenced prior to the execution of the assignment. (Countrywide Home Loans
v Giess 68 AD3rd 709).

If an assignment is in writing, the execution date is generally controlling and a written


assignment claiming an earlier effective date is deficient unless accompanied by proof that the
physical delivery of the note and mortgage was previously effectuated (Wells Fargo Bank v

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Marchione Supra). In the instant action, this has not been demonstrated.

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The pro se defendant, in her supporting affidavit (defense#1) challenged the right of the
holder of the assigned mortgage to bring a foreclosure action and effect service.

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The plaintiff, not being the holder of the assignment at the time the action was commenced,
it did not have standing to commence this action. Accordingly, the Court vacates the Judgment of
Foreclosure and Sale, which the County Clerks minutes indicate was executed on April 9, 2009 and

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dismisses the complaint.

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Dated: January 6, 2011 ____________________________
J.S.C.
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