SJIORT FORM ORDER

INDEX
NO.: 14720-09

SUPREME COURT - STATE OF NEW YORK

IAS PART 39 - SUFFOLK COUNTY

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PRESENT: Hon. DENISE F. MOLIA

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Justice of the Supreme Court

ONEWEST BANK, FSB AS SUCCESSOR IN APPLICATION FOR AN

INTEREST TO INDYMAC‘ BANK, FSB ORDER OF REFERENCE
#002 - MD

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Plaintiff,

McCABE, WEISBERG and

-against- CONWAY, P.C.
Attorneys for Plaintiff

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JESUS GARCIA, 145 Huguenot Street
MORTGAGE ELECTRONIC REGISTRATION Suite 3 10
SYSTEMS, INC., AS NOMINEE FOR INDYMAC New Rochelle. N. Y. 10801
BANK, FSB,
and “JOHN DOE # 1 through “JOHN DOE # 10”,
the last 10 names being fictitious and unknown to
plaintiff, the persons or parties intended being
ure
the persons or parties, if any, having or claiming
an interest in or lien upon the mortgaged premises
described in the verified complaint,

Defendants,
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Upon the following papers on this exparte application for an order of reference filed on June
15,2009: Proposed order of reference, affirmation of plaintiffs counsel Jason E. Brooks, Esq., dated
June 2,2009, with supporting exhibits A-C, and upon due consideration and deliberation, it is
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ORDERED that plaintiffs application for an order of reference is denied, without prejudice,
for the following reasons:

This is a residential mortgage foreclosure action that was commenced on April 17, 2009,
concerning a mortgage given by defendant-mortgagor Jesus Garcia on real property located at 27
Pamela Road, Brentwood, New York. Plaintiff now seeks an order of reference pursuant to RPAPL
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1321.
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 OneWest v Garcia Page 2
Index # 14720-09

According to plaintiffs unverified complaint, annexed to plaintiffs application as exhibit A (along

with its own sub-exhibits A-D), defendant Garcia allegedly executed a promissory note on May 10,
2006 in the amount of $404,800 in favor of IndyMac Bank FSB. In addition, the complaint alleges that

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b‘[florthe purpose of securing payment for the said indebtedness”, defendant Garcia executed a
mortgage on the same day, which was recorded with the Suffolk County Clerk’s Office on June 13,
2006 in liber 2 13 17, page 86. The complaint makes no further allegations regarding any other notes
or mortgages.

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The affirmation of attorney Jason E. Brooks in support of plaintiffs application lacks, among

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other things, any reference or description of a note, mortgage, or alleged amount due from defendant-
mortgagor. ’The affidavit of Roger Stotts, an officer of plaintiff, which is purportedly based upon
personal knowledge of the relevant books and records of plaintiffs, likewise does not contain a
description of the note and mortgage sued upon, other than referencing a “note and/or mortgage for
$404,800” and an “unpaid balance of $393,306.75.”

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The supporting documents provided by plaintiff (attached as exhibits to the complaint) include
the following three documents, all dated May 10,2006 and all with regard to the subject premises: 1.)
an Adjustable Rate Note signed by defendant Garcia in the principal amount of $368,000; 2.) a
Mortgage, securing a note in the amount of $368,000, with a handwritten asterisk and note stating “not
to exceed maximum neg[ative] am[ortization] amount of $404,8000;” 3 .) a Mortgage (Secondary

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Lien), securing a note in the amount of $46,000 (recorded June 13,2006 in liber 2 1317, page 87). (It
is noted parenthetically that the face amounts of the notes total $414,000).

None of plaintiffs allegations or affirmations make reference to a “Mortgage (Secondary

Lien)”. Moreover, plaintiffs supporting documentation does not include, as alleged in the complaint,
a note in the amount of $404,800, nor does it include a note in the amount of $46,000 as referenced
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in the Mortgage(Sec0ndary Lien). The single note which is provided bears aprincipal amount less than
the principal amount claimed by plaintiff.

Plaintiffs failure to provide a note or notes reflecting the amount it claims is due from
defendant-mortgagor precludes the Court from granting the relief requested. It is well settled that in
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order to make a prima facie case in a foreclosure action, the plaintiff must show the existence of the
note and mortgage and that it is the owner of same. Ocwen Fed. Bank FSB v Miffer,18 AD3d 527
(2d Dept 2005); MERS v Coakfey,41 AD3d 674 (2d Dept 2007); Kluge v Fugazy, 145 AD2d 537 (2d
Dept 1988). The note provided here reflects only partial proof of the amount allegedly owed.
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Additionally, with regard to the proof necessary on a motion for default in general, CPLR
321 5(f) requires that the applicant “shall file ... proof of the facts constituting the claim, the default and
the amount due by affidavit ...” Neither the affirmation of Jason E. Brooks nor the affidavit of Roger
Stotts satisfies that requirement. Such failure is particularly striking in view of the confusion present
here by virtue of allegations which are inconsistent with documents, and documents which are
submitted without explanation.
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 OneWest v Garcia Page 3
Index # 14720109

Accordingly, the Court denies the application for an order of reference. Plaintiff shall promptly
serve a copy of this order with notice of entry upon all parties, if any, who have appeared in this action.

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Dated:

Denise F. Molia, J.S.C.

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