Federal Home Loan Mtge. Corp.

v Raia (2010 NY Slip Op 51287(U)) Page 1 of 4

[*1]
Federal Home Loan Mtge. Corp. v Raia
2010 NY Slip Op 51287(U)
Decided on July 22, 2010

Nassau Dist Ct
Fairgrieve, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law
§ 431.
This opinion is uncorrected and will not be published in the printed Official
Reports.

Decided on July 22, 2010

District Court of Nassau County, First District

Federal Home Loan Mortgage Corp., Petitioner(s)

against

Paul Raia, "John Doe" Through "Jane Doe", Respondent(s)

SP 002253/10

REPRESENTATION:

Steven J. Baum, P.C., Attorneys for Petitioner, 200 Northpointe Parkway, Suite G, Amherst,
New York 14228, 716-204-2400; Jeffrey A. Seigel, by: Rudolph de Winter, of Counsel to
Volunteer Lawyers Project, Attorneys for Respondent, One Helen Keller Way, Hempstead,
New York 11550, 516-292-8100.

Scott Fairgrieve, J.

Respondent Paul Raia moved for an order on June 1, 2010 pursuant to CPLR § 3211(a)
(1), (3) and (7), dismissing the holdover petition brought against him by Petitioner Federal
Home Loan Mortgage Corporation ("FHLMC"). If the motion is denied, Respondent
requests permission to serve and file an answer within five days after service of the order
with notice of entry pursuant to CPLR § 404(a). FHLMC opposes.

FACTS & PROCEDURAL HISTORY

Petitioner Federal Home Loan Mortgage Corporation has commenced this summary
proceeding as owner and landlord of the premises located at 360 Stewart Avenue, Unit 1E,
Garden City, New York to recover possession from respondent Paul Raia.

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Petitioner alleges the following in its petition:

3.The Petitioner FEDERAL HOME LOAN MORTGAGE CORPORATION was the

lender of monies to Respondent, the owner and/or occupant of the premises known as 360
STEWART AVENUE - UNIT 1E, GARDEN CITY, NY 11530.

4.The aforesaid loan, made to the aforesaid Respondent was secured by a security
agreement pledging the proprietary lease to the aforesaid premises and the associated stock
certificate for 220 shares in said corporation to the Petitioner.

5.The aforesaid premises was and is an Apartment/Unit in a cooperative residence. [*2]

6.The Respondents defaulted in their obligations to Petitioner, and as a result thereof,

Petitioner caused a sale of the aforesaid stock and proprietary lease to occur pursuant to the
provisions of article 9[NYCLS] of the Uniform Commercial Code. At said sale, Petitioner
was the successful bidder and the aforesaid proprietary lease and associated stock certificate
were transferred to Petitioner.

7.As a result thereof, Petitioner is the rightful occupant of the aforesaid cooperative
Apartment/Unit and Respondent, and any person or entity occupying same under him has no
right to remain in possession thereof.

The above sworn allegations asserted in the petition are false.

An examination of the documents attached to the petition reveal that Wells Fargo
Home Mortgage Inc. was the actual lender who acquired a security interest from respondent
Paul Raia on October 23, 2002, with respect to Apartment 1E.

This court will hold a hearing to determine what sanctions, if any, that may be imposed
upon Steven J. Baum, P.C., for the false representations made in the petition.

On January 5, 2010, Wells Fargo Home Mortgage, Inc. ("Wells Fargo") was the
successful bidder at the foreclosure sale of the subject premises located at 360 Stewart
Avenue, Unit 1E, Garden City NY. Wells Fargo received 220 shares of Stewart Franklin
Owners Corp. and the proprietary lease previously owned by Paul Raia.

On March 12, 2010, Wells Fargo purportedly assigned its January 5, 2010 bid to
Petitioner FHLMC. However, the "Assignment of Bid" exhibited by FHLMC contains only
the signature of Steven J. Baum, P.C. and there is no indication for which party the signature
was made. Mr. Baum's office claims to have the authority to execute the document on behalf
of FHLMC by way of a power of attorney attached to the petition. Baum's office also claims
to have the same authority for Wells Fargo but provides no evidence in support of that
allegation. Steven J. Baum, P.C. represents Petitioner FHLMC in the instant action.

Subsequent to Steven J. Baum, P.C. signing the "Assignment of Bid," Petitioner

FHLMC served a notice to quit on Respondent on March 22, 2010 directing Mr. Raia to
vacate the apartment on or before April 1, 2010. This holdover proceeding commenced on

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April 15, 2010 with the filing of the petition and notice of petition.

MOTION TO DISMISS

Respondent asserts that the "Assignment of Bid" is invalid and ineffective because it is
[*3]not executed by Wells Fargo, thus FHLMC never acquired title to the bid, the collateral,
or the right to the possession of the cooperative apartment, and Petitioner lacks standing to
institute this proceeding.

For an assignment to be valid, both parties must intend to make the assignment (New
York Jurisprudence, Second Edition, Volume 6A, Assignments § 35). Without Wells
Fargo's signature, the Court cannot determine its intent.

The firm of Steven J. Baum, P.C. alleges to have the authority to assign the bid on
behalf of Wells Fargo because the firm represented Wells Fargo in the cooperative
foreclosure sale on January 5, 2010. However, neither a power of attorney to Steven J.
Baum, P.C. nor a supporting affidavit from Wells Fargo was presented with the
"Assignment of Bid." Therefore, the Court finds the assignment invalid. See HSBC Bank
USA, N.A. v. Yeasmin (27 Misc 3d 1227(A), Slip Copy, 2010 WL 2089273 [Sup. Ct., Kings
Cty. 2010]). See also Wells Fargo v. Marchione, 63 AD3d , 204, 887 NYS2d 615 (2nd Dept
2009); and Deutsche Bank Nat. Trust Co. v. Abbate, 25 Misc 3d 1216(A), 901 NYS2d 905
(NY Sup. 2009).

FHLMC also opposes the motion on the ground that Mr. Raia's questioning of the
"Assignment of Bid" amounts to seeking a declaratory judgment over which the Supreme
Court of Nassau County maintains exclusive jurisdiction. This argument is without merit. As
Judge Schack stated in HSBC Bank USA, N.A. v. Yeasmin:

[FHLMC] needed "standing"to proceed in the instant action. The Court of Appeals
( Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 912 [2003] ), cert
denied 540 U.S. 1017 [2003] ), held that "[s]tanding to sue is critical to the proper
functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway
to the courthouse is blocked. The plaintiff who has standing, however, may cross the
threshold and seek judicial redress." In Carper v. Nussbaum, 36 AD3d 176, 181 (2d Dept
2006), the Court held that "[s]tanding 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." If a plaintiff lacks standing to sue, the plaintiff may not proceed in the
action. ( Stark v. Goldberg, 297 AD2d 203 [1d Dept 2002] ). "Since standing is
jurisdictional and goes to a court's authority to resolve litigation [the court] can raise this
matter sua sponte." ( Axelrod v. New York State Teachers' Retirement System, 154 AD2d
827, 828 [3d Dept 1989] ).

The respondent in a lawsuit in the District Court of Nassau County is entitled to

adismissal of the action against him if the petitioner lacks standing. The respondent need not
bring a declaratory action in Supreme Court in order to accomplish this. Such a policy

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would not be in the interest of judicial economy.

Finally, Respondent's additional argument that the attorney who signed the notice to
quit was not authorized to act on behalf of Petitioner is moot. Petitioner lacks a possessory
interest in the subject premises and therefore lacks standing to issue the notice to quit.

[*4]CONCLUSION

Respondent's motion is granted. The instant holdover proceeding is dismissed with

prejudice as Petitioner FHLMC lacks a possessory interest in the subject premises.

This court is setting down this matter for a hearing to determine what sanctions, if any,
should be imposed upon the law firm of Steven J. Baum, P.C., for its false statements made
in the petition dated April 8, 2010. This hearing shall be held on August 2, 2010 at 9:30 a.m.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 22, 2010

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