S H O R T FOK31 ORDER

INDEX
NO.: 2116-12

SUPREME COURT - STATE OF NEW YORK

IAS PART 6

- SUFFOLK COUNTY

PRESENT: Hon. RALPH T. GAZZILLO

MOTION DATE 6-14-13

ADJ. DATE
Mot. Seq. #001-MD

Justice of the Supreme Court

Y

U.S. BANK NATIONAL ASSOCIATION, AS

TRUSTEE FOR THE LXS 2006-10N

McCABE, WEISBERG &

CONWAY, P.C.
Attorneys for Plaintiff
145 Huguenot Street, Suite 499
New Rochelle, N. Y. 10801

Plaintiff,

-against-

KEITH BAESSLER
Defendant Pro Se
114 Woodland Drive
Mastic Beach, N. Y. 11951

KEITH BAESSLER, INDYMAC BANK FSB

"JOHN DOE #1" to "JOHN DOE #lo", the last
10 names being fictitious and unknown to plaintiff,
the persons or parties intended being the persons
or parties, if any, having or claiming an interest in
or lien upon the mortgaged premises described in
the verified complaint,

INDYMAC BANK FSB

1 Commerce Plaza
6'h Floor
Albany, N. Y. 12231

Defendants.
Y

read on this motion for summary iudament; Notice of

Upon the following papers numbered 1 to
14
MotionKIrder to Show Cause and supporting papers I - 12 ; Notice of Cross Motion and supporting papers
;
Answering Affidavits and supporting papers
; Replying Affidavits and supporting papers
., Other
;
(
) it is,

ORDERED that this motion by the plaintiff for, inter alia, an order awarding summary
judgment in its favor and against the answering defendant, appointing a referee and amending the
caption is considered and is denied, for the reasons stated herein, without prejudice to renew within
One Hundred and Twenty (1 20) Days of the date of this Order; and it is
ORDERED that the plaintiff is directed to serve a copy of this Order with notice of entry upon
all parties who have appeared herein and not waived further notice pursuant to CPLR 21 03(b)( I), (2)
or (3) within thirty (30) days of the date herein, and to promptly file the affidavits of service with the
Clerk of thc Court.

U.S. Bank N.A. as Trustee for the

v Baessler. et. al.
Index No.: 21 16-12
Pg. 2

LXS 2006-10N

The instant motion for, inter alia, summary judgment and the appointment of a referee in this
residential mortgage foreclosure action is denied as deficient as the plaintiff has not annexed sufficient
evidentiary proof of the delivery and/or other transfer of the note to by the original lender, IndyMac
Bank FSB (IndyMac). The plaintiffs renewed motion, if any, shall include evidentiary proof,
including an affidavit from an individual with personal knowledge of the facts, as to the proper and
timely assignment of the subject note and mortgage, or endorsement of the subject note and
assignment of the subject mortgage, sufficient to establish that plaintiff was the owner or holder of the
subject note and mortgage at the time the action was commenced (see, Deutsche Bank Natl. Trust Co.
v Rivas, 95 AD3d 1061,945 NYS2d 328 [2d Dept 20121; JPMorgan Chase Bank v Katsabanis, 2013
NY Misc LEXIS 4885,2013 W L 5804121,2013 NY Slip Op 32642 [U] [Suffolk County 20131
[delivery of the note at any time, let alone prior to the commencement of the action, not alleged in the
plaintiffs affidavit of merit]; OneWest Bank, FSB v Mazzone, 2013 NY Misc LEXIS 4258,2013
WL 5402436,2013 NY Slip Op 32247 [U] [Sup Ct, Albany County 20131 [no explanation for blank
endorsement, and no factual details as to what IndyMac did with note after endorsing it]; c$, HSBC
Bank USA, N.A. vAvila, 2013 NY Misc LEXIS 4521,2013 W L 5606741,2013 NY Slip Op 32412
[U] [Sup Ct, Suffolk County 20131 [affidavit of representative of holder status since commencement
of action]; OneWest Bank, FSB v Davies, 38 Misc3d 1230 [A], 967 NYS2d 868 [Sup Ct, Suffolk
County 20 13 1 [evidence that the assets of the original lender were seized and placed with a receiver by
the Federal Deposit Insurance Corporation]). Any renewed application made pursuant to this Order
shall also be supported by a recorded copy of the assignment of the mortgage dated December 23,
20 1 1 from Mortgage Electronic Registrations, Systems, Inc., as nominee of IndyMac, to the plaintiff.
Accordingly, the instant summary judgment motion is denied without prejudice as set forth
above. Any renewal shall include a copy of the papers submitted with this application, a copy of this
Order and the evidentiary proof specified above. In view of the foregoing, the proposed order
submitted by the plaintiff has been marked not signed.
f

FINAL DISPOSITION

NON-FINAL DISPOSITION