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fNDEX No. 01589/2012

SUPREME COURT - STATE OF NEW YORK

I.A.S. PART 33 - SUFFOLK COUNTY

PR ESEN T :

IIon. THOMAS F. WHELAN MOTION DATE: 05/08/15

Justice of the Supreme Court SUBMIT DATE: 05/08/15
Mot. Seq. 001 - MG
CDISP: NO
-----------------------------------------------------------X
AURORA I OAN SERVICES, I LC,
MCCABE WEISBERG
: Attys. For Plaintiff
Plaintiff, : 145 Huguenot Street
New Rochelle, NY 1081

-against-

SONIA POPTILLO, MORTGAGE ELECTRONIC :

REGISTRATION SYSTEMS, INC, AS :
NOMINEE FOR LEHMAN BROTHERS :
#1" #10"
and "JOHN DOE to "JOHN DOE :
the last 10 names being fictitious and unknown to :
plaintiff, intended as being persons, entities
or corporations, if any, having or claiming an :
interest in or lien upon the mortgaged premises :
described in the verified complaint, :

Defendants. :
----------------------------------------------------------------X

Upon the following papers numbered 1 to 4 read on this motion (#001) by the plaintiff for an order of
reference on default. an order droppine as party defendants, the unknown defendants listed in the caption and a
substitution of the plaintiff by its purported assignee ; Notice of Motion/Order to Show Cause and supporting
papers 1- 4 ; Notice of Cross Motion and supporting papers ; Answering papers ; Reply
papers _ ; Other ; (and afts, hea1ing counacl in suppc11 and appo3cd to tic motion it is,

ORDERED that those portions of this motion (#001) by the plaintiff for an order of
reference upon the default in answering of all persons served herein as party defendants and for an
order deleting the unknown defendants is considered under CPLR 3215 1024 and RPAPL § 1321
 Aurora I oan Servicing LLC v Portillo

Index No. 01589/2012

Page 2

Citinwrtgage, Inc. v. Chow Ming Tung, 126 AD3d 841, 2015 WL 1213591[2d Dept 2015 j ; Todd
v Green. 122 AD3d 831, 997 NYS2d 155 [2d Dept 2014]; U.S. Bank, Nat. Ass'n v Razon, 115
AD3d 739, 981 NYS2d 571 j2d Dept 2014]; Green Tree Servicing, LLC v. Cary, 106 AD3d 691,
965 NYS2d 511 [2d Dept 2013]; Dupps v Betancourt, 99 AD3d 855, 855. 952 NYS2d 585 [2d
Dept 2012]); and it is further

ORDERED that the remaining portions of this motion wherein the plaintiff seeks to

substitute its purported assignee in its place and stead are considered under CPLR 1018 and 1001
and are denied.

It is well settled that a plaintiff may continue to prosecute an action notwithstanding its
transfer by assignment or otherwise ofits interest in the subject matter ofthe action as the provisions
of CPLR 1018, which govern substitution upon transfer of interests. are permissive not mandatory
(see GRP Loan, LLC v Taylor, 95 AD3d 1172, 945 NYS2d 336 [2d Dept 2012); Wells Fargo Bank,
N.A. v Wine, 90 AD3d 1216. 935 NYS2d 664 [3d Dept 201 Inc. v Rosenthal, 88
1] ; CitiMortgage,
AD3d 759.931 NYS2d 638 [2 Dept 2011] ; Tarr v Delsener, 70 AD3d 774. 895 NYS2d 168 [2d
Dept 2010]; Buywise Holding, LLC v Harris, 31 AD3d 681, 821 NYS2d 213 [2d Dept 2006]). It
is equally clear that a substitution of a plaintiffs transferee may not be accomplished by a mere
caption amendment because a non-party may not be substituted nor otherwise made a party-plaintiff
to a pending action without its consent and declared willingness to take up the prosecution of the
claims of its predecessor-in-interest and its submission to the jurisdiction of the court. This rule is
mandated by the provisions of CPLR 1001(a) which provide, among other things, that an unwilling
plaintiff shall be joined as a defendant to the action.

Here. there is no participation by the proposed new plaintiff, namely, Nationstar Mortgage,
LLC in this motion who is the assignee of the note and mortgage. That leaves the court without any
indication that Nationstar has knowledge of and consents to the application and that it appears in the
action by counsel of its choosing thereby submitting to the jurisdiction of the court and that it is
authorized and ready to take up the prosecution of this action. In addition, the June 21 2012 written
assignment of the mortgage by the named plaintiff to Nationstar, upon which the plaintiff

purportedly relies to support its demand for a substitution, does not contain an assignment of the
note. The court thus denies the plaintiffs request for the substitution of Nationstar Mortgage,, LLC,
pursuant to CPLR 1018. Such denial is. however, without prejudice to a new application for the
sarne relief upon proper papers.

Proposed Order Appointing a Referee to Compute, as modified by the court to reGect the
terms of this order has been marked singed.

Dated: 2015