At an IAS Term, Part 27 of

the Supreme Court of the

State of New York, held in
and for the County of
Kings, at the Courthouse,
at Civic Center, Brooklyn,
New York, on the 1 lthday
of September 2007

PR E SENT:

HON. ARTHUR M. SCHACK

Justice

AMERICAN BROKERS CONDUIT C/O AMEIUCAN

HOME MORTGAGE SERVICING, 4600 REG1.(NT
BLVD., IRVING, TEXAS 75063, DECISION & ORDER

Plaintiff, 1 Index No. 7206/07

- against -
HEIDY ZAMALLOA, NEW YORK CITY PAIXING
VIOLATIONS BUREAU, NEW YORK C ITY
ENVIRONMENTAL CONTROL BOARD and
JOHN DOE “1” through “12”, etc.

Defendants.

T h e following uauers numbered 1 read on this motion: Papers Numbered:

Proposed Judgment of Foreclosure and Sale with

Affidavits and Exhibits Annexed

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 I
Plaintiffs application for a judgment of lireclosure and sale for the premises

located at 1816 East 32”dStreet, Brooklyn, New York (Block 8475, Lot 47, County of

Kings) is denied without prejudice. Plaintiff, Anierican Brokers Conduit/ c/o American

Home Mortgage Servicing, 4600 Regent Blvd., 1 wing Texas 75063, lacks standing to

bring this matter before the Court. Plaintiff, aftcr.commencing this action on February

28,2007, assigned the instant mortgages on March 5, 2007 to American Brokers Conduit,

538 Broadhollow Road, Melville, New York 11747, with the assignments recorded on

April 3,2007 at the Office of the City Register o F the City of New York, CRFN Numbers

2007000169450and2007000169451.
1
The Court, as will be explained, has no ctioice but to deny the application for a

judgment of foreclosure and sale without prejudice. Plaintiff American Brokers Conduit
I
c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving Texas 75063 lacks

standing to proceed with this action since hlarch 5, 2007.

Djs cuss
- ---- i on

The Court of Appeals, in Saratoga Counl) Chamber of Commerce. Inc. v Pataki,

100 NY2d 801, 812 (2003), cert denied 5 4 US 1017 (2003), declared that “[sltanding to

sue is critical to the proper functioning of the juJicia1 system. It is a threshold issue. If

standing is denied, the pathway to the courthousc is blocked. The plaintiff who has

standing, however, may cross the threshold and seek judicial redress.” Professor David

Siegel, in NY Prac, 5 136, at 232 [4‘h ed] instruc i s that:

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 [i]t is the law's policy to allow only an a-,*rievedperson to bring a

lawsuit . . . A want of ''standing to sue,-.iri orner words, is just another

way of saying that this particular plaintiff is not involved in a genuine

controversy, and a simple syllogisi n rakes us fro]n there to a "jurisdictional"

dismissal: (1) the courts have jurisdiction only over controversies; (2) a

plaintiff found to lack "standing" is not ;ni{olved in a controversy; and

(3) the courts therefore have no juristiicticln of the case when such a

plaintiff purports to bring it.

In Caprer v Nussbaum, 36 AD3d 176, 18 I (2d Dept 2006), the Court held that

"[sltanding to sue requires an interest in the claiiii at issue in the lawsuit that the law will

recognize as a sufficient predicate for detcrtniniiig the issue at the litigant's request." If a

plaintiff lacks standing to sue, the plaintiff may Iiot proceed in the action. Stark v

Goldberg, 297 AD2d 203 (1st Dept 2002).

It is clear that plaintiff American Broker, Conduit c/o American Home Mortgage

Servicing, 4600 Regent Blvd., Irving Texas 75063 lacks standing to sue since March 5,

2007, when it assigned its ownership of the Zar!ialloa mortgages to American Brokers

Conduit, 538 Broadhollow Road, Melville, Ne\\ York 11747, The Court, in Campaign v

Barba, 23 AD3d 327, instructed that "[tlo establish a prima facie case in an action to

foreclose a mortgage, the plaintiff must establisli the existence of the mortgage and the

mortgage note, ownership of the mortgage., and the defendant's default in payment

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[Emphasis addedJ." See Household Finance Rei!lty Corn. Of New York v Wvnn, 19

AD3d 545 (2d Dept 2005); Sears Mortgage corp, v Yahhobi, 19 AD3d 402 (2d Dept

2005); Ocwen Federal Bank FSB v Miller, 18 A1 )3d 527 (2d Dept 2005); U.S. Bank Trust

Nat. Ass'n Trustee v Butti, 16 AD3d 408 (2d Dcpt 2005); First Union Mortgage COT. v

m,298 AD2d 490 (2d Dept 2002); Villace Bqnk v Wild Oaks, Holding, Inc., 196 AD2d
8 12 (2d Dept 1993).

However, in light of the fact that Americi!n Brokers Conduit c/o American Home

Mortgage Servicing, 4600 Regent Blvd., Irving 'I'exas 75063 has established the existence

of the mortgage and the note, and defendant's dc.fault in payment, the Court is denying the

judgment of foreclosure and sale without prejucl t ce. If American Brokers Conduit c/o

American Home Mortgage Servicing, 4600 Regmt Blvd., Irving Texas 75063 moves to
I

substitute assignee American Brokers Corduit, 538 Broadhollow Road, Melville, New

York 11747, pursuant to CPLR 0 1021, anJ no tither material facts change, the Court will

grant the substitution of plaintiff to American Brokers Conduit, 538 Broadhollow Road,

Melville, New York 11747, American Brokers Conduit, 538 Broadhollow Road, Melville,

New York 11747, which will allow the proper iiiortgagee, the one with standing, to

receive a judgment of foreclosure and sale. &.t Coast ProDerties. v Galang, 308 AD2d

43 1 (2d Dept 2003); Lincoln Savings Bank, FST3 v Wvnn, 7 AD3d 760 (2d Dept 2004);

CPLR 0 1018; GOL 6 13-101.

Conclusion

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- - - ' --..-- -

Accordingly, it is

ORDERED that the application of p1aintij.FAmerican Brokers Conduit/ c/o

American Home Mortgage Servicing, 4600 Kegcnt Blvd., Irving Texas 75063 for a

judgment of foreclosure and sale for the premise.; located at 18 16 East 32"dStreet,

Brooklyn, New York (Block 8475, Lot 47, County of Kings) is denied without prejudice.

This constitutes the Decision and Order o I'the Court.

E N T E R

/-

HON. ARTHUR M. SCHACK

J. S. C.

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