ORDERED that the motion by the plaintiff, Countrywide Home Loans, Inc., for an order of reference in this mortgage foreclosure action is denied, with leave to renew upon proper papers, which comply with the requirements set forth in CPLR 3215(f), including but not limited to an affidavit of merit by a party and copies of all assignments of the subject mortgage, sufficient to establish the plaintiff's ownership rights in the subject mortgage at the time the action was commenced; and it is further

ORDERED that movant shall serve a copy of this Order upon all appearing parties, or their attorney(s) if represented by counsel, within twenty (20) days after the date of this Order pursuant to CPLR 2103(b)(l), (2) or (3), and shall thereafter file the affidavit(s) of service with the Clerk of the Court; and it is further

ORDERED that a copy of this Order and proof of service of same shall be annexed as exhibits to any motion to renew.

With regard to the proof necessary on an application for judgment by default, CPLR 3215(f) states, in relevant part, that "[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney." With regard to a judgment of foreclosure, an order of reference is simply a preliminary step towards obtaining such a judgment (Home Sav. of Am., F.A. v. Gkanios, 230 AD2d 770, 646 NYS2d 530 [2d Dept 1996]).

The moving papers establish that the original lender stated in the subject December 6, 2001 mortgage was America's Wholesale Lender ("America's Wholesale"). The mortgage was assigned by America's Wholesale to Countrywide Home Loans, Inc. ("Countrywide") by assignment dated August 4, 2006. The Notice of Pendency and Complaint, however, were filed on July 5, 2006, prior to the date of assignment. Therefore, Countrywide did not have an ownership interest in the subject mortgage at the time of the filing. A plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest (Katz v East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998]). Language in the purported assignment to Countrywide states that the "[a]ssignment is effective June 30, 2006." Such attempt at retroactivity, however, is insufficient to establish Countrywide's ownership interest at the time the action was commenced. Indeed, foreclosure of a mortgage may not be brought by one who has no title to it and absent an effective transfer of the debt, the assignment of the mortgage is a nullity (Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dept 1988]).

Based on the foregoing, the plaintiff has failed to establish that it has standing as a plaintiff [*2]in this matter. As a result, the Court is unable to conclude that the affidavit in support of the motion from the plaintiff's Assistant Vice President is, in fact, a proper party affidavit as required by CPLR 3215(f). In the absence of either a proper affidavit by the party or a complaint verified by the party, not merely by an attorney with no personal knowledge, the entry of judgment by default is erroneous (see, Peniston v Epstein, 10 AD3d 450, 780 NYS2d 919 [2d Dept 2004]; Grainger v Wright, 274 AD2d 549, 713 NYS2d 182 [2d Dept 2000]; Finnegan v. Sheahan, 269 AD2d 491, 703 NYS2d 734 [2d Dept 2000]; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dept 1996]; Mullins v. DiLorenzo, 199 AD2d 218; 606 NYS2d 161 [1st Dept 1993]). Therefore, the plaintiff's motion must be denied at this time.

This constitutes the Decision and Order of the Court.

Dated:

PETER H. MAYER, J.S.C.