Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff dated June 15, 2006; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiff's renewal motion (002) for an Order of Reference in this mortgage foreclosure action is hereby denied, with leave to renew upon proper papers to the extent set forth herein, which comply with the requirements set forth in CPLR §3215(f), including but not limited to a proper affidavit of facts or a complaint verified by a party, not merely by an attorney with no personal knowledge, as well as an affidavit from the plaintiff establishing compliance with the mortgage provisions regarding notice of default and proper service of said notice; and it is further

ORDERED that counsel for the plaintiff shall serve a copy of this Order upon all parties, or their attorney(s) if represented by counsel, 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 counsel for the plaintiff shall appear before the undersigned on September 4, 2007, at 3:00 pm, for a conference to discuss the merits of any proposed motion to renew, particularly with respect to the proofs required of the plaintiff under CPLR §3215(f), as well as proof of compliance with the mortgage provisions regarding notice of default and proof of said notice; and it is further

ORDERED that counsel for the plaintiff shall appear by a member of the firm, not by an of-counsel or per diem attorney; and it is further

ORDERED that if, after the subject pre-motion conference, the plaintiff submits a motion to renew, the affirmation in support of such motion shall include a statement that the pre-motion conference was held, and shall annex as exhibits copies of all prior Orders in this matter, along with proof of service of same.

This is plaintiff's second ex parte application for an order of reference in this mortgage foreclosure action. As with the first application, this renewal application must be denied for failure to meet the statutory requirements of CPLR §3215(f). Plaintiff's prior application was denied by Order of this Court, dated October 10, 2006. That Order quoted relevant portions of CPLR §3215(f) pertaining to proof necessary on an application for judgment by default, to wit, 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."

In denying the plaintiff's previous motion, the Court specifically noted that the plaintiff's proofs had merely included an affidavit from the Vice President of HomEq Serving Corp., the [*2]purported servicing agent of the plaintiff, not from the party plaintiff. As set forth in the prior decision, the servicing agent is not a party to this action and there is no evidence that any agent was authorized to act on behalf of the plaintiff for purposes of satisfying the proofs required by statute. Accordingly, the Court concluded that without an affidavit by the plaintiff regarding the facts constituting the claim and amounts due or, in the alternative, an affidavit by the plaintiff that its agent has the authority to set forth such facts and amounts due, the statutory requirements are not satisfied. In the absence of either a verified complaint or an affidavit by the party, the entry of judgment by default is erroneous (see Mullins v. DiLorenzo, 199 AD2d 218; 606 NYS2d 161 [1st Dept 1993]; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dept 1996]; Finnegan v. Sheahan, 269 AD2d 491, 703 NYS2d 734 [2d Dept 2000])."

Despite the Court's previous recitation of the statutory law and case law on the issue of defaults in foreclosure proceedings, in its motion to renew, the plaintiff submits yet another affidavit of purported facts from a non-party, Andrew Goldberg, who alleges to be the attorney-in-fact for the plaintiff. In the matter of U.S. Bank Natl. Assn. v Merino, 16 Misc 3d 209, 836 NYS2d 853 [Sup Ct, Suffolk County, May 1, 2007], a proceeding involving similar factual circumstances, the same plaintiff's counsel submitted to this Court an affidavit from Mr. Goldberg in support of U.S. Bank's motion for a default judgment. As in the U.S. Bank case, the Court reiterates here that "Mr. Goldberg . . . is not a party to this action and there is no evidence that he is authorized to act on behalf of the plaintiff for purposes of satisfying the proofs required by statute" (U.S. Bank Natl. Assn. v Merino, 16 Misc 3d at 210, 836 NYS2d at 854). Also as with U.S. Bank, and as in this plaintiff's original motion, the Court must deny plaintiff's motion to renew for failure to comply with the requirements of CPLR §3215(f) (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]).

The Court, likewise, notes that the identical problems with Mr. Goldberg's affidavit in U.S. Bank, also exist in this case. "Even if the plaintiff did have an attorney-in-fact for purposes of satisfying the requirements of CPLR 3125(f), after reviewing Mr. Goldberg's affidavit, the Court is unable to ascertain who that attorney-in-fact actually is, and on whose behalf Mr. Goldberg actually executed the affidavit" (U.S. Bank Natl. Assn. v Merino, 16 Misc 3d at 211, 836 NYS2d 854). As in U.S. Bank, the first paragraph of Mr. Goldberg's affidavit identifies himself as the attorney-in-fact for the plaintiff. His signature on the affidavit, however, suggests that he may have executed the affidavit with apparent authority for another purported attorney-in-fact. In this regard, listed above Mr. Goldberg's signature is "Wells Fargo, N.A. as Trustee under the agreement By Barclays Capital Real Estate Inc. dba HomEq Servicing, attorney in fact" ("Barclays/HomEq Servicing"). Also as in U.S. Bank, in addition to Mr. Goldberg's signing for Barclays/HomEq Servicing, it appears he also executed the affidavit with apparent authority for yet another attorney-in-fact, plaintiff's own counsel, Rosicki, Rosicki & Associates. The Rosicki firm is listed as attorney-in-fact below Mr. Goldberg's signature.

Based on the foregoing, it appears that, as in the U.S. Bank case, Mr. Goldberg executed the [*3]subject affidavit on his own behalf, on behalf of Barclays/HomEq Servicing, and on behalf of Rosicki, Rosicki & Asscociates, all as purported attorneys-in-fact for the same plaintiff, in the same foreclosure proceeding. In any event, none of the purported attorneys-in-fact are parties to this action and there is no evidence that any are authorized to act on behalf of the plaintiff for purposes of satisfying the proofs required by statute (CPLR §3215[f]). Therefore, the plaintiff's motion to renew must be denied on the same grounds that the original motion and U.S Bank's motion were denied.

With regard to mortgage foreclosure proceedings, in recent months this Court (IAS Part 17) has rendered scores upon scores of decisions denying applications for default judgment and an orders of reference, most of which have been denied, at least in part, for plaintiffs' failure to comply with the requirements of CPLR §3215(f). The prior order in this action is an example. In an effort to induce plaintiffs' submission of proper papers, the Court's prior orders have set forth in detail the grounds for denial, including plaintiffs' failure to submit proper proof by affidavit of merit or a complaint verified by a party, not merely by an attorney with no personal knowledge (see, e.g., U.S. Bank Natl. Assn. v Merino, 16 Misc 3d 209, 836 NYS2d 853 [Sup Ct, Suffolk County, May 1, 2007]; Countrywide Home Loans, Inc. v Hovanec, 15 Misc 3d 1115A, 2007 NY Slip Op 50696U [Sup Ct, Suffolk County, Feb. 16, 2007]; Bank of New York v Trezza, 14 Misc 3d 1201, 831 NYS2d 358, [Sup Ct, Suffolk County, Dec. 6, 2006]; Deutsche Bank Natl. Trust Co. v Lewis, 14 Misc 3d 1201, 831 NYS2d 358 [Sup Ct, Suffolk County, Nov. 29, 2006]).

From a brief review of the Court's database, it appears that the lion's share of applications for orders of reference and default judgments in foreclosure actions in Suffolk County, and presumably other counties with New York, have been submitted by only a few firms who handle such proceedings. Counsel for plaintiff in this action is one of those firms. It is also apparent that, despite the numerous prior Orders in which the Court has detailed the statutory and case law on the issue of defaults in foreclosure proceedings, those same firms continue to submit (and resubmit) motions without regard for the law and the instructions set forth in those Court Orders. Given the steadily growing volume of foreclosure actions, these clearly inadequate applications are proving to be a colossal waste of judicial resources.

For the foregoing reasons, the conference scheduled herein shall be attended by a member of plaintiff's counsel's firm, not by an of-counsel or per diem attorney, so as to discuss the merits of any proposed motion to renew. With regard to future motions that the Court determines to have been submitted without proper regard for the applicable statutory and case law, the Court may, in its discretion, impose sanctions pursuant to 22 NYCRR §130-1.

This constitutes the Order of the Court.

Dated:

PETER H. MAYER, J.S.C.