In my February 4, 2008 decision and order in the instant matter I denied without prejudice the application of plaintiffWELLS FARGO BANK, N.A., AS TRUSTEE (WELLS FARGO) for an order of reference for the premises located at 363 Madison Street, Brooklyn, New York (Block 1820, Lot 76, County of Kings), with leave to renew upon providing the Court with: a copy of a valid assignment of the instant mortgage and note to plaintiff WELLS FARGO BANK, N.A., AS TRUSTEE (WELLS FARGO); a satisfactory explanation to questions with respect to the two December 8, 2004 assignments of the instant mortgage and note from ARGENT MORTGAGE COMPANY, LLC (ARGENT) to AMERIQUEST MORTGAGE COMPANY (AMERIQUEST), and then from AMERIQUEST to plaintiff WELLS FARGO; and satisfactorily answering certain questions regarding a May 5, 2005 limited power of attorney from WELLS FARGO, as Trustee, to LITTON LOAN SERVICING, LP (LITTON), as Servicer. [*2]

Plaintiff has renewed its application for an order of reference for the subject premises, but the papers submitted fail to cure the defects enumerated in my prior decision and order. The purported plaintiff, WELLS FARGO, does not own the instant mortgage loan. Therefore, the instant matter is dismissed with prejudice.

Then, assuming that WELLS FARGO could explain and cure the assignment defects, WELLS FARGO had to provide answers about LITTON, its alleged servicer. The instant application for an order of reference contains an "affidavit of merit and amount due" by Debra Lyman, Vice President of LITTON, attorney in fact for WELLS FARGO. The Limited Power of Attorney, dated May 5, 2005, attached to the instant application for an order of reference, states that WELLS FARGO:

to Park Place Securities Inc. Asset Backed Pass through Certificates,

Series 2005-WLL1 dated as of March 1, 2005 (the "Agreement") by

and among Park Place Securities, Inc. as ("Depositor") and Litton

Loan Servicing LP as ("Servicer") and Wells Fargo Bank, N.A. as

its true and lawful attorney-in-fact . . . to execute and deliver on

behalf of [WELLS FARGO] any and all of the following instruments

[documents with respect to foreclosures] to the extent consistent with

the terms and conditions of the Agreement [sic].

In my previous decision and order I determined that plaintiff WELLS FARGO lacked "standing" to bring the instant action. The Court of Appeals (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d, 901, 812 [2003]), cert denied 540 US 1017 [2003]) held that "[s]tanding to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress." In Carper v Nussbaum, 36 AD3d 176, 181 (2d Dept 2006), the Court held that "[s]tanding to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request." If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1d Dept 2002]).

In the instant action, the two December 8, 2004 assignments - ARGENT to AMERIQUEST and AMERIQUEST to WELLS FARGO - are defective. This denies WELLS FARGO's standing to bring this action. The recorded assignments are both by "Jose Burgos - Agent." An "agent" is "one who is authorized to act for or in place of another; a representative" (Black's Law Dictionary 64 [7th ed 1999]). The assignments lack any power of attorney granted by either ARGENT or AMERIQUEST to Jose Burgos to act as their agents. Real Property Law (RPL) § 254 (9) states:

Power of attorney to assignee. The word "assign" or other words of

assignment, when contained in an assignment of a mortgage and bond

or mortgage and note, must be construed as having included in their

meaning that the assignor does thereby make, constitute and appoint

the assignee the true and lawful attorney, irrevocable, of the assignor,

in the name of the assignor, or otherwise, but at the proper costs and

charges of the assignee, to have, use and take all lawful ways and means

for the recovery of the money and interest secured by the said mortgage

and bond or mortgage and note, and in case of payment to discharge

the same as fully as the assignor might or could do if the assignment

were not made. [Emphasis added]

"An attorney in fact is merely a special kind of agent." (Etterle v Excelsior Ins. Co. of New York, 74 AD2d 436, 441 [2d Dept 1980]). Further, the agent, who has a fiduciary relationship with the principal, "is a party who acts on behalf of the principal with the latter's express, implied, or apparent authority." (Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [2d Dept 1992]). Therefore, to have a proper assignment of a mortgage by an authorized agent, a power of attorney is necessary to demonstrate how the agent is vested with authority to assign the mortgage. "No special form or language is necessary to effect an assignment as long as the [*4]language shows the intention of the owner of a right to transfer it [Emphasis added]." (Tawil v Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 [1d Dept 1996]; see Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612 [2d Dept 2004]).

In an attempt to explain why Mr. Burgos, the "agent," acted twice as an assignor and once as an assignee, on December 8, 2004, plaintiff's counsel has provided the Court with an affidavit of Diane E. Tiberend, dated March 28, 2008. Ms. Tiberend, as of the date of her affidavit is: General Counsel, Senior Vice President and Secretary of ACC Capital Holdings Corporation (ACH), the parent company of ARGENT and AMERIQUEST; Assistant Secretary of AMERIQUEST from September 21, 1999; and, was Assistant Secretary of ARGENT from July 2, 2001 until November 1, 2007, when she became the Secretary of ARGENT. Unmentioned by Ms. Tiberend and plaintiff's counsel are the August 31, 2007 CITIGROUP purchases of ARGENT and AMERIQUEST. Ms. Tiberend wears another hat, that of corporate functionary for CITIGROUP subsidiaries.

Eric Dash in his September 1, 2007 New York Times article, "Citigroup Buys Parts of a Troubled Mortgage Lender," wrote:

Citigroup's investment banking arm scooped up the assets of the

troubled subprime mortgage lender ACC Capital Holdings yesterday,

the same day that the struggling company announced that it was closing.

Citigroup bought the remnants of ACC's Argent wholesale

mortgage origination division as well as the servicing rights to collect

on more than $45 billion in home loans. Terms of the deal were not disclosed.

ACC said that it was shutting its only other holding, its Ameriquest

retail mortgage unit, which once billed itself as the sponsor of the American

dream but was tarnished by scandal.

"ACC Capital Holdings is going to maintain operations as it

prepares for the orderly wind-down of our retail mortgage business,

which is no longer accepting applications," the company said.

ACC Capital is the latest of at least 15 subprime lenders to be

closed as Wall Street stopped pouring capital into the industry after

rising homeowner delinquencies and defaults. The closing is the end

of a long-challenged company, founded by the billionaire Roland E.

Arnall, who last year was named United States ambassador to the

Netherlands. [*5]

"The whole Ameriquest and Argent businesses have been in

limbo for at least a year," said Guy Cecala, publisher of Inside Mortgage

Finance. "They were one of the first subprime lenders to show problems:

they had regulatory concerns, volume going down and problems with

loan quality."

In 2006, the company agreed to pay $325 million to settle federal

and state regulators' claims of deceptive lending practices.

Citigroup said yesterday that it would pick up the remnants of

Argent, ACC Capital's wholesale mortgage origination business, whose nationwide broker network was once under fire for abusive practices. Its operations have all but shut down.

Citigroup executives said that they planned to overhaul the

unit's management team and lending practices, change its name to

Citi Residential Lending and broaden its product lines. They plan to

restart loan origination operations slowly.

In ¶ 6 of her affidavit, Ms. Tiberend refers to the "dual assignment process," stating that "[t]o secure funds to lend a complete chain of assignments had to be provided to the related lender." Further, in ¶ 6, she refers to unnamed "related warehouse lenders." A "warehouse lender" provides a line of credit to a loan originator to fund a mortgage until it is sold into the secondary market, directly or through securitization. Defendant FARMER executed the instant mortgage with ARGENT on December 3, 2004. The assignments took place five days later on December 8, 2004. Thus, it appears that ARGENT borrowed the funds from a "warehouse lender(s)" to originate the FARMER loan, anticipating paying the loan back to the "warehouse lender(s)" after the mortgage loan was securitizied into a collateralized debt obligation (CDO) with WELLS FARGO as the Trustee. However, the Court still cannot understand the necessity for the "dual assignment process." Why couldn't an officer of ARGENT have assigned the FARMER mortgage to WELLS FARGO, as Trustee for a designated beneficiary, a named CDO?

Ms. Tiberend also claims, in ¶ 6 of her affidavit, that since ARGENT and AMERIQUEST were located in separate locations and to avoid the loss or destruction of original loan documents while in transit, "the dual assignment process" was conceived and when approved by the related warehouse lenders was implemented. I was instrumental in spearheading the dual assignment process in my position as Senior Counsel of ACH." [*6]

She claims, in ¶ 7, that both ARGENT and AMERIQUEST authorized by corporate resolution the same personnel to execute both assignments. "This insured that the warehouse lender receive the loan documents in a timely fashion and eliminated the risk posed by transit of the loan documents to a location other than the warehouse lender's office."She alleges that Mr. Burgos as an employee of ARGENT was appointed as a limited signing officer of both ARGENT and AMERIQUEST by corporate resolutions.

However, she states, in ¶ 10:

A diligent search of corporate records for the specific corporate

resolutions cannot currently be found. In lieu thereof, and based on

my actual knowledge and officer's position at both argent and Ameriquest

in December 2004 and continuously since that date I have attached an

Officer's Certificate memorializing Mr. Burgos' appointment on behalf

of each of the companies. (See Exhibit 6 and 7). [Emphasis added]

Exhibits 6 and 7 are her attempt at nunc pro tunc corporate appointments of Mr. Burgos, more than three years after his execution of the assignments as "Agent." These Officer's Certificates are unrecorded and lack merit. This is not acceptable to the Court. It is clear that Mr. Burgos in acting as "Agent" needed authority for his actions, either by corporate resolution or by power of attorney. Since none were recorded with the December 8, 2008 assignments, the Court's approval of Ms. Tiberend's March 28, 2008 appointments of Mr. Burgos would be a legal miscarriage, despite Ms. Tiberend's claim that the "dual assignment system" was "conceived and when approved by the related warehouse lenders was implemented. "

Further, the second December 8, 2008 assignment, from AMERIQUEST to "Wells Fargo Bank, N.A., as Trustee," fails to name a beneficiary for the Trustee. The failure to name a beneficiary for the Trustee renders the assignment without merit. It is axiomatic that "[t]here are four essential elements of a trust: (1) a designated beneficiary; (2) a designated trustee; (3) a fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee; and (4) actual delivery or legal assignment of the property to the trustee, with the intention of passing legal title to such property to the trustee (Brown v Spohr, 180 NY 201, 209)." (In re Mannara, 5 Misc 3d 556, 558 [Sur Ct, New York County 2004]). (See In re Marcus Trusts, 2 AD3d 640, 641 [2d Dept 2003]; Orentreich v Prudential Ins. Co. of America, 275 AD2d 675 [1d Dept 2000]).

Plaintiff's counsel has provided the Court with an affidavit, dated March 28, 2008, by Kim M. Miller, "Vice President of Bankruptcy, Litigation, Default Documents and Foreclosures of WELLS FARGO BANK, N.A." She alleges that WELLS FARGO is Trustee for a CDO, "Park Place Securities Inc. Asset-Backed Pass-Through Certificates,

Series 2005-WLL1, pursuant to a Pooling and Servicing Agreement between Park Place

Securities, Wells Fargo, N.A. and Litton Loan Servicing LP as dated March 1, 2005." I conducted an in-camera review of the March 1, 2005 Pooling and Servicing Agreement and [*7]cannot find any reference in it to the instant FARMER mortgage loan.

Therefore, since the AMERIQUEST to WELLS FARGO assignment is silent as to for whom WELLS FARGO is the Trustee, plaintiff has failed to demonstrate how the May 5, 2005 limited power of attorney from WELLS FARGO to LITTON authorizes an "affidavit of merit and amount due" by Debra Lyman, Vice President of LITTON. All of the defendants in the instant action have defaulted. CPLR § 3215 (f) requires that in an application for default judgment, "the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party. [Emphasis added]." Plaintiffs have failed to submit "proof of the facts" in "an affidavit made by the party." The "affidavit of facts" was submitted by Debra Lyman, Vice President of LITTON, the alleged servicing agent for WELLS FARGO and its unknown beneficiary. As discussed above, the Court cannot determine if Ms. Lyman is the servicing agent for this loan.

Accordingly, it is

ORDERED that the renewed application of plaintiff WELLS FARGO BANK, N.A., AS TRUSTEE, for an order of reference for the premises located at 363 Madison Street, Brooklyn, New York (Block 1820, Lot 76, County of Kings) is denied with prejudice; and it is further

ORDERED that the following real estate transactions for 363 Madison Street, Brooklyn, New York (Block 1820, Lot 76, County of Kings) are voided and cancelled: the Assignment of Mortgage dated December 8, 2004 and recorded on February 21, 2006, at City Register File Number 2006000100653; and, the Assignment of Mortgage dated December 8, 2004 and recorded on February 21, 2006, at City Register File Number 2006000100654; and it is further

ORDERED that the Office of the City Register of the New York City Department of [*8]Finance is directed to amend its records in accordance with this Decision and Order.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S. C.