SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X CITIMORTGAGE, INC, Plaintiff, -againstINDEX NO.

: 9214/08 CHAIM DIRECTOR, ET AL., Defendants. ------------------------------------------------------------------------X

DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/DISMISSAL AND SEVERANCE OF THE COUNTERCLAIMS

HANNA & VLAHAKIS Attorneys for Defendant

INTRODUCTION Defendant, Chaim Director (Defendant), submits this memorandum of law in support of his motion to dismiss under CPLR 3211 (a) (1) and (7) and/or for partial summary judgment and severance of counterclaims under 3212 (e). FACTUAL STATEMENT The facts are fully set forth in the Verified Answer of Defendant, annexed as exhibit to the affirmation of Derrick Hanna, Esq. dated May 3, 2011 (Derrick Hanna Affirmation.). Same is incorporated herein by reference. ARGUMENT POINT I DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT/DISMISSAL A. Planitff Lacks Standing as the Assignment Was Invalid Plaintiff allegedly became owner and holder of the note and mortgage via assignment. See Exhibit B to the Derrick Hanna Affirmation. That assignment is made by MERS (Mortgage Electronic Registration Systems Inc.) as nominee. However, Courts across the country have held that MERS (or any nominee) has no authority to assign anything. See eg. In Re Ferrel L. Agard, U.S. Bankruptcy Court (EDNY February 10, 2011) at 28-37 (citing numerous State Court cases including the New York Appellate Courts and the Court of Appeals) (a copy of the Agard case is attached hereto for the Courts convenience. Thus, as MERS had no authority to assign anything, Plaintiff purporting to hold the loan via assignment from MERS, lacks standing, and fails to state a cause of action. Id. This is sufficient documentary evidence to dismiss as well. 2

B. Plaintiff Is Not the Legal Or Actual Holder of the Note Courts have also held that even assuming arguendo the mortgage was validly assigned by MERS, the notes were not validly transferred. Id. That is because in order for a note to be validly transferred, it must be indorsed by the payee and delivered to the transferee.1 Id. A copy of the note in question is attached as Exhibit D to the Derrick Hanna Affirmation. There is no endorsement on the note. Further, upon information and belief Plaintiff does not even have possession of the original note. Indeed, when MERS is the middleman for such transactions, the note and mortgage do not travel together. Id. at 23. A mortgage without a note is unenforceable. Id. (citing Carpenter v. Longan, 83 U.S. 271, 274 (1872)) (an assignment of a mortgage without the note is a nullity).2 POINT II THE COUNTERCLAIMS/OTHER DEFENSES SHOULD BE SEVERED CPLR 3212 (e) provides that partial summary judgment may be granted as well as for severance of those claims or defenses which are not included in the motion. Defendant has several affirmative defenses which are not the subject of this motion and counterclaims which, upon granting of this motion should be severed.

See also White and Summers, Uniform Commercial Code (3rd Ed. 1988) at Sec. 14-5 (citing cases).

Such defects cannot be cured retroactively. See Wells Fargo v Marchione, 69 A.D.3d 204, 210 (2nd Dept 2009).

CONCLUSION Based upon the forgoing Defendants motion should be granted. Dated: May 3, 2011 Brooklyn, New York By:______________________________ DERRICK HANNA, ESQ.