Bank Fails to Rebut Satisfaction's Validity
Created By Notary's Acknowledgment;
Foreclosure Denied Wells Fargo Bank NA v. Moise
May 29, 2010 at 9:13 am

The trial court opinion was published in the New York Law Journal.

KINGS COUNTY

Real Property

Defendants seek summary judgment based on the fact that Plaintiff has not shown a valid assignment of the mortgage and note.

Plaintiff originally submitted an assignment of the mortgage dated April 30, 2009. The assignment was signed by Yolanda Williams, Assistant Secretary of Mortgage Electronic Systems, Inc.. However, the notary public's acknowledgement states that she witnessed and acknowledged the signature of Herman John Kennerty, whose name does not appear anywhere on the document.

Plaintiff acknowledges that there was a mistake on the assignment and argues the mistake was de minimis not curat lex. It also argues that the Court should simply replace the defective assignment with the correction assignment, and proceed with its action. In fact, the error was not de minimis as the signature of the purported assignor was not acknowledged, rendering the assignment a nullity.

A simple typographical error can be amended, but a failure to properly acknowledge the signature of a person who signed the instrument cannot be. No affidavit is submitted either Yolanda Williams or the notary Lisa Rhyne explaining what the alleged error was or how it occurred. In fact, the so called "correction" assignment in fact is acknowledged by a different notary on a different date.