Cite as: Onewest Bank, FSB v. Balan, 29752/2009, NYLJ 1202585424339, at *1 (Sup., KI, Decided October 3, 2012)

Justice Laura Jacobson

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Decided: October 3, 2012





Plaintiff One West Bank submits a Notice of Motion seeking an Order of reference and an Order modifying the caption in this action by substituting Millie "Doe" an occupant whose last name remains unknown to plaintiff, for "John Doe" and "Jane Doe", as defendants together with such other and further relief as to the Court seems just and proper.

In this mortgage foreclosure action, the Court notes that the defendant Micheline Balan received a deed to this property on December 4, 2007. However, the initial mortgage, received from Indy Mac Bank, F.S.B. is dated December 3, 2007. The 1-4 Family Rider is also dated December 3, 2007. And the supporting affirmation from Counsel confirms that the date




of the mortgage was December 3, 2007. The Court does not believe it can grant the plaintiff the relief requested since the defendant did not own the property prior to the date a mortgage was placed thereon. A mortgage is a transfer of an interest in real property. An owner of an interest cannot transfer more than she/he owns. Schenk v. Schenk, 81 P3d 1218. If the defendant had no right to transfer an interest in the property on the date of the mortgage, then neither the debt nor the mortgage attached to the property.

Accordingly, this action is dismissed based on the fact that the defendant did not own the property on the date of the mortgage.

This constitutes the decision and Order of the Court.