Defendant Anngelon Emeribe ("Anngelon") moves for an order setting aside the judgment of foreclosure entered on May 9, 2006, setting aside the sale made on June 20, 2006, voiding the Referee's Deed made on July 6, 2006, vacating the order of possession dated September 13, 2006 and directing the Sheriff of Nassau County to cease and desist for the execution of the order of possession.

Anngelon is the former owner and a current occupant of premises known as 8 Pinetree Road, Westbury, New York ("the Premises").

On May 26, 2004, Anngelon sold the Premises to Vivian Anuforo ("Anuforo"), her sister. Although she sold the property to Anuforo, Anngelon continued to occupy the premises.

Anuforo defaulted in the payment of the mortgage she obtained on the property in connection with her purchase of the property. As a result, the within foreclosure action was commenced.

A judgment of foreclosure and sale was entered on May 9, 2006. The property was sold at a foreclosure sale on June 20, 2006. The referee executed a deed issued a deed conveying title to the premises to Deutsche Bank National Trust Company as Trustee for Master Special Loan Trust 2004-02 ("Deutsche Bank") by assignment of bid from Mortgage Electronic Registration System, Inc.

On or about July 19, 2006, sent a notice to the occupants of the Premises demanding that they surrender possession of the premises no later than ten days form the date the notice was served.

When possession of the premises was not delivered as demanded in the notice to quit, Deutsche Bank obtained an order for possession dated September 13, 2006. The order of possession directed that the Sheriff, upon receipt of the order, to enter upon the Premises, eject the occupants and deliver possession of the Premises to Deutsche Bank.

On October 30, 2006, the Sheriff of Nassau County issued a Notice to Vacate to the named defendants as well as John Doe 1-5 and Jane Doe 1-5 indicating that, if they did not vacate the premises within 72 hours, the Sheriff would remove their possessions from the premises.

By order to show cause dated November 2, 2006, this Court stayed the eviction.

Anngelon claims that after she sold the Premises to Anuforo, her son, Gregory Emeribe, Jr. ("Junior") and she continued to reside at the Premises.

In October 2005, Anuforo advised Anngelon that she had fallen behind in payment of the mortgage. In November 2005, Anngelon contacted GMAC Mortgage, the servicer of the mortgage, and was directed to the "Loss Mitigation Department." Anngelon advised the person to whom she spoke to that her son and she were occupants of the Premises. She believes GMAC noted this information. She asked how

she could cure the default. She was advised that GMAC could not provide her with any information without Anuforo's consent.

Anuforo did not cure her default in payment of the mortgage. As a result, this foreclosure action was commenced. The complaint initially named Anuforo and "Doe" defendants. The caption was subsequently amended to name Renay Murphy, Charles Emeribe, [*2]Gregory Emeribe, Agness Emeribe, Timothy Murphy and Maurice Murphy, who were occupants of the premises in 2005, as defendants. However, neither Anngelon Emeribe not Junior were added as party defendants.

Although Anngelon and her son have been occupants of the house the entire time, the caption of the action has never been amended to name them as defendants.Emirebe claims the judgment of foreclosure should be vacated because she was not named or served in the foreclosure proceeding. If the judgment of foreclosure is vacated, the referee's deed must be declared void.

If the judgment of foreclosure is not vacated, Anngelon asserts that the order of possession should be vacated because she was not named or served in the proceedings which resulted in the issuance of the order of possession. If the order of possession is vacated, then she cannot be evicted.

Real Property Actions and Proceedings Law §1311 requires that all persons whose interest is claimed to be subject and subordinate to the plaintiff's lien be named as defendants in a foreclosure action. Necessary defendants include "Every person having an estate or interest in possession, or otherwise, in the property as a tenant in fee, for life, by the curtesy, or for years." Real Property Actions and Proceedings Law §1311(1).^[FN1]

While tenants and occupants are necessary parties to a foreclosure action, they are not indispensable parties. 1-12 Bergman on New York Mortgage Foreclosures §12.03. The failure to name a tenant or occupant of the premises as a defendant in a foreclosure action does not render the judgment of foreclosure and sale defective. G.C. M. Corp v. 382 Van Duzer Corp., 249 AD2d 264 (2nd Dept. 1998); Balt v. J.S. Funding Corp., 230 AD2d 699 (2nd Dept. 1996). See also, Genuth v. First Division Ave. Realty Corp., 88 Misc 2d 586 (Sup.Ct. Kings Co. 1976).

The failure to name Anngelon and Junior as defendants does not require the vacatur of the judgment of foreclosure or the voiding of the referee's deed.

In order to cut off the interest of an occupant of the premises, the occupant must be named as a party in the foreclosure proceedings. Douglas v. Kohart, 196 App.Div.84 (2nd Dept. 1921); and Krotchta v. Green, 121 Misc 2d 471 (Yonkers City Ct. 1983). If an occupant or tenant in the premises is not named as a party in the foreclosure action, the occupant or tenants rights are not affected by the judgment of foreclosure and sale. Polish National Alliance of Brooklyn, U.S.A. v. White Eagle Hall Co., Inc., 98 AD2d 400

(2nd Dept. 1983); and Empire Savings Bank v. The Tower Co., 54 AD2d 574 (2nd Dept. 1976).

"The absence of a necessary party in a foreclosure action leaves the party's rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party (citations omitted)." 6820 Ridge Realty, L.L.C v. Goldman, 263 AD2d 22, 26 (2nd Dept. 1999). See, Si Bank & Trust v. Sheriff of the City of New York, 300 AD2d 667 (2nd Dept. 2000). Thus, a tenant or occupant who was not named as a party in the foreclosure action retains his or her possessory rights and a right of redemption. Id.; and Davis v. Cole, 193 Misc 2d 380 (Sup. Ct. NY Co. 2002). [*3]

Since Anngelon and Junior were not named as parties in the foreclosure action, their interest or possessory rights in the Premises was not extinguished by the judgment of foreclosure and sale.

Where the tenant or occupant's interest in the property were not terminated by the judgment of foreclosure and sale, the purchaser at the foreclosure sale may terminate the tenant or occupant's interest by commencement of a strict foreclosure action pursuant to Real Property Actions and Proceedings Law §1352 or a reforeclosure action pursuant to Real Property Actions and Proceedings Law §1503. Id.

"Due process requires that one be given notice and an opportunity to be heard before one's interest in property may be adversely affected by judicial process. Enforcement of the writ of assistance against one who was not joined as a party to the proceeding would violate due process (citations omitted)." Nationwide Assocs, Inc. v. Brunne, 216 AD2d 547 (2nd Dept. 1995); and Si Bank & Trust v. Sheriff of the City of New York, supra.

Anngelon and Junior were not joined as parties to the action. They were not named or served in the proceeding which resulted in the issuance of order of possession.

The designation and service upon of "Jane Doe" and "John Doe" does not remedy this defect. CPLR 1024 permits a plaintiff to proceed against an unknown defendant. However, before naming a party as a "John or Jane Doe," the plaintiff must establish that it has made a genuine effort to ascertain the name of the party but has been unable to do so. See, Tucker v. Lorieo, 291 AD2d 261 (1st Dept. 2002); and Porter v. Kingsbrook OB/GYN Associates, P.C., 209 AD2d 497 (2nd Dept. 1994). If the plaintiff knew or could have discovered the actual names of the parties named as "John or Jane Doe" with the exercise of due diligence, then a summons naming such parties as unknowns is jurisdictionally defective. See, ABCKO Industries, Inc. v. Lennon, 52 AD2d 435 (1st Dept. 1976).

Anngelon is the prior owner of the Premises. She avers that Junior and she have resided at the Premises continuously since before the commencement of the pendency of the foreclosure action. She avers that they resided at the Premises when the application was made for a writ of assistance and order of possession. In response,Plaintiff has not placef before the Court any evidence of what, if any, attempts it made to ascertain the names of the residents or occupants in the Premises either before or during the foreclosure action or when it made an application for a writ of assistance and an order of possession. Plaintiff most certainly did not offer any evidence rebutting Anngelon's claim that Junior and she have openly and notoriously resided at the Premises during this entire period.

Accordingly, it is,

ORDERED, that Anngelon Emeribe's motion is granted to the extent of vacating the order of possession dated September 13, 2006; and it is further,

ORDERED, that the Notice to Vacate issued by the Sheriff of Nassau County dated October 30, 2006 is vacated as to Anngelon Emeribe and Gregory Emeribe, Jr.; and it is further,

ORDERED, that Anngelon Emeribe's motion to vacate the judgment of foreclosure, the sale and Referee's deed is denied.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

April 17, 2007LEONARD B. AUSTIN, J.S.C.

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