U.S. Bank National Association, as Trustee for Terwin Mortgage Trust 2005-4HE, Asset-Backed Certificates, Series 2005-4HE ("U.S. Bank") moves for a writ of assistance awarding it [*2]possession of the premises 2109 Willoughby Avenue, Wantagh, New York. Defendants Barbara Nacci and Anthony Nacci (collectively "Nacci") cross-move for an order vacating the foreclosure sale.

Nacci were the owners of real property located at 2109 Willoughby Avenue, Wantagh, New York ("Property"). Nacci defaulted in the payment of the mortgage on the Property which resulted in the commencement of this action seeking to foreclose on the mortgage.

A judgment of foreclosure and sale dated April 27, 2006 confirmed the report of the successor referee, Michael J. Langer, Esq., and directed that the Property be sold at public auction under the supervision of the successor referee on a Tuesday September 18, 2007 at 11:30 a.m in the Calender Control Part of this Court.

The auction was, in fact, held on September 18, 2007. Plaintiff Mortgage Electronic Registration Systems, Inc., as nominee for Lending Key ("MERS") was the successful bidder at auction. Upon completion of the auction, MERS assigned its rights, title and interest in and to the Terms of Sale and Judgment of Foreclosure and Sale to U.S. Bank and directed the referee to delivery the deed to U.S. Bank.

The Referee's Report shows a total due on the mortgage, including accrued interest and allowable fees and expenses, to be $522,078.55. The amount bid at sale was $499,723.29 resulting in a deficiency of $22,355.26.

Nacci asserts the foreclosure sale should be vacated because it was not properly conducted. Initially, Nacci alleges that the foreclosure sale was improper because the judgment of foreclosure and sale permitted only the MERS to make a credit bid at the auction. Any bidder other than the MERS was required to pay the entire bid in cash. Since U.S. Bank was not the Plaintiff in this action and allegedly made a credit bid, the foreclosure sale was not conducted in accordance with the terms of the judgment of foreclosure and sale. Therefore, the sale should be vacated and the deed voided.

In response to these allegations, U.S. Bank asserts that it was not the successful bidder at auction. It claims MERS was the successful bidder at auction. Upon the completion of the auction, MERS assigned its rights to U.S. Bank, pursuant to the terms of a written Assignment of Bid. The Assignment of Bid directed the referee to issue the referee's deed to U.S. Bank.

Nacci also assert that the documents upon which U.S. Bank relies raise questions regarding the propriety of the sale. The Assignment of Bid and Affidavit of Advances upon which U.S. Bank relies are executed by Edward Wiener, Esq., MERS attorney. They are sworn to on September 18, 2007, the same day the auction was held. Nacci claims that for everything to have been done in proper sequence, Mr. Wiener or another representative of MERS would have had to have been the successful bidder at the auction. After MERS successfully bid on the Property at auction, Mr. Wiener would then have had to execute the Assignment of Bid and Affidavit of Advances. This sequence of events would have required Mr. Wiener to have been present in the courtroom or at least in or near the courthouse during the auction. Nacci suggests Mr. Wiener was not present at the auction or anywhere near the courthouse. They further suggest that Mr. Wiener executed the Assignment of Bid and Affidavit of Advances in advance of the foreclosure sale and had them delivered to the foreclosure sale by MERS representative and held by that representative. If MERS was the successful bidder at the auction, the documents would be produced and used. If not, then theses documents would not be used.

As further evidence of this alleged impropriety, Nacci point to the fact that none of the [*3]affidavits submitted by U.S. Bank state that Mr. Wiener actually attended the auction or was present in the courthouse when the auction was held. Nacci note that Diane Accovelli notarized the Wiener documents while the referee's report and deed are notarized by Vincent J. DeAngelis. Nacci assert that had Mr. Wiener been present at the auction, all the documents would have been notarized by the same notary.

Nacci assert these circumstances establish sufficient impropriety so as to require the foreclosure sale be set aside and the referee's deed voided. Alternatively, they seek leave to conduct discovery regarding the foreclosure sale and the documents executed in connection therewith. Nacci seek a stay of eviction from the property pending such discovery as well as permission to "redeem" or purchase the property.

At or about the time of the foreclosure sale, Anthony Nacci gave papers relating to the foreclosure sale to his son-in-law Patrick Cappetti ("Cappetti").

Shortly after the foreclosure sale was held, Cappetti contacted representatives of U.S. Bank and offered to purchase the Property for $505,000. He claims a representative of U.S. Bank advised him U.S. Bank would consider the offer if Cappetti obtained a mortgage commitment, placed $5,000 in escrow with Cappetti's attorney and obtained two appropriate independent appraisal's of the property.

Cappetti obtained pre-approval for a mortgage. The pre-approval letter indicates that it is subject a contract, a satisfactory appraisal and any other conditions that may be required. He has placed $5,000 on deposit with his attorney. Cappetti avers he cannot obtain a mortgage commitment until he has a contract to purchase the Property. Cappetti asserts his attorney has transmitted the pre-approval letter and proof of the escrow deposit to U.S. Bank. Cappetti has not received a response to his offer.

"In the exercise of its equitable powers, a court has the discretion to set aside a judicial sale where fraud, collusion, mistake or misconduct casts suspicion on the fairness of the sale." Federal National Mtge. Assoc. v. New York Financial & Mtge. Co., Inc., 222 AD2d 647, (2nd Dept. 1995); and Long Island Savings Bank of Centereach, F.S.B. v. Jean Valiquette, M.D., P.C., 183 AD2d 877 (2nd Dept. 1992). This power should be used sparingly and with great caution and only to relieve a party from oppressive or unfair conduct. Guardian Loan Co., Inc. v. Early, 47 NY2d 515 (1979).

While Nacci suggest possible collusion or misconduct, they offer no specific evidence thereof. Their assertions of collusion or misconduct are based upon speculation or surmise.

It is unclear whether Nacci appeared in the foreclosure action. However, by the time the foreclosure sale was held, Nacci were represented by counsel. Their attorney and/or they could have attended the sale, if for no other reason than to assure the procedures followed were proper. The Court can infer from a reading of the papers that neither Nacci nor their attorneys attended the foreclosure sale.

Nacci's claim of naivete with regard to the judicial process is contrary to the facts. After the judgment of foreclosure and sale had been entered but before the property could be sold by the referee, Anthony Nacci filed a Chapter 13 bankruptcy. The filing of the bankruptcy proceeding automatically stayed the foreclosure sale. 11 U.S.C. §362(a). Although Anthony made monthly payments under the bankruptcy plan, he failed to make the current mortgage payments.

As a result, MERS made application in the bankruptcy court for relief from the automatic [*4]stay. By order dated June 29, 2007, Bankruptcy Judge Stan Bernstein modified the automatic stay to permit MERS to proceed with the foreclosure sale and converted the bankruptcy proceeding to a Chapter 11. Judge Bernstein's order further provided that the bankruptcy trustee be notified within ten days of the foreclosure sale of the existence of any surplus money. The rights of the bankruptcy trustee to this money was preserved.

After the bankruptcy stay had been lifted, Nacci's attorney negotiated an agreement with U.S. Bank that it would not proceed with the foreclosure sale if Nacci paid $20,000 to Plaintiff by a day certain. Nacci was able to tender only $15,000 by that date. Plaintiff refused to accept $15,000 or extend the date for payment and returned the $15,000.

Nacci does not assert they were not provided with proper and timely notice of the foreclosure sale as required by Real Property Actions and Proceedings Law §231, if such notice is required, or that the notice was in any way defective or not published properly. See, Lajos v. Erps. 176 AD2d 703 (2nd Dept. 1991).

If Nacci did not appear in the foreclosure action, they are not required to be served with the notice of the sale. Olympia Mortgage Corp. v. Ramirez, 9 AD3d 401 (2nd Dept. 2004); and Bank of New York v. Agenor, 305 AD2d 438 (2nd Dept. 2003).

Nacci has failed to place before the Court any evidence of impropriety at the foreclosure sale. All of Nacci's allegations are premised upon speculation or surmise as to what occurred. Nacci do not attach an affidavit from the referee indicating that Mr. Wiener was not present at the foreclosure sale. Nacci do not even submit an affidavit from one who has spoken to the referee about the sale. Nacci do not attach an affidavit from the notaries. Nacci do not indicate they have attempted to speak with the referee or the notaries and that they have refused to speak with them.

Nacci's application to conduct discovery on the possible improprieties regarding the foreclosure sale must also be denied. Nacci or their attorney could have made certain all the proper formalities were met by attending the foreclosure sale. They could have ascertained whether the assignment was properly made and the documents properly executed had they attended the auction. Their lack of knowledge is a result of their failure to attend the auction, not some nefarious or surreptitious activities on the part of MERS, U.S. Bank, Mr. Wiener and/or the referee.

Cappetti's application is essentially an application to vacate the foreclosure sale so he can either bid at the sale or exercise Nacci's right of redemption.

Redemption is not permitted after the foreclosure sale. Deutsche Bank Co. of California, N.A. v. DePalo, 38 AD3d 490 (2nd Dept. 2007); and GMAC Mtge. Corp. v. Tuck, 299 AD2d 315 (2nd Dept. 2002). Since the foreclosure sale took place on September 18, 2007, Nacci have no right to redeem.

Nacci also could have avoided having the property being sold at foreclosure by complying with Real Property Actions and Proceedings Law § 1341. See, Green Point Savings Bank v. Oppenheim, 237 AD2d 409 (2nd Dept. 1997). However, they did not avail themselves of the rights or remedies provided by this statute.

The court cannot set aside a foreclosure sale to permit a person who might have, but did not, bid at the sale of the property. See, Dime Savings Bank of New York, FSB v. Zapala, 255 AD2d 547 (2nd Dept 1998);and Crossland Mtge. Corp. v. Frankel, 192 AD2d 571 (2nd Dept. 1993).

Even if it did, Cappetti's offer is $17,000 less than the amount due on the mortgage when [*5]the foreclosure sale was held.

Under the current conditions in the real estate market, Cappetti's offer may very well be fair and reasonable. It might also be in the best interest of U.S. Bank to sell the Property to Cappetti on the terms proposed. However, the Court lacks the authority at law or in equity to compel U.S. Bank to do so.

The judgment of foreclosure and sale provides for the successful bidder at the foreclosure sale to be put into possession of the property. A writ of assistance issued pursuant to Real Property Actions and Proceedings Law §221 is an appropriate method for the successful bidder to be placed in possession. Tri-Land Properties, Inc. v. 115 West 28th Street Corp., 267 AD2d 142 (1st Dept. 1999).

Nacci offer no reason why this Court should not grant a writ of assistance to the U.S. Bank.

Accordingly, it is,

ORDERED, that the motion of U.S. Bank for a writ of assistance is granted; and it is further,

ORDERED, that U.S. Bank is hereby awarded immediate possession of the premises occupied by Barbara Nacci and Antony Nacci known as 2109 Willoughby Avenue, Wantagh, New York 11793 and Plaintiff shall settle a Writ on five (5) days notice; and it is further,

ORDERED, that Defendants' motion to vacate the foreclosure sale is denied.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY______________________________

January 9, 2008Hon. Leonard B. Austin, J.S.C.