The ex parte motion of plaintiff U.S. BANK, N.A. AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST 2006-BC1 [U.S. BANK], for service of a supplemental summons by publication upon defendant KELVY GUICHARDO [GUICHARDO], and related relief, in a mortgage foreclosure action for the premises located at 12 Elderts Lane, Brooklyn, New York (Block 4112, Lot 61, County of Kings) is denied without prejudice, with leave to renew the instant motion, within sixty (60) days of this decision and order, with the submission of an affirmation by Steven J. Baum, Esq., himself, the principal of Steven J. Baum, P.C., plaintiff's counsel, explaining whether both MORTGAGE ELECTRONIC REGISTRATION SYSTEMS [MERS], as nominee for AEGIS FINANCIAL CORPORATION [AEGIS], the assignor of the instant mortgage and note, to the assignee, [*2]plaintiff U.S. BANK, in the June 23, 2008 assignment of the instant mortgage and note, consented to simultaneous representation by Steven J. Baum, P.C., with "full disclosure of the implications of the simultaneous representation and the advantages and risks involved."

I received plaintiff's moving papers on January 28, 2009 and checked the Automated City Register Computer System (ACRIS) website of the Office of the City Register of the City of New York. I discovered that defendant GUICHARDO executed the instant mortgage and note on December 16, 2005 and borrowed $460,800.00 from AEGIS. MERS, as nominee for AEGIS, recorded the instant mortgage and note on March 2, 2006, in the Office of the City Register of the City of New York, City Register File Number (CRFN) 2006000120272. Then, MERS, as nominee for AEGIS, assigned the instant mortgage and note to plaintiff U.S. BANK, on June 23, 2008. The assignment was recorded on July 15, 2008, in the Office of the City Register of the City of New York, CRFN 2008000279244. Plaintiff commenced the instant action by filing the summons, complaint and notice of pendency with the Office of the Kings County Clerk on July 1, 2008.

The June 23, 2008 assignment was executed by "Elpiniki Bechakas, Assistant Secretary and Vice President" of MERS. Ms. Bechakas is a member of the New York State Bar and her business address, according to the Office of Court Administration's Attorney Registration, is "Steven Baum, P.C., 220 Northpointe Parkway, Suite G, Amherst, NY 14228-1894." As noted above, Steven J. Baum, P.C. is the attorney for plaintiff U.S. BANK, the assignee. The Court is concerned that the simultaneous representation by Steven J. Baum, P.C. of both MERS, as nominee for AEGIS, and U.S. BANK is a conflict of interest in violation of 22 NYCRR § 1200.24, the Disciplinary Rule of the Code of Professional Responsibility, entitled "Conflict of Interest;

Simultaneous Representation."

Subsequently, in January 2009, plaintiff made the instant motion to serve defendant GUICHARDO by publication, pursuant to CPLR Rule 316, claiming that after a diligent search, defendant GUICHARDO could not be found. My review of plaintiff's moving papers, including an ACRIS search of the instant mortgage and note, revealed the simultaneous representation by Steven J. Baum, P.C. in the June 23, 2008 MERS, as nominee for AEGIS, to U.S. BANK assignment.

A conflict of interest exists in the instant action. Plaintiff's counsel represents both the assignor of the instant mortgage, MERS as nominee for AEGIS, and the assignee of the instant mortgage, U.S. BANK. 22 NYCRR § 1200.24, of the Disciplinary Rules of the Code of Professional Responsibility, entitled "Conflict of Interest; Simultaneous Representation," states in relevant part:

(a) A lawyer shall decline proffered employment if the exercise of

independent professional judgment in behalf of a client will be or is

likely to be adversely affected by the acceptance of the proffered

employment, or if it would be likely to involve the lawyer in representing

differing interests, except to the extent permitted under subdivision (c) [*3]

of this section. (b) A lawyer shall not continue multiple employment if the

exercise of independent professional judgment in behalf of a client

will be or is likely to be adversely affected by the lawyer's representation

of another client, or if it would be likely to involve the lawyer in

representing differing interests, except to the extent permitted under

subdivision (c) of this section. (c) in the situations covered by subdivisions (a) and (b) of this

section, a lawyer may represent multiple clients if a disinterested lawyer

would believe that the lawyer can competently represent the interest

of each and if each consents to the representation after full disclosure

of the implications of the simultaneous representation and the

advantages and risks involved. [Emphasis added]

For the instant action to proceed, plaintiff U.S. BANK needs to explain to this

Court, with an affirmation by Steven J. Baum, Esq., the principal of Steven J. Baum, P.C., explaining whether both MERS, as nominee for AEGIS, and U.S. BANK consented to simultaneous representation in the instant action, with "full disclosure of the implications of the simultaneous representation and the advantages and risks involved [22 NYCRR

§ 1200.24 (c)]."

The Appellate Division, Fourth Department, the Department where both Ms. Bechakas and Mr. Baum are registered, censured an attorney for, inter alia, violating 22 NYCRR § 1200.24, by representing both a buyer and sellers in the sale of a motel. (In re Rogoff, 31 AD3d 111 [2006]). The Rogoff Court, at 112, found that the attorney, "failed to make appropriate disclosures to either the sellers or the buyer concerning dual representation." Further, the Court, at 113, censured the attorney, after it considered the matters submitted by respondent in mitigation, including:

that respondent undertook the dual representation at the insistence of

the buyer, had no financial interest in the transaction and charged the

sellers and the buyer one half of his usual fee. Additionally, we note

that respondent cooperated with the Grievance Committee and has

expressed remorse for his misconduct.

If this Court receives, upon the renewal of the instant motion for service of a supplemental summons by publication upon defendant GUICHARDO, and related relief, an affirmation from Mr. Baum which includes a satisfactory explanation why Steven J. Baum, P.C. simultaneously represented both MERS, as nominee for AEGIS, and U.S. BANK, in the June 23, 2008 assignment of the underlying mortgage and note, within sixty (60) days of this decision and [*4]order, the Court will grant plaintiff's renewed application for service of a supplemental summons by publication upon defendant GUICHARDO, and related relief.

Accordingly, it is

ORDERED, that the motion of plaintiff, U.S. BANK, N.A. AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST 2006-BC1, for service of a supplemental summons by publication upon defendant KELVY GUICHARDO, and related relief, in a mortgage foreclosure action for the premises located at 12 Elderts Lane, Brooklyn, New York (Block 4112, Lot 61, County of Kings) is denied without prejudice; and it is further

ORDERED, that leave is granted to plaintiff, U.S. BANK, N.A. AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST 2006-BC1, to renew its motion for service of a supplemental summons by publication upon defendant KELVY GUICHARDO, and related relief, in a mortgage foreclosure action for the premises located at 12 Elderts Lane, Brooklyn, New York (Block 4112, Lot 61, County of Kings), within sixty (60) days of this decision and order, provided that plaintiff, U.S. BANK, N.A. AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST 2006-BC1, submits to the Court an affirmation by Steven J, Baum, Esq., himself, explaining whether Steven J. Baum, P.C. violated 22 NYCRR § 1200.24, the Disciplinary Rule of the Code of Professional Responsibility, entitled "Conflict of Interest; Simultaneous Representation," by acting as the assignor and counsel for the assignee in the June 23, 2008 assignment of the instant mortgage and note from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, as nominee for AEGIS FINANCIAL CORPORATION, to U.S. BANK, N.A. AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST 2006-BC1.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S. C.