DEUTSCHE BANK NATIONAL TRUST COMPANY, as TRUSTEE OF THE INDYMAC INDX MORTGAGE LOAN TRUST 2005-AR18, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AR18 UNDER THE POOLING AND SERVICING AGREEMENT DATED SEPT. 1, 2005 vs. EROILDA P. CICCHELLI and RAY CICCHELLI

Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Loan Trust 2005-AR18, Mortgage Pass-Through Certificates, Series 2005-AR18 under the Pooling and Servicing Agreement dated Sept. 1, 2005 (“Deutsche”) filed its verified Complaint to Foreclose on the property of Eroilda P. Cicchelli (“E. Cicchelli”) and Ray Cicchelli (the “Cicchellis”)(10 MISC 423350) pursuant to the Servicemembers Civil Relief Act (the “Servicemembers Act”), along with Mortgagee’s Affidavit, on February 24, 2010, seeking a ruling that the Cicchellis are not in the military service. On September 23, 2010, Deutsche filed a Motion to Substitute Party, asking the court to strike Deutsche from its verified Complaint to Foreclose and substitute OneWest Bank, F.S.B. (“OneWest”), which this court (Scheier, C.J.) allowed. [Note 1], [Note 2]

On August 17, 2010, the Cicchellis filed their verified complaint against Deutsche and OneWest (10 MISC 436809), seeking a judgment that Deutsche and OneWest lack standing under the Servicemembers Act to obtain a judgment in that matter, and therefore could not conduct a valid foreclosure sale, as well as a preliminary and permanent injunction against the foreclosure sale. Along with their complaint, the Cicchellis filed an Application for Injunctive Relief, Emergency Motion for Temporary Restraining Order, supporting Affidavit of Counsel, Motion for Issuance of Memorandum of Lis Pendens, and Motion for Short Order of Notice. On August 24, 2010, there was a hearing on the Cicchellis’ Application for Preliminary Injunction, at which Deutsche and OneWest agreed to postpone the foreclosure sale until the Servicemembers Act case went to judgment. Because the issue involved in both OneWest’s Servicemembers Act case and the Cicchellis’ foreclosure case is the standing of OneWest to foreclose on the Cicchellis’ mortgage, this court consolidated 10 MISC. 423350 and 10 MISC 436809, per a Post Hearing Order issued on November 30, 2010.

On December 31, 2010, OneWest filed its Motion for Summary Judgment, along with Affidavit of Plaintiff. [Note 3], [Note 4] On January 20, 2011, the Cicchellis filed their Motion in Opposition to Summary Judgment. On February 22, 2011, OneWest filed its Response to Cicchellis’ Opposition to Summary Judgment. On March 25, 2011, the Cicchellis filed an Assented Motion to Allow the Cicchellis to File Response to OneWest’s Reply Brief, and on April 13, 2011, the Cicchellis filed their Response to OneWest’s Reply Brief. At that time the matter was taken under advisement. A decision of today’s date has been issued.

In accordance with that decision, it is:

ORDERED and ADJUDGED that OneWest, as the Mortgage holder, has standing to bring an action against the Cicchellis under the Servicemembers Act.

ORDERED and ADJUDGED that, because there is no evidence that the Cicchellis are currently in the military service or recently released from military service – and the Cicchellis have not alleged that they are – OneWest is entitled to judgment in OneWest’s favor under the Servicemembers Act.

ORDERED and ADJUDGED that the Cicchellis are not entitled to an injunction against OneWest’s foreclosure on the Mortgage.

ORDERED and ADJUDGED that OneWest’s Motion for Summary Judgment is ALLOWED.

By the court (Sands, J.)