Opinion
No. 18129/2010.
2012-06-27
BAC HOME LOANS SERVICING, L.P., f/k/a Countrywide Home Loans Servicing, L.P. v. Charles BORDES, et al.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., by Gerry Careccia Leonti, Esq., Garden City, NY, for Plaintiff. Cabanillas & Associates, P.C., by Wendy Marie Weathers and Alain Cesar, Esqs., White Plains, NY, for Defendant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., by Gerry Careccia Leonti, Esq., Garden City, NY, for Plaintiff. Cabanillas & Associates, P.C., by Wendy Marie Weathers and Alain Cesar, Esqs., White Plains, NY, for Defendant.
CHARLES J. MARKEY, J.
The following papers numbered 1 to 12 read on this motion by defendant Charles Bordes to dismiss the complaint, pursuant to CPLR 3215(c), or for leave to serve an answer.
+-----------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------+----------¦ ¦Notice of Motion–Affidavits–Exhibits¦1–4 ¦ +------------------------------------+----------¦ ¦Answering Affidavits–Exhibits ¦5–8 ¦ +------------------------------------+----------¦ ¦Reply Affidavits ¦9–12 ¦ +-----------------------------------------------+
Plaintiff commenced this foreclosure action by filing a copy of the summons and complaint on July 19, 2010. Plaintiff alleged in its complaint that defendants Charles Bordes and Michelle Bordes gave a mortgage on the real property known as 240–18 Weller Avenue, Rosedale, in Queens County, New York, to secure repayment of a promissory note, evidencing a loan in the original principal amount of $493,600.00, plus interest. Plaintiff alleged in its complaint that it is the holder of the mortgage and underlying note pursuant to an assignment dated July 8, 2010. It also alleged that defendants Charles Bordes and Michelle Bordes defaulted under the terms of the mortgage and note by failing to make the monthly installment payment of interest and taxes due on August 1, 2008, and it elected to accelerate the entire mortgage debt.
Plaintiff offers an affidavit dated July 29, 2010, by Victoria Vinceslio, indicating service of process upon defendant Charles Bordes, by service of a copy of the summons and complaint, upon Michele Bordes “WIFE” on July 27, 2010 at 6:45 A.M. at 59 Dean Street, Islandia, in Suffolk County, New York, the “dwelling house” of defendant Charles Bordes, and a subsequent mailing of a copy of the summons and complaint to defendant Charles Bordes at the same address. The affidavit of service was filed with the County Clerk on July 30, 2010. Service became complete on August 9, 2010, 10 days after the proof of service was filed ( see,CPLR 308[2] ). Defendant Charles Bordes admittedly defaulted in answering the complaint ( seeCPLR 3012[c] ), and it is undisputed that plaintiff failed to move for leave to enter a default judgment against him within one year after his default on September 8, 2010 (CPLR 3215[a] ).
Defendant Charles Bordes, upon the foregoing papers, moves to dismiss the complaint asserted him as abandoned (CPLR 3215[c] ), or, alternatively, moves, in effect, to vacate his default and extend his time to serve an answer. Plaintiff opposes the motion.
Under CPLR 3215(c), if a plaintiff fails to seek entry of a judgment within one year after default the court “shall dismiss the complaint as abandoned ... unless sufficient cause is shown why [it] should not be dismissed.”
Plaintiff did not abandon this action. On August 9, 2010, prior to the expiration of the statutory time in which defendant Charles Bordes had to answer, plaintiff filed and served a request for judicial intervention, seeking a residential foreclosure conference (pursuant to CPLR 3408), on the ground the property was residential and improved with a one-to-four family, owner-occupied dwelling. Counsel for plaintiff and defendant Charles Bordes attended the conference held on January 25, 2011, and by order of the same date, Court Attorney–Referee Mark J. Kugelman determined that the case did not belong in the Court's Residential Foreclosure Part, inasmuch as defendant Charles Bordes did not reside at the mortgaged premises.
Following the release of the case from that Part, plaintiff entertained a loan modification application made by defendants Charles Bordes and Michelle Bordes. In reviewing it, plaintiff requested in letters dated March 25, 2011 and April 6, 2011, that they provide additional documentation. Thereafter, by letter dated October 21, 2011, plaintiff agreed to entertain a loan modification application by defendants Charles Bordes and Michelle Bordes, pursuant to the Home Affordable Modification Program (HAMP), if they submitted it by November 5, 2011.
By November 11, 2011, plaintiff, in effect, extended the deadline for submission to November 26, 2011.
Plaintiff's forbearance during the period awaiting the holding of the settlement conference and thereafter, through at least November 26, 2011, is a “sufficient cause” for its failure to have sought leave to enter a judgment against defendant Charles Bordes within one year after his default ( CPLR 3215[c]; Ingenito v. Grumman Corp., 192 A.D.2d 509, 596 N.Y.S.2d 83 [2nd Dept.1993] ).
Defendant Charles Bordes served his motion on January 19, 2012.
The plaintiff, in addition, has offered proof that it was the holder of the subject mortgage and note at the time of the action's commencement ( cf. Bank of New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532 [2nd Dept.2011] ), and defendants Charles Bordes and Michelle Bordes defaulted in payment under the mortgage and note. The plaintiff, therefore, has shown that its claim is potentially meritorious ( see, Ryant v. Bullock, 77 A.D.3d 811, 908 N.Y.S.2d 884 [2nd Dept.2010] ). Under such circumstances, plaintiff has made a sufficient showing to avoid dismissal of the complaint as abandoned ( see,CPLR 3215[c] ).
With respect to the alternative branch of the motion by defendant Charles Bordes, it is, in effect, a motion for leave to vacate his default in answering and extend the time to serve an answer. A party moving to vacate a default and to extend the time to answer pursuant to CPLR 5015(a)(1) must establish a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense ( see, Zaidman v. Zaidman, 90 A.D.3d 1035, 935 N.Y.S.2d 147 [2nd Dept.2011]; Bank of Am. v. Faracco, 89 A.D.3d 879, 932 N.Y.S.2d 706 [2nd Dept.2011]; Stephan B. Gleich & Assoc. v. Gritsipis, 87 A.D.3d 216, 221, 927 N.Y.S.2d 349 [2nd Dept.2011]; Midfirst Bank v. Al–Rahman, 81 A.D.3d 797, 797–798, 917 N.Y.S.2d 871 [2nd Dept.2011]; Coulter v. Town of Highlands, 26 A.D.3d 456, 457, 809 N.Y.S.2d 466 [2nd Dept.], lv. to appeal dismissed,7 N.Y.3d 741 [2006] ).
Defendant Charles Bordes offered no excuse for his default in answering the complaint in the papers annexed to his notice of motion, and improperly attempts, for the first time, to offer an explanation for his default in his affidavit submitted in reply (CPLR 2214; Malanga v. Chamberlain, 71 A.D.3d 644 [2010];Voytek Technology, Inc. v. Rapid Access Consulting, Inc., 279 A.D.2d 470 [2001] ).
To the extent his affidavit raises the issue of lack of personal jurisdiction due to improper service of process, it is conclusory and inadequate to show that the 59 Dean Street address was not his actual dwelling place or usual place of abode on July 27, 2010 ( see, Northeast Sav., F.A. v. Picarello, 232 A.D.2d 384, 648 N.Y.S.2d 145 [2nd Dept.1996]; Degonzague v. Entwistle, 2009 WL 3253808, 2009 N.Y. Misc. LEXIS 6288, 2009 N.Y. Slip Op 32275(U) [Sup Ct. Albany County 2009]; see generally, Feinstein v. Bergner, 48 N.Y.2d 234, 239–241 [1979] ). Defendant Charles Bordes also does not aver that he did not receive personal notice of the summons in time to defend ( see,CPLR 317; C & H Import & Export, Inc. v. MNA Global, Inc. ., 79 A.D.3d 784, 912 N.Y.S.2d 428 [2nd Dept.2010]; Irwin Mtge. Corp. v. Devis, 72 A.D.3d 743, 898 N.Y.S.2d 854 [2nd Dept.2010]; Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d 1327, 885 N.Y.S.2d 625 [2nd Dept.2009] ).
Accordingly, the motion is denied.
The foregoing constitutes the decision, order, and opinion of the Court.