Opinion
060773/2013
05-24-2016
Bank of America, Plaintiff, v. George Riccardi, a/k/a GIORGO A. RICCARDI, ROSEMARY RICCARDI, CAPITAL ONE BANK, CHAS CANCELLARE, d KROHN, ROSENBLUM, HAMETZ, et al, PJ CARPET, INC., d/b/a/ EASTERN CARPET, GOOD SAMARIAN HOSP. MEDICAL CENTER, SUPERVISOR OF THE TOWN OF BABYLON, PEOPLE OF THE STATE OF NEW YORK, NEW YORK, ASSET ACCEPTANCE LLC, SARAH BRUCAS, and JOHN DOE AND JANE DOE these last two names being fictitious and intended to be unknown persons entitities having some claim or interest in the mortgaged premises, Defendants.
FRANKEL LAMBERT Attys. for Plaintiff 53 Gibson Street Bay Shore, NY 11706 LEE FRIEDMAN, ESQ Atty. for Defendant R. Riccardi 300 Wheeler Road Hauppauge, NY 11778 CHRISTOPHER THOMPSON, ESQ. Atty. For Movant/Proposed Intervenor 33 Davison Lane East West Islip, NY 11795
FRANKEL LAMBERT Attys. for Plaintiff 53 Gibson Street Bay Shore, NY 11706 LEE FRIEDMAN, ESQ Atty. for Defendant R. Riccardi 300 Wheeler Road Hauppauge, NY 11778 CHRISTOPHER THOMPSON, ESQ. Atty. For Movant/Proposed Intervenor 33 Davison Lane East West Islip, NY 11795 Thomas F. Whelan, J.
Upon the following papers numbered 1 to6read on this motion by a non-party for leave to intervene and to vacate all prior proceedingsNotice of motion and supporting papers; Order to Show Cause and supporting papers 1-4; Opposing papers;5-6Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion (#004) by Hampton Dream Properties, LLC, for leave to intervene in this mortgage foreclosure action and for other relief, including renewal and reargument of prior motions, vacatur of the judicial sale of the mortgaged premises, the judgment of foreclosure and sale and the prior order of reference, and a dismissal of the plaintiff's complaint on standing and othergrounds, is considered under CPLR Article 10 and is denied.
In May of 2013, the plaintiff commenced this action to foreclose the lien of a March 23, 2004 mortgage given by the Riccardi defendants to secure a mortgage note executed by them on that same date. The plaintiff claims that a default in payment occurred on October 1, 2010 which default remained without cure at the time of the commencement of this action. Following due service of the summons and complaint upon the known defendants in May and June of 2013, none of the defendants appeared herein by answer. In September of 2014, the plaintiff was awarded an order of reference on default while a cross motion by defendant, Rosemary Riccardi, to vacate her default in answering was denied (see Memo Decision and Order dated September 29, 2014 on Motion Sequences 001 & 002). On April 17, 2015, the plaintiff was awarded a judgment of foreclosure and sale (Motions Sequence 003). Pursuant thereto, the mortgaged premises were sold to the plaintiff at a public auction conducted by the referee of sale and a deed subsequently issued in favor of the plaintiff on February 3, 2016.
By the instant motion (#004), a non-party entity known as Hampton Dream Properties, LLC, [hereinafter Hampton], seeks leave to intervene in this action and to vacate all proceedings held herein including, the pubic sale of the premises to the plaintiff. In its moving papers, Hampton claims an entitlement to leave to intervene because it purportedly became the owner of the subject premises on June 20, 2014, under a deed by defendant, Rosemary Riccardi, which was recorded in the office of the Suffolk County Clerk on July 17, 2014. The Recording and Endorsement page issued by the Clerk upon such recording reflects that no transfer tax was paid as the conveyance was made without consideration. For the reasons stated below, the motion is denied. Both the conveyance and the recording of the deed conveying it effected prior to defendant Rosemary Riccardi's interposition of her cross motion (#002) to vacate her default in answering which was denied by order dated September 29, 2014.
It is well established that intervention pursuant to either CPLR 1012 or CPLR 1013 requires a timely motion for such relief (see U .S. Bank Natl. Ass'n v Bisono , 98 AD3d 608, 949 NYS2d 652 [2d Dept 2012]; JP Morgan Chase Bank , N.A. v Edelson , 90 AD3d 996, 934 NYS2d 847 [2d Dept 2011]; see also Matter of Rutherford Chems , LLC v Assessor of Town of Woodbury , 115 AD3d 960, 982 NYS2d 573 [2d Dept 2014]; Deutsche Bank Natl . Trust Co. v Golding , 123 AD3d 757, 1 NYS3d 113 [2d Dept 2014]). Moreover, entitlement to an order granting leave to intervene under either statue, requires the movant to show "a real and substantial interest in the outcome of the litigation (see Global Team Vernon , LLC v. Vernon Realty Holding , LLC , 93 AD3d 819941 NYS2d 631 [2d Dept 2012]; 112-40 F .L.B. Corp. v Tycoon Collections , Inc ., 73 AD3d 719, 901 NYS2d 294 [2d Dept 2010]; Wells Fargo Bank , N.A. v McLean , 70 AD3d 676, 894 NYS2d 487 [2d Dept 2010]).
It is also well settled that a judgment of foreclosure and sale entered against a defendant, even upon his or her default, is final as to all questions at issue between the parties, and all matters of defense which were or might have been litigated in the foreclosure action are concluded (see Dupps v Betancourt , 121 AD3d 746, 994 NYS2d 633 [2d Dept 2014]; Signature Bank v Epstein , 95 AD3d 1199, 1200, 945 NYS2d 347 [2d Dept 2012]; 83—17 Broadway Corp . v Debcon Fin. Servs., Inc ., 39 AD3d at 584—585, 835 NYS2d 602 [2d Dept 2007]). Such a judgment is also binding upon those in privity with the defendants who were duly joined in the action (see Dupps v Betancourt , 121 AD3d 746, supra).
A conveyance of premises made pursuant to a judgment of foreclosure and sale "is an entire bar against each of them and against each party to the action who was duly summoned and every person claiming from, through or under a party by title accruing after the filing of the notice of the pendency of the action" (RPAPL§ 1353). Finally, it is axiomatic that a person whose conveyance or encumbrance is recorded after the filing of a notice of pendency is bound by all proceedings taken in the action after such filing to the same extent as if he were a party (see CPLR 6501; DLJ Mtge . Capital , Inc. v Windsor , 78 AD3d 645, 910 NYS2d 160 [2d Dept 2010]; Goldstein v Gold , 106 AD2d 100, 483 NYS2d 375 [2d Dept 1984], affd. 66 NY2 624, 495 NYS2d 32 [1985]), and a person holding an interest that accrued prior to the filing of a notice of pendency, but not recorded until after the filing of such notice, is also bound (see Polish Natl . Alliance of Brooklyn , v White Eagle Hall Co., 98 AD2d 400, 404, 470 NYS2d 642 [2d Dept 1983]).
Here, Hampton took title to the subject premises with knowledge of the plaintiff's lien due to the filing of the plaintiff's notice of pendency on May 7, 2013 and is thus bound by all proceedings had herein. Hampton undertook no action to intervene herein for some twenty-two months following the purported taking of title from defendant, Rosemary Riccardi, by her deed of June 20, 2014, which was a conveyance without consideration. Hampton then sat idle while its grantee, Rosemary Riccardi, unsuccessfully moved to vacate her default in answering in her cross motion (#002) to the plaintiff's motion (#003) for an order of reference on default in September of 2014. In her cross moving papers, Ms. Riccardi failed to disclose to the court that she had divested herself of title to the premises just two months prior and thus was no longer a proper party defendant to the action, as no claim for a deficiency judgment against her was advanced in the complaint, and none was granted against her in the judgment of foreclosure and sale. Hampton, who acquired it title from Ms. Riccardi after the filing of the notice of pendency is bound by both the judgment of foreclosure and sale and the conveyance made by the referee of sale following the public auction of the premises (see RPAPL § 1353; CPLR 6501).
Under these circumstances, the court finds this motion for leave to intervene untimely as Hampton "unduly delayed in seeking leave to intervene in this mortgage foreclosure action" ( Deutsche Bank Natl . Trust Co. v Golding , 123 AD3d 757, supra). Moreover, because Hampton paid no consideration for the conveyance, there was no showing that it had a real and substantial interest in this foreclosure action. All other contentions advanced in support of the application for leave to intervene are rejected as unmeritorious. Those portions of this motion wherein Hampton seeks leave to intervene are thus denied.
The remaining portions of the instant motion were rendered academic by the denial of leave to intervene. Even if it were otherwise, none of the grounds for vacatur of the sale, the judgment and the order of reference advanced in the moving papers have merit. Indeed, most of such grounds border on the frivolous as they are contrary to well established precepts of law applicable to this mortgage foreclosure action as pronounced by various appellate case authorities emanating from the Appellate Division, Second Department, including that a lack a standing is not a jurisdictional defect (see e.g., Consumer Solutions , LLC v Charles , 137 AD3d 952, 27 NYS3d 216 [2d Dept 2016]; Nationstar Mortg ., LLC v Wong , 132 AD3d 825, 18 NYS3d 669 [2d Dept 2016]; US Bank Nat . Ass'n v Smith , 132 AD3d 848, 19 NYS3d 62 [2d Dept 2015]; Mortgage Electronic Registration Systems , Inc. v Holmes , 131 AD3d 680, 17 NYS3d 31 [2d Dept 2015]; Chiao v Poon , 128 AD3d 879, 11 NYS3d 87 [2d Dept 2015]; Wells Fargo Bank , N.A. v Rooney , 132 AD3d 980, 19 NYS3d 543 [2d Dept 2015]; Summitbridge Credit Inv., LLC v Wallace , 128 AD3d 676, 9 NYS3d 320 [2d Dept 2015]). Moreover, the attempt by Hanpton, a business entity, to raise statutory defenses belonging solely to borrowers who are natural persons that occupy the mortgaged premises as their principal residence are so lacking in merit that they likewise appear to be frivolous ( see RPAPL §§ 1302; 1304; CPLR 3404).
Finally, Hampton's claim that the bid price paid for the property was unconscionably low lacks merit since no deficiency judgment may be recovered from Hampton (see Option One Mortg . Corp. v Daddi , 60 AD3d 920, 874 NYS2d 822 [2d Dept 2009]). This result is in keeping with the well established rule that "where the successful bid for a sum less than the amount due is made by a mortgagee who seeks no deficiency judgment, the law deems the bid to be the equivalent of the mortgage balance plus the sale expenses" (see Polish Natl . Alliance of Brooklyn , v White Eagle Hall Co., 98 AD2d 400, 408, supra). "A mortgagee, which bids in the property for less than the amount due, is not required to indulge the useless act of paying itself the amount of its bid . The rule has a sound rationale, for in the absence of a deficiency judgment proceeding, the consequence of the bid is to give full credit to the mortgagor for the amount of the mortgage balance plus the expenses of the sale (id).
Here, no deficiency judgment may be recovered from Hampton as it was not an obligor under the note nor was it served with process (see RPAPL § 1371). It is thus Hampton who is without standing to seek a vacatur the sale and the deed on the grounds that the purchase price paid was unconscionably low and/or grossly inadequate. Hampton's demand for such relief is thus denied.
In view of the foregoing, the instant motion (#004) by Hampton for leave to intervene and for the other relief outlined above is in all respects denied. Dated: ____May 24, 2016_______________________________________ THOMAS F. WHELAN, J.S.C.