Opinion
Index No. 011580/2008
06-14-2024
Deutsche Bank National Trust Company, as Trustee for New Century Home Equity Loan Trust, Series 2005-D, Asset Backed Pass-Through Certificates, Plaintiff, v. Susan R. Fales a/k/a Susan Fales, Lorraine S. Moller, Mortgage Electronic Registration Services, Inc., and Robert S. Moller, Defendants.
PLAINTIFF'S ATTORNEYS: McCabe, Weisberg & Conway, LLC DEFENDANT'S ATTORNEY: Law Offices of Christopher Thompson Attorneys for defendant Lorraine S. Moller
Unpublished Opinion
PLAINTIFF'S ATTORNEYS: McCabe, Weisberg & Conway, LLC
DEFENDANT'S ATTORNEY: Law Offices of Christopher Thompson Attorneys for defendant Lorraine S. Moller
HON. C. STEPHEN HACKELING, J.S.C.
Upon the following papers read on this e-filed motion for judgment of foreclosure and sale: Notice of Motion/Order to Show Cause and supporting papers by plaintiff, filed December 13, 2023; motion to dismiss: Notice of Motion and supporting papers by defendant, filed January 19, 2024; plaintiff's opposition papers filed March 21, 2024; and defendant's reply filed March 26, 2024; it is
ORDERED that plaintiff's motion (motion sequence no. 002) seeking a judgment of foreclosure and sale (said Order being signed contemporaneously herewith) is granted; and it is further
ORDERED that defendant Lorraine S. Moller's motion (motion sequence no. 003) to dismiss the complaint under CPLR § 3215 is denied.
DECISION
Plaintiff Deutsche Bank National Trust Company, as Trustee for New Century Home Equity Loan Trust, Series 2005-D, Asset Backed Pass-Through Certificates (hereinafter the "Bank"), moves this Court seeking a judgment of foreclosure and sale for the real property premises located at 1818 Heckscher Avenue, Bay Shore, New York (hereinafter the "Property") pursuant to application dated December 13, 2023 [NYSCEF Doc. Nos. 5-19] and defendant Lorraine Moller (hereinafter "Moller") having filed a motion to dismiss the Bank's complaint pursuant to an application dated January 19, 2024 [NYSCEF Doc. Nos.: 24-31]. The Bank interposed opposition dated March 20, 2024 to said cross motion seeking dismissal pursuant to CPLR § 3215(c) [NYSCEF Doc. Nos. 33-58], to which Moller replied on March 26, 2024 [NYSCEF Doc. No. 59].
The undisputed facts of this case are that defendant Susan Fales (hereinafter "Fales") purchased the Property on August 15, 2006 and executed a Note and Mortgage in the sum of $300,000 to finance same. On October 25, 2006 Fales conveyed the Property to Moller subject to the Bank's mortgage and, thereafter, moved out of New York State. Fales died on March 14, 2010 without having a known estate.
The above foreclosure action was commenced via summons and complaint dated March 20, 2008. The Bank moved to take defendants' default in answering via application dated August 16, 2017, which resulted in an Order granting said relief together with an Order of Reference dated January 3, 2019 (Molia, A.J.S.C). Notice of Entry dated January 22, 2019 was served and this order became a final Order on February 21, 2019.
Defendant Moller argues that CPLR § 3215(c) requires dismissal of this action as the "plaintiff failed to take proceedings for entry of judgment within one year after the default." She also argues, without moving under CPLR § 5015, that the Order of Reference must be vacated because it was entered after Fales's death.
First, Fales's death prior to the entry of the Order of Reference does not nullify that order. "A mortgagor who has made an absolute conveyance of all his or her interest in the mortgaged premises is not a necessary party to a foreclosure action unless a deficiency judgment is sought." Citimortgage, Inc. v. Warsi, 212 A.D.3d 592 (2d Dept. 2023). Here, the borrower conveyed her interest in the Property in a deed recorded October 25, 2006 (See Doc. No. 37). In addition, plaintiff waived its right to seek a deficiency judgment against Fales's estate (See Doc. No. 33 ¶ 33). Thus, Fales's death is not a basis to vacate the Order of Reference because she is not a necessary party to this foreclosure action.
With regard to Moller's argument under CPLR § 3215, while such an assertion was presumptively valid prior to the Court's January 3, 2019 Order, it is vitiated by the fact that Moller received service of both the complaint and the application to take a default/Order of Reference and did not interpose opposition or appeal same.
As a final order, the issue of the timeliness of taking Moller's default cannot now be raised under the issue preclusion doctrine of "law of the case," and the provisions of CPLR § 3215(c) are therefore inapplicable. See generally, People v. Evans, 94 N.Y.2d 499 (2000).
It is well settled that unless there is a lack of subject matter jurisdiction rendering it void, an "order or judgment of a court is binding on all persons subject to its mandate until vacated or set aside on appeal. Hughes v. Cuming, 165 NY 91, 94 (1900). To that end, the law of the case doctrine generally bars the re-litigation of a prior pre-judgment judicial determination made within the same action. People v. Evans, 94 N.Y.2d at 502. Judges of coordinate jurisdiction are thus prohibited from entertaining or deciding previously decided matters. Id. at 503-504. Accordingly, once a prior judge on a motion conclusively decides an issue, it becomes binding upon the proceedings thereafter.
Here, this Court considered and decided the issues of Moller's default in plaintiff's favor when plaintiff moved for a default judgment. The doctrine of law of the case precludes this Court from reconsidering those issues in opposition to plaintiff's motion to confirm the referee's report and for judgment of foreclosure and sale. See U.S. Bank Trust, N.A. v. Michael Longo, - N.Y.S.3d -, 2024 WL 2737738 (2d Dept. 2024). It has already been determined that Moller defaulted in answering. By implication, this Court's prior holding also means that the instant application did not warrant dismissal, as Moller argues, pursuant to CPLR § 3215(c). U.S. Bank, N.A. v. Rodriguez, 81 Misc.3d 1231 (A), 202 N.Y.S.3d 724 (Sup. Ct. Bronx County 2024).
Moller had a full and fair opportunity to contest all foreclosure issues before Justice Molia. Defendant is collaterally estopped from seeking to do so now. See, Buechel v. Bain, 97 N.Y.2d 295 (2001) for applicability of collateral estoppel doctrine.
Finally, "a foreclosure action is equitable in nature and triggers the equitable powers of the court." Onewest Bank, FSB v. Kaur, 172 A.D.3d 1392, 1393 (2d Dept. 2019). "Once equity is invoked, this Court's power is as broad as equity and justice require." U.S. Bank N.A. v. Losner, 145 A.D.3d 935, 938 (2d Dept. 2016). The doctrine of laches bars recovery where a party's inaction has prejudiced another party, making it inequitable to permit recovery. First Nationwide Bank v. Calano, 223 A.D.2d 524 (2d Dept. 1996)(defendant's motion to vacate her default denied because of her inexcusable delay of nearly one year in seeking to vacate her default.); Chase Manhattan Mortg. Corp. v. Anatian, 22 A.D.3d 625, 627 (2d Dept. 2005)("the inexcusable delay of 18 months in moving to vacate an order of reference, a judgment of foreclosure and sale, and referee's deed, together with the detriment... caused by the delay, warrants application of the laches doctrine.")
In Hudson City Savings Bank v. Hossain, 181 A.D.3d 572 (2d Dept. 2020), the Court denied defendant's motion to vacate the order of reference and judgment of foreclosure and sale based on laches. The Court stated that "[i]t was not until 28 months after the entry of the order of reference, 16 months after the entry of the order and judgment of foreclosure and sale, and 7 months after the referee's deed transferring title to the plaintiff's successor that defendant moved to vacate the order of reference and judgment of foreclosure and sale." It concluded that "[u]nder these circumstances, the 'combination of inexcusable delay and detriment to other parties requires application of the doctrine of laches.'" Id. at 575.
Here, defendant Moller was personally served with the summons and complaint in 2008 (Doc. No. 6); served with the summons and complaint by mail on April 2, 2008 (Doc. No. 8); served with the request for judicial intervention on June 2, 2015 (Doc. No. 16); and served with the Notice of Entry of the Order of Reference on August 24, 2017 (Doc. No. 51). It would be unjust to reward defendant who has waited over 15 years to take any action with such delay resulting in a detriment to plaintiff who has advanced $138,409.29 in taxes and insurance (See Doc. No. 13). Applying the laches doctrine in this case is equitable and just.