Opinion
No. 33677/07.
09-29-2014
HSBC BANK USA, National Association, as Trustee for the holders of Deutsche Alt–A Securities Mortgage Loan Trust, Series 2007–BARI, Plaintiff, v. Anne MARTIN–LLOYD, et al., Defendants.
Austin T. Shufelt, Esq., Shapiro, DiCaro & Barak, LLC, Rochester, for Plaintiffs. Henry Kohn, Esq., Brooklyn, for Proposed Intervenor.
Austin T. Shufelt, Esq., Shapiro, DiCaro & Barak, LLC, Rochester, for Plaintiffs.
Henry Kohn, Esq., Brooklyn, for Proposed Intervenor.
Opinion
CAROLYN E. DEMAREST, J.
The following papers numbered 1 to 5 read on this motion:Papers Numbered
| Notice of Motion/Order to Show Cause/Petition/ | |
| Cross Motion and Affidavits(Affirmations)Annexed | 1–3 |
| Opposing Affidavits (Affirmations) | 4 |
| Reply Affidavits(Affirmations) | 5 |
| Affidavits(Affirmations) | |
| Other Papers (Memoranda of Law) |
Plaintiff moves for a Judgment of Foreclosure and Sale on the residential property, 207 Kosciouszko Street, Brooklyn, N.Y. (“Property”). Realty & Services Group Inc. (“Realty”) cross-moves to intervene in this action, vacate the defendant's default, and dismiss the action.
BACKGROUND
Plaintiff commenced the present foreclosure action by filing a complaint, in which the mortgage debt was accelerated, and a notice of pendency on September 5, 2007. An Order of Reference was signed on March 10, 2010 upon the defendant's default. On February 20, 2013, Realty acquired the Property. On August 13, 2013, Justice Lawrence Knipel issued a conditional order of dismissal, sua sponte, if plaintiff failed to file a Note of Issue or otherwise move for the entry of judgment within 90 days. On September 24, 2013, plaintiff moved to vacate the prior Order of Reference and to grant a new Order of Reference. On November 7, 2013, this court granted plaintiff's motion to vacate the original Order of Reference and granted a new Order of Reference (“New Order of Reference”). On February 8, 2014, plaintiff made the present motion for a Judgment of Foreclosure and Sale returnable on March 21, 2014. On March 27, 2014, the newly retained attorney for Realty, Henry Kohn, Esq., appeared at oral argument on the motion and requested an adjournment to oppose the Judgment of Foreclosure and Sale. This court granted that request. Realty cross-moved to intervene and to dismiss the complaint on June 3, 2014.
Subsequent notices of pendency were filed on August 2, 2010 and September 24, 2013.
The plaintiff's motion was based on its concern regarding the prior counsel's commencement of the action prior to the date listed in the assignment in which the plaintiff acquired the note and mortgage at issue. The motion also noted that plaintiff was unable to verify the accuracy of a prior affidavit submitted in support of the original Order of Reference by prior counsel. Accordingly, the plaintiff included an affidavit, by a person with knowledge, indicating the accuracy of the computations and indicating that the plaintiff was in possession of the note prior to the commencement of this action.
ANALYSIS
The plaintiff submitted proof of its service of the New Order of Reference, including service to the defendant at the Property as was directed by this court, and the oath and report of the amount due by the referee as directed in the New Order of Reference. As the plaintiff demonstrated the prima facie evidence necessary for the granting of a Judgment of Foreclosure and Sale, the court turns to Realty's cross-motion to intervene and oppose the motion.
Although plaintiff only submitted the notice of entry of the New Order of Reference, the court takes judicial notice that an affidavit of service, in conformity with the notice of entry, was properly filed with the Kings County Clerk.
Realty's motion to intervene is denied. “Intervention pursuant to either CPLR 1012 or CPLR 1013 requires a timely motion” (JP Morgan Chase Bank, N.A. v. Edelson, 90 AD3d 996, 996–97 [2d Dept 2011], affirming the denial of a motion to intervene in a foreclosure action that was made almost four years after the plaintiff filed the notice of pendency and almost two years after the movant acquired the interest in the property). In this action, Realty moved to intervene more than six and a half years after the notice of pendency was filed and over a year after acquiring the Property. Realty's purported reliance on Justice Knipel's conditional order of dismissal, dated August 12, 2013, but not entered until October 7, 2013, as a reason for not moving to intervene sooner, is unavailing as the notice of motion for the New Order of Reference was filed with the Kings County Clerk on September 24, 2013, thereby putting Realty on constructive notice that the plaintiff was pursuing the action in compliance with Justice Knipel's conditional order. Further, the expiration of the six year statute of limitation for commencing a foreclosure action after the acceleration of a mortgage debt appears to have occurred on or about September 5, 2013, more than six months after Realty acquired the property (see Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980, 982 [2d Dept 2012] ). Accordingly, permitting Realty to intervene at this time, to contest the plaintiff's prior litigation of this action, could be highly prejudicial to plaintiff (see CPLR 1012 ; 1013; JP Morgan Chase, 90 AD3d at 996–97 ).
Realty's purported “inspection of the Court file in August of 2013”, and its discovery of Justice Knipel's order, is implausible as that order was not entered with the Kings County Clerk until October 7, 2013. Accordingly, any review of the Kings County Clerk's file in which Justice Knipel's order appeared would necessarily have also turned up the September 24, 2013 notice of motion for a new Order of Reference by plaintiff.
It is further noted that Realty's proposed answer would have been inadequate as a number of the affirmative defenses and counterclaims are merely a recitation of conclusions of law or allegations that are inconsistent with Realty's contentions in the motion (see Moran Enters., Inc. v. Hurst, 96 AD3d 914, 917 [2d Dept 2012] ). The only substantive issue that Realty's attorney raised as a proposed defense in this cross-motion, and as a basis for dismissal, is the plaintiff's purported lack of standing to commence this action at the time the complaint was filed due to improper assignment.
No affidavit by an individual with personal knowledge of the underlying facts was submitted in support of the cross-motion to vacate the default judgment.
“Pursuant to CPLR 6501, the filing of a notice of pendency provides constructive notice of an action in which the judgment demanded may affect the title to real property. The statute further provides that a person whose conveyance 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 or she were a party” (Novastar Mtge., Inc. v. Mendoza, 26 AD3d 479 [2d Dept 2006], internal citations omitted; see Mortgage Elec. Registration Sys., Inc. v. Pagan, 2014 N.Y. Slip Op 5309 [2d Dept 2014] ; Phillip v. Zanani, 75 AD3d 499, 500 [2d Dept 2010] ). In this action, plaintiff properly filed a notice of pendency on September 5, 2007 and renewed it on August 2, 2010. When Realty acquired the Property on February 20, 2013, it was on constructive notice of this action and is, accordingly, bound by the New Order of Reference that held the defendant in default (see CPLR 6501 ). As the “lack of standing is an affirmative defense which is waived if not raised by the defendant in either an answer or a pre-answer motion to dismiss”, Realty is bound by the defendant's waiver of the affirmative defense of lack of standing by failing to answer (HSBC Bank USA, N.A. v. Taher, 104 AD3d 815, 817 [2d Dept 2013] ; citing Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242 [2d Dept 2007] ). Accordingly, even if Realty were permitted to intervene in this action, the proposed affirmative defense of a lack of standing is not available to the movant having been waived by movant's predecessor in interest (see Novastar Mtge., 26 AD3d at 479 ; HSBC Bank, 104 AD3d at 817 ).
CONCLUSION
Accordingly, plaintiff's motion for Judgment of Foreclosure and Sale is granted. Plaintiff is directed to submit a proposed Judgment of Foreclosure and Sale, in conformity with the Kings County Foreclosure Judgment form, that includes a recitation of the papers submitted in support of the movant's cross-motion and opposition.
Realty & Services Group Inc.'s cross-motion to intervene is denied.
This constitutes the decision and order of the court.