Opinion
No. 28852009.
2010-06-30
HSBC MORTGAGE CORPORATION (USA), Plaintiff, v. Shalom SAPIR, et al., Defendants.
Steven J. Baum, Esq., by Jill Anderson, Esq., Buffalo, for the Plaintiff. Shapiro, DiCaro & Barak, LLP, by Ellis M. Oster, Esq., Rochester, for the Non-party JP Morgan Chase Bank, N.A.
Steven J. Baum, Esq., by Jill Anderson, Esq., Buffalo, for the Plaintiff. Shapiro, DiCaro & Barak, LLP, by Ellis M. Oster, Esq., Rochester, for the Non-party JP Morgan Chase Bank, N.A.
CHARLES J. MARKEY, J.
Upon the foregoing papers, it is ordered that the motion is determined as follows:
Plaintiff HSBC Mortgage Corporation (USA) (“HSBC”) commenced this action by filing a copy of the summons and complaint and notice of pendency on February 6, 2009. HSBC seeks to foreclose a consolidated mortgage dated June 7, 2002, and recorded on June 24, 2003 given by defendant Shalom Sapir on the real property known as 158–12 72nd Avenue, Fresh Meadows, New York, as security for an alleged home equity line agreement evidencing a home-equity line of credit, in the principal amount of $100,000.00, plus interest.
HSBC named Mortgage Electronic Registration Systems, Inc. (“MERS”), acting as nominee for First Central Savings Bank (“First Central”), as a party defendant, alleging that defendant MERS was the holder of a subordinate mortgage dated December 7, 2005 and recorded on February 1, 2006. Defendant MERS defaulted in appearing or answering the complaint, and HSBC obtained a judgment of foreclosure and sale dated November 2, 2009.
Chase asserts that it is the assignee of the First Central mortgage, pursuant to an assignment dated June 25, 2009, from defendant MERS, as nominee for First Central. It disputes plaintiff's claim that the subject mortgage is subordinate and subject to the First Central mortgage. According to Chase, at the time of the making of the First Central mortgage, First Central tendered two checks in the amounts of $69,774.22 and $100,278.07, to plaintiff towards the satisfaction of the subject mortgage. Chase asserts that notwithstanding plaintiff cashed the checks, no satisfaction was filed. Chase argues that its mortgage interest in the property needs to be properly protected, and it should be permitted to intervene to insure such protection.
The process server's affidavit of service dated February 10, 2009, on file with the County Clerk, indicates service of a copy of the summons and complaint was made upon defendant MERS on that date by in-hand delivery to “Brandy Peoples,” “General Councel [sic],” a person authorized to accept service on behalf of defendant MERS. Such affidavit is prima facie proof of service upon defendant MERS pursuant to CPLR 311(a)(1) ( see, McIntyre v. Emanuel Church of God, Inc., 37 AD3d 562 [2nd Dept.2007] ). Under such circumstances, where Chase obtained its interest in the property after the commencement of this action by assignment, and MERS, its assignor, was joined as a party defendant and then defaulted, intervention on the part of Chase is not available ( cf. E*Trade Bank v. Perez, 2009 N.Y. Slip Op. 50314[U] [Sup Ct Queens County 2009] ).
To the extent this motion is one by Chase to vacate the default judgment as against defendant MERS, its predecessor in interest pursuant to CPLR 5015(a)(1), ( see, e.g., Bank of New York v. Stradford, 55 AD3d 765 [2nd Dept.2008] ) vacatur requires the movant to establish both a reasonable excuse for the default and a meritorious defense ( see,CPLR 5015[a][1]; Bank of New York v. Segui, 42 AD3d 555 [2nd Dept.2007]; Credit–Based Asset Servicing & Securitization v. Chaudry, 304 A.D.2d 708 [2nd Dept.2003]; Mary Immaculate Hosp. v. New York Cent. Mut. Fire Ins. Co., 296 A.D.2d 385, 386 [2nd Dept.2002] ). Chase has failed to offer any reasonable excuse for defendant MERS's default. The court, therefore, need not consider the merits of the defense proffered by Chase ( see, Assael v. 15 Broad Street, LLC, 71 AD3d 802 [2nd Dept.2010]; Segovia v. Delcon Constr. Corp., 43 AD3d 1143, 1144 [2nd Dept.2007]; Mjahdi v. Maguire, 21 AD3d 1067, 1068 [2nd Dept.2005]; American Shoring, Inc. v. D.C.A. Constr., Ltd., 15 AD3d 431 [2nd Dept.2005] ), premised upon tender and satisfaction ( see, e.g., Reitman v. Wachovia Nat. Bank, N.A., 49 AD3d 759 [2nd Dept.2008]; cf. Merrill Lynch Equity Management Inc. v. Kleinman, 246 A.D.2d 884 [3rd Dept.], lv. to appeal denied,92 N.Y.2d 802 [1998];Barclay's Bank of N.Y. v. Market St. Mtge. Corp., 187 A.D.2d 141, 144 [3rd Dept.1993] ).
Accordingly, the motion is denied.