Opinion
No. 62644.
09-01-2017
LANDCRAFTERS, LLC, Plaintiff, v. WARREN COUNTY DEPARTMENT OF SOCIAL SERVICES, Capital One Bank (USA), N.A., Defendants.
Rosicki, Rosicki & Associates, P.C., Plainview (Lijue T. Philip of counsel), for plaintiff. Cynthia Schrock Seeley, Warren County Department of Social Services, Lake George, for defendant Warren County Department of Social Services.
Rosicki, Rosicki & Associates, P.C., Plainview (Lijue T. Philip of counsel), for plaintiff.
Cynthia Schrock Seeley, Warren County Department of Social Services, Lake George, for defendant Warren County Department of Social Services.
ROBERT J. MULLER, J.
On July 10, 2012, JPMorgan Chase Bank, National Association (hereinafter JPMorgan) commenced a foreclosure action relative to a mortgage on certain real property located at 51 Cotherman Drive in the Town of Lake George, Warren County. This mortgage—given by Anke U. Jenne to secure the sum of $250,000.00—was executed on June 22, 2005 and recorded on July 7, 2005. Federal National Mortgage Association (hereinafter Fannie Mae), the assignee of JPMorgan, subsequently obtained a Judgment of Foreclosure and Sale on June 1, 2015. Fannie Mae purchased the property at public auction on August 10, 2015 and title was transferred by referee's deed dated November 17, 2015 and recorded on December 15, 2015. The property was then sold by Fannie Mae to plaintiff, with title conveyed by Bargain and Sale Deed dated February 10, 2016 and recorded on March 3, 2016.
At some point it was discovered that defendant Capital One Bank (USA), N.A. (hereinafter Capital One) may have an interest in the property as the result of a judgment it entered against Jenne on November 18, 2010 in the amount of $4,808.82. It was further discovered that defendant Warren County Department of Social Services (hereinafter defendant) may have an interest in the property based upon a mortgage given to it by Jenne to secure her indebtedness for any public "assistance as may be advanced at any time in the future." This mortgage was executed by Jenne on May 30, 2012 and recorded on June 11, 2012. As a result, plaintiff commenced this strict foreclosure action on April 21, 2016 (see RPAPL 1352 ). While issue has been joined as to defendant, Capital One has not served an answer or otherwise appeared. Presently before the Court is plaintiff's motion for an Order (1) awarding a default judgment as against Capital One; and (2) awarding summary judgment as against defendant for the relief requested in the complaint and striking defendant's answer.
At the outset, the Court finds that plaintiff has demonstrated its entitlement to a default judgment as against Capital One. Plaintiff has submitted proof of service of the summons and complaint on Capital One, as well as proof of the facts constituting the claim and of Capital One's default (see CPLR 3215 [f] ). The first aspect of plaintiff's motion is therefore granted.
Turning now to the second aspect of the motion, on a motion for summary judgment the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967 [1988] ; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact ( Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980] ).
Initially, the Court finds that plaintiff has established its prima facie entitlement to summary judgment as a matter of law (see Agility Funding, LLC v. Wholey, 119 A.D.3d 1168, 1169–1170 [2014] ; NYCTL 1996–1 Commercial Reo v. El Pequeno Rest. Food Corp., 1 Misc.3d 574, 575–576, 765 N.Y.S.2d 465 [Sup Ct, Kings County 2003] ). " RPAPL 1352 permits a strict foreclosure action against a person not named in the original foreclosure action, who has either a right of redemption to the subject property or a right to foreclose a subordinate mortgage or other lien" ( Bass v. D. Ragno Realty Corp. ., 111 A.D.3d 863, 865 [2013] ; see Agility Funding, LLC v. Wholey, 119 A.D.3d 1168, 1169 [2014] ).
Here, plaintiff has submitted a copy of the Judgment of Foreclosure and Sale, together with copies of the deeds by which the property was transferred from the referee to Fannie Mae and then from Fannie Mae to plaintiff. Plaintiff has also submitted copies of the mortgages given by Jenne to JPMorgan and defendant, together with proof of recording, thus demonstrating that defendant's mortgage is subordinate to that of JPMorgan. Although plaintiff concedes that defendant should have been named in the original foreclosure action, it contends that the error was neither deliberate nor prejudicial since "[t]he remedy for holders of an interest not named in a foreclosure action pursuant to [a]rticle 13 of the RPAPL is that they are to be given the right to redeem, the very reason for the commencement of this action" ( NYCTL 1996–1 Commercial Reo v. El Pequeno Rest. Food Corp., 1 Misc.3d at 576, 765 N.Y.S.2d 465 [internal quotation marks omitted] ).
The Court further finds that defendant has failed to raise a triable issue of fact in opposition to plaintiff's motion. Defendant first contends that there exists an issue of fact because plaintiff was aware of defendant's subordinate mortgage prior to purchasing the property. In support of this contention, defendant has submitted a January 26, 2016 e-mail it received from a paralegal at Rosicki, Rosicki & Associates, P.C.—counsel to plaintiff—which states as follows:
"This property was foreclosed on June 11, 2015[and] is now owned by Federal National Mortgage Association aka Fannie Mae.
"We represent Fannie Mae on a Time of the essence closing. We are showing that a Bond & Mortgage was filed by your office on 6/11/2012.
"Would you be able to provide a satisfaction of mortgage for same?" [E–Mail Correspondence, attached as Exhibit "A" to Seeley Affirmation, at p. 1, 765 N.Y.S.2d 465 ].
The Court finds this contention to be without merit. Defendant has merely established that plaintiff was aware of its interest in the property in January 2016–more than five months after the sale. There is nothing in to suggest that Fannie Mae was aware of defendant's interest in the property prior to the foreclosure sale, as would be necessary to create an issue of fact (see O'Donnell v. Barth, 106 A.D.2d 378, 378 [1984] ).
Defendant next contends that there exists an issue of fact because plaintiff conveyed the property to non-parties Michael J. Congel, Jr. and Maria Congel on June 13, 2016, approximately a month and a half after this action was commenced. In support of this contention, defendant has submitted a copy of the deed by which the property was conveyed.
This contention is also without merit. CPLR 1018 provides that, "[u]pon any transfer of interest, [an] action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred ... be substituted or joined in the action." The action may therefore proceed notwithstanding plaintiff's conveyance of the property to the Congels (see Pritzakis v. Sbarra, 201 A.D.2d 797, 798 [1994] ; Bova v. Vinciguerra, 139 A.D.2d 797, 799 [1988] ).
To the extent not addressed herein, defendant's remaining contentions have been considered and deemed to be without merit.
The second aspect of plaintiff's motion for an Order awarding summary judgment as against defendant for the relief requested in the complaint and striking defendant's answer is granted.
Therefore, having considered the Affirmation of Lijou T. Philip, Esq. with exhibits attached thereto, dated June 28, 2016, submitted in support of the motion; Affidavit of John Carr with exhibits attached thereto, sworn to April 22, 2016, submitted in support of the motion; Affirmation of Cynthia Schrock Seeley, Esq. with exhibits attached thereto, dated March 24, 2017, submitted in opposition to the motion; and Reply Affirmation of Lijue T. Philip, Esq., dated April 3, 2017, submitted in further support of the motion; and an appearance having been held on August 31, 2017 with Tyne Modica, Esq. appearing on behalf of plaintiff and Sarah J. Merry, Esq. appearing on behalf of defendant, it is hereby
ORDERED that plaintiff's motion is granted in its entirety; and it is further
ORDERED that plaintiff is awarded a default judgment as against Capital One; and it is further
ORDERED that Capital One is forever barred and foreclosed of all right, title, interest and equity of redemption in and to the property; and it is further
ORDERED, ADJUDGED AND DECREED that plaintiff is awarded summary judgment as against defendant for the relief requested in the complaint and defendant's answer is struck; and it is further
ORDERED, ADJUDGED AND DECREED that, if defendant intends to exercise its right of redemption relative to the property or its right to foreclose the subordinate mortgage, it shall submit written notice of such intention to the Court—with a copy to counsel for plaintiff—within twenty (20) days of the date of service of this Decision, Order and Judgment with notice of entry thereon; and it is further
ORDERED, ADJUDGED AND DECREED that, if defendant fails to submit written notice of its intention to exercise its right of redemption relative to the property or its right to foreclose the subordinate mortgage within twenty (20) days of the date of service of this Decision, Order and Judgment with notice of entry thereon, it is forever barred and foreclosed of all right, title, interest and equity of redemption in and to the subject property; and it is further
ORDERED, ADJUDGED AND DECREED that, if defendant fails to submit written notice of its intention to exercise its right of redemption relative to the property or its right to foreclose the subordinate mortgage within twenty (20) days of the date of service of this Decision, Order and Judgment with notice of entry thereon, any lien created by its mortgage on the subject property is cut off and removed, and plaintiff and its successors and assigns are deemed to hold the property free and clear of any such lien.
The above constitutes the Decision, Order and Judgment of this Court.
The original of this Decision, Order and Judgment has been filed by the Court together with the Notice of Motion dated June 28, 2016. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision, Order and Judgment for service with notice of entry on all interested parties in accordance with CPLR 5513.