Opinion
Index No. 721681/23 Motion M 1
10-15-2024
FRANKLIN TORRES, Plaintiff, v. NATIONSTAR MORTGAGE LLC DBA MR. COOPER, IN ITS OWN CAPACITY AND ON BEHALF OF HSBC MORTGAGE CORPORATION AND ITS ASSIGNS AND SUCCESSORS IN INTEREST, Defendant.
Unpublished Opinion
Date: April 8, 2024
PRESENT: HONORABLE CARMEN R. VELASQUEZ, JUSTICE
SHORT FORM ORDER
CARMEN R. VELASQUEZ, JUDGE
The following papers numbered EF17 to EF31, EF34, and EF39 to EF41, read on this motion by defendant Nationstar Mortgage LLC d/b/a Mr. Cooper, in its own capacity and on behalf of HSBC Mortgage Corporation and its assigns and successors in interest (defendant), to dismiss plaintiff's, Franklin Torres (plaintiff), complaint seeking a declaratory judgment and damages against defendant, pursuant to CPLR 3211 (a) (1), (a) (7), and (a) (10); and cross motion by the plaintiff to amend the caption.
| Papers Numbered | |
| Notice of Motion, Affidavits-Exhibits .......... | 17-31 |
| Notice of Cross-Motion, Affidavits-Exhibits ....... | 36-37 |
| Affirmation/Affidavit in Opposition-Exhibits ....... | 34, 39-41 |
Upon the foregoing papers, it is Ordered that the motion and cross-motion are determined as follows:
On or about October 15, 2023, plaintiff commenced this action to cancel and discharge a mortgage he executed on November 21, 2007, with defendant's predecessor in interest, against the subject property located at 10469 Roosevelt Avenue, Corona New York 11368, and to cancel all interest accrued on the loan after its 2019 acceleration. Plaintiff modified the terms of the subject mortgage with defendant's predecessor in interest, Shellpoint Mortgage Servicing, by written agreement executed on August 11, 2015. On May 19, 2022, the mortgage was assigned to U.S. Bank Trust National Association, Not in its Individual Capacity, But Solely as Trustee of the Truman 2021 SC9 Title Trust (U.S. Bank Trust) by Assignment of Mortgage recorded on June 21, 2022.
Actions to foreclosure the subject mortgage were previously brought against plaintiff under index numbers 16830/2011, 701718/2015, and index number 711248/2019. The 2019 action is still pending, and the other cases were voluntarily discontinued. In the pending 2019 foreclosure action, plaintiff filed a Notice of Servicer Change, dated November 2, 2023, proffered herein, advising of the loan's new or substitute servicer. On November 27, 2023, the parties executed and filed a stipulation extending defendant's time to answer and granting plaintiff more than thirty days to file opposition to a defense motion to dismiss. Defendant's counsel filed a notice of appearance on November 29, 2023. On December 22, 2023, in lieu of an answer, defendant's instant motion to dismiss followed along with plaintiff's cross-motion.
In support, defendant asserts plaintiff fails to state a cause of action to quiet title because the mortgage cannot be discharged while there is an active action pending before this court to foreclose the subject mortgage. Defendant contends the first cause of action must be dismissed because of the pending 2019 foreclosure action. Defendant also argues that there is no cause of action to quiet title since plaintiff reaffirmed the subject loan with the modification of the mortgage in 2015. Similarly, plaintiff argues that the Foreclosure Abuse Prevention Act (FAPA) does not apply to this case because plaintiff modified the loan and made several years of payments, establishing mutual assent to the loan's reinstatement. Defendant argues further that plaintiff's failure to name a necessary party to this action requires dismissal. Last, defendant asserts that the second cause of action to toll interest should be dismissed as misplaced because it should be raised in a foreclosure action. Alternatively, defendant argues that interest should not be tolled for any delays caused by its predecessor-in-interest. The defense also asserts no interest should be tolled because the 2019 foreclosure action commenced within the six-year statute of limitations. In reply, the defense contends that plaintiff failed to timely oppose the motion and that the crossmotion does not comply with CPLR 2214. The defense also counters that plaintiff concedes dismissal for failing to address defendant's arguments and the case law submitted in support, and that his cross-motion to amend the caption should be denied for lack of merit.
In opposition, plaintiff states that defendant's motion should be denied because it does not provide a substantive discussion on FAPA. Plaintiff maintains that defendant's motion should be denied because their analysis does not align with the statute. Plaintiff asserts defendant's motion should also be denied because it did not outline the elements of a FAPA cause of action and state how the complaint lacks each element of that action. In support of his cross-motion, plaintiff maintains the caption of the complaint should be amended to substitute a successor in interest as a necessary party to this action given the May 19, 2022, assignment of mortgage to U.S. Bank Trust.
"In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the sole criterion is whether, from the complaint's "four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Stewart Tit. Ins. Co. v Bank of N.Y. Mellon, 154 A.D.3d 656, 662 [2d Dept 2017], citing Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]). "Although the facts pleaded are presumed to be true and are to be accorded every favorable inference, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (id., at 662, citing Zuniga v BAC Home Loans Servicing, L.P., 147 A.D.3d 882, 883 [2d Dept 2017]; see also, CPLR 3211 (1) (a)).
"Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired" (Gardner v Wells Fargo Bank N.A., 219 A.D.3d 703, 705 [2d Dept 2023], citing Oakdale III, LLC v Deutsche Bank Natl. Trust Co., 189 A.D.3d 1685, 1686-1687 [2d Dept 2020]). "However, '[b]ecause the expiration of the statute of limitations is an essential element of an action pursuant to RPAPL 1501(4), the existence of a pending foreclosure action precludes a RPAPL 1501(a) action" (Davis v Wilmington Sav. Fund Socy., FSB, 219 A.D.3d 798, 799 [2d Dept 2023], citing 4 Stella Mgt., LLC v Citimortgage, Inc., 204 A.D.3d 868, 869 [2d Dept 2022]).
In this case, there is no dispute that there is a prior pending foreclosure action under index number 711248/2019 against plaintiff concerning the subject property. Plaintiff does not dispute that he modified the terms of the subject mortgage on August 11, 2015, and assented to new terms, reaffirming the debt (see Manicone v City of New York, 75 A.D.3d 535, 537 [2d Dept 2010]). There is no dispute that plaintiff modified the loan and made several years of payments, establishing mutual assent to the loan's reinstatement, causing the debt to run anew (see id at 952). Consequently, FAPA does not apply, and dismissal is warranted. There is no basis alleged on which an action to quiet title may be maintained, as the uncontested records flatly contradict the allegations in the complaint.
Accordingly, defendant's motion to dismiss pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (7) is granted, and the action is dismissed.
Plaintiff's cross-motion to amend the caption is denied as moot.