Opinion
9549-2009
03-11-2015
US Bank Bank National Association, as Trustee for Credit Suisse First Boston ARMT 2005-10 3476 Stateview Blvd. Ft. Mill, SC 29715, Plaintiff, v. Marija Konstanovic, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as NOMINEE FOR AMERITRUST MORTGAGE BANKERS, INC., NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, PEOPLE OF THE STATE OF NEW YORK, and JANET KAHEN, Defendants.
This is an action to foreclose a mortgage against real property known as 69-24 66th Place, Glendale, New York, given by defendant Marija Konstantinovic to secure a note in the amount of $396,000. The plaintiff alleges that it is the holder of the mortgage and underlying obligation pursuant to an assignment and that the defendant Marija Konstantinovic defaulted under the terms of the note and mortgage by failing to make the monthly installment payment due on November 1, 2008 and as a consequence, it elected to accelerate the entire mortgage debt. The plaintiff has moved for an order vacating the order of reference dated June 2, 2010, for a default judgment against non-appearing and non-answering defendants, to appoint a referee to compute the amount due, and amending the caption by substituting the names Janet Kahen instead of "John Doe;" deleting reference to the plaintiff's address from the caption, and amending the caption nunc pro tunc to reflect the plaintiff's name as US Bank National Association, as Trustee for Adjustable Rate Mortgage Trust 2005-10, Adjustable Rate Mortgage Backed Pass Through Certificates, Series 2005-10.
The plaintiff seeks to vacate the order of reference dated June 2, 2010. That order of reference was filed without a signature page. In light of that error the plaintiff seeks to vacate that order of reference and obtain a new order of reference. Therefore the order of reference dated June 2, 2010 is vacated.
Plaintiff has made a prima facie showing of entitlement to judgment as a matter of law by submission of the mortgage, the unpaid note and proof of default, (see GRP Loan, LLC v Taylor, 95 AD3d 1172 [2d Dept., 2012]; Capstone Business Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882 [2d Dept., 2010]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2d Dept., 2002]). Plaintiff has also produced the agreement assigning it the mortgage and note and evidence that it possessed the note at the commencement of the action and that it is currently is in possession of the note, an affirmation of regularity by plaintiff's counsel and proof of compliance with RPAPL §1303 and that RPAPL §1304 is not applicable to the case as the mortgagor does not reside at the premises, (see GRP Loan, LLC, 95 AD3d at 1174).
In opposition and in her cross motion the defendant has failed to raise any issue sufficient to defeat the plaintiff's motion, (see Capstone Business Credit, LLC, 70 AD3d at 884; EMC Mtge. Corp., 291 AD2d at 370). The defendant has cross moved to dismiss the action pursuant to CPLR §3215(c) and to vacate her default and dismiss the action. The plaintiff argues that the defendant's cross motion and opposition are untimely and should not be considered by the Court. However, the plaintiff was not prejudiced by this delay and submitted opposition, therefore, the cross motion will be considered, (see Guzetti v City of New York, 32 AD3d 234 [2d Dept 2006]).
Dismissal pursuant to CPLR §3215(c) is unwarranted. The defendant originally moved for an order of reference in August 2009, within a year of the defendants' default. A motion for an order of reference is a preliminary step toward obtaining a default judgment of foreclosure and sale and since the plaintiff made such a motion within a year it did not abandon the case, (see HSBC Bank USA, N.A. v Alexander, 124 AD3d 838 (2d Dept., 2015); Emigrant Mtge. Co., Inc. v Gosdin, 119 AD3d 639 [2d Dept., 2014]; Klein v St. Cyprian Props., Inc., 100 AD3d 711 [2d Dept., 2012]).
The defendant has also moved to vacate her default in answering the complaint. A defendant moving to vacate a default judgment under CPLR §5015(a)(1) or compel the acceptance of an untimely answer must establish a reasonable excuse for the default and a potentially meritorious defense, (see, Wells Fargo, N.A. v Cervini, 84 AD3d 789[(2d Dept., 2011]; Midfirst Bank v Al-Rahman, 81 AD3d 797 [2d Dept., 2011]; Peck v Dybo Realty Corp., 77 AD3d 640 [2d Dept., 2010]; Alberton Devs., Inc. v All Trade Enters., Inc., 74 AD3d 1000 [2d Dept., 2010]; NYCTL-1997-1 Trust v Vila, 19 AD3d 382 [2d Dept., 2005]). The determination of what constitutes a reasonable excuse is left to the sound discretion of the court (see Abrams v City of New York, 13 AD3d 566 [2d Dept., 2004]; Scarlett v McCarthy, 2 AD3d 623 [2d Dept., 2003]; Westchester Med. Ctr. v Clarendon Ins. Co., 304 AD2d 753 [2d Dept., 2003]). The defendant blames her delay on answering on her attempts to settle the action by way of loan modification. The fact that the defendant was having discussions with the bank concerning loan modification does not constitute a reasonable excuse and does not provide a basis to deny the motion for an order of reference ( see Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784 [2d Dept., 2011]; Kouzios v Dery, 57 AD3d 949 [2d Dept., 2009]; Antoine v Bee, 26 AD3d 306 [2d Dept., 2006]).
In light of the fact that the defendants did not demonstrate a reasonable excuse for their default, it is not necessary to consider whether they proffered a potentially meritorious defense, (see Deutsche Bank Natl. Trust Co. v Conway, 99 AD3d 755 [2d Dept 2012]; U.S. Bank N.A. v Stewart, 97 AD3d 740 [2d Dept 2012]). In any event, the defendant failed to put forth a meritorious defense. The defendants' defense to the action is the plaintiff's alleged lack of standing. The defendants, by failing to raise standing in an answer or pre-answer motion, have waived this defense, CPLR §3211(e); (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 [2d Dept., 2010]; HSBC Bank, USA v Dammond, 59 AD3d 679 [2d Dept., 2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2d Dept., 2007].
Finally, the defendant's objection to the plaintiff's proposed amendment correcting the caption to reflect the plaintiff's full name is without merit. This action was commenced using the truncated name of the plaintiff. That was the name that was included in the mortgage assignment and used in this case. The plaintiff then obtained a correcting assignment to reflect the proper plaintiff's name in this action. The defendant's objection that there are in fact two different entities is not supported by any evidence. In any event, defendant's objection to the amendment is based on the argument that the plaintiff did not have standing to commence the action. Inasmuch as the defendant, as discussed above, has waived the defense of standing, the argument is not a barrier to the granting of this motion.
Accordingly, the motion is granted. The caption is amended as proposed. A referee to compute shall be named in the order to be submitted hereon. The cross motion is denied.
Settle Order.
Dated: March 11, 2015
Robert L. Nahman, J.S.C.