Opinion
603445/2015
09-03-2019
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, on Behalf OF the HOLDERS OF the BEAR STEARNS ASSET BACKED SECURITIES I TRUST 2005-AC6, ASSET-BACKED CERTIFICATES, SERIES 2005-AC6, Plaintiff, v. Charles AVONDET a/k/a Charles D. Avondet a/k/a Charles D. Avondet, III, Deborah Avondet a/k/a Deborah J. Avondet a/k/a Debra J. Avondet, Midland Funding LLC dba in New York as Midland Funding of Delaware LLC ASII to a Chase Account, Kristin Avonde, Defendant(s).
SHAPIRO, DICARO & BARAK, LLC, Attorneys for Plaintiff, 175 Mile Crossing Boulevard, Rochester, NY 14624 GRAUSSO & FOY, LLP, Attorneys for Defendants Charles and Debra Avondet, 8 West Main Street, Suite 5, Patchogue, NY 11772, Midland Funding LLC dba in NY as Midland Funding of Delaware LLC as ASII a Chase Account 99 Washington Ave., Albany, NY 12231
SHAPIRO, DICARO & BARAK, LLC, Attorneys for Plaintiff, 175 Mile Crossing Boulevard, Rochester, NY 14624
GRAUSSO & FOY, LLP, Attorneys for Defendants Charles and Debra Avondet, 8 West Main Street, Suite 5, Patchogue, NY 11772, Midland Funding LLC dba in NY as Midland Funding of Delaware LLC as ASII a Chase Account 99 Washington Ave., Albany, NY 12231
Robert F. Quinlan, J.
Upon the following papers read on this motion for an order granting judgment of foreclosure and sale ; Notice of Motion dated May 3, 2019 and supporting papers (Doc # 74-98); Answering Affidavit and supporting papers ; Replying Affidavit and supporting papers _______; (Other: Plaintiff's Notice of Return dated June 26, 2019 [Doc # 101] ) it is,
ORDERED that plaintiff's application for an order confirming the referee's report and for judgment of foreclosure and sale (Seq. # 002) is granted; and it is further
ORDERED that plaintiff's proposed order of judgment of foreclosure and sale, as modified by the court, is signed contemporaneously herewith; and it is further
ORDERED that plaintiff shall serve the notice of the foreclosure sale and any adjournments upon the Supreme Court Calendar Clerk; and it is further
ORDERED that the referee complete and file the Suffolk County Foreclosure Action Surplus Monies form with the Supreme Court Calendar Clerk and the Suffolk County Clerk within thirty (30) days of the foreclosure sale; and it is further
ORDERED that the referee submit proof of deposit of any surplus monies with the Suffolk County Comptroller with the Supreme Court Calendar Clerk and the Suffolk County Clerk within thirty (30) days of the date of closing of title; and it is further
ORDERED that the referee may make an application for additional fees, by letter to the court, as a result of any adjournments of the sale, providing proof of compliance with 22 NYCRR Part 36 including the filing of USC Forms 872 and 875; and it is further
ORDERED that pursuant to RPAPL 1351(1) the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of this order; and it is further
ORDERED that if the referee does not conduct the sale within 90 days of the date of the judgment, in accordance with CPLR 2004, the time fixed by RPAPL § 1351(1) is extended for the referee to conduct the sale as soon as reasonably practicable.
The prior history of this action to foreclose a mortgage upon residential real property located at 3755 Grand Avenue, Mattituck, Suffolk County, New York is set forth in the court's July 12, 2018 decision on the record after oral argument of plaintiff's motion for summary judgment (Seq. # 001) which granted plaintiff partial summary judgment pursuant to CPLR 3212(g) dismissing defendant Deborah Avondet's 1st through 4th and 7th through 18th affirmative defenses, set the default of the non-appearing, non-answering defendants, and granted plaintiff's application to amend the caption, but denied plaintiff's application to dismiss defendant Deborah Avondet's 5th and 6th affirmative defenses as plaintiff had failed to establish mailing of the notices required by RPAPL § 1304, and setting that issue for a limited issues trial pursuant to CPLR 2218. The limited issue trial was held on October 25, 2018 at which time plaintiff established compliance with the mailing required by RPAPL § 1304 and the court dismissed defendant Deborah Avondet's 5th and 6th affirmative defenses, and granted plaintiff summary judgment against defendant Deborah Avondet striking her answer, and appointed a referee to compute pursuant to RPAPL § 1321.
Plaintiff now moves for a judgment of foreclosure and sale (# 002). Plaintiff's submissions in support of its motion include inter alia its attorney affirmations, the Referee's oath and report indicating the amount due to be $400,276.55, the order of reference, the note, mortgage, loan modification agreement and assignments. Defendants Charles and Deborah Avondet oppose the application. That opposition was rejected by plaintiffs as untimely.
Plaintiff's motion was electronically filed and served by regular mail on May 3, 2019 (Doc # 74-75) setting the return date of the motion for June 13, 2019. Opposition to the motion was to be served and filed no later than June 6, 2019 ( CPLR 2214[b] ) yet defendants did not file their opposition until June 20, 2019, one week after the motion had been marked submitted. The court declines to consider defendants' untimely opposition as they offer no excuse for the late service (see Nakollofski v. Kingsway Properties, LLC , 157 AD3d 960 [2d Dept 2018] ; Risucci v. Zeal Mgmt. Corp. , 258 AD2d 512 [2d Dept 2009] ).
Notwithstanding the foregoing defendants' arguments are without merit. Defendant Charles Avondet never answered or appeared in this action and his default was set by the court's July 12, 2018 decision. Absent a vacatur of his default, which is not requested, he is without authority to oppose or otherwise seek affirmative relief of a non-jurisdictional nature (see HSBC Mtge. Corp. v. Morocho, 106 AD3d 875, [2d Dept 2013] ; U.S. Bank Natl. Assn. v. Gonzalez, 99 AD3d 694 [2d Dept 2012] ; Deutsche Bank Trust Co., Am. v. Stathakis, 90 AD3d 983 [2d Dept 2011] ; Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011] ). As for defendant Deborah Avondet, the award of summary judgment in this case is the law of the case and was a determination by the court that none of the defenses asserted by her were meritorious. Further any argument that plaintiff lacks standing to maintain the action is barred by the doctrine of law of the case as the court has already decided the issues, including plaintiff's standing to maintain the action, and awarded plaintiff summary judgment (see Carbon Capital Mgt., LLC v. American Express, Co. , 88 AD3d 933 [2d Dept 2011] ; Aames Funding Corp. v. Houston , 85 AD3d 1070 [2d Dept2011] ). Finally any affirmative relief requested by defendants in their late opposition to the motion is improper as defendants failed to seek relief by cross-motion. As defendants' counsel is experienced in foreclosure practice, the court is disappointed in the nature of the applications and counsel is cautioned against such practice in the future ( 22 NYCRR § 1200.0 rule 3.2).
Accordingly on the papers submitted plaintiff has established its entitlement to a judgment of foreclosure and sale on its submissions in support of the motion, including the referee's findings and report (see HSBC Bank USA, N.A. v. Simmons , 125 AD3d 930 [2d Dept. 2015] ; US Bank N.A. v. Saraceno , 147 AD3d 1005 [2d Dept. 2017] ; Bank of New York Mellon Trust Company v. Loodus , 160 AD3d 797 [2d Dept 2018] ).
Plaintiff's proposed order, as modified by the court, is signed contemporaneously herewith.
This constitutes the Order and decision of the court.