Opinion
No. 2161–08.
2013-02-19
US BANK, NA, Plaintiff, v. Nieves CASTILLO, Ana Estevez, et al., Defendants.
Doonan, Graves & Longoria, LLC, Beverly, MA, for Plaintiff. Nieves Castillo, East Patchogue, Defendant Pro Se.
Doonan, Graves & Longoria, LLC, Beverly, MA, for Plaintiff. Nieves Castillo, East Patchogue, Defendant Pro Se.
Ana Estevez, Jackson Hgts., Defendant Pro Se.
Richard Schwartzer, Bay Shore.
THOMAS F. WHELAN, J.
ORDERED that this motion (# 004) by the plaintiff for an order vacating the Judgment of Foreclosure and Sale, vacating the order of reference and extend the notice of pendency from this point forward is denied; and it is further
ORDERED that the authority of the referee, Richard D. Schwartzer, Esq., to sell the mortgaged premises at public auction is reaffirmed, and it is further
ORDERED, that the plaintiff shall cause the public notice of the auction of the mortgaged premises to be published within 90 days of the date of this order.
This foreclosure action was commenced by filing on or about January 14, 2008. The mortgagor-borrower failed to answer the complaint or appear in the action and by order dated April 5, 2010, the default was fixed as against the mortgagor-borrower with the issuance of an order of reference. Said order noted the subject loan was not one within the purview of CPLR 3408, since the borrower did not reside at the premises. Thereafter, upon due deliberation, on July 26, 2010, a judgment of foreclosure and sale was granted, noting that the mortgagor-borrower was found by the referee to be in default for the sum of $350,789.58, with interest from May 7, 2010. Plaintiff now seeks to vacate, among other things, the judgment of foreclosure and sale, claiming that “[p]laintiff is unable to verily affirm that the documents previously submitted to the Court on behalf of the Plaintiff by prior servicer to the loan are wholly true and accurate.” The plaintiff is concerned that the affidavit of merit may not conform to the “new requirements pursuant to Administrative Order 548/10.” By order dated February 6, 2013, the matter was set down for a conference on February 19, 2013. However, the mortgagor-borrower failed to appear, although duly noticed.
Upon review of the application and the relevant caselaw, this Court declines the invitation to vacate its judgment on the facts presented herein.
Here, the application is premised upon a perceived but unsubstantiated claim of inability to confirm the actions of a prior servicer, in keeping with Administrative Order 548/10. However, a review of the affirmation submitted by Stephen M. Valente, Esq., dated December 6, 2012, relays conversations with the servicing agent for the plaintiff concerning document review and the factual accuracy of same. Additionally, the affidavit, dated November 30, 2012, from the servicing agent explains his review of the books and records relating to the loan and confirms the truth and veracity of the statements made in the affidavit. As for documents previously filed by the prior servicer, the servicing agent notes the following:
“I made an affirmative determination the facts alleged in previously filed affidavits are factually accurate. Records sufficient to demonstrate compliance with present review and notarization requirements are now maintained.”
Upon review of the application and the relevant caselaw, this Court declines the invitation to vacate its judgment on the facts presented herein.
Initially, this Court has previously held that the subject order constitutes an impermissible exercise of the rule making authority vested in the chief administrator of the courts ( see LaSalle Bank v. Pace, 31 Misc.3d 627, 919 N.Y.S.2d 794 [Sup Ct, Suffolk County, 2011], affd100 A.D.3d 970, 955 N.Y.S.2d 161 [2d Dept 2012] ). As set forth therein, it was found that the Administrative Order and the amendment of 22 NYCRR 202.12–a(f) are not “administrative” in nature, but instead, “legislative” in nature, as their provisions purport to regulate practice and procedure in the courts ( seeN.Y. Const. Art. VI, § 30; Judiciary Law § 212[2][d] ). As stated therein (31 Misc.3d at 635, 919 N.Y.S.2d 794):
The legislative nature of the Administrative Order and the amendment of 22 NYCRR 202.12–a(f) are apparent even upon a most cursory review of their terms, as they impose additional, substantive requirements upon a plaintiff seeking the remedy of foreclosure that are not contemplated by the statutes which now regulate foreclosure actions ( see RPAPL Article 13, CPLR 3408 and the Laws of 2009 Ch. 507 §§ 1,3,5,6,9,10,10–a).
As noted therein, to constitute a valid regulation of practice and procedure, a rule of the chief administrator of the courts must arise from an express statutory or other legislative delegation ( seeN.Y. Const. Art. VI, § 30; Judiciary Law § 212[2][d] ). Finding no legislative delegation to the chief administrator by statute or otherwise which empowered the chief administrator to impose the substantive requirements that touch upon the nature and sufficiency of proof which the plaintiff must supply to the court in mortgage foreclosure actions, this Court held that Administrative Order 548–10 and the newly added subparagraph (f) to court rule 202.12–a, exceeded the rule making authority of the Chief Administrative Judge, in her capacity as chief administrator of the courts ( see31 Misc.3d at 636–7, 919 N.Y.S.2d 794).
While not addressing the argument on the grounds of dicta, the Second Department did hold that affirmation required by Administrative Order 548–10 was of no evidentiary value ( see100 AD3d at 971).
The attorney affirmation is not itself substantive evidence or a new argument supporting summary judgment, and thus, the Paces were not prejudiced by the lack of opportunity to challenge counsel's representations therein.
Therefore, this Court reaffirms its holding that the affirmation is an unauthorized intrusion upon the jural relations of the parties to this action and upon the court.
In any event, it is noted that Administrative Order 548–10 went into effect on October 20, 2010 and in this case, the judgment of foreclosure was granted three months prior, on July 26, 2010. Pursuant to the Administrative Order, in such situations, where the property has not yet been sold as of the effective date, the affirmation shall be filed with the court “five business days before the scheduled auction, with a copy to be served on the referee.”
Therefore, since this matter has proceeded to judgment, all that is required is a filing of the affirmation with the court, that is, the county clerk, with a copy forwarded to the referee, prior to the sale date. Here, the Court finds that the attorney affirmation and the servicer affidavit fully comply with the requirements of Administrative Order 548–10 and satisfies the obligation imposed upon plaintiff's counsel.
While a discontinuance may be appropriate in the early stages of the litigation ( see Wells Fargo Bank v. Fisch, 103 A.D.3d 622, 959 N.Y.S.2d 260, 2013 WL 440975 [2d Dept 2013] ), where the cause has been submitted to the court to determine the facts, a discontinuance in such an advanced litigation posture is not to be freely given ( seeCPLR 3217[b]; see also Siegel, New York Practice 5th Ed. § 297). “Once the case is submitted, a discontinuance can take place only upon a stipulation to which the court agrees, i.e., it requires both a stipulation and court order” (Siegel, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 3217:12). Here, the matter was previously submitted to the Court to determine the facts, resulting in the judgment of foreclosure and sale.
“A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action” (Long Is. Sav. Bank v. Mihalios, 269 A.D.2d 502, 503, 704 N.Y.S.2d 483 [2d Dept 2000]; see New Horizons Inv., Inc. v. Marine Midland Bank, 248 A.D.2d 449, 669 N.Y.S.2d 666 [2d Dept 1998]; see also Signature Bank v. Epstein, 95 A.D.3d 1199, 945 N.Y.S.2d 347 [2d Dept 2012] [defendant waived lack of compliance with condition precedent in foreclosure action] ).
Moreover, all that remains is the actual foreclosure sale. Pursuant to RPAPL § 1353(3), upon the sale, “[t]he conveyance vests in the purchaser the same estate only that would have vested in the mortgagee if the equity of redemption had been foreclosed. Such a conveyance is as valid as if it were executed by the mortgagor and mortgagee, and, except as provided in section 1315 and subdivision 2 of section 1341, is an entire bar against each of them and against each party to the action who was duly summoned and every person claiming from, through or under a party by title accruing after the filing of the notice of the pendency of the action.” Caselaw holds that title derived from a foreclosure sale is clear and absolute title that is beyond attack directly or collaterally ( see Dorff v. Bornstein, 277 N.Y. 236 [1938];Dulberg v. Ebenhart, 68 A.D.2d 323, 417 N.Y.S.2d 71 [1st Dept 1979]; 83–17 Broadway Corp. v. Debcon Fin. Servs., Inc., 39 A.D.3d 583, 835 N.Y.S.2d 602 [2d Dept 2007] ).
Upon the sale, the mortgagor-borrower is divested of his title and interest in the premises ( see Forbes v. Aaron, 81 A.D.3d 876, 918 N.Y.S.2d 118 [2d Dept 2011]; Carnavalla v. Ferraro, 281 A.D.2d 443, 722 N.Y.S.2d 47 [2d Dept 2001]; Nutt v. Cuming, 155 N.Y. 309, 313 [1898] [“The provision barring others of their interest in, or of their rights of equity of redemption in the mortgaged premises, of necessity relates to the final concluding act, that of a sale of the premises”] ). To create an unmarketable title, something more than a mere assertion of a right is essential ( see Argent Mtge. Co. ., LLC v. Leveau, 46 A.D.3d 727, 848 N.Y.S.2d 691 [2d Dept 2007] ). Here, the affirmation required by Administrative Order 548–10, which has been held to be of no evidentiary value, cannot stand as a basis to create an unmarketable title.
“It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties' substantive rights ...” (Da Silva v. Masso, 76 N.Y.2d 436, 440, 560 N.Y.S.2d 109 [1990] ), and while, for several reasons under CPLR 5015(a), a court is empowered to vacate a default judgment ( see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727 [2003] ), that statute is not implicated in the instant application. “Absent the sort of circumstances mentioned in CPLR 5015 ... a determination of a court from which no appeal has been taken ought to remain inviolate” (Matter of Huie, 20 N.Y.2d 568, 285 N.Y.S.2d 610 [1967] ).
Continuity and predictability are important values for a court and should be stringently applied in cases involving contract and property rights ( see generally Eastern Consol. Prop., Inc. v. Adelaide Realty Corp., 95 N.Y.2d 785, 710 N.Y.S.2d 840 [2000] ). “The stability of contract obligations must not be undermined by judicial sympathy” (Emigrant Mtge. Co., Inc. v. Fisher, 90 A.D.3d 823, 935 N.Y.S.2d 313 [2d Dept.2011], quoting First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 638, 290 N.Y.S.2d 721 [1968],quoting Graf v. Hope Bldg. Corp., 254 N.Y. 1, 4–5, 171 N.E. 884,supra ). While the judiciary has recognized that the remedy of foreclosure may result in the loss of one's home, “[w]hen a default is undisputed, the court (cannot) abrogate the right of foreclosure and sale ... which is incorporated in the contract and on the strength of which (the creditor) lent his money” (Home Loan Inv. Bank, F.S.B. v. Goodness and Mercy, 2011 WL 1701795 [ED N.Y.2011], quoting United States v. Victory Hwy. Vil., Inc., 662 F.2d 488, 494 [8th Cir.1981], quoting United States v. Sylacauga Prop., Inc., 323 F.2d 487, 491 [5th Cir.1963]; see also United States v. Flaherty, 172 F.3d 39, 1999 WL 66153 [2d Cir.1999] ).
It has long been understood that secure property rights provide the foundation for a free society. It should be the role of the courts to see that property rights are well defined, well enforced, and readily transferable. News reports of data from RealtyTrac, indicate that in New York, it took 1,089 days on average to foreclose in the fourth-quarter of 2012, the longest of any state in the nation ( see Bloomberg.com, January 23, 2013). This instant matter has been pending since January 14, 2008, which is over 1,800 days from the date of filing. As noted by the Court of Appeals in Reilly v. Reid, 45 N.Y.2d 24, 28, 407 N.Y.S.2d 645, 379 N.E.2d 172 (1978), “[c]onsiderations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation.” That time has come and the Court directs same to occur as set forth above.
Therefore, upon review of the instant application, the Court disagrees with the requested relief and denies same.