Opinion
4040/13
11-17-2014
U.S. BANK NATIONAL ASSOCIATION, As Trustee for Structured Asset Investment Loan Trust Mortgage Pass–Through Certificates, Series 2006–3, Plaintiff, v. Clifton LAMPLEY, City Register of the City of New York, Kings County, Department of Housing Preservation & Development, HSBC Mortgage Services, Inc., JP Morgan Chase Bank, N.A. fka JP Morgan Chase Bank Successor by Merger to Bank One, National Association, as Trustee, Kamco Supply Corp., Kings County Clerk, Marjam Supply Co Inc., New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, New York State Department of Taxation and Finance, Unites States of America Acting Through the IRS, Jojn Doe (said names being fictitious it being the intention of the plaintiff to designate all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed, Defendants.
Melissa M. Bundt, Esq., Gross Polowy Orlans LLC, Amherst, for Plaintiff.
Melissa M. Bundt, Esq., Gross Polowy Orlans LLC, Amherst, for Plaintiff.
Opinion
FRANCOIS RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of plaintiff U.S. Bank National Association as Trustee for Structured Assets Investment Loan Trust Mortgage Pass–Through Certificates, Series 2006–3 (hereinafter USBNA), filed on February 26, 2014, under motion sequence number one, for an order (1) granting summary judgment as against defendant Clifton Lampley (hereinafter Lampley) pursuant to CPLR 3212 ; (2) striking Lampley's answer pursuant to CPLR 3211(b) ; (3) appointing a referee to compute pursuant to RPAPL 1321 ; (4) modifying the caption by substituting Erica Hazel, Paul Downey, and Richard Fogel instead of John Does from the caption; and (4) deeming all other non-answering defendants in default.
— Notice of Motion
— Affirmation in support
— Exhibits A–V
— Affirmation pursuant to CPLR 3408
— Proposed order of reference
Memorandum of law in support
BACKGROUND On March 6, 2013, plaintiff commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office.
The complaint alleges in pertinent part, that on February 9, 2006, defendant Clifton Lampley (hereinafter Lampley) executed and delivered an adjustable note (the subject note) in favor of First Horizon Home Loan Corporation (hereinafter FHHL) in the amount of $424,000.00. On the same date, Lampley secured the note by executing and delivering a mortgage in favor of FHHL on certain real property known as 557 Snediker Avenue, Brooklyn, New York 11207 Block 3834 Lot 1 (hereinafter the subject property). By assignment dated November 5, 2007, FHHL assigned the note and mortgage to USBNA. Lampley defaulted on making monthly payments due and owing on said note on June 1, 2007 and thereafter.
Defendant Lampley interposed an answer, dated April 10, 2013, which asserted among other things that the plaintiff lacked standing. No other defendant has appeared or answered the complaint.
No defendant has submitted opposition to the instant motion.
LAW AND APPLICATION
USBNA seeks an order granting judgment as against Lampley pursuant to CPLR 3212 and striking his answer pursuant to CPLR 3211(b). In residential mortgage foreclosure actions, a plaintiff seeking summary judgment establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default (Midfirst Bank v. Agho, 121 A.D.3d 343, 991 N.Y.S.2d 623 [2nd Dept.2014] ).
RPAPL 1321 provides in pertinent part as follows:
If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.
When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321 ; 1–2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01[4][k] [note: online edition] ).
As a preliminary matter the Court reviews plaintiff's compliance with the mandatory pre-commencement notices prior to reviewing the requirements for an accelerated judgment or for the appointment of a referee. The affidavit of plaintiff's process server, the affirmation of its counsel, and the copy of the RPAPL 1303 notice annexed to the motion papers, demonstrate that the plaintiff complied with the notice requirements of RPAPL 1303.
RPAPL 1304 provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type” (RPAPL 1304 [1 ]; Deutsche Bank Nat. Trust Co. v. Spanos, 102 A.D.3d 909, 910, 961 N.Y.S.2d 200 [2nd Dept.2013] ). RPAPL 1304 sets forth the requirements for the content of such notice (see RPAPL 1304[1] ), and further provides that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (RPAPL 1304[2] ; Deutsche Bank Nat. Trust Co. v. Spanos, 102 A.D.3d 909, 910, 961 N.Y.S.2d 200 [2nd Dept.2013] ).
RPAPL 1304 currently applies to any home loan, as defined in RPAPL 1304(5)(a). When the statute was first enacted, it applied only to high cost, subprime, and non-traditional home loans (Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 104, 923 N.Y.S.2d 609 [2nd Dept.2011] ) [citing L.2008, ch. 472, § 2] ). In 2009, the Legislature amended the statute, “ effective January 14, 2010, to take its current form, by deleting all references to high-cost, subprime, and non-traditional home loans” (Aurora Loan Servs., LLC, 85 A.D.3d at 105, 923 N.Y.S.2d 609 [citing L. 2009, ch. 507, § 1–a] ).
“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” (Deutsche Bank Nat. Trust Co. v. Spanos, 102 A.D.3d 909, 910, 961 N.Y.S.2d 200 [2nd Dept.2013]citing, Aurora Loan Servs., LLC, 85 A.D.3d at 106, 923 N.Y.S.2d 609 ). The only documents within the instant motion which address service of the RPAPL 1304 notice is the affidavit of Krysta Johnson, the Vice–President of Wells Fargo Bank, N.A., and USBNA's servicer and attorney in fact (hereinafter Johnson). Johnson's sole reference to RPAPL 1304 is in paragraph five (5) of her affidavit.
Therein she stated the following:
I have reviewed the 90 day pre-foreclosure notice sent to borrower by certified mail and also by first-class mail to the borrower last known address, which is the mortgaged property. Submitted with plaintiff's motion is a copy of the (90) day pre-foreclosure notice
The court deems all references to “90 day notice” contained in USBNA's motion papers to refer to the pre-commencement notice required under RPAPL 1304 and has adopted the reference.
USBNA has admitted that the notice requirements of RPAPL 1304 apply to the instant action and its loan servicer has sworn that it has been complied with. Johnson's affidavit, however, is conclusory in that it does not allege any facts as to how compliance was accomplished. She does not state that she served the 90 day notice or identify the individual who did so. Nor does she refer to a standard office practice by Wells Fargo to ensure that items are properly addressed and mailed (see Nocella v. Fort Dearborn Life Ins. Co. of N.Y., 99 A.D.3d 877, 955 N.Y.S.2d 70 [2nd Dept.2012] ). The presumption of receipt by the addressee “may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 729 N.Y.S.2d 776 [2nd Dept.2001] ). USBNA has, therefore, failed to submit an affidavit of service evincing that it properly served the mortgagor pursuant to RPAPL 1304 (Deutsche Bank Nat. Trust Co. v. Spanos, 102 A.D.3d 909, 910, 961 N.Y.S.2d 200 [2nd Dept.2013] ). Consequently, USBNA has not demonstrated strict compliance with RPAPL 1304. “A new RPAPL section 1306 was enacted by the Laws of 2009, c. 507, § 5 (effective February 13, 2010), requiring each lender, assignee or mortgage loan servicer to file with the Superintendent of Banks within three business days of the mailing of the 90–day pre-litigation notice to be given to a borrower of (i) a home loan (RPAPL 1304[1] ), or (ii) a loan covering a residential cooperative interest (CPLR 9–611[f] ), the name, address and telephone number of the borrower, the amount claimed to be due, and the type of loan at issue. Such filing to be made electronically on a form to be prescribed by the Superintendent, and any complaint served in a proceeding pursuant to this article shall contain an affirmative allegation of compliance with this section” (see RPAPL 1306, see also Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 49 ½ RPAPL 1306 by Rudolph de Winter).
RPAPL 1306(1) provides in pertinent part that any complaint served in a proceeding initiated pursuant to this article shall contain, as a condition precedent to such proceeding, an affirmative allegation that at the time the proceeding is commenced, the plaintiff has complied with the provisions of this section.
Inasmuch as the instant action was commenced on March 16, 2013, and the 90–day notice requirement of RPAPL 1304 are admitted to apply to the instant action, the additional notice and pleading requirements of RPAPL 1306 also apply. USBNA's only sworn allegation of fact pertaining to RPAPL 1306 is made in paragraph six of Johnson's affidavit in which she states “I confirm that within 3 business days of the mailing of of the 90 day pre-foreclosure notice the filing requirements with the superintendent banks was complied with.” Johnson's statement does not swear to the fact but rather confirms the fact. Furthermore, it does not specify the date of alleged filing. The only reference to RPAPL 1306 in the complaint is in paragraph eleven in which USBNA states that in conclusory fashion that, if applicable, it has complied with RPAPL 1306.
The Legislature is presumed to know the law in existence at the time it enacts legislation (see Brady v. Village of Malverne, 76 A.D.3d 691, 907 N.Y.S.2d 68 [2nd Dept.2010] ) including the pleading requirements of CPLR 3013. CPLR 3013 provides that statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. The salient requirement is that the complaint plead specific facts which give notice of what the pleader is claiming and not merely utter conclusions (see e.g. Megna v. Becton Dickinson & Co., 215 A.D.2d 542, 626 N.Y.S.2d 546 [2nd Dept.1995] ). USBNA's complaint merely states a conclusion and no specific facts which show compliance with RPAPL 1306.
USBNA has failed to comply with the pleading requirement of RPAPL 1306. USBNA has also failed to demonstrate strict compliance with the notice requirement of RPAPL 1304 and 1306.
In light of the foregoing, plaintiff's motion for an order, granting summary judgment against Lampley, striking Lampley's answer, appointing a referee to compute and finding all non-answering defendants in default is denied. The denial is without prejudice until such time as plaintiff demonstrates compliance with RPAPL 1304 and 1306.
Through the affirmation of it counsel, plaintiff has demonstrated that it has served the commencement papers on Erica Hazel, Paul Downey, and Richard Fogel as John Doe, and that there were no other “John Does” occupying the mortgaged premises.
Accordingly, that branch of its motion seeking to substitute John Doe with Erica Hazel, Paul Downey, and Richard Fogel is granted (Deutsche Bank Nat. Trust Co. v. Islar, 122 A.D.3d 567, 996 N.Y.S.2d 130 [2nd Dept.2014 citing CPLR 1024 and Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 1046, 943 N.Y.S.2d 551 [2nd Dept.2012] ).
In the event that USBNA seeks the same relief in a subsequent motion, it is directed to annex the instant decision and order with its motion papers.
CONCLUSION
That branch of USBNA's motion which seeks an order granting summary judgment as against defendant Clifton Lampley is denied without prejudice.
That branch of USBNA's motion which seeks an order striking Lampley's answer pursuant to 3211(b) is denied without prejudice.
That branch of USBNA's motion which seeks an order appointing a referee to compute pursuant to RPAPL 1321 is denied without prejudice. That branch of USBNA's motion which seeks an order amending the caption by substituting John Doe with Erica Hazel, Paul Downey, and Richard Fogel is granted. The foregoing constitutes the decision and order of this Court.