Opinion
15438/2011
11-20-2018
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR SCMC 2006-6, Plaintiff, v. John GUERCIA, "Jane Doe", Defendant(s).
Anthony J. DeMarco, Esq., WOODS OVIATT GILMAN, LLP, 700 Crossroads Building, 2 State Street, Rochester, NY 14614, Attorneys for Plaintiff. Charles H. Wallshein, Esq., 35 Pinelawn Road, Suite 106E, Melville, NY 11747, Jane Doe, Joan M. Genchi, Esq., Court Appointed Referee, PO Box 210, Port Jefferson Station, NY 11776, Attorney for Defendant John Guercia.
Anthony J. DeMarco, Esq., WOODS OVIATT GILMAN, LLP, 700 Crossroads Building, 2 State Street, Rochester, NY 14614, Attorneys for Plaintiff.
Charles H. Wallshein, Esq., 35 Pinelawn Road, Suite 106E, Melville, NY 11747, Jane Doe, Joan M. Genchi, Esq., Court Appointed Referee, PO Box 210, Port Jefferson Station, NY 11776, Attorney for Defendant John Guercia.
Robert F. Quinlan, J.
Upon the following papers numbered 1 to 100 read on this motion for judgment of foreclosure and sale and cross-motion to dismiss; Notice of Motion and supporting papers 1-28 ; Notice of Cross Motion for to "vacate summary judgment" and dismissal for violations of RPAPL § 1304 or alternatively to reject referee's report, denying judgment of foreclosure and sale and supporting papers 29-72 ; Affirmations and supporting papers in opposition to cross-motion and reply 73-100; as well as correspondence from referee and letter of November 5, 2018 from plaintiff withdrawing its motion; it is
ORDERED that the motion by plaintiff US Bank National Association, as Trustee For CSMC 2006-6 for an order pursuant to RPAPL § 1351 granting a judgment of foreclosure, approving plaintiff's request for attorney's fees and associated relief is denied as moot as it has been withdrawn by plaintiff; and it is further,
ORDERED that as plaintiff has withdrawn it's application for a judgment of foreclosure and sale, that portion of defendant John Guercia's motion seeking to reject the referee's report, discharge the referee, for the court to hold a hearing on the issue of amounts due and deny plaintiff's motion for judgment of foreclosure and sale is also denied as moot; and it is further
ORDERED that portion of defendant John Guercia's motion to "vacate summary judgment" and dismissal for violations of RPAPL § 1304 is denied; and it is further
ORDERED that plaintiff is to file a discontinuance of the action or file an application for a judgment of foreclosure and sale within 120 days of the date of this order, pursuant to the terms of this order; failure to comply with these terms of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined; and it is further
ORDERED that the court modifies and amends it's order of September 15, 2016 by deleting the following paragraphs:
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee all papers and documents necessary for him/her to perform the determinations required by this order, and prepare his/her report; which referee's report is to be submitted to plaintiff within 30 days of receipt days the papers and documents aforementioned; and it is further
ORDERED that plaintiff is to serve notice upon defendant-mortgagor(s) of the hearing before the referee to compute the amount due to plaintiff ( CPLR 4313 ); and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, January 18, 2017 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.
and substitutes in their place the following paragraphs:
ORDERED that within 60 days of the date of this amended order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order, "plaintiff's submissions"; defendant(s) may submit written objections and proof in support thereof, "defendant's objections," to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this amended order of reference ( CPLR 4311, RPAPL § 1321 ), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendant's objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendant's objections have been submitted to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit defendant's objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, March 27, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If the action is discontinued or a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined
This is an action to foreclose a mortgage on residential real property located at 6 Mystic Way, Stony Brook, Suffolk County, New York given by defendant John Guercia ("defendant") to plaintiff US Bank National Association, as Trustee For CSMC 2006-6's ("plaintiff") predecessor in interest on January 6, 2006 to secure a note given the same date by defendant to that predecessor in interest. Upon defendant's default in payment under the terms of the mortgage and note plaintiff commenced this action by filing a summons, complaint and notice of pendency with the Suffolk County Clerk on May 11, 2011 and defendant filed his answer, through prior counsel, dated July 22, 2011 which raised various affirmative defenses and counterclaims, but failed to raise any direct challenges to plaintiff's compliance with the requirements of RPAPL § 1304.
Plaintiff moved for summary judgment dismissing defendant's affirmative defenses and striking the answer, amending the caption, fixing the default of the non-appearing, non-answering defendant and for an order of reference pursuant to RPAPL § 1321 (Mot. Seq. # 001). Defendant, by present counsel, cross-moved to amend his answer and in opposition to plaintiff's motion (Mot. Seq. # 002). Oral argument of both motions was held before this court on September 15, 2016, at which time defendant's motion was denied and plaintiff's motion was granted; a more complete history of the action and the court's rulings are contained in the court's decision placed on the record at that time.
Defendant filed a motion to dismiss on June 29, 2017 (Mot. Seq. # 003), which was withdrawn after a compliance conference on October 24, 2017 at which time a scheduling order was issued authorizing defendant to file opposition to plaintiff's motion for a judgment of foreclosure and sale ( Mot. Seq. # 004), as well as to file a cross-motion. Defendant then filed opposition to plaintiff's motion and his cross-motion (Mot. Seq. # 005) asking the court to reject referee's report, deny judgment of foreclosure and sale on that basis and also for what defendant claims are evidentiary insufficiencies in plaintiff's submissions to the referee, as well as moving to "vacate summary judgment" and for dismissal for violations of RPAPL § 1304.
MOTION FOR JUDGMENT OF FORECLOSURE AND SALE WITHDRAWN
By letter dated November 5, 2018 plaintiff requested to withdraw its motion for a judgment of foreclosure and sale, as defendant has entered loss mitigation and plaintiff feared that federal regulations prohibiting "dual tracking" might be violated if a decision on the motion was made by the court. Although the court could have held the motion in abeyance pending a final decision on the loss mitigation, a party may withdraw its' own motion at any time, as long as there is no prejudice to another party. Under these circumstances the court cannot conceive of any legitimate claim of prejudice that could be made by defendant, therefore plaintiff's application to withdraw its motion is granted. Plaintiff's motion is withdrawn and that portion of defendant's cross-motion and opposition that relate to the judgment of foreclosure and sale is denied as moot.
As the court has the inherent power and duty to monitor and control the progress of a case in it's inventory, the court orders that within 120 days of the date of this order plaintiff is to file a discontinuance of the action if the loan has been modified, or file a new motion for a judgment of foreclosure and sale, and the action shall be calendared for a status conference on Wednesday, March 27, 2019 at 9:30 AM in this part to monitor compliance. If the action is discontinued or a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary.
Although plaintiff's application for a judgment of foreclosure and sale is withdrawn, defendant's cross-motion is still before the court and the court will address defendant's claims for dismissal pursuant to RPAPL § 1304 raised therein; that portion of defendant's cross-motion seeking to reject the referee's report, discharge the referee and to hold a hearing on the amounts due and owing to plaintiff is denied as moot, as plaintiff has withdrawn it's motion for a judgment of foreclosure and sale.
RPAPL § 1304 CLAIMS CONSIDERED
Defendant's motion raises an issue that has on many occasions frustrated this court (e.g. Beneficial Homeowner Services Corp. v. Jordon-Thompson, 57 Misc 3d 1213 [A], 2017 N Y Slip Op. 51424 [U] [Sup Ct, Suffolk County 2017]; Citimortgage, Inc. v. Bunger , 58 Misc 3d 333 [Sup Ct, Suffolk County 2017] ; Bank of New York Mellon v. Govan , 61 Misc 3d 1213 [A], 2018 NY Slip Op. 51491 [U] [Sup Ct, Suffolk County 2018]; JPMorgan Chase Bank, N.A. v. Lebovic , 61 Misc 3d 1215 [A], 2018 NY Slip Op. 51528 [U] [Sup Ct, Suffolk County 2018] ). Defendant was represented by counsel who interposed an answer on his behalf in 2011. By that time it was clear that compliance with the requirements of RPAPL Article 13 were conditions precedent to a successful foreclosure action (see First Natl. Bank of Chicago v. Silver , 73 AD3d 162 [2d Dept 2010] ; Aurora Loan Services v. Weisblum , 85 AD3d 95 [2d Dept 2011] ), yet defendant's answer and affirmative defenses failed to raise any claims regarding compliance with the provisions of RPAPL § 1304. The CPLR requires that statements in a pleading be sufficiently particular to give the court and parties notice of what is claimed in a cause of action or defense, and that denial of performance or occurrence of a condition precedent be made with specificity and particularity ( CPLR 3013 and 3015 [a] ). Defendant's present counsel also did not raise the claims now raised concerning compliance with RPAPL § 1304 in his original cross-motion (Mot. Seq. # 002), or in opposition to plaintiff's summary judgment motion (Mot. Seq. # 001), or at the oral argument, raising them only now.
Having had a full opportunity to raise these issues earlier, under other circumstances, the court's inclination would be to deem defendant's "new found" objections waived, as it has long been held that if a party moves for summary judgment, it is incumbent upon an opponent to lay bare its proof and present evidentiary facts sufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc. 46 NY2d 1065 [1979] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ; Morgan v. NY Tel. , 220 AD2d 728 [2d Dept 1995] ; Hovi v. City of New York , 226 AD2d 430 [1996] ; Avant v. Cepin Livery Corp., 74 AD3d 533 [1st Dept 2010] ), but the emphasis placed upon strict compliance with the requirements of RPAPL§ 1304 by appellate decisions compels the court to treat this motion otherwise. Although sympathetic to plaintiff's argument that experienced defense counsel waived RPAPL § 1304 issues by not raising them earlier, case law compels the court to reject that argument.
It has been held that issues related to RPAPL § 1304 compliance can be raised for the first time as late as opposition to a motion for a judgment of foreclosure, in the discretion of the trial court (see Emigrant Mtge Co, Inc. v. Lifshitz , 143 AD3d 755 [2d Dept 2016] ), and that a clear waiver of these issues has only been held to have occurred when a defendant has defaulted in answering (see U.S. Bank N.A. v. Carey , 137 Ad3d 894 [2d Dept 2016] ; Flagstar Bank, FSB v Jambelli , 140 AD3d 829, [2d Dept, 2016] ), moved on this ground without moving to vacate his default (see PHH Mtge. Corp. v. Celestin , 130 AD3d 703 [2d Dept 2015] ; Flagstar Bank, FSB v. Jambelli, 140 AD3d 829 [2d Dept 2016] ; HSBC Bank USA v. Hasis , 154 AD3d 832 [2d Dept 2017] ), or if the first attempt to raise them is on appeal (see 40 B, LLC v. Katalikarn, 147 AD3d 710 [2d Dept 2017] ; Bank of America, NA v. Barton , 149 AD3d 676 [2d Dept 2017] ; Bank of America, N.A. v. Cudjoe , 157 AD3d 653 [2d Dept 2018] ). Therefore, the court believes it is compelled to consider defendant's "new" arguments.
Once plaintiff has pled RPAPL § 1304 compliance in its complaint and it is either denied by defendant in his answer or raised as an affirmative defense, it is plaintiff's responsibility to establish compliance as part of its prima facie case (see Bank of New York v. Aquino , 131 AD3d 1186 [2d Dept 2015] ; Zarabi v. Movahedian , 136 AD3d 895 [2d Dept 2016] ; JPMorgan Chase Bank, N.A. v. Kutch , 142 AD3d 536 [2d Dept 2016] ; M & T Bank v. Joseph , 152 AD3d 579 [2d Dept 2017] ; Bank of New York Mellon v. Zavolunov , 157 AD3d 754 [2d Dept 2018] ).
NO VIOLATION OF RPAPL § 1304
Defendant claims that the mailing of the RPAPL § 1304 notices ("the notices") by certified mail ("the mailing") has not been established (defendant admits in his affidavit the receipt of the notices sent by regular mail, thereby establishing that mailing) and that the notices were defective as a matter of law for purported differences between them and the notice of default pursuant to the mortgage sent by plaintiff on the same day; these arguments are without merit.
Defendant's raised for the first time a claim that because the affidavit relied upon by plaintiff to establish the mailing was from an affiant who attests that she is a vice president of Wells Fargo Bank, N.A. d/b/a/ America's Servicing Company, plaintiff's servicer, which thereafter she refers to as "Wells Fargo," and the notices were addressed as from America's Servicing Company ("ASC"), the affidavit fails to prove the mailing. Defendant appears to claim that ASC is not a "d/b/a" of Wells Fargo, although the affiant clearly states so in her affidavit as a vice president of the entity. Defendant offers no proof that this "d/b/a" does not exist, apparently hoping that the court would give weight to form over substance; this the court will not do. The claim that the affidavit is insufficient because the affiant refers to Wells Fargo records to show the mailings and not ASC records is baseless.
The affiant establishes her ability to testify as to Wells Fargo d/b/a ASC business practices and procedures to establish it's business records and her ability to testify to them in accordance with CPLR 4518 (a). She describes the practices and procedures of Wells Fargo d/b/a ASC for mailing of the letters by certified and first class mail, but not in sufficient detail so that her affidavit alone would provide proof of actual mailing, nor does she provide a sufficient description of the office's practice and procedure for mailing to establish the mailings (see Vivane Etienne Med. Care, P.C. v. Country Wide Ins. Co. , 25 NY3d 498 [2015] ; Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679 [2d Dept 2001] ); New York & Presbyt. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006] ; Citimortgage v. Banks , 155 AD3d 936 [2d Dept 2017] ; U.S. Bank, N.A. v. Sims , 162 AD3d 825 [2d Dept 2018] ; Deutsche Bank Natl. Trust Co. v. Heitner , ––– AD3d ––––, 2018 NY Slip Op. 07090 [2d Dept 2018] ).
As defendant raised the issue of failure of proof of mailing of the notices by certified mail for the first time in his cross-motion, plaintiff was entitled to respond in its opposition and reply (see Arriola v. City of New York, 128 AD3d 747 [2d Dept 2015] ; Citimortgage v. Espinal , 134 AD3d 876 [2d Dept 2016] ). In support of proof of the mailing of the notices by certified mail, plaintiff submitted the vice-president's affidavit along with a copy of the certified letter envelope sent to defendant at the property address returned by the US Postal Service ("USPS"), which bears markings by the USPS of two attempted deliveries and a return as "unclaimed." Plaintiff also submitted a copy of the "Domestic Return Receipt - PS Form 3811, July 2001" from the certified letter sent to the second address for defendant, which was signed for by an "agent" at that address. Both documents bear the appropriate 20 digit numerical and bar codes referred to in the vice-president's affidavit. As she had established her ability to testify as to Wells Fargo/ASC's business records pursuant to CPLR 4518 (a), and those records confirm these two documents, plaintiff has established the mailing of the notices by certified mail. The statutory condition precedent requires plaintiff to establish mailing of the notice by certified mail, not necessarily its receipt. The court further notes that defendant's and his counsel's attempts to find proof of the mailing seven years after they were made by searching a USPS internet site is not only inadmissible hearsay, but unavailing as the court and defendant's counsel are aware that such old records are unavailable "on line," but could have been obtained from the USPS by other means.
That portion of defendant's cross-motion seeking dismissal for failure to establish the mailing of the notices by certified mail is denied.
Defendant's claim that the notice was defective is because although the notice provided the correct information required by RPAP§ 1304 available at the time of its mailing in the language and in the form required by the statute, when he compared it with the notice of default required by the mortgage sent the same day by plaintiff's servicer, he was confused. Defendant and his counsel read into the statute a further requirement that the notice must give defendant information about the extent of his future obligations under the note and mortgage. In support of his argument defendant cites Hudson City Savings Bank v. DePasquale , 113 AD3d 595 (2d Dept 2014), but the facts of that case, as seen from the submissions on appeal, make it clear that plaintiff therein acknowledged that the notice listed an incorrect number of days that defendant had been in default, unlike here where plaintiff admits no such error, nor does defendant claim one. Another case dealing with dismissal for a defect in the notice, not cited by defendant, Flagstar Bank FSB v. Damaro , 145 AD3d 858 (2d Dept 2016), dealt with a situation where the notice required payment by defendant to cure the default two days prior to the notice being sent. There is no such defect here. The second case cited by defendant in support of his position, Aurora Loan Servs., LLC v. Komarovsky , 151 AD3d 924 (2d Dept 2017), merely states the general principle that compliance with RPAPL § 1304 is mandatory, but in no other way supports defendant's position.
If it had been the intent of the Legislature for the statute to contain the language defendant wishes to read into it, the Legislature would have promulgated it that way, or amended it to so state in one of the six amendments since its first effective date. The Court of Appeals has clearly stated: "A court cannot amend a statute by inserting words that are not there nor will a court read into a statute a provision which the Legislature did not see fit to enact.... an inference must be drawn that what is omitted or not included was intended to be omitted and excluded." ( Chemical Specialties Mfrs. Ass'n v. Jorling , 85 NY2d 382, 394 [1995] ; see also People v. Silburn , 31 NY3d 144, 174 [2018] ; People v. Tiger , 32 NY3d 91 [2018] ). If defendant had paid the amount set forth in the RPAPL § 1304 notice by the date set forth therein, plaintiff would have been obligated by the statute to have accepted it and the default would have been cured up to that payment date. Future defaults under the note and mortgage would have been dealt with as, and if, they occurred; the statute gave defendant the opportunity to bring his default current, it did not address the possibility of future defaults.
That portion of defendant's cross-motion seeking "to vacate summary judgment" and for dismissal of plaintiff's action for allegedly failing to comply with RPAPL § 1304 is denied.
AMENDMENT OF ORDER OF SEPTEMBER 15, 2016
As a result of the issues raised by both motions, the court modifies and amends it's order of September 15, 2016 by deleting the following paragraphs:
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee all papers and documents necessary for him/her to perform the determinations required by this order, and prepare his/her report; which referee's report is to be submitted to plaintiff within 30 days of receipt days the papers and documents aforementioned; and it is further
ORDERED that plaintiff is to serve notice upon defendant-mortgagor(s) of the hearing before the referee to compute the amount due to plaintiff ( CPLR 4313 ); and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, January 18, 2017 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.
and substitutes in their place the following paragraphs:
ORDERED that within 60 days of the date of this amended order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order, "plaintiff's submissions"; defendant(s) may submit written objections and proof in support thereof, "defendant's objections," to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this amended order of reference ( CPLR 4311, RPAPL § 1321 ), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendant's objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendant's objections have been submitted to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit defendant's objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, March 27, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If the action is discontinued or a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.
This constitutes the Order and decision of the Court.