Opinion
Index No. 206156/2022
03-08-2024
U.S. Bank Trust National Association, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR RCF 2 ACQUISITION TRUST, Plaintiff, v. Brian Joerger; PHYLLIS JOERGER; COMMERCE BANK, NA; "JOHN DOE #1" through "JOHN DOE #10" inclusive, the names of the ten last name, Defendants being fictitious, real names unknown to the Plaintiff, the parties intended being persons or corporations having an interest in, or tenants or persons in possession of, portions of the mortgaged premises described in the Complaint, Defendants.
KNUCKLES, KOMOSINSKI, &MANFRO, LLP Attys for Plaintiff Attys. for Def. Phyllis Joerger
KNUCKLES, KOMOSINSKI, &MANFRO, LLP Attys for Plaintiff
Attys. for Def. Phyllis Joerger
Thomas F. Whelan, J.
Upon the following papers read on this motion For dismissal; Notice of Motion/Order to Show Cause and supporting papers NYSCEF Docs. 35 - 52; Notice of Cross Motion and supporting papers:; Opposing papers: NYSCEF Docs. 55 - 61; Reply papers NYSCEF Docs. 62 - 64; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion (#001) by defendant Phyllis Joerger seeking dismissal of the complaint is denied; and it is further
ORDERED that plaintiff's counsel and defendant's counsel are directed to appear on April 18, 2024 at 9:30am in the courtroom of the undersigned in Part 33 located in the Supreme Court Annex Bldg, at One Court Street, Riverhead, New York, for a status conference. In the event a motion is filed on or before April 16, 2024, no conference will be necessary on April 18, 2024; and it is further
ORDERED that movant is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2)
This is an action to foreclose a mortgage on residential real property situate in Lindenhurst. In essence, on February 21, 2006, defendant Brian Joerger agreed to repay $280,000.00 to plaintiff's predecessor in interest and executed a promissory note and, together with Phyllis Joerger, a mortgage. The defendant ceased making monthly payments as of May 1, 2009. An action for foreclosure was therefore commenced on May 7, 2013 at Suffolk County Index Number 12336/2013 ("Action #1"). Defendant Brian Joerger filed an answer, and no other defendants appeared. On June 27, 2022, this Court issued a Memo Decision and Order determining three motions. First, the Court granted that the branches of the plaintiff's motion (#001) for an award of summary judgment as against the answering defendant Brian Joerger dismissing eight of the nine asserted affirmative defenses, and denied summary judgment with regard to the remaining defense. Second, the Court granted defendant Phyllis Joerger's cross motion (#002) to dismiss the complaint as against her. Third, defendant Brian Joerger's cross motion (#003) for summary judgment was denied. After a conference with the parties, plaintiff filed another motion (#004) seeking dismissal of the fourth affirmative defense, and the defendant Brian Joerger filed a cross motion for (#005) summary judgment and dismissal of the complaint. By Order dated March 9, 2023, the Court granted the plaintiff's motion and denied the defendant's cross motion.
On November 18, 2022, the plaintiff, relying on the version of CPLR 205(a) in effect at the time, commenced the instant action. A supplemental summons and amended complaint were thereafter filed on December 6, 2022. The plaintiff noted in the complaint that Action #1 would be consolidated with the new action.
On December 30, 2022, the Foreclosure Abuse Prevention Act ("FAPA," L 2022, ch 821) went into effect.
On January 19, 2023, defendant Phyllis Joerger (hereinafter solely "the defendant"), through counsel, filed an answer alleging seven affirmative defenses and three counterclaims. Thereafter, on March 13, 2023, the defendant, through counsel, filed the instant motion (#001) seeking dismissal of the complaint pursuant to CPLR 3211(a)(1), (2), (5) and/or (8), challenging, inter alia, service upon the movant, the timeliness of the action, and the plaintiff's compliance with Banking Law 6-l. The defendant further contends that statutes applicable in this case as amended by FAPA - that is, CPLR 205(a) and CPLR 213(4) - are to be applied retroactively and support dismissal of the complaint. The plaintiff opposes the motion and notes that application of FAPA would constitute an unconstitutional and improper retroactive application. The defendant filed a reply.
The Court begins with its discussion of FAPA.
Foreclosure Abuse Prevention Act
On February 18, 2021, the Court of Appeals rendered its decision in Freedom Mtge. Corp. v Engel (37 N.Y.3d 1 [2021]) and reaffirmed the circumstances under which the acceleration of amounts due under a note secured by a mortgage are "deaccelerated" or, in other words, when the acceleration of a mortgage debt is revoked. The Engel Court held that the voluntary discontinuance of an action constituted a revocation of the debt which was accelerated with the commencement of a foreclosure action.
New York State Legislature Reaction
Nearly two years later, on December 30, 2022, FAPA went into effect. According to the legislative sponsor in the New York State Senate, FAPA's purpose is to "overrule the Court of Appeals' recent decision in Freedom Mtge. Corp. v Engel" (Senate Introducer's Mem in Support, Bill Jacket, L 2022, ch 821 [#S5473(D), Sanders, revised 5-4-2022]). The sponsor notes that "abuses of the Judicial foreclosure process... have been sanctioned by the Judiciary... [resulting] in perversion of long-standing law and creat[ing] an unfair playing field that favors the mortgage banking and servicing industry at the expense of every day New Yorkers" (id.). The "aim of the bill is to thwart and eliminate abusive and unlawful litigation tactics that have been employed by foreclosure plaintiffs to the prejudice of homeowners throughout New York," and to "level the playing field... further clarify and reaffirm the legislative intent of a wide spectrum of laws that have been: (1) manipulated and abused by mortgage lending and servicing institutions; and (2) misunderstood and/or misapplied by the courts" (id. [emphasis added]).
The legislative sponsor in the New York State Assembly noted that a section of the new legislation was "a response to the Court of Appeals' recent holding Freedom Mtge. Corp. v Engel, 37 N.Y.3d 1 (2021). This will restore longstanding law that made it clear that a lenders' discontinuance of a foreclosure action that accelerate a mortgage loan does not serve to reset the statute of limitations" (Assembly Introducer's Mem in Support, Bill Jacket, L 2022, ch 821 [#A7737B, Weinstein]).
FAPA amended six laws: CPLR 203, CPLR 205, CPLR 213, CPLR 3217, RPAPL § 1301 and GOL § 17-105. FAPA section 10 provides that it "shall take effect immediately and shall apply to all actions commenced on [a note and mortgage] in which a final judgment of foreclosure and sale has not been enforced" (FAPA § 10).
FAPA's Misunderstanding of Existing Law
The legislature's unprecedented attack upon the judiciary, with its assault upon the Court of Appeals holding in Engel, ignores the long line of cases which stood for the judicial standard that historically existed in this area of law - that is, that where there is a validly filed stipulation of discontinuance resolving a case, it is as if the case "had never been begun" (Yonkers Fur Dressing Co. Inc. v Royal Ins. Co. Ltd., 247 NY 435, 444 [1928]).
In the ancient case of Loeb v Willis, 100 NY 231, 235 (1885), the Court of Appeals stated:
The foreclosure action was discontinued and all the proceedings therein thus annulled. There was no longer any record or adjudication in that action which bound any one. By the discontinuance of an action the further proceedings in the action are arrested not only, but what has been done therein is also annulled, so that the action is as if it never had been.(Loeb, 100 NY at 235 [italics added]; see also Brown v Cleveland Tr. Co., 233 NY 399, 406 [1922].)
The Court of Appeals in Kilpatrick v Germainia Life Ins. Co., 183 NY 163 (1905), explained that in the face of a discontinuance, the election made in a foreclosure action to treat a mortgage debt as due only becomes "final and irrevocable after [the mortgagor's] change of position and assumption of legal obligations, the direct result of that election" (Kilpatrick, 183 NY at 168).
The Second Department had long adhered to the above rules. In Newman v Newman, 245 A.D.2d 353, 665 N.Y.S.2d 423 (2d Dept 1997), the court held, "[w]hen an action is discontinued, it is as if it had never been; everything done in the action is annulled and all prior orders in the case are nullified (Brown v Cleveland Trust Co., 233 NY 399; Weldotron Corp. v Arbee Scales, 161 A.D.2d 708; Miehle Print. Press & Mfg. Co. v Amtorg Trading Corp., 278 A.D. 682)" (Newman, 245 A.D.2d at 354).
In Golden v Ramapo Imp. Corp., 78 A.D.2d 648, 432 N.Y.S.2d 238 (2d Dept 1980), the Second Department noted that "[t]he general rule is that waiver of the right to accelerate the mortgage debt is discretionary with the mortgagee" (Golden, 78 A.D.2d at 650, citing Adler v Berkowitz, 254 NY 433, 437 [1930]; Odell v Hoyt, 73 NY 343 [1878]). The Court went on to hold, "That she [plaintiff] was under no restraint in changing her mind is likewise clear: only if a mortgagor can show substantial prejudice will a court in the exercise of its equity jurisdiction restrain the mortgagee from revoking its election to accelerate" (Golden, 78 A.D.2d at 650, citing Kilpatrick, 183 NY 163 [additional citations omitted]).
As noted by then Justice Daniel F. Luciano in Housberg v Blake, 146 Misc.2d 960, 553 N.Y.S.2d 280 (Sup Ct, Suffolk County 1990), quoting a treatise on New York law:
"When an action is discontinued, it is as if the action had never been; all prior orders in the case are nullified. Once an action has been discontinued, there can be no judgment or appeal, and no objection to another action for the same relief on the ground that a prior action is pending." (7A Carmody-Wait 2d, NY Prac §47:42) Further, with respect to the New York rule it is stated that "[o]nce an action has been discontinued by consent or stipulation, it is [as though] the action never existed;..." (7A Carmody-Wait 2d, NY Prac §47:51.(Housberg, 146 Misc.2d at 962.)
The Second Department affirmatively declared the breaking away from this traditional rule in its determination in Christiana Trust v Barua, 184 A.D.3d 140, 125 N.Y.S.3d 420 (3-1 dissent) (2d Dept 2020), in which the Court held that the mere discontinuance of an action, in and of itself, did not nullify any debt acceleration demanded in a foreclosure plaintiff's complaint. The Court rejected the claim that a discontinuance within six years of the action's acceleration of the full balance due on the note operated as a de-acceleration of the debt and declared that cases to the contrary "should no longer be followed" (Barua, 184 A.D.3d at 147). The dissent, however, noted that the Second Department's earlier holding in Engel "departed from its prior precedent, without acknowledgment or explanation" and that "[t]he new evidentiary burden imposed in Engel finds no support in the prior case law..." (id. at 167).
The Court of Appeals, in Engel, simply rejected the different rule that had emerged in the Second Department (Engel, 37 N.Y.3d at 30) and concluded that "[a] voluntary discontinuance withdraws the complaint and, when the complaint is the only expression of a demand for immediate payment of the entire debt, this is the functional equivalent of a statement by the lender that the acceleration is being revoked" (id. at 32).
So, indeed, it was the Second Department that altered this long-held judicial interpretation, which the Court of Appeals corrected when it issued its Engel decision and reaffirmed over one- hundred years of long-standing precedent. The state legislature's misguided and intimidating attack on the Court of Appeals holding in Engel can have a chilling effect on the administration of justice and judicial independence.
In fact, much has been written on this topic in recent months (see Michael Miller, Intimidation by Another Name: Attacking Judges With Good Government Rhetoric and the Chilling Effect on Judicial Independence, NYLJ, August 7, 2023; Rolando T. Acosta, Report on 'Carceral' Judges Is Flawed and Dangerous, NYLJ, June 13, 2023; Y. David Scharf and David B. Saxe, Recent Attacks on Judicial Independence Impair the Proper Functioning of The Judiciary in New York, NYLJ, July 24, 2023, at 7; Brian Lee, Retired Presiding Justice Acosta Uses Award State to Denounce 'Threats to Judicial Independence', NYLJ, May 12, 2023; Rolando T. Acosta, A House Again Divided: Our Democracy and Courts in Peril, NYLJ, May 15, 2023; A. Gail Prudenti, The Importance of our Independent Judiciary, Long Island Business News, June 8, 2023).
The New CPLR 205-a(a )
Here, the defendant challenges the instant foreclosure action pursuant to the CPLR 205-a(a) "savings provision" as amended by FAPA, which now provides, in part:
If an action upon [a note and mortgage] is timely commenced and is terminated in any manner other than a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for any form of neglect, including but not limited to those specified in subdivision three of Section 3126, Section 3215, Rule 3216 and Rule 3404 of this chapter,... the original plaintiff may commence a new action... within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period.(CPLR 205-a[a].)
FAPA also adds a new subdivision which states "a successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff" (CPLR 205-a[a](1)).
The New CPLR 213(4 )
CPLR 213(4) at the time the action was commenced provides for a six-year statute of limitations for a foreclosure action. As amended by FAPA, CPLR 213(4) includes a new subparagraph (a) which provides that "[i]n any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (CPLR 213[4]).
FAPA - Retroactivity
Any discussion of retroactivity must begin with the words of Justice Cardozo in Jacobus v Colgate, 217 NY 235 (1916),
The general rule is that statutes are to be construed as prospective only. 27 Halsbury's Laws of England, p. 159. It takes a clear expression of the legislative purpose to justify a retroactive application.(Jacobus, 217 NY at 240 [citations omitted].)
Justice Cardozo went on to conclude:
To hold that this statute is retroactive would therefore be to give a remedy for ancient and forgotten wrongs.(Jacobus, 217 NY at 245.)
As set forth by the Supreme Court in Martin v Hadix, 527 U.S. 343, 119 S.Ct. 1998,144 L.Ed.2d 347, in keeping with the landmark holding in Landgraf v USI Film Product, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994):
The inquiry into whether a statute operates retroactively demands a commonsense, functional judgment about "whether the new provision attaches new legal consequences to events completed before its enactment." [ Landgraf, 511 US] at 270, 114 S.Ct. 1483. This judgment should be informed and guided by "familiar considerations of fair notice, reasonable reliance, and settled expectations." Ibid.(Martin, 527 U.S. at 357-58.)
On numerous occasions, the Court of Appeals has held against retroactive application of amendments to statutes (see e.g. Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 587 [1998]) (holding that "grave injury" amendments to Workers' Compensation Law did not apply retroactively to actions pending on effective date of amendment). In James Square Assocs. LP v Mullen, 21 N.Y.3d 233 (2013), the Court set forth the following rule:
"[F]or centuries our law has harbored a singular distrust of retroactive statutes" (Eastern Enterprises v Apfel, 524 U.S. 498, 547, 118 S.Ct. 2131, 141 L.Ed.2d 451 [1998], Kennedy, J., dissenting in part]). The United States Supreme Court stated in Landgraf v USI Film Products that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted" (511 U.S. 244, 265).(Mullen, 21 N.Y.3d at 246.)
The Court of Appeals recently addressed the issue of retroactivity in Gottwald v Sebert, 40 N.Y.3d 240, 197 N.Y.S.3d 694 (June 13, 2023). The Court there acknowledged "the strong presumption of prospective application" in the absence of a clear statement concerning retroactivity (Gottwald, 40 N.Y.3d at 260, quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 587 [1998]). This is so "unless the language expressly or by necessary implication requires it" (id. at 258, quoting Majewski, 91 N.Y.2d at 584). Notably, that a statute "directs that it 'shall take effect immediately'... is not 'enough to require application [of that statute] to pending litigation,'" as such a "phrase is equivocal" (Gottwald, 40 N.Y.3d at 259 [citations omitted]).
Similarly, in People v Galindo, 38 N.Y.3d 199 (2022), Judge Rivera, writing for the Court, held that amendments to the speedy trial statute did not apply retroactively to criminal actions commenced before its effective date, noting that nothing in the text or legislative history supported such an interpretation (Galindo, 38 N.Y.3d at 207).
The Appellate Division Second Department recently addressed this issue in VIP Pet Grooming Studio, Inc. v Sproule, - N.Y.S.3d -, 2024 WL 172927, 2024 NY Slip Op. 00205 (2d Dept Jan. 17, 2024). There, the Court applied the analysis from the Gottwald decision and ultimately recognized that the retroactive application of the amendments at issue "to the pre-amendment complaint in this action could negatively impact substantive rights that VIP possessed at the time the action was commenced, which is a further ground in favor of the presumption against retroactivity" (VIP Pet Grooming Studio, Inc. v Sproule at *6, citing Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332, 370 [2020]). The Court acknowledged that "[h]ad the Legislature intended for the 2020 amendments to the anti-SLAPP statute to be applied retroactively, it could have said so" (id.).
In Matter of Mia S. (212 A.D.3d 17, 21, 179 N.Y.S.3d 732 [2d Dept 2022], lv dismissed 39 N.Y.3d 1118 [2023]), the Appellate Division, Second Department noted that legislation is subject to the presumption against retroactive application if it "affects substantive rights, such as a statute that 'would impair rights a party possessed when he [or she] acted, [or] increase a party's liability for past conduct, or impose new duties with respect to transactions already completed'" (Matter of Mia S. (212 A.D.3d at 21, citing Landgraf v. USI Film Products, 511 U.S. at 280; see also Matter of Regina Metro. Co., LLC, 35 N.Y.3d at 365). The Court in Matter of Mia S. further held that the amendment in that case, which changed the statutory presumption of neglect based upon a parent's repeated use of drugs, could be applied retroactively because it "does not impose a burden or penalty upon individuals. It does the opposite; by placing a restriction on the kind of proof that can establish a prima facie case of neglect..." (Matter of Mia S., 212 A.D.3d at 21).
Applying these interpretations to the instant case, it is clear that FAPA and its amendments are to be applied prospectively to actions commenced on or after December 30, 2022, FAPA's effective date. A foreclosure plaintiff who commenced an action prior to December 30, 2022 relied on the law on the commencement date in seeking to recover the amounts due as a result of the defendant's failure to pay his or her contractually agreed to mortgage obligations. For those actions "where acceleration occur[s] by virtue of the filing of a complaint in a foreclosure action, the noteholder's voluntary discontinuance of that action constitutes an affirmative act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder" (Engel, 37 N.Y.3d at 32). The Court of Appeals holding in Engel, mistakenly attacked on the law by the State Legislature in the FAPA amendments, provided that the plaintiff could recommence an action.
Similarly, CPLR 205(a), in effect at the time of commencement, authorized the re-commencement of a new action. Here, the amendment affects the substantive rights of a party - by actually eliminating that right, if this amendment is to be applied retroactively.
There is no doubt that the amendments, if applied retroactively, would impair rights a party possessed when it acted, increase the party's liability for past conduct, and impose new duties with respect to transactions already completed, all contrary to Landgraf and Matter of Regina Metro.
Unlike the recent holding in Matter of Regina Metro., which found that the retroactive application of Part F of the overcharge calculation amendments in the Housing Stability and Tenant Protection Act did not comport with due process, the effective date language was even more broadly expansive than that of FAPA. Therein, Part F "shall take effect immediately and shall apply to any claims pending or filed on and after such date." The "any claims pending" language is not set forth in FAPA, and the Court of Appeals, in Matter of Regina Metro., still found that retroactive application implicated all three Landgraf retroactivity criteria.
Movants here seek dismissal by reviving legal defenses that did not exist or challenges that were time-barred at the time of the new legislation, without any showing that the legislative body considered the potential unfairness of the retroactive application. As universally acknowledged, "[r]evival is an extreme exercise of legislative power" (Hopkins v Lincoln Trust Co., 233 NY 213, 215 [1922] [Cardozo, J.]).
FAPA section 10 provides that it "shall take effect immediately and shall apply to all actions commenced on [a note and mortgage] in which a final judgment of foreclosure and sale has not been enforced" (FAPA § 10). Similar sounding language has been found by the Court of Appeals to be ambiguous and lacking in intent to resurrect a claim (see 35 Park Ave. Corp. v Campagna, 48 N.Y.2d 813 [1979]). As noted above, the Supreme Court, in Martin v Hadix, rejected the claim of retroactivity in enabling language that was even broader than that set forth herein.
This Court is troubled by the fact that the state legislature ignores the bedrock "finality of judgment" case law and places importance upon the ministerial act of a referee in effectuating a final judgment of foreclosure and sale. It is the judgment which one appeals from (see CPLR 5501) and not the eventual sale. It is the judgment that settles the legal rights of the parties, not a future scheduled sale date. Indeed, the Court of Appeals has held that even new court holdings should not be applied retroactively to undue final judgments (see People v McMann, 24 N.Y.2d 233 [1965]).
"A judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action" (Ciraldo v JP Morgan Chase Bank, N.A., 140 A.D.3d 912, 913, 34 N.Y.S.3d 113 [2d Dept 2016]). The finality of judgments is an important aspect of real property jurisprudence (see Retained Realty, Inc. v Herbert E. Koenig, 166 A.D.3d 691, 88 N.Y.S.3d 48 [2d Dept 2018]; Archibald v Wells Fargo Bank, N.A., 166 A.D.3d 573, 87 N.Y.S.3d 298 [2d Dept 2018]).
This new legislative notion of "enforcement of the final judgment" is not a clear express prescription of the statute's reach - does the statutory notice of publication in the local paper (see RPAPL § 231) demonstrate enforcement of the judgment? Once again, the state legislature is seemingly willing to cast aside long-standing rules of law without clearly stating in the legislation or offering support for the claim of retroactivity (compare Replan Devl., Inc. v Department of Housing Preservation and Development of the City of New York, 70 N.Y.2d 451 [1987] [tax amendments were made expressly retroactive] with People v Graves, 280 NY 405 [1939] [retroactive law unconstitutional] ["The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority, be done"][citations omitted]).
After one painstakingly reads the eighteen pages of the NYS Senate Sponsor's Memo, one realizes the words "retroactive" or "to be applied retroactively" are nowhere to be found. Yet, the intention to overrule the holding in Engel is a constant refrain ("urgent need to pass this bill to overrule [Engel]"; "... are amended to expressly overrule Engel"; "In Engel, the Court held as a matter of law..."; "Under Engel, this back-and-forth yo-yo effect..."; a new section is added to "overrule Engel as violative of CPLR 201"; "new subdivision [CPLR 203(H)] makes clear... contrary to Engel..."; "CPLR 3217 (e) expressly intended to overrule Engel."
As to CPLR 205-a "[t]his new section... is hereby added to clarify the intended meaning of several words contained in the existing statute from which it is modeled..." This is a new section "as amended and reconstituted under CPLR 205-a(a)..." and the Sponsor Memo appears to, in this particular respect, be a compilation of various appellate decisions over the years that were found by the foreclosure defense bar to be offensive. The Sponsor Memo is written with a strong reliance upon either dissents or lower court holdings. The Memo concludes this section by stating that the criticized caselaw "should not be followed." Once again, in the discussion of the statute of limitations under CPLR 213 (4), the Sponsor Memo decrees that "[d]ecisions such as these should no longer be followed."
In the height of irony, as with Engel, the Sponsor's Memo clearly states that long-existing caselaw "should no longer be followed" and, in essence, should be disregarded and treated "as if it had never been" (Loeb v Willis, supra).
Constitutionality
If necessary to reach the constitutionality of the retroactivity of the FAPA amendments, this Court concludes that retroactivity does not comport with due process, guaranteed by the Fifth and Fourteenth Amendments to the Constitution, since there is no "legitimate legislative purpose" supporting the retroactive administration of FAPA (see Matter of Regina Metro., 35 N.Y.3d at 375). As detailed above, the genesis for the FAPA amendments was the clear misunderstanding of the applicable Court of Appeals case law and the recent change of case interpretations from the Second Department. Such mis-characterization of long-standing case law cannot be the basis for a "legitimate purpose" supporting the retroactive application of FAPA. The absence of a rational basis justifying retroactive application of FAPA is an important consideration in seeking to apply it retroactively. As in James Square Assocs. LP v Mullen, supra, the legislature fails to set forth a valid public purpose for the retroactive application of the amendments.
Importantly, as noted in Matter of Regina Metro.,:
Moreover, retroactivity concerns are further heightened where, as here, the new statutory provisions "affect[ ] contractual or property rights, matters in which predicability and stability are of prime importance" (Landgraf, 511 U.S. at 271).(Matter of Regina Metro., 35 N.Y.3d at 382.)
As in Matter of Regina Metro., where no explanation was offered for retroactive application (id. at 383), here, the explanation offered is based upon a complete misapplication of existing case law. While the legislature can impose future burdens and grant new rights to alleviate public issues, without a rational justification for imposing new burdens on settled, substantial rights, retroactivity should not prevail. It is important to note that, unlike the legislation before the Court in Matter of Regina Metro., which was seen by the dissent (Wilson, J.) as economic regulation where the legislature is often afforded wide latitude, as set forth above, there is no judicial confusion which was sought to be corrected, nor does this case, in any way, implicate the long overruled holding of People v Lochner, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed 937 (1905).
As explained by the Court of Appeals, in People v LaValle, 3 N.Y.3d 88 (2004):
It is the responsibility of the judiciary to safeguard the rights afforded under our State [and Federal] Constitution[s].(LaValle, 3 N.Y.3d at 128.)
Some lower courts have recently addressed the issue of retroactivity. In US Bank v Speller (80 Misc.3d 1233[A], 2023 NY Slip Op 51153[U] [Sup Ct, Putnam County, October 31, 2023, Grossman, J.]), the Court compared the issue at hand in Marrero v Crystal Nails (114 A.D.3d 101, 112-13 [2d Dept 2013]) - that is, the 2008 amendment to CPLR 205(a) - to the facts of the case at bar, and noted two similarities. First, the legislature did not state that either of the amendatory statutes should be retroactively applied. Additionally, pursuant to the text of each, the amendments were to "take effect immediately" (see L 2008, ch 156, § 2 [effective July 7, 2008]; FAPA § 10; see also Marrero, 114 A.D.3d at 111, citing to McKinney's Cons Laws of NY, Book 1, Statutes § 52, Comment at 101-102 ["it is the general rule that an amendment will have prospective application only, and will have no retroactive effect, unless its language clearly indicates that it shall receive a contrary interpretation" (footnotes omitted)]). The Speller Court ultimately found that "retroactive application of CPLR §205-a(a) would not ensure 'equal' application of the law to all litigants but instead subject U.S. Bank [the plaintiff] to harshly unequal treatment in derogation of its vested rights by causing dismissal of a claim that was viable under the law existing at the time this action was commenced" (Speller, 80 Misc.3d 1233(A); see Newrez LLC v Kalina, 78 Misc.3d 1217(A), 2023 NY Slip Op 50249[U] [Sup Ct, Albany County, March 22, 2023] ["there is no indication that the legislative intent was to impair already vested rights"]); see also Nestor I LLC v Moriarty-Gentile, 78 Misc.3d 1233 (A), 2023 NY Slip Op 50408[U] [Sup Ct, Suffolk County, May 2, 2023]; HSBC Bank USA, N.A. v Besharat, 80 Misc.3d 269, 283, 195 N.Y.S.3d 380 [Sup Ct, Putnam County 2023]).
As warned by the Supreme Court, "[t]he Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration" and "[i]ts responsivity to political pressure poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals" (Landgraf, 511 U.S. at 266).
Given the above, the Court now addresses each of the defendant's contentions in accordance with the statutes and regulations without application of FAPA amendments.
Service
It is well settled that a "process server's affidavit of service constitutes prima facie evidence of proper service" (Duran v Milord, 126 A.D.3d 932, 7 N.Y.S.3d 176 [2d Dept 2015], citing Youngstown Tube Co. v Russo, 120 A.D.3d 1409, 1409, 993 N.Y.S.2d 146 [2d Dept 2014]; see Deutsche Bank Natl. Trust Co. v Jagroop, 104 A.D.3d 723, 960 N.Y.S.2d 488 [2d Dept 2013]; U.S. Bank N.A. v Hossain, 94 A.D.3d 979, 979, 943 N.Y.S.2d 140 [2d Dept 2012]). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" (Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 719, 981 N.Y.S.2d 107 [2d Dept 2014]; see City of New York v Miller, 72 A.D.3d 726, 727, 898 N.Y.S.2d 643 [2d Dept 2014]; Emigrant Mtge. Co., Inc. v Westervelt, 105 A.D.3d at 897, 964 N.Y.S.2d 543 [2d Dept 2013]; US Natl. Bank Assn. v Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352 [2d Dept 2011]). A defendant's bare and unsubstantiated denial of receipt is insufficient to rebut the presumption of proper service (see U.S. Bank Natl. Assn. v Tate, 102 A.D.3d 859, 859-60, 958 N.Y.S.2d 722 [2d Dept 2013], citing Bank of NY v Espejo, 92 A.D.3d 707, 708, 939 N.Y.S.2d 105 [2d Dept 2012]).
"Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence" (Deutsche Bank Nat. Tr. Co. v White, 110 A.D.3d 759, 759-60, 972 N.Y.S.3d 664 [2d Dept 2013], citing Lemberger v. Khan, 18 A.D.3d 447, 794 N.Y.S.2d 416 [2d Dept 2005]). While the statute does not define due diligence, "it has been interpreted and applied on a case-by-case basis (HSBC Mtge. Corp. (USA) v Hollender, 159 A.D.3d 883, 884, 74 N.Y.S.3d 93 [2d Dept 2018] citing Barnes v. City of New York, 51 N.Y.2d 906, 907 [1980]; Estate of Waterman v. Jones, 46 A.D.3d 63, 66, 843 N.Y.S.2d 462 [2d Dept 2007]). The requirement "may be met with 'a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times'" (HSBC Mtge. Corp. (USA) v Hollender, 159 A.D.3d at 884, citing Estate of Waterman v. Jones, 46 A.D.3d at 66; see also Wells Fargo Bank NA v. Besemer, 131 A.D.3d 1047, 1048, 16 N.Y.S.3d 819 [2d Dept 2015]).
Here, the affidavit of service demonstrates that the defendant was served at the mortgaged premises pursuant to CPLR 308(4). It details three attempts to serve the defendant at different times (morning, afternoon and evening) and on different days, including a Saturday (see NYSCEF Doc. 59). The submission further described the efforts made to ascertain the defendant's place of employment. Here, the process server's affidavit of service established, prima facie, that the defendant was served with the summons and complaint pursuant to CPLR 308(4) by the "affix and mail" method (see HSBC Bank USA v Dalessio, 137 A.D.3d 860, 27 N.Y.S.3d 192 [2d Dept 2016]; HSBC Bank USA v Desrouillerer, 128 A.D.3d 1013, 11 N.Y.S.3d 93 [2d Dept 2015]; U.S. Bank Natl. Assn v Harding, 124 A.D.3d 766, 998 N.Y.S.2d 667 [2d Dept 2015]; 425 E. 26th St. Owners Corp. v Beaton, 50 A.D.3d 845, 858 N.Y.S.2d 188 [2d Dept 2008]).
In response, the defendant asserts that, at the dates and times of service, she would be "at work or on way [ sic ] home from work" and that December 24, 2022 was Christmas evening (Joerger Aff. in Support, para. 8 [NYSCEF Doc 37]).Such is insufficient, however, to rebut the prima facie proof of the affidavit of service. The allegations are wholly conclusory, and notably lacking is any indication of the defendant's place of employment or proof of dates and times worked. She does not deny receipt of the summons and complaint or challenge the accuracy of the allegations in the affidavit of service, by swearing to specific facts to rebut the statements in the process server's affidavit (see State v Mapp, 78 A.D.3d 926, 911 N.Y.S.2d 426 [2d Dept 2010]). She does not deny the process server's claims that papers were affixed to the door and that the summons and complaint were mailed to the address, and does not deny receipt of that mailing.
The Court further rejects the defendant's attempt to alter the facts of proper service. In essence, even though the process server complied with the statute and the applicable service method, the defendant complains that plaintiff should have been aware of the defendant's employment and attempted such there. Instead, as plaintiff demonstrates, its attempt to determine defendant's employment revealed "no current possible places of employment for the defendant" at that time (see NYSCEF Doc. 25). As there is "no indication that [defendant's] workplace was readily ascertainable, the plaintiff was not required to attempt to serve the defendant at his workplace" (Deutsche Bank Nat. Tr. Co. v White, 110 A.D.3d 759, 760, 972 N.Y.S.2d 664 [2d Dept 2013], citing JPMorgan Chase Bank, N.A. v Szajna, 72 A.D.3d 902, 903, 898 N.Y.S.2d 524 [2d Dept 2010]).
Numerous holdings from the Second Department support the process server's actions where only three attempts are made at the residence (Amtrust-NP SFR, Venture, LLC v Emmel, 140 A.D.3d 993, 34 N.Y.S.3d 163 [2d Dept 2016]; Lasalle Bank N.A. v Hudson, 139 A.D.3d 811, 311 N.Y.S.3d 188 [2d Dept 2016]; Wells Fargo Bank v Besemer, 131 A.D.3d 1047, 16 N.Y.S.3d 819 [2d Dept 2015]; JP Morgan Chase Bank, N.A. v Baldi, 128 A.D.3d 777, 10 N.Y.S.3d 126 [2d Dept 2015] [process server confirmed with a neighbor the defendant's residence]; Wells Fargo Bank v Cherot, 102 A.D.3d 768, 957 N.Y.S.3d 886 [2d Dept 2013]; see Deutsche Bank Natl. Trust Co. v White, 110 A.D.3d 759, 972 N.Y.S.2d 664 [2d Dept 2013]; Lopez v DePietro, 82 A.D.3d 715, 716, 917 N.Y.S.2d 318 [2d Dept 2011] [attempts to personally serve the defendant at his residence satisfied the due diligence requirement of CPLR 308(4)]; JPMorgan Chase Bank, N.A. v Szajna, 72 A.D.3d 902, 898 N.Y.S.2d 524 [2d Dept 2010]; Lemberger v Khan, 18 AD3D 447, 794 N.Y.S.2d 416 [2d Dept 2005]).
Based on the above, the Court finds that the defendant has failed to establish any defect in the service effected upon her pursuant to CPLR 308(4), and that branch of her motion (#001) is denied.
RPAPL 1303The defendant's challenge to plaintiff's compliance with RPAPL 1303 fails, as the defendant's allegations fail to overcome the presumption of service of the proper RPAPL 1303 notice, as set forth in the affidavit of service (see Eastern Sav. Bank, FSB v Tromba, 148 A.D.3d 675, 48 N.Y.S.3d 499 [2d Dept 2017]; Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 981 N.Y.S.2d 107 [2d Dept 2014]; U.S. Bank N.A. v Tate, 102 A.D.3d 859, 958 N.Y.S.2d 722 [2d Dept 2013]). Additionally, a copy of the notice was annexed to plaintiff's submission. The evidence submitted by the defendant to the contrary is, at best, "speculative and conclusory" (OneWest Bank, FSB v Cook, 204 A.D.3d 1025, 1027, 165 N.Y.S.3d 345 [2d Dept 2022]).
Statute of Limitations
The defendant next contends that the instant action is untimely for several reasons. First, the defendant challenges plaintiff's reliance on the version of CPLR 205(a) in effect when plaintiff commenced the instant action. "Under certain conditions, CPLR 205(a) provides an additional six months in which to recommence a prior action that has been dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits" (Wells Fargo Bank, N.A. v Eitani, 148 A.D.3d 193, 195, 47 N.Y.S.3d 80 [2d Dept 2017]). A party may rely on this provision "provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period" (CPLR 205[a]).
As discussed above, the prior action was dismissed as against the defendant on June 27, 2022. The instant action was thereafter commenced by filing on November 18, 2022, and a supplemental summons and amended complaint were thereafter filed on December 6, 2022. The affidavit of service upon the defendant shows that the process server's first attempt to serve the defendant was on December 21, 2022, and that after completing three service attempts, the server mailed the notices to the defendant on December 27, 2022 and filed the affidavit of service that same date. The defendant opines that service was not "complete" until ten days after the affidavit was filed - in this case, January 6, 2023 - therefore the plaintiff is not entitled to rely upon the "savings provision."
The plaintiff notes that the statutory text requires "that service upon defendant [be] effected within such six-month period" to allow plaintiff to utilize the provision (CPLR 205 [emphasis added]), and contends that such was the case here. The Court agrees. By definition, to "effect" means "to cause to come into being" and "to put into operation." To "complete," on the other hand, is "to bring to an end and especially into a perfected state" (Merriam-Webster Dictionary [2023]). It follows, therefore, that in the process of service, an attempt at service is effecting such service while a final step in a process - here, filing an affidavit of service - is completing that act. In this case, hat the plaintiff was timely in "effecting" service - that is, in its attempt in bringing about the result of completed service - upon the defendant within six months' dismissal of the prior action.
The defendant next contends that because the First Action was dismissed pursuant to CPLR 3215(c), constituting a neglect to prosecute, plaintiff is estopped from relying on the savings provision of CPLR 205(a).
In a dismissal "for neglect to prosecute the action... the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation" (HSBC Bank USA, N.A. v Janvier, 187 A.D.3d 999, 1001 [2d Dept 2020]). Considering the length of delay, in itself, is not sufficient to establish such (see U.S. Bank Trust, N.A. v. Moomey-Stevens, 168 A.D.3d 1169, 91 N.Y.S.3d 788 [3d Dept 2019] [citations omitted]). Factors to consider in determining a "general pattern" aside from specific conduct include whether the action is dismissed with prejudice and whether costs are awarded (see Wells Fargo Bank, N.A. v Eitani, 148 A.D.3d 193, 198 [2d Dept 2017]). Thus, an order noting dismissal of a complaint as "abandoned pursuant to CPLR 3215(c)" or on the basis that plaintiff "failed to proceed to entry of judgment within one year of default" is not indicative of "specific conduct demonstrating 'a general pattern of delay in proceeding with the litigation'" (Wells Fargo Bank v Eitani, 148 A.D.3d at 199, citing CPLR 205[a]; Marrero v. Crystal Nails, 114 A.D.3d 101, 111, 978 N.Y.S.2d 257 [2d Dept 2013]).
This Court's June 27, 2022 Order lacks any reference to specific conduct, and the Court finds that the determination does not rise to the level of "general pattern of delay." As such, the Court finds that dismissal of the First Action pursuant to CPLR 3215(c) was not the result of plaintiff's neglect to prosecute and, therefore, the instant action is timely as plaintiff was entitled to rely on the savings provision of CPLR 205(a).
NY Banking Law 6-lFinally, the Court addresses the defendant's allegations that plaintiff's complaint should be dismissed as violative of NY Banking Law 6-l. This legislation imposes certain limitations on the issuance of home loans and prohibits "high-cost home loans" (see Emigrant Bank v Brown, 175 A.D.3d 1488, 1489, 109 N.Y.S.3d 455 [2d Dept 2019]). As applicable herein, a home loan is a "high-cost home loan" under Banking Law § 6-l, if, among other things, the annual percentage interest rate exceeds eight percentage points over the yield of treasury securities with comparable maturity periods (Banking Law § 6- l [1] [g] [i]) or the total points and fees charged exceed five percent of the total loan amount (Banking Law § 6-l [1] [g] [ii]). The "total loan amount" is "the principal of the loan minus those points and fees... that are included in the principal amount" (Banking Law § 6-l [1] [h]). "Points and fees" include "all compensation paid directly or indirectly to a mortgage broker" and "[t]he cost of all premiums financed by the lender, directly or indirectly, for any credit life," and certain items, such as fees for title examination, title insurance, and property surveys, to be included "only if the lender receives direct or indirect compensation in connection with the charge or the charge is paid to an affiliate of the lender" (Banking Law § 6-l [1] [f]; Emigrant Bank v Brown, 175 A.D.3d at 1489).
The defendant alleges that the loan financed more than one hundred percent of the purchase price of the residence herein and, as a result, "all of the expenses listed on the HUD-1 can be argued to be properly includable [ sic ]." Nevertheless, the defendant excludes the buyer's attorney fee, and concludes that the points and fees total $15,330.07, which exceed five-percent of the total loan amount. Therefore, she concludes, the loan is high-cost and was issued in violation of Banking Law 6-l. The plaintiff, in opposition, notes that the defendant fails to demonstrate any support for her claim that the loan transaction was one hundred percent financing, as the loan amount was $280,000.00 and the purchase price according to the HUD was $350,000.00 and no documentation has been submitted demonstrating the specifics, if any, of a second loan.
On the contrary, according to the plaintiff, the total applicable points and fees in this case should not include the recording tax expenses stamp (see Banking Law § 6-l [1] [f]; Silver v CitiMortgage, Inc., 162 A.D.3d 812, 813 [2d Dept 2018]), as well as the fees for flood insurance, although no support is provided for this presumption. At any rate, even if the flood insurance expense is included, the points and fees would total $12,290.07. The originating amount of the loan of $280,000.00 reduced by $12,290.07 provides a total loan amount of $267,709.93, with an applicable five-percent threshold of $13,385.50. Here, according to the HUD-1 statement, the allowable points and fees paid by the defendants did not exceed five-percent of the total loan amount, being less than the maximum amount allowed (see Tribeca Lending Corp. v Lawson, 159 A.D.3d 936, 73 N.Y.S.3d 575 [2d Dept 2018]; see also Silver v Citimortgage, Inc., 162 A.D.3d 812, 79 N.Y.S.3d 221 [2d Dept 2018]). As the defendant has failed to demonstrate that the loan was a "high-cost home loan" within the meaning of Banking Law § 6-l (1) (g), and that the loan failed to conform to the statutory requirements of such a loan (see Banking Law § 6-l [2], [l] [i], [ii]; [2-a] [a]; cf. Tribeca Lending Corp. v Lawson, 159 A.D.3d 936, 73 N.Y.S.3d 575 [2d Dept 2018]), this branch of defendant's motion is denied.
Given the above, the defendant's motion (#001) is denied in its entirety.
The parties are directed to appear on April 18, 2024 at 9:30am for a status conference. In the event a motion is filed on or before April 16, 2024, no conference will be necessary on April 18, 2024.