Opinion
16359/08.
Decided November 29, 2010.
Matthews Matthews, P.C., Huntington NY, Plaintiff.
No Appearances, Defendant.
In this foreclosure action, plaintiff, WASHINGTON MUTUAL BANK (WAMU), moved for an order of reference and related relief for the premises located at 2035 East 63rd Street, Brooklyn, New York (Block 8406, Lot 64, County of Kings). On October 20, 2010, Chief Administrative Judge Ann T. Pfau issued an Administrative Order requiring that plaintiff's counsel in foreclosure actions "effective immediately . . . shall file with the court in each such action an affirmation, in the form attached hereto . . . in cases pending . . . at the time of filing . . . the proposed order of reference." Therefore, I instructed plaintiff's WAMU's counsel, in my decision and order of November 9, 2010, that:
For this Court to consider the instant motion for an order of reference, plaintiff's counsel must comply with the new Rule, promulgated by Chief Administrative Judge Ann T. Pfau on October 20, 2010 and announced that day by Chief Judge Jonathan Lippman, within sixty (60) days of this decision and order, or the instant foreclosure action will be dismissed with prejudice. The new Rule mandates an affirmation by plaintiff's counsel, which must be submitted to my Chambers (not the Foreclosure Department), 360 Adams Street, Room 478, Brooklyn, NY 11201, requiring plaintiff's counsel to state that he or she communicated on a specific date with a named representative of plaintiff WASHINGTON MUTUAL BANK, who informed counsel that he or she:
(a) has personally reviewed plaintiff's documents and records relating to this case; (b) has reviewed the Summons and Complaint, and all other papers filed in this matter is support of foreclosure; and, (c) has confirmed both the factual accuracy of these court filings and the accuracy of the notarizations contained therein.
Further, plaintiff's counsel, based upon his or her communication with plaintiff's representative named above, must upon his or her "inspection of the papers filed with the Court and other diligent inquiry, . . . certify that, to the best of [his or her] knowledge, information, and belief, the Summons and Complaint filed in support of this action for foreclosure are complete and accurate in all relevant respect."
Counsel is reminded that the new standard Court affirmation form states in a note at the top of the first page:
During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities. These insufficiencies include: failure of plaintiffs and their counsel to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits which falsely attest to such review and to other critical facts in the foreclosure process; and "robosigning" of documents by parties and counsel. The wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel. [ Emphasis added ]
According to the October 20, 2010 Office of Court Administration press release about the new filing requirement:
The New York State court system has instituted a new filing requirement in residential foreclosure cases to protect the integrity of the foreclosure process and prevent wrongful foreclosures. Chief Judge Jonathan Lippman today announced that plaintiff's counsel in foreclosure actions will be required to file an affirmation certifying that counsel has taken reasonable steps — including inquiry to banks and lenders and careful review of the papers filed in the case — to verify the accuracy of documents filed in support of residential foreclosures. The new filing requirement was introduced by the Chief Judge in response to recent disclosures by major mortgage lenders of significant insufficiencies — including widespread deficiencies in notarization and "robosigning" of supporting documents — in residential foreclosure filings in courts nationwide. The new requirement is effective immediately and was created with the approval of the Presiding Justices of all four Judicial Departments.
Chief Judge Lippman said, " We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs — such as a family home — during this period of economic crisis. This new filing requirement will play a vital role in ensuring that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure." [ Emphasis added] ( See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is Taking Shape, New York Times, Oct. 21, 2010; Andrew Keshner, New Court Rules Says Attorneys Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010).
Plaintiff WAMU's counsel, Donna D. Maio, Esq. of Matthews Matthews, in response to my November 9, 2010 decision and order, submitted an affirmation, dated November 11, 2010, in which she stated "[o]n the date of June 4, 2008, I communicated with Mark Phelps, Esq., House Counsel and representative of Plaintiff, who informed me the he (a) has personally reviewed Plaintiff's documents and records relating to this case; (b) has reviewed the Summons and Complaint, and all other papers filed in this matter is support of foreclosure; and (c) has confirmed both the factual accuracy of these court filings and the accuracy of the notarizations contained therein [ Emphasis added ]." Further, Ms. Maio affirmed that "[b]ased upon my communication with Mark Phelps, Esq., as well as my own inspection of the papers filed with the Court and other diligent inquiry, I certify that, to the best of my knowledge, information, and belief, the Summons and Complaint and all other documents filed in support of this action for foreclosure are complete and accurate in all relevant respects [ Emphasis added ]."
After I received Ms. Maio's November 11, 2010 affirmation I checked the instant motion for an order of reference and discovered that the motion failed to: have an affidavit of merit executed by an officer of plaintiff WAMU of someone with a valid power of attorney from plaintiff WAMU; and, despite Ms. Maio's affirming the accuracy of plaintiff WAMU's papers in the instant action, the complaint and other documents filed in support of the instant for foreclosure are incomplete and inaccurate.
The Court grants leave to plaintiff, within forty-five (45) days of this decision and order, to: correct the deficiencies in its papers, which are explained below; and, using the new standard Court form, pursuant to CPLR Rule 2106, and under the penalties of perjury, file a new affirmation that plaintiff WAMU's counsel has "based upon . . . communications [with named representative or representatives of plaintiff], as well as upon my own inspection and reasonable inquiry under the circumstances, . . . that, to the best of my knowledge, information, and belief, the Summons, Complaint and other papers filed or submitted to the Court in this matter contain no false statements of fact or law"; and, is "aware of my obligations under New York Rules of Professional Conduct ( 22 NYCRR Part 1200) and 22 NYCRR Part 130."
Again, failure to correct the deficiencies listed following and file a new affirmation, within forty-five (45) days of this decision and order, will result in the instant foreclosure action being dismissed with prejudice.
Background
Defendant GJAVIT THAQI borrowed $600,000.00 from WAMU on November 6, 2006. The note and mortgage were recorded in the Office of the City Register of the New York City Department of Finance, on November 13, 2006, at City Register File Number (CRFN) 2006000629092. Plaintiff WAMU commenced the instant foreclosure action on June 6, 2008. Defendants defaulted in the instant action.
Plaintiff WAMU filed the motion for an order of reference and related relief on November 25, 2008. However, plaintiff WAMU's moving papers for an order of reference failed to present an "affidavit made by the party," pursuant to CPLR § 3215 (f), whether by an officer of WAMU or someone with a power of attorney from WAMU.
Further, the verification of the complaint was not executed by an officer of WAMU, but by Benita Taylor, a "Research Support Analyst of Washington Mutual Bank, the plaintiff in the within action" a resident of Jacksonville, Florida, on June 4, 2008. This is the same day that Ms. Maio claims to have communicated with "Mark Phelps, Esq., House Counsel." I checked the Office of Court Administration's Attorney Registry and found that Mark Phelps is not now nor has been an attorney registered in the State of New York. Moreover, the Court does not know what "House" employs Mr. Phelps.
Both Mr. Phelps and Ms. Maio should have discovered the defects in Ms. Taylor's verification of the subject complaint. The jurat states that the verification was executed in the State of New York and the County of Suffolk [the home county of plaintiff's counsel], but the notary public who took the signature is Deborah Yamaguichi, a Florida notary public, not a New York notary public. Thus, the verification lacks merit and is a nullity. Further, Ms. Yamaguchi's notarization states that Ms. Taylor's verification was "Sworn to and subscribed before me this 4th day of June 2008." Even if the jurat properly stated that it was executed in the State of Florida and the County of Duval, where Jacksonville is located, the oath failed to have a certificate required by CPLR § 2309 (c) for "oaths and affirmations taken without the state." CPLR § 2309 (c) requires that:
An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation. The Court is distressed that Ms. Maio falsely affirmed on November 11, 2010 that "pursuant to CPLR § 2106 and under the penalties of perjury," that "the Summons and Complaint and all other documents filed in support of this action for foreclosure are complete and accurate in all relevant respects," when the instant motion papers are incomplete and the verification is defective. Moreover, the purpose of the October 20, 2010 Administrative Order requiring affirmations by plaintiff's counsel in foreclosure cases is, according to Chief Judge Lippman, in his October 20, 2010 press release, to ensure "that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure."
Ms. Maio should have consulted with a representative or representatives of plaintiff WAMU or is successors subsequent to receiving my November 9, 2010 order, not referring back to an alleged June 4, 2008 communication with "House Counsel." Affirmations by plaintiff's counsel in foreclosure actions, pursuant to Chief Administrative Judge Ann t. Pfau's October 20, 2010 Administrative Order, mandates in foreclosure actions prospective communication by plaintiff's counsel with plaintiff's representative or representatives to prevent the widespread insufficiencies now found in foreclosure filings, such as: failure to review files to establish standing; filing of notarized affidavits that falsely attest to such review, and, "robosigning: of documents.
Discussion
Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant's admission of mortgage payment arrears, to appoint a referee "to compute the amount due to the plaintiff." In the instant action, plaintiff's application for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and sale. ( Home Sav. Of Am., F.A. v Gkanios, 230 AD2d 770 [2d Dept 1996]).
Plaintiff failed to meet the clear requirements of CPLR § 3215 (f) for a default judgment.
On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney. [ Emphasis added ].
Plaintiff failed to submit "proof of the facts" in "an affidavit made by the party." The Court needs an affidavit of merit executed by an officer of plaintiff WAMU or its successor in interest, or by someone granted this authority with a valid power of attorney from WAMU or its successor in interest for that express purpose. Additionally, if a power of attorney is presented to this Court and it refers to a Pooling and Servicing agreement, the Court needs a properly offered copy of the Pooling and Servicing agreement, to determine if the servicing agent may proceed on behalf of plaintiff. ( EMC Mortg. Corp. v Batista, 15 Misc 3d 1143(A) [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v Lewis, 14 Misc 3d 1201(A) [Sup Ct, Suffolk County 2006]).
If a Pooling and Servicing Agreement is presented with a renewed motion for an order of reference, it must be an original or a copy of the original certified by plaintiffs' attorney, pursuant to CPLR § 2105. CPLR § 2105 states that "an attorney admitted to practice in the court of the state may certify that it has been compared by him with the original and found to be a true and complete copy." ( See Security Pacific Nat. Trust Co. v Cuevas, 176 Misc 2d 846 [Civ Ct, Kings County 1998]).
In Blam v Netcher , 17 AD3d 495 , 496 [2d Dept 2005], the Court reversed a default judgment granted in Supreme Court, Nassau County, holding that:
In support of her motion for leave to enter judgment against the defendant upon her default in answering, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts ( see CPLR 3215 (f): Goodman v New York City Health Hosps. Corp. 2 AD3d 581 [2d Dept 2003]; Drake v Drake, 296 AD2d 566 [2d Dept 2002]; Parratta v McAllister, 283 AD2d 625 [2d Dept 2001]). Accordingly, the plaintiff's motion should have been denied, with leave to renew on proper papers ( see Henriquez v Purins, 245 AD2d 337, 338 [2d Dept 1997]).
( See HSBC Bank USA, N.A. v Betts , 67 AD3d 735 [2d Dept 2009]; Hosten v Oladapo , 44 AD3d 1006 [2d Dept 2007]; Matone v Sycamore Realty Corp. , 31 AD3d 721 [2d Dept 2006]; Taebong Choi v JKS Dry Cleaning Equip. Corp. , 15 AD3d 566 [2d Dept 2005]; Peniston v Epstein , 10 AD3d 450 [2d Dept 2004]; De Vivo v Spargo, 287 AD2d 535 [2d Dept 2001]).
Conclusion
Accordingly, it is
ORDERED, that the November 11, 2010 affirmation presented by Donna D. Maio, Esq., of Mathews Matthews, counsel for plaintiff, WASHINGTON MUTUAL BANK, in this action to foreclose a mortgage for the premises located at 2035 East 63rd Street, Brooklyn, New York (Block 8406, Lot 64, County of Kings) is deemed defective; and it is further
ORDERED, that counsel for plaintiff, WASHINGTON MUTUAL BANK, has forty-five (45) days from this decision and order to correct the deficiencies in its motion for an order of reference for the premises located at 2035 East 63rd Street, Brooklyn, New York (Block 8406, Lot 64, County of Kings), or the instant foreclosure action will be dismissed with prejudice; and it is further
ORDERED, that counsel for plaintiff, WASHINGTON MUTUAL BANK, must submit to the Court, with the corrected deficiencies in its motion for an order of reference for the premises located at 2035 East 63rd Street, Brooklyn, New York (Block 8406, Lot 64, County of Kings), a new affirmation, pursuant to the October 20, 2010 Administrative Order, announced by Chief Judge Jonathan Lippman and ordered by Chief Administrative Judge Ann T. Pfau, using the new revised standard Court form, pursuant to CPLR Rule 2106 and under the penalties of perjury, that counsel for plaintiff, WASHINGTON MUTUAL BANK: has "based upon my communications [with named representative or representatives of plaintiff], as well as upon my own inspection and reasonable inquiry under the circumstances, . . . that, to the best of my knowledge, information, and belief, the Summons, Complaint and other papers filed or submitted to the Court in this matter contain no false statements of fact or law"; and, is "aware of my obligations under New York Rules of Professional Conduct ( 22 NYCRR Part 1200) and 22 NYCRR Part 130."
This constitutes the Decision and Order of the Court.