Opinion
609157/2016
08-06-2020
WELLS FARGO BANK, N.A., Plaintiff, v. Travis P. BOURNE a/k/a Travis Bourne, 24/7 Emergency Care PC, Mrs. Bourne (first nake refused), Defendants.
STEIN, WIENER & ROTH, LLP, Attorneys for Plaintiff, One Old Country Road, Suite 113, Carle Place, NY 11514 CHRISTOPHER THOMPSON, ESQ., Attorney for Defendant Travis P. Bourne, 33 Davison Lane East, West Islip, NY 11795
STEIN, WIENER & ROTH, LLP, Attorneys for Plaintiff, One Old Country Road, Suite 113, Carle Place, NY 11514
CHRISTOPHER THOMPSON, ESQ., Attorney for Defendant Travis P. Bourne, 33 Davison Lane East, West Islip, NY 11795
Robert F. Quinlan, J.
Upon the following papers read on this order to show cause seeking to vacate a judicial sale, judgment of foreclosure, default judgment and order of reference, as well as stay of a proceeding in the East Hampton Justice Court; Order to Show Cause and supporting papers: NYSCEF Docs #65-81 ; Affirmation in Opposition and supporting papers: NYSCEF DOCS # 84-107 ; it is,
ORDERED that the court having held a phone conference on this action on August 6, 2020 in compliance with the requirements of AO/157/20 of the Chief Administrative Judge of the Courts, dated July 23, 2020, and counsel for both parties having appeared; it is further
ORDERED that the application by defendant Travis P. Bourne to vacate the judicial sale, the judgment of foreclosure and sale upon which it was based, as well as his default in answering resulting in the default judgment and the order of reference herein is denied; and it is further
ORDERED that defendant's application to file a late answer pursuant to CPLR § 3212 (d) is denied; and it is further
ORDERED that defendant's alternative application to vacate the judicial sale due to the death of a party prior to the sale is denied; and it is further
ORDERED that the stay contained in the order to show cause signed October 15, 2019 of a Summary Proceeding before the Town of East Hampton Justice Court under Docket No. 19/030465 entitled Federal Home Loan Mortgage Corp. v. Travis P. Bourne is vacated and lifted.
This was an action to foreclose a mortgage on a residential property known as 5 9th Street, East Hampton, Suffolk County, New York given by defendant Travis P. Bourne a/k/a Travis Bourne ("defendant") on June 13, 2007 to secure a note given to American Broker's Conduit, a predecessor in interest to plaintiff Wells Fargo Bank, N.A. ("plaintiff"). As a result of defendant's failure to make payments pursuant to the terms of the note and mortgage, plaintiff commenced the instant action by filing a summons, complaint and notice of pendency with the Suffolk County Clerk on June 17, 2016. Defendant neither appeared nor answered the complaint and plaintiff was granted a default judgment and order of reference by this court on June 1, 2017 (Mot. Seq. #001), and subsequently a judgment of foreclosure and sale on December 8, 2017 (Mot. Seq. #002).
On January 3, 2018 defendant, through counsel, filed a notice of motion (Mot. Seq. #003), returnable January 22, 2018, seeking to vacate the judgment and orders of this court "pursuant to C.P.L.R. 5015(a)(3) due to fraud, misrepresentation and/misconduct of the opposing party limited to invalid mortgage assignment, hiding conflicts of interest and violations of 15 U.S.C. 1641g and to dismiss the complaint..." Defendant's application was only supported by an affirmation of counsel and at no time did defendant, or his counsel, raise the claim that defendant had not been served with the summons and complaint, the notice required to be served therewith in compliance with RPAPL § 1303, the notices required by the mortgage, nor the notices required by RPAPL § 1304. There was no affidavit from defendant attempting to provide a reasonable excuse for his default in answering nor providing a factual basis for the claims of fraud. Plaintiff filed its papers in opposition to the motion on January 17, 2018.
Before a decision on that motion by the court, either defendant or defendant's then counsel, retained an attorney experienced in mortgage foreclosure defense who submitted an order to show cause seeking a temporary restraining order staying the foreclosure sale which had been set for February 9, 2018. The order to show cause was presented to the court on February 7, 2018. In support of the order to show cause, this attorney only relied upon the papers in the already submitted Mot. Seq. #003. Plaintiff's counsel appeared to oppose the application. The court had oral argument upon the order to show cause and the underlying motion, after which the court placed a decision on the record denying the motion and refusing to sign the proposed order to show cause with the temporary restraining order (NYSCEF Doc. #57).
Thereafter, it appears from submissions in opposition to the present motion, defendant attempted to resolve his problems through Bankruptcy proceedings, but although these delayed the sale, the judicial sale of the property was held on February 7, 2019.
Defendant now, through present counsel, brings this motion (Mot. Seq. #004) seeking to vacate the judicial sale, judgment of foreclosure, default judgment and order of reference claiming for the first time that he was never served with the summons and complaint and the RPAPL § 1303 notice, nor was he mailed the notices required by the mortgage or those required by RPAPL § 1304, seeking relief pursuant to CPLR §§ 317 and 5015 (a) (1) ; alternatively pursuant to CPLR § 5015 (2) and (3), and to file a late answer pursuant to CPLR § 3012 (d), as well as also alternatively seeking a vacatur of the judicial sale because a non-essential defendant died before the sale date and her estate was not substituted. Defendant also seeks the striking of interest, costs and fees.
None of defendant's applications have merit.
The court notes that generally a judgment of foreclosure and sale, and even more so the occurrence of a judicial sale, is final against a defendant as to all questions of facts and defenses that were or may have been litigated between the parties in the action (see Dupps v. Betancourt , 121 AD3d 746 [2d Dept 2014] ; Tromba v. Eastern Federal Savings Bank, FSB , 148 AD3d 753 [2d Dept 2017] ; Wells Fargo Bank, N.A. v. Colace, 178 AD3d 117 [2d Dept 2019]). Although it can be argued that a motion pursuant to CPLR § 5015 (a) (2) maybe a proper vehicle to seek relief from a prior order such as a judgment of foreclosure (see Maddux v. Schur , 53 AD3d 378 [2d Dept 2008]), in Maddux , as here, defendant has not sustained his burden that there is any newly discovered evidence that could not have been discovered earlier with due diligence (see also M & T Bank v. Crespo , 181 AD3d 667 [2d Dept 2020] ).
As to defendant's claims of entitlement to vacatur pursuant to CPLR § 317, he must show that he did not personally receive notice of the summons in time to defend. Similar to the situation in Bethpage Fed. Credit Union v. Grant , 178 AD3d 997 (2d Dept 2019), where the Second Department found that a mere denial of receipt, without evidentiary support, where defendant speculated that his ex-wife deliberately concealed service of summons and complaint, was insufficient to establish that defendant did not receive actual notice, here defendant suggests that his 82 year old mother might have forgotten to tell him of the service. Additionally, in his affidavit defendant never denied receipt of the summons and complaint by mail as established by the affidavit of the process server (see U.S. Bank, N.A. v. Tauber , 140 AD3d 1154 [2d Dept 2016] ; Nationstar Mortg. v. Kamill , 155 AD3d 966 (2d Dept 2017) ; HSBC Bank USA v. Whittier , 159 AD3d 942 [2d Dept 2018] ). Defendant has failed to establish his claim to relief pursuant to CPLR § 317.
Defendant's application to vacate pursuant to CPLR § 5015 (a) (1) must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action in order to vacate his default and extend the time to answer or to compel the acceptance of an untimely answer (see Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 AD3d 890 [2d Dept 2010] ; Bank of Am, NA v. Agarwal , 150 AD3d 651 [2d Dept 2017] ). Where there is failure to provide a reasonable excuse, the court need not consider claims of meritorious defenses (see HSBC Bank USA v. Miller, 121 AD3d 1044 [2d Dept 2014] ; Wells Fargo Bank v. Pelosi ; 159 AD3d 852 [2d Dept 2018] ; U.S. Bank, N.A. v. Grubb , 162 AD3d 823 [2d Dept 2018] ; US Bank, N.A. v. Dedomenico , 162 AD3d 962 [2d Dept 2018] ). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Matter of Gambardella v. Ortov Light. , 278 AD2d 494 [2d Dept 2000] ; Segovia v. Delcon Constr. Corp. , 43 AD3d 1143 [2d Dept 2007] ). Here the court finds that defendant has not provided a reasonable excuse for his default.
Even if it had been argued, the court would not exercise its discretion to find a reasonable excuse in prior counsels' failure to promptly move upon retention to vacate the default in answering for lack of service (see JP Morgan Chase Bank, N.A. v. Russo, 121 AD3d 1048 [2d Dept 2014] ; Bank of NY v. Young , 123 AD3d 1068 [2d Dept 2014] ). Law office failure should not be excused and accepted as a reasonable excuse for delay where it may be a failed strategy, with no detailed or credible explanation for the failure. With out an explanation, the "failure" may as easily be a failure of defendant to communicate with his counsel, rather than a failure of counsel to act (see Wells Fargo Bank, N.A. v. Cervini, 84 AD3d 789 [2d Dept 2011] ;; US Bank Natl Assn v. Barr , 139 AD3d 937 [2d Dept 2016] ; LaSalle Bank, NA v. LoRusso , 155 AD3d 706 [2d Dept 2017] ; Deutsche Bank Natl. Trust v. Saketos , 158 AD3d 610 [2d Dept 2018] ; Bank of New York Mellon v. Rucci , 168 AD3d 799 [2d Dept 2019] ; HSBC Bank USA, N.A. v. Coronel , 174 AD3d 689 [2d Dept 2019] ).
In this regard it is significantly damaging to defendant's recent claims of lack of service and notice that his two prior counsel never raised the claim of lack of service in Motion Seq. #003. Filing of a notice of appearance in an action by party's counsel serves as a waiver of objection to personal jurisdiction in the absence of that issue being raised (see Countrywide Home Loans Servicing, LP v. Albert , 78 AD3d 983 [2d Dept 2010] ; US Bank NA v. Pepe , 161 AD3d 811 [2d Dept, 2018] ; Deutsche Bank Natl. Trust Co. v. Vu , 167 AD3d 844 [2d Dept 2018] ).
This fact is equally disarming of defendant's claim for vacatur and dismissal pursuant to CPLR 5015 (a) (4) for lack of jurisdiction. As this is first raised in defendant's attorney's affirmation, and not in the notice of motion, the court would be within it's right to deny it for that reason alone, as where the notice fails to comply with CPLR 2214 (a) by not specifying the grounds for the relief sought, it is within the court's discretion to deny a motion (see Abizadeh v. Abizadeh 159 AD3d 856 [2d Dept 2018] ). In this case that is not necessary for the reasons stated in the preceding paragraphs.
Even the conditions precedent set forth in RPAPL §§ 1303 and 1304 cannot be used to boot strap defendant's claim to vacate his default, as the oft used phrase that they may be raised at anytime is not quite accurate, as they may not be raised for the first time on appeal (see FNMA v. Cappelli, 120 AD3d 621 [2d Dept 2014] ; Bank of America v. Barton, 149 AD3d 676 [2d Dept 2017] ; US Bank. N.A. v. Mezrahi , 169 AD3d 952 [2d Dept 2019] ; US Bank, N.A. v. Wiener , 171 AD3d 1241 [2d Dept 2019] ). If such claims cannot be first raised on appeal, how can they be raised after the time to appeal has expired and a judicial sale held? Although it has been recognized that they may be raised in opposition to a judgment of foreclosure, that is at the discretion of the trial court (see Emigrant Mortgage Co., Inc v. Lifshitz, 143 Ad3d 755 (2d Dept 2016) ; Wells Fargo Bank, N.A. v. Merino , 173 AD3d 419 [1st Dept 2019] ). As defendant's attempt to raise those conditions at this juncture is well after the issuance of a judgment of foreclosure, the court sees no basis on these facts to exercise its discretion, even if it were available.
As with defendant's prior motion and order to show cause (Mot. Seq. #003), here the claims to vacate his default pursuant to CPLR § 5015 (a) (3) are without support, are mere speculation and without merit. Additionally, as defendant had made the same application which was denied by the court in its decision placed on the record on February 7, 2018, that portion of defendant's application is in essence a motion to renew and/or reargue that decision. As such it does not meet the requirements of CPLR 2221 (d) or (e) and should be denied for that reason.
Defendant's claim that the passing of his mother on September 28, 2018 after the judgment of foreclosure was issued, but before the judicial sale, required a stay of the sale and the substitution of a representative of her estate is misplaced. Not only had the judgment been finalized before her death, but she was not a necessary party to the proceeding that warranted such action. She neither signed the note or the mortgage and was not responsible to plaintiff thereunder. There is no proof offered that she had any title in the property, the only proof presented was that she resided there with defendant. Even if it is claimed that she was a tenant, her tenancy terminated with her passing. There was no interest that "her estate" would have that would have been the subject of the sale, or in a removal proceeding after the sale. As there was no claim for or against her that was not extinguished by her death, there was no need for an order of substitution ( CPLR § 1015 ).
Defendant's claims to strike interest, costs and fees already granted to plaintiff in the judgment of foreclosure is without support in fact and law upon these submissions, even if they had not already been finalized by that judgment and the sale. That application is denied.
Accordingly defendant's applications in relation to this disposed action are denied.
As this proceeding was the only basis for the stay of the Summary Proceeding before the Town of East Hampton Justice Court under Docket No. 19/030465 entitled Federal Home Loan Mortgage Corp. v. Travis P. Bourne , issued by this court's order of October 15, 2019, that stay is vacated and lifted. The applicability of any Administrative Orders, Executive Orders, or federal directives and guidelines that may effect the proceeding before the Town of East Hampton Justice Court will be decided by that court.
This constitutes the decision and order of the Court.