Opinion
No. 19934–2013.
11-20-2017
WELLS FARGO BANK, N.A., as Trustee Under the Pooling and Servicing Agreement Relating to IMPAC Secured Assets Corp., Mortgage Pass–Through Certificates, Series 2005–2, Plaintiff, v. Successor Trustee of Gwen HARLEMAN, Individually and as Trustee for the Gwen Harleman Revocable Living Trust; Suffolk Federal credit Union; "John Doe No.1–5" and "Jane Doe # 1–5" through # 6, said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants.
Sonia J. Baez, Esq., McCabe, Weisberg & Conway, P.C., New Rochelle, Attorneys for Plaintiff.
Sonia J. Baez, Esq., McCabe, Weisberg & Conway, P.C., New Rochelle, Attorneys for Plaintiff.
Upon the following papers read on this ex parte application for an order to appoint a temporary administrator, to amend the caption and related relief; Affirmation in Support sworn to August 2, 2017 and exhibits; it is,
ORDERED that this ex parte application by plaintiff Wells Fargo Bank, N.A., as Trustee under the Pooling and Servicing Agreement Relating to IMPAC Secured Assets Corp., Mortgage Pass–Through Certificates, Series 2005–2, for an order to appoint a temporary administrator, to amend the caption, and to extend time to file and serve supplemental summons and amended complaint is denied without prejudice to re-submit, which shall include therein a copy of this order; and it is further
ORDERED that any re-submitted motion shall address the deficiencies identified herein, and plaintiff is cautioned to review the sufficiency of such submission in all regards; and it is further
ORDERED that the matter is restored to the calendar of Part 27 to monitor compliance and scheduled for status conference on Tuesday, January 23, 2018 at 9:30AM for the court to monitor the progress of this action; if a motion is filed before that date, no appearance will be necessary.
This is an action to foreclose a mortgage on residential real property known as 25 Pembrook Drive, Stony Brook, Suffolk County, New York ("the property") given by Gwen Harleman to Suffolk Federal Credit Union on October 19, 2005 to secure a note given by Harleman on the same date. Gwen Harleman purportedly conveyed the property to herself as "Trustee of the Gwen Harleman Revocable Living Trust" by deed dated January 25, 2011, recorded on February 3, 2011. Gwen Hareleman died on July 10, 2011. Plaintiff Wells Fargo Bank, N.A., as Trustee under the Pooling and Servicing Agreement Relating to IMPAC Secured Assets Corp., Mortgage Pass–Through Certificates, Series 2005–2 ("plaintiff") commenced this action by filing the summons, complaint and notice of pendency with the Suffolk County Clerk on July 29, 2013. The action was brought against "Successor Trustee of Gwen Harleman, Individually and as Trustee for the Gwen Harleman Revocable Living Trust" ("defendant"). Service was purportedly made upon defendant by "nail and mail" service on August 20, 2013, although plaintiff's counsel concedes there are no Trust documents confirming that there is, in fact, a Successor Trustee.
Plaintiff now moves ex parte for this court to appoint a Temporary Administrator to represent the estate of Gwen Harleman. In support plaintiff submits the affirmation of counsel, the note, mortgage, pleadings, affidavit of service and affidavit attesting to a search of the records of Surrogate's Court, Suffolk County.
Plaintiff argues that the holding in Harding v. Noble Taxi Corp ., 155 A.D.2d 265 [1st Dept 1989] is controlling in this case. However, Harding is distinguishable from the facts of this case. In Harding the Appellate Division overturned the trial court which had denied plaintiff's motion pursuant to CPLR 1015(a) and CPLR 1021 for substitution and appointment of a temporary administrator for a defendant in a personal injury action who died during the pendency of the action just prior to the action going to trial. Those facts are wholly inapposite to the facts of this case. No party died during the pendency of this action, this action was commenced after the death of the borrower Gwen Harleman, therefore CPLR 1015(a) and CPLR 1021 do not apply. Furthermore, although this court is a court of general jurisdiction under the facts presented it declines to act on plaintiff's application to appoint a temporary administrator.
To the extent plaintiff's action is brought to foreclose on a note and mortgage executed by an individual now deceased it appears to this court that the proper manner to proceed with this action is to make a formal inquiry of Suffolk County Surrogate Court, and if Surrogate's Court confirms that no will or estate has been filed, to make application for an administration proceeding and, if necessary, the appointment of the Public Administrator in the Suffolk County Surrogate Court. This court will not usurp the authority of the Surrogate's Court in a matter which is clearly within its jurisdiction (see Matter of Piccione, 57 N.Y.2d 278 [1982] ; SCPA 902[b][7] ).
Finally, the court questions the adequacy of service upon defendant. In a foreclosure action against an express trust, the trustees must be named as defendants in the action ( RPAPL 1311 ; 1312[1] ). Service upon one trustee constitutes adequate service upon the trust and all its beneficiaries ( RPAPL 1312[1] ; see MLG Capital Assets v. Eidelkind Trust, 283 A.D.2d 619 [2d Dept 2001] ). Where, as here, the trustee is deceased and plaintiff's counsel admits to not knowing the identity of any successor trustee, or whether a successor trustee was provided for in the trust documents, how could the successor trustee have been personally served?
Plaintiff's motion is denied and the proposed order is marked "Not Signed."
This constitutes the Order and decision of the Court.