Opinion
18028/13
09-03-2019
WELLS FARGO BANK, N.A., Plaintiff, v. Naomi HENRY, Marjorie Pamela Henry a/k/a Marjorie Henry a/k/a Marjorie P. Henry, Alfred George Henry, Maureen Henry, Beneficial Homeowner Service Corporation, Capital One Bank, New York State Department of Taxation and Finance, Defendants.
Plaintiff moves for an Order confirming the referee's report and for a judgment of foreclosure and sale.
The defendants, Naomi Henry and Maureen Henry, (hereinafter collectively the defendants) oppose confirmation of the Referee's Report and granting a Judgement of Foreclosure and Sale for failure of the Referee's to hold a computation hearing on notice to the defendant. In the alternative, defendants cross-move to modify the referee's report by (a)denying any discretionary allowance;(b) reduction of any lien release ;(c)reduction of all amounts as set forth in the cross-motion; (d) granting the defendants reasonable attorney's fees incurred in making this motion and in defending against the instant motion and (e) denying all interest caused by the delay in producing persons with sufficient credentials.
CPLR 4313 provides in pertinent part that, "Unless the order of reference otherwise provides, the referee shall forthwith notify the parties of a time and place for the first hearing..." Plaintiff does not deny that the referee failed to notify the defendant of the hearing. Rather, plaintiff relies on the paragraph in the Order which states that "if required, the Referee take testimony pursuant to RPAPL § 1321" to support its claim that no hearing was required.
Contrary to plaintiff's claim this provision does not dispense with a hearing required pursuant to CPLR 4313 (see 243 W. 98th Condominium v Shapiro , 12 AD3d 591 [2004] ; Shultis v Woodstock Land Dev. Assoc. , 195 AD2d 677 [1993] ; Reconstruction Finance Corp. v Metropolitan Steel Products Corp. , 1941, 31 NYS2d 85, 90 [1941] aff'd 262 AD 1034 [1941], lv den. 287 NY 857 [1942] ).
Although the failure to hold a hearing was erroneous on the part of the Referee, such failure does not alone warrant denial of confirmation of the Referee's report. The Court is the ultimate arbiter of the dispute and has the power to considered evidence submitted by a defendant in opposition and to reject the referee's report and make new findings (see CPLR 4403 ; Fed. Deposit Ins. Corp. v 65 Lenox Rd. Owners Corp. , 270 AD2d 303, 304 [2000] ). In addition, documentary evidence is not required to support the plaintiffs testimonial evidence by affidavit (see 2-20 Bergman on New York Mortgage Foreclosures § 20.06[1][d] citing Johnson v Frederick , 219 NYS2d 482 [Kings County Sup. Ct. 1961] ). The defendants do not deny that they have not made any mortgage payments since May 1, 2013. Although they claim "partial payments" they have failed to offer any evidence to support this claim or challenging the calculations made by the Referee, or showing the manner in which defendants have been prejudiced by their inability to submit evidence directly to the Referee (see Adelman v Fremd , 234 AD2d 488, 489 [1996] ; Stein v American Mtge. Banking , 216 AD2d 458 [1995] ).
Insofar as defendants assertion of various affirmative defenses, these issues were addressed and decided by the court in the Memorandum Decision dated October 30, 2015 when determining plaintiff's motion for summary judgment and default judgment. Contrary to the defendants' claim, the motion was not submitted and decided without opposition from the defendants.
The defendants' claim of lack of personal jurisdiction over the defendants, Marjorie Pamela Henry and Maureen Henry, is also without merit. To the extent that defendants, Naomi Henry and Maureen Henry claim improper service of process upon a defendant other then themselves, i.e. Marjorie Pamela Henry, they each lack standing to do so (see Real Estate Mortgage Network, Inc. v Martinez , 166 AD3d 1028 [2018] ; IMC Mtge. Co. v Vetere , 142 AD3d 954, 955 [2016], quoting NYCTL 1996-1 Trust v King , 13 AD3d 429, 430 [2004). Moreover, the defendant, Marjorie Pamela Henry, waived the defense of lack of personal jurisdiction when she appeared in this action by filing on January 31, 2014 and serving an answer, albeit late, without asserting lack of personal jurisdiction (see CPLR 3211[e] ; American Home Mtge. Servicing, Inc. v Arklis , 150 AD3d 1180, 1181—1182 [2017]. The defendant, Maureen Henry, voluntarily participated in this action having moved for affirmative relief and defending on the merits, thereby subjecting herself to the jurisdiction of the court, and waiving any defense of lack of personal jurisdiction within the applicable statute of limitations (see Jaramillo v Asconcio , 151 AD3d 947, 949 [2017] ).
Although the court has great sympathy for Ms. Naomi Henry, sympathy is not a defense to foreclosure. Insofar as Ms. Henry asserts "predatory lending" based upon her age at the time the loan was granted and the lack of income on her part, she did not raise this defense in her answer or any prior motions or proceedings. Moreover, the debtors, obtained the loan in 2003 and made payments for ten years before they defaulted in 2013. A conclusory unsupported claim of predatory lending is insufficient.
Insofar as defendants seek attorneys' fees, denial of a discretionary allowance, reduction of the interest for the delay of this action, they are also denied. The delay of the resolution of this action was in large part due to the defendants seeking appointment of a guardian for Marjorie Pamela Henry rather than any actions of the plaintiff. The defendants failed to establish any basis for an award of attorney's fees in this case.
Accordingly, the defendants' cross-motion is denied in its entirety.
The plaintiff's motion is granted.
Settle Judgment.