Opinion
INDEX NO. 2018-50490
03-16-2021
WELLS FARGO BANK, N.A. SUCCESSOR BY MERGER TO WACHOVIA BANK, N.A., Plaintiff, v. MICHAEL N. KELSEY, JOHN MEEHAN KELSEY as Trustee of the MICHAEL N. KELSEY IRREVOCABLE TRUST, WELLS FARGO BANK, N.A., NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, JOHN DOE, Defendant(s).
To: Michael Nardolillo, Esq. Attorney for Plaintiff Via NYSCEF Michael N. Kelsey DIN# 16-A-4286 Defendant, Pro Se Hudson Correctional Facility 50 East Court Street Hudson, New York 12534
NYSCEF DOC. NO. 97 To commence the 30-day statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. DECISION AND ORDER
SEQ. NO. 2ACKER, J.
Defendant Michael N. Kelsey makes application by motion in the above foreclosure action for declaratory judgment as to his "eligibility for forbearance, waiver of late fees and interest." The motion is opposed by the Plaintiff, Wells Fargo Bank (sometimes referred to herein as the "Bank"). The Court has considered NYCEF documents numbered 77 to 91.
Throughout the COVID-19 pandemic, certain laws, orders and regulations were issued in New York State for the protection of mortgagors. Some action was taken by way of executive order. See e.g. Executive Order 202.8. There have also been numerous Administrative Orders issued by the Chief Administrative Judge of the Court. See, e.g. AO 157/20. New laws were also passed such as the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, which took effect on December 28, 2020. In addition, a new section of the Banking Law was signed into law on June 17, 2020. Banking Law §9-x provides, inter alia, forbearance relief to borrowers impacted by COVID-19.
Mr. Kelsey seeks the protections of Banking Law §9-x. He owns a home in Salt Point, New York and it is not disputed that he failed to make his August 2017 mortgage payment. This foreclosure action was commenced on February 23, 2018. Mr. Kelsey is currently incarcerated and the Salt Point residence is apparently "being rented." See Affidavit in Support of Michael N. Kelsey, dated November 19, 2020 at para. 2.
Plaintiff Bank opposes the application arguing that the Defendant is not a "qualified mortgagor" pursuant to the Banking Law and that he has not shown hardship as a result of COVID-19.
The Court need not address whether Defendant is a qualified mortgagor as the Court concludes that Banking Law §9-x does not apply to mortgages which were already in foreclosure when the law was enacted. "There is little doubt that the new statute is designed to only address mortgages affected by the COVID-19 pandemic and should not apply to borrowers who defaulted before the start date of March 7, 2020." Money Source, Inc. v. Mevs, 69 Misc. 3d 238, 244 (Suffolk Cty. Sup. Ct. 2020). Thus, as both the default on the mortgage and the commencement of the instant foreclosure action occurred well before the COVID-19 outbreak and the enactment of Banking Law §9-x, Mr. Kelsey is not entitled to the relief he requests.
It bears further note that Defendant fails to demonstrate whether New York law permits him to seek "declaratory judgment" by way of a motion when his pleadings are silent as to such relief.
The motion is denied.
This shall constitute the Decision and Order of this Court. Dated: March 16, 2021
Poughkeepsie, New York
/s/_________
CHRISTI J. ACKER
Justice of the Supreme Court To: Michael Nardolillo, Esq.
Attorney for Plaintiff
Via NYSCEF
Michael N. Kelsey DIN# 16-A-4286
Defendant, Pro Se
Hudson Correctional Facility
50 East Court Street
Hudson, New York 12534