Opinion
Index No. 022839/2011 Mot. Seq. Nos. 002-MG 003-MD 004-MD
07-13-2023
WELLS FARGO BANK, N.A., AS INDENTURE TRUSTEE FOR THE ARCH BAY ASSET-BACKED SECURITIES TRUST, 2010-1 Plaintiff, v. STEVEN M. JENKINS; JILL LAURO; NATIONAL CITY MORTGAGE, A DIVISION OF NATIONAL CITY BANK; PETRO. INC.; And "JOHN DOE" and "MARY DOE." (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.
ROSS EISENBERG LAW PLLC ATTYS, FOR PLAINTIFF THE RANALLI LAW GROUP, PLLC ATTYS, FOR STEVEN JENKINS MICHAEL BLAKEY, ESQ. ATTYS FOR JILL LAURO
Unpublished Opinion
MOTION DATE 1/20/2023
SUBMIT DATE 1/20/2023
ROSS EISENBERG LAW PLLC ATTYS, FOR PLAINTIFF
THE RANALLI LAW GROUP, PLLC ATTYS, FOR STEVEN JENKINS
MICHAEL BLAKEY, ESQ. ATTYS FOR JILL LAURO
Hon. THOMAS F. WHELAN Justice
Upon the following papers numbered as indicated and read on this motion for appointment of a referee (#002), cross motion to dismiss (#003) and additional cross motion to dismiss (#004); Notice of Motion/Order to Show Cause and supporting papers NYSCEF Docs 31-49 (#002); Notice of Cross Motion and supporting papers: NYSCEF Docs 50 -56 (#003); addl motion NYSCEF Docs 77 - 94 (#004); Opposing papers: NYSCEF Docs 61 - 76 (#002);; Reply papers NYSCEF Docs 96 - 97; Other_; (and after hearing counsel in support and opposed to the-motion) it is, ORDERED that the plaintiff s motion (#002) seeking summary judgment as against defendant Steven Jenkins, default judgments against the remaining defendants, the appointment of a referee to compute, and amendment of the caption is granted; and it is further
ORDERED that Jill Lauro's cross-motion (#003) seeking dismissal of the complaint as against her is denied; and it is further
ORDERED that Steven Jenkins' additional cross-motion (#004) seeking summary judgment dismissing the complaint is denied; and it is further
ORDERED that the proposed order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2).
This is an action to foreclose a mortgage on residential property located in Centereach. In essence, on June 11, 2007, defendants Steven Jenkins and Jill Lauro (hereinafter "the defendants") borrowed $346,050.00 from the plaintiffs predecessor in interest and executed a promissory note and a mortgage. Since November 1,2010, no payments have been made on the monthly installments due and owing. This action was. therefore, commenced by filing on July 14, 2011. On August 11. 2011, defendant Steven Jenkins, through counsel, filed an answer containing nine affirmative defenses and four counterclaims. The plaintiff filed its reply to counterclaims on August 22, 2011. On March 5,2012, the plaintiff filed a Request for Judicial Intervention requesting that a foreclosure settlement conference pursuant to CPLR 3408 be scheduled. According to court records, conferences took place on March 30, 2012 and June 28, 2012, and at the last conference held on August 23, 2012, the court released the matter from further conferencing and marked the case "Not Settled".
On August 22, 2022, defendant Steven Jenkins, through counsel, filed a motion to dismiss the complaint (#001) however, shortly thereafter, on October 25,2022, defendant Jenkins withdrew the motion. This Court issued an Order memorializing same, and scheduled a status conference to take place on December 6, 2022. Meanwhile, on November 27, 2022, the plaintiff filed the instant motion (#002) seeking an order awarding it summary judgment as against the answering defendant, default judgments as against the remaining defendants, appointment of a referee to compute, and amendment of the caption to substitute the Plaintiff. The conference took place as scheduled on December 6,2022 and. on that same day, defendant Jill Lauro, through counsel, filed a cross-motion (#003) seeking dismissal of the action pursuant to CPLR 3215(c). Defendant Jenkins, through counsel, opposed plaintiff s motion, and also filed a cross-motion (#004) seeking summary judgment dismissing the complaint alleging that plaintiff failed to comply with RPAPL 1303, and the mailing requirements of RPAPL 1304 and the default notice pursuant to the terms of the mortgage. Defendant Jenkins also seeks attorneys' fees. The plaintiff has filed a reply in response to each cross-motion.
The Court first considers defendant Jill Lauro's cross-motion (#003), which seeks dismissal of the complaint as against her on the basis that the plaintiff failed to seek a default judgment within one year of the defendant's default pursuant to CPLR 3215(c).
CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned ., . unless sufficient cause is shown why the complaint should not be dismissed" (CPLR 3215[c]; HSBC Bank USA, N.A. v Hasis, 154 A.D.3d 832, 833, 62 N.Y.S.3d 467 12d Dept 2017], citing Wells Fargo Bank, NA v Bonanno, 146 A.D.3d 844,45 N.Y.S.3d 173 [2d Dept 2017]). To avoid dismissal, the plaintiff need not actually obtain or specifically seek the default judgment within one year (see HSBC Bank USA, NA v Hasis, 154 A.D.3d at 833, supra; see also Wells Fargo Bank, NA. v Daskal, 142 A.D.3d 1071,1072,37N.Y.S.3d353 [2d Dept 2016]). As long as "proceedings" are being taken that manifest "an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal" (Citibank, N.A. v Kerszko, 203 A.D.3d 42, 50-51,161 N.Y.S.3d232 [2d Dept 2022]; see also U.S. Bank,N.A. v Duran, 174 A.D.3d 768,770,106 N.Y.S.3d 160 [2d Dept 2019]; Wells Fargo Bank, N.A. v. Combs, 128 A.D.3d 812, 813, 10 N.Y.S.3d 121 [2d Dept 2015]). Courts have held that the term "proceedings" encompasses such acts as filing a motion for default judgment (see Mtge. Elec. Registration Sys., Inc. v Smith, 111 A.D.3d 804,806, 975 N.Y.S.2d 121 [2d Dept 2013]) and presentment of an ex parte proposed order of reference (see Citibank, N.A. v Kerszko, 203 A.D.3d at 241, supra). Additionally, "[t]o 'take proceedings' is a broader and more encompassing concept than a more tightly defined 'filing' or 'service' of a motion for leave to enter a default judgment or other type of motion" (Citibank, N.A. v Kerszko. 203 A.D.3d at 50. supra). Thus, the filing of a request for judicial intervention as a step towards seeking an Order is sufficient (see Fed. Natl. Mtge. Assn. v Edmund-Henry, 188 A.D.3d 652, 654-55,134 N.Y.S.3d 64 [2d Dept 2020]). Whether the motion is ultimately denied or subsequently withdrawn is of no consequence (see Washington Mut. Bank, FA v Milford-Jean-Gille. 153 A.D.3d 754, 755, 59N.Y.S.3d781 [2d Dept 2017]), citing Aurora Loan Servs., LLC v Gross, 139 A.D.3d 772, 773, 32 N.Y.S.3d249 [2d Dept 2016]).
Here, the plaintiff "initiated proceedings for the entry of the default judgment of foreclosure and sale within one year of [defendant Lauro's] default" by timely filing the request for intervention (Fed. Natl. Mtge. Assn, v Edmund-Henry, 188 A.D.3d at 654-55, supra [citations omitted]), therefore demonstrating that plaintiff did not abandon the action and indeed intended to proceed with the action. The Court notes that the defendant's comparison to and reliance upon this Court's decision in Bank of America N.A. v Brian Joerger, Phyllis Joerger, et al., Suffolk County Index Number 12336/2013 is misplaced, as plaintiff in that case failed to demonstrate that it took proceedings within one year of defendant Phyllis Joerger's default.
The Court notes at this juncture that it finds certain circumstances of the instant case and the Joerger case to be strikingly similar. For example, in Joerger, Ms. Joerger in her affidavit avers that she and Brian Joerger are married and reside together at the residence, and notes that only Brian Joerger retained attorney Ranalli and filed an answer. The Joerger affidavits of service demonstrate that both parties were served via Mr. Joerger at the premises, although Ms. Joerger did not appear until filing a motion pursuant to CPLR 3215(c) through counsel, specifically, attorney Blakey. In the instant case, the submissions demonstrate that defendant Jenkins and defendant Lauro are married and reside together at the mortgaged premises. Defendant Jenkins was personally served with the summons and complaint at said premises and, at the same time, accepted service on behalf of defendant Lauro. As defendant Lauro acknowledges in her affidavit, defendant Jenkins retained Mr. Ranalli as counsel and filed an answer, however defendant Lauro did not answer or appear until filing the instant motion pursuant to CPLR 3215(c) through until attorney Blakey.
The Court turns next to the cross-motion of defendant Jenkins, which alleges that plaintiff failed to comply with RPAPL 1303, as well as the mailing requirements of RPAPL 1304 and the default notice pursuant to the terms of the mortgage.
Initially, with respect the plaintiffs compliance with RPAPL 1303, the Court acknowledges that the allegations were not included in defendant Jenkins' answer, but notes that "[t]he failure to comply [with RPAPL 1303] is a basis for dismissal of a complaint which may be raised at any time (Nationstar Mtge., LLC v Gayle, 191 A.D.3d 1003, 1003, 143 N.Y.S.3d 78 [2d Dept 2021], citing JPMorgan Chase Bank, N.A. v Lee, 186 A.D.3d 685, 687, 129 N.Y.S.3d 507 [2d Dept 2020]). However, the issue must be raised prior to entry of the judgment of foreclosure and sale (see Wells Fargo Bank, N.A. v Coffey, 177A.D.3d 1022,113N.Y.S.3d 164 [2d Dept 2019]). The circumstances here, therefore, do not require the Court to adjudicate whether defendant Jenkins is entitled to amend his answer to include said defense.
The Court has reviewed the defendant's allegations and find same to be without merit. The defendant has failed to overcome the presumption of service of the proper RPAPL §1303 notice, as described on "a colored piece of paper, in fourteen-point type, with the title of the notice in bold, twenty-point type" as set forth in the affidavit of service (see Eastern Sav. Bank, FSB v Tromba. 148 A.D.3d 675, 48 N.Y.S.3d 499 [2d Dept 2017]; Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 981 N.Y.S.2d 107 [2d Dept 2014]; U.S. Bank N.A. v Tate, 102 A.D.3d 859. 958 N.Y.S.2d 722 [2d Dept 2013]). Additionally, a copy of the notice was annexed to plaintiffs submission. The evidence submitted by the defendant to the contrary is, at best, "speculative and conclusory" (OneWest Bank, FSB v Cook, 204 A.D.3d 1025, 1027, 165 N.Y.S.3d 345 [2d Dept 2022]).
To the extent the defendant seeks to amend his answer to include a counter-claim for attorney fees, such is denied. Case authorities provide that in the absence of prejudice or surprise to a nonmoving party, leave should be "freely granted" without an examination of the merits of the proposed amendments nor any obligation to support them with evidentiary materials (see CPLR 3025[b]; see Katz v Castlepoint Ins. Co., 121 A.D.3d 948, 995 N.Y.S.2d 131 [2d Dept 2014]; Rosicki &Rosicki Assocs. PC v Cochems, 59 A.D.3d 512, 873 N.Y.S.2d 184 [2d Dept 2009]: Mackenzie v Croce, 54 A.D.3d 825, 864 N.Y.S.2d 474 [2d Dept 2008]; Lucido v Mancuso, 49 A.D.3d 220,851 N.Y.S.2d 238 [2d Dept 2008]). Here, the defendant has not been successful as a prevailing party to the foreclosure action and therefore has failed to demonstrate his entitlement to attorney's fees (see Bank of America v Destino, 138 A.D.3d 654, 29 N.Y.S.3d 56 [2d Dept 2016]). Therefore, the proposed amendment is "patently devoid of merit" (Bank of Am., N.A. v Anderson, 216 A.D.3d 890. 892, 2023 WL 3486489 [2d Dept 2023], citing CPLR 3025 [b]).
The Court turns then to the branch of defendant's cross-motion seeking to dismiss plaintiff s action for failing to properly mail the notices pursuant to RPAPL 1304 and the default notice in the mortgage. In moving to dismiss for failure comply with conditions precedent to commencing a foreclosure action, a defendant has the burden of establishing, as in the instant matter, that plaintiff has failed to comply with conditions precedent as a matter of law. With regards to mailings as a condition precedent, it is well settled that "mere denial of receipt is insufficient to 'win the day' in motion practice" (Citibank, N.A. v ContiScheurer, 172 A.D.3d 17, 23, 98 N.Y.S.3d 273 [2d Dept 2019]). "A defendant still has to meet its burden, on a cross motion for summary judgment dismissing the complaint, of establishing that the condition precedent was not fulfilled (Citibank,N.A. v Conti-Scheurer, 172 A.D.3d at 24. supra, citing Wells Fargo Bank, N.A. v Sakizada, 168 A.D.3d 789, 91 N.Y.S.3d 268 [2d Dept 2019]). The ''bare denial of receipt of the RPAPL 1304 [and default] notice [is] insufficient to establish, prima facie, that the plaintiff did not comply" (PROF-2013-S3 Legal Tit. Tr. V v Johnson, 214 A.D.3d 745.185 N.Y.S.3d 238 [2d Dept 2023], citing Wilmington Trust, N.A. v Jimenez. 194 A.D.3d 988, 990, 149 N.Y.S.3d 160 273 [2d Dept 2021]).
Here, defendant Jenkins himself has failed to make any representations whatsoever in connection therewith (NYSCEF Doc. 62, Jenkins Aff). Instead, the allegations stem directly from defendant's counsel, and fall woefully short of demonstrating that plaintiff failed to mail the notice to the defendant at the required address via first class and certified mail, in accordance with RPAPL 1304. The Court therefore denies defendant Jenkins' cross-motion (#004) in its entirety.
The Court turns now to the plaintiffs motion in chief (#002), where the plaintiff addresses its burden of proof in the moving papers and refutes the affirmative defenses and counterclaims of the answer with the affidavit of John R. Olsen. Management Member of Palm Avenue Hialeah Trust, A Delaware Statutory Trust, For And On Behalf And Solely With Respect To Palm Avenue Hialeah Trust Series 2014-1 (hereinafter "Palm Avenue"), assignee of the plaintiff within, sworn to on November 23, 2022. Mr. Olsen notes that he has knowledge of Palm Avenue's records and record making procedures, including how such records are created and maintained. He avers that the records are made at or near the time of the event by persons with knowledge, and are kept in the course of Palm Avenue's ordinarily conducted business. Finally, Mr. Olsen notes that, to the extent that business records were created by a prior servicer, those records have been incorporated into and are relied upon in the ordinary course of business by Palm Avenue.
The Court finds that the plaintiff has demonstrated, by due proof in admissible form, its prima facie burden on this summary] judgment motion (see HSBC Bank USA, Natl. Assn, v Espinal. 137 A.D.3d 1079. 28 N.Y.S.3d 107 [2d Dept 2016]; U.S. Bank Natl. Assn, v Cox, 148 A.D.3d 692. 49 N.Y.S.3d 527 [2d Dept 2017]).
The burden then shifts to the defendants (see Bank of America, N.A. v DeNardo. 151 A.D.3d 1008. 58 N.Y.S.3d 469 [2d Dept 2017]) and it was incumbent upon the answering defendant to submit proof sufficient to raise a genuine question of fact rebutting plaintiffs prima facie showing or in support of the affirmative defenses asserted in the answer or otherwise available to him (see Flagstar Bank v Bellafiore, 94 A.D.3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012]; Grogg Assocs. v South Rd. Assocs., 74 A.D.3d 1021.907 N.Y.S.2d 22 [2d Dept 2010]; Wells Fargo Bank v Karla, 71 A.D.3d 1006. 896 N.Y.S.2d 681 [2d Dept 2010]; Washington Mat. Bank v O'Connor, 63 A.D.3d 832.880 N.Y.S.2d 696 [2d Dept 2009]; J.P. Morgan Chase Bank, NA v Agnello, 62 A.D.3d 662, 878 N.Y.S.2d 397 [2d Dept 2009]; Aames Funding Corp, v Houston, 44 A.D.3d 692, 843 N.Y.S.2d 660 [2d Dept 2007]).
Notably, affirmative defenses predicated upon legal conclusions that are not substantiated with allegations of fact are subject to dismissal (see CPLR §§3013, 3018[b]; Katz v Miller, 120 A.D.3d 768, 991 N.Y.S.2d 346 [2d Dept 2014]; Becher v Feller. 64 AD3 672, 677, 884 N.Y.S.2d 83 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V& MOpt., Inc.. 51 A.D.3d 619, 858 N.Y.S.2d 260 [2d Dept 2008]). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne &Nagel, Inc. v Baiden, 36 N Y2d 539,369 N.Y.S.2d 667 [1975]; see also Madeline D'Anthony Enter., Inc. v Sokolowsky, 101 A.D.3d606, 957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2d Dept 2010]). In addition, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 796 [2d Dept 2013]; Starkman v City of Long Beach. 106 A.D.3d 1076, 965 N.Y.S.2d 609 [2d Dept 2013]).
Here, defendant Jenkins' submission asserted allegations related solely to plaintiffs compliance with with RPAPL 1303, as well as the mailing requirements of RPAPL 1304 and the default notice pursuant to the terms of the mortgage, which have been addressed above. The submission fails to address any of the remaining asserted affirmative defenses and/or claims in their answer. As such, given the above, the Court finds all remaining affirmative defenses to have been abandoned.
The Court finds that the plaintiff has sufficiently demonstrated its entitlement to the relief sought -- that is, fixation of the remaining defendants' defaults in answering and the appointment of referee to compute amounts due under the subject note and mortgage as contemplated by RPAPL § 1321 (see CPLR 3215; RPAPL § 1321; Todd v Green, 122 A.D.3d 831, 832, 997N.Y.S.2d 155,156 [2d Dept 2014]; U.S. Bank, N.A. v Razon, 115 A.D.3d 739, 740, 981 N.Y.S.2d 571, 572 [2d Dept 2014]; Countrywide Home Loans, Inc. v Hershkop. 188 A.D.3d 1148, 1149, 132 N.Y.S.3d 785, 786 [2d Dept 2020], citing Shultis v Woodstock Land Dev. Assocs., 195 A.D.2d 677, 678, 599 N.Y.S.2d 340,341 [2d Dept 1993]).
Accordingly, the plaintiffs motion (#002) is granted, and the cross-motions of defendant Lauro (#003) and that of defendant Jenkins (#004) are denied. The proposed order of reference, as modified by the court, has been signed simultaneously with this memorandum decision and order.