Indymac Fed. Bank FSB v Black

[*1] Indymac Fed. Bank FSB v Black 2009 NY Slip Op 50133(U) [22 Misc 3d 1115(A)] Decided on January 23, 2009 Supreme Court, Rensselaer County Ceresia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 23, 2009
Supreme Court, Rensselaer County

Indymac Federal Bank FSB, Plaintiff,

against

Janice M. Black, a/k/a Janice M. Dedrick, Individually and as Surviving Spouse of Gilbert L. Black, and "John Doe No. 1" Through "John Doe #10", the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.



226806



Appearances: McCabe, Weisberg and Conway, P.C.

Attorney For Plaintiff

145 Huguenot Street, Suite 10801

New Rochelle, NY 10801

George B. Ceresia, J.

DECISION/ORDER

The above-captioned action, commenced on September 18, 2008, is one to foreclose a mortgage dated May 22, 2007 given by Gilbert L. Black and Janice M. Black to Indymac Bank F.S.B. to secure a loan in the sum of $101,600.00. The mortgage is on real property located in the Town and Village of Nassau, in Rensselaer County. The plaintiff has made an application for an order of reference pursuant to RPAPL § 1321. In support of the application, the defendant has submitted an affirmation in which it is indicated that although the loan is a subprime loan within [*2]the meaning of RPAPL 1304 (5) (d), the defendant Janice M. Black is not entitled to a settlement conference. In support of this contention, plaintiff points out that Gilbert L. Black was the borrower on the loan and he is deceased. The plaintiff also maintains that inasmuch as Janice M. Black resides in Florida, she is not a resident of the premises within the meaning of CPLR 3408 (a).

With regard to the first argument, while it is true that only Gilbert L. Black signed the promissory note, Janice M. Black was a signatory, with Gilbert L. Black, on the mortgage. The purpose of the 2008 foreclosure legislation (L 2008, c 472) was to provide an opportunity to qualifying homeowners to negotiate a mutually beneficial resolution of the foreclosure action with the mortgage holder, in order to forestall the borrower's loss of the home. The Court is mindful that "generally speaking remedial statutes are liberally construed to carry out the reforms intended and to promote justice" (McKinney's Statutes §321). As such, the Court finds that Janice M. Black should be deemed a borrower for purposes of the provisions of RPAPL § 1304 and CPLR 3408.

With regard to the second argument, the plaintiff does not present any evidence in support of its contention that the defendant does not maintain a residence at the subject premises. The mere fact that the defendant was served with process in the State of Florida is, in the Court's view, insufficient to demonstrate that the subject premises is not defendant's principal residence (see e.g. Accredited Home Lenders, Inc. v Hughes, 2008 NY Slip Op 28433, 2008 NY Misc. LEXIS 6583, 2008 WL 4821636 [November 5, 2008]). The Court finds that there is insufficient evidence to demonstrate that the subject mortgage loan does not qualify for a mandatory settlement conference under CPLR 3408.

Carrying the foregoing one step further, in view of the position taken by the plaintiff, it would appear that plaintiff did not satisfy the ninety-day notice requirement set forth in RPAPL § 1304, applicable to actions commenced after September 1, 2008. The Court finds that the giving of the notice is a condition precedent to commencement of the action, and accordingly, concludes that the action must be dismissed.

SO ORDERED!

This shall constitute the decision and order of the Court. All papers are returned to the attorney for the plaintiff, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

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Dated:January 23, 2009Hon. George B. Ceresia, Jr.

Troy, New YorkSupreme Court Justice