Deutsche Bank Natl. Trust Co. v Jituboh

[*1] Deutsche Bank Natl. Trust Co. v Jituboh 2009 NY Slip Op 50550(U) [23 Misc 3d 1102(A)] Decided on March 24, 2009 Supreme Court, Queens County Hart, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2009
Supreme Court, Queens County

Deutsche Bank National Trust Company AS TRUSTEE, Plaintiff,

against

Ebikaboere Jituboh, et al., Defendants.



28958 2006

Duane A. Hart, J.

Upon the foregoing papers it is ordered that the motions numbered 6 and 7 on the calendar for November 19, 2008 are determined together as follows:

Plaintiff commenced this action to foreclose on the mortgage on the real property commonly known as 178-20 Selover Road, St. Albans, New York and identified in the notice of pendency as having the tax map designation of "Block: 12488 Lot(s): 16." The mortgage was given by defendant Ebikaboere Jituboh to secure repayment of a note, evidencing a loan in the principal amount of $472,500.00, plus interest, extended to defendant Jituboh by New Century Mortgage Corp. (New Century). Plaintiff alleged that it is the holder of the mortgage and underlying debt pursuant to an assignment, and that defendant Jituboh defaulted under the terms of the mortgage and note by failing to make the monthly installment payment of interest which became due and owing on September 1, 2006, as well as all subsequent installments, and as a consequence, it elected to accelerate the entire mortgage debt. Plaintiff used the fictitious names of "Jane Doe" and "John Doe" in the caption so to name as defendants those persons who were tenants or occupants of the premises, and asserted allegations in the complaint, identifying the John Doe and Jane Doe defendants as persons in possession of the property, and conveying an intention to cut off their interest in the premises. [*2]

Defendants Jituboh [FN1] and the "Jane Doe" and "John Doe" defendants failed to answer or appear in the action, and plaintiff subsequently obtained an order of reference, appointing a referee to compute the sums owing it. Plaintiff obtained the judgment of foreclosure and sale dated June 28, 2007, which directed, among other things, that the caption be amended, striking the names of the "John Does" and "Jane Does" defendants.

The foreclosure sale was scheduled for September 21, 2007.

Phyllis Waddell moves for leave to intervene claiming that she and her husband, Marcell Waddell, are the true owners of the property known as 178-20 Selover Road, St. Albans, New York, which she asserts is comprised of two parcels designated as Block 12488, lots 15 and 16, and is improved by a three-family dwelling. Proposed intervernor Phyllis Waddell states that she and her husband purchased the property on September 13, 1996, and that she has occupied the entire premises for the past 11 years.[FN2] Proposed intervenor Phyllis Waddell claims that she and her husband are the victims of a "buy-back" scheme perpetrated by defendant Jituboh, whereby defendant Jituboh fraudulently induced them into executing a written agreement denominated as a "USE AND OCCUPANCY AND BUY-BACK AGREEMENT" in October 2005. Defendant Jituboh allegedly misrepresented to them that she would rescue their property from pending foreclosure, in consideration for their paying her an amount equal to one year's monthly mortgage installments in advance, and that the Waddells would have an opportunity to redeem the property by repurchasing it within one year, during which they would remain in occupancy. Phyllis Waddell alleges that defendant Jituboh in fact, sought to swindle them out of their home by obtaining title to the property, failing to tender their payments to plaintiff and allowing the subject mortgage to go into default, and refusing to reconvey the property back to them.

Proposed intervenor Phyllis Waddell additionally claims that she and her husband remain protected in their rightful title to lot 15, insofar as the Jituboh deed was recorded against lot 16 only. She also claims that the metes and bounds description set forth in the notice of pendency, complaint and judgment wrongfully encompasses the property within lot 15 in the description.

Plaintiff opposes the motion by proposed intervenor Phyllis Waddell. Plaintiff asserts that defendant Jituboh, by the language used in the property description in the mortgage, intended [*3]to pledge both lots as security for the loan, and the mortgage sought to be foreclosed herein is the same property as described in the Jituboh deed. It further asserts that notwithstanding the Jituboh deed's being recorded only against lot 16, the Waddells, by virtue of certain language contained in the Jituboh deed, intended to convey to defendant Jituboh the whole of the property encompassing both lots in fee simple absolute prior to the commencement of this action. Plaintiff contends that Phyllis Waddell, therefore, does not have any ownership interest in the subject property and is not liable under the note, and is neither a necessary party defendant nor a permissible party defendant. Plaintiff argues it is a bona fide encumbrancer for value, as was New Century, its assignor, and is entitled to the protection of the recording statute (see Real Property Law § 291). Plaintiff further argues, that at most, Phyllis Waddell and Marcell Waddell are occupants of the subject property, who defaulted in answering the complaint, prior to their being omitted as "Jane Doe" and "John Doe" defendants from the caption.

Plaintiff, however, acknowledges that the metes and bounds description in the Jituboh deed is in error to the extent it describes the number of feet of the property's easterly boundary, fronting on Selover Road (formerly known as Arlington Street), as being 30 feet, as opposed to 50 feet.[FN3] According to plaintiff, such error previously appeared in the chain of title for the lots, but the Waddells themselves recorded a correction deed, dated September 13, 1996, as against both lots 15 and 16, confirming that the initial deed into them (dated March 21, 1996 and recorded only against lot 16), included an inaccurate metes and bounds description, and indicating that the amount of property actually transferred to them was the full 100.00 feet by 50.00 feet of both lots. Plaintiff asserts the "boundary length" error reappeared by virtue of a scrivener's error in the property description on the Jituboh deed.

Apparently in recognition that any foreclosure sale to be held in this action may be considered void as to Phyllis Waddell and Marcell Waddell, as omitted "Jane Doe" and "John Doe" defendants (see Polish Natl. Alliance v White Eagle Hall Co., 98 AD2d 400 [1983], supra), plaintiff separately moves to amend the caption naming Phyllis Waddell and Marcell Phyllis as additional party defendants. In addition, plaintiff moves to quash the so-ordered subpoenas issued by Phyllis Waddell, as a proposed intervenor, to plaintiff and nonparties, Jairo Jimenez, Phillip Collins, as regional manager of New Century, and Brad A. Morrice, as president and chief executive officer of New Century, for oral examination in connection with this action. Phyllis Waddell does not oppose the branch of the motion seeking to add her as a defendant, and her counsel has stipulated that she will accept service of process and serve an answer within 20 days thereafter.

To the extent plaintiff seeks to accomplish foreclosure of any claimed interest held by [*4]Phyllis Waddell and Marcell Waddell, it will not suffice for it to simply to amend the caption to add them as party defendants. Plaintiff made no timely application for a default judgment against the "John Doe" or "Jane Doe" defendants prior to the application for the judgment of foreclosure and sale. More importantly, the judgment of foreclosure and sale specifically deleted reference to the "John Doe" and "Jane Doe" defendants, noting plaintiff had determined no tenants occupied the premises. Plaintiff has failed to explain the basis for such representation to the court other than its process server's attempts to effectuate personal delivery of process service at the subject premises were unsuccessful.

Furthermore, it is well settled that a person may intervene as of right where such person has an interest in real property, the title to which may be affected by the judgment (see CPLR 1012[a][3]; see Greenpoint Sav. Bank v McMann Enters., 214 AD2d 647, 648 [1995]). Phyllis Waddell has made a sufficient showing of a real and substantial interest in the outcome of the foreclosure action warranting her intervention (see CPLR 1012, 1013; Slattery v Schwannecke, 118 NY 543; Bancplus Mortg. Corp. v Galloway, 203 AD2d 222 [1994]; see Douglas v Kohart, 196 App Div 84 [1921]; Krotchta v Green, 121 Misc 2d 471 [1983]; see generally 1 Bergman on New York Mortgage Foreclosures § 12.03).

However, to the extent Phyllis Waddell seeks to assert as an affirmative defense or counterclaim regarding the purported deed theft, she makes no allegation that plaintiff was involved in the purported scheme by defendant Jituboh to dupe her and her husband out of their home (see generally Wells Fargo Bank, NA v Edsall, 22 Misc 3d 1113[A]), or that the Jituboh deed is forged (see e.g. Marden v Dorthy, 160 NY 39, 50-51 [1899]; Sinardi v Rivera, 261 AD2d 388 [1999]; Filowick v Long, 201 AD2d 893 [1994]). Nor, does she claim that the price for repurchase was greater than the amount paid by defendant Jituboh for the property, or that the monthly use and occupancy was greater than the monthly payment due under the subject mortgage (cf. Watson v Melnikoff, 19 Misc 3d 1130[A] [2008]). In addition, the "Home Equity Theft Prevention Act" (Real Property Law § 265-a), enacted to protect homeowners from deed theft and foreclosure rescue scams, is inapplicable herein, insofar as it took effect on February 1, 2007 (L 2006, ch 308, § 3). The remedies of deed rescission and the cancellation of a related mortgage under Real Property Law § 265-a, moreover, are subject to the rights of bona fide encumbrancers for value and are available only to qualifying claimants who sue within two years of the transaction (see Real Property Law § 265-1[2][e]; Wells Fargo Bank, NA v Edsall, 22 Misc 3d 1113[A], supra), not the case herein. Lastly, Phyllis Waddell cannot be said to have clean hands to the extent she participated in the purported fraudulent arrangement with defendant Jituboh to misrepresent to plaintiff's assignor that defendant Jituboh was the owner of the subject premises. Phyllis Waddell, therefore, may not assert any affirmative defense or counterclaim based upon the alleged deed theft.

With respect to Phyllis Waddell's proposed cross claims against defendant Jituboh, they are not related to the claims asserted by plaintiff and would have the deleterious effect of indefinitely prolonging resolution of the action. To the extent Phyllis Waddell seeks to assert any claim against defendant Jituboh or others, regarding the purported fraud in connection with the [*5]deed transfer or breach of the buy-back agreement, she may do so in a separate suit if she is so advised.

To the extent plaintiff moves to quash the judicial subpoenas to conduct oral examinations of plaintiff and nonparty witnesses, they were issued at a time when Phyllis Waddell was not a party to the action. Phyllis Waddell may not assert an affirmative defense or counterclaim relative to the purported deed theft, and she has failed to demonstrate any basis to conduct oral depositions in connection with any other proposed affirmative defense. Phyllis Waddell also makes no claim at the time the subpoenas were issued that she was a proponent of pre-action discovery as against Jituboh or others regarding such purported deed theft. Under such circumstances, the subpoenas are quashed.

RPAPL 1331 requires that in a foreclosure action brought pursuant to RPAPL article 13, a notice of pendency be filed at least 20 days before entry of final judgment, and is, "in effect an element of the plaintiff's cause of action (see Robbins v Goldstein, 36 AD2d 730 [1971]; see also Isaias v Fischoff, 37 AD2d 934 [1971]). Failure to comply with the filing requirement precludes entry of final judgment" (see Slutsky v Blooming Grove Inn, Inc., 147 AD2d 208, 212 [1989]). Plaintiff purports to foreclose against the property comprised of both lots 15 and 16, but filed the notice of pendency only against lot 16, and therefore, the judgment, to the extent it seeks to foreclose the property encompassed within lot 15, is defective. In addition, the notice of pendency, summons and complaint, and judgment of foreclosure and sale require a proper legal description of the mortgaged premises for the purpose of foreclosing on a real estate mortgage (see Bagnoli v Albert, 263 AD2d 594 [1999]; see also United Companies Lending Corp. v Rogers, 45 AD3d 1419 [2007]). Plaintiff indicates a need on its part to reform the metes and bounds description of the Jituboh deed and the subject mortgage to include a 50.00 ft. boundary, rather than a 30.00 ft. boundary.

Accordingly, the motion by plaintiff is granted to the extent of granting plaintiff leave to supplement the summons and amend the complaint to add Phyllis Waddell and Marcell Waddell as defendants, and quashing the subpoenas. The motion by Phyllis Waddell is granted to the extent of vacating the judgment of foreclosure and sale and the notice of sale, and granting her leave to intervene by service of an answer in accordance with this order. Plaintiff shall serve a copy of the supplemental summons and amended complaint by mail within 20 days of service of a copy of this order with notice of entry upon defendant Phyllis Waddell. Defendant Phyllis Waddell shall serve an answer within 20 days after service of a copy of this order with notice of entry and the supplemental summons and amended complaint. Plaintiff shall personally serve and file a supplemental summons and amended complaint upon defendant Marcell Waddell within 20 days of service of a copy of this order with notice of entry. Defendant Marcell Waddell shall have the statutorily prescribed time to serve an answer or responsive papers.

Dated: March 24, 2009 [*6]

J.S.C. Footnotes

Footnote 1: Counsel for defendant Jituboh subsequently filed a notice of appearance for her on November 14, 2007, and made an appearance in court on March 5, 2008. The court notes, however, that defendant Jituboh has made no motion, including for leave to vacate her default in answering.

Footnote 2:It is unclear from the papers the reason that Marcell Waddell has not joined with Phyllis Waddell to seek intervention herein.

Footnote 3:Plaintiff's witness, Laurence Michael Haynes, a licensed professional land surveyor, states that such description places the boundary line approximately three feet into lot 16, causing the line to run through the house on the premises.