Citimortgage, Inc. v Orichello

[*1] Citimortgage, Inc. v Orichello 2011 NY Slip Op 52166(U) Decided on December 6, 2011 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2011
Supreme Court, Dutchess County

Citimortgage, Inc., Plaintiff,

against

Joseph Orichello a/k/a JOSEPH A. ORICHELLO, MARY J. ORICHELLO a/k/a MARY JEAN ORICHELLO, et al., Defendants.



5833/09



DANIEL B. WADE, ESQ.

ROSICKI, ROSICKI & ASSOCIATES, P.C.

Attorneys for Plaintiff

Fishkill Office 2 Summit Court

Suite 301

Fishkill, New York 12524

J.A. SANCHEZ, ESQ.

FUSTER LAW, P.C.

Attorneys for Defendants

JOSEPH ORICHELLO a/k/a JOSEPH

A. ORICHELLO and MARY J. ORICHELLO

a/k/a MARY JEAN ORICHELLO

31-10 37th Avenue, Suite 401

Long Island City, New York 11101

James D. Pagones, J.

Plaintiff Citimortgage, Inc. moves for an order granting it a judgment of foreclosure and sale against the defendants. The defendants oppose the instant application and cross-move for an order (1) vacating the default judgment and order of reference, (2) granting the defendants leave to answer the complaint, (3) scheduling the matter for a settlement conference, or, alternatively, (4) granting a temporary stay if the foregoing relief cannot be granted due to standing or procedural defects. For the reasons set forth more fully herein, it is ordered that the plaintiff's motion is granted. It is further ordered that the defendants' cross-motion is denied. [*2]

This is an action to foreclose a mortgage given by the defendants encumbering property located at 588 Shenandoah Road, Hopewell Junction, New York 12533. The plaintiff commenced the foreclosure proceeding against the defendants by filing a summons and complaint and notice of pendency on July 29, 2009. A settlement conference was scheduled for June 3, 2010. Counsel for the plaintiff appeared at the settlement conference, however, the defendants failed to appear and the matter was referred back to the court for further proceedings. Subsequently, this court signed an order of reference on June 8, 2010.

CPLR R5015(a)(3) provides that a party may be relieved of a judgement or order upon the ground of "fraud, misrepresentation, or other misconduct of an adverse party". The fraud contemplated by CPLR R5015(a)(3) may be extrinsic or intrinsic. Extrinsic fraud is said to deprive a party from fully and fairly litigating a matter. (Shaw v. Shaw, 97 AD2d 403 [2nd Dept. 1983].) Examples of extrinsic fraud include false promises to compromise and acts committed by one party for the purpose of keeping another party away from court so that a default judgment may be secured. (Tamimi v. Tamimi, 38 AD2d 197 [2nd Dept. 1972].) Allegations of extrinsic fraud do not require a moving party to establish a reasonable excuse for its default or a meritorious defense. (Deutsche Bank Nat. Trust Co. v. Gillio, 2009 NY Slip Op 50383U; 22 Misc 3d 1131(A) [NY Sup. 2009].)

Conversely, intrinsic fraud generally concerns a fraudulent instrument or false representation and requires a moving party to demonstrate a meritorious defense and a reasonable excuse for its default. (Bank of New York v. Lagakos, 27 AD3d 678 [2nd Dept. 2006].)

The defendants contend that the plaintiff engaged in extrinsic fraud in the assignment of defendants' mortgage. Specifically, the defendants assert that the assignment documents were "robosigned". The defendants also assert that the instant action was commenced by the plaintiff prior to the execution of the assignment of mortgage and that, in any event, the note was never assigned to the plaintiff. Notwithstanding the defendants' characterization of the alleged fraud perpetrated by the plaintiff as extrinsic, it is evident based upon a review of the defendants' submissions that the only allegations against the plaintiff involve intrinsic fraud. Accordingly, even if the court were to find that the defendants sufficiently alleged the plaintiff engaged in intrinsic fraud, the defendants have entirely failed to offer any excuse for their default. Therefore, the defendants' cross-motion to vacate the order of reference and permit the service of an untimely answer is denied.

Similarly, the defendants' request that this matter be remanded to the settlement conference party is also denied. The provisions of CPLR R3408 provide for a mandatory settlement conference in any residential foreclosure action involving a "home loan" as defined pursuant to RPAPL §1304. The defendants do not dispute that they received notice of a court ordered foreclosure settlement conference scheduled to be held on June 3, 2010. The defendants also do not dispute that they failed to attend the conference, nor do they offer any explanation for their unexcused absence. As a result of the defendants' failure to appear at the settlement conference, the plaintiff was granted permission to proceed on the foreclosure action. The plaintiff subsequently made an application for an order of reference, which was granted by this court on June 8, 2010. More than one year later, the defendants filed the instant motion requesting the court order an additional foreclosure settlement conference. The defendants have failed to set forth any basis for the court to remand this matter for an additional settlement [*3]conference and accordingly the court declines to do so.

Therefore, it is ordered that the plaintiff's motion for a judgment of foreclosure and sale is granted and the defendants' cross-motion is denied in its entirety. The plaintiff is directed to submit a proposed judgment of foreclosure and sale consistent with this decision and order within twenty (20) days of the date of this decision.

The foregoing constitutes the decision and order of the

Court.

Dated:Poughkeepsie, New York

December 6, 2011

ENTER

HON. JAMES D. PAGONES, A.J.S.C.