US Bank Natl. Assn. v Walker

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US Bank Natl. Assn. v Walker 2012 NY Slip Op 30821(U) March 19, 2012 Supreme Court, Suffolk County Docket Number: 17456-11 Judge: Denise F. Molia Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SIIOHT FOIIJ\I ORDER COPY INDEX NO.: 17456-11 SUPREME COURT - STATE OF NEW YORK lAS PART 39 - SUFFOLK COUNTY PRESENT: Hon. DENISF; F. MOLl A Justice of the Supreme Court MOTION US BANK NATIONAL DATE, 12-08-11 12-09-11 ASSOCIATION MOT. SEQ. #, 001 MG MOT. SEQ. #, 002 MD Plaintiff, -againstWILLIE J WALKER; ASSET ACCEPTANCE LLC; CACH LLC; CLERK OF THE SUFFOLK COUNTY DISTRICT COURT; COMMISSIONER OF TAXA nON AND FINANCE; COUNTY OF SUFFOLK; FATMA KAZDAL; HSBC BANK NEVADA NA; MAUREEN BURCH; MAUREEN WALKER; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; PEOPLE OF THE STATE OF NEW YORK; PERSOLVE LLC; PIEDAD WETHERINGTON; TASKIN KAZDAL; WR MARRANS SONS INC; "JOHN DOES" AND -'JANE DOES" , said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien against the premises, ROSICKI, ROSICKI & ASSOCIATES, ATTORNEYS FOR PLAINTIFF 26 HARVESTER AVENUE BATAVIA, N.Y. 14020 P.C. RONALD D. WEISS, P.C. ATTORNEY FOR DEFENDANT 734 WALT WHITMAN ROAD, SUITE 203 MELVILLE, N.Y. 11747 Defendants, _______________________ x Upon the following papers numbered I to 21 read on this motion by the plaintifTfor an order pursuant to RP,I\PL:;; 1321 and the motion by the defendant Willie J. Walke! for an orde! pursuant to CPLR 3012 (d). Notice of Motion/Orderto Show Cause and supporting papers I· 1I; 12 - 17 ; Notice of Cross Motion and supporting papers ____ ; Answering Affidavits and supporting papers 18 - 21 ; Replying Affidavits and supporting papers ; Other ; (~Jid llrlel helll jjig COUli~d ill :HIPpO!' lliid oppMed to Ille jllotiOl~ it is, ORDERED that this motion (00 I) by the plaintiff for an order pursuant to Real Property Actions and Proceedings J ,aw § 1321 for leave to enter a default judgment as against the defendants and an order of reference appointing a referee to compute: and pursuant 10 CPLR 3025 (b) for leave to amend lhe caption of the summons and complaint is granted; and it is further ORDERED that this motion (002) by the defendant Willie 1. Walker for an order pursuant to CPLR 3012 Cd) extending his time to appear and answer and compelling the plaintitfto accept his proposed answer is considered and is denied; and it is further [* 2] u.s. Bank v Walker Index No.: 11-17456 Pg.2 ORDERED that Ellen Savino \,vithan office at 425 Broad Hollow Road, Melville, New York 11747 is appointed Referee to ascertain and compute the amount due upon the note and mortgage documents which this action was brought to foreclose, and to examine and repOli whether the mortgaged property can be sold in parcels; and it is further ORDERED that pursuant to CPLR 8003 (a) the Referee be paid the fee 01'$250.00 for the computation orthe amount due the plaintitI; and it is further ORDERED that by accepting this appointment the Referee certifies that he/she is m compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including but not limited to, section 36.2 (c) ("Disqualifications from appointment") and section 36.2 (d) ("Limitations on appointments based upon compensation"); and it is further ORDERED that the caption of this action hereinafter appear as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK US BANK NATIONAL ASSOCIATION, Plaintiff, -against- WILLIE J. WALKER; ASSET ACCEPTANCE LLC; CACH LLC; CLERK OF THE SUFFOLK COUNTY DISTRICT COURT; COMMISSIONER OF TAXATION AND FINANCE; COUNTY OF SUFFOLK; FATMA KAZDAL; HSBC BANK NEVADA NA; MAUREEN BURCH A/KiA MAUREEN BURCH; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; PEOPLE OF TIlE STATE OF NEW YORK; PERSOLVE LLC; PIEDAD WETHERINGTON; TASKIN KAZDAL; WR MARRANS SONS INC; Defendants. This is an action to foreclose a mortgage on residential real property known as 3430 Great Neck Road, Amityville, New York 11701 (the subject property). Willie J. Walker (the defendant mortgagor) allegedly executed a fixed rate note dated April 17,2007 (the note) in favor of Lend America (the lender) agreeing to pay the principal sum of $316,499 at the rate of 6.50% beginning on June I, 2007 through to May 1, 2037, the maturity date. To secure said note, the defendant mortgagor executed a mortgage (the subject ill0l1gage) of the same date on the subject property. The note bears an undated endorsement without recourse by the lender to US Rank, NA (the plaintiff). The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for the lender and its successors and assigns and that for the purposes of recording the mortgage MERS was the mortgagee of record. MERS as nominee for the lender allegcdly transferred the mortgage and note to the plaintiITby assignment dated June 9, 201 I. The defendant mortgagOl' allegedly defaulted on his monthly payment of interest on October I, 2010 and each month thereafter. The plaintiff allegedly sent the defendant mortgagor a notice of default dated December 8, 2010, as \vell as a 90-day notice dated October 19, 20]0 pursuant to RPAPL § 1304. The defendant mortgagor allegedly failed to cure his default. [* 3] U.S. Bank v Walker Index No.: 11-17456 Pg.3 The plaintilTeommenccd the Instant action by the liling ofa summons and complaint on July I. 2011 None of the defendants have filed an answer. According to the records maintained by the Court's computerized database. a settlement conference was held in the Specialized Mortgage Foreclosure Conierence Part all September 28, 2011. These records also show that 110ticeof the conference was mailed in accordance v·,'iththe court's standard practice to the defendant mortgagor at the subject property and that it \'vas not returned 10 lhe court as undeliverable. On September 28, 2011. however, this case was marked to indicate that there was no appearance or panicipation from the defendant mortgagor. As a result, this case was refen-ed to IAS Part 39. Accordingly. there has been compliance with CPLR 3408 and no rurlher settlement conference is required. The plaintirfnow moves by notice ormation for, inter alia, an order appointing a referee to compute and an amendment of the caption. In support of the motion. the plall1titf submits, among other things, the summons and complaint, aftidavits of service, the notc and mortgage, the assignment, and an affidavit of merit from an officcr of the plaintiff. In his affidavit of merit, the plaintirrs officer alleges, intcr alia, that the note and subject mortgage were assigned to the plaintiff by instrument dated June 9, 2011. According to the officer. the plaintiff sent the required 90-day notice to the defendant mortgagor prior to commencing this action, and the loan was reviewed, if applicable. for a possible loan modification pursuant to federal legislation. The plaintiff's officer further alleges that the factual allegations set forth in the complaint are true to his kno"vledge except as to those matters which are alleged upon information and belief. In the complaint, the plaintiff alleges, inter alia, that it is the owner and holder of the subject mortgage and the note and that it has complied with the provisions of section five hundred ninety-Five-a of the Banking Law as well as section six-L or six-M or the Banking Law. The defendant mortgagor now moves for an order pursuant to CPLR 3012 (d) extending his time to appear and answcr and compelling the plaintiff to accept his proposed answer. The submissions in support 0[thi5 motion include an affidavit from the defendant mortgagor and a proposcd vcrified answcr. In his affidavit, the defendant mortgagor alleges that he did not ans\ver the complaint because he was initially unable to afford an attorney to represent him. He also alleges that he \vas engaged in ncgotiations with the plaintiff at the time of service and that he had '-rcceived assurances" that a decision would be made with respect to a possible loan modilicalion. The defendant mortgagor contends that his communications with the plaintiff should have extended his time to answer. In the proposed answer. the defendant mortgagor allcges. among other things. lack of standing: failure of lhe plaintifTto engagc in a good-faith effort at loss mitigation: and a predatory loan. In opposition to the deJCndant mortgagor" s motion., thc plaintiff contends that the defendant mortgagor has neither a reasonable excuse for his default in answering nor a valid deiense to this foreclosure action. The plaintilT also contcnds that since a notice of appearance was intcll)Oscd by his counsel prior to this motion. the defendant mortgagor thereby waived any potemial defenses such as standing which could only have been raised by an answer or by motion. [* 4] U.S. Bank v Walker Indcx No.: 11-17456 Pg.4 A plaintiff in a mortgage foreclosure action establishes a prima facie case. as a matte! 01 law. by submission oflhe mortgage. the mortgage note. bond or obligation. and evidence of dcflwlt (see. Valley Nat'l Bank v IJeutsche, 88 AD3d 69] [2d Dep! 2011 L Wells Fargo Bank v Karla, 71 A03d 1006 [2d Dcp! 2010]; Wash. Mut. BalIk FA v O'Connor, 63 i\D3d 832 [2d Dcpt 20091). The burden then shifts to the defendant to demonstrate "the existence of a triable issue of fact as to a bona fide defense to the action. such as waiver. estoppel. bad faith. fraud. or oppressive or unconscionable conduct on the part of the plaintiff' (Capstone Bus. Credit, LLe v Imperia Family Realty, LLe, 70 AD3d 882, 883 [2d Oept 20101). In the instant case, the plaintifTproduced the executed note and mortgage, evidence of nonpayment. and the notice of default. The plaintiff also submitted, inter alia, an affidavitlrom an officer of the plaintiff whereby its is alleged that the plaintitfis still the holder of the note and mortgage, as well the assignment which predates the commencement of this action (see, U.S. Balik, N.A. v C()/~vmore, 68 AD3d 752 [2d Dept 2009]). As the plaintiff demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagor (see. HSBC Bank USA v Merrill, 37 A03d 899 [3d Oept 2007]). Accordingly. it was incumbent upon the defendant mortgagor to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see, Argent Mtge. Co., LLe v Mentesallll, 79 AD3d 1079 [2d Dept 2010]; Aames Funding Corp. v HoU.\"tOll, 4 A03d 692 [2d Dept 2007]). 4 Turning to the issues raised by the defendant mortgagor's mOlion, it is well settled that a "defendant who seeks to successfully oppose a motion for leave to enter a default judgment based on the failure to timely serve an answer and seeks leave to extend the time to appear or to compel acceptance of an untimely answer must provide a reasonable excuse for the default and for thc delay and show a potentially meritorious defense" (Deutsche Bank Nat'l. Trust Co. v Rudmlln, 80 AD3d 651, 652 [2d Ocpt 20111; see also, May v Hartsdale Manor Owners Corp., 73 AD3d 713 [2d Dcpt 2010]; ShuTJ'a v Sievernic!l, 2011 NY Slip Op 32064U [Sup Ct, Suffolk County, July 13. 2011, Cahalan, J.1). The determination of what constitutes a reasonable excuse lies within the sound discretion orlhe Supreme Court (see, Star Indus. Inc. v IllJlOvative Beverages, Inc., 55 AD3d 903 [2d Oept 2008]). Vague. nonspecilic and uncorroborated factual assertions, upon \vhich a claim of a reasonable excuse for a default are predicated, are generally insufficient to satisfy the reasonable excuse requirements (sce. Wells Fargo Balik v Lillzellberg, 50 A03d 674l2d Dcpt 2008]: Canty v Gregar)'. 37 AD3d 508 [2d Dept 2007]). While claims of ongoing settlement negotiations between a defendant and a plaintitTto a pending action may, under certain circumstances, constitute a reasonable excuse for a default in answering (see. Perfil1"1llanceCOllstr. Corp. v Huntington BltIg., LLC, 68 A03d 737 [2d Dcpt 1009]). the movant must demonstrate a good faith belief in settlement that is supported by substantl,1l evidence (see, Armstrong Trading Ltd. v MBM Enters. 29 A.D3d 835 [2e1Dept 20061l. and ajustiliable reliance thereon (see. Am. Shoring, Inc. I' D.C.A Constr., Ltd., IS i\D3d 431 [2d Oept 1005]; cf, Scarlett l' McCarthy. 2 AD3d 623 [2d Dept 2003]). Concerning foreclosure actions. claims that the mortgagor contacted the lender in an attempt to secure a loan modiJication agreement are, without more. insufticient to establish a good faith belief in settlement and the concomitant reasonable excuse for the mortgagor's failurc to answer the summons and complaint (see, 01leWest Balik FSB v Berry. 25 Misc3d l218A lSup Ct. SutTolk County, Oct. 13. 2009. [* 5] U.S. Bank v Walker Index No.: 11-17456 Pg. 5 Whelan, J]). Further. confusion or ignorance about legal procedures have been likewise held not to constitute reasonable excuses for the failure to answer or othenvise appear (see, US Balik v Nat'l A . ¢ ¢. v Siavinsid, 78 J\J)3d 1167 i2d Dept 2010]: Balik of NY l' Jayaswal. 33 Misc3d 1214A rSup m. Ct. Suffolk County. Oct. 17.2011, Whelan. J.D. Under the circumstances presented here. the Court finds that the conclusory allegations or settlement negotiations do not constitute a reasonable excuse for defendant mortgagor's lengthy default (see, Balik oIN. Y. MelloJlv Izmidigil, 88 AD3d 930 [2d Dept 2011 J; Swedbank, AB, N. Y. BrlIne" v Hale Ave. Borrower, LLC, 89 AD3d 922i2d Dept 201 q; V.s. Blink, N.A. v BueltllerHowes, 201 () NY Slip Op 31151 U l Sup Ct, Greene County, May 14, 20 J 0, "I'eresi, J.]; Emigrant Mtge. Co. v Abbey, 2011 NY Slip Op 30600U ISup Ct. Quecns County, Mar. 14,20 11, McDonald, l]). Thc defendant mortgagor has attempted to partially place the blame for its default in answering upon th0 rlaintin~ however, hc was already in default for approximately two months by the time this case was assigned to the Specialized Mortgage Foreclosure Conference Part (see, Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2d Oept 2011], Bethune v Prioleau, 82 AD3d 810 [2d Dept 2011}; .May v Hartsdale Manor Owners Corp., 73 AD3d 713, supra). In thiS casc, the defendant mortgagor's proffered excuses for not interposing a timely answer have been judicially determined to be unreasonable (see, People by Abrams v SClulds, 195 AD2d 778 l3d Dept 1993]; A wad v Severino, ]22 AD2d 242 [2d Dept 1986J; Long Is. MiJlima/~v Invasive Surgery, P.c. v Lester. 12 Misc3d 1183A [App. Term, I" Dept, 2006]; HSBC Bank USA, N.A. v Fuller, 2011 NY Slip Op 30749U [Sup Ct, Albany County, Mar. 31,2011, Teresi, J.J). Specifically. the defendant mortgagor's unsubstantiated, self-serving claims that the plaintiff made "false promises" which "luIled [him] into a state of well-being" which made him believe that he would not have to answer the complaint, are insufficient to establish a reasonable excuse for the default (see, Bank of NY v Jayaswal. 33 Misc3d 1214A, supra). Moreover, the eonclusory assertions contained in plaintiffs counsel's affirmation that discovery is needed are insufficient to defeat the plaintiffs motion (see, Jp Morgan Chase Balik, N.A. v Agllello, 62 AD3d 662 [2d Oept 2009]; HSBC Bank USA, N.A. ~'Fuller, 2011 NY Sllp Op 30749U, supra), Accordingly, the defendant mortgagor has faikd to establish that he should bc excused Jj'om timely filing an answer. ct:, Since the defendant mortgagor failed to alTer a reasonable excuse, it is unnecessary to consider whether he dcmonstrated the existence of a potentially meritorious dcfense (see, Deufj·che Bank Nat'l. Trust Co. v RudllUIIl, 80 AD3d 651, supra: HSBC Balik USA, N.A. l'Roldau.80 AD3d 566 [2d Dept 20 III; Baak of Am., NA. v Ga",rie. 2011 NY Slip Op 30658lJ [Slip Ct. Queens County. Feb. 25. 2011, Agate. J.]). In any event, the defendant mortgagor railed to demonstrate possession orany meritorious defense (see. Levy v Prime East /5,1., LLC 89 AD3d 1066 [2d Dcpt 2011J: Valley Nat'l Bank v Deutsche. 88 AD3d 691 [2d Dept 2011[: Argent illtge. Co., LLC l'Meutesalla. 79 AD3d 1079. supra: Jp Morgau Chase Balik, N.A. v Leschills. 2011 NY Slip Op 32861 U rSup C1. New York County. Oct. 18. 20 I L Madden, J l U.S. Balik Nat'l Assn. vSlavillski. 78 A03d 1167 l2d Dept 2010]: Balik o/NYl' Jay"sw{t!. 33 Misc3d 12141\. supra: 10 COllllor Lalle v C. Connor Lalle Assoc., LLe. 2011 NY Slip Op 31439U iSup C1. Suffolk County. May 10.2011. Martin. J.]). [* 6] U.S. Bank v Walker Index No.: 11-]7456 Pg.6 Based upon the foregoing, the motion for leave to enter a default judgment against all the defendants, none of which has answered, and for an order of reference is granted (see, RPAPL 0 132]; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, supra). Correspondingly, the motion by the defendant mortgagor for an order extending his time to appear and answer and compelllllg the plaintiff10 accept his answer is denied (see, id.). The branch of the instant motion wherein the plaintiff seeks an order amending the caption by excising the fictitious named defendants, John Docs and Jane Does, is granted pursuant to CPLR 1024. By its submissions, the pJaintilfestablishcd the basis for this reliefC\'ee, Neighborhood HOIiS. Servs. N. Y. City, fnc. v 1I4eltzer, 67 AD3d 872 [ld Dep1 2009]). AI[ future proceedings shall be captioned as indicated above. Accordingly, the plaintiiTs motion for an order of reference is granted and the defendant mortgagor's motion for an order extending his time to answer is denied. The proposed order appointing a referee 10 compute, as modified by the Court, has been signed simultaneously herewith. Dated: .::;,. !(f " j ::r'.. HOll. FINAL DISPOSITION DENISE F. MOLIA, l.S.C. X NON~FINAL DISPOSITION

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