Brooks-Smith v Washington Mut. Bank

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Brooks-Smith v Washington Mut. Bank 2012 NY Slip Op 32621(U) October 12, 2012 Supreme Court, New York County Docket Number: 100308/12 Judge: Carol R. Edmead 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. NNEDON 1011712012 [* 1] SUPREME COU 3T OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY 4 chise: & 2 PART ) c The following papers, numbered 1 to MOTION CAL. NO. were read on this motion to/for Notice of Motion/ Orc ?rto Show Cause - Affidavits - Exhibits I ... Answering Affidavits - Exhibits Replying Affidavits 3 5 PAPERS NUMBERED I Cross-Motion: C l Yes rd No Upon the foregoing pq pers, it is ordered that this mation NEW YORK Motion sequence 00 1 iiid motion sequencc 002 are , , n s o E g , ~ ~ ~ and~ ~ ~ ~ ~ ~ i ~ o decided herein. In accordance vith the acconipanying Memorandum Decision, it is hereby ORDERED th .t plaintiff Derryck Brooks-Smith's motion for summary judgment (seq. 001) based on the alle ;ed default of defendant SP Morgan Chase Bank, N.A. as acquircr of assets and liabilities of Was1 ington Mutual Bank is denied; and it is further ORDERED th .t the motion by defcndant JP Morgan Chase 13ank, N.A. as acquircr of assets and liabilities o 'Washington Mutual Bank (scq. 002) is granted in its cntirety and plaintiff Derryck Brooks- Smit 's complaint hereby is dismissed; and it is further ORDERED th t the Clerk may enter judgment accordingly; and it is further ORDERED th t counsel for defendant JP Morgan Cliase Bank, N.A. shall servc a copy of this order with notice ~fentry upon all parties within 20 days of this order. This constitutt ; the decision and ordcr oftlie court. L / Dated: c , S / / & J. S. C. Check one: p / DISPOSITION FINAL Check if approp iate: LI T [-:.I DO NOT POST SUBMIT C RDER/ JUDE. C 3 L? REFERENCE SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35 X _1_-__1________-_--1_______II___________----- -----~---------------- DERRYCK BROOKS-SMITH, Index No. 100308/2012 Plaintiff, DECISION/ORDER Motions Seq. 001 and 002 -againstWASHINGTON MUTUAL BANK, and CHASE BANK, N.A., Defendants. Defendant JP Morgan Chase Bank, N,A.,s/h/a Chase Bank, N.A. ( Chase ) as acquirer of certain assets and liabilities of defendant Washington Mutual Bank (L WaMu ), moves pursuant to CPLR 321 1 (a)(4) and (a)(7) to dismiss the complaint of the plaintiff Derryck Brooks-Smith ( plaintiff ). Plaintiff moves separately for summary judgment. Background Facts This matter arises from a foreclosure proceeding brought in 2008 by WaMu (Chase s predecessor) against plaintiff in this action2 (the 2008 foreclosure action ) io foreclose a mortgage on the real property located at 36 Hamilton Terrace, New York, New York (the property ). After plaintiff failed to answer or otherwise move with respect to the complaint, this court entered an order dated December 23,2008, appointing a referee to compute the amount due on the note and thereafter directed ChasdWaMu to move for a judgment of Yoreclosure (Orders dated October 25,201 1, and June 5,2012). Motion sequence 00 I and motion sequence 002 are consolidated for joint disposition and decided herein. See JPMorgan Chase Bank v Derryck Brooks-Smith, Index No. 107773/2008, [* 3] In January 20 12, four years after the commencement of the 2008 foreclosure action, plaintiff commenced this action against Chase and WaMu, alleging, in essence, that Chase (or WaMu) lacks standing to foreclose on the property as it is not the holder of the note or mortgage, and thus, not a real party in intere~t.~ Plaintiff seeks the court s determination that the deed is voided and the promissory note rescinded and that he is the fee simple title holder of the property. Chase now moves to dismiss and plaintiff moves for summary judgment. Chase S Motion In its motion, Chase argues that plaintiffs complaint should be dismissed, first, because Robert Arthur King ( King ), appointed by plaintiff as his attorney-in-fact for purposes of real estate transactions, has no authority to file a complaint on behalf of plaintiff who appears pro se. Further, dismissal is warranted pursuant to CPLR 321 1 (a)(4), since the 2008 foreclosure action is currently pending between the same parties on the subject of the lender s right to foreclose upon the property. And, plaintiffs allegation in this action that Chase lacks of standing is essentially a counterclaim or defense that should have been asserted in the foreclosure action. Furthermore, the complaint should be dismissed pursuant to CPLR 321 1 (a)(7) for failure to state a cause of action. Plaintiffs allegations that he had never granted mortgage to a lender First Franklin Financial Corporation are irrelevant for purposes of this [or the 2008 foreclosure action], since plaintiff purchased the property from Robert Horsford after Horsford fully paid his mortgage held by First Franklin (exhibit A to complaint). Plaintiff opposes the motion arguing that his newly executed power of attorney, dated Plaintiffs complaint alleges various wrongs and violations purportedly committed by WaMu and/or Chase, including improper transfer of the mortgage, securities fiaud, embezzlement, violation of the Service Performance Agreement due to its poor bookkeeping of accounts and fraudulent concealment. 2 [* 4] May 6,20 12, authorizes King to represent plaintiff concerning claims and litigation ; the 2008 action is no longer pending, as it lapsed when Chase failed to mark it as ? related action on the request for judicial intervention (RJI) form, filed on February 9,2012 ih connection with its instant motion to dismiss; the court should permit plaintiff to raise issues cpmmon to the entire mortgage industry, such as robo-signing, fraud, misrepresentation, securities fraud ; and, I Chase s notice of pendency dated June 2,2008 has expired on June 2, 201 1, and plaintiff has not moved for renewal pursuant to CPLR 65 13. Chase responds that plaintiffs new power of attorney does not cure,thedeficiency in plaintiffs initial filing since at the time of the filing the complaint, King did not have proper authority to commence this action against Chase. Further, Chase s failure to identify the 2008 action on the M form does not affect the status of such a ~ t i o n . ~ plaintiff failed to raise his I And, claims, either as counterclaims or affirmative defenses, in the related 2008 foreclosure action, when he defaulted in that action, Finally, CPLR 65 16 (a) permits Chase to file another notice of pendency, even though the original notice has expired. PlaintiffS Motion Plaintiff seeks summary judgment on the ground that defendants are in default based on [his] summons and complaint. (Plaintiff Affidavit, 72). In opposition, Chase argues that it did not default in the instant action as it properly served its pre-answer motion to dismiss on February 9,2012,30 days after the service of the I complaint on January 10,20 12, and plaintiff [does not dispute that he] received Chase s motion The court records reflect that after the filing of the instant motions in this action, a status conference was held on June 5,2012 wherein this court directed Chase to move for a foreclosure of the property within 21 days of that date (see this court s Order dated June 5 , 2012). 3 [* 5] to dismiss. Furthermore, since there is another action pending between the same parties concerning the same matter, i e . , the lender s standing to foreclose, adjudication of the instant action may result in inconsistent results. Plaintiff responds, again, that King is authorized to litigate on plaintiffs behalf and the 2008 is not pending because Chase did not so indicate on the RJI sheet. Discussion P l a i n t r s Motion Plaintiff failed to establish his entitlement to summary judgment. Plaintiff submitted no evidence in support of his argument that defendants are in default (plaintiff Affidavit, 7 2 ) .And in any event, the record shows that Chase properly served its pre-answer motion to dismiss on February 9,20 12, 30 days after the service of the complaint on January 10,20 12, and plaintiff does not dispute that he was served with Chase s motion. Thus, plaintiffs motion for summary judgment is denied. Chase s Motion As an initial matter, the court notes that King s signature on plaintiffs complaint does not warrant striking of the pleading, It is well settled that generally an individual who exercises the right to act pro se cannot then appear through an attorney-in-fact or other person not authorized to practice law (see Salt Aire Trading LLC v Sidley Austin Brown & Wood,:LLP, 93 AD3d 452, 940 NYS2d 222 [ l Dept 20123, citingf owerserve Intl., Inc. v Lavi, 239 F.3d 508, 514 [2001]; Whitehead, at 370,777 NYS2d 917). GOL 5-1502A, which confers general authority upon an agent with respect to real estate transactions, and permits an attorney-in-fact to prosecute or defend an action arising from a real estate transaction on behalf of his or her principal (GOL 5- 4 [* 6] 1502A[lo]), does not apply to representation as an attorney-at-law. Thus, it cannot be read to displace the provisions of Judiciary Law $478, which, with certain exceptions not relevant here, make it unlawful for anyone other than a person who has been admitted to practice law in New York and has taken the requisite oath, to appear in the courts of record of this state as an attorney-at-law (see Whitehead v Town House Equities, Ltd., 8 AD3d 369,777 NYS2d 917 [2d Dept 20041). Here, while King, as plaintiffs attorney-in-fact, has no authority to file a complaint on I behalf of plaintiff who appears pro se, the complaint is also signed by plaintiff on his own behalf. Thus, the court declines to strike plaintiffs pleading on this ground. Notwithstanding the foregoing, the court finds that plaintiffs complaint should be dismissed. First, the dismissal is.warranted under CPLR 321 1 (a)(4). Pursuant to CPLR 321 1 (a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action (Cherico, Cherico & Associates v Midollo, 67 AD3d 622, 622 [2d Dept 20091, citing Whitney v Whitney, 57 NY2d 73 1, 732 [ 19821). Here, the 2008 foreclosure action, brought by WaMu as a predecessor of Chase against plaintiff, is essentially between the same parties. Furthermore, since plaintiff in this action challenges Chase s standing to foreclose the mortgage on the subject property, plaintiffs instant action arises from the 2008 foreclosure action, Therefore, the dismissal of this action is warranted on this ground alone. Furthermore, plaintiff s complaint must be dismissed pursuant to CPLR 32 1 1 (a)(7) for 5 [* 7] failure to state a cause of action. On a motion to dismiss made pursuant to CPLR § 321 1, the court must accept the facts as alleged in the complaint as true, accord plaintiffl] the benefit of every pussible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory (Nonnon v Ct of New York,9 NY3d 825 [2007]; Leon v Martinez, 84 NYpd 83,8748,614 iy NYS2d 972, 638 NE2d 5 11 [ 19943). The standard on a motion to dismiss a pleading for failure to state a cause of action is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Leviton Manufacturing Co., Inc. v Blurnberg, 242 AD2d 205, 660 NYS2d 726 [lst Dept 19971; Stendig, Inc. v Thorn Rock Realty Co., 163 AD2d 46,558 NYS2d 917 [lst Dept 19901). It is well settled that foreclosure of a mortgage may be brought only by one who has legal or equitable interest in such mortgage (see Katz v East-Ville Realty Co., 249 AD 2d 243,672 NYS2d 308 [ 1st Dept 19981). Where standing is put into issue by a defendant s answer, a plaintiff must prove its standing if it is to be entitled to relief (Wells Fargo Bank Minnesota, Nut. Ass nv Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 20071). However, where a defendant in a foreclosure action does not challenge a plaintiffs standing, the plaintiff may be relieved of its obligation to prove that it is the proper party to seek the requested relief (id.). I Here, it is undisputed that plaintiff failed to answer the complaint in the 2008 foreclosure I The Court of Appeals has held that an argument that a plaintiff lacks standing, if not asserted in the defendant s answer or in a pre-answer motion to dismiss the complaint, is waived pursuant $ CPLR 321 I(e) I (Fossella v Dinkins, 66 NY2d 162,485 NE2d 10 I7 [ ISSS]). Under CPLR 32 I I (e), any objection or defense based, inter a h , on lack of standing must be raised in an answer or in a motion made before the answer is due, or it is waived (see Wells Fargo Bank Minnesota, Nat. Ass n v Mastropaolo, 42 AD3d 239; Caprer v Nussbaum, 36 AD3d 176,825 NYS2d 55 [2d Dept 20061). 6 [* 8] action and the court appointed a referee (Order dated December 23, 2008) and thereafter directed that Chase move for a judgment of foreclosure and sale (Order dated June 5,2012). Thus, plaintiff cannot now, four years after the commencement of the 2008 foreclosure action, challenge Chase s standing to foreclose in a separate action. And in any event, plaintiff does not dispute that he executed and delivered to WaMu a note and a mortgage dated August 23,2007, Chase has alleged that it is an acquirer of WaMu s assets and liabilities in a transaction that was facilitated by the Federal Deposit Insurance Corporation ( FDIC ), and thus, has legal and equitable interest in the foreclosure of the mortgage on the subject property. Since plaintiff failed to challenge this allegation in its answer to the complaint in the foreclosure action, Chase is relieved of its obligation to prove in this action that it is the proper party to seek the requested relief (Wells Fargo Bank MinnesotaJNut. Ass n v Mustropaolo, 42 AD3d 239, supra). Thus, even accepting the facts as alleged in plaintiff s complaint as true, and according plaintiff the benefit of every possible favorable inference, the court holds that plaintiff failed to state a cause of action based on lack of standing. And, deeming the pleading to allege whatever can be reasonably implied from its statements, the court determines that no other cause of action is sustained (see Stendig, hac. v Thorn Rock Realty Co., 163 AD2d 46 [ 1st Dept 19901; Leviton Manufacturing Co. Inc. v Blumberg, 242 AD2d 205, 660 NYS2d 726 [ 1st Dept 19971). Accordingly, Chase s motion is granted in its entirety and plaintiff s complaint is dismissed. Conclusion Based on the foregoing, it is hereby 7 [* 9] O R D E E D that plaintiff Derryck Brooks-Smith s motion for summary judgment (seq, 001) based on the alleged default of defendant JP Morgan Chase Bank, N.A. as acquirer of assets and liabilities of Washington Mutual Bank is denied; and it is further ORDERED that the motion by defendant JP Morgan Chase Bank, N.A. as acquirer of assets and liabilities of Washington Mutual Bank (seq. 002) is granted in its entirety and plaintiff Derryck Brooks-Smith s complaint hereby is dismissed; and it is further ORDERED that the Clerk may enter judgment accordingly; and it is further ORDERED that counsel for defendant JP Morgan Chase Bank, N.A. shall serve a copy of this order with notice of entry upon all parties within 20 days of this order. This constitutes the decision and order of the court. Dated: October 12, 2012 Hon. Carol R. Edmkad, J.S.C, HON. CAROL EDM ¬AD FILED NEW YORK COUNTY CLERK S OFFICE 8

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