Trustco Bank v Franklin

[*1] Trustco Bank v Franklin 2012 NY Slip Op 52128(U) Decided on November 15, 2012 Supreme Court, Albany County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 2012
Supreme Court, Albany County

Trustco Bank, Plaintiff,

against

John E. Franklin; DARLENE B. FRANKLIN; EVERINE TASCIA FRANKLIN; and "JOHN DOE" (said name being fictitious, it being the intention of the plaintiff to designate any intention of the plaintiff to designate any and all persons in possession of the mortgaged premises), Defendants.



2360-09



APPEARANCES: OVERTON, RUSSELL, DOERR & DONOVAN, LLP

Attorneys for Plaintiff

(Linda L. Donovan, Esq.)

19 Halfmoon Executive Park Drive

Clifton Park, New York 12065

Michael C. Lynch, J.

By ex parte application filed November 9, 2012, plaintiff seeks an order vacating a judgment of foreclosure entered September 22, 2010.

Notably, by Decision and Order (Lynch, J.) dated October 12, 2012, the Court denied plaintiff's application for the same relief, rejecting the explanation "plaintiff has decided to not pursue this matter." Notably, plaintiff also failed "to explain whether the former homeowner remains in the premises and whether plaintiff has met its statutory obligation to maintain the premises since obtaining a [*2]judgment of foreclosure".

Now, plaintiff explains that the property has been vacant since the commencement of this action; that no bids were received at the public auction held on November 9, 2010; that there are substantial real property tax liens on the property; and that plaintiff completed repairs "to maintain the property to the satisfaction of the City of Albany" (see affidavit of Linda Donovan, Esq. dated November 8, 2012). Given this context, plaintiff essentially maintains it is "unfair" to require it to continue to maintain the property and seeks to be relieved of this obligation.

As part of a continuing effort at reform relating to foreclosure actions on home mortgage loans, the Legislature enacted §1307 of the Real Property Actions and Proceedings Law requiring a plaintiff in a foreclosure action to maintain the property upon the entry of a judgment of foreclosure and sale (Added L. 2009 C.507 §6 eff April 14, 2010; see Legislative Memorandum relating to Ch. 507,

L 2009 Vol. 2 Ch. 507 at 1839, 1842-1844). The statute requires a plaintiff, post-judgment, to maintain the property in accord with certain provisions of the New York property maintenance code (RPAPL §1307[5]). This legislation was intended to address the harmful impact on neighborhoods arising out of abandoned foreclosure property (see Legislative Memorandum, supra, at 1844). Notably, the statute in no way diminishes the obligations of the mortgagor.

Given the statutory objective, the Court finds plaintiff's application unconvincing. This statute was in effect for approximately five months when judgment was entered in plaintiff's favor. Only one public auction has been held and two years have transpired without any further effort to transfer the property. Moreover, plaintiff has documented only limited maintenance repairs, apparently expending $461.30 during this period. On balance, plaintiff's duty to maintain the property in furtherance of the statutory objective of preserving the State's neighborhoods, outweighs the maintenance burden imposed.

Accordingly, it is hereby

ORDERED, that the motion is denied.

This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to attorneys for plaintiff. The original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220.

Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry. [*3]

SO ORDERED!

ENTER.

Dated: Albany, New York

November, 2012

___________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

(1)Affidavit of Linda L. Donovan, Esq. dated November 8, 2012 with Exhibits "A" - "C".