Bank of N.Y. Mellon v Osback
Annotate this CaseDecided on March 25, 2015
Supreme Court, Kings County
The Bank of New York Mellon F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWMBS, INC., CHL MORTGAGE PASS-THROUGH TRUST 2006-3 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-3, Plaintiff,
against
Adolph Osback; CHASTITY GUTIERREZ; THE CITY OF NEW YORK TAX LIEN; BANK OF AMERICA, NA; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD JOHN DOE 1 TO JOHN DOE 25", said names being fictitious, the persons or parties intended being the persons, parties, corporations or entities, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.
11290/10
Atty for Plaintiff
Druckman Law Group PLLC
Stuart L. Druckman, Esq.
242 Drexel Avenue
Westbury, NY 11590
(516) 876-0800
For Defendants
Ralph Rivera, Esq. Ozone Park Management Corp.
109-02 Jamaica Avenue
Richmond Hill, NY 11418
Adolph Osback
1957 Central Drive Drive
East Meadow, NY 11554
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of The Bank of New York Mellon (hereinafter BNY or plaintiff), filed on October 14, 2014 under motion sequence number four, for an order: (1) appointing a referee to compute pursuant to RPAPL 1321; and (2) amending the caption.
Notice of Motion
Affirmation of Merit
Exhibit A-I
Proposed order of reference
Affidavit of non-party in opposition
BACKGROUND
On May 5, 2010, BNY commenced the instant residential mortgage foreclosure action by filing a summons, verified complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office.
The complaint alleges in pertinent part the following facts, among others. On December 5, 2005, defendants Adolph Osback and Chastity Gutierrez (hereinafter the mortgagors) executed and delivered a note (the subject note) to Countrywide Bank, N.A. (hereinafter Countrywide) promising to pay it the sum of $364,000.00. On that same date, the mortgagors executed and delivered to Mortgage Electronic Registration System (hereinafter MERS), as nominee for Countrywide, a mortgage on certain real property known as 39 Grant Avenue, Brooklyn, New York, Block 4112 Lot 36 (hereinafter the subject property) to secure the debt. On March 8, 2010, Countrywide assigned the mortgage to BNY by an assignment which was recorded with the City Register of the City of New York on May 5, 2009. Thereafter, the mortgagors defaulted on making payments due and owing on the subject note and mortgage. BNY commenced the instant action based on the mortgagors' default and their failure to cure it.
The Court is in receipt of an affidavit of Ralph Rivera submitted in opposition to BNY's motion. It reflects a filing date with the Supreme Court Kings County Motion Support Office on December 5, 2014. Ralph Rivera swears that he is not a defendant and that he is an interested party based on his ownership of Ozone Park Management Corporation, the current owner of the subject property. Although, BNY has not submitted a written objection to the opposition papers or submitted a reply to same, the papers are, nevertheless, disregarded. Mr. Rivera did not make a cross-motion for leave to intervene pursuant to CPLR 1012 or 1013. Absent such leave he is a [*2]stranger to the action. It is noted that his proffered opposition papers contains no evidence of his purported ownership interest of Ozone Park Management Corp. Nor its ownership of the subject property. Accordingly, no defendant has appeared, answered the complaint or submitted opposition to the motion.
LAW AND APPLICATION
BNY's Motion to Strike the Amend the Caption
BNY has requested that the commencement papers be amended by adding the names of Lebron Ocasio, Bridgette Ocasio, Jacqueline Ferraro, Carlato Vallejo, Renak Mitchell and John Mitchell instead of John Doe defendants No. 1 through # 6 and by striking all other John Doe defendants from the caption. BNY's request is supported by an affirmation of its counsel attesting to the fact that named individuals are either creditors or occupants of the subject property. It is further supported by affidavits of service of the commencement papers on these named individuals. BNY's counsel has also averred that other John Doe defendants are not necessary parties. Inasmuch, as there is no opposition to this branch of BNY's motion, and the court sees no prejudice to any party, the request is granted (see Deutsche Bank Nat. Trust Co. v Islar, 122 AD3d 566 (2nd Dept 2014) citing CPLR 1024 and Flagstar Bank v Bellafiore, 94 AD3d 1044 at 1046 [2nd Dept 2012]) and the names of John Doe defendants # 7 through # 25 are stricken pursuant to CPLR 3217 (d).
BNY's Motion for an Order of Reference
BNY also seeks an order appointing a referee to compute the amount due from the mortgagors. RPAPL 1321 provides in pertinent part as follows:
If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.
When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01[4][k] [note: online edition]).
On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (U.S. Bank Nat. Ass'n v Poku,118 AD3d 980 [2nd Dept 2014] citing CPLR 3215 [f]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2nd Dept 2014]).
The complaint in the instant action is verified by plaintiff's counsel pursuant to CPLR 3020 (d) (3) and not by BNY. Therefore, the complaint may not serve as an affidavit of BNY pursuant to CPLR 105 (u). The affidavit of merit is from Jason Ussery (hereinafter Ussery). [*3]Ussery has averred that he is authorized to sign the affidavit as a representative of New Penn Financial, LLC d/b/a/ Shellpoint Mortgage Servicing, the servicing agent for BNY. Ussery did not state what his relationship is with New Penn Financial, LLC, however, the Court takes notice that the words "Foreclosure Specialist" are handwritten under Ussery's notarized signature. The motion papers do not contain any documents demonstrating that New Penn Financial, LLC has authority to speak or act on behalf of BNY.
Accordingly, BNY's motion for a default judgment and an order appointing a referee pursuant to RPAPL 1321 is denied for failure to comply with CPLR 3215 (f) (HSBC Bank USA, N.A. v Betts, 67 AD3d 735 [2nd Dept 2009]). The denial is with leave to renew upon presentation of an affidavit in admissible form, submitted by the plaintiff or by an individual with proof of authority to speak and act for the plaintiff with personal knowledge of the relevant facts constituting the claim, the default, and the amount due (Id.).
Noted Irregularities within BNY's Motion Papers
Although BNY's motion papers contain documents behind each of the nine exhibit tabs labeled A through I, the affidavit of merit of its purported servicer does not identify or refer to any one of the annexed exhibits. The affirmation of BNY's counsel, on the other hand, does make reference to exhibit A, D, E, and F but does not mention exhibits B, C, G, H and I. Therefore, the documents contained behind labels B, C, G, H and I are annexed without explanation. In paragraph eleven of his affirmation, BNY's counsel describes exhibit A as a copy of the 90-day notice. However, exhibit A does not contain such a document, instead it contains the affidavit of merit of BNY's purported servicer. In paragraph nine and ten of his affirmation, BNY's counsel avers that a notice issued pursuant to RPAPL 1303 and one issued pursuant to RPAPL 1320 are annexed as exhibits but he does state where or behind what exhibit tabs they can be located. In the interest of judicial economy, the Court stopped its reviewing of the instant motion papers after finding the above referenced issues.
In the event that BNY seeks the same relief in a subsequent motion, it is directed to annex the instant decision and order with its motion papers. It is further directed to set forth within the sworn allegation of fact submitted in support of the motion the exact location where each annexed exhibit can be located. It is further directed to not attach any exhibit that is not accompanied by an explanation for its inclusion with its motion papers.
CONCLUSION
That branch of BNY's motion seeking an order adding the names of Lebron Ocasio, Bridgette Ocasio, Jacqueline Ferraro, Carlato Vallejo, Renak Mitchell and John Mitchell instead of John Doe defendants # 1 through # 6 to the commencement papers is granted.
That branch of BNY's motion seeking an order John Doe striking defendants # 7 through # 25 from the caption is granted.
That branch of BNY's motion seeking an order appointing a referee to compute is denied without prejudice.
The foregoing constitutes the decision and order of the court.
ENTER———————————————————————-x
J.S.C.
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