Stasichin v US Bank N.A.
Annotate this CaseDecided on July 6, 2015
Supreme Court, Suffolk County
Daniel Stasichin and SALVATORE GERRATTO, III, Plaintiffs,
against
US Bank National Association as Trustee for CSAB 2006-3 and TOWN SUPERVISOR OF THE TOWN OF BABYLON, Defendants.
24579/14
RAYMOND S. VOULO, ESQ.
Atty. For Plaintiffs
145 Willis Ave.
Mineola, NY 11501
Thomas F. Whelan, J.
Upon the following papers numbered 1 toread on this ex-parte applicationfor a default judgment; Notice of Motion/Order to Show Cause and supporting papers 1 -; Notice of Cross Motion and supporting papers; Opposition papers[*2]; Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this ex-parte application (#001) by the plaintiffs for an order awarding them a default judgment on their complaint in this action for declaratory relief pursuant to RPAPL § 1501(4) is considered thereunder and under CPLR 3215 and is denied.
The plaintiffs commenced this action to discharge of record an August 1, 2006 mortgage given by plaintiff, Salvatore Gerratto, III., to Continental Mortgage Bankers. Plaintiff, Daniel Stasichin, is the apparent transferee of the premises encumbered by the mortgage. The August 1, 2006 mortgage was the subject of a 2007 mortgage foreclosure action commenced by the defendant, U.S. Bank National Association as Trustee for CSAB2006—3. The plaintiffs allege that said foreclosure action was withdrawn and that the time to commence another has expired. The plaintiffs thus seek an order cancelling and discharging of record, the August 1, 2006 mortgage pursuant to RPAPL § 1501(4). Neither of the defendants appeared herein by answer or otherwise following service of the summons and complaint upon them. The plaintiffs now move for a default judgment on their complaint. For the reasons stated, the motion is denied.
Entitlement to a default judgment rests upon the plaintiff's submission of 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 (see CPLR 3215[f]; Todd v Green, 122 AD3d 831, 997 NYS2d 155 [2d Dept 2014]; Oak Hollow Nursing Ctr. v Stumbo,117 AD3d 698, 985 NY2d 269 [2d Dept 2014]; U.S. Bank, Natl. Ass'n v Razon, 115 AD3d 739, 981 NYS2d 571 [2d Dept 2014]; Dela Cruz v Keter Residence, LLC, 115 AD3d 700, 981 NYS2d 607 [2d Dept 2014]; Kolonkowski v Daily News, L.P., 94 AD3d 704, 941 NYS2d 663 [2d Dept 2012]; Triangle Prop. #2, LLC v Narang,73 AD3d 1030, 903 NYS2d 424 [2d Dept 2010]). While the quantum of proof necessary to support an application for a default judgment is not nearly as exacting as the proof required on a motion for summary judgment, some firsthand confirmation of the facts forming the basis for the claim must be presented (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 760 NYS2d 727 [2003]; Feffer v Malpeso, 210 AD2d 60, 619 NYS2d 46 [2d Dept 1994]). Accordingly, the plaintiff must advance facts from which the court may discern the plaintiff's possession of one or more viable claims for relief against the defaulting defendant in an affidavit or verified complaint (see CPS Group, Inc. v Gastro Enter. Corp., 54 AD3d 800, 863 NYS2d 764 [2d Dept 2008]; Resnick v Lebovitz, 28 AD3d 533, 813 NYS2d 480 [2d Dept. 2006]; Beaton v Transit Fac. Corp., 14 AD3d 637, 789 NYS2d 314 [2d Dept 2005]).
Claims for declaratory relief aimed at securing the cancellation and discharge of a recorded mortgage due to the expiration of all statutes of limitations applicable to foreclosure claims are governed by RPAPL § 1501(4). Absent a valid acceleration of a mortgage debt by one having authority to do, so such as the owner of the note or its agents, the statute of limitations [*3]does not expire with respect to unpaid installments which accrue within the six year period immediately prior to the commencement of a foreclosure action (see EMC Mtge. Corp. v Suarez, 49 AD3d 592, 852 NYS2d 791 [2d Dept 2011]). Where a claim for discharge is premised upon the dismissal of a prior foreclosure action, the plaintiff must demonstrate that such dismissal was on the merits and that the statute of limitations on any re-commencement has run (see Caliguri v JPMorgan Chase Bank, N.A., 121 AD3d 1030, 996 NYS2d 73 [2d Dept 2014]).
Here, the moving papers failed to demonstrate the plaintiffs' entitlement to the relief requested as their possession of cognizable claims against the defendants joined herein by service of process, has not been established. The plaintiffs have not demonstrated that the named defendant, U.S. Bank in its capacity as Trustee for CSAB 2006-3 is or was at any time, the holder of the mortgage note which the subject mortgage secures. The records maintained by the court in the prior foreclosure action reveal that the prior foreclosure action was commenced by US Bank National Association for CSAB 2996-3, an entity having an address in Ft. Mill, North Carolina and that the prior foreclosure action was marked "settled" rather than withdrawn as alleged by the plaintiffs (see Cohalan, J., Short Form Order of May 2, 2012). The plaintiffs' joinder of an entirely different entity, namely, U.S. Bank National Association, as Trustee for CSAB 2006-3, is insufficient to state a claim against the plaintiff in the former foreclosure action. In addition, the plaintiffs' service of the summons and complaint in this action upon a purported designated agent of the named defendant by delivery to such designated agent here in New York is insufficient to establish the jurisdictional joinder of that entity, whatever its relation to the subject mortgage may be, if any.
Moreover, the record is devoid of any indication that the statute of limitations ran following a proper acceleration of the mortgage debt by the holder of the mortgage note at the time of any such purported acceleration (see Wells Fargo, N.A. v Burke, 94 AD3d 980, 943 NYS2d 540 [2d Dept 2012]; EMC Mtge. Corp. v Suarez, 49 AD3d 592, supra). In this regard, the court notes that the plaintiffs predicate their claims for discharge upon allegations that the plaintiff in the prior foreclosure action, who is not named as a party to this action, is the only entity known to them to have an ownership interest in the mortgage note and mortgage. This interest purportedly arises under the terms of a written assignment of mortgage by Mortgage Electronic Systems Inc., the purported nominee of the original lender or its successor, which may be ineffective to transfer the note (see Citibank v Herman, 125 AD3d 587, 3 NYS3d 379 [2d Dept 2015]). Finally, the plaintiffs failed to demonstrate how the termination of the prior foreclosure action by way of "settlement" left the statute of limitations running on a new claim for foreclosure and sale by one possessed of the note and mortgage.
In view of the foregoing, the instant motion is denied.
DATED: __________________________________________
THOMAS F. WHELAN, J.S.C.
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