BAC Home Loans Servicing LP v Ahmed

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BAC Home Loans Servicing LP v Ahmed 2016 NY Slip Op 32567(U) December 12, 2016 Supreme Court, Suffolk County Docket Number: 40698/2009 Judge: Howard H. Heckman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Shon Form Order SUPREME COURT - STATE OF NEW YORK IAS PART 18 - SUFFOLK COUNTY Cop)7 PRESENT: HON. HOWARD H. HECKMAN JR., J.S.C. ----------------------------------------------------------------){ INDEX NO.: 40698/2009 MOTION DATE: 02/11/2016 MOTION SEQ. NO.: 003MG 004 MD BAC HOME LOANS SERVICING LP, Plaintiffs, -againstMAQSOOD AHMED. Defendants. ----------------------------------------------------------------){ PLAINTIFFS' ATTORNEY: ROSICKI, ROS ICKI & ASSOCIATES, P.C. 26 HARVESTER AVENUE BATA VIA, NY 14020 DEFENDANTS' ATTORNEYS: GRAUSSO & FOY, LLP 65A AIR PARK DR., STE. 12-13 RONKONKOMA , NY 11779 Upon the following papers numbered I to 32 read on this motion : Notice of Motion/ Order to Show Cause and supponing papers I- 13 #003 : Notice of Cross Motion and supporting papers_: Answering Affidavi1s and supporting papers~ 28 #004 : Replying Affidavits and supporting. papers 29-32 : Other_ : (and after hearing counsel in suppon and opposed to the motion) it is. ORDERED that this motion by plaintiff SAC Home Loans Servicing LP, seeking an order: I) restoring this action to the court calendar; 2) granting a default judgment; 3) substituting Everbank as the named party plaintiff in place and stead of BAC Home Loans Servicing, LP and discontinuing the action against defendants identified as "John Does"and "Jane Does"'; 4) deeming all nonappearing defendants in default; 4) amending the caption; and 5) appointing a referee to compute the sums due and owing to the plaintiff in this mortgage foreclosure action is granted; and it is further ORDERED that the cross motion by defendant Maqsood Ahmed seeking an order pursuant to CPLR 3404 & 32 12 denying plaintiff's motion and dismissing plaintiffs complaint is denied; and it is further ORDERED that pla intiff is directed to serve a copy of this order amendi ng the caption upon the Calendar Clerk of the Court; and it is further ORDERED that plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared and not waived further notice pursuant to CPLR 2 103(b)( l ),(2) or (3) within thirty days of the date of this order and to promptly file the affidavits of service with the Clerk of the Court. [* 2] Plaintiffs action seeks to foreclose a mortgage in the original sum of $275.200.00 executed by the defendant Maqsood Ahmed on August 18, 2004 in favor of America· s Wholesale Lender. On that same date the de fe ndant executed a promissory note promising lo re-pay the entire amount or indebtedness to the mortgage lender. On July 18, 2006 defondant Ahmed executed a second mortgage in the sum or $59,193.40 in favor of /\meriea·s Whofesu fe Lender and s igned a second prnmiss<>ry note promising to re-pay the amount borrowed to the mortgage fender. By Consolidation. Extension and Modification Agreement dated .Ju ly 18, 2006 the defendant executed a consolidated mortgage cr<!ating a single lien in the sum of $126.000.00 in l'avor of America ·s Wholesale I .ender. Defondant Ahmed executed a consolidated promissory note in the sum of $326.000.00 on the same date promising to re-pay America's Wholesale Lender the entire amoum of th...: consolidated loan . By Assignment dated October 5, 2009 Mortgage Electroni c Registration Systems. Inc. as nominee for Am erica's Wholesale Lender assigned the consolidated mortgage to plainti IT Bl\(' Home Loans Servicing, LP. Plaintiff claims that the defendant has defaulted in making time ly monthly mortgage payments since February 1, 2009. Plaintiff commenced this action by Ii ling a summons and complaint and notice of pendency with the Suffol k County Clerk's Office on October 28. 2009. Personal service of the summons and complaint upon defendant Ahmed was accomplished pursuant to C PLR 108(4) by anixing a copy or the summons and complaint and an RP APL 1303 notice on blue paper to the door of the mortgaged premises on November 3, 2009. with a follow-up mailing to the residential premises on November I 0, 2009. Service by publication upon defe ndant PRS Assets. LLC pursuant to CJ>l .R 3 16 was completed on January 27, 20 I I. /\It hough no court order was ever signed , court records indicate that the action was "purged" on December 30. 20 14. Plaintiff s motion seeks an order restoring thi s action to the court's active case calendar, granting a default judgment based upon the defendant' s failure to serve an answer and for the appointment of a relCrce . ln support of the cross motion and in opposition to plaintiffs motion. defendant Maqsood Ahmed submits an aftidavit stating that plaintiffs process server failed to serve an RPAPL 1303 upon him and therefore the complaint must be dismissed. Defendant also s ubmits an attorney's affi rmation together wi th a memorandum of law and claims that the lender's delay in prosecuting this foreclosure action req uires that the complaint be di smi ssed as abandoned s ince the action was .. purged" by the court and the bank delayed seeking to restore it within one yea r of the court marking. Finally, defendant contends that the plaintiff has foiled to submit suffi cient proof to show that it complied with mortgage notice of default service requirements and to prove that it has standing to maintain this action. In response, the plaintiff submits an attorney's affirmation and argues that no basis exists to di smiss the complaint as abandoned since the bank has consistently sought to prosecute its claims. Plaintiff contends that this action is merito rious bused upon the defendant's continuing default in making mortgage payments due under the terms ()('the parties· agreement and argues that the dcrendant has waived his right to assert the defenses he now raises in hi s cross motion since he defaulted in servi ng an answer. Plaintiff maintains that absent any demonstration of a reasonable excuse for his failure to timel y serve an answer and of a meritorious defense. no legal basis exists to vacate the defendant· s default in appearing and therefore the defendant has waived the defenses ht! is altcmpting to assen in his cross motion. -2- [* 3] With respect to plaintiffs claimed ··abandonment" of prosecution of this foreclosure action. its clear that the defaulting defendant· s reliance of the statutory standard set forth pursuant to CPLR l-W4 (.. Dismissal of abandoned cases··) has no relevance to this prosecution since that statute has no application to pre-note of issue cases (Paradiso '" St. John's hjJiscopol lfospilCll. 134 /\D3d I 002. 20 NYS3d 913 (2"u Dept., 2015); .c..;11h11rhon Reslora1io11 Co .. Inc. v. ViKlolli er al.. 5..+ /\D3d 750, 861 NYS2d 724 (2"d Dept.. 2008)). CPLR 32 16 (.. Want of Prosecution'') provides th<.: statutory framework and preconditions for seeking dismissal for pre-note or issue cases. /\tissue is the question of the plaintiffs delay in prosecuting this action and whether th<.: undisputed facts justily that the action be restored, after it was .. purged" from act ive court inventory by a clerk·s office notation on Det:ember 30, 2014. CPLR 32115 {c) provides that ··if the plaintiff fails to take proceedings for the entry of judgment within one year after a default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs. upon its own initiative or on motion unless sunicicnt cause is shovm why the complaint should not be dismissed." It is not necessary however for a plaintiff to actually obtain a default judgment within one year to avoid dismissal but rather it is enough that the plain ti ff timely takes preliminary steps toward a default judgment of foreclosure and sale by nH. ing for an order of reference to establish that it initiated w proceedings for entry of judgment (CPLR 3215 (c);Wells Fwxo Bank. NA. v. ( 'omhs. 128 AD3d 812, I 0 NYS3d 121 (2"J Dept.. 2015)). ··As long as proceedings are being taken which manifest an int1.:nt not to abandon the case but to seek a judgment. the action should not be subject to dismissal. .. (Brown 1 Rosedale Nurseries. 259 A02d 256, 686 N YS2d 22 (1 si Dept., I 999); A 11roru loan Services. LLC v. Gross. I 39 AD3d 772, 32 NYS3d 249 (211J Dept., 2016)). Plaintiff has submitted sufficient evidence to establish a reasonable explanation for its delay in prosecuting this action given the delays occasioned by additional service requirements by order of publication; changes in eoLn1 procedures as a result of administrative orders; the investigation necessary to determine damage done by the November, 2012 storm: mortgagee service transtCrs; and confirmation or other court settlement requirements. Plaintiff has also submitted evidence to establish it has a meritorious foreclosure action against the defaulting defendant who has failed to make any payments under the terms of tbe parties· agreement for more than seven years. Plaintiff's motion to restore the marking of this action as active must therefore be granted. 1• The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material question of fact from the case. The grant of summary judgment is appropriate only when it is clear that no material and triable issues of fact have been presented (Sillman v. Twe11tie1h Ccnrwy-Fox Film C'orp.. 3 NY2d 395 {1957)). The moving party bears the initial burden of proving entitlement to summary judgment ( Winewod 1 NYU Medical Center, 64 NY2d 851 ( I 985)). Once such proof has been proffered. the burden shifts to the opposing party who. to defeat the motion. must offer evidence in admissible form, and must set forth facts sufficient to require a trial or any issue of fact (CPLR .1212(h)~ Z11ckC'l'111an v. ( 'ity <~(Ne11· York, 49 NY2d 557 ( 1980)). Summary judgment shall only be granted when there arc no issues of material fact and the evidence requires the court to dir1.:cl a judgment in favor of the ir1ovant as a matter of law (Friend,· <dAninwls '" .· fssociotcd Fur Mam(/(1c111rers. 46 NY2d I 065 ( 1979)). 1 • Entitlement to summary judgment in favor of the foreclosing plaintiff is established. prima facie by the plaintiffs production of the mortgage and the unpaid note. and evidence or default in payment (sc!e Wells Farxo Bank NA. '" Erahoba, 127 AD3d 1176, 9 NYS3d 3 12 {2°.i Dept.. 2015): .., -.)- [* 4] Wells Fargo Bank. N..·I. 1·. Ali. 112 /\D3d 7?.6, 995 YS2d 735 (2"'1 Dept.. 2014 )). Proper service of an RP /\PL 1303 notice on the honower( s) is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the hurdcn of establishing compliance with this condition (Aurora l.ocm Services. /,J,(' v. Weish/11111, 85 /\03d 95. 923 NYS2d 609 (2"d Dept.. 20 11 ); First Notional Bank<~/'( 'hicaKo v. Silver. 73 /\l)3d 162, 899 NYS2d 256 (2"tl Depl., 20 10)). RJ>/\PL 1303 requires that notice be delivered with the summons and complaint to commence the foreclosure action. The notice must be in bold. fourteen-point type and shall he printed on colored paper that is other than the color of the summons and complaint, and the title the notice shall be in bold. twenty-point type and the notice shall be on its own page. or While service of a statutory notice pursuant to RP /\PL 1303 is considered a condition precedent to a mortgage roreclosure action (Aurora Loan Servic:es. LL( ' v. Weish/11m, suprn.: First Nutio11ul /Jank v. ,<..,'ih•er. s11prn.), a fa ilure to comply with this notice provision is nol a jurisdictional delect sul'licient to provide independent grounds for vacating a dcl'ault by a party who has otherwise delimited in appearing in an action (US Bank. NA . v. Carey, 137 AD3d 894, 28 NYS3<l 68 (211u Dept.. 20 16); Pritchard v. Curtis. 101 A03d 1502. 957 NYS2d 440 (3'd Dept.. 2012)). I\ defaulting mortgagor/defondant may advance a statutory or mortgage notice defense in support of an application seeking to va<.:atc his default in answering the complaint pursuant to CPI .R 50 15. However to be successful, the defaulting mortgagor/defondant is required to vacate his own default hy providing proof to dt!monstrate a reasonable excuse for his failure to timely answer the complaint. and the mere showing of a possible meritorious defense (i.e plaintitrs alleged failure to comply with RPAPL 1303) is legally insufficient to provide a basis to set aside his continuing default in appearing in this action (f'lagslar Bank v. .Jamhelli, 140 AD3d 829. 32 NYS3d 625 (211d Dept., 2016); Wussertheil v. Elhurx. 94 AD3fd 753. 941 NYS2d 679 (2"d Dept.. 2012); lfosten "· Oladapo. 44 /\IJ3d I 006, 844 NYS2d 417 (2'"1 Dept., 2007)). rrs complaint and In this case. the defendant has defaulted in serving an answer to the plainti therefore has waived his right to contest the RP /\PL 1303 notice defense. as well as the additional defenses raised by defendant" s counsel in his memorandum of law concerning plaintiffs alleged lack of standing and plaint iffs alleged failure to serve a default notice in compliance with mortgage requirements, absent a showing of a reasonable excuse for his fail urc to serve an answer to the complaint. In this regard , absent submission of an application by the dcfondanl seek ing to vacate his (conceded) default, and for permission to serve a late answer (which requires proof of hoth a reasonable excuse for his failure lo timely answer and a demonstration of an arguably meritorious defense). no basis exists to deny plaintifrs motion s ince the defendant waived his right to assert such defenses by defaulting in serving an answer (see U.S. Bank 1·. Carey..\llpra: Pritchard"· Curtis. suprn). Moreover, even were the court to consider the merits or the arguments raised by the defendant. the plainti IT has s ubmitted suifo:ient evidence to estahl ish that the required mortgage and RP/\PL 1303 default notices were served by the mortgage servicer and by the process st:rvcr in comp Iiance with mortgage and RP A PL 1303 requirements Finally. the bank has shown that the defendant has dcfoultc<l under the t\.!nns of the mortgage hy failing to make timely monthly mortgage payments since February I. 2009. The hank having proven entitlement to a default judgment, it is incumbent upon the dcfondant to suhmil relevanL ac.Jmissihlc proof suniciently s ubstantive to raise genuine;: issues of fact concerning why the lender is not entitled to foreclose the mortgage. Defendant has failed to raise any significant factual issue in -4- [* 5] opposition to the plaintiffs application. /\ccordingly defondants· cross motion is denied anc.1 plaintiff's motion seeking an order granting a default judgment and for the appointment or a referee must be granted. The proposed order for the appointment of a re fo rce has been signed si multaneousl y with the execution of this order. ~c&i-c Dated: D~ccmher 12. 2016 J.S.C. -5·

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