JP Morgan Chase Bank, N.A. v Singh
Annotate this CaseDecided on November 15, 2016
Supreme Court, Kings County
JP Morgan Chase Bank, N.A., Plaintiff,
against
Mahase Singh, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU and JOHN DOE said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendant.
14552/08
Attorney for Plaintiff
Sheldon May & Associates
Ted Eric May, Esq
225 Merrick Road
Rockville Centre,
New York, NY 11570
(516) 763-3200
Attorney for Defendant Singh
Abraham Hoschander, Esq.
777 Kent Avenue, Suite 202
Brooklyn, NY 11205
(347) 435-3402
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff, JPMorgan Chase Bank, National Association (hereinafter Chase or the plaintiff), filed on September 13, 2014, under motion sequence number four, for an order: (1) granting a default judgment against all defendants pursuant to CPLR 3215; (2) appointing a referee to compute pursuant to the RPAPL1321; (3) amending the caption pursuant to CPLR 1018 by substituting U.S. Bank National Association as Legal Title Trustee for LVS Title Trust I (hereinafter USBNA) in place of Chase; (4) amending the caption pursuant to CPLR 1024 by striking the John Doe defendants and replacing them with Chuck Gonzalez and Herman Rodriguez; and (5) reforming the description of the subject property.
-Notice of Motion
-Affirmation in support
-Affidavit in support
Affirmation in compliance with the October 10, 2010
Administrative Order of the Chief Judge
Exhibits A—H
Affirmation in opposition
Exhibits A—C
Affirmation in reply
Recitation in accordance with CPLR 2219 (a) of the papers considered on the cross motion of defendant Mahase Singh (hereinafter Singh), filed on January 22, 2015, under motion sequence number five, for an order dismissing the action as abandoned pursuant to CPLR 3215 (c).
-Notice of cross motion
-Affirmation
Exhibits A—C
Affirmation in opposition
Exhibits 1-3
BACKGROUND
On May 16, 2008, Chase commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO). The complaint alleges in pertinent part that on September 28, 2007, Singh executed a note (the subject note) in favor of Chase in the amount of $440,000.00 and executed a mortgage in favor of Chase (hereinafter the subject mortgage) on certain real property, known as 343 Crescent Street, Brooklyn, New York 11208, Block 4165 Lot 5 (hereinafter the subject property) to secure the subject note. The complaint also alleges that Singh defaulted on making payments due and owing on said note from January 1, 2008 and thereafter. No defendant has answered the complaint and Singh is the only defendant that has opposed Chase's motion.
LAW AND APPLICATION
Default Judgment and Order of Reference
Chase seeks an order granting a default judgment against all defendant, including Singh, pursuant to CPLR 3215 based on the defendants failure to answer the complaint Chase also seeks an order appointing a referee to compute pursuant to RPAPL 1321 on the same grounds.
On a motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff must prove proper service of the summons and complaint on the defendant (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). Additionally, the plaintiff must submit proof of the defendant's default in answering or appearing and must submit proof of facts sufficient to establish a viable claim (Id.; also see CPLR 3215 (f)). CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit "made by the party" (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).
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]).
Chase's instant motion is supported by an affirmation of its counsel, Ted Eric May (hereinafter May) and by an affidavit of Tara Spangler (hereinafter Spangler). May's affirmation claims knowledge of the facts alleged therein derived from the review of the records of the law [*2]firms. May's affirmation, however, demonstrates no personal knowledge of any of the transactions alleged in the complaint.
Spangler's affidavit states that she is the Vice President for the servicing agent and attorney-in-fact for the assignee and successor in interest to Chase. Spangler claims familiarity with the record keeping practices and procedures of BSI Financial Services, Inc, (hereinafter BSI). She further states that by her review of BSI business records she has obtained personal knowledge of the facts that she alleges. Included in support of Spangler's affidavit is a Limited Power of Attorney (POA). The POA is signed on May 22, 2013 and the signatoris are stated to be the Vice President and Vice President and Trust Officer of USBNA, as Trustee of LVS Title Trust I. The POA authorizes BSI, as the attorney in fact, to execute and acknowledge in writing documents that are permitted by the servicing agreement dated May 13, 2011.
Spangler's affidavit is the only testimony, purportedly based on personal knowledge, that is offered to prove Singh's alleged default on the subject note and subject mortgage. Spangler, however, does not claim that BSI is or ever was the servicer of Chase or the attorney-in-fact of Chase. Rather she alleges that BSI is the servicer and attorney-in-fact of USBNA, Chase's successor in interest. In fact, Chase's motion papers do not show any connection between Chase and BSI. Chase's motion also does not attach the servicing agreement dated May 13, 2011 which was referenced in the POA. In sum, Chase's motion does not contain an affidavit by Chase of the facts constituting the claim, the default, and the amount due. Accordingly, Chase's motion for a default pursuant to CPLR 3215 is denied without prejudice (see HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]). Furthermore, Chase's application for an order of reference pursuant to RPAPL 1321 is also denied without prejudice for the same reason.
Substituting the Plaintiff
CPLR 1018 provides that upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.
"CPLR 1018 addresses the situation in which a party transfers its interest in the subject matter of the action to another person while the action is pending, as, for example, by assignment of the claim (see NY Gen. Oblig. Law § 13—101) or conveyance of the relevant property. CPLR 1018 authorizes continuation of the action by or against the original party-the assignor/transferor-without the need for substitution of the assignee/transferee" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1018).
Chase's motion for an order amending the caption by substituting USBNA in place of Chase as plaintiff is unopposed. The request is supported by a recorded assignment of the mortgage from Chase to USBNA and by an affirmation of Chase's counsel alleging that USBNA is the holder of the note. In accordance with CPLR 1018, the motion is granted.
Striking and Replacing the John Doe Defendants Chase seeks an order striking the John Doe defendants and replacing them with Chuck Gonzalez and Herman Rodriguez. The request is unopposed and supported by an affirmation of Chase's counsel and affidavits of service of the commencement papers on Chuck Gonzalez and Herman Rodriguez.
The motion to strike the John Doe defendants from the caption and replace them with Chuck Gonzalez and Herman Rodriguez is granted (Deutsche Bank Nat. Trust Co. v Islar, 122 [*3]AD3d 566 [2nd Dept 2014] citing CPLR 1024 and Flagstar Bank v Bellafiore, 94 AD3d 1044 at 1046 [2nd Dept 2012]).
The caption should read as follows:
——————————————————————————————X
U.S. Bank National Association as Legal
Title Trustee for LVS Title Trust I,
Plaintiff,
- against -Index No. 14552/08
MAHASE SINGH, NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD, NEW
YORK CITY TRANSIT ADJUDICATION
BUREAU, CHUCK GONZALEZ and
HERMAN RODRIGUEZ,
Defendants.
——————————————————————————————-X
Reforming the Property Description CPLR Rule 2214 (a) provides in pertinent part as follows:
(a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.
Chase's notice of motion does not state that it was seeking reformation of the property description. The first time this item of relief is mentioned is in paragraph J of the affirmation of Chase's counsel. Therein counsel stated the following. "A further item of relief requested is that the property description be reformed to conform to the property description filed previously with the Clerk's office as Schedule "A" of the Notice of Pendency due to the fact that the meets and bounds description was inaccurate and/or incomplete in the vesting deed." Apart from counsel's statement, there is no other explanation for this branch of requested relief. The statement of Chase's counsel does not set forth what document Chase seeks to reform, what is specifically wrong with that document, and how it should be changed. The application is, therefore, denied on the basis that it is too vague to be understood.
Furthermore, contrary to the requirement of CPLR 2214, there is no law cited or evidence offered to support this item of relief. It is therefore denied without prejudice.
Singh's Cross Motion to Dismiss Defendant Singh seeks an order dismissing the complaint as abandoned pursuant to CPLR 3215 (c).
CPLR 3215 (c) provides as follows:
Default not entered within one year. If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss [*4]the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.
There is no dispute that the instant action was commenced on May 16, 2008. Chase's affidavit of service demonstrates that Singh was personally served with the commencement papers on May 21, 2008. Chase alleges that the first motion it made for an order of reference was by its prior counsel Steven J. Baum, P.C. in 2008, and that it was withdrawn.
The Court has obtained the following information after taking judicial notice of the Kings County Clerk's office minutes. The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v Otto N. Williams, 17 Misc 3d 1127[A] [NY Sup 2007] citing Matter of Khatibi v Weill, 8 AD3d 485 [2nd Dept 2004]). August 5, 2008 is the date that Chase first filed a motion for an order of reference in the instant action and October 14, 2010 is the date that it made the request to withdraw that motion. July 28, 2011 is the date Chase filed the motion which resulted in the order entered on October 11, 2011. The motion, however, was not a motion for an order of reference. Rather it was a motion for an order reforming the description of the subject property. That motion was denied for failure to provide any basis for the relief sought. In the motion returnable on March 18, 2014, Chase sought, among other things, a default judgment pursuant to CPLR 3215 and the appointment of a referee pursuant to RPAPL 1321. That motion was denied without prejudice for failing to explain the delay in seeking a default on a case commenced in 2008.
In support of the cross motion, Singh did not contest Chase's allegations that August 5, 2008 is the date that Chase first made the motion for an order of reference which it later withdrew. Inasmuch as the commencement papers were personally served on Singh on May 21, 2008, he had twenty days to answer the complaint pursuant to CPLR 320 (a). Singh was therefore in default as of June 11, 2008. Singh contends that the fact that Chase filed the first motion for an order of reference within a year of Singh's default does not bar the determination that it abandoned the action within the intendment of CPLR 3215 (c). In support of this contention Singh has cited Stoute v City of New York, 91 AD2d 1043 [2nd Dept 1983]). Stoute stands for the proposition that the effect of a withdrawal of a motion is to leave the record as it stood prior to its filing as though it had not been made. Singh further contends, relying on Chase's representation, that by withdrawing its first motion, Chase's first fully submitted motion for an order of reference was in July of 2011, more than three years after Singh's default.
It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215 (c) (see Wells Fargo Bank, N.A. v Daskal, 142 AD3d 1071 [2nd Dept 2016]; see also U.S. Bank N.A. v Dorestant, 131 AD3d 467, 469, [2nd Dept 2015]). A plaintiff is not even required to specifically seek a default judgment within a year (Id.) As long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal (Wells Fargo Bank, N.A. v Daskal, 142 AD3d 1071 [2nd Dept 2016] citing Brown v Rosedale Nurseries, 259 AD2d 256, 257 [1st Dept 1999]). Here, in 2008, when Chase took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving, ex parte, for an order of reference, it initiated proceedings for entry of the default judgment of [*5]foreclosure and sale within one year of the defendants' default and, thus, did not abandon the action. This is so notwithstanding the fact that the first motion had been withdrawn. Accordingly, Singh's motion to dismiss the action as abandoned pursuant to CPLR 3215 (c) is denied.
CONCLUSION
JPMorgan Chase Bank, National Association's motion for an order granting a default judgment against all defendants pursuant to CPLR 3215 is denied without prejudice.
JPMorgan Chase Bank, National Association's motion for an order appointing a referee to compute pursuant to the RPAPL 1321 is denied without prejudice.
JPMorgan Chase Bank, National Association's motion for an order amending the caption by substituting U.S. Bank National Association as Legal Title Trustee for LVS Title Trust I in its place as plaintiff is granted.
JPMorgan Chase Bank, National Association's motion for an order amending the caption by striking the John Doe defendants and replacing them with Chuck Gonzalez and Herman Rodriguez is granted.
JPMorgan Chase Bank, National Association's motion for an order reforming the description of the subject property is denied without prejudice.
Mahase Singh's motion for an order dismissing the action as abandoned pursuant to CPLR 3215 (c) is denied.
The foregoing constitutes the decision and order of this court.
Enter: J.S.C.
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