Wells Fargo Bank, N.A. v Alvarado

Annotate this Case

Download PDF

Wells Fargo Bank, N.A. v Alvarado 2017 NY Slip Op 31030(U) April 18, 2017 Supreme Court, Suffolk County Docket Number: 10494/2009 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 Forni Order SUPREME COURT - STATE OF NEW YORK TAS PART 18 - SUFFOLK COUNTY PRESENT: HON. HOWARD H. HECKMAN JR., J.S.C. INDEX NO.: 10494/2009 MOTION DATE: 06/09/2016 MOTION SEQ. NO.: 005 MD ----------------------------------------------------------------)( WELI,S FARGO BANK, N.A., Plaintiffs, PLAINTIFFS' ATTORNEY: LEOPOLD & ASSOC1ATES, PLLC 80 BUSINESS PARK DR., STE. 110 ARMONK, NY 10504 -againstHENRY ALVARADO, Defendants. DEFENDANTS' ATTORNEYS: CABANILLAS & ASSOCIATES, P.C. 120 BLOOMINGDALE RD., STE. 400 WHITE PLAINS, NY 10605 ----------------------------------------------------------------}{ Upon the following papers numbered I to 26 read on this motion : Notice of Motion/ Order to Show Cause and supporting papers I- 14 ; Notice of Cross Motion and supporting papers_ ; Answering Affidavits and supporting papers 15-20 : Replying M1idavits and supporting papers 21-26 : Other_: (and after hearing cvunsel in support and opposed to the motion) it is. ORDERED that this motion by defendant Henry Alvarado brought on by Order to Show Cause (Ford, J.) dated May 23, 2016 seeking an order pursuant to 3012, 321l(a)(8),3408, 5015 & 5240 & RPAPL 1304: 1) staying the foreclosure sale scheduled for May 24, 2016; 2) vacating the Order (Gazzillo, J.) dated February 2, 2010 granting a default judgment and appointing a referee to compute the sums due and owing to the plaintiff; 3) vacating the Judgment of Foreclosure and Sale (Gazzillo, J.) dated February 7, 2014; and 4) dismissing plaintiffs complaint; or, in the alternative 5) granting defendant leave to serve a late answer; and 6) remanding this action to the foreclosure settlement part for the purpose of conducting a settlement conference is denied; and it is further ORDERED that the referee is directed to reschedule the foreclosure sale forthwith and to notify all appropriate parties. Plaintiff's action seeks to foreclose a mortgage in the original sum of $385,000.00 executed by the defendant Hemy Alvarado on Januaiy 29, 2007. On that same date defendant Henry Alvarado executed a promissory note promising to re-pay the enti re amount of the indebtedness to the mortgage lender. Plaintiff claims that the defendant has defaulted in making timely monthly mortgage payments since December 1, 2008. By Order (Gazzillo, J.) dated February 2, 2010 plaintiffs unopposed default judgment motion was granted and a referee was appointed to compute the sums Jue and owing to the mortgage lender. A .Judgment of Foreclosme and Sale (Gazzillo, J.) was granted on February 7, 2014. The property was scheduled to be sold at auction on May 24. 20 l 6. The sale was stayed as a result of this application. [* 2] Ddcndant' s motion seeks and order permanently staying the sale of the premises, vacating the judgment or fo reclosure and sale and order granting a default judgment. and dismissing the complaint or. in the alternative. granting Alvarado leave to serve a late answer and remanding this action for a court settlement conforcncc. Defendant claims that he holds a '' lucrati ve job'' and has been ··saving money diligently to put towards saving this propetty"" and requests that he be given an opportunity for a loan modification. Defendant also claims that the interests of justice would best be served hy vacating the judgment of foreclosure and sale. In his affidavit the defendant denies having ever been served witb a summons and complaint and denies ever receiving a 30-day pre-foreclosure notice. a QO-day pre-foreclosure notice and any information concerning a foreclosu re senlcment conference. Dclcndant contends that plaintiff failed to serve notices required under the terms of the mortgage (30-day notice) and pursuant to RP APL 1304 (90-day notice) and therefore the complaint must be dismissed since each or the notices arc conditions precedent to commencing this action. ln opposition, plaintiff submits an attorney's affirmation and argues that the relevant, admissible evidence submitted in the form of the process server's affidavit of service establishes prima facic evidence that the defendant was properly served with process and the court 1herefore has personal jurisdiction over the defendant. Plaintiff contends that no basis exists to vacate the defendant' s defaul t absent proof of a reasonable excuse for his default in appearing and a demonstration of an arguably meritorious defense. Plaintiff argues that the defendant has failed to submit any reasonable explanation for his default in appearing since service or the summons and complaint on March 28, 2009 and therefore defendant's motion must be denied in its entirety. Plaintiff claims that the defendant has waived his right to contest the issues of service of statutory and mortgage pre-foreclosure notices and that even were those issues to be litigated sufficient evidence is submitted to show that all required notices were served upon the defendant. Plaintiff also claims that the mortgage lender has no objection to reviewing defondanrs loan modification request but that the lender has no obligation to enter into a loan modi !!cation agreement. A dt!fendant seeking to vacate a dcfoult in appearing and answering a complaint must show hoth a reasonable e:xcuse for the default and the existence of a potentially meritorious defense (Fugmc: /)if,oren:::o. Inc. 1..·l.C /.)111/011 Lhr., Co .. 67 NY2d 138. 50 l NYS2d 8 ( 1986): Deutsche: : Hank N a!ionu/ h11sf Co. 1·. (i11tierre:. 102 i\D3cl 825, 958 NYS2d 472 (1"d Dept.. 20 13); U. 5;_ !Jank. NA. 1·. •)'w1111el. U8 AD1d 1105. 30 NYS3d 305 (2"J Dept.. 2016): TCIF R/~O GC/11. U ,C I'. Walker. 139 i\1)3d 70·L 32 NYS3d 223 (2'"1 Dept.. 20 16): CPLR 317 & 3012(d)). Absent proper service of the summons and complaint a default judgment is a nullity since a court lucks in pcrsoncm jurisdiction over the dekndant (CPLR 5015(a)(4): Prudence 1·. Wright. 94 AD3d 1073, 94'.l NYS2d 185 (2"J Dept.. 2012): /:"111igra111 iilortp:age Co .. Inc. r. IVesten'elt. I 05 AD'.ld 896. 964 NYKS2d 543 (2'"1 Depl.. 2013 ): l><!ulsc:he Bank Nulional fr11st Co. 1·. l'esfuno. 71 AD3d I 074. 899 NYS2d 269 ( 2'"1 Dept., 2010) ). Ordinaril y a process server's affidavit orservic~ constitutes prima focic evidence of proper scrvicc({J.S. Hunk. N...t. 1·. To11ha. 140AD3d 11 54,.36NYS'.ld 144(2'"1 Dcpt..2016);Fl'-/. /nc. '" Reid. 138 AD.3d 922. 31NYS1d 11 9 (2"'1 Dept..2016): 1Vacho1·ia /Junk. f\'...t. 1·. (iremherg. 138 AD.3d 984. 31 NYS.3d 110 (2"u Dept.. 201(>}: Ml~R.\' 1·. /,osco. 12.:" AD3d TU. 5 NYS3d 112 ('.:~nu Dept.. 20 1:'): .N}C/'/. I'. Tw(/ltlinos, 101;\!)Jd1092. 956 NYS2d 571 (2 11<1 Dept., 20 12)). /\ defendant may rebut the process server's affidavit by submitting an artidavit containing specific and dctnilcd contradictions or the claims in th~ process server's anidavit. but bare. corn.:lusory and unsubstantiated denials or service arc insunicient to rebut the presumption or proper service (U.S. [* 3] Bank. N.A . \'. Peralto, 142 AD3d 988. 37 NYS3d 308 (2"J Dept.. 2016): Washington Mutuo/ Bunk,._ l/11ggins. 140 AD3d 858, 35 NYS3d 127 (2nd Dept.. 2016); Wells Fwxo Bank v. Christie, 83 ADJ<l 824. 921NYS2d127 (2°" Dept.. 201 1); us· /Jank. NA . v. Tate. U02 J\03d 859, 958 NYS2d 722 . (211<1 Dept., 2013 ): /Jene.ficial llomeoll'ner Sen. Corp. ' " Girault. 60 AD3d 984, 875 NYS2d 815 (2"J Dept.. 2009)). Ddcndanrs sworn affidavit denying service. together with claims of significant discrepancies between the appearance and the description of the person served by the process server wi ll necessitate a bearing (see Afacho1·ec 1·. ,C..,'l'Ohoda. 120 J\D3d 772, 992 NYS2d 279 (2"d Dept.. 20 J '.)):/~'migrant Mortgage ,)'en•ices I'. Westervelt. supra.: Wells Fargo Bank, NA . ''· Vinal 7'011ch Interiors. LLC. I 12 J\D3d 813, 977 NYS2d 351 (2"0 Dept., 20 13)). I lowever, claimed discrepancies which arc unsubstantiated and of a minor. slight or inconsequential nature arc insufficient to warrant a bearing on the issue or service (lndyl'vlac Federal Bank. F.'.'B v. Hyman. 74 AD3d 751, 90 I NYS2d 545 (2nd Dept.. 20 I 0); Beneficiu! llomeowner Servic:e Corp. v. Cira11//, 60 AD3d 984, 875 NYS2d 815 (2".i Dept.. 2009)). 1·hc record shows that the process server served defendant Alvarado by substituted service by delivery of the summons and complaint on Alvarado ' s wife, a person of suitable age and discretion at dcknuant's usual place of abode on March 28, 2009 at approximately 7:00 p.m. The description of the person served was a black haired. brown skin fema le who was approximately 40 to 49 years of age. 5 fool 4 inches - 5 foot 7 inches tall and weight between 150 to 174 pounds. Defendant Alvarado submits an affidavit claiming: 1) that he was never served with the summons and complaint; and 2) that the description of his wife was inaccurate based upon estimations of her age (3'.1 years), her height (5 foot tall) and her weight (180 pounds). Based upon this record. the anidavit of the process server constituted prima facie evidence or proper service pmsuant to C'PLR 308(2) upon the dcrendant I lenry Alvarado. It was thus incumbent upon the dcfCndant to rebut this prima facic showing by submission or speci lie and substantiated allegations regarding the lack of service. Defendant's affidavit wholly fails to rebut the presumption of due service upon him. Defendant's claimed discrepancies between Guadalupe /\lvaraclo. s physical height and weight contaim:d in the process server's af'lidavit were minor and arc not substantiated by any rdcvanL admissible proof other than his self-serving estimates of his wife ·s physical di mensions at the time process was served. In this respect. there is no objective evidence submillcd in the form or documentary evidence (i.e. driver's 1iccnsc, photographs. inJcpendcnt neutral observer anidavits. <.:le.) lo support <lcfendant°s claims detailing his wifc·s appearance. I laving submitted unsubstantiated and conclusory denials or service and receipt of papers. the <lelcn<lant's application to dismiss plaintilrs complaint for fr1ilun: to obtain personal j urisdiction over him is denied ( IVC'l!s Forgo !3unk. JV._,1. ''· 'frirnrico, 1:l9 J\D3d 7'22. 32 NYS3d 1 l J (2'"1 Dept.. 2016): lncz1•Alac 13onk 1·. !fl'IJwn. 74 J\D'.1d 75L 901NYS2d545 (.2'"1 Dcpt.. 2010)). With respect to the <lclcndant"s application seeking leave to scn·c a late answer. the law requires proof to estab lish a reasonable excuse for the defendant's foilure lo timel y scrv<..: an answer < a showing or an arguably meritorious de!Cnse (see Dl'11tsc/Je Bank Natio11al frust ( 'o. r. llld (/111ierrc::. I02 AD3d 825. 958 NYS2d 478 (2"0 Dept.. 2013); Deutsche !3onk Nutiona/ 'fr11sl Co. v. Kor/is. 138 /\D3d 915. 30 '.\!YSJd 228 (2"" Dept.. 2016): ( /,.)'. /Junk. N.,.L 1·. C'hcr11hi11. 1..J. J ADJd ) 14 . .1r1 NYSJd 154 (2 1111 Dept.. 2016) ). Dcfcnuanl has wholly foiled to provide any reasonable explanation for his more than eight y<.;ar default in timely answering the plaintil'l's <.:omplaint. Absent such explanation the delcndant's application must be denied regardless of' whether the ..., -.)- [* 4] c.klcndmll has demonstrated the existence or a potentially meritorious dctcnse to plaintiffs action ( U. .'-i. Hank. N A. v. Cheruhin. supra.: A urorn Loan ,<.,'en•ices. LLC i·. Lucero. 13 I /\D3d 496. 14 N YS3d 707 (2"J Dept.. 20 15)) and it is unnecessary for the court to consider that aspect of the c.lcfon<lant's claims ( Dewsche Bank National 'frust Co. v. Rudman. 80 /\ 1)3d 651. 914 YS2d 672 (2'"1 Dept.. 2011 ); De111sc:he Hank National Trust Co. i·. Gutierrez. supra.: Deutsche Bonk National 7i'11st Co. i·. Pietranito. I 02 /\DJd 724. 957 NYS2d 868 (2 11J Dept., 2013): /Ve/ls Fargo Bank. N.,./. 1·. Russ1!1/. IOI A[)Jd 860. 955 NYS2d 654 (2"J Dept.. 2012)). With respect to de fondant" s claims concerning plaintifr s alleged failure to serve mortgage and statutory pre-foreclosure notices. while service of such notices arc considered conditions preccc.lent to a mortgage foreclosure action (Aurora /,otm Services, J,l(' 1•. IVeish/11111. 85 /\D3d 95. 923 NYS2d 609 (2"J Dept.. 20 I I); First National /Jank <?(Chicago v. Sifrer. 73 AD3d 162. 899 NYS2d 256 (2"d Dept.. 20 I 0)). n failure to comply with such provisions is not a jurisdictional defect sunicicnt to provic.lc independent grounds for vacating a default by a party who bas otherwise defaulted in appearing in an action (US Bank. NA. v. Curey. 137 /\1>3<.I 894. 28 NYS2d 68 (2"'1 Dept.. 2016): P/1/1 ,\/ortgage Corp. 1·. Celestin. 130 /\D3d 703, 11NYS3d87 1 (2"'1 Dept.,2015): Pritchard v. ( 'urtis. I 0 I /\ 1)3d 1502. 957 YS2d 440 (3rJ Dept.. 2012): Delllsche Bank National frust ( ·o. 1•. Posner. 89 AD:lc.1674, 933 NYS2d 52 (2"J Dept.. 2011 )). In this case, the defendant has foiled lo pro,·idc any reasonable excuse for his failure to timely serve an answer and the mere showing of an arguably meritorious defense (i.e. plaintilrs alleged failure to serve pre-foreclosure notices) is legally insullicient to provide grounds to set aside his continuing default in appearing in this action (f1agslar Bonk 11• .lamhefli. 140 AD3d 829, 32 NYS3d 625 (2 11J Dept., 2016 ): l'rilchard 11• Curtis. supra.: Wassertheil 1·. /:,'/hurg. 94 /\D3d 753. 941 NYS2d 679 (2'"1 Dept.. 2012)). Moreover, even were this court to consider the merits or the defaulting defendant· s arguments. the plaintiff has submi tted sufficient evidence to establish that the required n.1ortgagc and RPAPL 1304 default notices \\'ere timely served by thc mortgage servicer in compliance with mortgage an<l statutory requi rements. Final ly, with respect to the defendant"s claims seeki ng equitable considerations and an additional settlement confcrem:e. while the court rctuins inherent equitable power to 1.:nsun.: that fon.~closur1.: is not made an "'instrument of injustice·· (see Alka(fi t '. Celestial Church <~lChrixt Cafrwy Parish. 24 /\D3d 476. 477. 808 NYS2d :no (2°J Dept.. 2005) quoting G11urdia11 f .ow1 Co. 1·. 1~·ar~\ ·. -.J.7 N Y2d 5 1.5. S 20. 4 I<) NY S2d 56 ( I 992) ). the record in th is act ion docs not justify any runher delay in thc prosecution of this action. Defendant entered into a contract on January 29. 2007 promising to re-pay the sum or money borrowed to the lender by m:iking timely monthly payments for thirty years. The record is dear that defendant breachec.1 his agreement more than eight years ago \\hen he defaulted in making !Xl) mcnts 011 December I. 2008. Clearly the balancing or equitable.: considerations weigh in Ii.Ivor of thL' party which uic.1 not breach the agreement. Moreover. whi le the dekndant contends that he shoulc.I be cntitlcc.l to additional settlement conl'crences and a loan 1110dilica1ion. court records show that he was already afforded six court scttk1m:nt confL'renc1.:s beginning July I(>. 2009 unt iI he foiled to appear for a scttkmcnl con lcrcnce on Fcbruury l 0. 20 l I. anc.l that he has hecn affi.m.kc.I nearly an additional year lo J'l:main in the premises without any payments maJc. as a result of this application and the c.kl<.ly occasioned by curn:nl court procedures. -4- [* 5] Based upon Lhcse circumslanccs no reason exists to further delay sch~duling the sak of the morlgagc<l premises an<l Lhc referee is dirccLc<l lo forthwith schedule the sale upon appropriaLe noLicc w all parties. l>aLcd: /\pril 18. :2017 -5-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.