Wells Fargo Bank, N.A. v Zelaya

[*1] Wells Fargo Bank, N.A. v Zelaya 2017 NY Slip Op 51068(U) Decided on August 30, 2017 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 30, 2017
Supreme Court, Suffolk County

Wells Fargo Bank, N.A., AS TRUSTEE, FOR CARRINGTON MORTGAGE LOAN TRUST, SERIES 2006-FRE2 ASSET-BACKED PASS-THROUGH CERTIFICATES, Plaintiff,

against

Maria Zelaya; MARIA M. RIVAS; MORTGAGE ELECTRONIC SYSTEMS, INC.; FREMONT INVESTMENT AND LOAN; CLERK OF THE SUFFOLK COUNTY DISTRICT COURT; TOYOTA MOTOR CREDIT CORPORATION; COMMISSIONER OF TAXATION AND FINANCE; CAPITAL ONE BANK USA, N.A.; RUBEL ESCOBAR; KATIE ZELAYA, Defendants.



19050/2012



KNUCKLES, KOMOSINKSKI, & MANFRO, LLP

Attorneys for Plaintiff

565 Taxter Road, Suite 590

Elmsford, NY 10523

RAYMOND W. VERDI, JR., P.C.

Attorneys for Defendant Maria Zelaya

433 Uniondale Avenue

Uniondale, NY 11553
Thomas F. Whelan, J.

Upon the following papers numbered 1 to 84read on this application for leave to enter a judgment of foreclosure and sale; Application and supporting papers1 - 52 ; 53 - 66 ; 67 - 68 ; Answering Affidavits and supporting papers 69 - 76 ; Replying Affidavits and supporting papers77 - 84 ; Other; it is,

ORDERED that this motion (No.003) by the plaintiff for, inter alia, leave to enter a judgment of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law (RPAPL) §1351, is granted.

This is an action to foreclose a mortgage on residential property situate in Suffolk County, New York. By order dated June 4, 2015, this Court granted a motion by plaintiff in its favor, finding that plaintiff was entitled to accelerated judgment against the answering defendant, Maria Zelaya, and the Court appointed a referee to ascertain and compute the sums due and owing plaintiff.

Plaintiff now moves for an order confirming referee Joshua Blumberg's report and for leave to enter a judgment of foreclosure and sale of the subject property. In support of its motion, plaintiff submits, among other things, a Report of Referee, dated June 12, 2017; copies of the note and mortgage; an affidavit of Maurreene D. Magdaleno, a Default Document Senior Analyst for Carrington Mortgage Services, LLC ("Carrington"), plaintiff's mortgage servicer; and an accounting of plaintiff's attorneys' costs in prosecuting this action. Defendant, Maria Zelaya, opposes the motion, arguing, inter alia, that defendant lacked sufficient notice of the referee's hearing, as plaintiff sent notice of same to her attorney at an incorrect address, and that the documentary evidence used by the referee in making his calculations is inadmissible. In opposition, defendant submits several documents, including a Referee's Oath, dated June 9, 2017, and an affirmation of her attorney. In reply, plaintiff submits, among other things, correspondence from plaintiff's attorneys to defendant's attorney, dated May 22, 2017, a duly executed affidavit of service, dated May 23, 2017, and an affirmation of its attorney.

Plaintiff's submissions establish its entitlement to a judgment of foreclosure and sale, namely the referee's findings and report (see US Bank N.A. v Saraceno, 147 AD3d 1005, 48 NYS3d 163 [2d Dept 2017]; Mortgage Elec. Registration Sys., Inc. v Holmes, 131 AD3d 680, 17 NYS3d 31 [2d Dept 2015]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930, 5 NYS3d 175 [2d Dept 2015]). Although the court is not bound by the referee's findings,[FN1] the report of a referee should be confirmed whenever the findings are substantially supported by the record (see Citimortgage, Inc. v Kidd, 148 AD3d 767, 49 NYS3d 482 [2d Dept 2017]; Matter of Cincotta, 139 AD3d 1058, 32 NYS3d 610 [2d Dept 2016]; Hudson v Smith, 127 AD3d 816, 4 NYS3d 894 [2d Dept 2015]). Here, the referee submitted ample documentary evidence to support the [*2]amounts due and owing plaintiff, as the computation was premised upon business records produced by plaintiff in support of its initial motion for summary judgment (see Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 933 NYS2d 73 [2d Dept 2011]; cf. Citimortgage, Inc. v Kidd, 148 AD3d 767, supra). In addition, the referee's report identified the documents and other sources upon which he based his finding that the mortgaged premises should be sold in one parcel (cf. Citimortgage, Inc. v Kidd, 148 AD3d 767, supra).

In opposition, defendant's assertion that she lacked proper notice of the referee's hearing is unavailing. Plaintiff's submissions, namely a duly executed affidavit of service, raises a presumption that the Notice of Hearing was properly mailed and received by defendant and her attorney, and a mere denial of receipt by defendant's counsel is insufficient to rebut this presumption (see CPLR 2103[b][2]; Kihl v Pfeffer, 94 NY2d 118, 700 NYS2d 87 [1999]; Engel v Lichterman, 62 NY2d 943, 479 NYS2d 188 [1984]; Flushing Sav. Bank, FSB v Colmar Realty, LLC, 121 AD3d 1040, 994 NYS2d 311 [2d Dept 2014]).

Further, defendant's contention that the referee relied upon inadmissible evidence in ascertaining the amounts due to plaintiff is also unpersuasive. The doctrine of "the law of the case" provides that, once an issue is judicially determined, judges and courts of coordinate jurisdiction are precluded from further consideration of that issue, and it applies to any legal determinations that were necessarily resolved on the merits in a prior decision (see Martin v City of Cohoes, 37 NY2d 162, 165, 371 NYS2d 687, 689 [1975]; Ahrorgulova v Mann, 144 AD3d 953, 42 NYS3d 203 [2d Dept 2016]; Strujan v Glencord Bldg. Corp., 137 AD3d 1252, 29 NYS3d 398 [2d Dept 2016]). As the issue of the admissibility of plaintiff's business records was determined on the merits by the June 4, 2015 order, the Court is bound by same and it will not revisit this determination (see Martin v City of Cohoes, 37 NY2d 162, supra; Ahrorgulova v Mann, 144 AD3d 953, supra; Strujan v Glencord Bldg. Corp., 137 AD3d 1252, supra).

Under the circumstances of this case, the referee was not required to conduct a hearing prior to issuing the report (see Deutsche Bank Natl. Trust Co. v Williams, 134 AD3d 981, 20 NYS3d 907 [2d Dept 2015]; Wachovia Mtge. Corp. v Lopa, 129 AD3d 830, 13 NYS3d 97 [2d Dept 2015]; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]). Furthermore, defendant had the opportunity to raise and submit proof on all issues before this Court (see Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702, 908 NYS2d 612 [2d Dept 2010]; Federal Deposit Ins. Corp. v 65 Lenox Road Owners Corp., 270 AD2d 303, 704 NYS2d 613 [2d Dept 2000]; Adelman v Fremd, 234 AD2d 488, 651 NYS2d 604 [2d Dept 1996]; Stein v American Mtge. Banking, Ltd., 216 AD2d 458, 628 NYS2d 162 [2d Dept 1995]). So, there is no prejudice.

The portion of plaintiff's motion seeking attorney's fees in the amount of $2,500.00 is also granted, as the terms of the subject loan documents allows for same. Plaintiff has supplied the Court with an affirmation of services with detailed billing sheets and the Court finds the proposed amount to be reasonable (see Vigo v 501 Second Street Holding Corp., 121 AD3d 778, 994 NYS2d 354 [2d Dept 2014]).

In light of the foregoing, plaintiff's motion is granted, and the proposed order for judgment of foreclosure and sale, as modified by the Court, has been signed concurrently herewith.

DATED: August 30, 2017

THOMAS F. WHELAN, J. S.C. Footnotes

Footnote 1: "This reference was merely to inform the conscience of the court. The findings of the referee did not conclude it. It could adopt and act upon it or could disregard it, and draw its own conclusions from the evidence" (Marshall v Meech, 6 Sickels 140, 51 NY 140, 143-4, [1872]; see also In re Paul Jones & Co., 117 AD775, 102 NYS 983 [2d Dept 1907]).