Carrington Mtge. Servs., LLC v Fiore
Annotate this CaseDecided on December 20, 2017
Supreme Court, Warren County
Carrington Mortgage Services, LLC, Plaintiff,
against
Glenn Fiore A/K/A GLENN T. FIORE, JUNKO FIORE, EMPIRE PORTFOLIOS, INC., MIDLAND FUNDING LLC A/S/I/I TO A CHASE ACCOUNT, "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, Defendants.
2015-61460
Shapiro, DiCaro & Barak, LLC, Rochester (V. Melanie Rajaphoumy of counsel), for plaintiff.
Glenn Fiore and Junko Fiore, Warrensburg, defendants pro se.
Robert J. Muller, J.
On December 17, 2007, The Funding Source, LLC (hereinafter The Funding Source) issued a loan to defendants Glenn Fiore a/k/a Glenn T. Fiore and Junko Fiore (hereinafter defendants) in the amount of $171,509.00. This loan was evidenced by a promissory note (hereinafter the note) and secured by a mortgage on certain residential property located at 14 Summit Street in the Town of Warrensburg, Warren County. The mortgage — originally held by Mortgage Electronic Registration Systems, Inc. (hereinafter MERS) as nominee for The Funding Source — was subsequently transferred to plaintiff by assignment dated April 10, 2015 and recorded on April 17, 2015.
Defendants made monthly payments under the terms of the note and mortgage until August 1, 2014, at which time they defaulted. Plaintiff then commenced this foreclosure action on April 30, 2015. A settlement conference was held on June 16, 2015, but defendants failed to appear and plaintiff was directed to proceed with prosecution. Plaintiff thereafter filed its motion [*2]for an Order of Reference. In April 2016 — while this motion was pending — defendants served an answer, which answer was rejected by plaintiff as untimely. That same month, defendants sent correspondence to the Court requesting the scheduling of another settlement conference. This request was granted by correspondence dated June 2, 2016, with plaintiff's motion being held in abeyance pending the completion of the conference. Eight additional settlement conferences were then held between June 2016 and March 2017, at which time the Court determined that settlement was impracticable.
Upon the conclusion of these conferences, defendants filed a motion to, inter alia, dismiss the action.[FN1] Defendants then filed a second motion in June 2017 — this one by Order to Show Cause — for leave to file a late answer. Plaintiff's motion continues to be held in abeyance pending a decision on these motions. The Court will now address defendants' motion in seriatim.
Motion to Dismiss
Defendants first contend that the action must be dismissed because the Court failed to comply with CPLR 3408 (l). This contention is without merit, however, as CPLR 3408 (l) is only applicable to actions commenced on or after December 20, 2016 (see L 2016, ch 73, pt Q, § 2). To the extent that this action was commenced in April 2015, the Court was not required to comply with CPLR 3408 (l).
Defendants next contend that the action must be dismissed because plaintiff lacks standing. With that said, "the failure to raise lack of standing as an affirmative defense in an answer or in a pre-answer motion to dismiss constitutes a waiver of such affirmative defense" (Chase Home Fin., LLC v Howland, 149 AD3d 1405, 1406 [2017], quoting HSBC Mtge. Corp. [USA] v Johnston, 145 AD3d 1240, 1241 [2016]; see CPLR 3211[a] [3]; [e]; HSBC Bank USA, N.A. v Sage, 143 AD3d 1214, 1215 [2016]; Nationstar Mtge., LLC v Alling, 141 AD3d 916, 917 [2016]). Here, defendants have filed neither an answer nor a pre-answer motion to dismiss and, as such, they have waived the affirmative defense of standing.
Based upon the foregoing, defendants' motion to dismiss is denied in its entirety.
Motion for Leave to File Late Answer
Defendants seek permission to file a late answer, contending that they were previously unaware of the need to answer the complaint. Defendants further contend that they have a meritorious defense to the action. Specifically, defendants contend that plaintiff lacks standing, as it has failed to demonstrate that it is the holder or assignee of the note (see Bank of NY Mellon v Cronin, 151 AD3d 1504, 1506 [2017]; U.S. Bank N.A. v Carnivale, 138 AD3d 1220, 1220-1221 [2016]; Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375, 1376 [2015]).
" 'Supreme Court possesses the discretion to permit late service of an answer upon a showing of a reasonable excuse for the delay and a meritorious defense to the [action]' " (Snyder v Singh, 146 AD3d 1141, 1142 [2017], quoting Puchner v Nastke, 91 AD3d 1261, 1261-1262 [citations omitted]).
Here, the Court finds that defendants have set forth a meritorious defense. There has been no assignment of the note to plaintiff, nor has there been any showing that plaintiff was in physical possession of the note at the time this action was commenced. As such, plaintiff may [*3]lack standing — as alleged by defendants (see U.S. Bank N.A. v Carnivale, 138 AD3d at 1220-1221; Wells Fargo Bank, NA v Ostiguy, 127 AD3d at 1376). With that said, the Court further finds that defendants have failed to demonstrate a reasonable excuse for their delay in answering the complaint. Indeed, the fact that they were apparently unaware of the need to answer does not constitute a reasonable excuse (see Stoltz v Playquest Theater Co., 257 AD2d 758, 795 [1999]; see also Awad v Severino, 122 AD2d 242, 242 [1986]) — especially given the warning language in the summons (see Morgan Stanley Mtge. Loan Trust 2006-17XS v Waldman, 131 AD3d 1140, 1141 [2015]). The motion must therefore be denied.
Briefly, it must also be noted that defendants failed to serve the Order to Show Cause in accordance with the directives set forth therein. Specifically, defendants sent only the Order to Show Cause to counsel for plaintiffs — not the supporting papers. The motion may therefore be denied on these grounds as well (see Matter of Barnes v Annucci, 144 AD3d 1286, 1287 [2016]).
Based upon the foregoing, defendants' motion for leave to file a late answer is denied without prejudice.
To the extent not addressed herein, defendants' remaining contentions are either academic or without merit.
Plaintiff's motion for an Order of Reference is hereby restored to the Court's calendar and an Order of Reference issued contemporaneously herewith.
Therefore, having considered the "Motion" of Glenn T. Fiore and Junko Fiore with exhibits attached thereto, sworn to May 19, 2017, submitted in support of motion to dismiss; "Affidavit in Support" of Glenn T. Fiore with exhibits attached thereto, sworn to June 2, 2016, submitted in support of motion for leave to file late answer; Statement of Fact of Glenn T. Fiore, undated, submitted in support of motion for leave to file late answer; and Affirmation in Opposition of V. Melanie Rajaphoumy, Esq. with exhibits attached thereto, dated July 5, 2017, submitted in opposition to both motions, it is hereby
ORDERED that defendants' motion to dismiss is denied in its entirety; and it is further;
ORDERED that defendants' motion for leave to file a late answer is denied without prejudice; and it is further
ORDERED that plaintiff's motion for an Order of Reference is restored to the Court's calendar and an Order of Reference issued contemporaneously herewith; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the submissions enumerated above. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.
Dated:December 20, 2017
Lake George, New York
ROBERT J. MULLER, J.S.C. Footnotes
Footnote 1:The Court notes that defendants are proceeding pro se and it is difficult to glean all of the relief being sought in this motion.
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