Bayview Loan Servicing, LLC v Whitaker

[*1] Bayview Loan Servicing, LLC v Whitaker 2007 NY Slip Op 51094(U) [15 Misc 3d 1141(A)] Decided on May 29, 2007 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2007
Supreme Court, Kings County

Bayview Loan Servicing, LLC, Plaintiff,

against

John Whitaker, III, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, et al, Defendants.



25676/05

Francois A. Rivera, J.

By order to show cause filed with the Kings County Clerk's office (KCC) on November 15, 2006, defendant John Whitaker (hereinafter Whitaker or defendant), has moved pro se under motion sequence number one, for an order staying the foreclosure and sale of certain real property known as 50 Mother Gaston Boulevard, Brooklyn, New York, block No. 1534 and lot # 34 (hereinafter the subject property). The order provides that pending the hearing of the motion, the referee be directed not to transfer the deed and to inform all auction bidders regarding the stay of the transfer of the deed without prejudice to the defendant's right of redemption.

By order to show cause filed with the KCC on January 26, 2007, defendant moves by counsel under motion sequence number two, for an order vacating and nullifying the deed held by Courtney Williams for the subject property and directing the City of New York to remove said deed. Plaintiff opposes defendant's motion.

By notice of cross-motion filed with the KCC on February 13, 2007, Raymond Mordekhai moves under sequence number three and pursuant to CPLR § 1012(a)(3) for an order granting him the right to intervene and to oppose defendant's motion sequence number one.

On February 16, 2007, Part 52 of this court heard oral argument on all three motions and for the reasons set forth takes the following action. The court grants Mordekhai's application to intervene and deems his proposed opposition as served on the defendant. The court denies defendant's motion seeking to vacate, nullify and remove the deed held by Courtney Williams for the subject property.

On August 18, 2005, plaintiff commenced the instant action to foreclose a mortgage on [*2]the subject property by filing a summons, verified complaint and notice of pendency. No defendants answered the complaint. On January 6, 2006, plaintiff filed a motion for an order appointing a referee to compute. On January 9, 2006, this court ordered, inter alia, the appointment of a referee to ascertain and compute the amount due to plaintiff. On June 6, 2006, this court issued a judgment of foreclosure and sale of the subject property.

Motion Papers

Defendant's motion papers consist of an affidavit in support of the order to show cause and seven annexed exhibits. The seven exhibits are the judgment of foreclosure and sale; the referee's report of amount due; a note from the KCC requesting explanation of the computation of amount due; the KCC computation of plaintiff's costs; a letter from an entity named "The Foreclosure Center"; and two letters from the plaintiff to defendant John Whitaker. The first letter, dated November 3, 2006, notifies him of a rate adjustment on his mortgage loan, the second letter dated, November 8, 2006 advises him of the computed cost to date to reinstate the loan.

Plaintiff's opposition consist of an affirmation of counsel and eleven annexed exhibits. The first exhibit is the underlying summons and complaint. The second is the notice of entry of the judgment of foreclosure and sale of the subject property. The third is the referee's notice of sale to be held on July 27, 2006. The fourth is a bankruptcy petition filed by defendant John Whitaker. The fifth is the notice of dismissal of the aforementioned bankruptcy petition. The sixth is the referee's notice of sale to be held on November 16, 2006. The seventh is plaintiff's letter to the defendant advising of the pay off amount due on the mortgage. The eighth is plaintiff's letter to the defendant advising of the amount needed to reinstate the mortgage. The ninth is a copy of defendant's instant motion sequence number one. The tenth is the referee's terms of sale. The eleventh is a copy of a facsimile transmission cover sheet from "The Foreclosure Center" and a copy of a check referenced in the covers sheet.

Intervenor Mordekhai's cross-motion in opposition includes his attorney's affirmation, his affidavit and two annexed exhibits, namely, the judgment of foreclosure and sale, and the referee's terms of sale for the subject property.

LAW AND APPLICATION

CPLR § 1012 provides as follows: Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue. (a) Intervention as of right. Upon timely motion, any person shall be permitted to intervene in any action: 1. when a statute of the state confers an absolute right to intervene; or 2. when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment; or 3. when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment.

It is undisputed that on November 16, 2006, Mordekhai's was the successful auction bidder at the foreclosure sale of the subject property. Because the underlying motion may adversely affect his interest in the subject property Mordekhai is permitted to intervene pursuant to CPLR §1012(a)(3). [*3]

Defendant has neither moved to vacate his default on the underlying foreclosure action nor commenced an action pursuant to Article 15 of the Real Property Actions and Proceedings Law to determine his alleged claims pertaining to the subject property. There is no dispute that the subject property was sold at auction pursuant to RPAPL §231. By the order to show cause under sequence number two, defendant Whitaker is improperly seeking a judgment affecting title to real property without taking the necessary steps of commencing a plenary action.

A mortgagor or other owner of the equity of redemption of a property subject to a judgment of foreclosure and sale may redeem the mortgage at any time prior to the foreclosure sale (Northwest Mortgage Inc. v. Brown, 35 AD3d 682 [2nd Dept 2006] citing Carnavalla v. Ferraro, 281 AD2d 443 [2nd Dept. 2001], United Capital Corp. v. 183 Lorraine St. Assoc. 251 AD2d 400[2nd Dept.1998].

Generally, once the sale takes place, however, the right to redeem is "extinguished, as a matter of law" (Northwest Mortgage Inc. v. Brown, 35 AD3d 682 [2nd Dept 2006], citing United Capital Corp. v. 183 Lorraine St. Assoc., supra at 400) whether or not the deed has been delivered (Northwest Mortgage Inc. v. Brown, 35 AD3d 682 [2nd Dept 2006], citing GMAC Mtge. Corp. v. Tuck., 299 AD2d 315, 316 [2nd Dept 2002]. Once the right to redeem is lost, it cannot be revived, even by court order ((Northwest Mortgage Inc. v. Brown, 35 AD3d 682 [2nd Dept 2006] citing EMC Mtge. Corp. v. Bobb, 296 AD2d 476, 478 [2nd Dept 2002]).

RPAPL §1341 states sets forth the requirements a defendant seeking to redeem property subject to a foreclosure sale must fulfill in order to stay the sale and to exercise his or her right of redemption.

RPAPL § 1341 provides as follows: Where an action is brought to foreclose a mortgage upon real property upon which any part of the principal or interest is due and another portion of either is to become due, and the defendant pays into court the amount due for principal and interest and the costs of the action, together with the expenses of the proceedings to sell, if any, the court shall:1. Dismiss the complaint without costs against plaintiff, if the payment is made before judgment directing sale; or2. Stay all proceedings upon judgment, if the payment is made after judgment directing sale and before sale; but, upon a subsequent default in the payment of principal or interest, the court may make an order directing the enforcement of the judgment for the purpose of collecting the sum then due"

Where a defendant fails to make a payment into the court and to make a motion to stay the sale of the property as required by RPAPL §1341(2) the defendant's right to redemption expires (NYCTL 1996-1 Trust v LFJ Realty Corp., 307 AD2d 957 [2nd Dept 2003]).

The procedural history of the instant matter establishes that defendant Whitaker has [*4]defaulted on the underlying foreclosure action. With regard to the foreclosure and sale, there is no dispute that Whitaker did not make a payment into the court pursuant to RPAPL 1342(2) when he moved to stay the transfer of the deed to the successful auction bidder at the foreclosure sale.

Under the circumstance presented here, Whitaker's equitable right of redemption was extinguished at the foreclosure sale. Therefore, the courts signing of the order to show cause which permitted Whitaker to stay transfer of the deed pending resolution of the instant motion did not preserve or extend his equitable right of redemption after the foreclosure sale.

In sum, defendant's application for an order staying the foreclosure sale and the transfer of the deed is denied, the stay is lifted and the referee is advised that he may proceed to execute the transfer of title in accordance with this decision and order.

The foregoing constitutes the decision and order of this court.

XJ.S.C.