MERS, Inc. v Bernard

[*1] MERS, Inc. v Bernard 2008 NY Slip Op 50308(U) [18 Misc 3d 1134(A)] Decided on February 19, 2008 Supreme Court, Nassau County Austin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2008
Supreme Court, Nassau County

MERS, Inc., as Nominee for Fremont Investment and Loan, Plaintiff,

against

Angello Bernard, Kesha Springer, and "John Doe" and "Jane Doe" the Last Two Names Being Fictitious, Said Parties Intended Being Tenants or Occupants, If Any, Defendants.



2205-06



Counsel for Plaintiff

Joseph T. Colasurdo, Esq.

2900 Westchester Avenue - Suite 206

Purchase, New York 10577

Counsel for Defendant

Lawrence S. Lefkowitz, Esq.

544B Front Street

Hempstead, New York 11550

Leonard B. Austin, J.

Deutsche Bank Nation Trust Company as Trustee for Fremont Home Loan Trust 2005-2, [*2]Asset-Backed Certificates, Series 2005-2 ("Bank") moves, pursuant to Real Property Actions and Proceedings Law §221, for a writ of assistance, to recover possession of real property known as 52 Elmwood Avenue, Hempstead, New York ("Premises").

BACKGROUND

This action as brought to foreclose on a mortgage executed by Angello Bernard and held by Plaintiff, MERS, Inc., as nominee for Fremont Investment and Loan.

A judgment of foreclosure was entered on October 16, 2006. The judgment provided for the sale of the property at a foreclosure sale. The judgment further provided that the purchaser at the sale be put in possession of the property.

The foreclosure sale was held on October 2, 2007. Bank was the successful bidder at the foreclosure sale. Christopher Grayson, Esq. the referee, delivered a referee's deed to Bank.

The Premises is a one family residence. Bank alleges that the Premises is occupied by Defendants Angello Bernard ("Bernanrd") and Kesha Springer ("Springer").

On October 24, 2007, a Notice to Quit and a certified copy of the referee's deed were served upon Bernard and Springer. The Notice to Quit directed Bernard, Springer and anyone occupying the premises to surrender possession of the premises to Bank within ten (10) days of the date of service of the Notice of Quit. The Notice to Quit indicated that, in the event possession was not delivered to Bank, Bernard, Springer and all other persons occupying the Premises would face eviction.

Springer opposes this application. She asserts that she was never personally served with either the Notice of Quit or the referee's deed. She concedes that she and the other occupants of the premises received a copy of the Notice to Quit and referee's deed that had been affixed to the door of the Premises. She also concedes she received a copy of the Notice to Quit and referee's deed in the mail.

The affidavit of service of the Notice to Quit and referee's deed states that the process server attempted to serve theses documents upon Kesha and the other occupants of the premises on October 22, 2007 at 8:35 p.m. and on October 23, 2007 at 3:40 p.m. and was unable to effectuate service. On October 24, 2007, the process server attempted to serve these documents at 7:00 a.m. When the process server could not find someone upon whom to make service, the process server affixed a copy of the Notice of Quit to the door of the Premises. On October 24, 2007, the process server mailed a copy of the Notice to Quit and referee's deed to Springer, Bernard and the other occupants of the Premises by regular mail and certified mail, return receipt requested.

The copy of the referee's deed attached to the Notice to Quit was certified by Bank's attorney pursuant to CPLR 2105.

Springer resides in the Premises with her mother, Lecreta Springer, her sister, Cherryann Dalrymple and Cherryann Dalrymple's twelve year old son. She avers that she has lived in the Premises since 1997. The Premises were previously owned by her parents. When Kesha's father died, her mother had trouble making the mortgage payments. To avoid foreclosure, Lecreta Springer transferred the property to Bernard, who refinanced the property. Although Bernard owned the property, Lecreta Springer made the mortgage payments.

Lecreta Springer was again unable to make the mortgage payments and the Property was foreclosed.

Lecreta Springer and Kesha have been negotiating with the Bank to purchase premises but have been unable to do so. [*3]

Springer asserts that since her family and she are attempting to purchase the property, they should not be evicted. She asserts an eviction would leave her and her other family members homeless and interrupt her nephew's schooling.

DISCUSSION

Springer's assertion that she was not served with the Notice to Quit is without merit. Service of a Notice to Quit is not a prerequisite for a motion for a writ of assistance. Citibank, N.A. v. Plagakis, 21 AD3d 393 (2nd Dept. 2005); and Tri-Land Properties, Inc. v. 115 West 28th Street Corp., 267 AD2d 142 (1st Dept. 1999).

In any event, the manner in which the notice to quit and referee's deed were served by Bank is in compliance with Real Property Actions and Proceedings Law §§713(5), 735(1).

While a writ of assistance may be issued evicting Springer and Bernard from the property, a writ cannot be issued terminating the occupancy of Lecreta Springer, Cherryann Dalrymple or her son.

Lecreta Springer, Cherryann Dalrymple and her son were not named or served as parties in the foreclosure action.

In order to cut off the interest of an occupant of the premises, the occupant must be named as a party in the foreclosure proceedings. Douglas v. Kohart, 196 App.Div.84 (2nd Dept. 1921); and Krotchta v. Green, 121 Misc 2d 471 (Yonkers City Ct. 1983). If an occupant or tenant in the premises is not named as a party in the foreclosure action, the occupant or tenants rights are not affected by the judgment of foreclosure and sale. Polish National Alliance of Brooklyn, U.S.A. v. White Eagle Hall Co., Inc., 98 AD2d 400 (2nd Dept. 1983); and Empire Savings Bank v. The Tower Co., 54 AD2d 574 (2nd Dept. 1976).

"The absence of a necessary party in a foreclosure action leaves the party's rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party (citations omitted)." 6820 Ridge Realty, L.L.C v. Goldman, 263 AD2d 22, 26 (2nd Dept. 1999). See, Si Bank & Trust v. Sheriff of the City of New York, 300 AD2d 667 (2nd Dept. 2000). Thus a tenant or occupant who was not named as a party in the foreclosure action retains his or her possessory rights and a right of redemption. Id.; and Davis v. Cole, 193 Misc 2d 380 (Sup. Ct. NY Co. 2002).

Where the tenant or occupant's interest in the property were not terminated by the judgment of foreclosure and sale, the purchaser at the foreclosure sale may terminate the tenant or occupant's interest by commencement of a strict foreclosure action pursuant to Real Property Actions and Proceedings Law §1352 or a reforeclosure action pursuant to Real Property Actions and Proceedings Law §1503. Id.

"Due process requires that one be given notice and an opportunity to be heard before one's interest in property may be adversely affected by judicial process. Enforcement of the writ of assistance against one who was not joined as a party to the proceeding would violate due process (citations omitted)." Nationwide Assocs, Inc. v. Brunne, 216 AD2d 547 (2nd Dept. 1995); and Si Bank & Trust v. Sheriff of the City of New York, supra.

Bank is seeking to obtain a writ of assistance seeking to terminate the occupancy rights of persons who were not named or served as parties in the foreclosure action. Bank may not do this through a writ of assistance.

Accordingly, it is, [*4]

ORDERED, that Bank's motion for a writ of assistance is denied.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

February 19, 2008Hon. Leonard B. Austin, J.S.C.