Wells Fargo Bank, N.A. v Barrett
Annotate this CaseDecided on October 6, 2011
Supreme Court, Queens County
Wells Fargo Bank, N.A. AS TRUSTEE FOR STANWICH MORTGAGE LOAN TRUST, SERIES 2010-3 ASSET-BACKED PASS-THROUGH CERTIFICATES, Plaintiff,
against
Clover M. Barrett, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY TRANSIT ADJUDICATION BUREAU AND 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 mortgage premises), Defendants.
13034/11
Robert J. McDonald, J.
The following papers numbered 1 to 10read on this motion by defendant Clover M. Barrett, appearing pro se, (1) to dismiss the complaint asserted against her with prejudice pursuant to CPLR 3211(a)(3) and (10), and CPLR 1001 and RPAPL 1303 and 1304, to dismiss the complaint asserted against her pursuant to CPLR 3211(a)(7); or in the alternative to direct a hearing on the issue of whether plaintiff is the owner of the mortgage and note, (2) to cancel the notice of pendency, and (3) for an award of costs on this motion.
Papers [*2]
Numbered
Notice of Motion - Affidavits - Exhibits..............1-4
Answering Affidavits - Exhibits.......................5-7
Reply Affidavits......................................8-10
Upon the foregoing papers it is ordered that the motion is determined as follows:
Plaintiff commenced this action seeking foreclosure of a mortgage allegedly executed and delivered by defendant Barrett with respect to the real property known as 86-01 Marengo Street, Holliswood, New York, to secure repayment of a promissory note made by her, evidencing a loan in the principal sum of $1,000,000.00, plus interest. In lieu of serving an answer, defendant Barrett moves to dismiss the complaint asserted against her with prejudice, on the grounds that the complaint fails to state a cause of action against her, plaintiff lacks standing and capacity to sue, plaintiff failed to join an indispensable party, and plaintiff failed properly to serve the notices required pursuant to Real Property Actions and Proceedings Law §§ 1303 and 1304.
Plaintiff opposes the motion asserting, among other things, that it is untimely made. Defendant Barrett argues the motion is timely, and that in any event, plaintiff's opposition papers should not be considered by this court because they were untimely served.
Defendant Barrett's motion was noticed to be heard on August 8, 2011 and contained a demand, pursuant to CPLR 2214(b), that all answering papers be served no later then seven days prior to the return date. Plaintiff's service of its opposition papers on August 11, 2011 by overnight mail was one day late (CPLR 2103[b][6]). However, the court in an exercise of its discretion shall read and consider plaintiff's opposition papers in deciding the motion (CPLR 2214[c]). Defendant Barrett was not prejudiced by plaintiff's minimal delay (see Guzetti v City of New York, 32 AD3d 234, 234 [2006]), since the motion was adjourned administratively until August 18, 2011, and plaintiff submitted a reply dated August 17, 2011, which has been read and considered on this motion.
Contrary to defendant Barrett's argument, her motion is untimely, having been made on July 11, 2011, 18 days after the expiration of the 20-day period prescribed by CPLR 320(a), in which to serve an answer or notice of appearance, or move in relation to the summons or complaint (see CPLR 3211[e]). Defendant Barrett, however, alternatively seeks to extend her time to make the motion to dismiss (see CPLR 2004), and plaintiff does not cross move for leave to enter a default judgment against her. Defendant Barrett's delay in making the motion was short, there is no prejudice to plaintiff, there are potentially meritorious defenses and there is a strong public policy favoring resolution of cases on their merits (see Hense v Baxter, 79 AD3d 814 [2010]). The court, in an exercise of discretion, excuses the delay by defendant Barrett in responding to the complaint, and grants defendant Barrett leave to extend her time to make the motion nunc pro tunc to July 11, 2011. [*3]
Defendant Barrett asserts that plaintiff failed to comply with the mandatory conditions precedent to the commencement of a foreclosure action, by failing properly to serve her with notices pursuant to RPAPL 1303 and 1304. She avers in her affidavit dated July 11, 2011, she never received any notice pursuant to RPAPL 1303 and 1304 from plaintiff.
Plaintiff contends that it complied with the mandatory condition precedents by properly serving defendant Barrett with the RPAPL 1303 and 1304 notices. It offers an affidavit of service dated June 27, 2011, of a licensed process server, indicating that service of a copy of the summons and complaint, a debt validation letter and the notice pursuant to RPAPL 1303, was made on defendant Barrett by in-hand delivery of those items to her on June 23, 2011 at approximately 2:02 P.M. at 338 Atlantic Avenue, "Ground Floor," Brooklyn, New York, and that the notice was printed on blue paper, the title of the notice appeared to be in bold 20-point type, and the text appeared to be in bold, 14-point type. Plaintiff also offers two copies of a notice allegedly sent to defendant Barrett at the mortgaged premises pursuant to RPAPL 1304 by certified mail and regular mail.
In her reply affidavit dated August 17, 2011, defendant Barrett denies receipt of a RPAPL 1303 notice, and challenges the veracity of the process server and certain contents of his affidavit. She states that in connection with this case, a process server never asked her if she was in the military, or if she resided at the mortgaged premises. She avers that she resides, and continues to receive mail, at the mortgaged premises, and does not recall ever receiving any notice pursuant to RPAPL 1304 by certified or first class mail.
RPAPL 1303, as most recently amended on January 14, 2010, requires that "[t]he foreclosing party in a mortgage foreclosure action, involving residential real property shall provide notice to: (a) any mortgager if the action relates to an owner-occupied one-to-four family dwelling; and (b) any tenant of a dwelling unit in accordance with the provisions of this section." The statute sets forth the specific language and procedures of the notice, requiring that it "shall be in bold, fourteen-point type and shall be printed on colored paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold, twenty-point type. The notice shall be on its own page." "Notice pursuant to RPAPL 1303 must be delivered' with the summons and complaint in the foreclosure action (RPAPL 1303[2]), and proper service is a condition precedent to the commencement of the action which is the plaintiff's burden to meet (see [First Natl. Bank of Chicago v Silver, 73 AD3d 162, 169 (2010)])" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 102 [2011]). Failure to meet the mandatory condition results in dismissal of the foreclosure action (see First National Bank of Chicago v Silver, 73 AD3d 162, 166 [2010], supra; Board of Directors of House Beautiful at Woodbury Homeowners Assn. v Godt, 32 Misc 3d 366 [2011]).
RPAPL 1304 provides with regard to a home loan, that, inter alia, at least ninety days before a lender begins an action against a borrower to foreclose on a mortgage the lender must provide notice to the borrower that the loan is in default and his or her home is at risk (see Aurora Loan Services, LLC v Weisblum, 85 AD3d 95 [2011], supra). "[P]roper service of the [*4]RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of the foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Services, LLC v Weisblum, 85 AD3d at 107). A plaintiff's failure to show strict compliance requires dismissal (see Aurora Loan Services, LLC v Weisblum, 85 AD3d at 103).
Although the process server indicates in his June 27, 2011 affidavit that defendant Barrett denied she resides at the mortgaged premises, plaintiff makes no claim that RPAPL 1303 is inapplicable to this action insofar as the property is not "owner occupied" or improved with a "one-to-four family dwelling." Under such circumstances, plaintiff was obligated to show strict compliance with RPAPL 1303. Plaintiff, however, has failed to submit to this court, in opposition to the motion, a copy of the RPAPL 1303 notice purportedly delivered by the process server to defendant Barrett.
In addition, plaintiff has failed to submit proof of service of the RPAPL 1304 notices. Plaintiff's counsel states in his affirmation dated August 11, 2011 that "[u]pon information and belief, on or about August 17, 2010, Plaintiff mailed, via certified and regular mail pursuant to NY RPAPL 1304, two (2) copies of the 90 Day Notice to the Mortgaged Premises and Defendant [Barrett's] notice address." Such affirmation is not based upon personal knowledge, and thus, does not constitute proper proof of service (see Aurora Loan Services, LLC v Weisblum, 85 AD3d 95, 106 [2011] ["(n)or did (the plaintiff) submit an affidavit of service to establish proper service .[on the borrower] by registered or certified mail and also by first-class mail' to [the borrower's] last known address (RPAPL 1304[2])"]). Plaintiff does not offer any other proof of proper service of the RPAPL 1304 notices upon defendant Barrett. Furthermore, the copies of the RPAPL 1304 notices submitted to the court, do not contain all of the statutorily-mandated content in that they do not include "a list of at least five housing counseling agencies as designated by the division of housing and community renewal, that serve the region where the borrower resides" with "the counseling agencies' last known addresses and telephone numbers" (RPAPL 1304[2]). Plaintiff, furthermore, makes no argument that any failure to include list and addresses and numbers should be disregarded pursuant to CPLR 2001.
Under such circumstances, plaintiff has failed to show strict compliance with RPAPL 1303 and RPAPL 1304, and the motion by defendant Barrett is granted to the extent of dismissing the complaint for failure to comply with RPAPL 1303 and 1304 and canceling the notice of pendency.
Dated: Long Island City, NY
October 6, 2011
______________________________
ROBERT J. McDONALD
J.S.C.
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.
