JP Morgan Chase Bank v Leschins

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JP Morgan Chase Bank v Leschins 2011 NY Slip Op 32861(U) October 18, 2011 Supreme Court, New York County Docket Number: 117007/09 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] ' SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY w.JOAN A. MADDEN PRESENT: Il PART - Index Number : 11700712009 INDEX N O . JPMORGAN CHASE BANK, N.A. vs. LESCHINS, EILEEN WEISS MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. SEQUENCE NUMBER : 002 APPT REF COMPUTEEXAMINE ACCT ..l_.dl ...V.. Y..d -.__. -..-__ ." Anawerlng Affldavlta l _u I I -..._Y...V this motlon tolfor -xhlbits I I ... - Exhiblts I Replying Affidavits Cross-Motion: PAPEW NUMBERED m s a No c c NEW YORK cou~\sTy CLERK'S OFFICE A Check one: =NAL Check if appropriate: DISPOSITION c -NON-FINALDlSPOSlTlOril ] a DO NOT POST REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11 _______f_-_-r---------------------------------------------------------------- JP MORGAN CHASE BANK,NATIONAL ASSOCIATION AS SUCCESSOR IN INTEREST TO WASHINGTON MUTUAL BANK, FA, THROUGH FDIC RECEIVERSHIP, X INDEX NO. 117007/09 Plaintiff, -againstEILEEN WEISS LESCHINS; MOLLLE LESCHINSKY; BOARD OF MANAGERS TWO COLUMBUS AVENUE CONDOMINlUM C/O GUMLEY-HAFT REAL ESTATE; CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; UNITED STATES OF AMERICA O W 0 INTERNAL REVENUE SERVICE; JOHN DOE #1-5 AND JANE DOE #1-5 said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein; FILED OCT 25 2011 NEW YORK COUNTY CLERK SOFFICE Defendants. JOAN A. MADDEN, J.: In this action to foreclose a mortgagq, plaintiff moves for an order pursuant to RPAPL 1321 granting an Amended Order of Reference Appointing a Referee to Compute. Defendant Eileen Weiss Leschins ( defendant ) opposes the motion and cross-moves to vacate her default Plaintiff previously moved for the identical relief (motion sequence no. 00 1). Although that motion w s served on defendant s counsel by mail, defendant defaulted and submitted no a opposition. In an order dated August 17,20 10, this court granted the motion on default, but at plaintiff s request that order WBS vacated. Plaintiff explains that the previous order of reference contained a clerical error, in that Mollie Leschinsky was not a necessary party and should not have been included in the caption, having been deceased on December 1 1, 200 1, and whose interest transferred to defendant Eileen Weiss Leschins, who held title t o the premises being foreclosed herein as surviving tenant with right of survivorship. 1 [* 3] Y in failing to answer, for leave to serve a late answer, and for an order directing plaintiff to provide her with a reinstatement letter. RPAPL 1321 permits a cowt in a mortgage foreclosure action, upon defendant s default or defendant s admission, to appoint a referee to compute the amount due to the plaintiff. Here, plaintiffs application for an order of reference is a preliminary step towards obtaining a _ _- default judgment of foreclosure and sale. &g pome S a v u of America. IF .A. v. G k w 230 os, AD2d 770 (2nd Dept 1996); w t u r e Bank v. 1775 East 17 Street, LLC, 32 Misc3d 124(A) (Sup Ct, Kings Co 201 1). To successfully oppose a motion for a default judgment based on the failure to serve a timely answer, defendant must demonstrate both a reasonable excuse for not answering the complaint, and a meritorious defense to the action. &g HSBC Eank USA, NA v. Roldan, 80 AD3d 566 (2 dDept 2011); Johnson v, De%,32 AD2d 253 (lEt Dept 2006); ICBC Broadcasting Inc. v. Prime Time Advertishg. Inc., 26 AD3d 239,240 (1 Dept 2006); 31 14 WesJ --NY. 2 t $beet Assocs LP v. F o a ,22 AD3d 346 (lstDept 2005). Defendant satisfies neither 6h requirement. The action seeks to foreclose on a mortgage dated May 25, 1999, on condominium unit #7A, in the building located at 2 Columbus Avenue, New York, New York. The mortgage was given by defendant Leschins and co-defendant Mollie Leschinsky, to secure a loan in the amount of $550,000. Plaintiff commenced this action on December 3,2009. Defendant Leschins does not dispute that she was served with the summons and complaint on December 16,2009. On January 12,2010, defendant s counsel filed a notice of appearance without an answer, and wrote a letter to plaintiff s counsel, requesting a reinstatement letter . . . including a complete 2 [* 4] breakdown of all of the costs of reinstatement and indicating what the monthly payments will be upon reinstatement. Defendant asserts that plaintiffs counsel did not respond to the letter and instead commenced this action, and that plaintiff and its counsel have been Unresponsive and uncooperative. Although defendant s counsel filed a notice of appearance, defendant nevertheless defaulted in this action by not serving an answer. &g US Bank National Assmiation V. Slavinski, 78 AD3d 1167 (2nd Dept 2010). Defendant now seeks to interpose a late answer, but the cross-motion papers do not include a copy of the proposed answer. As the excuse for her default in answering the complaint, defendant merely states that she did not answer because she intended to reinstate the mortgage and settle the action. While defendant and her attorney state that they had (and still have) every intention of settling this action and reinstating the mortgage, the record shows otherwise. In May 201 0, the the parties first appeared before this court for oral argument on the motion and cross-motion. At that time, defendant s counsel expressed his client s desire to settle this matter and requested a reinstatement letter. As a result, over the course of more than a year, the parties made numerous appearances before this court and the court granted numerous adjournments, all in an effort to provide defendant with an opportunity to work out a settlement with plaintiff. That effort, however, has proved unsuccessful, In June 201 0 and again in August 20 10, plaintiff provided defendant with reinstatement letters with reinstatement quotes listing arrears and other charges due. More than six months later, on February 14, 20 11, plaintiff wrote to defendant Leschins that [wle do not yet have all of the documents needed to process your request to participate in a loan modification program; the letter detailed the necessary documents and forms. Three 3 [* 5] months later, on May 9,20 1 1, plaintiff wrote to defendant Leschins that she was not eligible for a permanent loan modification through the federal Home Affordable Modification Program, because you did not provide us with the documents we requested. Shortly thereafter, on May 25,201 1, defendant s counsel advised this court and plaintiffs counsel, that his client had informed him that TD Bank had given her a verbal commitment )and that she would have a commitment letter after her banker returned on May 30,201 1. Defendant subsequently failed to comply With the court s directive to send a copy of the commitment letter immediately to plaintiff. In view of the foregoing, defendant s proffered excuse that she had every intention of reinstating the mortgage and settling the action, is not reasonable under the circumstances. Defendant likewise fails to demonstrate a meritorious defense to this foreclosure action. Her bare and conclusory allegations as to predatory lending practices) and an interest rate that far exceeded the adjustable rate in the mortgage, are insufficient to establish a meritorious defense. Accordingly, it is ORDERED that defendant s cross-motion is denied in its entirety; and it is further ORDERED that plaintiffs motion is granted and the court is signing the proposed amended order of reference annexed to plaintiff s motion papers. DATED: October /( ,201 1 ENTER: n

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