Credit Based Asset Servicing v Stokes
Annotate this CaseDecided on September 24, 2012
Criminal Court of the City of New York, Kings County
Credit Based Asset Servicing and Securitization, LLC, Plaintiffs,
against
Antionese Stokes; DISCOVER BANK; NYS SEPARTMENT OF TAXATION AND FINANCE; PORTFOLIO RECOVERY ASSOCIATES, LLC; CRIMINAL COURT OF THE CITY OF NEW YORK; NYC ENVIRONMENTAL CONTROL BOARD; NYC TRANSIT ADJUDICATION BUREAU; NYC PARKING VIOLATIONS BUREAU and "JOHN DOE" and "JANE DOE", the last two names being fictitious, said parties intended being tenants or occupants, if any, having or claiming an interest in, or lien upon the premises described in the complaint, Defendants.
4703/09
Attorney for Plaintiff
Sinead J. Daly, Esq.
Knuckles, Komosinski, & Elliott, LLP
565 Taxter Road
Suite 590
Elmsford, NY 10523
(914) 345-3020
Attorney for Plaintiff Antoinese Stokes
Jordan W. Kapchan, Esq. 99 Park Avenue
Suite 300
New York, NY 10016
(212) 692-9708
Francois A. Rivera, J.
By notice of motion filed June 12, 2012, under motion sequence one, plaintiff, Credit Based Asset Servicing and Securitization, LLC (Credit Based) has moved for, among other things, an order appointing a referee to compute, a default judgment and to amend the caption. The motion is unopposed.
BACKGROUND
On February 25, 2009, Credit Based commenced the instant action by filing a summons and verified complaint and a notice of pendency with the King's County Clerk's office. The action is to foreclose upon real property located at Block 5127 Lot 149, commonly known as 7 Oakland Street, in Kings County. The complaint alleges that the defendant, Antionese Stokes (Stokes) entered into a mortgage agreement with Fieldstone Mortgage Company (Fieldstone) on February 6, 2007. Thereafter, the note and mortgage were purportedly assigned to the plaintiff. Stokes defaulted on the agreement by failing to pay the interest and principal payments as they became due, as of February 1, 2008. By answer dated June 4, 2010, Stokes responded to the complaint.
MOTION PAPERS
The plaintiff's motion contains an affidavit from John Kontoulis, President of Kondaur Capital Corporation (Kondaur) and an attorney affirmation, as well as eight exhibits. Exhibit A is the notice of pendency, summons and complaint, the note, mortgage and the purported assignments. Exhibit B is a letter entitled "notice of default and intent to accelerate," dated June 2, 2008.
Exhibit C contains affidavits of service. Exhibit D contains a stipulation, a letter and a verified answer. The stipulation provides withdrawal of the answer and relinquishment of any and all rights to defend the action in exchange for plaintiff waiving all rights to a deficiency judgment. The stipulation is dated January 15, 2011, signed by plaintiff's counsel, Jordan W. Kapchan, Esq., attorney for Antionese Stokes and Antionese Stokes individually. Stokes' answer and affirmative defenses are included. Exhibit E includes an affidavit of non-military status and a document from Pacer meant to establish that Stokes is not currently a petitioner in a bankruptcy proceeding.
Exhibit F contains a limited power of attorney dated November 8, 2010, between Credit Based and Selene Finance LP and the attendant recording and endorsement page. Also within Exhibit F is an assignment of mortgage dated January 7, 2012, between Selene Finance, as attorney in Fact for Credit Based, to Kondaur Capital Corp. signed and acknowledged in Texas with a certificate of conformity by Donna Bammel, Vice President of Selene Finance.
Exhibit G is the OCA Affidavit required pursuant to Administrative Order 431/11 signed by Sinead J. Daly, attesting that to the best of her knowledge no false statements of [*2]fact or law are contained within the filings. The affirmation also attests that she communicated with Chris Modoc, the Foreclosure Specialist of Kondaur Capital to determine the accuracy of the documents. Exhibit H is the attorney affirmation attesting to the outcome of the mandatory foreclosure settlement conferences. The affirmation states that the matter was scheduled for a conference on March 15, 2011, and the defendant defaulted, resulting in the matter being released to the IAS part, and the instant motion.
LAW AND APPLICATION
In July 2006, the legislature enacted the Home Equity Theft Prevention Act, (HETPA) which amended certain sections of New York's Banking Law, Real Property Law and Real Property Actions and Proceedings Law. HETPA was enacted in July 2006. It consisted of amendments to the Banking Law, Real Property Law, and Real Property Actions and Proceedings Law (see e.g., Butler Capital Corp. v. Cannistra, 26 Misc 3d 598 [2009].
At issue here is the requirement added to foreclosure proceedings by RPAPL 1304 which requires specific pre-commencement notices that are condition precedents to foreclose. The underlying purpose of HETPA was to afford greater protections to homeowners confronted with foreclosure (First Nat. Bank of Chicago v Silver, 73 AD3d 162 [2nd Dept. 2010] quoting Senate Introducer Mem. in Support, Bill Jacket, L. 2006, ch. 308, at 7—9; Countrywide Home Loans, Inc. v. Taylor, 17 Misc 3d 595, 843 N.Y.S.2d 495).
The foreclosing party has the burden of showing compliance with the notice requirements. If the foreclosing party fails to establish that the statutory notices were satisfied the foreclosure action will be dismissed (First Nat. Bank of Chicago, 73 AD3d 162 [2nd Dept. 2010]). Furthermore, failure to comply with the notice requirements are not required to be plead as affirmative defenses in an answer (Id).
RPAPL 1304 requires that, with regard to a "high-cost home loan," a "subprime home loan" or a "non-traditional home loan," at least 90 days before a lender or mortgage loan servicer commences legal action against the borrower, including a mortgage foreclosure action, the lender or mortgage loan servicer must give the borrower a specific, statutorily prescribed notice. In essence, the notice warns the borrower that he or she may lose his or her home because of the loan default, and provides information regarding assistance for homeowners who are facing financial difficulty. The specific language and type-size requirements of the notice are set forth in RPAPL 1304(1). (see, Butler Capital Corp. v Cannistra, 26 Misc 3d 598 [2009].
The affidavit in support of the motion by Jon Kontoulis, President of Kondour states that "the loan is a sub-prime home loan as defined by section six-m of the banking law or a high-cost home loan as defined by section six-1 of the banking law." Therefore, RPAPL 1304 applies.
Pursuant to RPAPL 1304(2), the requisite 90-day notice must be "sent by the [*3]lender or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and if different, to the residence which is the subject of the mortgage. Notice is considered given as of the date it is mailed."
RPAPL 1304(1) does not apply "if the borrower has filed an application for the adjustment of debts of the borrower or an order for relief from the payment of debts, or if the borrower no longer occupies the residence as the borrower's principal dwelling." Furthermore, the 90-day notice required by RPAPL 1304(1) "need only be provided once in a twelve month period to the same borrower in connection with the same loan" (see RPAPL 1304[4]).
Accordingly, the court must ascertain whether or not the plaintiff has satisfied the statutory notice requirements. The affirmation of Ms. Daly, counsel for plaintiff, is insufficient to establish that the prerequisites of RPAPL 1304 has been met, or that the property being foreclosed upon is exempt. Ms. Daly states that the property was not now, nor will be occupied as the borrower's principal dwelling. This statement is in contrast to the documents submitted in support of the instant application. Specifically, the "borrower's obligations to occupy the Property" contained within the mortgage. The mortgage documents state that the borrower is obligated to occupy the property as her principal place of residence within 60 days of execution of the documents for at least one year. There is no allegation that the borrower did not comply with this provision in the mortgage or when she ceased to occupy the residence as her primary dwelling. In sum, Ms. Daly fails to assert a basis to establish that she has any personal knowledge of borrower's principal dwelling.
Furthermore, the affirmation of Jon Kontoulis states that "Kondour's records indicate that defendant Stokes does not reside at the premises known as 7 Oakland Place, Brooklyn, New York. . .Stokes was served at her current address of 650 Ocean Avenue". Mr. Kontoulis also states that the mortgage was assigned to Kondour by assignment of mortgage dated January 7, 2012, approximately three years after commencement of the instant action. Mr. Kontoulis does not establish that he has any personal knowledge as to where defendant's primary residence was at least 90 days prior to the commencement of the action. Therefore, his affidavit is also insufficient to establish that RPAPL 1304 was complied with, or that there was an exception to compliance.
Thus, plaintiff has not made out a prima facie case that it is entitled to foreclose on the mortgage in question. Plaintiff has failed to establish that RPAPL 1304 has been satisfied, or that the condition precedents of RPAPL 1304 are inapplicable to the instant action. Therefore the instant application is denied
The plaintiff is given leave to renew the application filed with motion support on or before November 26, 2012. The renewed motion must demonstrate by an individual with personal knowledge, among other things, compliance with RPAPL 1304, or to establish that the statutory prerequisites are inapplicable. In the event that a renewal [*4]motion is not made within the permitted time frame the action will be dismissed without prejudice.
This constitutes the decision and order of the court.
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