Countrywide Home Loans, Inc. v Cano

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Countrywide Home Loans, Inc. v Cano 2013 NY Slip Op 32071(U) August 26, 2013 Supreme Court, Suffolk County Docket Number: 08-29145 Judge: Jerry Garguilo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx and Westchester County Clerks' offices. This opinion is uncorrected and not selected for official publication. [* 1] XPY INDEX NO. 08-29145 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 47 - SUFFOLK COUNTY PRESENT: Moll. MOTION DATE 3 -6- 13 ADJ. DATE 3-27- 13 Mot. Seq. # 002 - MotD JERRY GARGUILO Justice of the Supreme Court X FRENKEL, LAMBERT, WEISS, WEE IAN & GORDON, LLP Attorney for Plaintiff 53 Gibson Street Bay Shore, New York 11706 COUNTRYWIDE HOME LOANS, INC., Plaintiff, - against - JEREMY C.4N0, CRISTINA CANO, and JOHN DOE # I through JOHN DOE #IO , the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the Mortgage premises described in the complaint, : : : : : : JEREMY & CRISTINA CANO, Prose 41 North Prospect Avenue Patchogue, New York 1 1772 Defendants. X IJpon the following papers numbered I to 1 read on this motion to vacate order of reference ; Notice of Ma ml ] Order to Show Cause and supporting p,spers 1 - 5 ; Notice of Cross Motion and supporting papers -; Answering Affidavit, nd Yl-t supporting papers 6 - 8 ; Replying Affidavits and supportingpapers 9 - I 1 ; Other -; ( V ) - it is. ORDERED that the branch of this motion by plaintiff to vacate the prior order of reference df d September 2 I . 2009 and entered on October 13, 2009 in the Suffolk County Clerk s Office. and upon ie filing o f a nebv affidavit of merit for the issuance of a new order of reference is denied, and the action continued: and it is further ORDERED that the branch of this motion to aniend paragraph Second and paragraph Sixtl of the complaint, nunc pro I U M C , to correct typographical errors is granted; and it is further ORDERED that the branch of this motion to amend the caption is granted; and it is [* 2] Countrywide L Carlo Index No. 08-29 145 Page No. 2 ure ORDERED that the Ckrk of this Court is directed to amend the caption as follows, and all pleadings and papers will use the amended caption: X BANK OF AMERICA, N.A., db/m to BAC HOME LOANS SERVICING, L.P.. fllda COUNTRYWIDE HOME LOAN SERVICING L.P., Plaintiff, -againstJEREMY C.4N0, CRISTINA U N O , Defendants. The plaintifl commenced this mortgage foreclosure action in August 2008, six months after subject mortgage went into default, and it moved for an order of reference in February 2009. That application was granted by Justice Melvyn Tanenbaum, retired, by order dated September 2 1,2009. such order, the court fixed the defaults of the mortgagor defendants, Jeremy and Cristina Cano, as tl had failed to interpose an answer or oppose the application, removed the John Doe defendants from action and amended the caption to reflect same, and appointed a referee to compute the amounts due under the mortgage. 1 By the instant motion, the plaintiff moves for an order vacating the September 2 1, 2009 orde the issuance of a new order of reference predicated upon a new affidavit of merit, and to amend the caption to reflect Bank of America, N.A., the successor in interest by merger, as the plaintiff. On September 23, 2009, two days after plaintiff obtained the order of reference dated September21. 2009 (the Order of Reference ). Jeremy Can0 filed a Chapter 7 Bankruptcy petition; order dated January 26, 201 0, the case was closed. 1 Subsequently, in December 201 1, plaintiff retained new counsel. Underlying the instant application for vacatur of the Order of Reference is an apparent inability on the part of plaintiffs curl t counsel to comply with the requirements of Administrative Order 548- 10, as amended by Administra e order 43 1 - 1 1 (the Administrative Order ). The Administrative Order mandates the submission of a1 affirmation bl. the mortgagee s counsel verifying, among other things, the accuracy of the notarizatio contained in the supporting documents filed with the foreclosure action. Counsel is required to repre It that he or she communicated with a representative of the plaintiff who reviewed the documents and records relating to the action and the papers filed with the court, and confirmed their factual accuracy and the accuracy of the notarizations contained therein. The plaintiffs counsel is further required to represent that, based upon such communication and counsel s own inspection of the papers, to the be of counsel s knouledge, information and belief, the filed documents are complete and accurate in all [* 3] Countrywide \ Cano Index No. 08-29145 Page No. 3 relevant respects. Her?, plaintiff s counsel states, the plaintiff is unable to confirm that a proper review of the records was made and a propeir notary taken when the prior affidavit ...in support of the previous ord$r, was signed. Armed with the new affidavit of merit submitted with the moving papers, counsel assdrts that he may now attest to the accuracy of the facts set forth therein. Counsel thus requests the court vacate the order of reference and issue a new one re-fixing the defaults in answering of the mortgagdr defendants and appointing a new referee to compute. For the reasons stated below, this application i/s denied The Administrative Order initially issued by the Chief Administrative Judge of the State of q e w York on October 20, 2010, and amended March 2, 201 1, provides that in cases pending on the effectkve date thereof; where no judgment of foreclosure has been entered, the attorney affirmation is requiredito be filed at the time of filing of either the proposed order of reference or the proposed judgment of foreclosure (Flagstar Bank v Beilafiore, 94 AD3d 1044, 943 NYS2d 55 1 [2d Dept 20121; US Bank1 NA v Boyce, 93 AD3d 782,940 NYS2d 656 [2nd Dept 20121). The instant mortgage foreclosure action was pending at the time of the effective date of the Administrative Order, and the plaintiff filed its proposed order of reference in February 2009, approximately 18 months before the Administrative Order issued. Thus, the plaintiff could not have filed the attorney affirmation pursuant to the Administrative Order when it filed its proposed order of reference. Based on the plain language of the Administrative Order, the plaintiff is therefore required to file the attorney affirmation at the time it files the proposed judgment of foreclosure (Flagstar Bank 1, Bellafiore, Jzipra; Z S Bank, NL4v Boyce, supra). Thus, no basis has been set forth to vacate the ord$r J of reference: therefore, denied is the branch of the motion for vacatur and the issuance of a new orderi of reference. Denial is warranted on another ground. It is elementary that a final judgment or order a valid and conclusive adjudication of the parties substantive rights ... (Da Silva v Masso 76 440, 560 NYS2d 109 [ 19901). Doctrines such as law of the case, collateral estoppel and full faith an credit generally serve to protect the sanctity and finality of litigated judicial orders and doctrine of res judicata does so for such orders and those issued upon default (see Prop., Inc.. 82 AD3d 733, 918 jYYS2d 51 1 [2d Dept 201 11; 83-27 B ~ O ~ W ~ J Debcon Fin. Corp. v J Serv., Inc., 39 AI13d 583, 835 NYS2d 602 [2d Dept 20071; Rosendale v Citibank, 262 AD2d 628, 691 NYS2d 901 j2d Dept 19991). ~ I he order of reference issued herein is a sufficiently final adjudication of the defaults in answering of the defendants and/or the merits of the plaintiffs claims for foreclosure and sale (see Citicorp Mtge. Inc. v Strong, 227 AD2d 8 18, 642 NYS2d 423, 642 NYS2d 423 [3d Dept 19961; see ~ ~ l Sussman v Jo-Sta Real@ Corp., 99 AD3d 787, 951 NYS2d 683 [2d Dept 20121). It thus s o constitutes a conclusivc adjudication of all questions at issue between the parties and all matters of defense which were raised or could have been raised by any of the defendants (see Richter v Sportsm n Prop., Inc., \iiprn; 83-1 7 Brondway Corp. v Debcon Fin. Serv., Inc., stpru; Rosendale v Citibank, ~ t i p ~ uLong standing rules, such as res judicata and law of the case, which govern the sanctity afforl ed ). [* 4] Countrywide v Cano Index No. 08-29145 Page N o . 4 jiidicial orders, decisions and j udgments, all serve to protect the unquestioned order of reference fro1 1 attack (see Rizzo v Ippolito, 137 AD2d 51 1, 524 NYS2d 255 [2d Dept 19881; see also Citicorp Mtg Wait v Lmdemark, 49 Hun 612, 2 NYS 265 [3d Dept I888l). Inc. v Strong. asi/pm; The branch of the motion to amend the caption to reflect, . Bank of America, NA. slbim to B IC F Iome Loans Servicing, L.P., f%/a Countrywide Home Loans Servicing, L.P., as plaintiff is grantec It has been established that subsequent to the commencement of this action, on December 28,2009, plaintiff assigned the note and mortgage to BAC Home Loans Servicing LP, which was formerly kn iwn as Countrywide Home Loans Services LP. Thereafter, on July 1, 201 1, BAC Home Loan Servicing. LP was acquired by and merged with Bank of America, N.A ( BANA ). Banking Law 5 602, which governs the effect o f a merger, provides that the receiving bank hall be considered the same business and corporate entity as the bank merged into it, and that all of the f property, rights, and powers of the merged bank shall vest in the receiving bank (Ladino v Bank o America, 52 AD3d 571, 861 NYS2d 683 [2d Dept 20081). Moreover, BANA is considered to have 1 een named in any document taking effect before the merger (Barclay s Bank ofNew York, N.A. v Smit4 S Ranch, Inc., 122 AD2d 323, 504 NYS2d 295 [3d Dept 19861). Thus, as successor by merger, BAN, i is now the real party in interest. Therefore, the caption is hereby amended. The court will deem the plaintiffs motion as one to include leave to amend, and grant its reqi est to amend the complaint, nunc pro zunc, to correct two typographical errors. Leave to amend the complaint should be freely granted absent prejudice (CPLR 3025[b]; Edenwald Contracting CO.,Inc v. City of New York, 60 N.Y.2d 957, 471 NYS2d 55 [1983]). Plaintiff seeks to amend paragraph Secc id of the complaint to reflect that only Jeremy Cano, and not Cristina Cano, signed the note, and paragr: Ph 3 i x t h to correct the date from which interest accrued from January 1, 2008 to February 1 , 2008. TI :re is no indication of prejudice to defendant and no substantive rights affected by an amendment, nunc^ 0 tunc (see generrrlly iMadison Plzysical Tlzerapy, P. C. v 3311 Shore Parkway Realty Corp., 79 AD3d I 978, 91 2 NYS2d 889[2d Dept 20101; Key Bank, NA v Stern, 14 AD3d 6 5 6 , 789 NYS2d 297 [2d Dei t 20051; Poughkeepsie Sav. Bank FSB v Maplewood Land Dev. Co., Inc., 201 AD2d 606,620 NYS2 I 161 [3d Dept 19941). The mortgagor defendants assertion in opposition that they join in that part of the plaintiffs motion which seeks to vacate the order of reference, and their assertion that the plaintiff does not havc standing, are both unavailing. The mortgagor defendants have waived the defense of lack of standing have failed to make a cross motion seeking any affirmative relief, and have failed to move to vacate th :ir default judgment. It is now ne11 established that standing is an affirmative defense which is waived by a defendai t who fails to interpose an answer or file a timely pre-answer motion pursuant to CPLR 32 I 1(e) assertin 7 such a defense (HSBC Bank USA, NA v Talzer, 104 AD3d 815, 962 NYS2d 301 [2d Dept 20131; Bar k c f N . Y. v Alrlemzi, 99 AD3d 837, 951 NYS2d 900 [2d Dept 20121; JPMorgan Chase Bank, N.A. v Bailer, 92 AD3d 64 1. 938 NYS2d 190 [2d Dept 20 121; Deutsclie Bank Natl. Trust Co. v Hussain, 78 AD3d 989. 9 12 NYS2d 595 [2d Dept 20 IO]); Wells Fargo Bank Minn., NA v Perez, 70 AD3d 8 17, 8 4 NYS2d 509 [2010);lecrve to uppeul denied, 14 NY3d 710, 903 NYS2d 769 [2010], cert. denied, 131 S [* 5] Countrywide v Cano Index No. 08-29 145 Page No. 5 Ct 648 [2010]); HSBC Bank, IUSAv Damrnond, 59 AD3d 679,875 NYS2d 679 [2d Dept 20091; Wells Fargo Bank Minn., N.A. v Mmtropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 20071). A plaintiff is thus under no obligation to plead and prove its standing in the first instance. It is only where standing is put in issue by a defendant s answer or pre-answer motion that the plaintiff must prove it has standing (see Deutsclze Bank Natl. Trust Co. v Wlzalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 20131; Wells Fargo Bank Minn, NA v. Mastropaolo, supra; US Bank, NA v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009 1; TPZ Corp. v Dabbs, 25 AD3d 787, 808 NYS2d 746 [2d Dept 20061; see also Society of Plastics Indus. v County o Suffolk, 77 NY2d 761,570 NYS2d 778 [1991]). Here, having f failed to interpose an answer or file a timely pre-answer motion asserting the defense of lack of standing, the mortgagor defendants waivl2d this defense (see Bank o N. Y. v Alderazi, supra; Deutsche Bank f Natl. Trust Co. v Hussain, supra; HSBC Bank, USA v Darnrnond, supra; Wells Fargo Bank Minn., N.A. v. Mastropaolo, supra). In addition, to the extent that the mortgagor defendants purport to join in that part of the plaintiff s motion which seeks to vacate the order of reference, such relief is not available as they have failed to interpose a demand for relief pursuant to a notice of motion or cross motion (see generally CPLR 22 14 and 22 15; Dossous v Corporate Owners Bayridge, Nissan, Inc., 10 1 AD3d 937,956 NYS2d 174 [2d Dept 20121; Chun v North American Mtge. Co., 285 AD2d 42, 729 NYS2d 716 [lst Dept 200 11; Bauer v Facilities Dev., 2 10 AD2d 992, 62 1 NYS2d 8 15 [4th Dept 19941). Moreover, they have not sought relief from their default (see Deutsclze Bank Trust Co., Americas v Strrthakis, 90 AD3d 983, 935 NYS2d 651 [2d Dept 201 I]; McGee v Dunn, 75 AD3d 624,906 NYS2d 74 [2d Dept 20101). Accordingly, the plaintif rs motion is granted to the extent that the caption is amended and the complaint is amended, numpro I Z I M C ; the motion is otherwise denied, as is any relief requested by the defendants.

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