Aurora Loan Servs. LLC v Brescia

Annotate this Case

Download PDF

Aurora Loan Servs. LLC v Brescia 2013 NY Slip Op 32663(U) October 15, 2013 Supreme Court, Suffolk County Docket Number: 09-37903 Judge: Arthur G. Pitts 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 County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No . 09-37903 SI IORT FORM ORDER SUPREME COURT- STATE OF NEW YORK I.A.S . PART 43 - S FFOLK COUNTY PRESENT: Hon. MOTION DI\ TE 4-25-13 ADJ. D/\TE Mot. Seq . # 001- MG # 002- XMD ARTHUR G. PITTS Justi ce of the Supreme Court ---------------------------------------------------------------)( AURORA LOAN SERVICES LLC 2617 College Park Drive Scottsbluff, NE 69361 I ROSICKI, ROSICKI & A SOCJJ\.TES , P.C. Attorneys for Plaintiff 26 Harvester J\. venue Batavia, New York 14020 Plaintiff, - against MICHAEL BRESCIA, CACH LLC, LVNV FUNDING LLC NPIO CITIFINANCIAL INC., TEACHERS FEDERAL CREDIT UNION, TOWN SUPERVISOR TOWN OF BROOKHAVEN, FRED M . SCHWARTZ Attorney for Defendant Michael Brescia 317 M iddle Country Road Smithtown, New York 11 787 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 mortgaged premises.) Defendants. ---------------------------------------------------------------)( Upon the follow ing papers numbered l to_ll__ read on this motion for an order of reference ; Notice of Motion/ Order to Show Cause and supporting papers I - I0 ; N tice of Cross Motion and supporti ng papers I I - 21 ; /\nswering Affidavits and supporting papers 22 - 23 ; Replying Affidavits and supporting papers 24 - 25 ; Otlte1 _ , (a11d afle1 hea1 ilig counsel iii .~upport alid o ppo ~ed to th e 111otiM) it is, UPON DUE DELIBERATIO AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that this motion (001) by plaintiff Aurora Loan Services LLC (Aurora), for an order awarding plaintiff a default j udgment against the non-answering, non-appearing defendants for an order of [* 2] Aurora v Brescia Index o.: 09-37903 Page o.: 2 reference appointin g a referee to compute pursuant to Real Property Actions and Proceedings Law ~ 1321 and , for leave to amend the caption of this action pursuant lo CPLR 3025 (b), is granted· and it is Curther ORDERED that the caption is hereby amended by substituting Federal alional Mortgage /\ssociution in place of plaintiff Aurora, by substituting Del ila De.Jesus in place of defendants ".John Docs" and "Jane Does" and by striking therefrom the names of the remaining "John Docs'· and ".lane Docs'"; and it is rurther ORDERED that Plain iffis directed to serve a copy of this order amend ing the caption of this act ion upon the Calendar Clerk of this Court; and it is further ORDERED that the caption of this action hereinafter appear as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK FEDERAL NATIONAL MORTGAGE ASSOCIATION Plaintiff -against- MICHAEL BRESCIA, CACH LLC, LVNV FUNDING LLC A/P/O ClTIFJNANCIAL f C., TEJ\CTIERS FEDERAL CREDIT UNION TOWN SUPERVISOR TOWN OF BROOKHAVEN, DELlLA DE.J ESUS, Defendants. ORDERED that the branch of this cross motion (002) by defendant Michael 13rcscia (13rescia) for an order pursuant to CPLR 215(c) dismissing the complaint on the ground s that plaintiff failed to take proceedings for ti' e entry or a judgment within one year of defendant's defaul t and for an order pursuan t to CPLR 32 11(a)(7) dismissing the complaint on the grounds that plain tiff has fa i cd to state a cause or action, is denied; and it is fu rther ORDERED that the branch of the cross motion (002) seeking an order pursuant to CPLR 301 2(u) compelling plaintiff to accept the late answer interposed by defendant is denied . This is an action to foreclose a mortgage on premises known as 37 Swezey Lane, Middle fsland, New York . On July 31. 2007, defendant Brescia executed an adjustable rate note in fav or of Lehman Brothers Bank. FSB (Lehman) ag cc ing to pay $417,000.00 at the sta1ting yearly rate of 9.225 )Crcent. On July J 1. [* 3] /\urora v Brescia Ind ex o.: 09-3 7<)03 Page o. : 3 2007. defendant Brc cia xecuted a mortgage in the principal su m or $4 17,000.00 on his home. The mortgage ind icated Lehman to be the lender and Mortgage Electronic Registrat ion Systems. Inc. (Ml'.l~S) to be the nomi1 cc of Lehman as we ll as the mortgagee ofrccord for the purposes of'n::con.li ng the mortgage. The mortgage was recorded on August 14, 2007 in the Suffolk County Clerk ·s Office. Thcrcarter, on August 20, 2009, the mortgage an note were transferred by assignment of mortgage fro m M ERS to plai nli fT/\urora and recorded on October 2, 2009 with the Suffolk County Clerk's Office. The note contains an indorscmcnl by E. Todd Whittemore, vice president Lehman Brothers Bank, FSB transferri ng the note l"rom l ,chman Brothers Bank FSB to L bman Brothers Holding Inc. and the blank indorsemcnt r Paul E. Sveen, authorized signatory fo r L hman Brothers Holdings Inc. Aurora Loan Services sent a notice of default dated March 16, 2009 to defendant Brescia staling that he had defaulted on hi s mo rtgage loan and that the amount past clue was $2 9,432.79 . /\.s a result of defe ndants· continuing default, plaintiff commenced this foreclosure action on Septe mber 22 2009. In its complaint, plaintiff alleges in pert inent part, that defendant breached hi s ob li gati on · under the terms of the note and mortgage by failing to make the monthly payments commenci 1g with the September 1, 2008 payment. Defendant did not answer the complaint. However, he appeared through his atto rney . The Court ·s computerized records indicate that a foreclosure settlement con fercncc was held on January 7, 20 10 at which time this matter was referred as an IAS case since a resol ution or settlement had not been achieved. Thus, there has been compliance with CPLR 3408 and no further settlement conference is required. Plaintiff now moves for an order awarding a default judgment agai nst the non-answering, nonappcaring defendants and an order of reference appointing a referee to compute pursuant to Real Property Actions and Proceedings Law~ 132 1. Defendant Brescia in opposition to the in stant appli cation asserts that plaintiff s complaint should be dismi ssed on the basis that it failed to take proceedings for the entry of a j udgment within one year of defendant's default or in the alternative, th at plaintiff shou ld be compelled to accept his late <1nswer. Plaintiff has submitted opposition to the cross motion and defendant has submitted a reply ai'ri rmation. The court rejects defe nd ant ' s assertion that the plaintiff abandoned its claims under CJ>L R 32 15( c). CPLR 321 S(c) pro ides claimants with an excepti on to the otherwise mandat ory nature of that provision , namely. that any failure to move within one year of the default may be excused if sufficient cause is shown why the complaint shou ld not be dismissed (see CPLR 321 S[c]; Giglio v NT/MP, Inc .. 86 /\DJcl 30 1, 926 NYS2d 546 l2d Dept 201 1J). I !ere, th e subject property is a residential and impro ved with a one-to-four family . owner-occupied cl' cl lin g. /\.s such. pl aintiff fi led and served a request fo r judicial interve nti on seek ing a residentia l ro rcclosurc conference pursuant to CPLR 3408 . On January 7, 2010. a f'oreclosurc settlement conference was sc heduled however. defendant failed to appear and i.lS a result of his nonappcarnnce . this matter was referred to thi s !AS part. B y order dated March 3 1. 20 13 (P itt s. .I.) , thi s court directed that plaintiff lilc with the court any intended motion fo r an order of reference within ninety days of the dale of the de ision or face a potential dismissal of the action . Pl ainti fTtime ly co mplied wi th this court's directive by II ling the ins ant motion. Accordingly plainti tf s fi rbearanc · during the period awaiti11 0 the hol ding of the sett lement con fc rence and thereafter through at least the court' s order elated March 31 , [* 4] Aurora v Brescia Index No.: 09-37903 Page o.: 4 2013. is a ··suffici ent cause" for its failure to ha ve sought entry of a default ju gment against defendant Brescia within one year after his default (see CPLR 3215[c]; see also Ingenito v G'm111ma11 Corp .. 192 AD2d 509 596 Y 2d 83 [2d Dept 19931). Jn adc.lition, the plaintiff has offered proof that it was the hol der of the note at the time of the action ' s commencement (see Bank of New York v Silverberg, 86 AD3c.1 274, 926 YS2d 532 I2d Dept 20 11 J) and proof of defendant ·s defau lt in payment under the terms of the mortgage and note. Therefore, plaintiff has suffic iently demonstrated that it ias a meritorious claim (see Ryant v Bu/loci<, 77 AD3cl 811 , 908 NYS2d 884 f2d Dept 20 I O J). Defendant Br~scia also moves for an order permitting him to interpose an answer with affirmati ve defenses pursuant to CPLR 3012(d) in excess of three years six months after th commencement or this action . Defendant proffers as his reasonable excuse for the defaul t in th is aeti n that the summons and complaint were not given to him by Delila DeJe us, an alleged co-oc upant of the . ubject premises and, that it was not until after the time to respond that he became aware that the instant proceeding was commenced. It is well settled that a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defe nse to the action when ... moving to extend the time to answer or to compel the acceptance of an untimel y answer'' (see Maspetl1 Fed. Sav. & Loan Assn. v McGown, 77 AD3d 890, 89 I, 909 NYS2d 642 [2d Dept 201 0 J, quoting Lipp v Port Autll. of N. Y. & NJ, 34 AD3d 649, 649, 824 NYS2d 671 r2d Dept 20061; Karalis v New Dimensions HR, Jue. , I 05 AD3d 707, 962 NYS2d 647 [2d Dept 2013]; Swedbank, AB v Hale Ave. Borrower, LLC, 89 AD3d 922 932 NYS2d 540 [2d Dept 201 I]; Community Preservation Corp. v Bridgewater Co11do111i11i11ms, LLC, 89 AD3d 784, 932 NYS2d 378 [2d Dept 20 11l; Mifljirst Bank v Al-Ralmwn, 81 J\D3d 797, 917 YS2d 871 [2d Dept 2011 ]; Deutsche Bank Natl. Trust Co. v Rudman, 80 AD3d 65 I , 914 NYS2d 672 l2d Dept 20 I OJ). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Segovia v Deleon Constr. Corp. , 43 AD3d 1143, 842 YS2d 536 [2d Dept 2007 J; Matter of Gambardella v Ortov Liglzt., Inc., 278 AD2cl 494, 7 17 NYS2d 923 [2d Dept 2000]). I !ere the process server's affidavit of service constituted prima facie evidence of proper service upon defendant Brescia ursuant to CPLR 308 (2) and defendant s conclusory, und<::tailcd and unsubstantiated den ial of re eipt of the summo ns and complaint is insufficient to rebut the presumption of proper service created hy said affidavits (see, Beneficial Homeown er Service Corp. v Gira1tlt, 60 AD3d 984. 875 NYS2d 815 [2cl Dept 2009 J). No satisfactory excuse has been offered fo r the extreme <le lay in serving and Ii ling an answer in this matter. As the Court concludes that the defendant docs not have a reasonable excuse for defoulting in the action, it is unnecessary to address whether he has meritorious defenses (see Mi<ljirst Bank v A l- Raltma11, 81 AD3d 797 917 YS2d 87 I [2cl Dept 2011]; Deutsche Bank Natl. Trust Co. v Rudman, 80 AD3c.1651, 914 NYS2d 672 I2cl Dept 20101). Based upon the for going. plaintiffs r quest for an order f reference appointing a referee to compute the amount due plaintiff under the no te and mortgage is granted. Defendant's cross motion is denied in its entirety . [* 5] Aurora v Brescia Index No.: 09-37903 Page o.: 5 The proposed order appointing a referee to compute pursuant to RP /\PL~ 1321 is sign eel as modi ficd by the court. To the extent that either plaintiff or defendant have requested other forms o r relier hut have not supported such noti ced forms of re lief-with any allegations oflaw or fac t, the court denies such ar, Ii cations. Dated: October 15, 20 11 Fl AL DISPOSITION _K_ NON-FINAL DISPOSITION

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.