Wells Fargo Bank, NA v Concepcion

[*1] Wells Fargo Bank, NA v Concepcion 2013 NY Slip Op 50271(U) Decided on February 22, 2013 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 15, 2013
Supreme Court, Suffolk County

Wells Fargo Bank, NA, Plaintiff,

against

Carolina Concepcion, RENZON CONCEPCION, PEOPLE OF THE STATE OF NEW YORK, WORKERS COMPENSATION BOARD OF THE STATE OF NEW YORK, Defendants.



38113-07



GROSS, POLOWY, ORLANS, LLC

Attys. For Plaintiff

25 Northpointe Pkwy.

Amherst, NY 14228

CAROLINA & RENZON CONCEPCION

Defendants Pro Se

327 Deauville Blvd.

Copiague, NY 11726

ALAN GITTER, ESQ.

Atty. For Def. People of NYS

300 Motor Pkwy.

Hauppauge, NY 11788

JAMES R. McGinn, Esq.

Atty for Workers Compensation Bd.

20 Park St.

Judgment Unit

Albany, NY 12207

Thomas F. Whelan, J.

ORDERED that those portions of this motion (#002) wherein the plaintiff seeks entry of a judgment of foreclosure and sale and, in effect, a confirmation of the report of the referee to compute is considered under RPAPL 1321 and is granted; and it is further

ORDERED that those portions of this motion (#002) wherein the plaintiff seeks an order relieving the referee to compute from his appointed office due to his future unavailability, is denied, since the duties of such referee have been concluded by the filing of his report of amount due under the terms of the note and mortgage that are the subject of this foreclosure action; and it is further

ORDERED that those portions of this motion (#002) wherein the plaintiff seeks, in effect, leave to file an updated affidavit of merit, nunc pro tunc, is considered under CPLR 5019 and 2001 and is granted to the extent that leave to file the new affidavit is granted while the plaintiff's further request for an order "validating" the prior order of reference is denied; and it is further

ORDERED that those portions of this motion (#002) wherein the plaintiff seeks to substitute a purported, post commencement assignee of the note and mortgage by an amendment of the caption exchanging the named plaintiff for US Bank National Association, as Trustee, Successor-in-Interest to Bank of America National Association, as Trustee, Successor by Merger to Lasalle Bank National Association, as Trustee for Morgan Stanley Mortgage Loan Trust 2007-7AX, is considered under CPLR 1018 and 1001 and is denied.

The plaintiff commenced this action on December 7, 2007 for a judgment foreclosing a December 29, 2006 mortgage given by defendant, Carolina Concepcion, to secure a note in the amount of $432,000.00 of the same date executed by said defendant. The defendant mortgagor, who is alleged to have defaulted in her payment obligations in August of 2007, failed to answer or otherwise appear in this action. All other named defendants also defaulted in answering the summons and complaint.

On July 2, 2008, the plaintiff's application for an order of reference was granted and a referee to compute the amounts due under the subject note and mortgage was appointed by the court. However, the referee's embarkment on his duties as referee to compute was delayed at the plaintiff's request as it attempted to resolve the loan by potential separate short sales in 2008, 2009 and 2010. [*2]In December of 2011, the file was transferred form the plaintiff's original attorney to its current counsel, who undertook to resume prosecution of the plaintiff's claims. Meanwhile, an alleged assignment of the subject note and mortgage, dated July 16, 2009, by the plaintiff allegedly transferred ownership thereof to an entity known as US Bank National Association, as Trustee, Successor-in-Interest to Bank of America National Association, as Trustee, Successor by Merger to Lasalle Bank National Association, as Trustee for Morgan Stanley Mortgage Loan Trust 2007-7AX. No copy of any such assignment is attached to the moving papers. On July 8, 2012, the referee executed his report of amounts due under the subject note and mortgage.

By the instant motion, which has not been opposed, the named plaintiff seeks, among other things, a judgment of foreclosure and, in effect, an order confirming the report of the referee to compute dated July 8, 2012. That application is granted for the reasons stated below.

The plaintiff also seeks an order relieving the referee to compute from his appointed office, as he is now ineligible to further serve in such capacity due to his election to the bench. This application is, however, denied since the duties of the referee to compute were completed in July of 2008 upon his execution of his report and its submission to this court for confirmation upon this application for the judgment of foreclosure and sale. The appointment of an eligible referee of sale is contained in the judgment that shall separately issue by the court on this motion.

Also denied is the plaintiff's request for an order substituting the named plaintiff for its purported assignee. Although an assignment of the note and mortgage to a proposed new plaintiff/ assignee qualifies such assignee for its substitution as plaintiff under CPLR 1018 (see Citibank, N.A. v Van Brunt Prop., LLC, 95 AD3d 1158, 945 NYS2d 330 [2d Dept 2012]), the action may continue to be prosecuted by the original plaintiff (see CPLR 1018; IndyMac Bank F.S.B. v Thompson, 99 AD3d 669, 952 NYS2d 86 [2d Dept 2012]). Nevertheless, a substitution of plaintiffs may not be accomplished by a mere caption amendment since a non-party may not be substituted nor otherwise made a party-plaintiff to a pending action without its consent and declared willingness to take up the prosecution of the claims of its predecessor-in-interest and its submission to the jurisdiction of the court. This rule is mandated by the provisions of CPLR 1001(a) which provide, among other things, that an unwilling plaintiff shall be joined as a defendant to the action. In addition, counsel for the original plaintiff may not appear on behalf of the newly proposed plaintiff without due proof of such counsel's retention by such new plaintiff. Here, the moving papers failed to demonstrate that, US Bank National Association, as Trustee, Successor-in-Interest to Bank of America National Association, as Trustee, Successor by Merger to LaSalle Bank National Association, as Trustee for Morgan Stanley Mortgage Loan Trust 2007-7AX, the purported assignee and proposed new plaintiff, consents to the requested substitution and submits to the jurisdiction of the court by its retention of and appearance by plaintiff's counsel or by other counsel of its own choosing.

Those portions of this motion wherein the plaintiff seeks, in effect, leave to file an updated affidavit of merit is considered under CPLR 5019 and 2001 and is granted while the plaintiff's request for its nunc pro tunc filing and an order "validating" the prior order of reference is denied. [*3]This application, which is unknown in any other field of civil law, is the product of an October 10, 2010 Administrative Order numbered 548-10, issued by the Office of Court Administration, which was amended in 2011 in an attempt to quell the objections thereto expressed by the bar of this state (see Administrative Order # 431-11). This order, or rule as it is sometimes referred to, mandates the submission of an affirmation of the mortgagee's counsel verifying, among other things, the accuracy of the notarizations contained in the supporting documents filed with the foreclosure action. Counsel is required to represent 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. The plaintiff's counsel is further required to represent that, based upon such communication and counsel's own inspection of the papers, to the best of counsel's knowledge, information, and belief, the filed documents are complete and accurate in all relevant respects.

By order dated February 28, 2011, this court declared that the 2011 Administrative Order and a subsequently promulgated provision of court Rule 202.12-a, requiring the submission of ths affirmation during the course of a mortgage foreclosure action was ultra vires and otherwise invalid (see LaSalle Bank, NA v Pace, 31 Misc 3d 627, 919 NYS2d 794 [Sup Ct, Suffolk County 2011]). That order was appealed and was recently affirmed by the Second Department (see LaSalle Bank, NA v Pace, 100 AD3d 970, 955 NYS2d 161 [2d Dept 2012]). Although the Second Department found that "the attorney affirmation is not itself substantive evidence or a new argument supporting summary judgment" (cf., Wells Fargo Bank, NA v Hudson, 98 AD3d 576, 949 NYS2d 703 [2d Dept 2012]), the court did not invalidate the Administrative Order. Counsel for foreclosing plaintiffs thus attempt to comply with these non-substantive, administrative requirements of the Administrative Orders and Rule. However, compliance is difficult to achieve due, in large part, to an inability to locate the affiants or others who participated in the preparation of the original affidavits of merit. The affirmation requirement is particularly onerous in cases, such as the instant one, in which a change in the named plaintiff, its servicer or its counsel has occurred.

Here, the plaintiff seeks, in effect, leave to file a new affidavit of merit and amount due, "nunc pro tunc", that is, as of the date of the filing of the one underlying the July 2, 2008 order of reference. It supports this demand with allegations that the granting of this relief would not prejudice a substantial right of any party because the material facts underlying the plaintiff's claims including the default and the amounts due have not been changed and thus may now be certified as accurate. Courts are empowered to cure defects or irregularities in a judgment and may even correct matters of substance where the record offers irrefutable support for a correction (see generally, Solomon v City of New York, 127 AD2d 827, 512 NYS2d 222 [2d Dept 1987]; compare Mount Sinai Hosp. v Country Wide Ins. Co., 81 AD3d 700, 916 NYS2d 228 [2d Dept 2011] ["... may not be employed as a vehicle to alter the substantive rights of a party"]). The Court has reviewed the new affidavit sought and agrees that no substantial right of a party will be prejudiced by granting the application since the substantive information has not changed and the amounts due and owing remain the same.

While this Court believes the application to be unnecessary since nothing before the court when the order of reference was issued has been materially altered or changed by the facts alleged [*4]in the new affidavit of merit, the court grants the plaintiff leave to file the new affidavit in support of its application for judgment. In so doing, the court is guided by notions of fundamental fairness and its awareness of the uncertainty surrounding the efficacy and meaning of the Administrative Orders applicable to the plaintiff's counsel.

The court, however, denies the plaintiff's request for a nunc pro tunc filing of the new affidavit of merit and a "validation" of the previously issued order of reference. "It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties' substantive rights..." (Da Silva v Masso, 76 NY2d 436, 440, 560 NYS2d 109 [1990]). Doctrines such as law of the case, res judicata, collateral estoppel and full faith and credit serve to protect the sanctity and finality of judicial orders and judgments. They thus remain inviolate unless they are reversed by appellate processes or are vacated by the court itself under its inherent powers or those statutorily conferred upon it by CPLR 5015 (see Matter of Huie, 20 NY2d 568, 285 NYS2d 610 [1967]).

Inherent powers of a court to vacate its own orders and judgments have traditionally been recognized in both civil and criminal cases where such orders were obtained by fraud or misrepresentation (see Lockett v Juviler, 65 NY2d 182, 490 NYS2d 764 [1985]; Furman v Furman, 153 NY 309, 47 NE 577 [1897]; Matter of Holden, 271 NY 212, 2 NE2d 631[1936]). This power does not, however, extend to intrinsic fraud, such as perjury at trial, which for policy reasons, has been held not to invalidate a judgment (see Lockett v Juviler, 65 NY2d 182, supra; Jacobowitz v Herson, 268 NY 130, 197 NE 169 [1935]); Matter of Holden, 271 NY 212, 218, supra). To justify a court in setting aside and vacating a judgment on the ground of fraud, the fraud complained of must have been "extrinsic", that is, practiced in the very act of obtaining the judgment in such a way that a party was prevented from fully and fairly litigating the matter (see Matter of Holden, 271 NY 212, supra; Augustin v Augustin, 79 AD3d 651, 913 NYS2d 207 [1st Dept 2010]; Shaw v Shaw, 97 AD2d 403, 467 NYS2d 231 [1983]). Intrinsic fraud or perjury will not justify invocation of the court's inherent powers to vacate its own judgment (see Lockett v Juviler, 65 NY2d 182, supra; Jacobowitz v Herson, 268 NY 130, supra).

In contrast, a court's power to vacate a judgment for fraud under CPLR 5015(a)(3) has been held to include intrinsic fraud, which rests upon false claims or perjury, as well as extrinsic fraud, which rests upon an impairment of a party's right to litigate (see Oppenheimer v Westcott, 47 NY2d 595, 603, 419 NYS2d 908 [1979]). Underlying this more modern view is the notion that the "courts must protect the integrity of the judicial process and ensure that plaintiffs do not secure money judgments based on fraudulent claims" (Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830, 860 NYS2d 417 [2008]). However, the objective of assuring the honesty and integrity of judicial processes has been held not to be "furthered when the Court goes outside applicable law to itself raise arguments" or does the "lawyering" for the parties to the action (id., at 830).

The order of reference previously issued by the court has not been challenged as fraudulent by any interested party as contemplated by CPLR 5015. Rather, the validity of such order has been compromised by Administrative Orders 548-10 and 431-11 that were issued by court administrators following national media reports detailing misdeeds by signatories to affidavits of merit employed [*5]by those seeking foreclosure in jurisdictions other than New York. Suspicion on the part of court administrators as to the veracity of the content and the procedures employed in the preparation of affidavits of merit submitted in residential New York foreclosure actions is evident from the broad brush insinuations of misconduct on the part of agents of foreclosing plaintiffs that are recited, as if they were fact, in the preamble text of the affirmation form set forth in the subject Administrative Orders. It is the view of this court that such affirmation, which has been held not to constitute "substantive evidence" (see LaSalle Bank, NA v Pace, 100 AD3d 970, supra), is a mis-guided and unnecessary attempt on the part of court administrators to do the "lawyering" for certain parties to residential foreclosure actions under the guise of protecting "the honesty and integrity of the judicial process" (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830, supra). For these reasons and in view of the absence of any cited basis in law, the court declines to "validate" or otherwise confirm the prior order of reference or to permit a nunc pro tunc filing of the new affidavit of merit.

The remaining portions of this motion wherein the plaintiff seeks a judgment of foreclosure and sale are granted as the moving papers established the plaintiff's entitlement thereto under RPAPL Article 13. The court also finds that the affirmation of plaintiff's counsel submitted to the court pursuant to Administrative Orders 548-11 and 431-11 is fully compliant with the requirements imposed thereon. The record further reflects that the mandatory settlement conference procedures imposed by CPLR 3408 have been observed. The plaintiff's application for a judgment of foreclosure and sale is thus granted.

Proposed judgment attached to the moving papers signed, as modified by the court.

DATED: __________________________________________

THOMAS F. WHELAN, J.S.C.