Deutsche Bank Natl. Trust Co. v Crea

[*1] Deutsche Bank Natl. Trust Co. v Crea 2014 NY Slip Op 51714(U) Decided on November 21, 2014 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2014
Supreme Court, Richmond County

Deutsche Bank National Trust Company, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL 1 INC. TRUST 2006-WMC2 3476 Stateview Boulevard Ft. Mill, SC 29715, Plaintiffs,

against

Stephen Crea, BARBARA WESTFALL, NEW YORK CRIMINAL COURT, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, PALISADES COLLECTION, LLC, PATRICIA CREA, Defendants.



101368/08
Thomas P. Aliotta, J.

Upon the foregoing papers, the application (Motion Seq. No 004) of defendant Barbara Westfall brought by order to show cause dated July 11, 2014 is denied.

By way of background, this foreclosure action was commenced on March 31, 2008 and is predicated upon the defendant/homeowners' alleged failure to pay the monthly mortgage installment due on November 1, 2007. Subsequently, a Judgment of Foreclosure and Sale was entered on default on February 18, 2009. Over one year later, defendant Barbara Westfall (hereinafter, "defendant") moved by order to show cause dated April 13, 2010, to vacate her default pursuant to CPLR 317 on the grounds that she was not personally served with process and has certain meritorious defenses, including, inter alia, plaintiff's alleged (1) lack of standing to commence these proceedings, and (2) failure to provide the requisite acceleration notice pursuant to the terms of the subject mortgage.

In a Decision and Order dated August 6, 2010, this Court held that defendant's bare and unsubstantiated allegation that she was never personally served with process failed to set forth sufficient facts to rebut the affidavit of plaintiff's process server alleging substituted service upon her husband, Stephen Crea, pursuant to CPLR 308(2). Moreover, this Court found that defendant was ineligible for relief pursuant to CPLR 317 by virtue of her failure to allege that (1) she did not receive actual notice of this action in time to defend, or (2) that her order to show cause was brought, inter alia, within one year after she first obtained knowledge of the entry of judgment. The Court also noted that defendant's claimed meritorious defense of lack of standing has been waived by her failure to assert same in either an answer or in a pre-answer motion to dismiss (see CPLR 3211[e]).

Three years later, on or about September 6, 2013, defendant sought leave to renew and reargue this Court's Decision and Order dated August 6, 2010 (1) based on a change in controlling law (see CPLR 2221[e][3]), i.e., the decision of the Supreme Court, Appellate Division, Second Department, on June 7, 2011, in Bank of New York [*2]v Silverberg (86 AD3d 274), and (2) to reiterate defendant's reasonable excuse for failing to answer the complaint, i.e., that she had not been properly served with process.

In a Decision and Order dated January 23, 2014, this Court held that defendant's reliance on the Silverberg decision was misplaced, noting that the purported invalid MERS assignment of her mortgage was insufficient to demonstrate the existence of a potentially meritorious defense since "physical delivery of the note prior to the commencement of the...action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. Collymore v Collymore, 68 AD3d 752, 752; see U.S. Bank, Natl. Assn. v Sharif, 89 AD3d 723, 725). The Court further held that defendant's mere reiteration of her previous bare and unsubstantiated denial of service was legally insufficient to accomplish its intended purpose or to warrant a traverse hearing.

Turning to the present application, defendant Westfall, again, seeks to vacate and set aside the default Judgment of Foreclosure and Sale dated February 18, 2009, and to renew "the decision given by this Court" [FN1] pursuant to CPLR 2221(e)(2). Relying upon Wells Fargo Bank, N.A. v Eisler, (118 AD3d 982 [2nd Dept 2014]), she argues that since this Court rendered its prior decision, there has been a "material change in the law" that would change the Court's prior determination. Applying the facts in the Eisler case to the instant matter, defendant argues that (1) her lender failed to provide a sworn statement from the person who mailed the default notice as required by paragraph 22 of the subject Mortgage, and (2) said notice was not accompanied by proof of mailing. In view of these alleged deficiencies, she contends that, as in Eisler, the complaint should be dismissed based on plaintiff's failure to satisfy a condition precedent to the commencement of this foreclosure action.

In Wells Fargo Bank, N.A. v Eisler, the answering defendants interposed several affirmative defenses, including, that, as a condition precedent to the commencement of the action, the mortgage documents required the plaintiff to provide a notice of default, and the plaintiff had not done so. In support, the Eisler defendants provided personal affidavits indicating that no such notice was received prior to the commencement of the action to foreclose their mortgage. The motion court agreed, and dismissed the action. required by the terms of the subject mortgage. On appeal, the Appellate Division affirmed and held that "[t]he unsubstantial and conclusory statements in [plaintiff's] affidavit, which indicated that the required notice of default was sent in accordance with the terms of the mortgage, combined with the copy of the notice of default, failed to show that the required notice was mailed by first class mail or actually delivered to the notice address if sent by other means, as required by the mortgage agreement" (id. at 983).

In the case at bar, defendant Westfall failed to timely appear and answer the complaint. CPLR 3015(a) provides that while the performance or occurrence of a condition precedent in a contract need not be pleaded, a denial of such performance or occurrence shall be made specifically and with particularity. Stated otherwise, "[i]f the defendant fails to specifically plead the plaintiff's failure to comply with a condition precedent, the defense is waived. See 1199 Housing Corp. v Int'l Fidelity Ins. Co., 14 AD3d 383, 384, 788 NYS2d 88, 90 (1st Dep't 2005)... In a manner of speaking, therefore, a condition precedent has become a defense only insofar as pleading is concerned; if raised as such in the responsive pleading, it ceases to be a defense for trial purposes and becomes part of plaintiff's [prima facie] case" (Conners, Practice Commentaries, McKinneys Cons Laws of NY, Book7B, C3015:2, p 60).

Moreover, it is well established that, upon a property owner's default in appearing or answering the complaint in a foreclosure action, "the plaintiff's alleged failure to satisfy a condition precedent in the mortgage by failing to provide [that defendant with] 30 days' written notice of his [or her] default in making mortgage payments, even if true, [does] not deprive the Supreme Court of jurisdiction to enter judgment of foreclosure and sale" (Deutsche Bank Trust Company Americas v Shields, 116 AD3d 653, 654; see Pritchard v Curtis, 101 AD3d 1502, 1504-1505; Signature Bank v Epstein, 95 AD3d 1199, 1200). As the Appellate Division stated in Pritchard v Curtis (101 AD3d at 1504-1505), "[s]tatutorily, violation of the [notice] provisions of RPAPL 1304 constitutes a defense to a home loan mortgage foreclosure action. [However, t]he Legislature would not have denominated this as a defense if a violation of the notice provisions deprived the court of subject matter jurisdiction. As the [alleged] absence of these conditions precedent did not deprive the court of jurisdiction to preside over this foreclosure action, [the] Supreme Court properly denied [defendant's] motion to vacate the judgment of foreclosure and sale."

Defendant's remaining contentions do not provide an adequate basis for the relief requested.

Accordingly, it is

ORDERED, that the application is denied; and it is further

ORDERED, that all stays heretofore in effect are vacated.

E N T E R,

Dated: November 21, 2014/s/___________________________

Hon. Thomas P. Aliotta

J.S.C.

Footnotes

Footnote 1:In seeking leave to renew, the moving defendant does not indicate which of the Court's prior determinations would be subject to change based on the purported change in the law.