Metlife Home Loans v Pappu
Annotate this CaseDecided on December 23, 2014
Supreme Court, Kings County
Metlife Home Loans, a Division of Metlife Bank, NA, Plaintiff
against
Asaduzzaman C. Pappu, NEW YORK CITY ENVIRONMENT CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, JOHN DOE (said 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 in or lien upon the mortgage premises), Defendants.
20866/10
Attorney for Plaintiff
Jeffrey A. Kosterich, LLC
68 main Street
Tuckahoe, new York 10707
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the ex-parte motion of Goshen Mortgage LLC as separate Trustee for GDBT1 Trust 2011-1 (hereinafter Goshen or the movant), filed on November 18, 2013, for an order: (1) appointing a referee to compute pursuant to RPAPL 1321; (2) granting a default judgment against all non-answering defendants, and (3) amending the caption.
- Affirmation of regularity
Affidavit of Goshen's servicer
Exhibits A-C
- Affirmation in accordance with Administrative Order 431/11
- Proposed order of reference
BACKGROUND
On August 23, 2010, plaintiff commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office.
The complaint alleges in pertinent part, that on January 5, 2009, defendant Asaduzzaman C. Pappu (hereinafter "Pappu" or "the mortgagor") executed and delivered to Metlife Home Loans (hereinafter MHL) a note in its favor in the principal sum of $579,975.00 (hereinafter the note). On that same date, he also executed and delivered to Mortgage Electronic Registration Systems Inc. (hereinafter MERS) as nominee for MHL a mortgage (the subject mortgage) on certain real property known as 939 Liberty Avenue, Brooklyn, New York 11208 Block 4157 Lot 71 (hereinafter the subject property) to secure the note.
MHL alleges that Pappu failed to make payments when due and defaulted on the subject note. MHL thereafter accelerated the note and commenced the instant action based on Pappu's default. Goshen alleges that the subject note and mortgage were assigned to it. Goshen further contends that no defendant has appeared in the action or answered the complaint.
LAW AND APPLICATION
Goshen seeks an order granting it leave to amend the caption, appointing a referee to compute pursuant to RPAPL 1321; and granting a default judgment against all non-answering defendants pursuant to CPLR 3215. Goshen seeks to amend the caption by substituting itself as the plaintiff and by striking certain defendants as unnecessary parties.
When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the [*2]complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01[4][k] [note: online edition]).
On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (U.S. Bank Nat. Ass'n v Poku,-118 AD3d 980, —- [2nd Dept 2014] citing CPLR 3215[f]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2nd Dept 2014]).
CPLR 1018 provides that upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.
"CPLR 1018 addresses the situation in which a party transfers her interest in the subject matter of the action to another person while the action is pending, as, for example, by assignment of the claim (see NY Gen.Oblig.Law § 13-101) or conveyance of the relevant property. CPLR 1018 authorizes continuation of the action by or against the original party—the assignor/transferor—without the need for substitution of the assignee/transferee." (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1018).
For the following reasons, Goshen's motion for an order substituting itself as the plaintiff, appointing a referee and granting a default judgment against all non-answering defendants is denied without prejudice. These branches of its motion were supported by, among other things, an affirmation of Jeffrey A. Kosterich, its counsel (Kosterich), an affidavit of Kelly Marling (Marling) the Vice-President of AMS Servicing LLC (hereinafter AMS) and copies of two assignments of the subject mortgage. The first was an assignment from MERS, as nominee to MHL, to MHL. The second was an assignment from MHL to Goshen.
Kosterich's affirmation avers that he is familiar with the facts and circumstances surrounding the foreclosure proceeding. Kosterich, however, does not state that he was the transactional attorney for any of the aforementioned mortgage assignments. Furthermore, his affirmation does not demonstrate any personal knowledge of the assignments or of the underlying facts in the complaint. "The affidavit or affirmation of an attorney, even if he or she has no personal knowledge of the facts, may, of course serve as a vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form," e.g. documents, transcripts" (Worldwide Asset Purchasing, LLC v Karafotias, 9 Misc 3d 390 [N.Y City Civ. Ct., 2005] citing Zuckerman v City of New York, 49 NY2d 557, 563 [1980]).
The complaint in the instant action is not verified and may not serve as an affidavit pursuant to CPLR 105(u). Marling describes herself in her affidavit as the Vice-President of AMS and describes AMS as the servicer of Goshen. The motion papers, however, do [*3]not contain any documents demonstrating that AMS had authority to speak or act on behalf of Goshen or the plaintiff.
Under these circumstances, contrary to the requirements of CPLR 3215(f), there is no affidavit of the party providing proof of the facts constituting the claim (U.S. Bank Nat. Ass'n v Poku,-118 AD3d 980, —- [2nd Dept 2014] citing CPLR 3215[f]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2nd Dept 2014]). Accordingly, Goshen's motion for a default judgment is denied. Inasmuch as Goshen has not demonstrated its entitlement to a default judgment it necessarily has failed to show entitlement to an order of reference pursuant to RPAPL 1321. Furthermore, Goshen's motion for an order seeking that it be substituted as plaintiff also fails because it is supported by an affidavit of the servicer without proof of the servicer's authority to speak or act on Goshen's behalf.
Goshen has also moved for an order permitting the striking of defendants New York City Environment Control Board, New York City Parking Violations Bureau and John Doe from the caption. Unlike the motion for substitution, the request to strike defendants New York City Environment Control Board, New York City Parking Violations Bureau and John Doe from the caption is supported by an affirmation of Goshen's counsel attesting to the fact that they are not necessary parties to the action. The affirmation of Goshen's counsel is sufficient, standing alone, to support this branch of the motion. Inasmuch, as no defendant has appeared, answered the complaint or opposed the motion and there is no prejudice to any party, the request is granted.
It is noted that Kosterich's affirmation and Marling's affidavit, the only sworn statements in Goshen's motion papers, both aver that the settlement conference requirements of RPAPL 1303 did not apply to the instant action because the property is not owner occupied. Neither one, however, averred that they had direct knowledge of this fact. Furthermore, both were silent on the issue of the applicability of RPAPL 1304 to the instant action. Kings County Supreme Court Uniform Civil Term Rules F (7) provides in pertinent part as follows.
Every affidavit for an exemption from a conference made pursuant to CPLR 3408 and RPAPL 1304 must specify the grounds for same and provide supporting documentation and affidavits from persons with direct knowledge. Where the claim is that the borrower is not living in the subject house, then an affidavit of investigation substantiating this allegation must be appended which states inter alia that the borrower is not living in the house and that no action by the mortgagee or its agents procured same. This affidavit shall be included in the motion for a Judgment of Foreclosure and Sale.
Contrary to the requirements of rule F (7) of the Kings County Supreme Court Uniform Civil Term Rules, the motion papers did not include an affidavit of investigation substantiating that the property is not owner occupied.
In the interest of judicial economy, the court did not continue to review Goshen's motion papers for additional deficiencies after discovering the above mentioned issues. In the event that it seeks the same relief in a subsequent motion, it is directed to annex the instant decision and order with its motion papers and to comply with the general foreclosure requirements set forth in Part F of the Kings County Supreme Court Uniform Civil Term Rules.
CONCLUSION
That branch of Goshen's motion which seeks an order appointing a referee to compute pursuant to RPAPL 1321 is denied without prejudice.
That branch of Goshen's motion which seeks a default judgment against all non-answering defendants is denied without prejudice.
That branch of Goshen's motion which seeks an order substituting it as plaintiff in the instant action is denied without prejudice.
That branch of Goshen's motion which seeks an order striking defendants New York City Environment Control Board, New York City Parking Violations Bureau and John Doe from the caption is granted.
The foregoing constitutes the decision and order of the court.
ENTER_______________________________x
J.S.C.
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