Citimortgage, Inc. v Schumacher

Annotate this Case

Download PDF

Citimortgage, Inc. v Schumacher 2015 NY Slip Op 32483(U) November 20, 2015 Supreme Court, Suffolk County Docket Number: 13-25477 Judge: Thomas F. Whelan 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] SMORl FORM ORDER copy INDEX o. '25477-13 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. TI IOMAS F. WHELAN Justice of the Supreme Court ---------------------------------------------------------------)( CJTIMORTGAGE, INC., Plaintiff, MOTION DATE 10/6115 ADJ. DA TES 1..:1/-=6/-=-: ;___ . :. 15 Mot. Seq. II 003 - MG Mot. Seq.# 004 - XMD CDISP Y_ N _x_ DAVIDSON, FINK, LLP Attys. For Plaintiff 28 Main St. - Ste. 1700 Rochester, NY 14614 -against- GENE W. SCHUMACI TER, ANNETTE E. SCHUMACHER, CrTlBANK, NA, "JOHN DOE" and "MARY DOE" (said names being fictitious, it being the intention of plaintiff to designate any and all occupants, tenants, persons or corporations if any, having or claiming an interest in or lien upon the premises being foreclosed herein), RONALD D. WEISS, ESQ. Atty. For Defendants Schumacher 734 Walt Whitman J{d. - Ste. 203 Melville, NY 11747 Defendants. ---------------------------------------------------------------X Upon the fo llowing papers numbered I to _1_3_ read on this motion by plaintiff for an order of reference upon default and cross motion bv the defendants to dismiss or to vacate their defaults and extend their time to answer ; Notice of Motion/Order to Show Cause and supporting papers ..l.:....1_; Notice of Cross Motion and supporting papers 5-8 , Answering Affidavits and supporting papers 9-10 ; Replying Affidavits and supporting papers 11-12 : Other 13 (mi.litary affidavit) ; (and after heat i11g coon~el i11 st1ppo1 t and opposed to the 111otio11) it is, ORDERED that this motion (#003) by the plaintiff for an order of reference on default, the deletion of the unknown defendants as parties and an order appointing a referee to compute amounts due under the terms of the note and mortgage that arc the subject of this foreclosure action is considered under CPLR 3215 and RPAPL§ 1321 and is granted; and it is further ORDERED that the cross motion (#004) by the mortgagor defendants for a dismissal of this action as abandoned pursuant to CPLR 3215(c) or an order vacating their default in answering by extending their time to answer is considered under CPLR 2004 and 3102(d) and is denied. [* 2] Cillmortgage v Schumacher, el. al. Index o. 13-25477 Page 2 This mortgage foreclosure action was commenced in September of2013 to foreclose the lien of a mortgage given by the Schumacher defendants to the plaintiff on November 28, 2005 to secure a mo1igage note of the same date likewise given. Following the initialization of this action upon the filing or a Request for Judicial Intervention in October of 2013, it was assigned to the specialized mortgage foreclosure conference part. The matter was conferenced by quasi judicial personnel assigned to such part on rebruary 7, 2013, after which, the conference was adjourned to May 9, 2014. Shortly after the first conference, the mortgagor defendants moved by motion (#001 ) returnable March 19, 2014, for an order extending their time to answer, but such motion was held "in abeyance" pending the release of the action from the specialized mortgage foreclosure conference part (see 22 NYCRR 202.12-a). Such release occurred on May 9, 20 14 as the mortgagor defendants failed to appear for the settlement conference scheduled for that day. The action was then assigned to the case inventory of the Honorable Elizabeth H. Emerson, J.S.C. and the defendants' motion (#00 1) for relief pursuant to CPLR 3012(d), which the plaintiff vigorously opposed, was calendared before Justice Emerson on May 29, 2014 and marked submitted on that date. By order dated October 30, 2014 lEmerson, J), the defendants' motion (HOOl) was denied due to the defendants' failure to establish a reasonable excuse for their default in answering. The ·court stated, however, that the denial was "without prejudice" and noted that certain loss mitigation documents referred to in the moving papers were not attached thereto. The defendants thereafter moved again for a vacatur of their default and an extension of time to answer by a notice of motion (#002) returnable before Justice Emerson on December 23, 2014. On January 2, 2015, this action was transferred to the case inventory of this court and the defendants' second motion to vacate their default was re-calendared on January 9, 2015 and marked submi ttcd for determination to the undersigned on that date. The second motion to vacate was forcefully opposed by the plaintiff on both substantive and procedural grounds. By order dated January 13, 2015, this court rejected each of the claims upon which the defendants' second motion (#002) to vacate their default and for leave to serve a late answer were premised. The plaintiff now moves (#003) for an order of reference upon the default in answering of all of the defendants served with process, the deletion of the unknown defend ants and an order appointing a referee to compute. The obligor/mortgagor defendants Schumacher, oppose the plaintiffs motion in cross moving papers (#004) in which they seek a dismissal of the complaint as abandoned by the plaintiff pursuant to CPLR 3215(c) or an order vacating their default and extending their time to appear by service of the proposed answer attached to the cross moving papers. First considered is the cross motion (#004) by the Schumacher defendants as determination thereof may render the plaintiffs motion, academic, due to demands for dismissal of the plaintiff's complaint as abandoned pursuant to CPLR 3215(c). That statute requires that a plaintiff commence proceedings for the entry ofa default judgment within one year after the default or demonstrate sufficient cause why the complaint should not be dismissed. Where the plaintiff has made an application to the court for the entry of a default judgment within one year ofthe defendant's default. even ifunsuccessfol, [* 3] Citimortgagc v SchumQchcr, el. al. Index No. :3-25477 Page 3 the court may not later dismiss the complaint as abandoned pursuant to CPLR 3215(c) (see GMAC Mtge., LLC v Todaro, 129 /\D3d 666, 9 NYS3d 588 f2d Dept. 20 15']; Wells Fargo Bank, N.A. v Combs, 128AD3d812, 2015 WL2214013 l2dDcpt2015j; llSBCBank, USA,N.A. vA lexander, 124 /\D3d 839, 4 NY3d 47 [2d Dept 2015l;Mortgage £ lee. Registration Sys., Inc. vSmitlt, I I 1AD3d804, 975 NYS2d 121 l2d Dept 2013 j; Jones v Fuentes, I 03 AD3d 853, 962 NYS2d 263 [2d Dept 2013 l; Nor west Bank Mi1111esota, N.A. v Sabio//, 297 AD2d 722, 747 NYS2d 559 [2d Dept 2002j; Brown v Rosedale N urseries, Inc., 259 AD2d 256, 686 NYS2d 22 [1st Dept 1999); Home Sav. ofA m. , F.A. v Gkanios, 230 AD2d 770, 646 NYS2d 530 [2d Dept 19961). The Appellate Division. Second Department has instructed that in cases wherein no motion is interposed within the one year time limitation period, avoidance of a dismissal of the complaint as abandoned requires the plaintiff to offer a reasonable exL:u::;e for the delay in moving for leave to enter a default judgment and must demonstrate a potentially meritorious cause ofaction (see Giglio v NT/MP, lite., 86 J\D3d 30 l, 308, 926 NYS2d 546 (2d Dept 2011 J; see also Kolm v Tri-State Hardwoods, Ltd., 92 AD3d 642, 937 NYS2d 865, 866 [2d Dept 2012); 115-41 St. A lbans Holdi11g Corp. v Estate of Harrison , 71AD3d653, 894 NYS2d 896 (2d Dept2010J; Cyna11 Slteetmetal Prods., Inc. vB.R. Fries & Assoc., Inc., 83 AD3d 645, 919 NYS2d 873 [2d Dept 2011]; First Nationwide Bank v Prete/, 240 /\D3d 629, 659 NYS2d 291 (2d Dept 1997]). In addition, appellate cases authorities have established that a moving defendant's failure to show prejudice by the plaintiffs delay in moving for the default may tip the balance in favor of a finding of sufficient cause to excuse the delay provided an explanation of the delay is advanced which evinces no intent to abandon the action and a meritorious cause of action is shown to exist (see LNVCorp. v Forbes, 122 J\D3d 805, 996 NYS2d 696 [2d Dept 20 14); Brooks v Somerset S urgical Assocs., l 06 AD3d 624, 966 NYS2d 65 (2d Dept 2013]; Laourdakis v Torres, 98 AD3d 892, 950 NYS2d 703 [1st Dept 20 12]; L a Valle v A storia Constr. & Paving Corp. , 266 J\D2d 28, 697 NYS2d 605 [lst Dept 1999] ; Hinds v 2461 R ealty Corp., 169 AD2d 629, 632, 564 NYS2d 763 [1 st Dept 1991 ]). Delays attributable to the parties' engagement in mandatory settlement conference procedures, or in litigation communications, discovery, motion practice and other pre-trial proceedings have been held to negate any intention to abandon the action and are thus excusable under CPLR 3215(e) (see B rooks v Somerset Surgical Assocs., 106 J\D3d 624, supra ; Laourdakis v Torres, 98 A03d 892, supra). In the mortgage foreclosure arena, delays in the prosecution of cases may fairly be attributable to various legislative enactments and administratively rules which are aimed at resolving foreclosure actions in a manner favorable to mortgagors. These legislative enactments and rules have dramatically slowed the pace of residential mortgage foreclosure actions pending at the time or such enactments or rule were adopted and have caused serious delays in the institution of new actions (see Laws of 2008, Ch. 472 § 3- a as amended by the Laws of2009 Ch. 507 § IO; CPLR 3408; 22 NYCRR 202.12-a). The seemingly endless imposition of new procedural mandates include the scheduling of a mandatory settlement conference pursuant to CPLR 3408, which was extended by administrative rnle to include multiple conferences (see 22 NYCRR 202.12-a[cJl61. the holding of all motions "in abeyance'' during the conference process; 22 NYCRR 202-12-a[7], the merit based vouching requirements that were imposed upon counsel for a foreclosing plaintiff in all pending cases by court administrators) (see A.O. [* 4] Cit1mortgagc v Schumacher, el. al. Index No. 13-254 77 Page 4 548/10, amended by A.O. 431 / 11; and /\.0. 208/13 ), which are now the subject of CPLR 3012-a for cases commenced after August 30, 2013. ln addition, many servicers and/or lenders are subject lo a host or fodernl regulations adopted on a temporary basis in 2013 and formally thereafter in January of 201 4 which subject certain banks to sanctions in the form or money damages if they commence or continue the prosecution or claims for foreclosure and sale in cases wherein the borrower may be eligible for a loan modifications of other loss mitigation alternatives under federal programs (see CFPl3 Regulation X@ 12 C.F.R. Part 1024, Chapter X, Subpa11 C, §~ 1024.39;-l 024.4 1). Other stays on prosecution of foreclosure actions subject to federal jurisdiction were put in place by FEM/\ in 2011 and 2012 due to the effects oChurricanes Irene and Sandy. As a consequence of these statutory and regulatory frameworks, motions for orders of reference arc often first made after the one year time limitation period imposed by CPLR 32 l 5(c), the purpose of which, is to prevent the prosecution of stale claims (see Giglio v NT/MP, Inc., 86 J\D3d 301, supra). Sufficient cause to justify a belated motion for a default judgment has thus been held to have been demonstrated where such delays were engendered by the action remaining in the specialized mortgage foreclosure conference part for multiple conferences over many months, during which time, all motions are to be held in "abeyance" until the action was released from the conference part (see 22 NYCRR 202.12-a[cl[6j; 202-12-aPJ; A urora Loau Serv., LLC v Brescia, Cacll, LLC, 2013 WL 5823057, *2 [Sup Ct., Suffolk County, 2013]; Onewest Bank, FSB v Navarro, 41 Misc3d 1238[A), 2013 WL 6500194 [Sup. Ct., Suffolk County, 2013]; BAC Home LoansServ., L.P. v Bordes, 36 Misc3d 1203fAj, 957 NYS2d 263 [Sup. Ct., Queens County, 20121; BAC Home Loans Serv., L.P. v Maurer, 36 Misc3d l210[Al, 957 NYS2d 263 (Sup. Ct., Suffolk County, 2012]; see also Wells Fargo Bank, N.A. v Pasciuta, 20154 WL 3975583 [Sup Ct. Suffolk County, Index No 22235/12]). Sufficient cause has also been held to justify a belated default judgment motion where the delay in prosecuting the action is caused by the plaintiffs inability to comply with the requirements of Administrative Orders numbered 548/10, 43l/l 1 and or A.O. 208/13 (see Deutsche Ba11k Natl. Trust Co. v Pascarella, 39 Misc3d I221rA], 971 NYS2d 70 [Sup. Ct. Suffolk County 2013]; BAC Home Loans S erv., LP v Maurer, 36 Misc3d 121 O[J\I, 957 NYS2d 263 [Sup. Ct. Suffolk County, 20 12)) or due to the placement of a hold on the plaintiffs case under federal regulation and emergency stays (see U.S. Bank Natl. Asss'11. v Jolin , 2015 WL 5098353 lSup. Ct. Suffolk County 20151). These holdings find support from appellate case authorities issued in other contexts where the delay is attributable to the parties' engagement in litigation communications, discovery matters, motions and/or settlement talks which negates any intention to abandon and is thus excusable under CPLR 3215(c) (see Brooks v Somerset Surgical Assocs., 106 AD3d 624, supra; Laourdakis v Torres, 98 J\D3d 892, supra). Here, the record reveals that the plaintiff did not undc1iake the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference under RP /\PL l 321 (1) within the one year time period imposed by the statute nor within one year of the May 9, 2014 release or this action from the special izcd mortgage foreclosure conference part. llowever, the plaintiff has demonstrated, in both its moving papers and opposing papers, that its claim for foreclosure and sale is [* 5] Citimongage v ~chumuchcr. et. al. index No. 13-25477 Page 5 meritorious. The plaintiff further demonstrated the ex istence of sufficient cause under CPLR 3215(c) for the delay in moving to !ix the defaults in answering due to the plaintiffs' engagement in a plethora of litigation activities from which an intent not to abandon its claim for foreclosure and sale is disccrnable, including its defense of the two prior motions interposed by the defendants, in which they sought relief from their default in answering. The delay in the submission for determination of the defendants' first motion was due to the holding of same in abeyance fo r a period of four months during the CPLR 3408 conference process, during which the defendants' defaulted in appearing for the second conference. /\ further delay of nearly five months for issuance occurred between the submission of the motion and the issuance of the determination thereon by the Justice then assigned to this action. Determination of the defendants' second motion is attributable to the administrative transfer of this action from the case inventory of Justice Emerson to this court in January of20 15. None of these delays implicate fault or ~omp li c ity on the part of the plaintiff. Moreover. the absence of any demonstration of prejudice to the Schumacher defendants tips the balance in favor of a finding of good cause shown on the part of the plaintiff. The defendants have enjoyed the use of the mortgaged premises since September I , 2011, when the default in payment occurred, without making any payments of amounts due under the note and mortgage, while the plaintiff has unde1taken efforts to preserve the premises by, among other things, its payment of taxes and insurance. Those po1tions of the defendants' cross motion wherein they seek dismissal of the complaint as abandoned pursuant to CPLR 32 l 5(c) are thus denied. The remaining portions of the defendants' cross motion (#004) in which they seek an order vacating their defaults in answering and leave to serve a late answer arc denied. The law of the case doctrine precludes consideration of the merits of this third motion for a vacatur of the default in answering by the defendants as the grounds advanced are the same as those previously raised, incl uding a purported lack of understanding of the clear directives and express warnings to answer the complaint and to speak to an attorney that were set forth in the summons served upon the defendants in September of 2013 (see Viva Dev. Corp. v United Humanitarian Relief Fund, 108 AD3d 619, 620, 968 NYS2d 379 [2d Dept 2013); Discover Bank,, Quader, I 05 AD3d 892, 962 NYS2d 911 [2d Dept 2013); JMP Pizza, LLC v 34tlt St. Pizza, LLC, 104 AD3d 648, 960 NYS2d 318 f2d Dept 2013]; 47 Tltames Realty, LLC v Rohi11so11, 85 /\D3d 851 , 852, 925 NYS2d 585 [2d Dept 2011. 1). In addition, controlling appellate case authorities have repeatedly held that a party in default is precluded from making successive motions to vacate defaults on grounds previously advanced or upon those which could have been advanced (see LaSalle Natl. Bank v Odato, l 26/\D3d 675, 2 NYS3d 360 [2d Dept 2015]; Eastern Sav. Bauk, FSB v Brown, 11 2 AD3d 668, 670, 977 NYS2d 55 [2d Dept 20 13J; Lambert v Schreiber, 95 AD3d 1282, 1283, 944 NYS2d 902 [2d Dept 20 121). Even if it were otherwise, the court finds no merit in the defendants ' latest attempt to gain relief from their default in answering and to appear herein by answer as no reasonable excuse nor meritorious defense nor other ground for such relief has been advanced (see Woodson v Mendon Leasing C01p., 100 NY2d 62, 760 NYS2d 727 [2d Dept 20021; Chase Home Fin. , LLC v Minott, 115 /\OJd 634, 635, 981 NYS2d 757 (2d Dept 2014]; Katz v Marra, 74 AD3d 888, 891 , 905 NYS2d 20412<l Dept 2010)). Those portions of the defendants· cross motion wherein they seek to vacate their default and to appear herein by service of a late answer are thus denied. [* 6] Citimortgagc v Schumacher, er. al. Index No. 13-25477 Page 6 The plaintiff's motion-in-chief for an order of reference upon the default in answering or all defendants served with process is granted. A party moving for a default judgment must submit proof of service of the summons and complaint, proof of the facts constituting the claim. and proof of the defaulting defendant's failure to answer or appear (see CPLR 3215[fj; Todd v G'ree11, 122 AD3d 831 , 997 NYS2d 155 l2d Dept 2014]; U.S. Bank Natl. Asrn. v Raw 11, 115 AD3d 739, 981NYS2d571 , 572 12d Dept 20141; Diedericlt v Wetzel, 112 AD3d 883, 979 NYS2d 605 12d Dept 2013J; Loaiza v Guzman, 11lAD3d608, 609, 974 NYS2d 282 l2d Dept 2013]; Green Tree Serv., LLC v Cary, 106 AD3d 691, 692, 965 NYS2d 51 1 (2d Dept 20 13); Dupps v Betancourt, 99 AD3d 855, 952 NYS2d 585 [2d Dept 20 12J). Here, the moving papers sufficiently established the plaintiff's entitlement to an order of reference upon default as it included due proof of service of the summons and complaint, defaults in answering on the part of the mortgagor defendants and all other defendants joined herein by service of the summons and complaint and the existence of facts that constitute the plaintiff's possession of viable claims for foreclosure and sale (see Woodson v Mendon Leasing Corp., I00 NY2d 62. 71, 760 NYS2d 727 [2003); U.S. Bank Natl. Ass 'n v Poku, 118 AD3d 980, 989 NYS2d 75 [2d Dept 2014]; U.S. Bank Natl. Assn. v Razan , 115 AD3d 739,supra; Green TreeServ., LLCvCary, 106 AD3d 691, supra; King vKing, 99 AD3d 672, 95 1NYS2d565 l2d Dept 2012];/ntegon Natl. I ns. Co. vNoterile, 88 AD3d 654, 930 NYS2d 260 [2d Dept 20 11 ]). To successfully defeat the plaintiffs motion, the defendants were required to demonstrate that they are not in default or that they possess a jurisdictional or abandonment defense or grounds for vacatur of their default (see U. S. Bank Natl. Ass'n. v Dorestant, 131 /\D3d 467, 15 NYS2d 142 [2d Dept 2015]; Wells Fargo Bank, N.A. v Krauss, 128 AD3d 813, 10 NYS2d 257 l2d Dept 2015]). A review of the submissions of the defendants reveals that they failed to demonstrate any basis for the denial of the plaintifPs motion. Accordingly, the plaintiff is entitled to an order awarding it a default judgment against each of the known defendants named in the caption, the deletion as party defendants of the unknown defendants and an order appointing a referee to compute. In view of the foregoing, the plaintiff's motion (#003) is granted while the cross motion (#004) of the Schumacher defendants is denied. The proposed Order of reference attached to the plaintiffs moving papers, as modified by the court to reflect the issuance of this memo decision and order, has been marked signed. Dated: Novembe~~ J 2015

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.