Bank of Am., N.A. v Lague

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Bank of Am., N.A. v Lague 2016 NY Slip Op 32524(U) September 16, 2016 Supreme Court, Suffolk County Docket Number: 10-24307 Judge: W. Gerald Asher 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] SHORT FORJvl ORDER INDEX No. 10-24307_ SUPREME COURT - STATE OF NEW YORK l.A.S. PART 32 - SUFFOLK COUNTY PRESENT: Hon. W. GERARD AS.HEH:.. Justice of the Supreme c(·... ,. ---------------------------------------------------------------X BANK' Of AMERICA, N.A.. s/b/m lo BAC HOME LOANS SERVICING, L~', FtYJA COUNTRYWIDE HOME LOANS SERVICING LP, MOTION DATE _l0-21-14 (002) 4-21-15 (003) MOTION DATE ADJ. DATE · Mot. Seq. #002 - MG #003 - MD fRENKEL, LAMBERT, \VEISS, WEfSMAN & GO,RDON, LLP Attornt·y for Plaiittiff 53 Gibson Street Bay Shore, New York 11706 P1aii1tiff, - against - ROGER LAGUE nnd CONSTANCE LAGUE, ·ELIAS N. SAKAI.IS, ESQ. Attorney for Dcfen<lallts Pour Janer Street Port Jefferson StatioJl, New York 11 T/6 Defendants. -- ·----------------------------------------·-··-----· ------- . --X Upon the reading and filing of the foliowiug papers i.i1 this matter: (l) Notice of Motion/~ by the plaiatiff, dated Septemb~r 16, L014, and suppo1·1ing µapers(1.1ehtdi.tg-~1~d), (2) Notice of Cross Motion by the defendant, dated January 29, 20 i 5, s· i[Jpoiting papers; (3) Affirmation i11 Opposirion by Ille plaintift: da ted 1 April 20, 2015, and suppo1ting papers; (..+7-lle'tTiy7'.·ft?r-,y,11tiuHby-ti1e·defoudarH,-dttted-it!~VJ'Grtiftg-~{Stett1~1 : ~d-nmd.~~rit1freounseh1-urf'.i-tit-gol'ir~..j:.-i.. ·.-;<.1pp~1'tl)k11d-01~1'·-,s,xi-tu-ti1e-i1~nt,-<.,1d-t'1o~ ·it is ORDERE}) that the motion (002) by plah)tiff Bank , f Awerica, N.A. s/b/m. to BAC Home G Loans Servicing, LP fka Coumrywid~ Home Loa11s 8ervicin!~ LP (plaintiff) for an order grnn!ing it a judgrneul o.f foreclosure and sal~ is grailtcd; <i11d iL is ruriher ORDERED that thi~ cro.:-s r11otivll (003) by Jefonda11ts Roger Lague and Constance Lague (defond&nis), for, inter alia, art ordc.:r ai~illiss1ng 'the Rction puf:mant to CPU~ 3'.!. ! 1 ancl in the altetn.:1tive, vacating the order of retercnce anJ all rJJ·ior proc~1:dings au<l granting defendan ts icavc k) appear by ar1swer is considered under CPLR 501 )(o), 30 l:G (d.) and 317 an<l, is denied. [* 2] Bank of America v Lague lndex No. 10-24307 Page 2 This is an action to foreclose a mortgage on a premises known as 2169 Sound A venue, Calverton, New York. On April 26, 2007, <lefendanrs executed a fixed rate note in favor of American Brokers Conduit agreeing to pay the SUIJJ of $325,000.00 at the yearly interest rate of 6.250 percent. On the same date, defendants also executed a mortgage in the principal sum of $325,000.00 on the subject property. The mortgage indicated American Brokers Conduit to be the lender and Mortgage Electronic Registration Systems, Lnc. (MERS) tote lhe nominee of American Brokers Conduit as well as the mortgagee of record for the purposes of recording the mortgage. The mortgage was recorded on May 29, 2007 in the Suffolk County Clerk's Office. Ther~after, on June 28, 2010, the mortgage was transferred by assignment of mortgage from MERS, as nominee for American Brokers Conduit to BAC Home Loans Servicing, LP tka Countfywide H ome Louns Servicing LP. The assignment of mortgage was recorded on October 7, 2QIO in the Sutfolk County Clerk's Office. After the commencement of this action by filing on July 7, 2010, defendants were served with the summons and complaint pursuant to CPLR 3"08(4) 1• No timely appearance by answer or otherwise was made by the moving defendant. The Court's computerized records indicate that o foreclosure settlement conference was held on September 7, 201 1 ac which lime this matter was referred as an JAS case since a resolution or settlement had nol bcc~1 achieved. Thus, there has been compliance with CPLR 3408 and no further settlement conforences ar~ required. Plaintiffihereafter moved for an order of reference pursuant to RP APL 1321 by an unoppust:d motion returnable before this Court. The application was granted by order dated April 8, 2013 (A~hcr, J.). Now, plaintiff moves for a judgment of foreclosure and sale. Plaintiff's submi~s i ons in support of irs motion include among other things: its attorney's aflirination; the Referee's oath and ropOLi of amounts due dated December 3 i , 2013 indicating the amount due to be $420,865.12; plaintiff's afridavit of amounts due from Michael D. Heath, an officer of plaintiff; au order of reference dated Aprii f!, 2013; the nole, mortgage, assignment of mortg...ge; the pleadings; and , the affidavits of service of process. Defendants have submitted a cross motion seeking various forms of relief. Initially addressing defendants' cross motion (003), in seeking to vacate a default, a defendant is required lo demonstrate a r<.>asonable excuse for th(; delay in appearing and answering the complaint and a potentially meritorious defonse to the action (see CPLR 5015 [al fl]), or, under the circumstances of this c.:ase, that service of the sum1nons an<l complaint wa3 Jefc:cdve (see CPLR 5015[a] [41; Sime v Lutlltar, 3 7 AD3d 817, 830 NYS2d 17 ·' r2d Dept 2007]). When a defend ant seeking to vacate a default raises a jurisdictional objection fllll'SUlli1t lo CPLR 5015 (a) (4), th~ court is required to resolve che jurisdictional question before determini11g whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015 (a) (I ) (see Rvberls v Anka, 45 AD3d 752, 846 NYS2cl 280 [2d Dept 2007J; ~--·-------- ' The affidav it of servi.c c evinr.e::; that after attempts wete made to serve the defendants at 2169 Sound Avenue, Calverton, New Yo1·k on 7117110 at 1.2:40 PM, 7/20/ 10 at 8:03 AM, 7/22/l 0 at 8: 14 PM , 7/28/ 10 at 3:48 PM aml 8/2/ 10 at 9:31 AM., a copy of the summons and complaint was affixed to the door-of the premises. A copy of the summons and complaint wa~ thereafter mailed to defendants at the.; su~ject residence and the affidavits were filed with the Suffolk County Clc1k'::; Otli~e Ou r.Ltgusi '.20 lO. '» [* 3] Bank of America v Lague Index No. l 0-24307 Page 3 Marable v Williams, 278 AD2d 459, 718 NYS2d 400 [2d Dept 2000]; Taylor v Jones, 172 AD2d 745, 569 NYS2d l 31 [2d Depl 1991 ]). It is well established that a process server's sworn affidavit of service constitutes prima facie evidence of proper service (see ACT Prop., /,LC v Aua Garcia, l 02 AD3d 712, 957 NYS2d 884 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013]; Bank of N.Y. v Espejo, 92 AD3d 707, 9J9 NYS2d 105 [2d Dept 2012t Deutsche Bank Natl. Trust Co. v H11ssai11, 78 AD3d 989,' 912 NYS2d 595 [2d Dept 201 OJ). A defendant can rebut the process server's affidavit by a· sworn denial of sc;vice iH an affidavit containing specific and detailed contradictions of the allegations in the proe-ess server' s affidavit (see Bank of N. Y. v E-spejo, 92 AD3d 707; Bankers Trust Co. of Ca/ifomia, NA v Tsoulws, 303 AD2d 343, 756 NYS2d 92 !"2d Dept 2003]). However, bare, conclusoty and unsubsia(l[iate<l denials of receipt of proces~ are i11s11fficient to rebut the presumption of proper service cr~ated.by the affidavit of the plaintiffs process server and to require a traverse hearing (see U.S. Bank Natl. Assn. v Tate, 102 AD3d 859, 958 NYS2d 722 [2d Dept 2013]; Stevens v Charles, 102 AD3<l 763, 958 NYS2d·.:443 [2d Dept 2013J; lrwill A-ftge. Corp. ·v Devis, 72 AD3d 743, 898 NYS2d 854 f2d Dept 201 O); Be11eficial llomeowuer Serv. Corp. v Girault, 60 AD3cJ 984, 375 NYS2d 815 [2<l D~pt 2009)). A J>'!fondant who foils lo 3wear to specific facts to rebut the staternems in the process server' s affidcwits i.:; not entitled to a hear ing on the issue of servic.., (see Cltithestu 11 Alai-Amin Grocuy & Halal Mdr1/, l 00 AD3d 820, 954 N YS2d 577 [2d Dept 2012]; Rank of N. Y. v lfapejo, 92 AD3d 707; US Nt;JI. Bank Asso,... 1• Jt;/eltou. 90 A03d 742, 934 NYS2d 351 [2d Dcpl 101 l]. Here, the process server's afti<l<1 vit of sec vie.:~ constituied prima facie evidence of prnper ~?rvice up0tr defendants pursuant lO CPLH 30h (4) ~nJ defcndmil Constance Lague'r; \.:Ondnsory and t.insllhstaJ1tiated denial of receipt of the summons and co1.r.plaint is in·sufficien1 to ·rebu< the prc:sumrilion of proper service created l>y said at1:~dav.\t (see Beneficial Homeowner S ervice Cmp. v Gimult, 60 AD}J W>l, 875 NYS2d g15 [2d D~pt 2009]). The affidavit ofCost.ance Lague <lated January 29, 2015 claims that " ...neither I 'l>r Roger were ~\'Cr ~crvt<l by p-.:rsonal delivery and in fact, a review if [~ic] the Afftdavi~s of Service show that the summons was Jett ir1sidc the door of our pwpeiiy after the Plaintiff alleg.~dly mtempted to serve us. Ncithu vf us t;vcf saw a process server and we did no.l receive a t:0py of the Summons and Compiaint by mail ~s ~eq1;1,·ed." In s~m, all that is offered her~ in defondant's affidavit is a gcncml denial ol' se1vice (l/ US Bank, NA v-Arias, 85 AD3d l 0 J1i, 927 NYS2d 31)2 [2u Depl 20 ! 1'!). Contrary to defendant's ~antcr,tion~, scn·ic:c pursuant to CPLR ]08 ('l) may h.; used \.\:here i?erso<i<il service undcf CPLR 308 (l}-G.nd .(2) Catinot IJc n~3d.e with due diligenrc. (s-ee CPI .k 308 [41; JP !vfol'gan Chase Rank, N.A. l1 Baldi, 128 'AD3d I/7, 10 NYS3d J26 [2d Dept 2015]; cili11g Deutsche Bank Natl. Trust Co. v Wl.ite, J 10 AfJJd '/59, "/59-760, 9'/2 NYS2d 664 [2~ Dept 2.0JJ]). The term "due diligence", which is not defmed by !)iatutc; has b{;en iriterprete-d and applied bn a casc-hy-r<tSi':! basis (see JP lvlorgan Chase Bank, N.A. v ljfrtldi, 128 AD3d T77 ; citing Estate? of 1 atuma11 v Jone,\", 46 , V ADJd 6J, 66, S43 NYS2d 462 (2d De~1t 2007]). The anidavit of the process ;>..'.rver demonstrated thar five visiis were made l<J the dete.ndants ' r~sidencc on five dit.forent occasions and at different timc.s, when the defendants contd rca~onably biwe lie0J1 expected to uc found at that location (see Deulsclie 1!,anl< Natl. TnLrt Co. v White, l lO AD3d. a.!. 7.S9-760). Fll.rlhermore, the proress server <1vcrred tb<;t he conlirmecl with Julia Ccbich thal the ~i:.rl:nd <-itts 1«..:sid~d at the subject premises a1 v•;hich service \W.S I [* 4] Bank of America v Lague Index No. 10-24307 Page4 ·, attempted. Based upon the foregoing, the portions of the defendants' application seeking dismissal of the act-ion or a vacatm of their default/or lack of pe1:sonaljurisdicti on is denied. The moving defendants' alternative claim for leave to serve and file a late answer is equally \lnavailing. To be entitled to such relief'pursuai1t to CPLR 5015 (a)(l) or 3012, the moving defendants were required to set forth a j ustifiablc excuse for their qefault a.nd a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C Dutton .Lbr., Co., 67 NY2<l 138, 501 NYS2d 8 [1986]; ACT Prop., LLC v Ana Garcia, 102 AD3d 712, 957 NYS2d 884 [2d p~pt 2013]; Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825, 958 NYS2d 472 [2d D\;;pt 2013]; Wells Fargo Bank, N.A. v Russell, 101 AD3cl 860, 955 NYS2d 654 [2d Dept 2012]). Here, the excuse of ·fered by the defendants that they "lacked notice" due to improper service, is not a reasonable excuse as same has already been found to be unmeritorious. Likewise, the defendants' unsupported assertion that they "did not fall asleep on their rights out in fact acted affirmatively by seeking a Loa111vtodification for several years ... " does not constitute a reasonable excuse (see Deutsche Bank Natl. Trust Cu. v Gutierrez, 102 AD3d 825, 825, 958 NYS2d 472 [2d Dept 2013]). As an additional reasonable excuse, defendants proffer the wisubstantiated claim that "the only reason rhc Answer was not served 011 time was dth~ to the negligence of the formei' Attorney repr~senting the Dcfcr1dants". Her~ , lhe vague, no11,spcciti~ and uncorroborated factual assertions, upon which the claim of a reasonable cx<.:usc fo1 a dcfauit at:c •Jn:.:licated, are in.sufficient lo satisfy the reasonable excuse ' . yeq11iremcnls (see Vardaros ,, Zapas. hl5 AD1d J03'/, 963 NYS2d 408 [2d Dept 20131; Wells Fargo Bank v Linze11berg, 50 AD3d 674, 85] NYS2ci 912 (2u Dept 2008]). Confusion or ignorance about legal procedures h<ivc been likewise h<:ld nOi to constitute reasonable excuses f9r the failure to answer or oth?rwi~ appear (see Wells Fargo Bailk, NA v JJesem.ti', 131 AD3d I 047, 16 NYS3d 819 [2d Dept 2015]; citing .U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 912 NYS2d 285 (2<l Depl 201 OJ). Since lhl! ·defendants have not offered a.viable exc"l.1s~ for \flcir rlefoult, they are not entitled lo the relief demanded pursuant to CPLR 5015(a)(l) or 3012. The moving defendants' claim to one or more meritofious defenses is thus inconsequential an~i t1..e Court 11ecd not determine whether dcfondam has demonstrated a meritorious defense (see Development Strategies Co., LLC v Astoria Equities, Inc., 71 AD:JJ 628, 896 NYS2d 396 [2d Dept 20 I OJ). Defendants' alternative claim for vacatur of his default under CPLR . I 7 is likewise denied. This J statut0 aff~;·ds a defendant, not served ~y deli.very in hand pursuant to CPLR 308(1), v.-ith an exn1sable default ground, nam.:!ly, the 11on-receir1t of pcfSOHai· notice of 1he summons in tim.:: lo defend (see CPf ,R 317 1. As in the cas<.: of other oxl.·usabl\: Jefi:111lt gr(hilt.:ls; lhe rnoviqg defendant must dernonslratl! his \1r her JE):iScssion of a merit0ri0us defen.sl' LO. i~i claims eissened (see .CPLR 317; .Eug~11e f)i Lorenzo, Inc. v A,. C. l>utton l.br. Co., 67 NY2d I 38,.)0J .NYS2d 8 [1986..1). Due. proof of the claimed non-receipt of pcts0 nal notice of the sn.mirions i11 tim;; to defend is required (see Jackson v Professional 'fransp. Corp .. 81 AD3d 60~~. Cj.JG NYS2J 159 [1d Dept 2011]; ·Ess·e.x Credit Corp. v Theodore Turunlini, 179 AD'./ ct 9'/3 , 579 NY~2d 235 f3d Depr 1992]), as <L mere der1ial of receipt and/of an unsubstantiated claim of lack of service of the ,:;ummons and complaint are i nsufllc.ient to establish a lack of personal notice of the actiOil in time to defend (see Bank ·c f New Yol'k v Samuels, 1OTAD3d 653 , 968 NYS2d 93 [2d D0pt 2013D. llere, defendants contention that they failed to rccei\'e notice of the summ~ns and r.omplaint in time to defend is unsuhst<:1ntia.leu. Thi! tllrcg0ing, co11pled with the inordinate deiay in the i1 ;_erposition [* 5] Bank of America v Lague index No. I0-24307 Page 5 of this cross motion 2, warra11t the denial of the ddcn<lants' applicaition for relief pursuant to CPLR 317 without consideration of the i ssu~ of the ddendants' poss~ssion of any meritorjous defense. Addressing defendants' ass~i·tion which mises aJ1 allegation oflack of standing, it is well a establ ishcd that "where . defendant does n:it challe11ge a plaintiff's standing, the plaintiff may be relieved of its obligation to prove thariris the proper party to seek the rcqtiestcd relief." (Wells fargo Bank Minnesota Natl. Assn. v Mastrop:wlo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]). The Second Department further reasoned th<it ·"(tJ1 argument _hat a plaintiff lacks standing, j f not asserted in t the dcfcudant's m1swer or in a pre-answc! motion to dismiss the complaint, is waived pucsuant to CPLR 3211 (c)" [citations omitted'] (see Wells Fargo Ba11k Mi111t., NA •'Mastropaolo, .42 AD3d 239; see also HSBC Bank, USA v Dammoml, 59 AD3d 679, 875 NYS2d 490 (2d Dept 2009] [waived standing issues docs not constitute meritorious defense on appllcation to vacat~ default]; US Bank, NA v Emma11uel, 83 AD3d l047, 921 NYS2d 320 r~d Dept 201 l l; Deutsch~ Bank Natl. Trust Co. v Hussain, 78 AD3d 989, 912 NYS2d 595 (2d Dept. 20 l OJ; Conuuywide Home Loans Serv., LP v Albert, 78 AD3d 983, 9 I2 NYS2d 96 (~d Dept 20 IO]). Sir"ce the r1ioving dcfen<lan_ default has not been vacated, they may not ts' seek the affirmative relief of di.sinissal on thcic \va.ived standing defense (see US Bank N.A. v Go11zalez, 99 /\ D3d 694, 952 NYS2d 59 ['Ld Dc1 2-01'.!.]~ J>eu/scht! Bank Trust Co., Alil~·. v Statlwkis, 90 AD3d 1l 983, 935 NYS2d 651 12d Dept 2011]}. Hast<fupon tht: foregoing, defendants' nssc1tion of a standing defcns~ is unavailing. Lastly, in light tif dctendant.s' s~atl.13 ~s a party in defimlt, they arc not (;11titJed to affi11mnivc relief of a ·non-jurisdictio;rnl nahtr~. Since ch ~ de fondants hav.c foiled to P-stablish thaL they are entitled to an orde1· V<'.lc.:ating their de.faull in appca/ihg 01· ans..,Yering the complaint and compelling the plaintiff to accept a late answer, they are nc:,t cntitl;;d to affirmative relief of a non~jurisdictional nature. Accordir1gly. the defendants' conte.1tio11s, which arc ilOn-jurisdictional in natur(;, are summarily rejected by the Cou,1. Based ~1pon the forngoing 1 plaitttitf's m(jtio11 is grar,ted and defendants' cro$s motion i!: denied in its entirety. The propo~ed judgm~nt of.forc.:-iosur·; and sale is signed as modified by the Court. ; ---w .fo1-1J_tf!~/ GmfARD HON. W. _ _ _ FIN.\L Dl~frOSJTION __X NON-FrNAL DISPOSlTfON ASHER <r·S.l. 2 D0fenda1~ts ' c;c<i.:>s 11tptio11,.-a.:;1naJ..: rlinw.st live y\;a1s fro • tf•(; ~line they wet(' rcquir~1.I .n 10 iJ1t0rposr.: an answ~r i11 this ac1iou. \

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