Deutsche Bank Natl. Trust Co. v Viera

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Deutsche Bank Natl. Trust Co. v Viera 2016 NY Slip Op 32534(U) November 4, 2016 Supreme Court, Suffolk County Docket Number: 10-11647 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] SHORT FORM ORDER INDEXNo. copy 10-11647 SUPREME COURT - STATE OF NEW YORK l.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS f. WHELAN Justice of the Supreme Court MOTION DATES: 9/ 8/16 SUBMIT DATE: 10/21116 Mot. Seq.# 003 - MG Mot. Seq.# 004 - XMD CDISP YES ---------------------------------------------------------------)( DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE RESIDENTIAL ASSET SECURITIZATION TRUST 2007-AJ , Mortgage Pass-Through Certificates Series 2007-C, under the Pooling and Servicing Agreement dated February 1, 2007, MCCABE WEISBERG & CONWAY Attys. For Plaintiff 145 Huguenot St. - Ste. 499 New Rochelle, NY 1080 I ROSICKI, ROSICKI & ASSOC., PC Attys. For Def. Bank of America 3 1 E. Bethpage Rd. Plainview, NY 11803 Plaintiff, -against- CABANILLAS & ASSOC., PC Attys. For Defendant Fonseca 120 Bloomingdale Rd. - Ste. 400 White Plains, NY 10605 RICARDO VIERA, ANA VIERA a/k/a ANA A. VIERA, MARLENIS FONSECA, BANK OF AMERICA, NA, ELMO MARTINEZ, THOMAS VIERA and ANN VIERA, Defendants. : ---------------------------------------------------------------)( Upon the following papers numbered I to _9_ read on this motion For iudgment of forec losure and sale and cross motion to dismiss the complaint ; Notice of Motion/Order to Show Cause and supporting papers 1 - 4 ; Notice of Cross Motion and supporting papers 5-7 ; Answering papers -1:2._ _ _ _ ; Replying papers ; Other ; {tmd 11!1:e1 l1e111 i11g eot111$el i11 st1pport and oppo$Cd to the nwtttm) it is, ORDERED that the motion (#003) by the plaintiff an order confirming the report of the referee to compute and for issuance of a judgment of foreclosure and sale is considered under RP APL Article 13 and is granted: and it is further ORDERED that the cross motion (#004) by defendant, Marlenis Fonseca, for dismissal of the complaint or vacatur of the order of reference and her underlying default in answering with leave to serve a late answer is considered under CPLR 5015(a)(4) and (a)(I), CPLR 3012, CPLR 2004 and CPLR 4403 and is denied. [* 2] Deutsche Bank v Viera Index No. 11657110 Page 2 The plaintiff commenced this action in March of2010 to foreclose the lien of a September 15, 2006 mortgage given by the first three defendants named in the caption above to secure a note in the amount of $276,500.00. None of the defendants served with process appeared herein by answer nor did any appear for a settlement conference conducted by the court on August 26, 2010. By motion made in January of 2012, the plaintiff applied for an order of reference on default and said application was granted by order dated July 30, 2013 [La Salle, J.]). The plaintiff now moves (#003) for confirmation of the report of the referee to compute and for the issuance of a judgment foreclosing the lien of the mortgage and directing a sale of the mortgaged premises. The motion is opposed by defendant Fonseca in cross moving papers (#004) in which she seeks dismissal of the complaint on jurisdictional grounds. Alternatively, the cross moving defendant seeks a discretionary vacatur of her default in answering pursuant to CPLR 501 S(a)(l) and the order of reference issued thereon, the immediate dismissal of the complaint due to a purported failure to comply with the notice requirements of RP APL§ 1304 and the notice of default provisions contained in the mortgage or leave to appear herein by service of a late answer. Finally, defendant Fonseca seeks a denial of this motion due to the referee's failure to hold a hearing prior to calculating amounts due. For the reasons stated, the plaintiff's motion (#003) is granted while the cross motion (#004) by defendant Fonseca is denied. Those portions of motion by defendant Fonseca wherein she seeks a dismissal of the complaint pursuant to CPLR 50 l 5(a)(4) is considered thereunder and is denied. The alleged discrepancies in the physical description of said defendant, who was served pursuant to CPLR 308(1) by personal delivery of the summons, complaint and other initiatory papers over six years ago, are minor and insufficiently substantiated to warrant a dismissal of the complaint or a traverse hearing on the issue of service (see Wells Fargo Bank, N.A. v Tricarico, 139 AD3d 722, 32 NYS3d 213 [2d dept 2016]; Wells Fargo Bank, N.A. v Moza, 129 AD3d 946, 947, 13 NYS3d 127 [2d Dept 2015]; Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457, 849 NYS2d 784 [2d Dept 2008]; NYCTL 1997-1 Trus{ v Nillas, 288 AD2d 279, 732 NYS2d 872 [2d Dept 2001]). Also denied are those portions of the defendant's cross motion wherein she seeks a discretionary vacatur of her default in answering and a vacatur of the order ofreference issued thereon pursuant to CPLR 5015, 2004 and 3012(d) with leave to serve a late answer. To be entitled to this relief, it was incumbent upon defendant Fonseca to demonstrate a reasonable excuse for the default and a meritorious defense to the action. For leave to serve a late answer pursuant to CPLR 3012(d), the moving defendant must demonstrate "excusable default grounds" which require a showing of a reasonable excuse for the default and a demonstration of a potentially meritorious defense (see Mellon v Izmirligil, 88 AD3d 930, 931 NYS2d 667 [2d Dept 2011], quoting, Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 921NYS2d643 [2d Dept 201 l];HSBC Bank USA, Natl. Ass'n vRotimi, 121 AD3d 855, 995 NYS3d 81[2dDept2014];Mamzi110Dev.,[11c. vLinares, 117 AD3d 995, 986NYS2d 578 [2d Dept 2014]; Diederich v Wetzel, 112 AD3d 883, 979 NYS2d 605 [2d Dept 2013); Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784, 785, 932 NYS2d 378 [* 3] Deutsche Bank v Viera Index No. 11657/10 Page 3 [2d Dept 2011 ]). The material facts of the asserted meritorious defense must be advanced in an affidavit of the defendant or a proposed verified answer attached to the moving papers (see Gers/mum vAltmad, 131 AD3d 1104, 16 N YS3d 836 [2d Dept 2015]; Karalis v New Dimensions HR, Inc.,105 AD3d 707, 962 N YS2d 647 [2d Dept 2013]). This two prong standard is applicable to applications made prior or subsequent to the issuance of either an order adjudicating the defendant's default in answering or a final judgment in favor of the plaintiff (see E ugene Di Lorenzo, J11c. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141, 501 NYS2d 8 [1986,judgment issued] ; Bae Home Loans Serv., LP v Reardon, 132 AD3d 790, 18 NYS2d 664 [2d Dept 2015, no judgment or order ofreference issued]; Wells Fargo Bank v Besemer, 131 AD3d 1047, 16 NYS3d 819 [2d Dept 2015, judgment issued]; Morgan Stanley Mtge. Loan Trust 2006-J 7XS v Waldman , 131AD3d1140, 16 NYS2d 331 [2d Dept2015, orderofreference issued]; U. S. Bank N.A. v A/ba, 130 AD3d 715, 11NYS3d864, 11 NYS2d 864 [2d Dept 2015,judgment issued] ; U.S. Bank Natl. Ass'u., v Sacltdev, 128 AD3d 807, 9 NYS3d 337 (2d Dept 2015; order of reference issued]; HSBC Bank USA v Desrouilleres, 128 AD3d 1013, 11 NYS2d 93 [2d Dept 2015,judgment issued]; Citimortgage, Inc. v Stover, 124 AD3d 575, 2 NYS2d 147 (2d Dept 2015, order of reference issued]; JP Morgan Clzase Bank v Palma, 114 AD3d 645, 979 NYS2d 832 [2d Dept 20 14, no order of reference or judgment issued]; Ba11k ofNew York v Espejo, 92 AD3d 707, 939 NYS2d 105 [2d Dept 2012; judgment issued]). The only excuse offered by the defendant here was her claim of a lack of service of process which has been found to be unmeritorious. Since the defendant offered no other excuse for her default, she is not entitled to the relief demanded pursuant to CPLR 50 I 5(a)(l) (see U.S. Bank, Natl. Ass'n vSmith , 132 AD3d 848, 19 NYS3d 62 [2d Dept 2015]; Community W. Bank, N.A. vSteplzen, 127 AD3d at 1009, 9 NYS3d 275 [2d Dept 2015]; U.S. Ba11k Natl. Assoc. v Harding, 124 AD3d 766, 998 NYS2d 667 [2d Dept 2014]; HSBC Bank v Miller, 121 AD3d 1044, 995 NYS2d 198 (2d Dept 2014]; Deutsche Bank N atl. Trust Co. v Pietmaico, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013]; Tadeo Constr. Corp. v Allstate Ins. Co., 73 AD3d 1022, 900 NYS2d 687 [2d Dept 2010]). The moving defendant's c laims to one or more meritorious defenses are thus immaterial and the Court need not determine whether the defendant demonstrated a meritorious defense (see Wells Fargo Ba11k, N.A. v Gioia, 114 AD3d, 766, 980 NYS2d [2d Dept 2014]: Deutsche Bank Natl. Trust Co. v White, 110 AD3d at 760, 972 NYS2d 664 [2d Dept 2013]). Even if it were otherwise, no potentially, viable meritorious defense to the plaintiffs claims for foreclosw-e were advanced in a proposed amended answer verified by the defendant Fonseca nor in her affidavit in support of her cross motion. Nor did defendant Fonseca demonstrate facts and circumstances which may be considered sufficient to constitute "good cause'' within the contemplation of CPLR 2004 (see Southstar III, LLC v E11ttie1111e, 120 AD3d 1332, 992 NYS3d 548 [2d Dept 2014]; see also Clzase Home Fill., LLC v Garcia, 140 AD3d 820, 31 NYS3d 894 [2d Dept 2016]; Citimortgage, Inc. v Stover, 124 AD3d 575, 2 NYS3d 147 [2d Dept 20 16); USA, Natl. Ass 'n v Rotimi, 12 1 AD3 d855, 995 NYS2d 81 [2d Dept 2014]). [* 4] Deutsche Bank v Viera Index No. 11657110 Page4 The defendant's failure to establish grounds for a vacatur of her default on either jurisdictional or excusable default grounds within the contemplation of CPLR 50 I 5(a) or 3012, or to establish good cause under CPLR 2004, precludes the immediate dismissal of the complaint pursuant to CPLR 3211 due to any non-compliance with the pre-action notice requirements imposed by CPLR 1304. This claim is a defense, that is not jurisdictional in nature (see Citimortgage, Inc. v Espinal, 134 AD3d 876, 23 NYS3d 251 [2d Dept 2015], citing Pritchard v Curtis, 101AD3d1502, 1504, 957 NYS2d 440 [3d Dept 2012]), which was waived by defendant Fonseca's default in answering and it remains unavailable to her in the absence of a discretionary vacatur of her default, which she failed to demonstrate an entitlement thereto (see Emigrant Bank vMarando,_ AD3d_2016 WL 6089224 [2d Dept201 6];Duprat v BMW Fin. Serv., NA, LLC, 142 AD3d 946, 38 NYS3d 32 [2d Dept2016]; PHH Mtge. Corp. v Celestin, 130 AD3d 703, 11 NYS3d 871 [2d Dept 2015); see also Flagstar Bank v Jambelli, 140 D3d 829, 332 NYS3d 625 [2d Dept 2016); U.S. Bank v Carey, 137 AD3d 894, 28 NYS3d 68 [2d Dept 2016)). The asserted standing defense and the asse11ed contractual notice of default defense suffers from the same fate, as both are affirmative defenses uncier CPLR 3018 which were waived by the defendant's failure to timely appear herein by motion or answer (see OneWest Bank, FSB v Vanderhorst, 131 A03d 1028, 16 NYS3d 460 [2d Dept 2015); JP Morgan Cllase Bank, N.A. v Butler, 129 AD3d 777, 780, 12 NYS3d 145 [2d Dept 20 15]; Wells Fargo Bank, N.A. v Combs, 128 AD3d 812, 10 NYS3d 121 [2d Dept 2015]). As such, they may not be used to support an untimely motion to dismiss the complaint pursuant to CPLR 3211 (see Nationstar Mtge. LLC v Avella, 142 AD3d 594, 36 NYS3d 679 [2d Dept 2016); Chase Home Fin., LLCv Garcia, 140 AD3d 820, supra; Soutllstar Ill, LLC v E11ttie1111e, 120 AD3d 1332, supra; U.S. Bank N.A. v Gonzalez, 99 AD3d 694, 694-695, 952 NYS2d 59 [2d Dept 2012]; Holubar v Holubar, 89 AD3d 802, 934 NYS2d 710[2d Dept 2011); McGee v D111111, 75 AD3d 624, 625, 906 NYS2d 74 [2d Dept 2010)). Nor may these waived defenses be use to open up an adjudicated default in answering such as th one in place here (see Wells Fargo Bank Natl. Assoc. v Laviolette, 128 AD3d 1054, 10 NYS2d 538 [2d Dept 2015); U.S. Bank, N.A. v Bemabel, 125 AD3d 541; 2015 WL 752831 [1 51 Dept 2015]; JP Morgan Mtge. Acquisition Corp. v Hayles, 11 3 AD3d 821 979 NYS2d 620 [2d Dept 2014]; Citibank, N.A. v Swiatkowski, 98 AD3d 555, 949 NYS2d 635 [2d Dept 2012); CitiMortgage, Inc. v Rosentllal, 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011]; HSBC Bank, USA v Dammo1UI, 59 AD3d 679, 875 NYS2d 490 [2d Dept 2009]). The cross moving defendant's challenges to the nature and quality of the proof submitted by the plaintiff in support of its prior motion for an order of reference on default are without merit. Such challenges are untimely as the plaintiffs motion was granted over three years ago. In any event, it is well settled law that a failu re to comply with the proofrequirements imposed by CPLR 3215(f), which are less stringent than those imposed upon motions for summary judgment (see Woodson v Mendo11 Leasing Corp., 100 NY2d 62, 760 NYS2d 727 [2003]), may not be used to open up a previously adjud icated default (see Manhattan Telecommu11icatio11s Corp. v H & A Locksmith, Inc., 21 NY3d 200, 969 NYS2d 424 [2013]; Hill v Stone, 113 AD3d 595, 977 NYS3d 906 [2d Dept 2014]; U.S. Bank v Tate, 102 AD3d 859, 958 NYS2d 722 [2d Dept 2013)). [* 5] Deutsche Bank v Viera Index No. 11657/ 10 Page 5 The couii has considered the remaining contentions of defendant Fonseca and her counsel and finds them all to be lacking in merit, including that the referee 's failure to give notice of and to hold a hearing prior to computing amounts due under the note and mortgage warrant a denial of the plaintiffs motion (see Wachovia Mtge. Corp. v Lopa, 129 AD3d 830, 13 NYS3d 97 [2d Dept 2015] Deutsche Bank Natl. Trust Co. v Jackson, 68 AD3d 805, 889 NYS3d 447 (2d Dept 2009]). Accordingly, the cross motion (#004) by defendant Fonseca for the relief outlined above is in all respects denied. The plaintiffs motion (#003) fo r confirmation of the repo1t of the referee to compute and for the issuance of a j udgment foreclosi ng the lien of the subject mo1tgage, directing a public sale of the premises and awarding the other relief applied for herein by the plaintiff is granted. The moving papers sufficiently demonstrated the plaintiffs entitlement to such relief (see Cafaro v Tineo, 135 AD3d 887, 22 NYS3d 909 (2d Dept 2016]; HSBC Bank USA, Natl. A ssoc. v Simmons, 125 AD3d 930, 5 NYS3d 175 [2d Dept 2015]). The opposing papers failed to demonstrate any grounds for a denial of the plaintiffs motion (see Wacho via Mtge. Corp. v Lopa, 129 AD3d 830, supra; Deutsche Bank Natl. Trust Co. v Jackson, 68 AD3d 805, supra). Proposed Judgment, as modified by the court to reflect the issuance and terms of this order, has been marked signed. DATED 11 { ~tl (c

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