Wells Fargo Bank, N.A. v Heller
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Wells Fargo Bank, N.A. v Heller 2017 NY Slip Op 32932(U) December 12, 2017 Supreme Court, Rockland County Docket Number: 034121/2015 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 034121/2015 lFILED: ROCKLAND COUNTY CLERK 12/12/2017 03:54 PMJ ' , .NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/12/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND . ------------------------------------------------------x WELLS FARGO BANK, N·.A., Plaintiffs, DECISION AND ORDER ON MOTION TO RENEW -against- Index No.: 034121/2015 JOSEPH HELLER; ESTHER HELLER; NEW YORK STATE DEPARTMENT OF. TAXATION AND FINANCE; MIDLAND CREDIT MANAGEM.ENT t INC.; MID HUDSON VALLEY FEDERAL CREDIT UNION; CAPITAL ONE BANK (USA), N.A.; "JOHN DOE#l" THROUGH "JOHN DOI; #10," Defendants. Motion #3 - MD DC- N · Adj: 2/8/18 ----------------------------------------------~-------x Thomas E. Walsh II, J. The following papers, numbered 1 to 3, were considered in connection with Defendants' motion for leave to renew this Court's Decision and Order dated June 1, 2017, pursuant to Civil Practice Law and Rules § 222:1.(e), (b) upon renewal·, an order finding that Plaintiff failed to prove that it strictly complied with RPAPl § 1304, ( c) an Order pursuant to Civil Practice Law and Rules §§ 3212 (b) and 213[4] granting summary judgment in Defendants' favor, (d) an Order granting reasonable attorneys' fees pursuant to RPL § 282 a~d 22 NYCRR § 130-1.l(a) and (e) ari Order granting to the Defendant such other or different relief as thi~ Court . deems jus~ and . proper~ PAPERS NUMBERED Notice of Motion to Renew and for Summary Judgment/Affirmation of David R. Smith, Esq./Affidavit of Esther Heller/Affidavit of Joseph Heller/Exhibits {A-K) · 1 Affirmation of Anthony P. Scali, Esq. In Opposition/Exhibits (A-L) 2 Reply Affirmation of David R. Smith, Esq./Exhibit A 3 Upon the foregoing papers, the Court now rules as follows: Upo~ the foregoing papers, the Court now ·rules as follows: Briefly, this action is to foreclose on a Note and Mortgage covering the real property known as 17 Albert Drive Monsey, New York 10952 executed by Defendants. Plaintiffs allege that Defendants breached their obligations under the terms of the note and mortgage by 1 of 6 [* 2] (FI~ED: ROCKLAND COUNTY CLERK 12/12/2017 03:54 PMJ INDEX NO. 034121/2015 RECEIVED NYSCEF: 12f12/2017 ·NYSCEF DOC. NO. 93 failing to tender payments as required. As a result of the default, on September 10, 2015 Plaintiff commenced the Instant foreclosure action. Defendant JOSEP_H HELLER was served with the Summons and Complaint pursuant to Civil Practice Law and Rules§ 308(1) and Defendant ESTHER HELLER was served with process pu.rsuant to Civil Practice Law .and Rules§ 308(2) . . Defendants failed to answer or appear and Plaintiff moved for an Order of Reference which was g·ranted by the undersigned on O,ctober 28, 2016. Defendant subsequently moved for an Order to Show Cause to vacate the Order of Reference. Plaintiff opposed the Defendant's Order to Show Cause. The undersigned granted Defendants' Order to Show Cause in part in that Defendant was granted leave to serve and file a late answer pursuant to Civil Practice Law and Rules§ 3012(d). Defendants filed their Answer with counter clainis via the NYSCEF system on June 14, 2017. ~laintiff filed their reply to the counter claims via the NYSCEF system on July 3, 2017. Defendant filed .the instant Motion to Renew part of their Order to Show Cause regarding the Plaintiffs failure to prove. compliance with Real Property Actions and Proceedings . . . Law§ 1304. Specifically, Defendants submit that since the submission of their Order to Show Cause in December 2016 there have been several Appellate Division, Second Department cases that."have shed additional light on a Plaintiff's requirements for proof of compliance with RPAi:>L 1304." Further, Defendant's assert that these decisions require a reversal of the undersigned's prior determination that found that the Plaintiff strictly complied with Real Property Actions and Proceedings Law § 1304 on several distinct grounds. Defendant directs the Court to Citimortqaqe. Inc. v. Pappas, 147 AD3d 900, 901 (2d Dept 2017) which Defendant avers "firmly established the requirement that if a Plaintiff wishes to prove compliance .with RPAPL 1304 through the production of adm.issible business records, the P·laintiff's affiant must adduce proof ·that he or she is familiar with the mailin9 practices and proced~res of the sender of the notice, so as to establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed."· Defendant directs the Court to. the Affidavit of David Nilsen stating that it ls devoid of any testimony which discusses the standard office practice or procedures employed by Plaintiff 2 2 df 6 [* 3] lFI~ED: ROCKLAND .. ··NYSCEF DOC. NO. 93 INDE~ COUNTY CLERK 12/12/2017 03:54 PM) NO. 034121/2015 RECEIVED NYSCEF: 12/12/2017 . . · to ensure that items, such as the 90 day notice, are pr~perly addressed and ·mailed. Also of issue raised by the Defendant i_s the fact that Mr: Nilsen is an employee of Caliber Ho~e _Loans, _Inc., and the 90-day notice that was sent by Wells Fargo Home Mortgage on their letterhead and therefore any statements made by Mr. Nilsen in his Affidavit are not based on hi~ own personal knowledge of Wells Fargo's ~usine~s practices. According to Defendant, Plaintiff lias failed to provide any documentation of the. Plain~iff's mailing practices, proof of mailing of the 90 day notices or offere~ any documentation in support of their. Affidavit if M.erit demonstrating a database or some record of the mailings. Defendant is also seeking dismissal of the Complaint based on the alleged expirati_on of the Statute of Limitatio.ns. In Opposition, Plaintiff submits that Defendant filed a Notice of Erytry of the Prior Order on June 14, 2017. Plaintiffs state· that within thirty (30) days of serve of the Notice of Entry the Defendants failed to file a Notice of Appeal preserving any appeal of the undersigned's determination regarding the Plaintiff's compliance with Real Properfy Actions and Proceedings Law § 1304 in the prior Decision and Order. As such, Plaintiffs assert that Defendants are seeki~g a "second bite at the apple" due to their failu~e to timely preserve their appeal. Based · on Defendants' failure to seek an appeal, the Plaintiffs aver that Defendants are bound by the · Court's decision regardif:19 ttte 90-day Notice, as it is the· law of the case. Further, Plaintiffs assert that the Pappas case cited by Defend.ants does not reflect a change in· the law regarding the compliance requirements of Real Property Actions and Proceedings Law § 1304, but rather offers suggestions as to the type of documents that can prove the mailing of the 90~day Notice. Plaintiffs also submit that Defendant's reliance on Wells Fargo Bank, N.A. v. Trupi, 150 AD3d 1049 (2d Dept 2017) as "new binding precedent" is baseless. According to Plaintiff,. Trupi is similar to the Appellate Division S~cond Department's Decision in Pappas, In that it does not reflect a change in the law that requires a reversal of this Court's prior·determination regarding the Plaintiff's compliance with Real Propertv Actions and • Proceedings Law§ 1304. As to Defendant's assertion that the Statute of. Limitations has expire· on the .3 3 of 6 [* 4] !FILED: ROCKLAND COUNTY CLERK 12/12/2017 03:54 PMJ .NYSCEF DOC. NO. 93 INDEX NO. 034121/2015 RECEIVED NYSCEF: 12/12/2017 instant action, the Plaintiffs assert that the loan has not yet been accelerated. Specifically, Plaintiffs argue that the acceleration t~rms in the mortgage result in the Statute of Limitations defense being stricken. Paragraph 19 of the subject mortgage states that a lender cannot reject borrower's payment of arrears to reinstate the mortgage until judgment was entered, which makes the terms of the mortgage the determining factor in acceleration and not the commencement of the· foreclosure action. ·Therefore, Plaintiff opines that the· subject mortgage in this action remains an installment contract until a judgment is entered and that ac~eleration is not accomplished by the filing of the foreclosure action. Civil Practice Law and Rules § 2221 ( e) refers solely to motions for leave to renew, stating that they "shall be identified specifically as such," (CPLR § 2221(e)(1)], "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that wol:'ld change the prior determination;" [CPLR § 2221( e)(2)], and "shall contain a reasonable justification for the failure to present such facts on the prior motion." [CPLR § 2221(e)(3)]. Civil Practice Law and Rules § 2221 was amended effective July 20, 1999 by adding new subdivisions (d), (e) and (f) which codify and clarify the rules regarding motions for leave to reargue and renew. [Glicksman v. Board of Education/Central .school Bd.. Of Comsewoque Union.Free School District, 278 AD2d 364, 365 (2d Dept 2000)]. The amended statute did not impose a time frame for which a motion for leave to renew is to be made, but does limit the time to make a motion to reargue within 30 days after service of a copy of the prior order with notice of entry. [Civil Practice Law and Rules§ 2221 [d][-3]and [e]]. Prior to the amendment of the statute in 1999 a motion that sought relief based on the ~hange in law generally was considered on· for reargument. [Glicksman v. Board of Education/Centra~ School Bd. of Comsewoque Union Free School District, 278 AD2d at 365]. Further, motion~ seeking relief based on a change in law needed to be made. before the time to appeal the prior order had expired. [Id.]. The exception to this were "motions to reargue" based on an intervening change in the law and the original orde.r was an. intermediate one which would be subject to review upon appeal from the final judgm·ent or the matter was on appeal. [Matter of Barnes (Council 82, 4 4 of 6 [* 5] !FILED: ROCKLAND COUNTY CLERK 12/12/2017 03:54.PMJ . -' NYSCEF DOC. NO. 93 INDEX NO. 034121/2015 RECEIVED NYSCEF: 12/12/2017 AFSCME. on Behalf of Monrop, 235 AD2d 826 (3d Dept 1997)]. Case law dict~ted that in a .circumstance in which a judgme_n.t had been entered and no appeal was pending, then a. motion for leave to r~argue based on a change in the law should not be granted. [Glicksman v. Board of Education/Central School Bd. of Comsewoque Union Free School District, 278 AD2d at 366]. The basis fo~ this was that there must be an end to lawsuits, and therefore absent the . circumstances codified- in Civil Practice Law and Rules § 5015, then a determination of a court in which no appeal has been taken must remain untouched based on a change in law. [Matter of Huie fFurmanl, 20 NY2d 568 {1967)]. The changes in Civil Practice Law and Rules§ 2221{e) did not impose a time limit for the makfng of a motion to renew and there is nothing within the ·legislative history which indicates their intention of changing the rules regarding the finality of judgments. [Glicksman v. Board of Education/Central S~hool Bd. of Comsewoque Union Free School District, 278 AD2d at 366]. The Court notes that the Defendant's did not file an appeal in the instant matter within thirty (30) days of the Notice of Entry on June 14, 2017. Motion to ~enew Therefore, the Defendant's is untimely and will not be considered by the Court. Further, the Court finds that the Decision and 9rder regarding the. Plaintiff's compliance with Real Propertv Actions and Proceedings Law § 1304 is the law of the case and the Court declines to disturb the prior Decision. As to the Defendant's application to dismiss the Instant action based C!n expi_ration of Statute of Limitations, the. Court finds that the instant action was commenced timely based on paragraph 19 of the subject mortgage. The Court need not reach any of"the Defendant's other.arguments. Accordingly, it is hereby ORDERED that Defendants' motion to Renew is denied; and it is further ORDERED that the parties shall appear for a status conference on THURSDAY FEBRUARY 8, 2018 .. at 9:30 a.m. . The foregoing constitutes the Opinion, Decision and Order of this Court on Motion #3. 5 s of 6 [* 6] (FIE.ED: ROCKLAND COUNTY CLERK. 12/12/2017 03: 54 PMJ • ~NYSCEF DOC. NO. 93 . INDEX NO. 034121/201s RECEIVED NYSCEF: 12/12/2017 Dated: New City, J'M' York· December'46, 2.017 HON~ THOMAS E. WA SH II Justice of the Supreme Court TO: STERN & EISENBERG, P.C. Attorney for Plaintiff (via e-file) DAVID SMITH, ESQ. PETROFF AMSHEN, LLP Attorney for Defendants JOSEPH HELLER and ESTHER HELLER (via e-file) . • 6 6 of 6
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