Onewest Bank N.A. v Franklin

[*1] Onewest Bank N.A. v Franklin 2017 NY Slip Op 50630(U) Decided on May 11, 2017 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 11, 2017
Supreme Court, Kings County

Onewest Bank N.A., Plaintiff,

against

Keith E. Franklin, Individually and as Heir and Distributee of the Estate of Pearl Franklin; Dana Lewis, as Heir And Distributee of the Estate of Pearl Franklin; Secretary of Housing and Urban Development; New York City Parking Violations Bureau; New York State Department of Taxation and Finance; the People of the State of New York; United States of America, "John Doe No.1" through "John Doe No. 12," the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.



503896/15



RAS Boriskin, LLC

Joseph J. Karlya III, Esq.

900 Merchants Concourse, Suite 106

Westbury, NY 11590

(516) 280-7675

ProSe Defendant

Keith E. Franklin

617 East 52nd Street

Brooklyn, NY 11203

(917) 378-9767
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Onewest Bank N.A. (hereinafter OWB), filed on June 23, 2016, under motion sequence number one, for an order (1) awarding a default judgment against all non-appearing defendants pursuant to CPLR 3215; (2) appointing a referee to compute pursuant to RPAPL 1321; and (3) amending the caption by striking the John Doe defendants numbers one through twelve.

- Notice of Motion

- Proposed order of reference

- Affirmation in support

- Affirmation of non-military service

Exhibits A-K

Affidavit in opposition

- Affirmation in reply

BACKGROUND

On April 2, 2015, OWB commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office using the electronic filing system. No defendant has interposed an answer to the complaint.

The complaint alleges in pertinent part the following facts. On August 20, 2010, Pearl Franklin (hereinafter P. Franklin) executed a note (the subject note) in favor of the plaintiff's predecessor in interest in the amount of $517,000.00 secured by a mortgage on certain real property known as 617 East 52nd Street, Brooklyn, New York 11230, Block 4763 Lot 52 (hereinafter the subject property).

P. Franklin also executed and delivered a Home Equity Conversion Loan Agreement (hereinafter the HECLA) which required the plaintiff to pay the sums secured by the mortgage to the borrower monthly instead of one sum at the time the loan documents were executed. The HECLA provided that the loan was due upon the borrower's death. On October 29, 2014, P. Franklin died. The defendants have failed to comply with the terms of the HECLA by failing and omitting to pay the balance due and owing upon the P. Franklin's death. The plaintiff has elected to declare immediately due and owing the entire balance of unpaid principal. As of March 16, 2015, there is due and owing to the plaintiff the total sum of $256,136.77. No defendant has answered the complaint and only defendant Keith Franklin (hereinafter K. Franklin) has opposed the motion.

By order issued April 5, 2016, the Court lifted the stay imposed under Uniform Court Rule 22 NYCRR 202.12-a (c) (7), deemed the settlement conference conducted pursuant to CPLR 3408 as held, and released the matter for further proceedings.

LAW AND APPLICATION

OWB seeks an order: granting a default judgment against all defendants based on their failure to answer the complaint; appointing a referee to compute pursuant to RPAPL 1321; and amending the complaint by striking the names of all John Doe defendants.

Default Judgment and Order of Reference

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff must prove proper service of the summons and complaint on the defendant (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). Additionally, the plaintiff must submit proof of the defendants' default in answering or appearing and must submit proof of facts sufficient to establish a viable claim (Id.; also see CPLR 3215 [f]). CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit "made by the party" (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).

RPAPL 1321 provides in pertinent part as follows:

If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.

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 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 plaintiff must prove proper service of the summons and complaint on the defendant (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). Additionally, the plaintiff must submit proof of the defendants' default in answering or appearing and must submit proof of facts sufficient to establish a viable claim (Id.; also see CPLR 3215 [f]).

OWB's motion contains, among other things, a copy of the subject note, a copy of the mortgage or HECLA, the assignment of the HECLA from MERS, FFA's nominee, to OWB, P. Franklin's death certificate, a notice of default, the deed to the subject property, and affidavits of service of the commencement papers.

The affidavits of service annexed as exhibit F demonstrate that the John Doe defendants numbers one through twelve were not served with the commencement papers. They also establish that the named defendants were properly served with the commencement papers triggering their respective obligations to respond to the complaint. The affirmation of OWB's counsel demonstrates that none of the named defendants answered the complaint.

OWB has also submitted the affidavit of Christina Falcon Hernandez (hereinafter Hernandez) in support of the instant motion. Hernandez has sworn that she is the assistant secretary of CIT Bank, NA fka OWB and that she has personal knowledge of the business practices, procedures and records of OWB. Based on that knowledge and her review of OWB's records she has alleged the following facts.

In August 20, 2010, Financial Freedom Acquisition LLC (hereinafter FFA), a subsidiary of OWB, loaned the principal sum of $517,000.00 to P. Franklin. P. Franklin executed a note to Mortgage Electronic Registration Systems, Inc. (hereinafter MERS) as nominee for FFA and a HECLA, also known as a reverse mortgage, encumbering certain real property 617 East 52nd Street, Brooklyn, New York 11230, Block 4763 Lot 52, the subject property to secure the note. The HECLA provided that the loan was due upon P. Franklin's death. By assignment dated January 16, 2015, MERS as nominee for FFA assigned the note and HECLA to OWB. On October 29, 2014, P. Franklin died. OWB was the mortgagee of record and the holder of the note before the instant action was commenced. In accordance with the mortgage, OWB sent a 30 day default notice. The defendants defaulted on the terms and conditions of the HECLA by not making payments due and owing. OWB accelerated the mortgage debt.

Through the affirmation of its counsel and the affidavits of service of the commencement papers, OWB has proved proper service of the summons and complaint on all of the named the defendant in accordance with CPLR 3215 (f) (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). OWB has also established that none of the named defendants have interposed an answer to the complaint. Through the affidavit of Hernandez, OWB has provided proof of facts sufficient to establish a viable claim.

Amending the Complaint

OWB has also requested that the complaint be amended by striking all John Doe defendants from the caption. OWB's counsel has also averred that the John Doe defendants are not necessary parties and have not been served with the commencement papers. Inasmuch as there is no opposition to this branch of OWB's motion, and the Court sees no prejudice to any party, the request should be granted (see Deutsche Bank Nat. Trust Co. v Islar, 122 AD3d 566 [2nd Dept 2014] citing CPLR 1024 and Flagstar Bank v Bellafiore, 94 AD3d 1044 at 1046 [2nd Dept 2012]).

K. Franklin has submitted an affidavit to oppose that branch of OWB's motion seeking a default judgment and the appointment of a referee to compute the amount it is due. K. Franklin's sole claim is that OWB did not establish that is served him with the mandatory reverse mortgage notice, or as Hernandez's has called it, the 30 day default notice. K. Hernandez, however, did not claim that he was not served with the notice. Rather he claimed that Hernandez's affidavit regarding service of same was vague.

K. Franklin, however, did not answer the complaint or make a pre-answer motion to dismiss the complaint. Under these circumstance. K. Franklin, has waived the objection (see US Bank Nat. Ass'n v Konstantinovic, 147 AD3d 1002 [2nd Dept 2017]; CPLR 3018[b]; 3211[a], [e]; Nationstar Mtge., LLC v Avella, 142 AD3d 594, 595 [2nd Dept 2016]). Accordingly, OWB has established it entitlement to all the relief it has requested.

CONCLUSION

Onewest Bank N.A.'s motion for an order awarding a default judgment against all defendants pursuant to CPLR 3215 is granted.

Onewest Bank N.A.'s motion for an order appointing a referee to compute pursuant to RPAPL 1321 is granted.

Onewest Bank N.A.'s motion for an order amending the caption by striking the names of John Doe defendants numbers one through twelve is granted.

The foregoing constitutes the decision and order of this Court.

Dated: May 11, 2017

Hon. Francois A. Rivera

J.S.C.