Wilmington Sav. Fund Socy. FSB v Nugent

[*1] Wilmington Sav. Fund Socy. FSB v Nugent 2017 NY Slip Op 52029(U) Decided on June 5, 2017 Supreme Court, Wyoming County Griffith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2017
Supreme Court, Wyoming County

Wilmington Savings Fund Society FSB, doing business as CHRISTINA TRUST, not in its individual capacity but solely as Trustee for B-CAT 2014-4TT, Plaintiffs

against

Patricia Nugent, A/K/A PATRICIA M NUGENT, A/K/A PAT NUGENT, DEANNA FERRY, VELOCITY INVESTMENTS LLC, RJM ACQUISITIONS LLC, GMAC MORTGAGE CORPORATION, Defendants.



46169



Mason A. Meyer, Esq, of counsel, for the plaintiff

Ralph A. Horton, Esq., for defendant
Michael F. Griffith, J.

The above named defendants have all moved for Vacatur of Order granting Summary Judgment and for Reference pursuant to CPLR 5015(a)(2)(3), seeking dismissal of the action and claims against them; and said motion having duly come on to be heard.

NOW, on reading the pleadings herein, and on reading and filing the Notice of Motion of the defendant Deanna Haggarty, dated November 6, 2016 and filed November 9, 2016, supported by the Affidavit of Deanna Haggarty, together with attached exhibits and accompanying Memorandum of Law dated and sworn to on November 6, 2016; the Attorney's Affirmation in Support of Motion to Dismiss of Ralph A. Horton, Esq., dated December 28, 2016; the Affirmation in Opposition to Motion to Dismiss of Ted E. May, Esq., Attorney for the Plaintiffs, dated December 2, 2016; the Reply Affirmation of Ralph A. Horton, Esq., dated December 12, 2016; together with attached exhibits; the Affidavit of Gerald Clark, dated and sworn to on December 24, 2016, together with attached exhibits; the letter of Ralph A. Horton, Esq., dated December 28, 2016 and accompanying Affidavit of Gerald Clark, dated and sworn to on December 28, 2016; the Affirmation of Opposition to Motion to Dismiss of Ted E. May, Esq., dated February 3, 2017, together with attached exhibits; and the Defendant's Affirmation in Response to Plaintiff's Affirmation in Opposition to Defendant's Motion to Dismiss filed by [*2]Ralph A. Horton, Esq., dated February 7, 2017, and due deliberation having been had, the following decision is rendered.

This action involves property located at 40 Bigelow Avenue, Silver Springs, New York 14550. A foreclosure action was commenced on November 4, 2013 when the defendants Patricia Nugent and Deanna Ferry failed to cure their default, after the entire mortgage was declared immediately due and payable. The Defendants were served with a copy of the summons and complaint in accordance with the CPLR. The defendants admit to owning the premises and do not deny they executed the note and mortgage or that they defaulted under the terms of the note and mortgage.

In an action to foreclose a mortgage, "a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default. When a plaintiff does so, it is incumbent upon the defendant to assert any defenses which could properly raise a viable question of fact as to his/her default" (Village Bank v. Wild Oaks Holding, 196 AD2d 812). The plaintiff's have established its prima facie entitlement to foreclosure as a matter of law. Further, defendants do not dispute that they defaulted in payment.

The defendants argue, however, that pursuant to Business Law § 1312(a), this Court's Order of Reference must be vacated, and that this action cannot proceed unless and until Christiana Trust BCAT 2014-4TT and GCAT 2014-4, LLC have qualified to do business in New York State. Further, the defendants argue that pursuant to Business Corporation Law § 1312(a), the plaintiff cannot maintain its foreclosure action because plaintiff is not registered with the Secretary of State. Further, the defendants allege that the plaintiff is not a qualified foreign corporation, and lacks capacity to bring suit in the State of New York.

A review of the entire file demonstrates there was no pre-answer motion or answer filed in this matter. Under CPLR 3211(a)(3), a motion to dismiss cause of action, a party may move for judgment dismissing one or more causes of action asserted against him on the ground that: the party asserting the cause of action has not legal capacity to sue. Further, CPLR § 3211(e) states that any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading.

The defendants state that CPLR § 3211 is not applicable, because the issue of the capacity to sue did not arise until after the time for an Answer. They further state that it was the Plaintiff who raised the issue by introducing an allegedly new, unqualified Plaintiff at the time of the Order of Reference.

The issue of lack of capacity does not implicate the jurisdiction of the court, it is merely a ground for dismissal if timely raised as a defense (CPLR § 3211[a][3]; Security Pacific Nat. Bank v. Evans, 31 AD3d 278). Since there was no timely answer, the homeowners waived that defense and cannot raise it now. The statute is clear that the defense of lack of capacity must be raised in a pre-answer motion to dismiss or the answer, or else it will be waived (CPLR § 3211[e]; Wells Fargo Bank v. Mastropaolo, 42 AD3d 239). Since defendants have waived any defense regarding lack of capacity to sue and any other defenses, they have failed to meet their burden.

NOW, THEREFORE, it is hereby

ORDERED, that defendants' Notice of Motion is denied; and it is further

ORDERED, that the Judgment of Foreclosure and Sale be granted and the foreclosure action shall continue

Dated: June 5, 2017

Warsaw, New York

ENTER

__________________________________

Hon. Michael F. Griffith

Acting Supreme Court Justice