Wells Fargo Bank, NA v Ramdin

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[*1] Wells Fargo Bank, NA v Ramdin 2018 NY Slip Op 28412 Decided on December 21, 2018 Supreme Court, Queens County Modica, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 21, 2018
Supreme Court, Queens County

Wells Fargo Bank, NA, et al., Plaintiff,

against

Motieram Ramdin, et al., Defendants.



704693/2016
Salvatore J. Modica, J.

The plaintiff's motion to vacate a foreclosure sale, an order of reference, and a notice of pendency, which were previously granted in this case, is granted. The plaintiff's additional motion for leave to file a Supplemental Summons and Amended Complaint in order to acquire jurisdiction over the heirs of the deceased mortgagor, Motieram Ramdin, is, for reasons stated in this opinion, denied. For reasons stated in this decision and order, all prior orders that have been entered in this action are vacated.

This action was commenced in 2016. The defendant mortgagor, Motieram Ramdin, however, died on July 13, 2009, as now conclusively shown by a death certificate obtained from the Co-operative Republic of Guyana. See D'Andrea v. Long Island R. Co., 117 AD2d 10, 11—12 (2nd Dept. 1986), aff'd sub nom. D'Andrea v. Long Island R.R. Co., 70 NY2d 683 (1987). Given the decedent's death in 2009, the Court is mystified by the plaintiff's contention that the deceased only stopped making foreclosure payments as of November 1, 2015. In any event, it is well-settled that "[a] party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent's estate." Jordan v City of New York, 23 AD3d 436, 437 (2nd Dept. 2005); see also Dime Savings Bank of New York FSB v. Luna, 302 AD2d 558 (2nd Dep. 2003)(Plaintiff may not commence an action during the period between the death of a potential defendant and the appointment of a representative of the estate.); Laurenti v. Teatom, 210 AD2d 300, 301, (2nd Dept. 1994). Any orders, issued in such an action, including the entry of a personal judgment against a decedent, are a nullity. See American Airlines Federal Credit Union v Costello, 161 AD3d 819 (2nd Dept. 2018); see also Jordan v City of New York, supra, 23 AD3d at 437; see also EPTL 11—3.1. In other words, the decedent must be substituted by an appropriate representative pursuant to CPLR 1015(a). Although it is far from clear, substitution may apparently take place even in cases in which the [*2]defendant has died prior to the commencement of an action. See eg. Jordan v City of New York, supra, 23 AD3d at 436.

The instant request, however, by the plaintiff to serve the unknown heirs by publication does not, in any way, constitute a proper request for substitution. "A motion for substitution may be made by the successors or representatives of a party or by any party" See Dieye v Royal Blue Servs., Inc., 104 AD3d 724, 725 (2013); see also CPLR 1021.

In this case, the Court finds that, before it can obtain jurisdiction in this case, an application must first be made in Surrogate's Court to have an heir appointed administrator of the estate of the deceased mortgagor. See Lambert v Estren, 126 AD3d 942, 943 (2nd Dept. 2015) ("In most instances a personal representative appointed by the Surrogate's Court should be substituted in the action to represent the decedent's estate."); see also DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., supra 51 AD3d at 857. Although Supreme Court has jurisdiction to make the appointment, it should exercise that power only in pressing circumstances. See Castrovinci v. Edwards, 59 Misc 2d 696, 299 (Sup. Ct., Westchester County, 1969).

Insofar as this case is concerned, this Court concludes that the appropriate place to make this application is to the Surrogate of Queens County. See Lambert v Estren, supra at 943. First, it has the requisite expertise to determine the proper person to be appointed. Presently, the plaintiff has absolutely no knowledge whether the deceased even has any heirs. This issue needs to be investigated and service by publication on "unknown heirs" with a Supplemental Summons and Amended Complaint will not cure the need for the appointment of a personal representative for the decedent's estate.

Accordingly, the plaintiff has several options. It can locate an heir of the deceased and request that such person make an application to the Surrogate for the appointment of an administrator for the deceased's estate. See SCPA 1002.[FN1] Alternatively, an application can be made in Surrogate Court to have the Public Administrator or someone else appointed as the representative of Ms. Ramdin's estate. See eg. Alaska Seaboard Partners P'ship v. Grant, supra 20 AD3d at 437; see also See SCPA 1112. The Public Administrator is authorized to act whenever any person dies intestate and there is no known person eligible to receive letters of administration. See SCPA 1112. Once plaintiff obtains an order from the Surrogate Court for the appointment of a personal representative, then this Court will, on the plaintiff's motion, entertain a request for substitution and other related relief.

Finally, the Court rejects the plaintiff's argument that the deceased or her estate is not a necessary party to this action. "[W]here a party's demise does not affect the merits of a case [*3]there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution." DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d 857, 858 (2nd Dept. 2008); see also Matter of Einstoss, 26 NY2d 181, 189 (1970); Bova v Vinciguerra, 139 AD2d 797, 799 (2nd Dept. 1988); see Alaska Seaboard Partners Ltd. Partnership v Grant, supra 20 AD3d at 437. In mortgage foreclosure cases, if a "plaintiff elect[s] to waive its right to seek a deficiency judgment against the mortgagor and cho[o]se[s] to discontinue the action against h[er]...," then, if other factors are present, a court might be able to obtain jurisdiction over the matter. DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., supra 51 AD3d at 858-859. As succinctly explained by the Second Department, "[t]he rule is that a mortgagor who has made an absolute conveyance of all h[er] interest in the mortgaged premises, including h[er] equity of redemption, is not a necessary party to foreclosure, unless a deficiency judgment is sought" Id at 859; see also Federal Natl. Mtge. Assn. v Connelly, 84 AD2d 805 (2nd Dept. 1981); U.S. Bank Natl. Assn. v Esses, 132 AD3d 847, 848 (2nd Dept. 2015).[FN2]

In other words, before a deceased mortgagor may be deemed an unnecessary party, the mortgagee-bank must do more than merely waive its right to seek a deficiency judgment. See id ("In the context of a mortgage foreclosure action, where a deceased defendant made an absolute conveyance of all his or her interest in the mortgaged premises to another defendant, including his or her equity of redemption, and the plaintiff either discontinued the action as against the deceased defendant or elected not to seek a deficiency judgment against the deceased defendant's estate, then the deceased defendant is not a necessary party to the action."] In this case, although the plaintiff waived its right to seek a deficiency judgment against the deceased, the plaintiff has failed to establish that the deceased mortgagor made an absolute conveyance of all her interest in the mortgaged premises, including her equity of redemption, to another person or entity. For this reason, the Court denies the plaintiff's motion to file a supplemental summons, amended complaint, and amended notice of pendency in this action.

The Court, however, concludes that the complaint should not be dismissed for lack of jurisdiction. First, as pointed out in this decision, substitution, albeit nunc pro tunc, appears to still be possible. In addition, no extraordinary circumstances exist justifying the sua sponte dismissal of this action. See Rienzi v. Rienzi, 23 AD3d 450 (2nd Dept. 2005).[FN3]

Given that jurisdiction was never acquired in this action, Supreme Court had no authority to issue rulings binding on the estate of the deceased mortgagor. For this reasons, all prior orders [*4]issued in this action are vacated. The plaintiff has leave to make an application in Surrogate Court to have an appropriate personal representative appointed for the decedent's estate. Once that appointment is secured, the plaintiff has leave to file any motion it deems advisable within a reasonable time period. All proceedings are, accordingly, stayed in this action pending proper substitution pursuant to CPLR 1015(a).

Accordingly, the instant motion is granted, in part, and denied, in part, with leave to renew, in accordance with this decision and order.

It is hereby:

ORDERED that all prior orders are vacated in this case; and it is further

ORDERED that the plaintiff's motion for leave to file a Supplemental Summons and Amended Complaint over the heirs of the deceased mortgagor, Motieram Ramdin, is, denied; and it is further

ORDERED that the plaintiff has leave to file a motion for substitution in accordance with this decision and order: and it is further

ORDERED that all proceedings in this action are stayed; and it is further

ORDERED that the Clerk of this Court is directed to enter this decision and order as a judgment.

The foregoing constitutes the decision, order, and opinion of the Court.



Dated: December 21, 2018

Jamaica, New York

Honorable Salvatore J. Modica

J.S.C. Footnotes

Footnote 1: As the late Professor Siegel noted: If the defendant dies, and the defendant's estate is insubstantial, the plaintiff may find the defendant's family singularly unenthusiastic about having a personal representative appointed and substituted—they have little motive to expedite the plaintiff's suit—and yet the action can't proceed until that's done. The plaintiff in that situation can make the application to have a representative appointed [pursuant to SCPA 1002] and substituted for the deceased defendant. Siegel, NY Prac § 376, at 653-657 (5th ed 2 go into Surrogate Court and 011).

Footnote 2: Of course, if prior to her death, the deceased had been served in this action and defaulted by, for example, not serving an answer or making an appearance in this action, then this Court could find that she is no longer a necessary party in this action. Alaska Seaboard Partners P'ship v. Grant, supra 20 AD3d at 437. That, however, is not what happened in this case. Here, the mortgagor died prior to the commencement of this action. As a result, she was a necessary party, for whom substitution was required prior to the filing of this action.

Footnote 3: The Court's power to dismiss an action sua sponte appears to be quite limited statutorily. CPLR 3216(a) is a rare example of that power. Under this statute, however, the Court's sua sponte power to dismiss is triggered only if issue is first joined, something which never happened in this case. See CPLR(b)(1).