Wells Fargo Bank. N.A. v Riegel

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Wells Fargo Bank. N.A. v Riegel 2018 NY Slip Op 32556(U) September 26, 2018 Supreme Court, Suffolk County Docket Number: 007481/2012 Judge: James Hudson 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] 6tlprrmt Court of tbr Countp of 6uffollt &tatt of j}tbJ !lork · t)art XL .mtmoranbum 1.Ded~ton PRESENT: copy HON. JAMES HUDSON Acting Justice of the Supreme Court x---------------------------------------------------------------x INDEX N0.:00748 1/2012 WELLS FARGO BANK. N.A.. SUCCESSOR BY MERGER TO WELLS FARGO BANK MINNESOTA. MOT. SEQ. N0.:004-MD N.A.. AS TRUSTEE F/K/A NORWEST BANK MINN ESOTA, N./\., AS TRUSTEE FOR THE REGISTERED HOLDERS OF RENAISS/\ NCE I fOME EQUITY LOAN ASSF.T-I3ACKED CERTIFICATES, SERIES 2003-3. Plaintiff, -against- LEOPOLD & ASSOCIATES, PLLC Attorneys for Plaintiff 80 Business Park Drive. Suite I 10 Armonk. NY 10504 MS. LE ORE RIEGEL Defendant Pro Se 28 Krause Street Bay Shore. NY 11706 LENORE RIEGEL. Defendant. x---------------------------------------------------------------x ORDERED that the motion (seq. no.:004) of Defendant requesting that the June 291" . 20 16 default j udgment be vacated due to reasonable excuse for de fault and a meritorious defense pursuan t to CPLR Rule 50 I5(a) ( I) and CPLR _§3012 (d) and: dism issal of the foreclosure case due to lack of s tanding oCP lnint iff pursuant to RPAPL ~§ 1303 and 1306 , is denied in its entirety. This is a matter seeking foreclosure and sa le of residential real property situate in Bay Shore, Suffolk County, New York. On August 22".i. 2003 Defendant/ Mortgagor Lenore Riege l closed 0 11 a first mortgage with mortgagee/assignor which through ass ignment is now - Plaintiff. secured bv"' a note and mortgage on 28 Krause Street. Bay.. Shore. NY 11 706. ~ Defendant ceased payment on lhal loan, failing to make the mortgage payment on August I•1• Page I of 5 [* 2] Index No. JJ0?-18112U 12 Wells Fargo Bank, el al., " Lenore Riegel 20 I I and continuing thereafter. On Feb ruary 22°.i, 2012. having complied with the notice requirements of RPJ\PI. §§ 1304 and 1306. Pia inti ff commenced this foreclosure action. On March 20111 • 20 12 Detendant was personally served. Two (2) CPLR Rule 3408 mandatory settlemen t conferences were scheduled on August 91h. 2013 and October l71h. 2013. Defendant failed to appea r at either settlement con ference. Defendant foiled to answer the complaint and did not appear in the case prior lo filing the instant Motion. On June 291h. 20 16 default judgment was granted lo the Plaintiff. On October 5 111 , 20 16 Defendant fil ed the instant mot ion to vacate de fau lt, and on October l8 1h , 20 16 Plaintiff served its opposition to that moti on. J\bsent a '·viable jurisdictional claim, .. a party in default may not move for affirmative relier without an order re lieving such defenda nt from hi s or her defaul t in place at the time affirmative relief is demanded see (U.S. Bank N atl Assn. v. Go11za/ez, 99 J\ D3d 692. 952 NYS2d 59 [2d Dept 20 12]: Holubar v. Holubar , 89 A03d 802, 934 NYS2d 710 (2d Dept 201 1J; McGee v. D111111 . 75 AD3d 624. 906 NYS2d 74 (2d Dept 20 I OJ). Defendant. being untimely in her appearance in the case must first demonstrate an excusable default for failing to appear and a meritorious detense in th e cast:. In the event Defendant demonstrates such excuse and defense, the Court may then consider Defendant's argument that Plaintiff lacks standing. and for that reason the case should be dismissed. Yacatur of D efa ult CPLR Rule 501 5 (a )( 1), CPLR §30l 2 (d) CPLR Rule 5015. Relief from judgment or order prov ides. in pert inent paii: Page 2 of 5 [* 3] Wells Far?,o Bank. et al.. v lenore Ril!gel Index No.:00 7./8112012 "(a) On moti on. The co urt wh ich rendt!red a judgment or order may relieve a party from it upon such terms as may be .iust. on motion o r any interested per~o n with such notice as the court may direct. upon the ground of: I. ... excusable default, if such motion is made within one year atler service of a copy of the judgment or order with written not ice of its entry upon the moving party. or, if the mov ing party has entered the judgment or order. within one year after suc h entry; or ... " McKinney's CPLR Ru le 5015 (20 18 ]. CPLR §3012. pertinent part: Se rvice of pleadin gs a nd dema nd for compla int provides. in .. (d) Extension ol'time to appear or plead. Upon the appl ica ti on of a party. the court may e:--;tend the time to appear or plead. or compel the acceptance of a plending untimely served, upon such term s as may be just and upon a showing of reasonable excuse for delay or defaulc." McK inney's CPLR §20 12 [20 18) . A determination of whnt constitutes a reasonable excuse, ..... lies within che sound discretion of the Supreme Court .. (Equicredit Corp. ofA m erica v. C11111pbell, 73 AD3d 1119. 1120. 900 NYS2cl 907 [2d Dept 2010): see also S tar Industries, Enc. v. Innovative Beverages, Inc., 55 AD3d 903. 904. 866 NYS2d 857 f2d Dept 20081). A good foith be lief in settlement, supported by substantial evidence. constitutes a reasonable excuse fo r default (Scarlett v. McCarthy. 2 AD3d 623. 768 NYS2d 342 (2d Dept 2009]. [holdi ng that a party's engagement in settl ement discussions is a reasonable excuse under CPL R Rul e 50 I S(a)( I)]; see also Lehrman v. Lake Katonall Club. 295 AD2d 322. 744 NYS2d 338 (2d Dept 2002]). Page 3 of 5 [* 4] WC'/fs Fargo Bank. el al.. '' Lenore Riegel Index No.:007-181/ ]0/ 2 Tht:: Second Department has repeatedly held Lhal a defendant making application for an extension or time to plead pu rsuant to CPL R §30 12 (d ), must not only provide a reasonable excuse for the delay. but also ..demonstrmc a potentially meritorious defense to Lhc action·· (Deutsclt e B ank Nm/ Trust Co. v. Ku/dip, 136 /\03d 969, 25 NY~3d 653 [2d Dept 2016 J; see also KI J2, LLC v. .losepit , 137 AD3d 750. 26 NYS3d 573 (2d Dept 2016.J). It L noted that Delendant was served with all papers in this case. Defendant was on actual notice of the foreclosure case for a period of four (4) years prior to the filing of her instant 1notion. The case record reflects that Defendant never appeared during that four (4) year period. It is also noted that t\:vO (2) CPLR Rule 3408 mandatory foreclosure conferences were scheduled and Defendant fa iled to appear al either conference. The Court is sympathetic to the health issues asserted by Defendant i.n her motion. The Court docs not find that excuse sufficient to vacale the lengthy default by Defendant. The Court notes that Defendant filed her instant motion one ( 1) day prior to the scheduled sale of the premises. Same action by Defendant is indicative of her understanding of the consequences of foreclosure, but does not excuse her prior failure to respond to the tilt:d court action nor her failure to anend either foreclosure conference. Clearly. by the filed motion exh ibits, particularly letters from Defendan t's physicians, Defendant asserts that her excuse for default is grounded in her health issues. The Court notes that the filed exhibits are dated ·during 2016. just prior to the instant motion to vacate default. The Court also notes an August 2"d, 2016 Attorney's letter which references a Ju ly. 2016 hearing request for social security disabi lity bcnelils fo r Defendant. That correspondence does not reference the reason for that app lication nor when the alleged disabling condition mani fesrcd itself or was di agnosed, nor the nature or kind of disability alleged. The Court notes lhat some or the filed exhibits arc of questionahle relevance; in particular those related to a 2012 Order of Protection in l'i.1vor of Defendant. Page 4 of 5 [* 5] Index No.:00748112012 Wells Fargo Bank. et al .. v Lenore Riegel The filed exhibits, in toto, are insufJicicnt in support of Defendant 's request to find excuse for her four ( 4) year default in making any response or appearance in this foreclosure case. The balance of Defcndanf s excuses for her default arc cons idered and found not to be relevant nor reasonable to excuse that default. Defendant"s request that the default judgment be vacated due to excusab le default pursuant to CPLR Ru le 50 l 5(a)( I) is denied . As correctly pied in Plaintiff's opposition tµ the instant motion: "Since the Defendan t foiled to demonstrate a reasonable excuse for her default. it is unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense'' (Deutsche Bank National Trust Company v. Piertra11ico. I02 AD3cl 724, 725, 957 NYS2d 868 [2d Dept 2013]; see U.S. Bank N.A. v. Stewart, 97 AD3d 740. 948 NYS2d 4 11 [2d Dept 2012]; Reich v. Red/ey, 96 AD3d I 038. 947 NYS2d 564 l2d Dept 20 12]). Defendant has failed to demonstrate excusable default pursuant to CPLR Rule 5015 (a) (1 ). Defendant's request for an extension of time to appear or plead upon a showing of reasonable excuse for default pu rsuant to CPU~ §3012 (d) and by demonstrat ion of a potentially meritorious defense is denied. The foregoi ng decision constitutes the Order of the Court. DATED: SEPTEMBER 26'\ 2018 RIVERHEAD, Page 5 or 5

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