Bayview Loan Servicing, LLC v Finnegan

[*1] Bayview Loan Servicing, LLC v Finnegan 2018 NY Slip Op 51519(U) Decided on October 30, 2018 Supreme Court, Suffolk County Quinlan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2018
Supreme Court, Suffolk County

Bayview Loan Servicing, LLC, Plaintiff,

against

Kevin Finnegan, Noreen-Kate Finnegan A/K/A Noreen Kate Finnegan A/K/A Noreen Finnegan A/K/A Noreenkate Finnegan, Hesham M. Atwa M.D., Thomas K Campagna PC, New York State Commissioner of Taxation and Finance, Clerk of the Suffolk County District Court; "John Doe No.1-50" and "Mary Roe #1-50", the last two names being fictitious, it being intended to name all other partie who may have some interest in or lien upon the premises described in the complaint, Defendants.



612624/2017



Attorneys for Plaintiff:

SCHILLER, KNAPP, LEFKOWITZ & HERTZEL, LLP

200 John James Audobon Parkway, Suite 202

Amherst, NY 14228

Kevin Finnegan

Ronkonkoma, NY 11779

Noreen-Kate Finnegan

Gallatin, TN 37066
Robert F. Quinlan, J.

Upon the following papers electronically filed and read on this application for: expedited judgment of foreclosure and sale; Notice of Motion/Order to Show Cause and supporting papers (NYSCEF Doc #18-25): Affidavits in opposition to motion and supporting papers _________; Reply Affirmation in Further Support of Motion ________; it is

ORDERED that this motion by plaintiff for expedited judgment of foreclosure and sale [*2]pursuant to RPAPL §§ 1309 and 1351 is granted; and it is further

ORDERED that plaintiff is directed to serve an executed copy of the judgment of foreclosure and sale amending the caption of this action upon the Calendar Clerk of this Court within 30 days of the date of this order and all further proceedings are to proceed under that caption; and it is further

ORDERED that pursuant to RPAPL § 1351 (1) the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of this order; and it is further

ORDERED that if the referee does not conduct the sale within 90 days of the date of the judgment, in accordance with CPLR 2004, the time fixed by RPAPL § 1351(1) is extended for the referee to conduct the sale as soon as reasonably practicable.

This is an action to foreclose a mortgage on real property known as 99 Cedar Oaks Avenue, Farmingville, Suffolk County, New York ("the property"). On May 3, 2005 defendants Noreen-Kate Finnegan and Kevin Finnegan ("defendants") executed a note in favor of EquiFirst Corporation, plaintiff's predecessor in interest, in the principal sum of $185,000.00, at the same time giving a mortgage on the property to secure the note. Defendants allegedly defaulted on the payments due pursuant to the note and mortgage, and failed to cure the default. Plaintiff Bayview Loan Servicing, LLC ("plaintiff") commenced the instant action by filing the summon, complaint and notice of pendency with the Suffolk County Clerk on July 7, 2017. Defendants were each served individually at their respective residences, which addresses the court notes are not the property address. None of the defendants have answered or appeared.

No foreclosure settlement conference was held as the property is vacant.

Plaintiff now moves pursuant to RPAPL §1309 to expedite judgment of foreclosure and sale to be granted pursuant to RPAPL § 1351. RPAPL §1309 provides that plaintiff may move for expedited relief once defendants time to answer has expired if the property meets the criteria for vacant and abandoned residential property (as defined in RPAPL §1309 [2]) as set forth in RPAPL §1309[1].

The application meets the preliminary requirements for expedited proceedings pursuant to RPAPL § 1309 as plaintiff's motion was filed after defendants time to answer the complaint had expired, the motion provides the last known address of defendants, provides proof of service upon defendants at the last know address, and contains the information required by RPAPL § 1309 [1]. Additionally the court sent notice to the defendants as required by RPAPL §1309[1].

Plaintiff's submissions in support of its motion include its attorney's affirmation, affidavit of a representative of SN Servicing Corporation, the duly authorized servicer for plaintiff's assignee, North Fund III, LLC, the note, mortgage, assignments, pleadings, and affidavits of service. Plaintiff also submits copies of three inspection reports with photographs taken at each inspection annexed to the reports.

The court finds plaintiff has established its entitlement to expedited relief pursuant to RPAPL § 1309. Pursuant to RPAPL § 1309 (4) plaintiff's submissions have established that the property is vacant and abandoned as defined by RPAPL § 1309 (2) (a). As required by RPAPL § 1309 (4), the court finds that by the preponderance of the evidence the property is vacant and abandoned as defined by RPAPL § 1309 (2) (a), based upon the submission of plaintiff's inspector's reports. Those reports show plaintiff's inspector conducted three inspections of the property 25 to 35 days apart at different times of the day. At each inspection it was shown that [*3]no occupant was present, that there was no evidence of occupancy on the property and that the property was not being maintained. Thus the property is vacant and abandoned real property as defined by RPAPL § 1309 (2) (a).

Additionally, pursuant to RPAPL § 1309 (4), plaintiff has established itself as the owner and holder of the subject mortgage and note as it annexed a copy of the note and mortgage to its complaint (see Nationstar Mortg., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Nationstar Mortg., LLC v Weisblum, 143 AD3d 866 [2d Dept 2016]; Deutsche Bank National Trust Co. v. Logan, 146 AD3d 861 [2d Dept 2017]; Deutsche Bank Trust v Garrison, 147 AD3d 725 [2d Dept 2017]). Further, after a review of the itemized account of fees and costs and the court's confirmation of the interest calculations, the court finds plaintiff has established the sum due and owing to it upon the note and mortgage.

On a motion for leave to enter a default judgment, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's failure to answer or appear (CPLR 3215[f]; see Dupps v Betancourt, 99 AD3d 855 [2d Dept 2012]; Green Tree Serv., LLC v Cary, 106 AD3d 691[2d Dept 2013]; JPMorgan Chase Bank, N.A. v Boampong, 145 AD3d 981 [2d Dept 2016]; US Bank, N.A. v Singer, 145 AD3d 1057 [2d Dept 2016]; Bank of Am., NA v Agarwal, 150 AD3d 651 [2d Dept 2017]). Plaintiff has met its proof of a prima facie case through the production of the original mortgage, the unpaid note, and evidence of defendants default (see Deutsche Bank Natl. Trust Co. v Abdan, 131AD3d 1001 [2d Dept 2015]; U. S. Bank N. A. v Akande, 136 AD3d 887 [2d Dept 2016]).

Proof required on default under CPLR 3215 (f) is merely proof of facts constituting the claim. To demonstrate the facts constituting the claim, movant must only submit sufficient proof to enable the court to determine if the claim is viable (see Woodson v. Mendon Leasing Corp., 100 NY2d 62 [2003]; Global Insurance Company v Gorum, 143 AD3d 768 [2d Dept 2016]; Manhattan Telecommuincations Corp. v. H & A Locksmith, Inc., 21 NY3d 200 [2013]; Araujo v Aviles, 33 AD3d 830 [2d Dept 2006]; U.S. Bank, N.A. v Tate, 102 AD3d 859 [2d Dept 2013]).

Plaintiff's applications for an expedited judgment of foreclosure and sale pursuant to RPAPL §§ 1309 and 1351, fixing the default of all non-appearing, non-answering defendants, confirming the total amount due, for the appointment of a referee to conduct such sale, to amend the caption to correctly reflect North Fund III, LLC as plaintiff and to amend the caption to remove the "John Doe" and "Mary Roe" defendants is granted, and any further proceeding in the action shall proceed under the amended caption as it appears in the proposed expedited judgment of foreclosure and sale submitted by plaintiff, as modified by the court, which is signed contemporaneously herewith.

This constitutes the Order and decision of the Court.

Dated: October 30, 2018

Hon. Robert F. Quinlan, J.S.C.