Cascade Funding RM1 2020 Alternative Holdings, LLC v Singletary

[*1] Cascade Funding RM1 2020 Alternative Holdings, LLC v Singletary 2020 NY Slip Op 51235(U) Decided on October 22, 2020 District Court Of Suffolk County, Third District Hackeling, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2020
District Court of Suffolk County, Third District

Cascade Funding RM1 2020 Alternative Holdings, LLC, Plaintiff(s)

against

Betty Singletary; "John Doe"; "Jane Doe", Defendant(s)



LT-24-20/HU
C. Stephen Hackeling, J.

Upon the following papers numbered 1-2

Read on this motion by petitioner to be restored to possession/illegal lockout

Notice of Motion/Order to Show Cause and supporting papers 1

Other : Interim Order dated September 10, 2020 2

Betty Singletary, the above captioned respondent, petitioned this Court pursuant to an illegal lockout Order to Show Cause signed March 7, 2020, seeking to regain possession of her home, the premises located at 31 Bonaire Drive, Dix Hills, NY, pursuant to the provisions of New York RPAPL Sec. 853. The original March 2020 Order to Show Cause return date was subsequently sua sponte adjourned by the Court as a result of the COVID-19 pandemic and assorted Orders from the Governor, Administrative Judge and Acting Director for the Federal Center for Disease Control, and was recalendered for September 10, 2020. At that time the respondent Singletary, (hereafter "Singletary") appeared via Skype/telephone and the petitioner Cascade Funding, RM1 (hereafter "Cascade") appeared by counsel and advised the Court that the subject property had been transferred and that Cascade would not be participating in the Order to Show Cause hearing. Singletary testified that she had no mortgage liens encumbering her property. She also testified that she went to visit her relatives in South Carolina approximately nine months ago and that her son discovered that Singletary's house had its locks changed and was in the process of being sold. This precipitated Singletary's March 7, 2020 Order to Show Cause which included a Court directive that possession of the subject property not be transferred pending resolution of same. As a result, the Court entered an Order placing Singletary in possession of the premises pending a final determination at a hearing scheduled for October 15, 2020.

Discussion

The Court initially notes that this matter is complicated by the fact that Cascade did indeed file a foreclosure holdover eviction summary proceeding and obtained a default Order for a "judgment of possession" and a "warrant of eviction" on February 13, 2020. However, the court file indicates none were ever submitted for signature. Singletary did appear at the October 15, 2020 hearing and testified similarly to her September 10, 2020 sworn remarks. Cascade appeared at this hearing and asserted that the subject property was not transferred as stated by counsel at the September 10, 2020 hearing but that they have a previously entered default warrant of eviction which they intend to prosecute and that Cascade only took possession as they deemed the premises "abandoned". It was also asserted that Singletary's personal property was disposed of as "abandoned". Singletary asserts she was never served with a foreclosure complaint or

eviction petition. Cascade asserts it is a bona fide purchaser at a foreclosure sale which occurred as a result of the foreclosure of a reverse mortgage taken out in 2007. Singletary testified she never took out another mortgage after she satisfied her Greenpoint Savings mortgage in 1984. She asserts she is a victim of identity theft.

Sec. 853 of the New York R.P.A.P.L. provides as follows:

" If a person is disseized, ejected, or put out of real property of unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer."

A party seeking to claim wrongful eviction under this statute must plead that they hold a tenancy or other right of possession prior to the ouster. Dinger v. Cefola, 133 AD3d 816 (N.Y.AD2d Dept. 2015). In this case, the evidence supports Singletary's claim of deed ownership. Cascade has no objection to Singletary's temporary possession of the premises, but does assert that it will move to formally execute the warrant when the assorted COVID stays abate. Cascade asserts that Singletary's avenue of relief lies in the Supreme Court which gave it a final judgment of foreclosure.

The Court notes that it does not have the jurisdictional grant to entertain Singletary's wrongful eviction treble damages claims. Chidi Eze v. Spring Creek Gardens, 85 AD3d 1102 (N.Y.AD2d Dept. 2011); citing to Rostant v. Swersky, 79 AD3d 456 (N.Y.A.D. 1st Dept. 2010). However, these cases do recognize this Court's authority to restore a wrongfully evicted person to their real property. Absent objection, the Court does so and awards exclusive possession of same to 31 Bonaire Dr., Dix Hills, New York to Betty Singletary or such other persons or agents as she designates.

The Court directs Cascade to move to renew its judgment of possession and warrant of eviction at which time Singletary can challenge service of her summary proceeding petition.

________________________________

Hon. C. Stephen Hackeling, J.D.C.