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INDEX
NO.
37619-2007SIJE'REME COURT
-
STATE
OF
NEW
YORK
I.A.S.
PART
17
-
SUFFOLK
COUNTY
lloii
PE'I.l<R.
H.
AYERJustice
of
the Supreme CourtX
_l_______l___________---__---_----_-----------
WI;I,I
S
F
ARGO
BANK
NATIONAL,4SS0(_'1.4
ION,
as
trustee
for
BANK
OF
AMERIC'
2
<\BFC'
2005-HE2 BY: SAXON
MOR'I
GAciI
SERVICES,
INC.
4s
its attorney-in-
:
hc
Plaintiff(s1,
:
-
against
-
WW'l
HA
,
MEI,GAR:
PEDRO REYES;
W
0
RTG
A(
i
r'
E
I,
1:
C'TRON
I
C REG1
S
TRATI
ON
SYSTEMS,
INC..
as
nominee for WMC
MOR'I
GAGF
C'ORP.:
"JOHN
DOE
#1-5"
and
''JANk
DOI-
#1-5" said names being fictitious,
it
being
the intention
of Plaintiff to designate any
:
arid
dl
occupants.
tenants, persons or corporations,
:
if
ani.
ha\
ing or
claiiniiig an interest in or lienupon
I
he premises beiing foreclosed herein,
:
Mot IUD: 2-9-09Adj. Date:
2-
10-09
Mot. Seq.
#
002
-
RTFC
Fein, Such
&
Crane,
LLP
Attorneys for Plaintiff747 Chestnut Ridge RoadChestnut Ridge, New York 10977-62 16
Martha L. Melgar
Defendant Pro Se
68
Cranberry StreetCentral Islip, New York
1
1722
Pedro Reyes
Defendant Pro Se68 Cranberry StreetCentral Islip, New York
1
1722llefendant(s).
:
X
--.
-"
I
'ptv
thc
r-c~itiing, nd filing
or'the
following papers in this matter:
(1)
Notice
of
Motion
by
the plaintiff, dated January
o.
2009
and \Jpporting paper\, and now
I
TI'(
)h
111
IE
DELIBERATION
AND
CONSIDERATION
BY
THE
COURT
of
the foregoing
papers.
the,
tnotioii
is
decided
as follows:
it
is
ORDERED
that
plaintiff's application (seq.
#002)
for
an order of reference in
this
foreclosurextioii
is
co
isidered
under 2008
NY
Laws, Chapter 472, enacted August
5,
2008, as well as the related
statutes
slid
case
law.
and is hereby denied without prejudice and with leave to resubmit upon proper
pi1pers.
for
dic
follo.wing
reasons:
(1)
failure to submit evidentiary proof of compliance with the
Wells
bwgo
Barrk
v
Melgar
1tde.v
NO.
3
761
9-2007
Prrge
2
requircmeii
s
ol'C1~1,IK
93215(f),
including but not limited to a proper affidavit of facts by the plaintiff [or
by
plaintiff-
s
agent, provided there is proper proof in evidentiary form of such agency relationship], or aclJmpIaint Lerified by the plaintiff and not merely by an attorney or non-party, such as a servicer, who has
no
perwnal knowledge; (2) failure to submit proper evidentiary proof, including an affidavit from onewith persol-
a1
hnowledge,
of
proper assignment(s) of the subject mortgage, sufficient to establish the
plaintil'f'c
(
wnership
of
the note and mortgage; (3) failure to submit evidentiary proof, including ana1torney.s affirmation,
of
compliance with the form, type size, type face, paper color and contentrequiremeiii
s
for loreclosure notices, pursuant to WAPL
5
1303, which applies to actions commenced onor alter Ecbruaq
1,
2007
(as amended August 5, 2008), as well as an affidavit of proper service of suchnotice
(3)
failure
to
:submit evidentiary proof, including an attorney's affirmation, of compliance with theform. content, type
sue,
and type face requirements of WAPL $1320 regarding special summonses
in
residential
t
i>reclo:;urr:actions, and evidentiary proof of proper service of said special summons;
(5)
failureto submit
e\
identiary proof, including an affidavit from one with personal knowledge, of compliance withtlic requirements
of
CPLR
532
15(g)(3) regarding the additional notice by mail of summonses inforwlosurrt xtioiis. and proof
of
proper service of said additional mailing; and it is further
ORDERED
that, inasmuch this action was initiated prior to September 1,2008 and no final order
of
judgment
has
been
issued, and inasmuch as the plaintiff has identified the loan in foreclosure as
a
"cubprimc
home
loan''
as
defined in RPAPL $1304, pursuant
to
2008
NY Laws, Ch. 472, Section 3-a, thedefendant lionieovmer is entitled to a voluntary settlement conference, which is hereby scheduled for
December
116,2009
at
9:30
am
before the undersigned, located at Room A-259, Part 17, One Court Street,Rikerhead.
VY
1(>01
63
1-852- 17601,
for the purpose of holding settlement discussions pertaining to therights and cibligations of the parties under the mortgage loan documents, including but not limited to,determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing
his
or her
hcime. and
evaluating the potential for a resolution in which payment schedules or amounts may
be
~fiodificd r other workout options may be agreed to, and for whatever other purposes the Court deemsappropriate
and
it
is
further
ORDERED
that at any conference held pursuant to
2008
NY Laws, Ch. 472, Section 3-a, theplaintii'f' sh~ll ppt'ar in person
or
by counsel, and if appearing by counsel, such counsel shall be fullymthorized
to
dispclse of the case, and all future applications must state in one ofthe first paragraphs ofthe
aitorncy'k
afirmation whether or not a Section 3-a conference has been held; and it is further
ORDERED
that the piairitiff shall promptly serve a copy of this Order upon the homeowner
delelidant(
)
at
all
hown addresses via certified mail (return receipt requested),
and
by first class mail, and
upon
all
othcr defendants via first class mail, and shall provide proof of such service to the Court at the time
of
any schctluled Conference, and annex a copy of this Order and the affidavit(s) of service
of
same asexhihits
to
any
niotion
resubmitted pursuant to this Order; and
it
is further
ORDERED
that with regard to any scheduled court conferences or future applications by the
plaintiif. if
the
Court
determines that such conferences have been attended, or such applications have beensubmitted.
ui
ithout proper regard for the applicable statutory and case law, or without regard for the requiredproofs delinxited herein, the Court may,inits discretion, dismiss this case or deny such applications withprejudice
ci~id
r impose sanctions pursuant to
22
NYCRR
5
130-1, and may deny those costs and attorneys
fees
atrenda
it
mith
the filing
of
such future applications.
bt’ells
I.;rrgo
Bank
v
Melgar
lt~dt?~
0.
3761
9-2007Pqe
r’
In
tliis foreclosure action, the plaintiff filed
a
summons and complaint
on
December 4,2007, whichessentiaIl>
Jleges
that the
defentiant-homeowner(s),
Martha L. Melgar and Pedro Reyes, defaulted inpayments
u
th
reprd to
a
mortgage, dated May 5,2005, in the principal amount of $258,400.00, and given
by
the
deteildnnt-homeowner(s) for the premises located at 68 Cranberry Street, Central Islip, New York
1
I722
Tile
original lender, WMC Mortgage Corp., apparently had the mortgage assigned to entities other
than
this pl~ntiff:
however, there is no proof
of
assignments annexed to the moving papers and no proof
that
this
pla ntiff is the proper plaintiff.The plaintiff now seeks a default order of reference and requestsamendmeni
of
the caption to substitute tenant(s) in the place and stead of the “Doell defendants.
For
the
reasom
set
irth
hereiin, the plaintiffs application is denied.
In
slqqx)rt
of this application, the plaintiff submits an affidavit from Valerie Clark, Sr.
Vice
I’rvsident
01
Saxon Mortgage Services
as
the alleged attorney-in-fact for the plaintiff, and a non-party to
this
action:
iowevcr,
there is no sufficient evidentiary proof that such person or entity has authority to act
on
behall’
01
the
lender-mortgage holder.
In
rc
levant
part,
CPLR
$32
15(a) states: “When a defendant has failed to appear, plead or proceed
tu
trial
ofai-
action re,ached and called for trial, or when the court orders a dismissal for any other neglect
to
proceed. the plaintiff may seek
a
default judgment against him.” With regard to proof necessary on amotion
for
cefault
in
general,
CPLR
32
1
5(f)
states, in relevant part, that “[oln any application forjudgment
by
default,
the
applicant shall
file
proof of service
of
the summons and the complaint
. . .
and proof of the
facts
constiluting the claim, the default and the amount due by affidavit made by the party
. . .
Where
a
verified
complaint has been serveld,
it
may be used as the affidavit of the facts constituting the claim and
he
amount due:
in
such case, an affidavit
as
to the default shall be made by the party or the party’s attorney.Proof‘ot’iiiaili
yg
the notice required by
[CPLR
32 15(g)], where applicable, shall
also
be filed.”
With
regard to
a
judgment of foreclosure, an order of reference is simply a preliminary step towardsobtaining
a
default judgment
(HomeSav.
ojxm., FA. v.
Gkanios,
230 AD2d 770,646 NYS2d
530
[2d Depi
1996
)
Without an affidavit by the plaintiff regarding the facts constituting the claim and amounts due or,
11-1
the
alteri-ative.
‘in
affidavit by the plaintiff that its agent has the authority to set forth such facts andmouiits
due,
the sfatutory equirements are not satisfied.
In
the absence
of
either a proper affidavit by theparty
or
3
ccymplairt verified by the party, not merely by an attorney with
no
personal knowledge, the entry
of
judgment
by
default is erroneous
(see,
Peniston
v
Epstein,
10 AD3d 450, 780 NYS2d 919 [2d Dept
2004
1
:
Gi.tringu
\*
Wrighl,
74 AD2d 549, 7 13 NYS2d 182 [2d Dept 20001;
Finnegan
v.
Sheahan,
269
4D2tl 401.
7G
NYS2d 734 [2d Dept 20001;
Hazim
v.
Winter,
234 AD2d 422, 651 NYS2d 149 [2d Dep1
1
996
)
In
support
of’the
motion, the movant fails to submit the required affidavit made a party. Further.
uithnut
a pioperly of’ered copy
of
a power of attorney, the Court
is
unable to ascertain whether or not
a
plaintitTs
s:rvicin;A
agent. for example, may properly act on behalf of the plaintiff to set forth the factsconstituting
the
claim, the default and the amounts due, as required by statute. In the absence of either
a
verijied
coiilplalnt
x
proper affidavit by the party or its authorized agent, the entry ofjudgment by defauli
IS
erroneouj
(
\ee
iLl’ullins
1’.
DiLorenzo,
1
99
AD2d 2 18; 606 NYS2d 16
1
[
1
t
Dept 19931;
Hazim
v.
Winter.
234
1\1)2d
-22.65
1
NYS2d 149 [2d Dept 19961;
Finnegan
v.
Sheahan,
269 AD2d 491,703 NYS2d
734
Il!d
Ikpt
r’OOO]).
I‘lierefore, the application for an order of reference is denied.
\n‘itli
regard
to
a mortgage assignment which is executed after the commencement of an action and
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