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SIJE'REME COURT - STATE OF NEW YORK I.A.S. PART 17 - SUFFOLK COUNTY
PE'I.l<R. H. MAYER Justice of the Supreme Court
Mot IUD: 2-9-09 Adj. Date: 2- 10-09 Mot. Seq. # 002 - RTFC
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WI;I,I S F ARGO BANK NATIONAL ,4SS0(_'1.4I ION, as trustee for BANK OF AMERIC' 2 <\BFC' 2005-HE2 BY: SAXON MOR'I GAciI SERVICES, INC. 4s its attorney-in- :
Fein, Such & Crane, LLP Attorneys for Plaintiff 747 Chestnut Ridge Road Chestnut Ridge, New York 10977-62 16 Martha L. Melgar Defendant Pro Se 68 Cranberry Street Central Islip, New York 1 1722 Pedro Reyes Defendant Pro Se 68 Cranberry Street Central Islip, New York 1 1722
WW'l HA , MEI,GAR: PEDRO REYES; W 0RTG A( i r' E I, 1 C'TRON I C REG1STRATI 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 d l occupants. tenants, persons or corporations, : if a n i . ha\ ing or claiiniiig an interest in or lien
upon I he premises beiing foreclosed herein, llefendant(s). : X
I ' p t v thc r-c~itiing, filing or'the following papers in this matter: (1) Notice of Motion by the plaintiff, dated January and 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 foreclosure xtioii i s c o isidered under 2008 N Y 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 b w g o Barrk v Melgar 1tde.v NO. 3 7619-2007 Prrge 2
requircmeii s ol'C1~1,IK93215(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 a clJmpIaint Lerified by the plaintiff and not merely by an attorney or non-party, such as a servicer, who has n o perwnal knowledge; (2) failure to submit proper evidentiary proof, including an affidavit from one with 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 an a1torney.s affirmation, of compliance with the form, type size, type face, paper color and content requiremeiii s for loreclosure notices, pursuant to W A P L 5 1303, which applies to actions commenced on or alter Ecbruaq 1, 2007 (as amended August 5, 2008), as well as an affidavit of proper service of such notice ( 3 ) failure to :submit evidentiary proof, including an attorney's affirmation, of compliance with the form. content, type s u e , and type face requirements of W A P L $1320 regarding special summonses in residential t i>reclo:;urr:actions, and evidentiary proof of proper service of said special summons; ( 5 ) failure to submit e\ identiary proof, including an affidavit from one with personal knowledge, of compliance with tlic requirements of CPLR 532 15(g)(3) regarding the additional notice by mail of summonses in forwlosurrt 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, the
defendant 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, (63 Rikerhead. VY 1 1(>01 1-852- 17601, for the purpose of holding settlement discussions pertaining to the rights 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 other workout options may be agreed to, and for whatever other purposes the Court deems or appropriate and it is further
ORDERED that at any conference held pursuant to 2008 NY Laws, Ch. 472, Section 3-a, the plaintii'f' s h ~ l l appt'ar in person or by counsel, and if appearing by counsel, such counsel shall be fully mthorized t o 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(s ) at all h o w n 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 as exhihits 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 been submitted. ui ithout proper regard for the applicable statutory and case law, or without regard for the required proofs delinxited herein, the Court may, in its discretion, dismiss this case or deny such applications with prejudice c i ~ i dor impose sanctions pursuant to 22 NYCRR 5 130-1, and may deny those costs and attorneys fees atrenda i t m i t h the filing of such future applications.
bt’ells I.;rrgo Bank v Melgar l t ~ d t 30. 3761 9-2007 ?~
P q e .r’
I n tliis foreclosure action, the plaintiff filed a summons and complaint on December 4,2007, which essentiaIl> Jleges that the defentiant-homeowner(s), Martha L. Melgar and Pedro Reyes, defaulted in payments u ith 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 p l intiff: 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 requests amendmeni of the caption to substitute tenant(s) in the place and stead of the “Doell defendants. For the reasom set i r t h 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 $ 3 2 15(a) states: “When a defendant has failed to appear, plead or proceed
t u trial ofai- action re,ached and called for trial, or when the court orders a dismissal for any other neglect
t o proceed. the plaintiff may seek a default judgment against him.” With regard to proof necessary on a motion for cefault i n 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 h e amount due: in such case, an affidavit as to the default shall be made by the party or the party’s attorney. g Proof‘ot’iiiailiy 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 towards obtaining a default judgment (Home Sav. ojxm., F A . v. Gkanios, 230 AD2d 770,646 NYS2d 530 [2d Depi 1996 1 ) 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 and mouiits due, the sfatutoryrequirements are not satisfied. In the absence of either a proper affidavit by the party 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,274 AD2d 549, 7 13 NYS2d 182 [2d Dept 20001; Finnegan v. Sheahan, 269 4D2tl 401. 7 G NYS2d 734 [2d Dept 20001; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dep1
1 996 1 )
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 facts constituting the claim, the default and the amounts due, as required by statute. In the absence of either a verijied coiilplalnt x a proper affidavit by the party or its authorized agent, the entry ofjudgment by defauli
iLl’ullins 1’.DiLorenzo, 1 99 AD2d 2 18; 606 NYS2d 16 1 [ 1st Dept 19931; Hazim v. Winter. 234 1\1)2d - 2 2 . 6 5 1 NYS2d 149 [2d Dept 19961; Finnegan v. Sheahan, 269 AD2d 491,703 NYS2d 734 Il!d I k p t r’OOO]). I‘lierefore, the application for an order of reference is denied.
I S erroneouj ( \ee
to a mortgage assignment which is executed after the commencement of an action and
U’ells Furgo B m k v Melgar
Index !Vo. 3 7619-2007 Page 4
which statt s that i t is effective as of a date preceding the commencement date, such assignment is valid wherc the c elaulting defendant appears but fails to interpose an answer or file a timely pre-answer motion that assert4 the defense of standing, thereby waiving such defense pursuant to CPLR 321 1[e] (see, HSBC 13crnk 03‘41’ /hmr’noi?d, AD3d 679, 875 NYS2d 490 1445 [2d Dept 20091). However, it remains settled 59 that foreclc sure ol’a mortgage may not be brought by one who has no title to it and absent transfer of the debt. the assignmcnt of the mortgage is a nullity (Kluge v Fugazy, 145 AD2d 537,536 NYS2d 92 [2d Dept 1988 11. I 11-tliermore.a plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the no plaintifl’ha~ legal or equitable interest (Kutz v East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [ 1 ” Ilept 1098 1). I f an assignment is in writing, the execution date is generally controlling and a written dssignment claiming an earlier effective date is deficient, unless it is accompanied by proof that the physical delivci? of the notc and mortgage was, in fact, previously effectuated (see,Bankers Trust Co. v Hoovis, 26 3 ’iDZd 93 7 (338.6’14 NYS2d 245 ). Plaintiffs failure to submit proper proof, including an affidavit from one with per:,onal knowledge, that the plaintiff is the holder of the note and mortgage, requires denial 01 the plaintiff’s application for an order of reference.
I- or Iinxc1cmu-eactions commenced on or after February 1,2007, RPAPL 5 1303(1) requires that the “toreclosin g party i n a mortgage foreclosure action, which involves residential real property consisting of ouner-occupied o qe-to-four-family dwellings shall provide notice to the mortgagor in accordance with the provi\ions of thi. section with regard to information and assistance about the foreclosure process.” I’ursumt to KPAPL 1303(2), the “notice required by this section shall be delivered with the summons and complaint to commence a foreclosure action . . . [and] shall be in bold, fourteen-point type and shall be printed on I:olorecl paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold. twenty-point type [and] shall be on its own page.” The specific statutorily required language afthe nctice is set forth in RPAPL §1303(3), which was amended on August 5,2008 to require additional language fbr actions commenced on or after September 1, 2008.
I hc plaintiff’s summons and complaint and notice of pendency were filed with the County Clerk o n er after- Februarj 1,2007, thereby requiring compliance with the notice provisions set forth in RPAPL 8 1-30; Plaintiff has failed to submit proper evidentiary proof, including an attorney’s affirmation, upon which the t ‘ourt may conclude that the requirements of RPAPL 5 I303(2) have been satisfied, specifically regarding the content. type size and paper color of the notice. Merely annexing a copy of a purportedly compliant notice does not provide a sufficient basis upon which the Court may conclude as a matter of law that the plaintiff has complied with the substantive and procedural requirements of the statute. Since the plaintiff ha: failed to establish compliance with the notice requirements of RPAPL $1303, its application fix an order o f reference must be denied. I ( pro\ idt additional protection to homeowners in foreclosure, the legislature enacted RPAPL, 1320 to I equire a mortgagee to provide additional notice to the mortgagor-homeowner that a foreclosure aciion has t)een commenced. I n this regard, effective August 1, 2007 for foreclosure actions involving rcs~clentialproperty containing not more than three units, RPAPL 5 1320 imposes a special summons requiremenl. in adJitiion to the usual summons requirements. The additional notice requirement, which niust be i n I-oldfacc type. provides an explicit warning to defendant-mortgagors, that they are in danger of losing their iome and having a defaultjudgment entered against them ifthey fail to respond to the summons bv sen ing 611 ansuer upon the mortgagee-plaintiff s attorney and by filing an answer with the court. The notice also infhrim defendant-homeowners that sending a payment to the mortgage company will not stop tlic foieclostire act ion, and advises them to speak to an attorney or go to the court for further information
Wells k argo Bank v Mrlgar Index .No. 3 7619-2007 Puge i
summons. The exact form and language of the required notice are specified in the siaiuie P1aintlft.s failure to submit an attorney’s affirmation of compliance with the special summons requiremen1 s o f RPAPL 5 1320, and proof of proper service of the special summons, requires denial of the plaintiff%\application for an order of reference.
on ho\\, to answer the
\x, i t t i regard to a motion for a defaultjudgment sought against an individual in an action based upon nonpa) mcnt of‘a contractual obligation, CPLR $32 15(g)(3)(i) requires that “an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry o f such judgment. by mailing a copy of the summons by first-class mail to the defendant at his place of residence 11- an eni!elope bearing the legend ‘personal and confidential’ and not indicating on the outside of the e m elope that the communication is from an attorney or concerns an alleged debt. In the event such mailing is rt.turned as undeliverable by the post office before the entry of a default judgment, or if the place o f r e s i d e i u ofthe defendant is unknown, a copy of the summons shall then be mailed in the same manner to the defendant at the defendant’:; place of employment if known; if neither the place of residence nor the place ofernploynimt ofthe defendant is known, then the mailing shall be to the defendant at his last known residence Pursuant to CPLR 32 1 5 (g)(3)(iii), these additional notice requirements are applicable to residential riortgage foreclosure that were commenced on or after August 1 2007. Since the moving papers fail 1 o establish compliance with the additional mailing requirements of CPLR $32 15(g), the application for an ordsi ol’refvrence must be denied.
’lhi. constitutes the Decision and Order of the Court.
PETER H. MAYER, J.S.@
tober 5 , 2009