Bank of Am., N.A. v. Rodomista

Full title: BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING…

Court: Supreme Court of the County of Suffolk State of New York - Part XL

Date published: Jan 8, 2019

2019 N.Y. Slip Op. 30117 (N.Y. Sup. Ct. 2019)

Opinion

INDEX NO.:037828/2011

01-08-2019

BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff, v. GLENN RODOMISTA; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; SARI RODOMISTA; HOME CONSULTANTS, INC.; SUSAN THOMAS; "JOHN DOE #2" through "JOHN DOE # 25", said names being fictitious, the persons or parties intended being the persons, parties, corporations or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.

RAS BORISKIN, LLC Attorneys for the Plaintiff 900 Merchants Concourse, Suite 106 Westbury, NY 11590 FRED M. SCHWARTZ, ESQ. Attorney for Defendants Glenn Rodomista and Home Consultants, Inc. 317 Middle Country Road, Suite 5 Smithtown, NY 11787 SARI RODOMISTA Defendant Pro Se 230 Terryville Road Port Jefferson Station, NY 11776 SUSAN THOMAS Defendant Pro Se 26 Richard Avenue Islip Terrace, NY 11752

HON. JAMES HUDSON Acting Justice of the Supreme Court

Memorandum Decision

PRESENT: HON. JAMES HUDSON Acting Justice of the Supreme Court

MOT. SEQ. NO.:004-MD

RAS BORISKIN, LLC
Attorneys for the Plaintiff
900 Merchants Concourse, Suite 106
Westbury, NY 11590 FRED M. SCHWARTZ, ESQ.
Attorney for Defendants Glenn Rodomista
and Home Consultants, Inc.
317 Middle Country Road, Suite 5
Smithtown, NY 11787 SARI RODOMISTA
Defendant Pro Se
230 Terryville Road
Port Jefferson Station, NY 11776 SUSAN THOMAS
Defendant Pro Se
26 Richard Avenue
Islip Terrace, NY 11752

ORDERED that the cross motion (seq. no.:004) of Defendants Glenn Rodomista and Home Consultants, Inc. ("Defendants") requesting denial of Plaintiffs application to strike the Answer of Defendants and dismiss the remaining affirmative defenses set forth therein and further granting summary judgment and the appointment of a referee: granting counsel fees in favor of the Defendants, compelling the Plaintiff to respond to the Demands for Discovery previously served herein, in accordance with the prior Order of this Court dated June 3, 2015 and Preliminary Conference Order dated April 5^th, 2017 and upon its failure to so comply, precluding the Plaintiff from offering any evidence at trial in support of its Complaint is denied in its entirety.

Preliminary Matters

Defendants' request in its instant motion (seq. no.:004) to deny Plaintiff the relief requested in Plaintiff's motion (seq. no.:003) is moot. The Court takes judicial notice that Plaintiff withdrew that motion on March 6, 2018. (Plaintiff and Defendant, collectively "the parties").

On April 5^th, 2017, a Preliminary Conference Stipulation and Order was executed by Counsel for the parties and "So Ordered" by the Court. Same Order states that the end date for all disclosure, other than expert disclosure, was October 11^th, 2017. Plaintiff was required to present its representative for an Examination Before Trial ("EBT") on or before August 15^th, 2017. Defendants, (presumably after having had the opportunity to question Plaintiff's witness), were to present their witness for an EBT on or before August 22^nd, 2017. Plaintiff failed to comply with the terms of that Order.

That portion of Defendants' motion (seq. no.:004) which seeks an order compelling Plaintiff to respond to Defendants' discovery demands is also mooted. The case record contains a voluminous response to those demands served and filed by Plaintiff. Same was served upon Defendants by mail on February 28^th, 2018, and March 7^th, 2018.

That portion of Defendants' motion (seq. no.:004) which requests an order of counsel fees in favor of Defendants for time expended in the preparation and filing of its instant cross-motion is denied. The Court recognizes that the instant cross-motion (seq, no.:004) was filed due to Plaintiff's failure to comply with the terms of the April 5, 2017 Preliminary Conference Stipulation and Order. Defendants' counsel has not presented a record of time and expenses in support of that request.

Plaintiff's affirmation in opposition (mot. seq. no.:004) contains as an exhibit, correspondence dated March 1^st, 2018 from Plaintiff's Counsel to Defendants' Counsel. Same letter offers late compliance with Court-ordered EBTs, contingent upon mutual withdrawal of motions (presumably seq. nos.:003 & 004) before the Court. Plaintiff's written offer is an admission of Plaintiff's willful violation of the April 5^th , 2017 Order.

The Court will review and consider Defendants' late filed discovery to the extent that it relates to those items and matters kept open in its June 3^rd, 2015 decision (motion sequence numbers 001 and 002).

Outstanding Discovery - June 3^rd , 2015 Decision

The Court, in its April 5^th, 2017 Order, provided that "Parties agree discovery (will be) limited to those items kept open in the decision of the Court dated June 3^rd, 2015."

The two (2) open discovery issues, raised by Defendants in their Answer, are: 1) proof related to Plaintiff's standing to bring the instant action (Defendants first (1^st) affirmative defense), it being noted that adjudication of the standing issue must be made at trial or by a summary judgment motion; and 2) proof as to whether or not notice was required pursuant to RPAPL §1304, (whether the subject loan is a "residential home loan"). The second discovery issue is related to Defendants' tenth (10^th) affirmative defense, that RPAPL § 1304 notice was required and not provided Defendants.

It is noted that the balance of Defendants' numerous affirmative defenses received comprehensive consideration by the Court in its fifteen (15) page, June 30^th, 2015 Decision and Order and each was rejected after due consideration of each affirmative defense.

Standing

A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced ( U.S. Bank , N.A. v. Morrison , 160 AD3d 679, 74 NYS3d 296 [2d Dept 2018]; Deutsche Bank National Trust Co. v. Torres , 45 Misc3d 1212[A], 5 NYS3d 327 [Table] [Sup Ct Suffolk Cty 2014]). The holder of the note is deemed the owner of the underlying mortgage ( Brighton BK , LLC v. Kurbatsky , 131 AD3d 1000, 17 NYS3d 137 [2d Dept 2015]; Bank of New York v. Silverberg , 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011]). "Mere delivery of instruments of indebtedness is sufficient to confer standing and the recording of a written assignment of mortgage merely serves to put the world on record notice of the transfer of rights" ( HSBC Bank USA Nat. Ass'n v. Delacadena , 25 Misc3d 1216[A] 2. 901 NYS2d 907 [Table] [Sup Ct Suffolk Cty 2009]; see Fryer v. Rockefeller , 18 Sickels 268, 63 NY 268, 276 [1875]). Where Plaintiff is assignee of mortgage and underlying note at time foreclosure action was commenced, Plaintiff has standing to maintain action ( Federal Nat. Mtge. Assn. v. Youkelsone , 303 AD2d 546, 755 NYS2d 730 [2d Dept 2003]).

Plaintiff has served and filed the Affidavit of Carmeka Yu'shay Edwards, AVP of Bank of America which states, in pertinent part: "Plaintiff received physical delivery of the original note on August 29, 2006 and remained in possession and the holder of the Note when this action was commenced." The signature of Bank Officer Edwards is compliant with the requirements of CPLR §2309 (c). Plaintiff has also served and filed a mortgage assignment from Mortgage Electronic Registration Systems. Inc. to Bank of America, N.A. Successor by Merger to BAC Home Loans Servicing, LLP f/k/a Countrywide Home Loans Servicing, LP (Plaintiff herein). Plaintiff has established its standing to bring the instant case. Defendants have failed to prove that Plaintiff does not have standing, Defendants have had ample opportunity to marshal and present evidence demonstrating lack of standing and have failed to sustain that burden.

RPAPL §1304 Notice. RPAPL §1304. Required prior notices, provides, in pertinent part:

"Notwithstanding any other provision of law, with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers, at the property address and any other address of record, including mortgage foreclosure, such lender...shall give notice to the borrower..." McKinney's RPAPL §1304 [2018].

Non-compliance with RPAPL §1304 is a defense which can be raised at any time ( U.S. National Bank v. Carey 137 AD3d 894, 28 NYS3d 68 [2d Dept 2016]). Failure to show strict compliance with RPAPL §1304 is a basis for the dismissal of a foreclosure action ( Aurora Loan Services , LLC v. Weisblum , 85 AD3d 95, 923 NYS2d 609 [2d Dept 2011]). RPAPL § 1304 does not require the attachment of proof of mailing to the affidavit. Counsel is reminded that a suggestion from a court is not a requirement. Counsel is cautioned against such detrimental reliance (see M&T Bank v . Joseph , 152 AD3d 579, 58 NYS3d 150 [2d Dept 2017]). In a recent case, defendant submitted an RPAPL §1304 argument as a basis for his cross-motion, which was dismissed. The court noted "Defendant's claim raises an additional issue that courts have often faced in such statutory interpretation situations" ( JP Morgan Chase Bank National Association v. Condello , 59 Misc3d 427, 429, 71 NYS3d 823 [2d Dept 2018]). Citing to a Court of Appeals decision, the judge in Condello quoted:

"Finally, as the Court of Appeals stated in Benjamin v. Koeppel , 85 NY2d 549, 553, 626 NYS2d 982, 650 NE2d 829 [1995], the courts are especially skeptical of clients or customers using public policy '...as a sword for personal gain rather than a shield for public good'" quoting Chalebois v . Weller Assn., 72 NY2d 587, 595. 535 NYS2d 356, 531 NE2d 1288 [1988]. ( Id.). The Court continued "Here, Defendants are similarly seeking to use public policy as a sword and not as the legislatively intended shield" ( Id. at 433).

Defendants contend, most recently in paragraph 7 of Attorney Schwartz's Affirmation in support of the instant cross-motion (seq. no.:004), that Plaintiff has failed to provide any evidence "of the prerequisite notice of default and 90 (ninety) day notice" having been properly mailed and/or addressed to "the Defendant" (presumably indicating Defendants Glenn Rodomista and Home Consultants, Inc.). The Court, in its June 3^rd, 2015 Decision and Order, noted that "In his affidavit, (Glenn) Rodomista denies receipt of notice of default by either regular or certified mail. He (Glenn Rodomista) also alleges that he purchased the property for investment purposes and that the Plaintiff's predecessor was "well aware that [he] would not be residing in the premises" . The subject loan documents indicate that occupancy by the Defendant Mortgagor is not required, contrary to the terms of a typical home loan. Challenge to the service and receipt of a RPAPL §1304 notice is a valid defense for a defendant home loan borrower. It is disingenuous for Defendants, one of whom is a corporation, the other an individual who states that he is not a home loan mortgagor, to invoke this defense. That aside, Plaintiff, as Exhibit "G," served and filed in response to Defendants' discovery request, has provided copies of its RPAPL §1304 notices and copies of the accompanying mailing envelopes with postage affixed thereto. Same are addressed to both the subject premises, 26 Richard Avenue, Islip Terrace, New York 11752 and to Defendant Glenn Rodomista at 230 Terryville Road, Port Jefferson Station, New York 11776. The Court notes that the Port Jefferson Station address is also the address of the Corporate Defendant which currently holds the deed to the subject premises. The Court further notes the absence of any document in the filed record indicating that Plaintiff was aware of or consented to Defendant Glenn Rodomista transferring his interest in the property to his corporation. Defendant Corporation, Home Consultants, Inc., is not a mortgagor nor signer of the note and mortgage complained of in the instant foreclosure case.

Plaintiff has established that proper RPAPL §1304 Notice was made upon Defendants. The Court has carefully considered and hereby rejects Defendants' remaining arguments.

The foregoing Memorandum decision also constitutes the Order of the Court. DATED: JANUARY 8^th , 2019

RIVERHEAD, NY

/s/ _________

HON. JAMES HUDSON

Acting Justice of the Supreme Court