Opinion
24702/2007
10-24-2017
Deutsche Bank National Trust Company, as Trustee, Plaintiff, v. Paula N. Cybula; North Fork Bank Successor by Merger to Greenpoint Bank F/K/A Green Point Savings Bank; Workmen's Benefit Fund of the United States of America, Defendants.
Ras Boriskin, LLC Attorneys for Plaintiff 900 Merchants Concourse, Suite 106 Westbury, NY 11590 Paula N. Cybula [redacted] Lindenhurst, NY 11757 North Fork Bank Successor by Merger to Greenpoint Bank F/K/A Green Point Savings Bank 275 Broadhollow Road Melville, NY 11747 Workmen's Benefit Fund of the United States of America c/o Delta Funding Corp 1000Woodbury Road Woodbury, NY 11797 Ellen Schaffer, Esq. Referee 6 Cold Spring Lane Huntington, NY 11743
Ras Boriskin, LLC Attorneys for Plaintiff 900 Merchants Concourse, Suite 106 Westbury, NY 11590 Paula N. Cybula [redacted] Lindenhurst, NY 11757 North Fork Bank Successor by Merger to Greenpoint Bank F/K/A Green Point Savings Bank 275 Broadhollow Road Melville, NY 11747 Workmen's Benefit Fund of the United States of America c/o Delta Funding Corp 1000Woodbury Road Woodbury, NY 11797 Ellen Schaffer, Esq. Referee 6 Cold Spring Lane Huntington, NY 11743 Robert F. Quinlan, J.
Upon the following papers read on this application for an order for: vacating the judgment of foreclosure and sale dated September 14, 2016, confirming the referee's oath and report, granting plaintiff default judgment, granting judgment of foreclosure and sale amending the caption and extinguishing the liens of defendants North Fork Bank Successor by Merger to Greenpoint Bank f/k/a Green Point Savings Bank and Workmen's Benefit Fund of the United States of America; Notice of Motion dated March 6, 2017and supporting papers; it is
ORDERED that this unopposed motion by plaintiff is denied; and it is further
ORDERED that all of the provisions of this Court's Judgment of Foreclosure dated September 14, 2016 remain in full force and effect, and plaintiff is to proceed pursuant to that judgment.
This is an action to foreclose a mortgage on the premises known as 381 East Heathcote Road, Lindenhurst, Suffolk County, NY. Plaintiff commenced this action in 2007. The court declines to detail the ten year history of this action except to the extent that Judgment of Foreclosure and Sale was granted by order of the court dated September 14, 2016 and to address the history of this motion.
Plaintiff's motion was originally returnable March 30, 2017, but adjourned to April 6, 2017. By letter dated April 7, 2017, which incorrectly characterized this motion as a "Motion in Support of Judgment of Foreclosure and Sale," plaintiff's counsel asked that the motion "be held in abeyance" as defendant Paula N. Cybula ("defendant") had applied for a loan modification and plaintiff wished to prevent "a violation of dual tracking." By letter dated May 23, 2017, plaintiff's counsel advised the court that defendant had been denied a loan modification and asked the court to "proceed with its determination of Plaintiff's motion." Before a decision could be made, by letter dated June 12, 2017 plaintiff's counsel again asked that "the pending Motion for Judgment of Foreclosure and Sale, be held in abeyance" as defendant was being reviewed for a loan modification and plaintiff again wished to "prevent a violation of dual tracking," adding it would advise the court "whether it intends to proceed with the foreclosure." The court's Principal Law Clerk wrote to plaintiff's counsel stating the court's position that a judgment of foreclosure had already been issued and that although applicable Federal Regulations may preclude a servicer from certain acts, those regulations did not bind the court. The court next heard from plaintiff's counsel by letter dated October 12, 2017, wherein plaintiff's counsel advised that defendant had not been approved for loss mitigation and that plaintiff wished a determination on its "motion for Judgment of Foreclosure and Sale."
This is not a motion for judgment of foreclosure and sale, as that had been previously granted as indicated above, rather it seeks to vacate that judgement, and then have the court issue another an order resettling that judgment of foreclosure and sale.
At the outset the court notes that in order for it to act, plaintiff's submissions must be legally adequate. Here plaintiff's submissions do not include an adequate affidavit of mailing of the motion upon defendants (CPLR 2103[c]). Plaintiff has failed to satisfy the requirements of CPLR 2103 (c) as there is no proof of mailing in accordance with CPLR 2103(f) (1) (see Metzger v. Esseks, 168 AD2d 287 [2d Dept1990]; Heffernan v. Village of Munsey Park, 133 AD2d 139 [2d Dept 1987]; Vivienne Etienne Medical Care, P.C. v. County-wide Ins. Co., 114 AD3d 33, 47 [2d Dept 2013].
However, even if plaintiff had submitted sufficient proof of mailing in accordance with CPLR 2103 the court would have denied the motion.
Plaintiff's present motion seeks leave of court to resettle the previously issued judgment of foreclosure and sale. Plaintiff fails to provide a legal basis for the resettlement. The only explanation given the court in support of the motion is that the after the judgment of foreclosure and sale was granted on September 14, 2016, but prior to its entry by the Office of the Suffolk County Clerk on November 21, 2016, defendant submitted an application for a loan modification on or about October 12, 2016. The requests to hold the motion "in abeyance" commenced thereafter for the same apparent reason.
To the extent plaintiff is seeking resettlement because of the rules issued by the Consumer Financial Protection Bureau (CFPB) prohibiting 'dual tracking,' the application would be denied (see 12 CFR §1024.41). The court notes that 12 CFR §1024.41 governs a servicer's response to loss mitigation applications (emphasis supplied). Further, the CFPB has stated that "nothing in 1024.41(g) prohibits a servicer from continuing to move forward with a foreclosure process (assuming that the first notice or filing was made before a servicer received a complete loss mitigation application) so long as the servicer does not take an action that will directly result in the issuance of a foreclosure judgment or order of sale, or a foreclosure sale, see Mortgage Servicing Rules, 78 Fed. Reg. at 10833-35.
Here the motion for judgment of foreclosure and sale was marked submitted September 8, 2016 and court issued its judgment of foreclosure September 14, 2016. Defendant's loan modification application was filed after the grant of judgment of foreclosure and sale and the defendant's subsequent loan modification application, and the CFPB rules, have no effect on the judgment issued by this court. CFPB rules apply to the servicer and not the court. There being no legal basis for the court to vacate its prior judgment, plaintiff's motion would have been denied by the court.
If for some reason plaintiff's application is based upon an erroneous belief that the amended provisions of RPAPL § 1351 (1) (effective December 20, 2016) apply to this September 14, 2016 judgment because they failed to hold the sale before that date, it has interpreted the statute incorrectly. As the judgment was before the effective date of the amendment, it is governed by the law in effect at the time it was issued.
The provisions of the September 14, 2016 judgment of foreclosure and sale remain in full force and effect, plaintiff should proceed accordingly. DATED: October 24, 2017 HON. ROBERT F. QUINLAN J.S.C.