Opinion
Nos. 2021-01256 2021-01717 Index No. 27817/11
07-24-2024
GMAC Mortgage, LLC, plaintiff, v. Courtney Phillips, et al., defendants; U.S. Bank National Association, etc., nonparty-appellant; 1143 East 57th RE, LLC, nonparty-respondent.
Locke Lord LLP, New York, NY (Harry K. Tiwari of counsel), for nonparty-appellant. Rosenfeld Law Office, PLLC, Lawrence, NY (Avinoam Rosenfeld of counsel), for nonparty-respondent.
Locke Lord LLP, New York, NY (Harry K. Tiwari of counsel), for nonparty-appellant.
Rosenfeld Law Office, PLLC, Lawrence, NY (Avinoam Rosenfeld of counsel), for nonparty-respondent.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, BARRY E. WARHIT, CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, nonparty U.S. Bank National Association appeals from (1) an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated January 15, 2016, and (2) an order of the same court (Lawrence Knipel, J.) dated December 12, 2018. The order dated January 15, 2016, denied the unopposed motion of nonparty U.S. Bank National Association for leave to enter a default judgment, to appoint a referee to compute the amount due, and to amend the caption. The order dated December 12, 2018, insofar as appealed from, in effect, upon reargument, adhered to the prior determination in the order dated January 15, 2016, and to a prior determination in an order of the same court (Lawrence Knipel, J.) dated May 17, 2017, denying a second unopposed motion of nonparty U.S. Bank National Association for leave to enter a default judgment, to appoint a referee to compute the amount due, and to amend the caption.
ORDERED that the appeal from the order dated January 15, 2016, is dismissed, as that order was superseded by the order dated December 12, 2018, made, in effect, upon reargument; and it is further, ORDERED that the order dated December 12, 2018, is reversed insofar as appealed from, on the law, and, upon reargument, the orders dated January 15, 2016, and May 17, 2017, are vacated, and thereupon, the motion of nonparty U.S. Bank National Association for leave to enter a default judgment, to appoint a referee to compute the amount due, and to amend the caption is granted; and it is further, ORDERED that one bill of costs is awarded to nonparty U.S. Bank National Association.
In 2006, the defendant Courtney Phillips (hereinafter the borrower) executed a note in the principal sum of $436,000 secured by a mortgage on certain real property located in Brooklyn. In 2011, the plaintiff, GMAC Mortgage, LLC, commenced this action to foreclose the mortgage against, among others, the borrower. The borrower and the other defendants failed to appear or answer the complaint. In February 2013, the borrower allegedly transferred the subject property to nonparty 1143 East 57th RE, LLC (hereinafter 1143 East 57th). In May 2013, the plaintiff assigned the mortgage to nonparty U.S. Bank National Association (hereinafter the lender).
Thereafter, the lender moved for leave to enter a default judgment, to appoint a referee to compute the amount due, and to amend the caption. In an order dated January 15, 2016, the Supreme Court denied the unopposed motion on the ground that the lender had failed to establish either compliance with or the inapplicability of RPAPL 1304. The lender moved a second time for the same relief, and the court denied that unopposed motion in an order dated May 17, 2017. The lender then moved for leave to reargue both motions, and 1143 East 57th submitted opposition thereto. In an order dated December 12, 2018, the court, in effect, granted leave to reargue but, upon reargument, adhered to its prior determinations. The lender appeals from the orders dated January 15, 2016, and December 12, 2018.
"An applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear" (U.S. Bank Trust, N.A. v Green, 173 A.D.3d 1111, 1112; see CPLR 3215[f]).
Pursuant to RPAPL 1304(1), a lender seeking to take legal action against a borrower in connection with a home loan "shall give notice to the borrower" at least ninety days before that lender commences such legal action. While "[a] defense based on noncompliance with RPAPL 1304 may be raised at any time during the action... where the defense is never raised by the borrower, the plaintiff is not required to disprove the defense" (Wells Fargo Bank, N.A. v Morales, 178 A.D.3d 881, 882 [citations omitted]). Here, as that defense was never raised by the borrower, who failed to appear in the action or answer the complaint, the Supreme Court erred in sua sponte raising the issue of noncompliance with RPAPL 1304 in connection with the lender's motion (see Chase Home Fin., LLC v Guido, 189 A.D.3d 1339, 1340; Wells Fargo Bank, N.A. v Morales, 178 A.D.3d at 882-883).
Moreover, the lender's submissions in support of the motion established its entitlement to leave to enter a default judgment, to the appointment of a referee to compute the amount due, and to amend the caption (see Chase Home Fin., LLC v Guido, 189 A.D.3d at 1340; U.S. Bank Trust, N.A. v Green, 173 A.D.3d at 1112).
The parties' remaining contentions are without merit.
Accordingly, upon reargument, the Supreme Court should have granted the lender's motion for leave to enter a default judgment, to appoint a referee to compute the amount due, and to amend the caption.
DILLON, J.P., CHRISTOPHER, WARHIT and LANDICINO, JJ., concur.