Opinion
6593/07.
January 22, 2009.
The following papers were read on this application:
Order to Show Cause With TRO in a Civil
Action ........................................ 1 Affirmation in Opposition ........................ 2An heir of the Defendant estate, Avis Douglas Thomas, submits an application seeking the vacatur of the foreclosure sale upon the grounds of Plaintiff's failure to personally serve him and failure to name a necessary party. He also asks the Court to dismiss the action with prejudice. The Applicant asks the Court to restrain the Referee from transferring title to the subject property by the execution of a deed. In support of the application, the movant attaches the Last Will and Testament of his mother, Katie Maloy Thomas, which bequeaths the proceeds of the sale of the subject property in equal shares to her three named children amongst other provisions. The Applicant further states he has resided in the property since 1971 and that the named Executrix of the Estate, Winell Thomas, is elderly and unable to carry out the duties of Executrix. He mentions that the estate is still in probate and it is assumed by this Court that any issues the Applicant may have with respect to the capacity of the Executrix to manage her responsibilities, will be addressed by the Surrogate, if they have not already been addressed. It is noted the decedent died on May 6, 1999. A temporary order by the Hon. Thomas Adams restrained the Referee from the execution or conveyance of any deed to the subject premises, pending the hearing of this motion.
The Plaintiff opposes the application on the grounds Avis Thomas was personally served on May 7, 2007 as a "John Doe" who was then found to reside at the subject premises. The Plaintiff points out the fact Avis Thomas is not the borrower/mortgagor or the duly appointed representative of his mother's estate nor does he deny the default in mortgage payments since January 1, 2007. The Plaintiff also states Avis Thomas was served with an additional mailing of the summons and complaint at the subject premises on November 1, 2007. The Court notes the Applicant concedes this is his residence and correct mailing address. In addition, the movant was served with a Notice of Sale on July 14, 2008. The foreclosure sale to a third party bidder took place on August 19, 2008 for $165,000.00. It is Plaintiff's position that the applicant had a full 36 days notice, before the foreclosure sale and since the default in January 2007, to take constructive measures to make arrangements to pay off the subject mortgage. The Plaintiff argues it is well-settled law that the owner of the equity of redemption is possessed of the right to redeem at any time before the actual sale is conducted, but not thereafter. See, Deutsche Bank Co. of Cal. vs. DePalo, 38 A.D. 3d 490, 834 N.Y.S. 2d 528 at 530. (Second Dept. 2007). The Court agrees See, 1 Bergman on New York Mortgage Foreclosure, § 4.07 (2003 Matthew Bender Co., Inc.).
The Defendant applicant's general denial of service is insufficient to rebut an affidavit of personal service by a process server. See,Roberts vs. Anka, 45 A.D. 3d 752, 846 N.Y.S. 2d 280 (Second Dept. 2007) and Anderson vs. GHI Auto Serv. Inc., 45 A.D. 3d 512, 845 N.Y.S. 2d 129 (Second Dept. 2007). In addition, the CPLR § 5015 (a) requires the defaulting party to establish a reasonable excuse for the default and demonstrate a meritorious defense. The Defendant applicant's desire to remain in his deceased mother's home without paying the mortgage obligation since January 2007, does not constitute a meritorious defense and his general denial of service does not rebut the prima facie evidence of several sworn affidavits of service. The Plaintiff cites Federal National Mortgage Association vs.Rick Mar Construction Corp., 138 Misc. 2d 316, 523 N.Y.S. 2d 963 (1988) wherein a defaulting mortgagor answered simply that he was not served with any papers in the action. In finding such bare statements insufficient to raise a triable issue of fact which would require a hearing, the Court held: "Based upon the foregoing this Court is of the opinion that in order to be granted a traverse hearing a party must present some question of fact rather than a mere denial of service . . . It is difficult to believe that any of the so-called sworn denial decisions actually intend that a bald denial by a defendant as to receipt of process should trigger a full evidentiary hearing. To hold otherwise would be to open a potential floodgate of mandated hearings whenever a party may choose to controvert receipt of process, despite the possible consequences of a false denial. Accordingly, we will weigh the need for a hearing on the scales of the factual issue test."
The Plaintiff correctly argues that the Defendant Thomas fails to provide any viable defense upon which to justify the issuance of an order vacating the foreclosure sale. In fact, the law favors the stability of titles acquired at foreclosure sales. Public policy requires a court's power to set aside a sale be exercised with caution. The rationale behind this is that "lienors should not easily suffer the burden of delay and expense engendered by a resale of their security, nor should the good faith bidder lose the bargain because others neglected to participate.Polish Nat'l Alliance of Brooklyn vs. White Eagle Hall Co., 98 A.D. 2d 400, 470 N.Y.S. 2d 642 (Second Dept. 1983). The law is clear that a foreclosure sale will not be disturbed where it was fairly made and is free from fraud. See, Home Owners Loan Corp. vs. Vangerow, 277 A.D. 774, 96 N.Y.S. 2d 861 (Second Dept. 1950). A borrower is bound by the terms of the mortgage contract and accordingly default cannot be relieved unless fraud, unconscionable or oppressive conduct, waiver or estoppel on the lender's part is established. In Graf vs. Hope Building Corp., 254 N.Y. 1, 171 N.E. 884 (1930) the Court states the stability of contract obligations must not be undermined by judicial sympathy. While the Court is sympathetic to the circumstances presented herein, it is obliged to follow the laws of this state and the decisions rendered thereunder.
Accordingly, based upon the foregoing, it is hereby
ORDERED, that the Defendant Avis Thomas's application is denied in its' entirety; and it is further
ORDERED, that the temporary restraining order directing the Referee to refrain from the execution and conveyance of any deed to the subject premises, is hereby vacated.
This constitutes the decision and order of the Court.