Opinion
No. 44628/2009.
05-19-2014
ONEWEST BANK, Plaintiff(s) v. Ryan PATRICK ; Mortgage Electronic Registration Systems, Inc; John Doe No.1–5, and Jane Doe # 1–5, et cet, Defendant(s).
Fein, Such & Crane LLP, Chestnut Ridge, Attorneys for Plaintiff. Andrea S. Gross Esq., St. Albans, Attorney for Defendant.
Fein, Such & Crane LLP, Chestnut Ridge, Attorneys for Plaintiff.
Andrea S. Gross Esq., St. Albans, Attorney for Defendant.
Opinion
ANDREW G. TARANTINO JR., J.
This Foreclosure Action was commenced by filing on November 13, 2009. On June 8, 2010, Plaintiff's motion to appoint a Referee was granted after which a Substitute Referee was appointed by the Court on March 20, 2013. On September 4, 2013, Plaintiff moved for a Judgment of Foreclosure and Sale, and Defendant moved to vacate the Order Appointing a Referee. The motions were consolidated by the prior court (LaSalle, J.) and a Traverse Hearing was scheduled. In February 2014, the matter was transferred to this Court, and a Traverse Hearing was conducted on April 7, 2014.
TESTIMONY
The Process Server, Nelson Acevedo, testified that on November 19, 2009, he arrived at the Patrick house to serve the Summons, Verified Complaint and Notice of Pendency on Ryan Patrick. A copy of the Summons, Verified Complaint and Notice of Pendency was admitted into evidence. A woman, described as black, black hair, about 32 years of age, 5'4? in height and weighing about 130 pounds, answered the door. He gave the papers to the woman who identified herself as Georgia Patrick. Acevedo submitted his “notes” which were made contemporaneously with the service. Acevedo then mailed the Summons, Verified Complaint, and Notice of Pendency to Ryan Patrick at the same address, by first class mail on November 24, 2009. The proof of service was admitted into evidence without objection, attached to which was a United States Post Office certificate of mailing to the Patrick House dated November 24, 2009. By his own admission, Acevedo had no personal memory of the events on November 19, 2009 given the passage of time.
On cross examination Acevedo testified he had been licensed to serve in New York City at one time, but let his license lapse. Acevedo was then asked to produce his driver's license so that his signature could be compared to the signature on the proof of service. Acevedo said he never had anyone sign for him, and while his signature on the proof of service may not be an exact match to that on the driver's license, Acevedo was adamant that both signatures were written by him. When asked about keeping a “log” as required by the General Business Law, Acevedo pointed out that keeping logs was a requirement in New York City, but not in Suffolk County. However, he did maintain notes which he placed into evidence on his direct testimony. Again, when asked to describe the premises, Acevedo admitted he had no personal recollection even after being shown a photograph of the house. He did point out that Georgia Patrick's name did not appear anywhere in the caption and the only source of her name would have been from Ms. Patrick at the time of service.
The Court was unpersuaded by Defendant's argument that service was defective because the process server failed to maintain a “bound” log pursuant to General Business Law (GBL), Article 8A. Article 8A applies to process servers in cities having a population of one million or more. The service herein was effected in Suffolk County and, therefore, is governed by GBL, Article 8. The server's notes submitted at trial satisfied Article 8 of the statute.
Georgia Patrick next testified. Ms. Patrick owns the premises with her husband, but was not on the mortgage. Ms. Patrick said that it could not have been her at the house on November 19, 2009, because she was attending school in Queens, and at the time of the service she was in traffic. Ms. Patrick attempted to submit proof of her enrollment at school, but those records did not include an “attendance” record for the day in question. Ms. Patrick then submitted her medical records from August 2009. The purpose of the records was to demonstrate that compared to the description in the proof of service of the person served, Ms. Patrick was 152 pounds. The medical records reflected her height as 5'4?. Ms. Patrick said that at the time she had two children, one about 15 years old and the other about 8 years old.
On cross-examination, Ms. Patrick described the traffic conditions. She acknowledged that in bumper-to-bumper traffic the ride home would take 1 hours; without traffic about hour.
Ryan Patrick next testified. He said he was not at home on November 19, 2009. He worked in Syosset. He then described that he was in the process of working on a mortgage modification. In his words, the process kept going around in circles as he was asked to resubmit document after document as time passed. He was never alerted to the filing of the foreclosure proceedings. He said he first learned of it when he finally retained an attorney to help with the mortgage modification. It was the attorney who learned of the proceedings.
ANALYSIS
The motion and cross-motion present the Court with three questions: 1) whether the defendants were properly served 2) whether the defendants offered a reasonable excuse for their default, and 3) whether the defendants offer a meritorious defense to this action?
A defendant seeking to vacate a default in answering or appearing must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1] ; Wells Fargo Bank v. Malave, 107 AD3d 880, 968 N.Y.S.2d 127;U.S. Bank N.A. v. Stewart, 97 AD3d 740, 948 N.Y.S.2d 411;Deutsche Bank Natl. Trust Co. v. Luden, 91 AD3d 701, 701, 936 N.Y.S.2d 561;Pursoo v. Ngala–El, 89 AD3d 712, 931 N.Y.S.2d 914;Citimortgage, Inc. v. Brown, 83 AD3d 644, 919 N.Y.S.2d 894).Deutsche Bank Nat. Trust Co. v. Ramirez, N.Y.S.2d, 2014 WL 1797605 N.Y.A.D. 2 Dept., 2014. A process server's affidavit of service constitutes prima facie evidence of proper service. Deutsche Bank National Trust Company v. Jose Quinones, 114 AD3d 719, 981 N.Y.S.2d 107 (2d Dep't 2014) ; see also, Wells Fargo Bank, N.A. v. Ronnie Gioia, 114 AD3d 766, 980 N.Y.S.2d 535 (2d Dep't 2014) ; JP Morgan Chase Bank, N.A. v. Constantina Birica, 42 Misc.3d 1222(A), 2014 WL 519629 (N.Y. Sup.) 2014 N.Y. Slip Op. 50148(U) (Sup.Ct. Kings County). Where a sworn denial of receipt of service contains specific facts to rebut the statements in the process server's affidavit an evidentiary hearing is required. Deutsche Bank National Trust Company v. Jose Quinones, id., 981 N.Y.S.2d 107. Unsubstantiated denials of receipt are insufficient to rebut the presumption of proper service. Wells Fargo Bank, N.A. v. Ronnie Gioia, id., 980 N.Y.S.2d 535. In such a case, no hearing is required. Deutsche Bank National Trust Company v. Jose Quinones, id., 981 N.Y.S.2d 107. Absent proper service, a default judgment may be vacated at any time. Pinpoint Technologies, LLC. v. James Egan, 42 Misc.3d 146(A), 2014 WL 996721 (N.Y.Sup.App.Term, 2014 N.Y. Slip Op. 50356(U).
Defendants proffer as their reasonable excuse for defaulting in this action that neither Ryan Patrick, nor Georgia Patrick, was home at the time of service of the summons and complaint. Ryan Patrick was at work, and Georgia Patrick allegedly was in transit during rush hour traffic. No evidence was submitted demonstrating Georgia Patrick's attendance in classes that day. In furtherance of their defense, the Patricks also maintained that the person described in the proof of service as weighing “approx. 130 lbs.” could not have been Georgia Brown because her medical records, dated about 3 months earlier, indicated that she weighed 152 pounds. The Patricks did not dispute the sex, skin color, hair color, age and height descriptions of the person described in the proof of service. One can reasonably presume that visually estimating one's weight can be skewed by the type of clothing the person is wearing. That, together with public awareness of the numerous nutritional programs touting 20 pounds of weight loss in 2 months (and such), the Court does not view the variance in weight description as definitive upon this issue. The one fact that the Court views as critical in its analysis was that the process server indicated on the proof of service that the person named was “Georgia Patrick.” Georgia Patrick was not named in the caption of either the summons or complaint. The Patrick name did not appear at the address, such as upon a mailbox or front door name-plate. Defendants failed to explain how the process server could have obtained Georgia Patrick's name that day other than by the person who answered the door. Based upon the preponderance of the evidence, the Court finds that the Patricks were served with the summons and complaint.
As to the question of whether Defendants established a reasonable excuse for defaulting in this action, the Court finds that no reasonable excuse was given. Defendants seemingly relied on their challenge to the service of process with their explanation that they simply did not know of the action. They also alleged that their default is excusable because they had a good faith belief in the mortgage modification settlement negotiations in which they were engaged. A defendant's purported reliance upon alleged loan modification negotiations that were unsubstantiated are not a reasonable excuse justifying vacating default judgment. See also, Deutsche Bank National Trust Co. V. Gutierrez, 102 AD3d 825, 958 N .Y.S.2d 472 (2d Dep't, 2013). In line with the cases cited therein, Defendant also failed to explain the lengthy delay in his cross-motion given the facts that Defendant's attorney's records revealed that she was retained by Defendant as early as June 2009, and almost three (3) years had passed since the 2010 Order of Reference was granted on Default.
Lastly, assuming that Defendants did have a reasonable excuse for their default, their application to vacate the default must fail because they did not demonstrate a potentially meritorious defense. In this foreclosure action, despite further arguments that the Plaintiff lacked standing to commence this action, Defendants failed to demonstrate that they in fact have made their monthly payments, or that their monthly payments were deposited in a trust account until such time that it could be determined to whom the payments should be made. And, one must opine, why enter into settlement negotiations with one you claim has no standing or right to commence the action against you? Although the Court did not have to consider, because of the above holdings, whether Defendant demonstrated a meritorious defense, the Court finds that the Defendants failed this prong of the test.
By reason of the above, it is hereby
ADJUDGED and ORDERED, that service of process in this action has been established by a fair preponderance of the credible evidence; and it is further
ADJUDGED and ORDERED, that Defendant's motion to vacate the default is denied; and it is further
ADJUDGED and ORDERED, that Plaintiff's motion for a Judgement of Foreclosure and Sale is granted and that such Judgment is signed simultaneously herewith.
This constitutes the decision of the Court.