Opinion
No. 603028–2015.
10-20-2017
SELENE FINANCE LP, Plaintiff, v. Daniel OKOJIE, Department of Housing and Urban Development, Municipal Credit Union, and "John Doe # 1" through "John doe # 12," the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants.
Sheldon May & Associates, Rockville Centre, for Plaintiff. Da'Tekena Barango–Tariah, Esq., Brooklyn, for Defendant Okojie.
Sheldon May & Associates, Rockville Centre, for Plaintiff.
Da'Tekena Barango–Tariah, Esq., Brooklyn, for Defendant Okojie.
ROBERT F. QUINLAN, J.
Upon the following papers read upon plaintiff's motion for an order of reference appointing a referee to compute, fixing and determining the default of the non-appearing/non-answering defendants and amending the caption and defendant's cross-motion to dismiss and supporting papers: plaintiff's motion consisting of affirmations of counsel, affidavit of employee of plaintiff and attached exhibits, defendant's cross-motion and opposition consisting of an affirmation of counsel and attached exhibits; plaintiff's opposition and reply consisting of affirmation of counsel and attached exhibits; and defendant's counsel's affirmation in reply with attached exhibits; it is,
ORDERED that defendant's Daniel Okojie's cross motion is denied; and it is further
ORDERED that plaintiff Selene Financial LP's motion to fix and determine the defaults of the non-appearing, non-answering defendants, for appointment of a referee pursuant to RPAPL § 1321 and to amend the caption is granted; and it is further
ORDERED that plaintiff's proposed order submitted with this motion, as modified by the court is signed contemporaneously herewith; and it is further
ORDERED that the caption in this action shall now appear as indicated in plaintiff's proposed order, which is signed contemporaneously with this order and all further proceedings shall be under that caption.
This is an action to foreclose a mortgage on residential real property ("the property") located at 19 Westside Avenue, Bay Shore, Suffolk County, New York owned by defendant Daniel Okojie, ("defendant") alleging that on October 16, 2009 defendant executed a note in the amount of $187,344.00 to the original lender, Lend America, and at the same time gave a mortgage on the property to secure that note to Mortgage Electronic Registrations Systems, Inc. ("MERS") acting solely as nominee of Lend America for the purposes of recording the mortgage. The mortgage was recorded with the Suffolk County Clerk on November 4, 2009.
Through a series of purported transfers commencing with the assignment of the original mortgage, as well as a Loan Modification Agreement dated December 12, 2013 with a purported assignee of the mortgage Loan Care, a division of FNF Servicing, Inc., plaintiff Selene Finance LP ("plaintiff") claims to have possession of the note and mortgage at the time the action was commenced. All the assignments of the mortgage, as well as the loan modification, were filed with the Suffolk County Clerk. The court notes that plaintiff attached to the complaint a copy of the note, undated and indorsed in blank by an allonge executed by Lend America.
Plaintiff has provided an affidavit of service upon defendant at the property by substituted service upon a person of suitable age and discretion, on April 23, 2015 and of the required mailing the next day, April 24, 2015 ( CPLR 308 [2 ],[4] ). Defendant never filed an answer. The court's computer records indicate that defendant appeared at three settlement conferences scheduled in the courts dedicated Foreclosure Settlement Conference Part ("FSCP") on January 22, April 12 and June 6, 2016. After the last conference, the action was released by the court attorney referee as "not settled" to be assigned to an IAS Part. Compliance with CPLR 3408 has been shown.
By notice of motion dated June 29, 2016, originally returnable July 25, 2016, plaintiff filed a motion (Motion Seq # 001) seeking judgement upon the default of the defendants in answering, amending the caption, and for the appointment of a referee pursuant to RPAPL § 1321. The motion was assigned to Part 9 of this court (ASJ Daniel Martin) and the motion was set for submission on July 26, 2016, apparently the part's motion day. Upon letter of defendant's counsel's dated July 22, 2016, it was adjourned to August 16, 2016. Defendant's counsel filed a cross-motion and opposition to plaintiff's motion with NYSCEF on August 9, 2016, moving to dismiss the case based upon a claim of lack of personal jurisdiction over defendant, failure of plaintiff to comply with the requirements of RPAPL § 1304 and the claim that there was a prior action pending. By stipulation dated August 16, 2016, the parties agreed to adjourn the cross-motion to September 6, 2016, and on August 24, 2016 plaintiff filed opposition to the cross-motion as well as a reply to defendant's opposition. On September 2, 2016 defendant filed his reply.
By Administrative Order # 105–17 of District Administrative Judge C. Randall Hinrichs dated September 8, 2017, the case was reassigned to this part. It was originally scheduled for oral argument in error as a motion for summary judgment, to be held on October 23, 2017 at 9:30 am, but was removed from that calendar when it was determined not to be such a motion, so that the court could render a written decision.
Defendant is in default in answering, yet defendant's cross-motion acts as if he has answered, raising the issues which are the basis for his application for dismissal. Counsel does not appear to recognize that a party in default in answering may not move for affirmative relief of a non-jurisdictional nature, such as dismissal of a complaint without first moving to vacate his/her default (see Chase Home Finance, LLC v. Garcia, 140 AD3d 820 [2d Dept 2016] ; Nationstar Mortgage, LLC v. Avella, 142 AD3d 594 [2d Dept 2016] ; Southstar III, LLC v. Ettienne, 120 AD3d 1332 [2d Dept 2014] ; U.S. Bank Natl. Assn. v. Gonzalez, 99 AD3d 694 [2d Dept 2012] ; Deutsche Bank Trust Co., Am. v. Stathaklis, 90 AD3d 694 [2d Dept 2011] ; Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011] ). Compliance with the conditions precedent of RPAPL § 1304 have been held to be is non-jurisdictional, so before a defendant in default can raise that issue, he/she must first vacate his/her default in answering (see HSBC Bank, N.A. v. Clayton, 146 AD3d 942 [2d Dept 2017] ).
Defendant's submission makes no attempt to provide any arguments to vacate defendant's default pursuant to CPLR 5015(a)(4) based upon lack of jurisdiction (which requires no proof of a reasonable excuse or meritorious defense), CPLR 5015(a)(1) based upon excusable default (which requires proof of both a reasonable excuse for the default and a meritorious defense), CPLR § 317 to permit a late defense when not personally served (which requires a finding defendant did not receive notice of the action in time to defend and a meritorious defense), nor CPLR § 3012(d) to compel acceptance of a late answer (which requires both a reasonable excuse for the default and a meritorious defense).
Here, even if the court sua sponte wished to convert defendant's motion into one to vacate his default pursuant to CPLR 5015(a)(4) or a motion to be permitted to defend under CPLR § 317, which it declines to do, it could not do so successfully. There is no affidavit from defendant claiming he was not served and setting forth the basis for such claims. The affirmation of counsel is insufficient to establish a claim of lack of service.Defendant's counsel's arguments that his Exhibit "1" on the cross-motion (also part of plaintiff's Exhibit "F") proves lack of service is of no probative value and without merit. The exhibit just appears to show a renewed attempt to serve defendant personally pursuant to CPLR 308(1), after service has been accomplished pursuant to CPLR 308(4). Plaintiff has already proven service pursuant to CPLR 308(4) in the first affidavit of service included in Exhibit "F." Without an affidavit from defendant, this service is not effectively contested. Without an affidavit from defendant explaining his inability to answer because he was unaware of the action, even if defendant wished to raise a claimed meritorious defense of failure to comply with RPAPL § 1304 compliance, it is ineffective. Further, as the court's records appear to indicate that defendant appeared at the three FSCP conferences, it appears to the court that defendant would be hard pressed to establish he was unaware of the action in time to defend.
The court will also not act sua sponte to convert defendant's motion into one to vacate under CPLR 5015(a)(1) or to compel acceptance of a late answer under CPLR § 3012(d), as a defendant must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action when moving to vacate his/her default or to extend the time to answer or compel the acceptance of an untimely answer under those provisions (see Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 AD3d 890 [2d Dept 2010] ; Karalis v. New Dimensions HR, Inc., 105 AD3d 707 [2d Dept 2013] ; Midfirst Bank v. Al–Rahman, 81 AD3d 797 [2d Dept 2011] ). This standard governs applications made both prior and subsequent to a formal fixing of a default on the part of the defendants by the court (see Bank of New York v. Espejo, 92 AD3d 707 [2d Dept 2012] ; Integon Natl. Ins. Co. v. Norterile, 88 AD3d 654 [2d Dept 2011] ). Where there is failure to provide a reasonable excuse, the court need not consider claims of meritorious defenses (see One W. Bank FSB v. Valdez, 128 AD3d 655 [2d Dept, 2015] ); HSBC Bank USA v. Miller, 121 AD3d 1044 [2d Dept 2014] ). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Segovia v. Delcon Constr. Corp., 43 AD3d 1143 [2d Dept 2007] ; Matter of Gambardella v. Ortov Light., 278 A.D.2d 494 [2d Dept 2000] ); yet there are claims of excuse which have been found by appellate courts not to reasonable, including a failed strategy or tactic and law office failure (see Star Industries, Inc. v. Innovative Beverage, Inc., 55 AD3d 903 [2d Dept 2008] ; Wells Fargo Bank, N.A. v. Cervini, 84 AD3d 789 [2d Dept 2011] ; Cantor v. Flores, 94 AD3d 936 [2d Dept 2012] ; Chase Home Finance, LLC v. Minott 115 AD3d 634 [2d Dept 2014] ; JP Morgan Chase Bank, N.A. v. Russo, 121 AD3d 1048 [2d Dept 2014] ; Bank of N.Y. v. Young, 123 AD3d 1068 [2d Dept 2014] ; Bank of N.Y. Mellon v. Colucci, 138 AD3d 1047 [2d Dept 2016] ; US Bank Natl Assn v. Barr, 139 AD3d 937 [2d Dept 2016] ). Withou an affidavit of defendant establishing a reasonable excuse, such applications would fail, without reference to any potential meritorious defense.
Although this issue with defendant's cross-motion is only argued in a passing reference to CPLR 5015(a) by plaintiff's opposition (see paragraph 9 of the affirmation in opposition), the principles involved are so fundamental that the court would of necessity have had to raise this sua sponte and deny defendant's cross-motion. The court is also surprised that plaintiff's counsel argues the applicability of CPLR 3211(c), as that is only applicable if defendant had answered, which he has not, but perhaps plaintiff was just being cautious.
Further, even if defendant had answered and raised the claim that CPLR 3211(a)(4) was applicable because there is a prior action pending under Index # 23838/2012 entitled Loancare v. Daniel Okojie, the court's computer records show that this action was discontinued by "short form order" of Acting Supreme Court Justice James Hudson on July 7, 2016. This is over two weeks before the return date of plaintiff's original motion and over a month before defendant's cross-motion. As such, CPLR 3211(a)(4) is irrelevant to the present action. Perhaps, because from the courts computer records, it appears that another law firm represented plaintiff's predecessor in interest, Loancare, in that action, plaintiff's counsel was unaware of this fact and did not argue it.
As to the issue of the claim of failure to comply with RPAPL § 1304, as defendant did not answer it is waived (see U.S. Bank v. Carey, 137AD 3d 894 [2d Dept 2016]; Flagstar FSB v. Janbelli, 140 AD3d 829 [2d Dept 2016] ; HSBC Bank, N.A. v. Clayton, supra).
Defendant's cross-motion is denied.
On a motion for leave to enter a default judgment, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's failure to answer or appear ( CPLR 3215[f] ; see Dupps v. Betancourt, 99 AD3d 855 [2d Dept 2012] ; Green Tree Serv ., LLC v. Carey, 106 AD3d 691[2d Dept 2013] ; JPMorgan Chase Bank, N.A. v. Boampong, 145 AD3d 981 [2d Dept 2016] ; US Bank, N.A. v. Singer, 145 AD3d 1057 [2d Dept 2016] ). Plaintiff has met its proof of a prima facie case through the production of the original mortgage, the unpaid note, and evidence of defendants default (see Deutsche Bank Natl. Trust Co. V Abdan, 131AD 3d 1001 [2d Dept 2015]; U.S. Bank N.A. v. Akande, 136 AD3d 887 [2d Dept 2016] ).
Proof required on default under CPLR 3215(f) is merely proof of facts constituting the claim. To demonstrate the facts constituting the claim, movant must only submit sufficient proof to enable the court to determine if the claim is viable (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62[2003] ; Global Insurance Company v. Gorum, 143 AD3d 768 [2d Dept 2016] ; Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., 21 NY3d 200[2013] ; Araujo v. Aviles, 33 AD3d 830 [2d Dept 2006] ; U.S. Bank, N.A. v. Tate, 102 AD3d 859 [2d Dept 2013] ). Plaintiff's submissions have met this burden.
Plaintiff's request for an order fixing the defaults of the non-answering, non-appearing defendants and an order of reference appointing a referee to compute the amount due plaintiff under the note and mortgage pursuant to RPAPL § 1321 is granted (see Green Tree Serv. v. Cary, supra; Vermont Fed. Bank v. Chase, 226 A.D.2d 1034 [3d Dept 1996] ; Bank of East Asia, Ltd. v. Smith, 201 A.D.2d 522 [2d Dept 1994] ; U.S. Bank v. Wohlerman 135 AD3d 850 [2d Dept 2016] ).
Plaintiff's application to amend the caption to remove the "John Doe" defendants and substitute in their place "Jill Smith" and "Jack Jones" is granted upon proof submitted (see U.S. Bank, N.A. v. Boyce, 93 AD3d 872 [2d Dept 2012] Citimortgage, Inc v. Chow Ming Tung, 126 AD3d 841 [2d Dept 2015] ).
This is the order and decision of the court and plaintiff's proposed order, as modified by the court is signed contemporaneously herewith.