Opinion
20008-2009
02-11-2019
WELLS FARGO BANK, N.A., AS TRUSTEE FOR ABFC 2006-OPT1 TRUST, ABFC Asset-Backed Certificates, Series 2006-OPT1, Plaintiff, v. Sharon ASTACIO, Anthony Astacio, Brookhaven Memorial Hospital Medical Center, Defendants.
RAS BORISKIN, LLC, Attorneys for Plaintiff, 900 Merchants Concourse, Suite LL-5, Westbury, NY 11590 THE RANALLI LAW GROUP, PLLC, Attorney for Defendant Sharon Astacio, 742 Veterans Memorial Highway, Hauppauge, NY 11788 ANTHONY ASTACIO, [redacted], Mastic Beach, NY 11951, BROOKHAVEN MEMORIAL HOSPITAL, 101 Hospital Road, East Patchogue, NY 11772
RAS BORISKIN, LLC, Attorneys for Plaintiff, 900 Merchants Concourse, Suite LL-5, Westbury, NY 11590
THE RANALLI LAW GROUP, PLLC, Attorney for Defendant Sharon Astacio, 742 Veterans Memorial Highway, Hauppauge, NY 11788
ANTHONY ASTACIO, [redacted], Mastic Beach, NY 11951, BROOKHAVEN MEMORIAL HOSPITAL, 101 Hospital Road, East Patchogue, NY 11772
Robert F. Quinlan, J.
Upon the following papers read on this successive motion for summary judgment by plaintiff seeking an order establishing defendant Sharon Astacio's default in payment, dismissing her 3rd affirmative defense and an order appointing a referee to compute pursuant to RPAPL § 1321 ; notice of motion, and supporting papers # 1-51 ; defendant's opposition papers # 52-61 ; plaintiff's notice of rejection of opposition papers # 62-65 ; it is
ORDERED that the plaintiff's motion is denied and plaintiff's proposed order is marked "Not Signed;" and it if further
ORDERED that the limited issue trial set by the order of June 8, 2017 is scheduled for trial on April 5, 2019 at 9:30 AM before this part.
This is an action to foreclose a mortgage on residential real property known as 40 Peeker Avenue, Mastic Beach, Suffolk County, New York ("the property") given by defendants Sharon Astacio and Anthony Astacio ("defendants") to a predecessor in interest to plaintiff Wells Fargo Bank, as trustee for ABFC 2006-OPT1 Trust, ABFC Asset-Backed Certificates, Series 2006-OPT1 ("plaintiff"). The prior history of this action is set forth in the court's decision placed on the record after oral argument on June 8, 2017 (Mot. Seq. # 001), at which time the court granted plaintiff's application to set the default of the non-appearing, non-answering defendants, including defendant Anthony Astacio, to amend the caption, but denied plaintiff's application for the appointment of a referee to compute pursuant to RPAPL § 1321 and granted plaintiff only partial summary judgment pursuant to CPLR 3212 (g) as to defendant Sharon Astacio's ("defendant") answer, dismissing all of her affirmative defenses except her 3rd affirmative defense contesting plaintiff's proof of mailing of the notices required by RPAPL § 1304, and further denying summary judgment as plaintiff's proof failed to establish defendant's default in payment, an element of plaintiff's prima facie proof required for foreclosure. The court set these two issues for a limited issue trial pursuant to CPLR § 2218, issued a scheduling and discovery order which authorized a limited period of discovery on those issues, further authorized successive summary judgment motions by the parties after the completion of discovery, but no later than thirty days after the filing of a note of issue and set a certification/compliance conference for October 11, 2017. That conference was re-scheduled for October 25, 2017, at which time the court signed a certification/compliance order and plaintiff filed a note of issue on November 14, 2017. Plaintiff filed its successive motion for summary judgment dated February 26, 2018, returnable April 6, 2018, but administratively adjourned to the courts' next motion date, April 12, 2018. Defendant's counsel "faxed" his affirmation in opposition to plaintiff's counsel on April 11, 2018, which plaintiff's counsel rejected.
MOTION AND OPPOSITION TIMELY
Although the order of June 8, 2017 authorized successive summary judgment motions by the parties within thirty days of the filing of the note of issue, by letter dated December 7, 2017 plaintiff's counsel asked for additional time to file as defendant had filed a new loan modification application and plaintiff feared violation of federal regulations that prohibit "dual tracking." Although the court disagreed with plaintiff's interpretation of those regulations, absent taking the final step towards a foreclosure sale, the court granted the application and extended the time to file the motion to February 28, 2018. Although the court is aware of appellate decisions which prohibit filing of a summary judgment motion after a date set by the court pursuant to CPLR 3212 (a), as this motion was filed within the statutory limit of 120 days post note of issue set by CPLR 3212 (a), was done with good cause and permission of the court, the court has considered the motion.
As to plaintiff's notice of rejection of defendant's opposition, the court believes that all motions are better decided upon the merits. Normally, under circumstances as here, the court would have provided plaintiff an opportunity to file a reply, but under the facts here, a reply is unnecessary. Defendant's opposition is both without merit as to standing and redundant as to plaintiff's burden of proof as to its prima facie case. Defendant's attempt to raise standing in opposition is unsuccessful, as she waived the issue by not raising it as an affirmative defense or in a pre-answer motion (see HSBC Bank USA, N.A. v. Taher, 104 AD3d 815 [2d Dept 2013] ; Bank of America, N.A. v. Cudjoe , 157 AD3d 653 [2d Dept 2018] ; Konduar Capital Corp v. Stewart , 166 AD3d 748 [2d Dept 2018] ; US Bank, N.A. v. Nelson , ––– AD3d ––––, 2019 NY Slip Op 00494 [2d Dept 2019] ), and the issue was determined against her by the decision of June 8, 2017. Defendant's opposition to the proof of mailing of the notices required by RPAPL § 1304 ("the notices") is irrelevant and redundant, as defendant's 3rd affirmative defense raised proof of mailing of the notices and it is therefore required be established as part of plaintiff's prima facie case (see Citimortgage. Inc v. Espinal , 134 AD3d 876 [2d Dept 2015] ; Cenlar FSB v. Weisz , 136 AD3d 855 [2d Dept 2016] ; M & T Bank v. Joseph , 152 AD3d 579 [2d Dept 2017] ; Bank of New York Mellon v. Zavolunov , 157 AD3d 754 [2d Dept 2018] ), as well as by the order of June 8, 2017.
DEFENDANT'S DEFAULT NOT PROVEN
Although the affidavit of plaintiff's servicer's employee is sufficient to establish his ability to testify as to the business records his employer, plaintiff's present servicer Ocwen Loan Servicing, LLC ("Ocwen"), those business records do not establish defendants' default in payment ("default"). In his affidavit, the affiant states that defendant failed to make the payments due commencing with the payment of November 1, 2008. In support of his ability to present evidence and act on behalf of plaintiff, the affiant refers to the submitted limited power of attorney executed between Ocwen and plaintiff. The terms of that document state that it is effective as of "the date below," September 25, 2013. It only establishes Ocwen's activities as servicer from that date, which means Ocwen's records cannot be used to establish defendant's default of November 1, 2008. Although the affiant could testify as to defendant's default commencing with the October 1, 2013 payment, that is of little help when plaintiff's action was commenced almost four years before that date. An affidavit which failed to establish an affiant's ability to testify as to records establishing the default in payment pursuant to CPLR 4518 (a), which default occurred prior to the date the affiant's employer came into possession of records and, where as here, the affiant did not establish familiarity with a predecessor's records, failed to establish the default in payment as part of plaintiff's prima facie case requiring denial of motion (see Fulton Holding Group, LLC v. Lindoff, 165 AD3d 1045 [2d Dept 2018] ; Federal National Mortgage Assoc. v. Marlin , ––– AD3d ––––, 2019 NY Slip Op 00095 [2d Dept 2019] ). As with standing, an affidavit from an employee of plaintiff's present servicer which attempts to rely upon business records of a prior holder of the note to establish a borrower's default, is ineffective unless the affiant establishes his/her ability by showing personal knowledge and familiarity with the record keeping practices and procedures of the prior entity (see Arch Bay Holding, LLC v. Albanese, 146 AD3d 849 [2d Dept 2017] ; Aurora Loan Svcs, LLC v. Ang , 150 AD3d 649 [2d Dept 2017] ), the same principle applies here.
Plaintiff's submissions have failed to establish defendant's default.
RPAPL§ 1304 MAILINGS REQUIRED
Plaintiff's argument that the mailing of the notices required by RPAPL § 1304 ("the notices") were not required as defendant borrowers had made an application for a loan modification is a misinterpretation of RPAPL§ 1304 (3). The language of RPAPL 1304 (3) in existence at the time the notices here were sent stated that: "The ninety day period (emphasis added) contained in subdivision one of this section [ RPAPL 1304 (1) ] shall not apply, or shall cease to apply, if the borrower has filed an application for the adjustment of debts of the borrower or an order for relief from the payment of debts ...." Plaintiff misreads this to apply to loan modifications and to completely negate the requirement to mail the notices.
The language of the statute did not refer to loan modifications, but to bankruptcy filings. The Legislature's use of the language "filed an application for the adjustment of debts of the borrower or an order for relief from the payment of debts," is an arcane reference to filing for bankruptcy and has led to confusion in interpreting the statutory language and scheme by some lenders, servicers and their counsel. The Legislature cleared up this misinterpretation with the 2016 amendment to the statute, clearly showing that the language referred to a bankruptcy filing. There is no reference in the 2016 amendment to loan modifications, as it was never the purpose of the statute.
Irrespective of this misinterpretation, plaintiff fails to read what is plain and clear in the statute's language in its interpretation that no notice need be sent, even if a loan modification was applicable. Any perceived exemption from the requirements of RPAPL § 1304 applied only to the requirement not to commence a suit until at least 90 days after the notices were mailed, not the requirement to mail the notices before suit. The statute in effect before the 2016 amendment said that "The ninety day period specified in the notice contained in subdivision one of this section shall not apply, or shall cease to apply...." (emphasis added). The Legislature clearly differentiated between the terms "ninety day period " and "ninety day notice ," as can be seen in the language used in the following subdivision, "4" which states: "The notice and the ninety day period required by subdivision one of this section need only be provided once in a twelve month period to the same borrower in connection with the same loan." (emphasis added) RPAPL § 1304 (4) makes clear the legislature's strict differentiation between "the notice and the ninety day period" (see Aurora Loan Servs., LLC v. Weisblum , 85 AD3d 95 [2d Dept 2011] ). Even if RPAPL § 1304 (3) had been meant to apply to a loan modification application, it would have merely removed the requirement to delay filing of the law suit until ninety days after the mailing of the notices, but it would not effect the requirement that the notices still must be sent before commencing legal action. The 2016 amendment also clarified this. The Court of Appeals has stated that: "A court cannot amend a statute by inserting words that are not there nor will a court read into a statute a provision which the Legislature did not see fit to enact.... an inference must be drawn that what is omitted or not included was intended to be omitted and excluded" ( Chemical Specialties Mfrs. Ass'n v. Jorling , 85 NY2d 382, 394 [1995] ; see also People v. Silburn , 31 NY3d 144, 174 [2018] ; People v. Tiger , 32 NY3d 91 [2018] ); further, where the language of a statute is clear and unequivocal, it should be construed according to its plain meaning (see Schoenefeld v. State of New York , 25 NY3d 22,26 [2015] ). What plaintiff wishes to read into the statute cannot be done and this court has held so in past decisions.
NO PROOF OF COMPLIANCE WITH RPAPL § 1304 MAILING
Here, plaintiff's submissions make it clear that the notices were mailed by a prior servicer, American Home Servicing. Inc. ("American"), as the envelopes are addressed from American and the notices are on American letterhead. As the affiant failed to establish his personal knowledge of business practices and procedures of American, his statements were inadmissable as they failed to comply with the requirements of CPLR 4518, and as such failed to provide proof of mailing of the notices (see Aurora Loan Servs., LLC v. Mercius , 138 AD3d 650 [2d Dept 2016] ; Citimortgage, Inc. v. Pappas , 147 AD3d 900 [2d Dept 2017] ; M & T Bank v. Joseph , 152 AD3d 579 [2d Dept 2017] ; Aurora Loan Servs., LLC v. Vrionedes , 167 AD3d 829 [2d Dept 2018] ).
Assuming arguendo that he had been able to testify to American's business records pursuant to CPLR 4518, he merely states that these records show that the notices, attached as exhibits, were mailed to defendants, along with the name and addresses of five housing counseling agencies in the region. Such a conclusory affidavit, along with copies of the notices, has been held to be insufficient to establish the mailings (see JPMorgan Chase Bank, N.A. v. Kutch, 142 AD3d 536 [2d Dept 2016] ; Cenlar FSB v. Censor , 139 AD3d 781 [2d Dept 2016] ; US Bank, NA v. Henderson , 163 AD3d 601[ 2d Dept 2018] ). The affiant must show his familiarity with office practices and procedures of the mailing entity to establish office practices and procedures existed that insured proper addressing and mailing (see CitiMortgage, Inc v. Pappas, 147 AD3d 900 [2d Dept 2017] ; US Bank v. Henry, 157 AD3d 839 [2d Dept 2018] ; Bank of NY Mellon v. Zavolunov , 157 AD3d 754 [2d Dept 2018] ). Here the affidavit provides none of the indicia necessary to establish mailing, such as proof of actual mailing or a description of American's practice and procedure for mailing (see New York & Presbyt. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006] ; Citibank, N.A. v. Wood , 150 AD3d 813 [2d Dept 2017] ) or an affidavit of service (see Emigrant Mortgage Co., Inc. v. Persad, 117 AD3d 676 [2d Dept 2014] ; Bank of NY Mellon v. Aquino , 131 AD3d 1186 [2d Dept 2015] ; Investors Savings Bank v. Salas , 152 AD3d 752 [2d Dept 2017] ), or an affidavit of mailing (see Wells Fargo v. Moza, 129 AD3d 946 [2d Dept 2015] ; JPMorgan Chase Bank, NA v. Schott, 130 AD3d 875 [2d Dept 2015] ) or business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Vivane Etienne Med. Care, P.C. v. Country Wide Ins. Co. , 25 NY3d 498 [2015] ; Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679 [2d Dept 2001] ); Citimortgage v. Banks , 155 AD3d 936 [2d Dept 2017] ; Deutsche Bank Natl. Trust Co. v. Heitner , 165 AD3d 1038 [2d Dept 2018] ). Therefore, the affidavit would fail to establish mailing, even if the affiant could establish his ability to testify to these records pursuant to CPLR 4518 (a). Plaintiff has failed to establish the mailing of the notices.
To establish its prima facie case, plaintiff was required to provide evidence in admissible form establishing its entitlement to relief as a matter of law (see Winegrad v. New York University Medical Center , 64 NY2d 851[1985] ; Gilbert Frank Corp. v. Federal Insurance , 70 NY2d 966[1988] ). Failure to do so requires the denial of its motion, regardless of the sufficiency of the opposition (see Jacobsen v. New York City Health & Hospital Corp , 22 NY3d 824 [2014] ; William J. Jenack Estate Appraiser and Auctioneers v. Rabizadeh , 22 NY3d 470 [2013] ).
Plaintiff's proposed order submitted with this motion is marked "Not Signed."
The limited issue trial set by the decision of June 8, 2017 is scheduled for trial in this part on April 5, 2019 at 9:30AM.
This constitutes the decision and order of the court.