Opinion
No. 064445/2013.
12-09-2014
WELLS FARGO BANK, N.A., Plaintiff, v. Loretta CEROTANO, and “JOHN DOE # 1” to “JOHN DOE # 10” the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.
Wells Fargo Bank, McCabe, Weisberg & Conway, for Plaintiff. Theresa White, Esq., for Defendant.
Wells Fargo Bank, McCabe, Weisberg & Conway, for Plaintiff.
Theresa White, Esq., for Defendant.
Opinion
THOMAS F. WHELAN, J.
Upon the following papers numbered 1 to 9 read on this motion by the plaintiff for summary judgment and the appointment of a referee to compute; Notice of Motion/Order to Show Cause and supporting papers 1–6; Notice of Cross Motion and supporting papers; Answering papers 7–8; Reply papers 9; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that, this motion (# 001) by the plaintiff for summary judgment on its complaint, the deletion of the unknowns named as party defendants and an order of reference is considered under CPLR 3212 and RPAPL § 1321 and is granted.
In this mortgage foreclosure action, the plaintiff seeks foreclosure of a 2007 mortgage given by defendant, Loretta Cerotano, and her husband Joseph John Proce, who died in 2010, to secure a mortgage note given by the deceased mortgagor to the plaintiff. In its complaint, the plaintiff seeks only the foreclosure of the lien of its mortgage and a sale of the mortgaged premises in full satisfaction of such lien, as no demand for recovery of a deficiency judgment is advanced therein. Issue was joined by service of an answer by the defendant mortgagor, Cerotano, in which she asserted several affirmative defenses including, a lack of standing on the part of the plaintiff and a failure to join a necessary party.
By the instant motion, the plaintiff seeks an order awarding it the following relief: (1) summary judgment against defendant Cerotano; (2) the deletion as party defendants of the unknown defendants; and (3) appointing a referee to compute amounts due under the subject mortgage. Defendant Cerotano opposes the motion and in her submissions, she asserts only one defense to the plaintiff's claim for foreclosure and sale, namely that the plaintiff's failure to join her, in her capacity as the nominated executrix of her husband's estate, as a necessary party to this action warrants a denial of the plaintiff's motion.
The moving papers established the plaintiff's entitlement to summary judgment on its complaint to the extent it asserts claims against the answering defendant as they included copies of the mortgage, the unpaid note and due evidence of a default under the terms thereof (see CPLR 3212 ; RPAPL § 1321 ; Midfirst Bank v. Agho, 121 AD3d 343, 991 N.Y.S.2d 623 [2d Dept 2014] ; W & H Equities LLC v. Odums, 113 AD3d 840, 978 N.Y.S.2d 910 [2d Dept 2014] ; Washington Mut. Bank v. Schenk, 112 AD3d 615, 616, 975 N.Y.S.2d 902 [2d Dept 2013] ; Emigrant Mtge. Co., Inc. v. Beckerman, 105 AD3d 895, 964 N.Y.S.2d 548 [2d Dept 2013] ; Solomon v. Burden, 104 AD3d 839, 961 N.Y.S.2d 535 [2d Dept 2013] ; US Bank Natl. Ass'n v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ). In addition, the moving papers established that the plaintiff was the original lender and possession of the note which it specially endorsed in favor of itself, was in its hands prior to commencement of the action (see Wells Fargo Bank, N.A. v. Ali, ––– AD3d –––– 2014 WL 5836197 [2d Dept 2014], supra; Deutsche Bank Natl. Trust Co. v. Islar, ––– AD3d ––––, 2014 WL 5638883 [2d Dept 2014] ; Peak Fin. Partners, Inc. v. Brook, 119 AD3d 539, 987 N.Y.S.2d 916 [2d Dept 2014] ). The moving papers further established, prima facie, that the remaining affirmative defenses asserted in the answer served lacked merit (see Fairmont Capital, LLC v. Laniado, 116 AD3d 998, 985 N.Y.S.2d 254 [2d Dept 2014] ; Mendel Group, Inc. v. Prince, 114 AD3d 732, 980 N.Y.S.2d 519 [2d Dept 2014] ).
It was thus incumbent upon the answering defendant to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in his her its answer or otherwise available to them (see Flagstar Bank v. Bellafiore, 94 AD3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012] ; Grogg Assocs. v. South Rd. Assocs., 74 AD3d 1021 907 N.Y.S.2d 22 [2d Dept 2010] ; Wells Fargo Bank v. Karla, 71 AD3d 1006, 896 N.Y.S.2d 681 [2d Dept 2010] ). Notably, self-serving and conclusory allegations do not raise issues of fact and do not require plaintiff to respond to alleged affirmative defenses which are based on such allegations (see Charter One Bank, FSB v. Leone, 45 AD3d 958, 845 N.Y.S.2d 513 [3d Dept 2007] ; Rosen Auto Leasing, Inc. v. Jacobs, 9 AD3d 798, 780 N.Y.S.2d 438 [3d Dept 2004] ). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975] ; see also Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 AD3d 606, 957 N.Y.S.2d 88 [1st Dept 2012] ; Argent Mtge. Co., LLC v. Mentesana, 79 AD3d 1079, 915 N.Y.S.2d 591 [2d Dept 2010] ).
A review of the opposing papers submitted by the answering defendant reveals no such questions of fact were raised. As indicated above, defendant Cerotano raised no defenses in opposition other than her pleaded defense that the plaintiff's failure to join a necessary party precludes the granting of any relief in its favor. This defense rests upon the following allegations of fact: 1) that the sole obligor under the note, namely, Joseph John Proce, was the husband of defendant Cerotano who predeceased the commencement of this action by several years; 2) that defendant Cerotano was named executrix under the will of her deceased husband but such will was never probated; and 3) that the estate of the deceased obligor/mortgagor is a purported necessary party to this foreclosure action whose joinder has not been effected. Defendant Cerotano urges the court to find that the plaintiff may not proceed in the absence of the joinder of the estate of Joseph John Proce. In its reply submissions, the plaintiff asserts that title to the subject premises was held in the joint names of defendant Cerotano and her now deceased husband, with right of survivorship.
That “the dead cannot be sued” is a well established principle of the jurisprudence of this state (see Marte v. Graber, 58 AD3d 1, 867 N.Y.S.2d 71 [1st Dept 2008] ). It gives rise to the rule that a claimant may not bring a legal action against a person already deceased at the time of the commencement of such action, but instead, must proceed against the personal representative of the decedent's estate (see Jordan v. City of New York, 23 AD3d 436, 807 N.Y.S.2d 595 [2d Dept 2005] ; see also Outing v. Mathis, 304 A.D.2d 670, 757 N.Y.S.2d 483 [2d Dept 2003] ) or against those who have succeeded, by operation of law, to the interests of the decedent in the property that is subject to the judgment of foreclosure and sale (see HSBC Bank USA v. Ungar Family Realty Corp., 111 AD3d 673, 974 N.Y.S.2d 583 [2d Dept 2013] ; DLJ Mtge. Capital, Inc. v. 44 Brushy Neck, Ltd., 51 AD3d 857, 859 N.Y.S.2d 221 [2d Dept 2008] ; Deutsche Bank Natl. Trust v. Torres, 24 Misc.3d 1216[A], 2009 WL 2005599 [Suffolk County, Sup.Ct.2009] ).
Distilled from these concepts is the rule that no action may effectively be commenced against a deceased person subsequent to his or her death and prior to the appointment of a personal representative (see Arbalez v. Chun Kuei Wu, 18 AD3d 583, 795 N.Y.S.2d 327 [2d Dept 2005] ; Laurenti v. Teatom, 210 A.D.2d 300, 619 N.Y.S.2d 754 [2d Dept 1994] ; Dime Sav. Bank of New York FSB v. Luna, 302 A.D.2d 558, 755 N.Y.S.2d 300 [2d Dept.2003] ). The death of a named defendant prior to the commencement of an action has thus been held to render the action, insofar as asserted against deceased defendant, a legal ity from its inception which leaves the Court without jurisdiction to grant any requested relief (see Rivera v. Bruchim, 103 AD3d 700, 959 N.Y.S.2d 448 [2d Dept.2013] ; Wendover Fin. Serv. v. Ridgeway, 93 AD3d 1156, 940 N.Y.S.2d 391 [4th Dept 2012] ; Marte v. Graber, 58 AD3d 1, supra; Deutsche Bank Natl. Trust v. Torres, 24 Misc.3d 1216[A], 2009 WL 2005599 [Suffolk County, Sup.Ct.2009] ; cf., GMAC Mtge. Corp. v. Tuck, 299 A.D.2d 315, 750 N.Y.S.2d 93 [2d Dept 2002] ).
That the foregoing rules are applicable to mortgage foreclosure actions is clear (see Wendover Fin. Serv. v. Ridgeway, 93 AD3d 1156, supra; JP Morgan Chase Bank, N.A. v. Rosemberg, 90 AD3d 713, 934 N.Y.S.2d 346 [2d Dept 2011] ; Dime Sav. Bank of NY, FSB v. Luna, 302 A.D.2d 558, supra ). Due, however, to the unique nature of such actions (see Jo Ann Homes v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799 [1969] ), courts have held that the personal representative of the estate of a deceased mortgagor, who died intestate and against whom no deficiency judgment is sought, is not a necessary party to a mortgage foreclosure action and that such action may be commenced or continued against the distributees of any such intestate mortgagor (see Winter v. Kram, 3 A.D.2d 175, 159 N.Y.S.2d 417 [2d Dept 1957] ; see also Salamon Bros. Realty Corp. v. Alvarez, 22 AD3d 482, 802 N.Y.S.2d 705 [2d Dept 2005] ; cf. Dime Sav. Bank of NY, FSB v. Luna, 302 A.D.2d 558, supra ). Accordingly, a foreclosing plaintiff may prosecute its claims against the distributees of a deceased mortgagor only where said mortgagor died intestate and no deficiency judgment is sought by the plaintiff in such action (see Financial Freedom Senior Funding Corp. v. Rose, 64 AD3d 539, 883 N.Y.S.2d 546 [2d Dept 2009] ; Salamon Bros. Realty Corp. v. Alvarez, 22 A.D.2d 482, supra ; Winter v. Kram, 3 A.D.2d 175, supra ). Where the deceased mortgagor died testate, or where he or she was personally liable on the mortgage note or bond and the plaintiff seeks a deficiency judgment against him or her in its mortgage foreclosure complaint, the plaintiff cannot proceed against the distributees of the deceased mortgagor, but instead, must proceed against the personal representative of the estate of the deceased mortgagor (see Jordan v. City of New York, 23 AD3d 436, supra; Countrywide Home Loans, Inc. v. Keys, 27 A.D.2d 247, 811 N.Y.S.2d 362 [1st Dept 2006] ; Dime Sav. Bank of NY, FSB v. Luna, 302 A.D.2d 558, supra ).
It is equally well settled law that “a mortgagor who has made an absolute conveyance of all his interest in the mortgaged premises, including his equity of redemption, is not a necessary party to a foreclosure action, unless a deficiency judgment is sought (DLJ Mtge. Capital, Inc. v. 44 Brushy Neck, Ltd., 51 AD3d 857, supra [emphasis added]; Federal Natl. Mtge. Assn. v. Connelly, 84 A.D.2d 805, 444 N.Y.S.2d 147 [2d Dept 1981] ). Accordingly, where a deceased mortgagor owned the encumbered property jointly with right of survivorship in one more other persons such mortgagor, to the extent he or she predeceases his or her joint tenant, is not a necessary party to a foreclosure action. In those cases wherein such mortgagor was joined as a defendant to a foreclosure action, the death of such mortgagor defendant during the pendency of the action will not effect a stay and the action may be continued against the surviving property owners alone, upon the withdrawal by discontinuance or otherwise of the claims interposed against the deceased defendant (see HSBC Bank USA v. Ungar Family Realty Corp., 111 AD3d 673, 974 N.Y.S.2d 583 [2d Dept 2013] ; Waterfall Victoria Master Fund, Ltd. v. Dingilian, 92 AD3d 593, 939 N.Y.S.2d 40 [1st Dept 2012] ). It is only where the deceased mortgagor was also an obligor under the mortgage note or any guaranty thereof and a deficiency judgment against such deceased obligor/mortgagor is demanded, will the joiner of the estate representative of such obligor/mortgagor be required (see Jordan v. City of New York, 23 AD3d 436, supra; Countrywide Home Loans, Inc. v. Keys, 27 A.D.2d 247, 811 N.Y.S.2d 362 [1st Dept 2006] ; Dime Sav. Bank of New York FSB v. Luna, 302 A.D.2d 558, supra ).
Upon application of the foregoing rules, the court finds that the defendant's asserted defense lack merit. The estate of her deceased husband, Joseph John Proce, is not a necessary party since his interest in the subject premises passed by operation upon his death to his joint tenant with survivorship rights, namely, defendant Cerotano, and the plaintiff has no pleaded claims against the deceased obligor/mortgagor.
The court thus finds that the plaintiff is entitled to summary judgment on its complaint and dismissing the affirmative defenses set forth in the answer of defendant Cerotano. Those portions of this motion wherein the plaintiff seeks such relief are thus granted.
Those portions of the instant motion wherein the plaintiff seeks an order dropping as party defendants the unknown defendants listed in the caption and an amendment of the caption to reflect same are granted. All future proceedings shall be captioned accordingly.
The proposed order of reference, as modified by the court to reflect the terms of this order, has been marked signed.