Opinion
2016-609023
10-30-2018
WELLS FARGO BANK N.A., Plaintiff v. Michele P. SILVERMAN a/k/a Michelle P. Silverman, Wells Fargo Bank N.A. Successor by Merger to Wachovia Mortgage FSB f/k/a World Savings Bank FSB, United States of America Acting Through the IRS, New York State Department of Taxation and Finance, Citibank N.A., Clerk of the Suffolk County Traffic & Parking Violations Agency, et al., Defendants.
Zalika Tashiam Pierre, Esq., Reed Smith LLP, Attorneys for Plaintiff, 599 Lexington Avenue, New York, New York 10022 Charles Wallshein, Esq., Attorney for Defendant MICHELE SILVERMAN, 115 Broadhollow Road, Melville, New York 11747
Zalika Tashiam Pierre, Esq., Reed Smith LLP, Attorneys for Plaintiff, 599 Lexington Avenue, New York, New York 10022
Charles Wallshein, Esq., Attorney for Defendant MICHELE SILVERMAN, 115 Broadhollow Road, Melville, New York 11747
Jeffrey Arlen Spinner, J.
The Plaintiff has commenced this action claiming foreclosure of a mortgage in the amount of $ 315,000.00 dated November 22, 2004, given to secure a 125% negative amortization Adjustable Rate Mortgage Note of the same date, in the amount of $ 252,000.00, which mortgage was recorded with the Clerk of Suffolk County on February 19, 2005 in Liber 20984 of Mortgages at Page 267. The note and mortgage were modified by a Modification Agreement dated June 18, 2007 and a Home Affordable Modification Agreement dated August 2, 2011, neither of which have been recorded. The mortgage constitutes a first lien encumbering the real property known as 4 Normandie Lane, East Moriches, Town of Brookhaven, New York. Plaintiff is the successor by merger to the original mortgagee.
Plaintiff, alleging that Defendant had defaulted upon the installment which came due on January 1, 2013, thereafter filed its Summons, Verified Complaint and Notice of Pendency herein on June 15, 2016 and Defendant, through prior counsel, timely filed an Answer which included eight Affirmative Defenses and three Counterclaims. Following mandatory scheduled mortgage foreclosure settlement conferences (see CPLR § 3408 ), Plaintiff moved, pursuant to CPLR § 3212 and RPAPL § 1321 for both summary judgment an Order of Reference (seq. 001). Defendant MICHELE SILVERMAN, through successor counsel, has opposed the motion by way of a cross-motion (seq. 002) seeking reverse summary judgment granting dismissal, primarily upon the basis of RPAPL § 1304. Plaintiff has filed written opposition to Defendant's cross-motion. The within applications were assigned to the undersigned Justice on August 14, 2018 pursuant to Administrative Order # 67-18.
On an application for accelerated or summary judgment made pursuant to CPLR § 3212, the Court must be satisfied that there exists neither a triable nor a material issue of fact and that therefore the applicant is entitled to judgment on its claims as a matter of law, thereby obviating the necessity for a trial upon the merits of the action, Silliman v. Twentieth Century Fox Film Corporation 3 NY2d 395 (1957) , Andre v. Pomeroy 35 NY2d 361 (1974) . The moving party must lay bare each and every item of its proof and must clearly demonstrate a prima facie showing of its entitlement to judgment as a matter of law, Alvarez v. Prospect Hospital 68 NY2d 320 (1986) . The failure of the applicant to do so will necessarily result in the denial of summary judgment.
In an action claiming foreclosure of a mortgage, the plaintiff who seeks summary judgment meets its prima facie burden by coming forward with the instruments of indebtedness (the note or bond) together with the mortgage, modification agreements and assignments, if any, as well as competent and admissible proof of the claimed default, EMC Mortgage Corp. v. Riverdale Associates 291 AD2d 370 (2nd Dept. 2002) .
Plaintiff's application facially appears, prima facie , to satisfy the standards for a grant of summary judgment. As a result thereof, the burden is therefore shifted to Defendant, who must demonstrate the actual existence of a triable or material issue of fact that would be legally sufficient to defeat Plaintiff's claim for summary judgment, Barrett v. Jacobs 255 NY 520 (1931) .
In order to ascertain whether or not Defendant has submitted admissible proof of the existence of a triable issue of fact, the Court must examine Defendant's cross-motion, which is submitted both on its own as well as in opposition to Plaintiff's application. A careful review thereof leads the Court to the inescapable conclusion that summary judgment in favor of Plaintiff must be denied in view of triable issues of fact that have been raised, most prominently the asserted failure of Plaintiff to comply with the express language of RPAPL § 1304. This, in turn, will necessarily result in the granting of Defendant's cross-motion.
The provisions of RPAPL § 1304 are mandatory and not discretionary. The language of RPAPL § 1304 is quite precise as to the requirements for the requisite pre-suit notice. The statute requires the lender to serve upon the mortgagor/obligor a written notice of default, by both ordinary and certified mail, in a form that is expressly prescribed by statute (including certain language, type size, lack of other notices, etc.). The notice must be served not less than ninety days prior to the commencement of any legal action, Emigrant Mortgage Co. Inc. v. Fitzpatrick 29 Misc 3d 746, rev'd 95 AD3d 1169 (2011) . Service of the required notice is a statutory condition precedent to the commencement of the action claiming foreclosure of the mortgage and the failure to demonstrate full and complete compliance therewith mandates dismissal of the action, Aurora Loan Services LLC v. Weisblum 85 AD3d 95 (2nd Dept. 2011) . Under the authority of US Bank National Association v. Carey 137 AD3d 894 (2nd Dept. 2016) , a defense sounding in non-compliance with the mandates of RPAPL § 1304 may be interposed at any stage of the proceeding. Hence, Defendant's reliance upon a defense arising under RPAPL § 1304 is both timely and appropriate in the present context.
Defendant asserts that the notice provided by Plaintiff's loan servicer fails to strictly comply with the mandates of RPAPL § 1304. More specifically, Defendant, conceding receipt of the notice by certified mail, first claims that the notice was not served by Plaintiff but instead through a "Walz Facility" and by an entity known as Walz Group Inc. No claim is made or advanced that Walz Group Inc. is in any manner related to or owned or controlled by Plaintiff. Moreover, the Affidavit from Plaintiff's officer, one Richard Penno, is wholly silent as to Walz Group Inc. No business records exception, as contemplated by CPLR § 4518, has been amply articulated insofar as Walz Group Inc. is concerned and therefore the Penno Affidavit is without evidentiary value as to this issue, Citibank N.A. v. Cabrera, 130 AD3d 861 (2nd Dept. 2015) .
Defendant further avers that the notice that was sent to her was done so in derogation of the statute in that it contained impermissible and conflicting language bundled with several other notices, none of which are permitted by RPAPL § 1304. These errors and omissions by Plaintiff render the notice defective as a matter of law, thereby subjecting the action to dismissal, Hudson City Savings Bank v. Depasquale 113 AD3d 599 (2nd Dept. 2014) .
Here, Plaintiff has failed to prove that the requisite notice was both provided and served in strict compliance with RPAPL § 1304. This, standing alone, warrants dismissal of the action, Citimortgage Inc. v. Pappas 147 AD3d 900 (2nd Dept 2017) . Therefore, the Court does not reach any of the other defenses and issues that were have been succinctly articulated by Defendant's counsel.
Accordingly, it is
ORDERED that the application of the Plaintiff (seq. 001) for summary judgment and an Order of Reference pursuant to CPLR § 3212 and RPAPL § 1321 is hereby denied in its entirety; and it is further
ORDERED that the cross-motion by Defendant MICHELE SILVERMAN (seq. 002) for an Order of dismissal for failure of Plaintiff to comply with RPAPL § 1304 is hereby granted; and it is further
ORDERED that this action shall be and is hereby dismissed; and it is further
ORDERED that upon payment of the proper fees by Plaintiff, the Clerk of Suffolk County shall cause the notice of pendency herein to be cancelled and discharged of record; and it is further
ORDERED that any relief not expressly granted shall be and the same is hereby denied.