Opinion
No. 2015–000728.
02-02-2017
The BANK OF NEW YORK MELLON fka The Bank of New York, as Trustee for the Certificate Holders of the CWABS, Inc., Asset–Backed Certificates, Series 2006–15, Plaintiff, v. Arnold FRAZIER; Monique Frazier, Clover Commercial Corp. ; Chassity Frazier; Ambrie Frazier, Defendants.
Davidson Fink, LLP, for Plaintiff. Christopher Esposito, Esq., for Defendants.
Davidson Fink, LLP, for Plaintiff.
Christopher Esposito, Esq., for Defendants.
MARIA S. VAZQUEZ–DOLES, J.
The following papers numbered 1–7 were read on Plaintiff's motion for a Judgment of Foreclosure and Sale on this owner-occupied residence;
| Notice of Motion/Affirmation of Erinn K. Prestidge, Esq., dated 9/14/16 (includes Affirmation of attorney fees/Exhibits–untabbed | 1–4 |
| Affirmation on Opposition of Christopher L. Esposito, Esq., dated 11/10//16 | 5 |
| Reply Affirmation of Larry Powell, Esq., dated 11/16/16/ Exhibit A | 6–7 |
PROCEDURAL HISTORY
This action to foreclose on the property known as 37 Crane Road, Middletown, N.Y. 10941, was commenced by the filing of a Summons and complaint on February 2, 2015. Issue was joined by the service of an Answer on March 5, 2015. The matter was assigned to the foreclosure settlement part before the Hon. John Lindstrom, Court Attorney Referee, who conferenced the matter from April 13, 2015 to October 1, 2015. The five conference dates with the settlement part did not resolve the matter, and a motion for Summary Judgment and an Order of Reference was filed on March 30, 2016, with a return date of May 12, 2016. The matter was thereafter assigned to this part. On May 10, 2016, the Court received a fax letter request from Defendant's counsel seeking to adjourn the motion for summary judgment, on consent. The letter was rejected with instructions to use the Part form for adjournments found in the Part Rules which gives the Court reasons for the request. Counsel failed to fax the proper form requesting an adjournment of the motion, and never filed opposition to the motion. Plaintiff's motion was granted, upon default, and signed on May 25, 2016.
A referee was assigned, completed his report, and Plaintiff now moves to confirm the referee's report and for a judgment of foreclosure and sale. Defendant opposes this motion on the grounds that the referee filed the report without giving Defendant notice and an opportunity to be heard. Defendant argues that CPLR § 4313 requires notice to the Defendant unless Defendant waives this notice or the Court directs differently in the Order of Reference. In response, Plaintiff argues that no notice is necessary when Defendant defaults on the original motion, or in the alternative, that the Order of Reference waives that requirement.
ANALYSIS
Upon a review of the law and all the arguments rendered herein, Plaintiff's motion must be granted. CPLR § 4313 does require a referee to give notice of the hearing to Defendant. (See 243 W. 98th Condominium v. Shapiro, 12 AD3d 591, 592 [2d Dept 2004], (where the court stated "It was error for the referee to compute the amount due to the plaintiff without holding a hearing on notice to the appellants (citing CPLR 4313 ; Federal Deposit Ins. Corp. v. 65 Lenox Rd. Owners Corp., 270 A.D.2d 303 [2000] ; Adelman v. Fremd, 234 A.D.2d 488, 489 [1996] ; Stein v. American Mtge. Banking, 216 A.D.2d 458 [1995] ; Shultis v. Woodstock Land Dev. Assoc., 195 A.D.2d 677 [1993] )). However, "... no hearing is required where a defendant waives his or her right to notice of the hearing by admitting the default and the amount due in his or her answer or otherwise." LBV Prop. v. Greenport Dev. Co., 188 A.D.2d 588, 591 N.Y.S.2d 70 [2d Dept 1992]. In the instant case, Plaintiff argues that Defendants' waived their rights by defaulting on the motion for summary judgment for the order of reference. Therefore there was a waiver of Defendant's right to notice of the hearing.
See also the second Ordered paragraph in the Order of Reference which states in part "... waiver of all ... notices ... except sale ...". (Order dated May 25th, 2016.)
Even in the absence of a waiver, the failure to conduct a hearing on due notice to appearing parties, does not necessarily warrant remitting the matter back to the referee to hold a hearing. Where there is a reference to hear and report, such as in this case, Supreme Court remains the arbiter of the facts, and the proper procedure to contest the referee's report is a motion to reject that report pursuant to CPLR § 4403. (See Fed. Deposit Ins. Corp. v. 65 Lenox Rd. Owners Corp., 270 A.D.2d 303, 304 [2d Dept 2000] ). Here, Defendants have failed to make such a motion. Instead, they have only filed an opposition to the motion for Judgment and Sale by affirmation of counsel, with broad, conclusory language of notice and opportunity to be heard. This opposition is devoid of any specifics which would allow this Court to deem the opposition papers a cross-motion. The Defendants have failed to support their opposition with non-hearsay allegations of facts by the parties themselves, or any substantive proof, supporting the need for a hearing.
References to hear and report on foreclosure matters are advisory only, which leaves the court as the ultimate arbiter of the issues referred (see CPLR 4311 ; Shultis v. Woodstock Land Dev. Assoc., 195 A.D.2d 677, 599 N.Y.S.2d 340 [3d Dept 1993] ).
Although unsubstantiated, Defendants' arguments sound more like those of bad faith on the part of the Plaintiff. However, Defendants have submitted no evidence of bad faith to support this allegation, therefore the Court may not consider this allegation. Furthermore, even if bad faith on the part of a foreclosing plaintiff had been established, "... such bad faith does not give rise to a defense to the foreclosure action or other basis for preventing the plaintiff from enforcing the terms of its mortgage." Citibank, N.A. v. Van Brunt Props., LLC, 95 AD3d 1158, 1159 [2d Dept 2012] ; see also Indymac Bank, F.S.B. v. Yano–Horoski, 78 AD3d 895, 912 N.Y.S.2d 239 [2d Dept 2010] ). Instead, if Defendant had proven such bad faith, that conduct may constitute grounds for the court to impose some form of sanction, including a toll on interest otherwise collectable by the plaintiff under the terms of the loan documents. (See U.S. Bank Natl. Ass'n v. Smith, 123 AD3d 914, 999 N.Y.S.2d 468 [2d Dept 2014] ). There is thus no duty on the part of a lender or its successor-in-interest to modify the terms of a loan. Instead, there is a statutorily imposed duty upon the plaintiff and the borrower in mortgage foreclosure actions to engage in good faith negotiations to resolve the claim by a settlement that is aimed at keeping the borrower in his or her home, if possible (see CPLR 3408 ; U.S. Bank, N.A. v. Sarmiento, 121 AD3d 187 [2d Dept.2014] ; Bank of New York v. Castillo, 120 AD3d 598 [2d Dept 2014] ; Flagstar Bank, FSB v. Titus, 120 AD3d 469[2d Dept 2014] ). Accordingly, it is hereby
ORDERED that Plaintiff's motion for confirmation of the referees report and a judgment of foreclosure and sale is granted.
Counsel for Plaintiff is directed to submit a new proposed Order, on notice of settlement consistent with this Decision.
The foregoing constitutes the Decision and Order of this Court.
Any matters not specifically addressed have been considered and denied.