Opinion
No. 24566/2007
10-02-2023
Bank of New York AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2006-6, Plaintiff, v. Heather Y. Harper A/K/A HEATHER HARPER CLINTON; PEOPLE OF THE STATE OF NEW YORK; AMPARO VEGA; CHRISTINA VEGA, Defendants.
DAVIDSON FINK LLP Attys. For Plaintiff HEATHER HARPER Self Represented Defendant
Unpublished Opinion
DAVIDSON FINK LLP Attys. For Plaintiff
HEATHER HARPER Self Represented Defendant
Thomas F. Whelan, J.
Upon the following papers numbered as indicated and read on this motion for Judgment of Foreclosure and Sale and cross motion; Notice of Motion/Order to Show Cause and supporting papers: NYSCEF Doc. Nos. 9 - 32; Notice of Cross Motion and supporting papers: NYSCEF Doc. 45 - 51; Opposing papers: NYSCEF Doc. 60 - 68; NYSCEF Doc. 76-77; Reply papers: NYSCEF Doc. No. 79 - 82; Other NYSCEF Doc. 70 - 75; (and after hearing counsel in support and opposed to the motion, it is
ORDERED that this motion (#005) by the plaintiff for, inter alia, leave to enter a judgment of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law (RPAPL) §1351, is granted, and it is further
ORDERED that the cross-motion (#007) by defendant Heather Harper, through attorney-in-fact named Jovanni - Giuseppe:whyte bey seeking dismissal of the complaint is denied; and it is further
ORDERED that the additional motion (#008) by defendant Heather Harper, through attorney-in-fact Jovanni - Giuseppe:whyte bey seeking an order cancelling the notice of pendency filed on November 22, 2022 is denied; and it is further
ORDERED that the additional motion (#009) by the plaintiff seeking to strike the pleadings of attorney-in-fact Jovanni - Giuseppe:whyte bey on behalf of Heather Harper is granted in its entirety; and it is further
ORDERED that the proposed order submitted by the plaintiff, as modified by the Court, is signed simultaneously herewith; and it is further
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2).
This is an action for foreclosure on residential property located in Amityville. By way of background, on June 5, 2017, defendant Heather Harper borrowed $300,000.00 from defendant Bank of New York as Trustee for the Certificateholders of CWABS, Inc. Asset-backed Certificates, Series 2006-6 (Bank of NY), successor in interest to lender America's Wholesale Lender, and executed a promissory note and mortgage. Since May, 1, 2006 - over seventeen years ago - no payments have been made on the monthly installments due and owing. This action was therefore commenced by filing on August 9, 2007. No defendants filed an answer or otherwise appeared, and plaintiff's motion (#001) for an Order of Reference in Foreclosure Action was granted without opposition on July 22, 2008 (Spinner, J.S.C.). On June 12, 2012, the Court issued an order directing counsel to appear for a status conference on July 16, 2012. No one appeared on that date and, on November 21, 2012, the foreclosure action was dismissed as a result of the plaintiff's "fail[ure] and neglect[] to comply with the express directives of the Court... to resume prosecution of the action" (Spinner, J.S.C.) ("Dismissal Order"). The plaintiff thereafter filed a motion to (#002) vacate the dismissal order, which was dismissed as moot by Order dated June 27, 2014 (Spinner, J.S.C.), as the Court held the "matter has been disposed and the case closed."
Plaintiff filed a Notice of Appeal of the Order and, on October 16, 2019, the Appellate Division Second Department issued a decision reversing the Dismissal Order. A substitute referee was thereafter appointed by Order dated February 24, 2020. On July 13, 2022, plaintiff filed the instant motion (#005) for confirmation of referee Scott Siller, Esq.'s report and leave to enter a judgment of foreclosure and sale of the subject property incorporating the referee's findings. The plaintiff's submissions include a Referee's Report of amount due, copies of the note and mortgage, and an accounting of the plaintiff's attorneys' costs in prosecuting this action. Shortly thereafter, on August 26, 2022, defendant's counsel filed an order to show cause (#006) seeking to withdraw as attorney for defendant Heather Harper. While the order to show cause was pending, defendant Harper, not through her retained counsel but instead through an attorney-in-fact named Jovanni - Giuseppe:whyte bey, filed a motion (#007) seeking vacatur and dismissal of the complaint. Counsel's motion to be relieved (#006) was granted on October 27, 2022, and the action was stayed for thirty days to provide the defendant the opportunity to retain new counsel. Upon the expiration of the stay period, the defendant was deemed to be proceeding pro se as she did not retain new counsel.
While the motions were pending, defendant Harper, through attorney-in-fact Jovanni - Giuseppe:whyte bey, filed an additional motion (#008) seeking to cancel the notice of pendency filed on November 23, 2022. Shortly thereafter, the plaintiff filed a motion (#009) to strike the pleadings filed by Jovanni - Giuseppe:whyte bey as attorney in fact on behalf of Harper. All motions have been briefed and submitted for decision.
The Court first addresses plaintiff's motion (#009) to strike the defendant's pleadings, as such may render consideration of motion sequences #007 and #008, academic.
"New York law prohibits the practice of law in this State on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purportedly conferred by execution of a power of attorney" (Discover Bank v Gilliam, 199 A.D.3d 645, 646, 156 N.Y.S.3d 391 [2d Dept 2021], citing People ex rel. Field on Behalf of Field v. Cronshaw, 138 A.D.2d 765, 765, 526 N.Y.S.2d 579 [2d Dept 1988]). Likewise, "[a] person not licensed to practice law in the State of New York... may not appear pro se in court on behalf of a litigant as an attorney-in-fact pursuant to a power of attorney. A person who does so has unlawfully engaged in the unauthorized practice of law" (Whitehead v Town House Equities, Ltd., 8 A.D.3d 369, 370, 777 N.Y.S.2d 917 [2004]).
Each of defendant Harper's submissions since September 19, 2022 has been by attorney-in-fact, Jovanni - Giuseppe:whyte bey. In fact, motion sequence #007 was submitted while Harper was still represented by prior counsel. Nevertheless, "[t]he designation as an attorney-in-fact under General Obligations Law §§ 5-1502A-N does not confer upon a designated agent the right to provide representation as an attorney-at-law, and 'cannot be read to displace the provisions of Judiciary Law § 478'" (Discover Bank v Gilliam, 199 A.D.3d at 646-47, supra, citing Whitehead v. Town House Equities, Ltd., 8 A.D.3d at 370, supra).
Here, Jovanni - Giuseppe:whyte bey appears for defendant Harper solely as attorney-in-fact. As such, and in accordance with the above, the Court finds that such constitutes the unauthorized practice of law. Therefore, the Court grants the plaintiff's motion (#009), and all pleadings filed by Jovanni - Giuseppe:whyte bey as attorney in fact on behalf of Harper are hereby stricken.
The Court has reviewed the plaintiff's submissions and finds same have established its entitlement to a judgment of foreclosure and sale, namely the referee's findings and report (see U.S. Bank N.A. v Saraceno, 147 A.D.3d 1005, 48 N.Y.S.3d 163 [2d Dept 2017]; Mortgage Elec. Registration Sys., Inc. v Holmes, 131 A.D.3d 680, 17 N.Y.S.3d 31 [2d Dept 2015]; HSBC Bank USA, N.A. v Simmons, 125 A.D.3d 930, 5 N.Y.S.3d 175 [2d Dept 2015]). No hearing was required (see Wells Fargo Bank v Zelaya, 56 Misc.3d 1219[A], 2017 NY Slip Op. 51068[U]). Although the court is not bound by the referee's findings, the report of a referee should be confirmed whenever the findings are substantially supported by the record (see Citimortgage, Inc. v Kidd, 148 A.D.3d 767, 49 N.Y.S.3d 482 [2d Dept 2017]; Matter of Cincotta, 139 A.D.3d 1058, 32 N.Y.S.3d 610 [2d Dept 2016]; Hudson v Smith, 127 A.D.3d 816, 4 N.Y.S.3d 894 [2d Dept 2015]). The Court finds so in this case and the defendant has failed to submit any proof to the contrary.
The portion of the plaintiff's motion seeking attorney's fees is also granted, as the terms of the subject loan documents allow for same. Here, the plaintiff has supplied the Court with an affirmation of services totaling $5,225.00. The Court finds this amount to be reasonable and will award the plaintiff same (see Vigo v 501 Second Street Holding Corp., 121 A.D.3d 778, 994 N.Y.S.2d 354 [2d Dept 2014].
The Court, therefore, grants the plaintiff's motions (#005, #009) in their entirety and denies the defendant's cross-motions (#007, #008). The proposed judgment has been signed, as modified.