Opinion
Index No. No. 63543/2019 Seq. No. 3
05-25-2022
BOARD OF DIRECTORS OF GREEN BRIAR HOMEOWNERS ASSOCIATION, INC., Plaintiff, v. JENNIFER C. WALLACE, MTGLQ INVESTORS, L.P., NEW YORK STATE BOARD OF ELECTIONS, DUNRITE CONSTRUCTION II CORP., Defendants.
Unpublished Opinion
DECISION AND ORDER
HON. DAMARIS E. TORRENT, A.J.S.C.
This is an action to foreclose a lien for unpaid common charges on a condominium unit owned by the defendant Jennifer C. Wallace (now known as Jennifer Chisholm) (defendant). By Decision and Order dated December 2, 2020 (Hon. Joan B. Lefkowitz, J.S.C.), plaintiffs unopposed motion for default judgment against defendant was granted. Defendant thereafter moved by Order to Show Cause for an order vacating her default and dismissing the action for lack of personal jurisdiction or, in the alternative, granting defendant leave to serve and file an answer to the complaint.
By Decision and Order dated April 28, 2021 (Hon. Joan B. Lefkowitz, J.S.C.), defendant's application was granted to the extent that the matter was set down for Traverse Hearing. The matter was assigned to this Part on or about September 22, 2021 for the purpose of conducting the Traverse Hearing. Traverse Hearing was held on October 21, 2021. After the hearing, the Court found that service of process was properly effected upon defendant. The balance of defendant's application to vacate her default was denied by Decision and Order dated November 15, 2021 (Hon. Joan B. Lefkowitz, J.S.C.). Money Judgment and Judgment of Foreclosure and Sale was signed that date and entered by the Clerk on November 16, 2021. A Referee's Notice of Sale in Foreclosure scheduled a foreclosure auction for May 26, 2022.
Defendant filed a proposed Order to Show Cause on May 23, 2022, seeking a Temporary Restraining Order (TRO) staying the scheduled foreclosure sale and prohibiting plaintiff from taking any steps to enforce its money judgment pending determination of defendant's application to the New York State Homeowner Assistance Fund and, in the event such application is denied, further staying the action to allow defendant an opportunity to negotiate a payment plan with plaintiff.
Argument on the application for a TRO was held on May 24, 2022, Defendant expressed that she is not seeking to avoid her obligation to pay the subject debt; rather, she seeks a stay of the foreclosure sale in order to save her home while permitting her to pursue every avenue to ensure payment of the amounts due to plaintiff. Plaintiff appeared by counsel and argued that defendant has not set forth any legal basis for a stay in this matter, and that the balance of the equities on the application for a TRO favors plaintiff.
The Court declines to sign the Order to Show Cause. The Court reluctantly declines to grant a stay. The Court is constrained to uphold the law, even in an action grounded in equity. The Court is sympathetic to defendant's situation, but the defendant has advanced no reasonable expectation that she can obtain the funds to pay the amount of the judgment, nor even make a good faith payment or negotiate a payment plan. A defendant's desire to negotiate a payment plan is not a legal basis to stay the foreclosure sale (see Nationstar Mtge. LLC v Dipompo, 2017 NY Misc. Lexis 7883 [Sup Ct, Dutchess County, July 11, 2017] [Rosa, J.]). While defendant applied for a grant, she did not do so until January 2022, well after a traverse hearing was held and denied. There was no showing of a reasonable expectation that any grant would be awarded. The Court particularly notes that in 2020, before granting a default judgment, Justice Lefkowitz afforded the defendant ample time and opportunity to avail herself of the use of a housing counselor. Time has continued to pass, and the defendant has failed to obtain a pension loan, place the unit on the market, seek collection of debts from her ex-husband, or take other viable, concrete steps to avoid a judicial sale. Should this court stay the sale, it would be favoring the defendant over her fellow homeowners without any lawful or practical basis to believe that anything would be accomplished other than delaying an inevitable judicial sale. The Court therefore must decline to grant a stay.
Accordingly, it is hereby
ORDERED that defendant's application (Seq. No. 3) for an order staying the foreclosure sale in this matter is denied.
The foregoing constitutes the Decision and Order of the Court.