Opinion
28701/2008.
Decided December 13, 2010.
Kleinman, Saltzman Bolnick, P.C., by Laurence D. Kleinman, Esq., New City, New York, for the Plaintiff.
Buel Penelope Manning: Hopkins Law Group, L.L.C., by Everett Hopkins, Esq., Springfield Gardens, New York, for the Defendant.
Avis Willacy: Della Mura Ciacci, LLP, by Walter F. Ciacci, Esq., Bronx, New York, for the Defendant.
Plaintiff moves, pursuant to CPLR 3212, for summary judgment to dismiss the answer of defendant Buel Penelope Manning, s/h/a Buel Penelope Manning as administratrix of the Estate of Noel George Manning.
Plaintiff commenced this action seeking foreclosure of a mortgage dated February 19, 2008, given by defendant Avis M. Willacy, as fee owner of the premises known as 216-18 135th Avenue, Laurelton, in Queens County, New York, to Countrywide Bank, FSB, to secure repayment of a note, evidencing a loan in the principal amount of $417,000.00, with interest.
Plaintiff alleges that it is the holder of the mortgage and note pursuant to an assignment, and defendant Willacy defaulted under the terms of the mortgage and note by failing to make the monthly mortgage installment payment due and owing on June 1, 2008. Plaintiff also alleges that it elected to accelerate the entire mortgage debt. Plaintiff named Manning, in her capacity as the administrator of the Estate of Noel George Manning, as a party defendant, because she had filed a notice of pendency with respect to the subject property on May 5, 2008.
The notice of pendency was filed in relation to an action, entitled Manning v Forest (Supreme Court, Queens County, Index No. 11228/2008). Manning commenced that action (Index No. 11228/2008), pursuant to article 15 of the RPAPL, in her capacity as administrator of the Estate of Noel George Manning seeking, among other things, to set aside the deed dated February 19, 2008, from Valerie Forrest to Willacy and to cancel the Countrywide mortgage as of record. By order dated July 28, 2010, and entered on August 3, 2010, the Hon. Robert J. McDonald, J.S.C., directed Manning, among other things, to join Countrywide Bank, FSB as a party defendant to that action.
Defendant Manning served an answer, denying certain allegations of the complaint, and asserting various affirmative defenses based upon her claim that the subject property was previously owned by the Estate of Noel George Manning, and Glenmore Maynard, a nonparty. According to defendant Manning, she is the personal representative of the Estate of Noel George Manning, and at the time of the death of her decedent, the property was subject to a mortgage, which was in arrears. Defendant Manning claims she was advised by her then attorney that she could not qualify for a suitable mortgage in her own name. She also claims she entered into an agreement with Valerie Forest, a family friend, whereby Forest would hold record title to the property and obtain a mortgage loan, which proceeds would be used to satisfy the prior mortgage and the Estate debts, and Manning would be responsible for paying the new mortgage, as well as all repairs and maintenance of the property.
Defendant Manning admits she executed a deed dated April 20, 2005, transferring title to Valerie Forest, but claims that by doing so, she never intended to sell the property to Valerie Forest. In addition, defendant Manning claims that she was fraudulently induced to transfer title to Valerie Forest based upon Forest's misrepresentations that Manning could reacquire the property at any time, and Forest would not sell the premises. Defendant Manning further claims that without her knowledge and consent, Valerie Forest transferred title to the property to defendant Willacy, who in turn, encumbered the property with the subject mortgage.
Plaintiff asserts it rejected and returned an "amended" verified answer to defendant Willacy as having been untimely served.
Plaintiff previously moved, pursuant to CPLR 3212, "to dismiss" the answer of defendant Manning. Plaintiff asserted that the affirmative defenses asserted by defendant Manning in her answer lacked merit. By order dated December 14, 2009, the motion was denied without prejudice to renewal. The Court determined that plaintiff had failed to provide it with a statement indicating whether the action fit the criteria for inclusion in the residential foreclosure program, i.e., whether the loan in foreclosure was a "subprime home loan" as defined in RPAPL 1304 or "high-cost home loan" as defined in Banking Law § 6- 1 ( see "Subprime Lending Reform Act," L 2008, ch 472). In addition, the Court noted that effective May 1, 2009, any application submitted to a court, involving a foreclosure action, where a mandatory settlement conference is required pursuant to CPLR 3408, must also contain a copy of the Residential Foreclosure Conference order affixed to the front of the application.
Plaintiff now moves again "to dismiss" the answer of defendant Manning pursuant to CPLR 3212, although CPLR 3212 addresses motions for summary judgment. Plaintiff contends Manning is neither the mortgagor, record owner of the subject premises, nor a resident of the property. Plaintiff also contends that any claimed ownership interest by defendant Manning is subordinate and subject to its mortgage lien, and that Countrywide Bank, FSB, was a bona fide encumbrancer for value without knowledge of any fraud committed by Valerie Forest. In support of this motion, plaintiff offers, among other things, a statement by its counsel that "THIS ACTION DOES NOT FIT THE CRITERIA FOR INCLUSION IN THE RESIDENTIAL FORECLOSURE PROGRAM."
Defendant Manning opposes the motion asserting that she resided at the subject premises "continuously for years," and that plaintiff failed to exercise due diligence when making the mortgage loan to defendant Willacy. Defendant Willacy has not appeared in relation to the motion.
CPLR 3408, as amended (L 2009, c 507, § 25, subd e), provides that a court hold a mandatory settlement conference in any residential foreclosure action involving a "home loan" as defined pursuant to RPAPL 1304, in which " the defendant" (emphasis supplied) is a "resident" of the property subject to foreclosure. RPAPL 1304, as amended (L 2009, c 507, § 1-a) defines "home loan" to mean:
(5)(a) Home loan' means a loan, including an open-end credit plan, other than a reverse mortgage transaction, in which:
(i) The borrower is a natural person;
(ii) The debt is incurred by the borrower primarily for personal, family, or household purposes;
(iii) The loan is secured by a mortgage or deed of trust on real estate improved by a one to four family dwelling, or a condominium unit, in either case, used or occupied, or intended to be used or occupied wholly or partly, as the home or residence of one or more persons and which is or will be occupied by the borrower as the borrower's principal dwelling; and
(iv) The property is located in this state.
(L 2009, c 507, § 25, subd a).
In this instance, the subject mortgage describes the property as improved by a one or two-family residence or dwelling. It is unclear from these papers whether defendant Willacy, the named mortgagor, resides in the property. The amended verified answer of defendant Willacy does not specifically address whether Willacy is a resident at the premises, and plaintiff has failed to establish defendant Willacy is not in residence there or is in residence elsewhere.
Accordingly, the motion is denied with leave to renew following a mandatory conference pursuant to CPLR 3408 at which time defendant Willacy may present, among other things, evidence that she resides in the subject premises. See generally Butler Capital Corp. v. Cannistra , 26 Misc 3d 598 [Sup. Ct. Suffolk County 2009] [mandatory settlement conference was required]. Plaintiff's counsel is directed to contact the Residential Foreclosure Conference Part at 718-298-1092 to arrange for the court's scheduling of the conference and sending of the requisite notices. Upon renewal of the motion, plaintiff shall include a copy of the residential foreclosure conference order affixed to the front of the application, or in the event no order is issued due to a default by defendant Willacy in appearance at the conference, plaintiff shall include an attorney's affirmation to such effect.
The foregoing constitutes the decision, order, and opinion of the Court.