Opinion
LT-006410-18NA
02-15-2019
DEUTSCHE BANK NATIONAL TRUST COMPANY FOR NEW CENTURY HOME EQUITY LOAN TRUSTEM SERIES 2005-C, Asset-Backed Pass-Through Certificates, Petitioner(s), v. Norma CORDOVA, "Jane" Cordova; Guadalupe Lleiba; Dennis Guzman; John Doe and Jane Doe, Respondent(s).
For Respondents: Brooks W. Taylor, Esq., Law Offices of Brooks W. Taylor, 5020 Sunrise Highway, Suite 224, Massapequa Park, New York 11762, (516) 590-7733 For Petitioner(s): Ellis M. Oster, Esq., Shapiro, Dicaro & Barak, LLC, 175 Mile Crossing Boulevard, Rochester, New York 14624, (585) 247-9000
For Respondents: Brooks W. Taylor, Esq., Law Offices of Brooks W. Taylor, 5020 Sunrise Highway, Suite 224, Massapequa Park, New York 11762, (516) 590-7733
For Petitioner(s): Ellis M. Oster, Esq., Shapiro, Dicaro & Barak, LLC, 175 Mile Crossing Boulevard, Rochester, New York 14624, (585) 247-9000
Scott Fairgrieve, J.
The following named papers numbered 1 to 3 submitted on this Motion to Dismiss on January 24, 2019
papers numbered
Notice of Motion and Supporting Documents 1
Order to Show Cause and Supporting Documents
Opposition to Motion 2
Reply Papers to Motion 3
Petitioner Deutsche Bank National Trust Company brought a holdover Petition against the Respondents Norma Cordova, "Jane" Cordova, Guadalupe Lleiba, Dennis Guzman, John Doe and Jane Doe. The holdover Petition, dated October 31, 2018, alleges that Respondent Norma Cordova previously held title to 1 Mitchell Court, Hempstead, New York. It is also alleged that all Respondents reside at the premises without permission from Petitioner.
This proceeding was commenced pursuant to RPAPL § 713.
Petition paragraph 4, alleges that a foreclosure sale was held pursuant to the Judgment of Foreclosure and Sale signed on April 23, 2018. The said premises was sold to Petitioner on September 4, 2018.
Paragraph 5 of the Petition alleges that Respondents were duly served with the Ten Day Notice to Quit.
Paragraph 6 of the Petition states that a certified copy of the Referee's Deed was exhibited to Respondents.
The Ten Day Notice to Quit and Tenant's Rights to Norma Cordova states that Petitioner became the owner of the premises. The Notice further states in part:
"TEN (10) DAY NOTICE TO QUIT
Deutsche Bank National Trust Company, as Trustee for New Century Home Equity Loan Trust, Series 2005-C, Asset Backed Pass-Through Certificates is now the owner of the Premises and demands that, within ten (10) days after service on you of this notice you and all occupants vacate and surrender possession of the Premises to Deutsche Bank National Trust Company for New Century Home Equity Loan Trustem Services 2005-C, Asset-Backed Pass-Through Certificates. Failure to remove therefrom and surrender possession will result in court proceedings being instituted against you. Please see Page 2 of this Notice for instructions on how to deliver possession.
***FAILURE TO COMPLY WITH THIS NOTICE TO QUIT WILL RESULT IN THE COMMENCEMENT OF SUMMARY PROCEEDINGS TO EVICT YOU FROM THE PREMISES***
Deutsche Bank National Trust Company, as Trustee for New Century Home Equity Loan Trust, Series 2005-C, Asset Backed Pass-Through Certificates, By Ocwen Loan Servicing, LLC, as attorney in fact
By: /s/ Jacqueline S. Michaelson
Title: Contract Management Coordinator
C/O Ocwen Loan Servicing, LLC
1661 Worthington Road, Suite 100
West Palm Beach, FL 33409"
Also attached is the Limited Power of Attorney, dated September 20, 2016. This document, executed by Deutsche Bank, appoints Ocwen Loan Servicing, LLC as Servicer and Attorney-in-Fact, as follows:
"LIMITED POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that Deutsche Bank National Trust Company, a national banking association organized and existing under the laws of the United States, and having its usual place of business at 1761 East St. Andrew Place, Santa Ana, California, 92705, as Trustee under and pursuant to the agreements (‘Agreements’) governing the trusts referenced on Exhibit A hereto (‘Trusts’), hereby constitutes and appoints Ocwen Loan Servicing, LLC as servicer (the ‘Servicer’), for the Trusts, by and through the Servicer's officers, the Trustee's true and lawful Attorney-in-Fact, in the Trustee's name, place and stead and for the Trustee's benefit, in connection with all mortgage loans serviced by the Servicer pursuant to the Agreements solely for the purpose of performing such acts and executing such documents in the name of the Trustee necessary and appropriate to effectuate the following enumerated transactions in respect of any of the mortgages or deeds of trust (the ‘Mortgages’ and the ‘Deeds of Trust’ respectively) and promissory notes secured thereby (the ‘Mortgage Notes’) for which the undersigned is acting as Trustee for various certificateholders (whether the undersigned is named therein as mortgagee or beneficiary or has become mortgagee by virtue of endorsement of the Mortgage Note secured by any such Mortgage or Deed of Trust) and for which Ocwen Loan Servicing, LLC is acting as the Servicer."
The Limited Power of Attorney specifically provides, in paragraph 2(g), the following authority to Ocwen:
"g. the preparation and service of notices to quit and all other documents necessary to initiate, prosecute and complete eviction actions or proceedings;"
Furthermore, paragraph 8 of the Limited Power of Attorney provides that Ocwen can institute eviction proceedings:
"8. The full enforcement of and preservation of the Trustee's interests in the Mortgage Notes, Mortgages or Deeds of Trust, and in the proceeds thereof, by way of, including but not limited to, foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or the termination, cancellation or rescission of any such foreclosure, the initiation, prosecution and completion of eviction actions or proceedings with respect to, or the termination, cancellation or rescission of any such eviction actions or proceedings, and the pursuit of title insurance, hazard insurance and claims in bankruptcy proceedings, including, without limitation, any and all of the following acts:"
Presently before the court is Respondent Norma Cordova's motion to dismiss, dated December 4, 2018, on the grounds that the Petitioner's Predicate Ten Day Notice is invalid. Respondent contends that the Ten Day Notice is invalid because:
"7. The 10 Day Notice to Quit served upon the respondent was issued on behalf of the petitioner by a party lacking the authority to do so. A copy of the 10 Day Notice to Quit and attached Limited Power of Attorney are annexed hereto as Exhibit 2.
8. It is well established that that an attorney or agent of the landlord must provide proof of his or her ability to bind the landlord when giving notice to terminate a tenancy. This rule is established in Seigel v. Kentucky Fried Chicken of Long Is. (108 AD2d 218 [2d Dept 1985], affd 67 NY2d 792 [1986] ), which states:
‘[A] notice of termination [of tenancy] signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and which is not authenticated or accompanied by proof of the [latter's] authority to bind the landlord in the giving of such notice, is legally insufficient to terminate the tenancy.’ ( 108 AD2d at 223.)
11. Here, the 10 day notice to quit (Ex. 2) was signed by Jacqueline S. Michaelson with the title of Contract Management Coordinator. The attached limited power of attorney (Ex. 2) does not specifically authorize Jacqueline S. Michaelson nor identify a list of title holders authorized to execute the notice. Further, it is not clear if the signor is an employee of the petitioner, Deutsche Bank, or Ocwen Loan Servicing, the purported party with authority to act.
12. Based on the foregoing, Jacqueline S. Michaelson does not have authority to issue a notice to quit in the matter and as such the notice is jurisdictionally defective."
In opposition, Petitioner submits counsel's Affirmation, dated January 3, 2019. Counsel posits that the Limited Power of Attorney "clearly and unequivocally" allows Ocwen to act in these eviction proceedings. Petitioner states that the 10 Day Notice to Quit is valid because:
"6. The 10 day notice to quit was evidently signed ‘By Ocwen Loan Servicing, LLC as attorney in fact’ for Petitioner in this case. The name of the employee of Ocwen Loan Servicing (hereinafter ‘Ocwen’) who signed the 10 day notice to quit is plainly identified as Jacqueline S. Michaelson, and her job title is clearly denoted as ‘Contract Management Coordinator’ of Ocwen. Ocwen's address is also provided under the signature line."
Petitioner states that the Limited Power of Attorney was attached to the 10 Day Notice to Quit. This is not disputed by Respondent.
Respondent submits counsel's Reply Affirmation, dated January 21, 2019, that the Limited Power of Attorney applies to "Ocwen Loan Servicing (Ocwen) only." Counsel further claims that the Kentucky Fried rule should apply and serves as a basis for dismissal.
Respondent states that while Ocwen may have authority to act, there is no proof that Jacqueline S. Michaelson had specific authority to "bind the Landlord." Specifically, paragraphs 5 and 6 of the Reply Affirmation state:
"5. Respondent argues that there was no power of attorney granted to Jacqueline S. Michaelson because proof of her authority to bind the landlord (Ocwen) was not included in the power of attorney attached to the notice to terminate. Thus, while Ocwen has authority to act as the landlord, no proof has been presented of Michaelson's authority to bind the landlord.
6. The court should find that implied employment alone is not sufficient to grant authority to Jacqueline S. Michaelson the act on behalf of Ocwen and require that any authority must be specifically granted consistent with the Kentucky Fried rule. "
DECISION
A corporation may act as agent for another corporation. See 3 AmJur 2d Agency § 12. A corporation must necessarily act through agents within the scope of their authority. See Bank of New York v. UBS Warburg LLC, 4 AD3d 112, 774 NYS2d:
"[A] corporation must necessarily act by agents, and they, ‘like natural persons, are bound only by the acts and contracts of their agents done and made within the scope of their authority" ( Jacobus v. Jamestown Mantel Co., 149 App. Div. 356, 362, 134 N.Y.S. 418 affd. 211 NY 154, 105 N.E. 210 quoting Alexander v. Cauldwell, NY 480, 485)."
In HSBC Bank USA v. Jeffers, 30 Misc 3d 1209(A), 958 NYS2d 646 (Table), 2011 WL 91379 (Dist Ct, Nassau County 2011), this Court invalidated a 10 day notice to quit because there was no indication that Joyce Reynolds had signing authority. Missing from the 10 day notice to quit was an indication that Joyce Reynolds was employed by Wells Fargo and her position with same.
The case at bar is distinguishable because the 10 day notice executed by Jacqueline S. Michaelson clearly indicates that she was employed by Ocwen as a Contract Management Coordinator. As noted above a corporation necessarily acts through agents. Thus, the 10 day notice served in the case is valid.
Respondent claims that the Kentucky Fried Chicken applies. This rule is summarized in Residential Landlord-Tenant Law in New York § 8:240 entitled "Notice to Quit—What It Must Contain" which states:
"In addition, the attorney signing the notice to quit must have documented authority to act for the landlord via the lease or the notice will be rendered defective. Washington Mutual Home Loans, Inc. v. Calderon, 9/25/2002 N.Y.L.J. 23, col 3 (Queens Co. Ct.) (quoting Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 N.Y.S.2d 744 (2d Dep't 1985), order aff'd, 67 NY2d 792, 501 N.Y.S.2d 317, 492 N.E.2d 390 (1986) : ‘A notice of termination signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and which is not authenticated or accompanied by proof of the latter's authority to bind the landlord in giving of such notice, is legally insufficient to terminate the tenancy.’)."
In Deutsche Bank National Trust Company v. Mark Resnik, 24 Misc 2d 1238(A), (Table) 2009 WL 2527279 (Dist Ct, Nassau County 2009), this Court dismissed the 10 day notice executed by an attorney because of lack of proof of his authority to sign same for the principal. See also GMAC Mortgage Corp. v. Toureau, 15 Misc 3d 1139(A), 841 NYS2d 820 (Dist Ct, Nassau County 2007) holding that notice to quit executed by the Petitioner's attorney was insufficient because there was no evidence that the attorney had attached an authorization to authenticate his authority to act on behalf of the principal.
In the case at bar, it is undisputed that the Limited Power of Attorney was attached to the 10 day Notice to Quit. This Limited Power of Attorney authenticates Ocwen's authority to act. Thus, the Kentucky Fried Chicken rule is inapplicable to the factual circumstances at bar.
U.S. Bank v. Ballin, 158 AD3d 786, 72 NYS3d (2d Dept 2018) cited by Respondent as support for dismissal, is not applicable here. Suffice to say that Ballin dealt with the sufficiency of an affidavit for the consideration of business records on a summary judgment motion.
CONCLUSION
The Respondent's motion to dismiss is denied. This case is scheduled for trial on March 7, 2019, at 9:30 a.m., is marked final, and is not to be adjourned except by order of this court.
So Ordered: