Opinion
Index No. 810925/2021E
01-04-2024
CELESTE FERNANDEZ, et al. Plaintiffs, v. NATIONSTAR MORTGAGE LLC D/B/A CHAMPION MORTGAGE COMPANY, Defendant.
Unpublished Opinion
DECISION AND ORDER
Alison Y. Tuitt, Judge
Upon the foregoing papers, it is ordered that this motion (Mot Seq, No. 1) by plaintiffs for an Order pursuant to CPLR 3212 granting summary judgment against defendant (hereinafter 'Nationstar") and striking defendant's affirmative defenses, is denied.
In this action, plaintiffs seek to challenge the outcome of a prior foreclosure action by the defendant (Nationstar Mortgage LLC vs. Public Administrator of Bronx County as Administrator of the Estate of Emmett D. Willis, et al., Index # 35686/2018). In the prior action, plaintiffs answered (pro se and with the assistance of Bronx Legal Services) and included affirmative defenses that essentially form the basis of the complaint in this action. The prior action was ultimately settled, Nationstar moved to discontinue, and the prior action was discontinued by Order of this Court based on the payoff of the mortgage by the plaintiffs in this action, ostensibly following the plaintiffs' sale of the property in 2021 at a price of $490,000.
The Court takes judicial notice of the Real Property Transfer Report, RP-5217NYC (signed by plaintiff Ralph P. Willis and dated 1/28/21) found at ACRIS (https://a836-acris.nvc.gov/CP/) for the property that was the subject of the related foreclosure proceeding.
Plaintiffs then brought this action seeking to improperly "appeal" the outcome of the prior action and/or allege wrongful foreclosure by filing this complaint and seeking summary judgment. Plaintiffs claim that the foreclosure was defective and that defendant was somehow unjustly enriched by a ''judgment of foreclosure" and their payoff in the prior action.
In support of the instant motion for summary judgment, plaintiff submitted the Verified Complaint, defendant's Answer and plaintiffs' Affirmation. Citing Iandoli v. Lange, 35 A.D.2d 793 (1st Dept. 1970), plaintiffs argue that defendant's Answer is insufficient to raise a triable issue of fact.
In its opposition, defendant submits the various papers that were submitted in the prior foreclosure action, including the affidavit of Jason Syre- White, the Assistant Secretary of Nationstar Mortgage LLC as of May, 2019. Citing Zuckerman v. City of New York, 49 N.Y.2d 557, 563 (1980) defendant argues that plaintiffs failed to submit any affidavit of a person having personal knowledge of the facts that show that there is no defense to the cause of action; that plaintiffs failed to include a material statement of facts pursuant to 22 NYCRR §202.8-g; and that plaintiff tailed to allege the elements of a cause of action to recover for unjust enrichment.
In reply, plaintiffs assert a number of arguments that are somewhat confusing and not: material to whether plaintiffs meet the burden of summary judgment.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]; Friends of Thayer Lake LLC v Brown, 27 N.Y.3d 1039, 1-043 (2015]). failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824 [2014]).
First, aside from its procedural failings as set forth in the opposition, plaintiffs offer no evidence that there was a judgment of foreclosure because the prior action was discontinued by way of an Order of Discontinuance of Action and Cancellation of Notice of Pendency dated March 30, 2021 (Index # 35686/2018), Moreover, plaintiffs' arguments regarding defendant's general denial to plaintiff's imprecise and vague complaint and lack of verification are of little import, and are neither fatal to the defense, nor useful to sustain plaintiffs' burden.
The elements of an unjust enrichment claim are: (1) the defendant was enriched; (2) at the plaintiff's expense; and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. (See, Mandarin Trading Ltd. v. Wildenslein, 16 N.Y.3d 173). Generally, courts will look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change op position by the defendant, and whether the: defendant's conduct was tortious or fraudulent (Restatement, Restitution, §§ 1, 142, esp. Comment b; id., § 155, including Comment b). See also, Paramount Film Distrib. Corp. v. State, 30 N,Y.2d 415, 421 (1972). In this case, plaintiffs have not adequately described a benefit that defendant has obtained but simply allude to a payment that defendant characterizes as the payoff of a reverse mortgage which was owed to the defendant under: the agreement with plaintiffs' decedent. Plaintiffs did not appeal, move to vacate or otherwise seek to protest or resist the Order of March 30, 2021 in the prior action.
Finally, the plaintiff's motion must fail because plaintiffs' entire claim is barred by the doctrine of res judicata. In re Hunter, 4 N.Y.3d 260 ("once a claim is brought to a final conclusion, all other claims arising Out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy"). This matter has already been resolved in an underlying claim in which plaintiffs raised these issues as an affirmative defense and subsequently agreed to sell the property. These claims should have been pursued in that litigation.
Based on the foregoing, plaintiffs have failed to establish their prima facie showing of entitlement to summary judgment.
Accordingly, it is hereby:
ORDERED that the plaintiffs' motion for summary judgment is denied; and it is further
ORDERED the complaint is dismissed in its entirety.
This constitutes the Decision and Order of the Court.