Opinion
No. 2103–2010.
2010-09-9
GMAC MORTGAGE LLC, Plaintiff(s), v. Jose MUNOZ; Mortgage Electronic Registration Systems, Inc., as nominee for Homecomings Financial Network, Inc. “John Doe # 1–5” and “Jane Doe # 1–5 said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendant(s).
Fein, Such & Crane, LLP, Chestnut Ridge, for plaintiff. Jose Munoz, Defendant pro se.
Fein, Such & Crane, LLP, Chestnut Ridge, for plaintiff. Jose Munoz, Defendant pro se.
PETER H. MAYER, J.
It is ORDERED that plaintiff's application (seq.# 001) for an order of reference in this foreclosure action is considered under 2009 N.Y. Laws, Ch. 507, enacted December 15, 2009, and 2008 N.Y. Laws, Ch. 472, enacted August 5, 2008, as well as the related statutes and case law, and is hereby denied without prejudice and with leave to resubmit upon proper papers, for the reasons set forth herein; and it is further
ORDERED that the plaintiff shall promptly serve a copy of this Order upon the defendant-homeowner(s) at all known addresses and upon all other answering defendants, via first class mail, and shall promptly file the affidavit(s) of such service with the County Clerk and annex a copy of this Order and the affidavit(s) of service as exhibits to any motion resubmitted pursuant to this Order; and it is further
ORDERED that with regard to any scheduled court conferences or future applications by the plaintiff, if the Court determines that such conferences have been attended, or such applications have been submitted, without proper regard for the applicable statutory and case law, or without regard for the required proofs delineated herein, the Court may, in its discretion, dismiss this case or deny such applications with prejudice and/or impose sanctions pursuant to 22 NYCRR § 130–1, and may deny those costs and attorneys fees attendant with the filing of such future applications.
In this foreclosure action, the plaintiff filed a summons and complaint on January 13, 2010, which essentially alleges that the defendant-homeowner, Jose Munoz, defaulted in payments with regard to a mortgage, dated April 21, 2006, in the principal amount of $332,000.00 for the premises located at 40 Sand Lane, Islandia, New York 11749. The original lender, Homecomings Financial Network, had the mortgage assigned to the plaintiff by assignment dated January 6, 2009. According to the court's database, a foreclosure settlement conference was held on April 9, 2010. The plaintiff now seeks a default order of reference and requests amendment of the caption to substitute certain tenant(s) in the place and stead of the “Doe” defendants. The plaintiff's application is denied for failure to submit evidentiary proof, including an affidavit or affirmation from one with personal knowledge, of compliance with the type-size and content requirements of RPAPL § 1304 regarding the pre-commencement notice required in foreclosure actions, as well as an affidavit of proper service of such notice by registered or certified mail and by first class mail to the last known address of the borrower as required by RPAPL § 1304(2) or, in the alternative, an affidavit from one with personal knowledge sufficient to show why the requirements of RPAPL § 1304 do not apply.
The plaintiff has identified the subject loan as a non-traditional home loan. For foreclosure actions commenced on or after September 1, 2008, RPAPL § 1304 requires that, with regard to a “high-cost home loan,” a “subprime home loan” or a “non-traditional home loan,” at least 90 days before a lender or mortgage loan servicer commences legal action against the borrower, the lender or mortgage loan servicer must give the borrower a specific, statutorily prescribed notice. In essence, the notice warns the borrower that he or she may lose his or her home because of the loan default, and provides information regarding assistance for homeowners who are facing financial difficulty. The specific language and type-size requirements of the notice are set forth in RPAPL § 1304(1).
Pursuant to RPAPL § 1304(2), the requisite 90–day notice must be “sent by the lender or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and if different, to the residence which is the subject of the mortgage. Notice is considered given as of the date it is mailed.” The notice must also contain a list of at least five housing counseling agencies approved by the U.S. Department of Housing and Urban Development, or those designated by the Division of Housing and Community Renewal, that serve the region where the borrower resides, as well as the counseling agencies' last known addresses and telephone numbers. Pursuant to RPAPL § 1304(3), the 90–day period specified in RPAPL § 1304(1) does not apply “if the borrower has filed an application for the adjustment of debts of the borrower or an order for relief from the payment of debts, or if the borrower no longer occupies the residence as the borrower's principal dwelling.”
Here, paragraph “SIXTH” of the plaintiff's complaint states that, “[i]n accordance with RPAPL Section 1304, a 90 day notice was sent to the borrower which has now expired.” Such vague, boilerplate language, particularly in a complaint verified by an attorney without personal knowledge, is not sufficient to show that the plaintiff has complied with RPAPL § 1304. Without an affidavit or affirmation from one with personal knowledge of compliance with the specific requirements of RPAPL § 1304 or, in the alternative, an affidavit sufficient to show why the requirements of § 1304 do not apply, the Court may not grant an order of reference.
This constitutes the Decision and Order of the Court.