Opinion
131794/2010
07-02-2015
Green Tree Servicing, LLC, Plaintiff, v. Loida H. Edwards, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, WOODMONT WEST HOMEOWNERS ASSOCIATION, INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, "John Doe No.1" through "John Doe #12", the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons, or corporations, if any, having or claiming an interest in or lien upon the premises, described in the Complaint, Defendants.
Upon the foregoing papers, plaintiff's motion, inter alia, for a judgment of foreclosure and sale is granted and the cross motion of defendant, Loida H. Edwards, for leave to renew is denied.
This action was commenced by Green Tree Servicing, LLC on December 10, 2010 to foreclose a mortgage on real property located at 41 Adrianne Lane, Staten Island, New York, executed by defendant Loida H. Edwards (hereinafter, "defendant") in favor of plaintiff's predecessor-in-interest, National City Mortgage a division of National City Bank, on February 18, 2008, to secure a note of even date given in favor of the latter in the principal sum of $390,000.00. It is alleged in the complaint that Ms. Edwards defaulted on the loan agreement by failing to pay the monthly mortgage installments due on December 1, 2008 and thereafter. Sixteen months after this action was commenced, defendant interposed a pro se answer dated May 14, 2012, asserting a general denial and two affirmative defenses including plaintiff's lack of standing and plaintiff's purported failure to deliver two copies of a 90-Day Pre-Foreclosure Notice pursuant to RPAPL 1304.
On or about January 14, 2014, plaintiff Green Tree Servicing, LLC (hereinafter, "Green Tree"), moved, inter alia, (1) for summary judgment striking the answer of defendant Edwards, (2) for a default judgment against the non-appearing defendants, (3) for the appointment of a referee to compute, and (4) to amend the caption to substitute the name of the current holder of the subject mortgage and note, i.e., PNC Mortgage, a division of PNC Bank N.A. (hereinafter, "PNC Mortgage"), in the place of the current plaintiff, Green Tree. Defendant Edwards submitted pro se papers in opposition to the motion and in [sur] reply. On June 13, 2014, this Court granted plaintiff's motion in its entirety.
Insofar as it appears on the papers before the Court, by Assignment of Mortgage dated August 21, 2010, PNC Bank National Association, a Successor By Merger of National City Mortgage, a division of National City Bank, assigned the subject mortgage to plaintiff Green Tree. Subsequent to the commencement of this action, by Assignment of Mortgage dated May 1, 2012, Green Tree assigned said mortgage to PNC Mortgage, a division of PNC Bank, N.A.
Presently before the court is a motion (No. 771-003) by the current plaintiff, PNC Mortgage, a division of PNC Bank, N.A., for a Judgment of Foreclosure and Sale, and a cross motion (No. 1604-004) by defendant Edwards, who retained counsel recently, i.e., on April 2, 2015, and now seeks leave to renew this Court's determination of plaintiff's prior motion for summary judgment. According to defendant's counsel, this Court should reconsider its Decision and Order dated June 13, 2014 because Ms. Edwards was proceeding pro se at the time, and although she submitted opposition papers to the motion, "her arguments clearly did not do justice to what were otherwise meritorious defenses", which counsel now attempts to belatedly reargue.
It appears that defendant Edwards moved for leave to renew rather than reargue since more than 30 days elapsed after service upon her of a copy of the Court's prior Order, entered on July 3, 2014, with notice of entry (see CPLR 2221[d][3]; Selletti v Liotti, 45AD3d 668, 669).
More particularly, with regard to the affirmative defense of plaintiff's lack of standing, defendant's counsel contends that plaintiff Green Tree failed to set forth facts pertaining to the date of the "merger" between defendant's lender, National City Mortgage, and PNC Bank National Association (Green Tree's predecessor-in-interest), and/or whether the subject note and mortgage were transferred from National City Mortgage (defendant's lender) to PNC Bank National Association (Green Tree's predecessor-in-interest) by virtue of said merger. Based upon this newly offered proposition, it is argued that the Court should have found that a genuine issue of fact exists as to whether or not Green Tree had standing to commence this foreclosure action on December 10, 2010.
Defendant's counsel further contends that, in support of its summary judgment motion, plaintiff failed to submit affidavits of service or other proofs of the mailing of both the 90-Day Notice required by RPAPL 1304 and the pre-acceleration notice required by paragraph 22 of the mortgage (i.e., a 30-day Notice of Default). In this regard, it is pertinent to note that while plaintiff's alleged failure to deliver two copies of the 90-Day Pre-Foreclosure Notice was raised as an affirmative defense in the pro se defendant's answer to the complaint, that the alleged deficiencies concerning the date of the 90-Day Notice of Default and the lack of proof of mailing is raised for the first time in this cross motion.
In any event, this Court previously found that the affidavit of Timothy Justice, the current plaintiff's mortgage officer, along with certain records relative to the subject mortgage and loan which included a "Notice of Default" dated December 29, 2009, two "90-Day Notices" dated April 20, 2010, and certified mail receipt numbers for the foregoing, was legally sufficient to accomplish its intended purpose. The Court rejects defendant's attempt to challenge the validity of the certified mail receipt number displayed on the 90-Day Notice dated April 20, 2010 on the grounds that it was "Not Found" in the current "USPS Tracking" online database. Assuming, arguendo , that this is the correct database for tracking certified mail that was sent five years ago, the certified mail receipt number on the 90-Day notice contains 20 digits but only 19 digits were entered as a "Tracking Number" on the USPS website.
It is well settled that "[a] motion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d 454, 454-455). Pursuant to CPLR 2221, a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (CPLR 2221[e][2] and shall contain reasonable justification for the failure to present such facts on the prior motion (CPLR 2221[e] [3]; see Bank of NY Mellon v Izmirligil, 88 AD3d 930, 932; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Sobin v Tylutki, 59 AD3d 710, 712, quoting Renna v Gullo, 19 AD3d 472, 473;see (Deutsche Bank Natl. Trust Co. v Wilkins, 97 AD3d 527, 528 [internal quotation marks omitted]).
Consonant with the foregoing, it is the Court's opinion that having failed to exercise due diligence in making her first factual presentation, defendant's present application for leave to renew is merely a belated attempt, this time with the aid of counsel, to (1) argue again, the very issues previously decided, and (2) present new or different arguments from those she originally tendered (see Deutsche Bank Natl. Trust Co. v Wilkins, 97 AD3d at 528; Statewide Ins. Co. v Rowe, 228 AD2d 606). Here, the facts set forth in support of renewal were available to defendant at the time she opposed plaintiff's summary judgment motion, and she has not demonstrated a reasonable justification for failing to submit such facts on the prior motion (see Okumus v Living Room Steak House, Inc., 112 AD3d 799, 800).
In any event, the newly presented facts would not alter the Court's prior determination (see Birky v Katsilogiannis, 37 AD3d 631, 632; Orlando v City of New York, 21 AD3d 357). Defendant's contention that plaintiff's failure to set forth facts relative to the "merger" between defendant's lender and the plaintiff Green Tree's predecessor-in-interest (PNC Bank National Association) warranted the denial of its summary judgment motion is devoid of merit. Stated otherwise, the standing of Green Tree is unaffected by any perceived defect in the chain of title to the subject note and mortgage that may have existed prior to the commencement of this action since plaintiff's standing is solely dependent upon the facts extant at the moment the action was commenced.
Accordingly, it is
ORDERED, that plaintiff's motion for a Judgment of Foreclosure and Sale is granted; and it is further
ORDERED, that defendant's cross motion for leave to renew is denied.
E N T E R,
Dated: July 2, 2015_____/s/________________________
Hon. Thomas P. Aliotta,
J.S.C.