Opinion
18904-2012
03-07-2019
HSBC BANK USA, N.A., AS TRUSTEE in Trust FOR the CERTIFICATEHOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, Series 2006-FM2 Asset-Backed Pass-Through Certificates, Plaintiff, v. Shakil AHMAD ; Shabana Shakil; Capital One Bank, N.A., and "John Doe" and "Mary Doe," (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.), Defendants.
ECKERT, SEAMANS, CHERIN & MELLOTT, LLC, By: Morgan R. McCord, Esq., Attorneys for Plaintiff, 10 Bank Street, Suite 700, White Plains, NY 10606 MACCO & STERN, LLP, By: Cooper J. Macco, Esq., Attorney for Defendant Shabana Shakil, 2950 Express Drive South, Suite 109, Islandia, NY 11749
ECKERT, SEAMANS, CHERIN & MELLOTT, LLC, By: Morgan R. McCord, Esq., Attorneys for Plaintiff, 10 Bank Street, Suite 700, White Plains, NY 10606
MACCO & STERN, LLP, By: Cooper J. Macco, Esq., Attorney for Defendant Shabana Shakil, 2950 Express Drive South, Suite 109, Islandia, NY 11749
Robert F. Quinlan, J.
PRIOR HISTORY
This is an action to foreclose a mortgage upon residential real property located at 94 Hamlet Drive, Mt. Sinai, Suffolk County, New York ("the property") given by Shakil Ahmad and Shabana Shakil defendant-mortgagors to a predecessor in interest to plaintiff HSBC Bank, USA National Association as Trustee for the Certificateholders of Ace Securities Corp. Home Equity Loan Trust, Series 2006-FM-2 Asset-Backed Pass-through Certificates ("plaintiff"). Defendant Shabana Shakil ("defendant") originally filed a pro se answer, and co-defendant-mortgagor Shakil Ahmad defaulted in answering. Defendant subsequently retained counsel who attempted to file an amended answer, without consent or permission of the court, which raised 18 affirmative defenses and four counter-claims. The background of the action is more fully set forth in the court's decision and order placed on the record on November 3, 2016 after oral argument of plaintiff's motion for summary judgment seeking dismissal of defendant's answer, setting the default of the non-appearing, non-answering defendants, appointment of a referee to compute pursuant to RPAPL § 1321 and other ancillary relief (Mot. Seq. No. 001) and defendant's cross-motion to dismiss or alternatively to be allowed to amend her answer (Mot. Seq. # 002); as well as in the courts written decision of April 17, 2018 denying plaintiff's application to vacate the note of issue (Mot. Seq. # 003). The decision of November 3, 2016 denied defendant's cross-motion to dismiss, but authorized the amendment of defendant's answer to raise affirmative defenses that the complaint failed to state a cause of action, that plaintiff lacked standing to bring the action and that plaintiff failed to comply with the requirements of the notice of default required by the mortgage and the requirements of RPAPL § 1304, denying the request to further amend her answer. The decision also granted plaintiff's application to set the default of the non-appearing, non-answering defendants including defendant-mortgagor Shakil Ahmad, but granted plaintiff only partial summary judgment pursuant to CPLR 3212 (g) leaving the issues raised by the amendments to defendant's answer, as well as plaintiff's proof of defendant's default in payment, to be determined at a limited issue trial set pursuant to CPLR § 2218. The court issued a scheduling order setting a certification conference for March 15, 2017, which conference was adjourned twice until a compliance conference/certification order was signed on April 12, 2017. Plaintiff filed a note of issue on May 19, 2017, a pre-trial conference was held on July 5, 2017 and a trial was set for September 25, 2017. The trial was adjourned six times, primarily because the parties were engaged in attempts to resolve the action, but no resolution was reached. As indicated above, plaintiff moved to vacate the note of issue for the reasons stated in the written decision of April 17, 2018, which denied that application. The limited issue trial was held on November 19, 2018. After the trial the parties were to submit memorandums of law by January 25, 2019.
TRIAL
Before the trial began on the morning of November 19, 2018, after a review of plaintiff's potential evidence, including a viewing of the original note, defendant conceded that plaintiff had standing and that defendant was in default in payment pursuant to the terms of the note and mortgage. As those issues had been resolved they were no longer part of the limited issue trial. Defendant's affirmative defense rasing a claim that plaintiff lacked standing to bring the action was dismissed.
Additionally, as will be seen from a review of the complaint and the discussion of the evidence below, defendant's claim that plaintiff's complaint failed to state a cause of action is dismissed.
In opening statements defendant's counsel for the first time raised a claim that plaintiff had not complied with the filing requirements of RPAPL § 1306 as to defendant. Proof of compliance with the filing provisions of RPAPL § 1306 has been held to be a statutory condition precedent to the commencement of a foreclosure action (see TD Bank v. Leroy , 121 AD3d 1256 [3rd Dept 2014], cited with approval in Hudson City Savings Bank v. Seminario , 149 AD3d 706 [2d Dept 2017] ). Although RPAPL § 1306 compliance may be waived if not raised at all, it can be raised at any time, similar to other RPAPL Article 13 statutory conditions precedent such as RPAPL 1304 (see First Natl. Bank of Chicago v. Silver , 73 AD3d 162 [2d Dept 2010] ; Aurora Loan Services v. Weisblum , 85 AD3d 95 [2d Dept 2011] ; Deutsche Bank Natl. Trust Co. v. Spanos , 102 AD3d 909 [2d Dept 2013] ). Compliance can be raised as late as on a motion for a judgement of foreclosure (see Emigrant Mtge Co, Inc. v. Lifshitz , 143 AD3d 755 [2d Dept 2016] ). Only on appeal has it been held too late to raise it for the first time (see 40 B, LLC v. Katalikarn, 147 AD3d 710 [2d Dept 2017] ; Bank of America, NA v. Barton , 149 AD3d 676 [2d Dept 2017] ; Bank of America, N.A. v. Cudjoe , 157 AD3d 653 [2d Dept 2018] ). Once raised, plaintiff is required to prove compliance (see Bank of New York v. Aquino , 131 AD3d 1186 [2d Dept 2015] ; Cenlar FSB v. Weisz , 136 AD3d 855 [2d Dept 2016] ; Zarabi v. Movahedian , 136 AD3d 895 [2d Dept 2016] ; M & T Bank v. Joseph , 152 AD3d 579 [2d Dept 2017] ). Therefore, defendant's counsel may place RPAPL § 1306 compliance in issue at trial.
At the trial plaintiff presented Patrick Pittman, an employee of Select Portfolio Servicing ("SPS"), plaintiff's present servicer, as a witness. He established not only his ability to testify to SPS's business records pursuant to CPLR 4518, but also his familiarity with the business practices and procedures of Bank of America Home Loans ("B of A"), the servicer of plaintiff at the time that the mailings of the notice of default required by the mortgage and the notices required by RPAPL § 1304 were mailed. Mr. Pittman testified that as part of the "boarding" process by SPS of records made by prior servicers, such as B of A, into SPS's record keeping systems he became familiar with the business practices and procedures of B of A, and was able to establish his ability to testify to B of A's business records pursuant to CPLR 4518. He also testified to his familiarity with B of A's mailing protocols as a result of working with B of A in the boarding process. Through his testimony, and often upon consent or without objection, plaintiff's Exhibits " ‘1," "7," "8A" "8B" and "9" were admitted into evidence. Exhibit "7" was a copy of the notice of default required by the mortgage. Exhibits "8A and B" were copies of the notices required to be sent by RPAPL § 1304 to defendant by both first class mail and certified mail, as well as a list of more than 5 housing counseling agencies in the region and part of Exhibit "8A," was a copy of the U. S. Postal Service ("USPS") certified mailing receipt signed as received on July 25, 2011 at the property. The notices constituting Exhibits "7" and "8A and B" were each addressed to both defendant and Shakil Ahmad, there were no individual mailings of each notice to each of them. Mr. Pittman also testified to the filing of the notice required by RPAPL § 1306 with the New York State Banking Department (Exhibit "9") on July 20, 2011, although the notice of filing only referred to Shakil Ahmad, not defendant. After Mr. Pitman concluded his testimony, plaintiff rested.
Defendant then took the stand and testified that she no longer went by the name Shabana Shakil, having been divorced from co-defendant Shakil Ahmad in 2013, had remarried and was now known as Shabana Zahoor. At the time that the notices of default required by the mortgage and those required by RPAPL § 1304 were mailed, she was residing at the property with her former husband, but they were living separate lives in the same house, rarely speaking. Her counsel showed her plaintiff's Exhibit "8A" and when he asked her "did you ever receive this notice?" she did not deny receiving it, but instead stated "I don't know. I don't remember." When her counsel showed her the USPS certified mailing receipt signed as received on July 25, 2011, part of plaintiff's Exhibit "8A," she identified the signature on it as that of her daughter, Aysha Ahmad, who lived at the property and was "12 to 14 years old" at that time. She testified not that Aysha never gave her the notice, only that she did not remember if Aysha ever handed it to her. When her counsel asked her if it was possible that Aysha had handed the certified mailing to her ex-husband, she answered: "No, I don't think so." At the conclusion of her testimony defendant rested and plaintiff offered no testimony or evidence in rebuttal.
At the close of all evidence defendant moved to dismiss the action against her as a matter of law claiming that plaintiff had failed to establish the mailing of the notices required by RPAPL § 1304 ("notices") because individual notices addressed only to her were not mailed to her at the property by both certified and first class mail. Additionally, defendant moved for dismissal as a matter of law because plaintiff failed to comply with "the New York State Secretary of State (sic ) requirements to file such a filing reflecting the mailing pursuant to 1306," (the filing with the New York State Banking Department required by RPAPL § 1306 ). Plaintiff opposed the motion, pointing to this court's decision in First Mortgage Strategies Group, Inc. v. Martinez , Index # 32753-2012 (Sup Ct, Suffolk County, October 20, 2017), arguing that a claim of violation of RPAPL § 1304, and by analogy a violation of RPAPL § 1306, is personal to an aggrieved defendant and cannot be raised by another defendant. The court reserved decision directing the parties to file simultaneous memorandums of law on those issues by January 25, 2019, which was done.
DECISION
MAILINGS ESTABLISHED
The court finds that Mr. Pittman provided credible and sufficient testimony that established his familiarity with the mailing practices and procedures of B of A that insured that the mailings were made to defendants at the property, and in doing so established the mailing of Exhibit "7" to the defendant at the property on July 15, 2011, and Exhibits "8A and B" to defendant at the property by both first class mail and certified mail on July 19, 2011, more than 90 days prior to the commencement of the action (see Vivane Etienne Med. Care, P.C. v. Country Wide Ins. Co. , 25 NY3d 498 [2015] ; Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679 [2d Dept 2001] ); New York & Presbyt. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006] ; Citimortgage v. Banks , 155 AD3d 936 [2d Dept 2017] ; U.S. Bank, N.A. v. Sims , 162 AD3d 825 [2d Dept 2018] ; Deutsche Bank Natl. Trust Co. v. Heitner , 165 AD3d 1038 [2d Dept 2018] ). The court notes that in defendant's counsel's memorandum of law, counsel acknowledges that this testimony established the mailing of both groups of notices, only contesting the fact that the mailing of the RPAPL § 1304 notices were insufficient because each was addressed to both defendant "borrowers" at the property and that compliance with the statute requires individual notices to each borrower at the property by both first class mail and certified mail.
COMPLIANCE WITH NOTICE OF DEFAULT
In defendant's counsel's closing argument and motion to dismiss at the end of the trial, as well as in defendant's memorandum of law, counsel appears to have abandoned any claim that plaintiff had not complied with the notice of default required by the mortgage. As the mortgage carries the usual provision that notice to one borrower is notice to both, the argument that the notice was addressed to both defendants at the property is not applicable, and by acknowledging that plaintiff has sufficiently established the mailing of the notices, defendant has conceded that the mailing requirement of a notice of default in the mortgage has been met. That affirmative defense is dismissed.
CLAIM OF RPAPL § 1304 COMPLIANCE AS TO CO-DEFENDANT WAIVED
Plaintiff's argument that this court's decision in First Mortgage Strategies Group, Inc. v. Martinez , supra is dispositive under the facts of this case is a misinterpretation of the holding in that case, as well as what the court believes is defendant's argument in this action. In First Mortgage Strategies Group, Inc. v. Martinez , supra a non-borrower defendant who was an investor/co-owner of the property was attempting to raise RPAPL § 1304 compliance as its own defense to the action. The court held that arguing compliance with this statutory condition precedent was personal to a defendant-mortgagor/borrower, it could not be raised by another non-borrower defendant in the action, such as an investor who purchased the property from the defendant-mortgagor/borrower. Here defendant is raising the issue of compliance personally, as a defendant-mortgagor/borrower, so the principle set forth in First Mortgage Strategies Group, Inc. v. Martinez , supra is not applicable to her claim.
To the extent that plaintiff may believe that defendant is attempting to raise the issue on behalf of defendant Shakil Ahmad, the court does not find that to be the case. Even if defendant was attempting to do so, in order to raise that defense, defendant Shakil Ahmad's default in answering would have to be vacated. Absent a vacatur of his default, which is not requested, defendant is without authority to oppose or otherwise seek affirmative relief of a non-jurisdictional nature (see HSBC Mtge. Corp. v. Morocho, 106 AD3d 875, [2d Dept 2013] ; U.S. Bank Natl. Assn. v. Gonzalez, 99 AD3d 694 [2d Dept 2012] ; Deutsche Bank Trust Co., Am. v. Stathakis, 90 AD3d 983 [2d Dept 2011] ; Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011] ). Compliance with RPAPL § 1304 is non-jurisdictional, so before a defendant can raise that issue, he must first vacate his default in answering (see HSBC Bank, N.A. v. Clayton , 146 AD3d 942 [2d Dept 2017] ). As there is no application to vacate Shakil Ahmad's default, neither he, nor anyone acting on his behalf, could raise compliance with either RPAPL §§ 1304 or 1306 as he has waived it (see U.S. Bank N.A. v. Carey , 137 Ad3d 894 [2d Dept 2016] ; Flagstar Bank, FSB v. Jambelli , 140 AD3d 829, [2d Dept, 2016] ).
The corollary principle to this is significant, in the opinion of the court, to the resolution of this action. Compliance with RPAPL §§ 1304 or 1306 being not jurisdictional, is waived by a defendant who is in default. Where a defendant has failed to move to vacate his default in appearing or answering, defendant has waived any claim of plaintiff's alleged failure to comply with RPAPL § 1304 and 1306 (see PHH Mtge. Corp. v. Celestin , 130 AD3d 703 [2d Dept 2015] ; U.S. Bank N.A. v. Carey , supra; Flagstar Bank, FSB v. Jambelli, supra ; HSBC Bank USA v. Hasis , 154 AD3d 832 [2d Dept 2017] ). As defendant Shakil Ahmad's default was set by the decision and order of November 3, 2016, he has waived this compliance.
RPAPL § 1304 COMPLIANCE ESTABLISHED
For this reason the court agrees with plaintiff's argument that this makes the facts here different from this court's holding in Deutsche Bank National Trust Co. v. Jimenez , 62 Misc 3d 811 (Sup Ct, Suffolk County 2018), a decision on a summary judgment motion issued shortly after the trial of this action, as well as the court's decision after trial in HSBC Bank, USA Natl. Assoc. v. Patricola , 62 Misc 3d 1209 (A), 2019 NY Slip Op 50076 (U) (Sup Ct, Suffolk County 2019).
In both cases, both defendant-mortgagors appeared and raised the fact that plaintiff had mailed them RPAPL § 1304 notices by first class mail and certified mail but had addressed the notices to both borrowers, sending no individually addressed notices to each defendant-mortgagor/borrower. Adopting the rationale of Justice Paul I. Marx in Wells Fargo Bank, N.A. v. Yapkowitz , 59 Misc 3d 1227 (A), 2018 NY Slip Op 50726 (U) (Sup Ct, Rockland County 2018), and Justice Darrell L. Gavrin in US Bank National Association v. Diaz , 2018 NY Slip Op 30436 (U) (Sup Ct, Queens County 2018), as well as additional arguments raised by this court in its two decisions, this court found that such mailings in those cases were insufficient to establish compliance with RPAPL § 1304. The rationale for this court's two prior decisions and those of Justices Marx and Gavrin are set forth at length in this court's two above opinions and will not be repeated herein.
Here the court is faced with much different circumstances which call for a different result. Defendant Shakil Ahmad is in default and has waived compliance with RPAPL § 1304. As he cannot claim issues concerning the insufficiency of the notices addressed to him at the property, the court has before it a single set of mailings to defendant. Although these may be addressed to both her and her former husband, they serve the purpose of only being addressed to her, as here there can be no claim by two people that only one of them, at best, received the notices, and may have not given the other the information that the Legislature meant to be transmitted concerning their borrower's rights.
As determined by the court and conceded by defendant, plaintiff has established the mailing of the notices by both first class and certified mail. Also the court finds it significant that here defendant does not deny receiving the notices in her trial testimony, only that she does not remember if she received them. Further, she recognizes the signature on the USPS certified mailing receipt as that of her teenage daughter who lived with her at the property. Again, she does not say that Aysha never gave her the notice, only that she did not remember if Aysha ever handed it to her. When her counsel asked her if it was possible that Aysha could have given it to her ex-husband, the court observed her emphatic statement, "No" (see trial transcript submitted in both parties memorandum, p. 91, line 11 through p. 92, line 9).
Plaintiff has established the mailing of the notices by first class mail and certified mail, defendant does not deny receiving them, acknowledges her teenage daughter signed for the certified mailing and would not have given it to her non-cooperative spouse/co-borrower. The court finds under these circumstances and the testimony before it that it is reasonable to conclude that if the daughter would not give it to her father, she gave it to her mother-defendant. Under the facts here, it is clear to the court that the fear of Justice Marx expressed in Wells Fargo Bank, N.A. v. Yapkowitz , supra , and acknowledged by this court in its two above decisions, that a divorcing spouse may hide a notice addressed to both from the other spouse/borrower is not applicable. Further, Justice Marx's, argument that by addressing one "notice" to both shifts the responsibility to provide the information contained in the RPAPL § 1304 notice from the lender/servicer, as the Legislature intended, to the borrower who accepted the mail delivery is not faced by the court here. The reasonable conclusion from the evidence here is that defendant received the notice sent by certified mail, which was accepted by her daughter who defendant said would not give such a piece of certified mail to her father. To require more of plaintiff under these particular facts, where the intent of the Legislature in requiring the mailings appear to have been met, would be putting an undue burden upon plaintiff in this civil action where the burden of proof is not beyond a reasonable doubt, but a fair preponderance of the credible evidence.
The court finds that the proof adduced by all the testimony and evidence at trial, as well as the reasonable inferences that may be drawn from them, establishes plaintiff's compliance with RPAPL § 1304 and defendant's affirmative defense challenging that compliance is dismissed, and that portion of plaintiff's motion to dismiss made at the conclusion of al evidence based upon non-compliance with RPAPL § 1304 is denied.
CPLR 2001 ALLOWS COURT TO IGNORE ERROR IN RPAPL § 1306 FILING
Although there are only a few cases that deal with errors in RPAPL § 1306 filings, this court has previously dealt with the issue of apparent errors made in RPAPL § 1306 certificates in two other cases, Castle Peak 2012-1 Loan Trust Mortg. Backed Notes, Series 2012-1 v. Connor , 2018 NY Slip Op 31131 (U) (Sup Ct, Suffolk Co., 2018), Bank of New York Mellon v. Dougherty , 58 Misc 3d 1212 (A), 2018 NY Slip Op 5064 (U) (Sup Ct, Suffolk Co., 2018) finding that errors in the filing with either the NYS Banking Department ("Banking Dept."), or the Division of Financial Services ("DFS"), could be considered an error or irregularity that could be disregarded by the court as a substantial right of defendant has not been prejudiced ( CPLR 2001 ). In Aurora Loan Services, LLC v. Weisblum , 83AD3d 95, at 107-108 (2d Dept 2011), the court declined to express an opinion when, if ever, a defect or irregularity in the content of a notice might be so minimal as to warrant the exercise of the court's discretion under CPLR 2001 to avoid dismissal of an action, making it clear that there could be possible circumstances under which a defect or irregularity in the strict compliance required by RPAPL Article 13 may be so de minimus as to warrant ignoring it in an exercise of the court's discretion under CPLR 2001.
Defendant's argument that "strict" compliance is mandated and requires dismissal exalts form over compliance with the intent and purpose of the statute. Unlike RPAPL §§ 1303 and 1304 which were intended by the Legislature to provide borrowers/potential defendants with substantive notice of their rights and the availability of legal and counseling services to avoid foreclosure or to assist in their defense, RPAPL § 1306 was not intended to provide borrowers with any assistance or rights. The purpose for plaintiff, or its servicer, filing the certificate reflected in the versions of the statute in effect at the time of the mailings on July 19, 2011 and the date of the filing on July 20, 2011 is stated in RPAPL § 1306 (4) :
All such information shall be used by the superintendent exclusively for the purposes of monitoring on a statewide basis the extent of foreclosure filings within this state, to perform an analysis of loan types which were the subject of a pre-foreclosure notice and directing as appropriate available public and private foreclosure prevention and counseling services to borrowers at risk of foreclosure. The superintendent may share information contained in the database with housing counseling agencies designated by the division of housing and community renewal as well as with other state agencies with jurisdiction over housing, for the purpose of coordinating or securing help for borrowers at risk of foreclosure.
This does not provide any right or advantage to a borrower/potential defendant, it only was to be a source of statistics for the state to analyze the types of residential loans going into default so that resources could be properly apportioned and assigned to help prevent future foreclosures. To accomplish this purpose it is totally irrelevant whether both borrower defendants had separate filings made, filing for either one would provide the state with the statistical information it needed to evaluate future allocation of public and private resources to address the "foreclosure crisis." By plaintiff's then servicer failing to file an RPAPL § 1306 certificate with the Banking Department that mentioned both defendants, or to file one for each defendant individually, and instead filing one that provided all the required information but only listed Shakil Ahmad did not deprive the State of the information it needed, nor did it prejudice defendant by depriving her of any substantial right. Therefore, under these facts, this court finds that the failure to file an RPAPL § 1306 certificate as to defendant is an error, omission or irregularity which should be disregarded by the court pursuant to CPLR 2001 as a substantial right of defendant has not been prejudiced. To do otherwise would exalt form over substance. Defendant's claim that a failure to comply with the requirements of RPAPL § 1306 requires dismissal of the action against her is dismissed, and that portion of her motion to dismiss made at the close of all the evidence is denied.
PLAINTIFF GRANTED JUDGMENT
Therefore, plaintiff having established at trial its standing to bring the action, proof of default in payment of defendant, the mailing of the notice of default required by the mortgage, the mailing of the notices required by RPAPL § 1304 to defendant by both first class mail and certified mail, and that any error or omission in the RPAPL § 1306 filing with the Banking Department may be ignored by the court pursuant to CPLR 2001, defendant's remaining affirmative defenses are dismissed, her answer is stricken and plaintiff is granted judgment on its complaint, and it's application for the appointment of a referee pursuant to RPAPL § 1321 is granted.
ADDITIONS TO ORDER OF REFERENCE TO BE SUBMITTED
As the court previously marked plaintiff's proposed order "Not Signed" on November 3, 2016, plaintiff must submit another order of reference for the court to sign. The court recalls that the proposed order of reference submitted at that time requested the court to amend the caption to remove the "JOHN DOE" and "MARY DOE" defendants and substitute in their place Mohammed Ahmad, which application is granted and the amended caption must be reflected in the body of the order of reference to be submitted. In addition, such order of reference must include the following additional provisions which the court normally includes in all such orders:
ORDERED that plaintiff is directed to serve an executed copy of the order of reference amending the caption of this action upon the Calendar Clerk of this Court within 30 days of the date of this order and all further proceedings are to proceed under that caption; and it is further;
ORDERED that plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order # 41-13; and it is further
ORDERED , that, if a prior notice of pendency is outdated, plaintiff is directed to file a successive notice of pendency at least twenty (20) days prior to the submission of any proposed judgment of foreclosure and sale, submitting a copy thereof with proof of filing with any proposed judgment of foreclosure and sale; and it is further.
ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order (plaintiff's submissions); defendant(s) may submit written objections and proof in support thereof (defendant's objections) to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this order of reference ( CPLR 4311, RPAPL § 1321 ), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendant(s) objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendant(s) objections have been submitted to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit defendant(s) objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Monday, (Plaintiff is to leave blank, the court will fill-in a date) 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.
Plaintiff is to submit the new order of reference to the court within 45 days of the date of this order. The action will be calendared for a status conference on Monday, April 29, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action, if the order of reference is filed prior to that date plaintiff need not appear.
This constitutes the decision and order of the Court after trial.