Opinion
11254/2008
03-20-2012
HSBC Bank USA, N.A., et al., Plaintiff, v. Andre Abass, et al., Defendants.
For the Plaintiff: Shapiro, DiCaro & Barak, LLC, by Ellis M. Oster, Esq. For the Defendant Andre Abass: Alice A. Nicholson, Esq.
For the Plaintiff: Shapiro, DiCaro & Barak, LLC, by Ellis M. Oster, Esq.
For the Defendant Andre Abass: Alice A. Nicholson, Esq.
Charles J. Markey, J.
The following papers numbered 1 to 9 read on this motion by defendant Andre Abass, pursuant to CPLR 2221(e)(2), for leave to renew his prior motion, and upon renewal, to set aside the foreclosure sale, vacate the judgment of foreclosure and sale, dismiss the complaint, and cancel the Referee's deed and notice of pendency.
Papers Numbered
Order to Show Cause - Affidavits - Exhibits ..................................................................1-4
Answering Affidavits - Exhibits ......................................................................................5-7
Reply Affirmations...........................................................................................................8-9
Defendant Abass previously moved to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1), (2) and (3), dismiss the complaint for improper service of process, dismiss the complaint pursuant to CPLR 3211(a)(1), (3), (7) and (10), dismiss the complaint for failure to comply with RPAPL 1303, 1304 and 1320, and CPLR 3408, cancel the notice of pendency, and direct the cancellation of the assignment of the mortgage, or for leave to serve and file a late answer pursuant to CPLR 3012(d).
In support of his motion, defendant Abass claimed, among other things, improper service of process upon him. Plaintiff, in opposing the motion, offered an affidavit of service dated May 7, 2008, of a licensed process server, indicating service of process upon defendant Abass, by delivery of a copy of the summons and complaint to "NARUPA RAMDASS/RELATIVE" on May 7, 2008, at 5:05 A.M., at 12610 101st Avenue, South Richmond Hill, in Queens County, New York, as the dwelling place or usual place of abode of defendant Abass, and by a subsequent mailing, on May 7, 2008, of a copy of the summons and complaint to defendant Abass at the same address. In reply, defendant Abass stated that he "reside[s]" (present tense) at 120-62 144th Street, Jamaica, Queens County, New York ("the mortgaged premises").
By order dated June 29, 2011, the Court denied the motion. The Court determined, among other things, that the affidavit of service was sufficient to establish prima facie evidence that of proper service upon defendant Abass in accordance with CPLR 308(2), and that defendant Abass had not made a sworn denial that the 101st Avenue address was his dwelling place or usual place of abode on the date of service of process. The Court found that defendant Abass's unsubstantiated denial of service of the summons and complaint was insufficient to warrant a hearing on the issue of the propriety of the service. In addition, the court determined that defendant Abass had failed to establish he did not receive the summons in time to defend.
A motion for leave to renew must be supported by new or additional facts "not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221[e][2]). A motion for leave to renew based upon new or additional facts "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]).
The Appellate Division, Second Judicial Department, in Eskenazi v Mackoul, 92 AD3d 828 [2012], recently emphasized:
Although a court has the discretion to grant renewal upon facts known to the movant at the time of the initial motion, the movant must offer a reasonable justification for the failure to present those facts on the initial motion (see, May v May, 78 AD3d 667 [2nd Dept. 2010]; Schenectady Steel Co., Inc. v Meyer Contr. Corp., 73 AD3d 1013 [2nd Dept. 2010]; Lawman v Gap, Inc., 38 AD3d 852 [2nd Dept. 2007]; Lafferty v Eklecco, LLC, 34 AD3d 754, 754—755 [2006]).
"[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' " (Renna v Gullo, 19 AD3d 472, 473 [2nd Dept. 2005], quoting Rubinstein v Goldman, 225 AD2d 328, 329 [1st Dept.], lv. to appeal denied, 88 NY2d 815 [1996]).
In support of that branch of his motion to renew based upon new or additional facts, defendant Abass offers his affidavit indicating that he had formerly resided at the 101st Avenue address as a tenant in the rear apartment on the first floor, but by the time of the service upon Narupa Ramdass on May 7, 2008, he no longer resided there. He indicates that Narupa Ramdass is not a relative, but, rather, his former landlord, and he had relocated to the mortgaged premises in December, 2006, shortly after his purchase of the property. He also states that he first learned of this action when he received marketing mail from realtors and bankruptcy attorneys, after the judgment was signed.
Defendant Abass submits copies of letters from Ocwen Loan Servicing LLC addressed to him at the mortgaged premises, which are dated on various dates in the period from February 2007 to January 2008. He also submits copies of telephone bills addressed to him at the mortgaged premises for periods prior to May 7, 2008. He further submits a copy of his banking statement for the period April 9, 2008 to May 8, 2008 with the mortgaged premises address thereon. Defendant Abass states that after the issuance of the order dated June 29, 2011, he searched through stored items for evidence showing he was living at the mortgaged premises at the time of the service of process.
Nothing prevented defendant Abass from explaining in his affidavit that he had relocated from the 101st Avenue address to the mortgaged premises two years prior to the date of service, or that he first learned of the action post-judgment. Defendant Abass also does not sufficiently explain the reason he could not have presented, in support of his earlier application, the documentation which he maintained in storage. Although he indicates that his father's death, in 2011, was a "devastating" event for him, he has failed to demonstrate the manner in which it negatively "impacted" his ability to retrieve the documentation by the time of his original motion.
Defendant Abass asserts that the case decided by the Appellate Division, Second Department, in Bank of New York v Silverberg (86 AD3d 274 [2nd Dept. 2011]) represents a change in law regarding standing, and constitutes a separate basis to warrant renewal of his prior motion. He argues that the case stands for the proposition that MERS cannot transfer proper title to a mortgage and note, where MERS was not the lawful holder or assignee of the note. He contends that plaintiff herein cannot establish standing because plaintiff relies upon an assignment executed by "Scott Anderson," a vice-president of MERS, on behalf of MERS as the nominee for WMC Mortgage, the assignor, and WMC Mortgage was defunct at the time of the execution of the assignment. He also contends that Mr. Anderson engaged in robosigning.
"Robosigning" refers to the fraudulent practice wherein an affiant signs, in a short time frame, numerous affidavits and legal documents asserting the lender's right to foreclose, despite having no personal knowledge of the facts contained in them (see, LaSalle Bank N.A. v Munoz, 33 Misc 3d 1203[A], 2011 WL 4507121, 2011 NY Slip Op 51764(U), slip op at 1 [Sup Ct Queens County 2011] [McDonald, J.]; American Express Centurion Bank v Bajek, 29 Misc 3d 1226(A), 2010 WL 4749833, 2010 NY Slip Op 52005(U), slip op at 2, n.2 [Sup Ct Orange County 2010]; Washington Mut. Bank v Phillip, 29 Misc 3d 1227(A), 2010 WL 4813782, 2010 NY Slip Op 52034(U), slip op at 1-2, & 4 [Sup Ct Kings County 2010].
Contrary to the assertion of defendant Abass, the Appellate Division, in Silverberg (86 AD3d 274), did not change decisional law. In reversing the order of the Supreme Court, Suffolk County, on the law, the Appellate Division reiterated the longstanding, well-settled rules in New York that (1) an assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired by it, and (2) in the absence of proof that a plaintiff is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced, a plaintiff lacks standing to bring the action.
The Appellate Division in Silverberg found, based upon the record presented therein, the plaintiff had failed to show it had standing to sue. It also found that MERS had been without authority to assign the power to foreclose to the plaintiff because MERS was never the lawful holder or assignee of the notes described and identified in a consolidation agreement, and the corrected assignment of mortgage into the plaintiff was a nullity.
More important, even assuming arguendo that defendant Abass was correct that Silverberg (86 AD3d 274) represented a change in the decisional law of New York in foreclosure cases, defendant Abass makes no claim that he defaulted in answering the complaint because, at the time his answer was due, he reasonably believed he had no meritorious defense based upon lack of standing under the case law developed before Silverberg (86 AD3d 274). Rather, he claims that he first learned of the lawsuit post-judgment.
That branch of the motion by defendant Abass for leave to renew the prior motion is, therefore, denied.
To the extent defendant Abass seeks to vacate the judgment of foreclosure and sale pursuant to CPLR 5015, and dismiss the complaint pursuant to CPLR 3211(a)(8), based upon lack of proper service of process, such application constitutes a motion for leave to reargue. CPLR 2221 provides that a motion for leave to reargue must be made within 30 days after service of a copy of the prior order with notice of entry (see, CPLR 2221[d][3]); Matter of Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2nd Dept. 2000]; accord, Dinallo v DAL Elec., 60 AD3d 620 [2nd Dept. 2009]). The order to show cause is dated November 20, 2011, and it is undisputed that notice of entry and copy of the June 29, 2011 order was served upon counsel for defendants Abass by first-class mail on July 26, 2011. That branch of the motion for leave to reargue the prior motion is denied.
To the extent defendant Abass seeks to set aside the foreclosure sale and cancel the Referee's deed, he has failed to show fraud, collusion, mistake, or misconduct which casts suspicion on the fairness of the sale (see, Alkaifi v Celestial Church of Christ Calvary Parish, 24 AD3d 476 [2nd Dept. 2005]; see, Bankers Fed. Sav. & Loan Assn. v House, 182 AD2d 602, 603 [2nd Dept. 1992]). That branch of the motion by defendant Abass to set aside the foreclosure sale and cancel the Referee's deed is denied. That branch of the motion to cancel the notice of pendency is denied as moot.
The foregoing constitutes the decision, opinion, and order of the Court.
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J.S.C.
Dated: March 20, 2012