Opinion
622739-2017
09-12-2018
The MONEY SOURCE, INC., Plaintiff, v. Bernard DELL'AQUILA; "John Does" and "Jane Does" said names being fictitious, parties intended being possible tenants or occupants of premises and corporations, other entities or persons who have, claim or may claim, a lien, or other interest in, the premises, Defendants.
ROSICKI, ROSICKI & ASSOCIATES, P.C., 51 E. Bethpage Road, Plainview, NY 11803, Attorneys for Plaintiff C.M. FUSCO LAW GROUP, P.C., 1065 Old Country Rd, Suite 201, Westbury, NY 11590, Attorneys for Defendant Dell'Aquilla
ROSICKI, ROSICKI & ASSOCIATES, P.C., 51 E. Bethpage Road, Plainview, NY 11803, Attorneys for Plaintiff
C.M. FUSCO LAW GROUP, P.C., 1065 Old Country Rd, Suite 201, Westbury, NY 11590, Attorneys for Defendant Dell'Aquilla
Robert F. Quinlan, J.
Upon the following papers read on this application for a combined order for default judgment, judgment of foreclosure and sale and to amend the caption, Notice of Motion dated April 2, 2018 and supporting papers (NYSCEF Docs# 35-54); opposition (NYSCEF Docs# 55-57) it is
ORDERED that this "combined motion" by plaintiff to amend the caption, setting the default of defendants and for a judgment of foreclosure and sale is granted; and it is further
ORDERED that plaintiff's proposed order submitted with this motion, as modified by the court, is signed contemporaneously with the signing of this decision; and it if further
ORDERED that as plaintiff's application to amend the caption to remove the "John Doe" and "Jane Doe" defendants and to substitute in their place Debra Orardhra is granted, the caption shall now appear as below:
X
THE MONEY SOURCE, INC.,
Plaintiff,
against
BERNARD DELL'AQUILA; DEBRA ORARDHRA,
Defendants.
X,
and plaintiff is to serve a copy of this order upon the Calendar Clerk within 30 days of this date and all further proceeding will be under the amended caption.
This is an action to foreclose a mortgage on the premises known as 234 Travis Street, Lindenhurst, Suffolk County, NY given on August 21, 2015 by defendant mortgagor Bernard Dell'Aquila ("defendant") to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Residential Funding Corp. ("Residential") solely for the purpose of recording the mortgage, to secure a note given the same date by defendant to Residential. Subsequently Residential transferred possession of the note and mortgage to plaintiff The Money Source, Inc. ("plaintiff"), who upon default of defendant in his payment obligations pursuant to the note and mortgage, commenced this action by filing a summons, complaint and notice of pendency with the Suffolk County Clerk ("Clerk") on November 28, 2017. NYSCEF Doc. # 12 is an affidavit of service on defendant in Florida on December 1, 2017 and filed with the Clerk on December 11, 2017 ( CPLR §§ 302 [a] [4]; 313). According to NYSCEF records, a conference pursuant to CPLR 3408 was set in the court's dedicated Foreclosure Settlement Conference Part ("FSCP"), and although notified by the court of the conference, defendant failed to appear. The court attorney referee in the FSCP noted defendant's default and released the case from the part to the "Foreclosure Justice Part." Compliance with CPLR 3408 has been established.
Pursuant to RPAPL § 1321 (1), upon the default of a defendant, a plaintiff may move the court to set the defendant's default and ascertain the amount due, at which time the court will either make the required determinations itself, or appoint a referee to do so. The decision to do the calculations and make the other findings required by RPAPL § 1321 or to refer those issues to a referee is within the discretion of the court. Traditionally, courts have most often chosen to appoint a referee to compute, who upon being supplied with the required information, prepares a report which the plaintiff submits to the court for confirmation and acceptance with its motion for a judgment of foreclosure and sale ( RPAPL § 1351 ). This two stage process adds many months of delay to what is already a time consuming process to obtain a judgment of foreclosure and sale.
To accelerate this process in cases where a defendant has defaulted and clearly shown no interest in resolving the case by failing to appear at the CPLR 3408 conference in the court's FSCP, the Suffolk County District Administrative Judge issued Administrative Order 125-17 ("AO # 125-17"), dated November 27, 2017, which authorized plaintiffs to file a "combined motion" under RPAPL §§ 1321 and 1351 entitled "Fixing Default and Judgment of Foreclosure and Sale." AO # 125-17 directed that any such motions be assigned to this Part 27, and further provided that this part would promulgate rules for "Expedited Proceeding In Certain Foreclosure Actions," ("the Part 27 Rules") upon approval of such rules by the District Administrative Judge. Those approved rules, also dated November 27, 2018, were published to the 10th Judicial District, Suffolk County's Website (https://www.nycourts.gov/courts/10jd/suffolk/SC_Rules.shtml). The provisions of AO # 125-17 were recently superseded by AO # 77-18 of the Suffolk County District Administrative Judge (August 30, 2018), which amendment allows combined motions to be heard by any of justices of this court, not just Part 27. The provisions of AO # 125-17, and the Part 27 Rules are still applicable to this action, as plaintiff's motion was filed when AO # 125-17 was in effect.
On November 28, 2017, the Chief Administrative Judge of the Courts issued Administrative Order 356-17 ("AO/356/17")which promulgated "templates for use in residential mortgage foreclosure proceedings in Supreme Court in cases where a homeowner has defaulted....;" copies of the templates were attached to the order. The use of these forms became effective January 1, 2018. Among the templates was one for a "Motion for default judgment, order of reference, and judgment of foreclosure and sale." This form "combined motion" contains many optional paragraphs which may be inserted "if applicable," either by choice of counsel, by necessity or by court directive.
The court's NYSCSEF records show that plaintiff attempted to file this combined motion fixing defendants' defaults in answering, asking the court to perform the procedures required by RPAPL § 1321 itself without referring them to a referee and for the court to issue a judgment of foreclosure and sale upon making the determinations pursuant to RPAPL § 1321 on March 28, 2018, but for some reason the filing was deemed ineffective and plaintiff refiled this motion on April 2, 2018, originally returnable April 26, 2018. The action was then assigned to Justice C. Randall Hinrichs.
Although not filed with NYSCEF, the court's "hard copy" records include a "faxed" letter from defendant's counsel dated May 2, 2018 indicating they had recently been retained, that they had been unable to contact plaintiff's counsel and requested the court grant a thirty day adjournment of the motion. That request appears to have been granted, as the N.Y.S. Unified Court System's "Web Civil- Supreme" "e-Courts" system indicates that the motion was adjourned on April 26, 2018. There is no filing of the letter of May 2, 2018 or of a decision granting the adjournment in NYSCEF.
NYSCEF records indicate that on June 11, 2018 defendant's counsel filed defendant's opposition to plaintiff's motion consisting of counsel's affirmation and an affidavit from defendant, both sworn to on May 17, 2018. No reply was filed by plaintiff.
On July 3, 2018, acting in his capacity as District Administrative Judge, Justice Hinrichs issued AO # 60-18, reassigning this action to this part (NYSCEF Doc. # 58), and upon transfer the motion was given a new submission date in this part of August 23, 2018, at which time it was submitted.
DEFENDANT'S OPPOSITION UNAVAILING
Defendant, and his counsel, in opposition to plaintiff's motion overlook the fact that defendant is in default in answering and fail to address that issue, merely making arguments addressed to the purported lack of merit of plaintiff's action and motion. Counsel argues that plaintiff failed to comply with Federal regulations, a condition precedent in the mortgage, fails to seek a default judgment pursuant to RPAPL § 1321 which requests the appointment of a referee, that defendant has not been afforded a conference pursuant to CPLR 3408 and that plaintiff failed to negotiate in good faith. Defendant's affidavit complains of a violation of Federal regulations, that he did not receive the default letter required by the mortgage, and claims that he has no place to live if the foreclosure is granted. Significantly, defendant's affidavit makes no denial of service upon him of the summons and complaint.
This failure to deny service is significant for it appears defendant acknowledges service and is thereby in default in answering as the affidavit of service, filed December 11, 2017 with the Clerk, indicates that he was personally served on December 1, 2017 in Florida. Neither he or his counsel address this default. There is no motion seeking vacatur pursuant to CPLR § 317, nor CPLR 5015, or to file a late answer pursuant to CPLR § 3012 (d).It appears that defendant is unaware that he must first vacate his default in answering before he can address any substantive, non- jurisdictional, claims, as a party may not move for affirmative relief of a non-jurisdictional nature without first moving to vacate his/ her default (see Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011] ; Deutsche Bank Trust Co., Am. v. Stathaklis, 90 AD3d 694 [2d Dept 2011] ; U.S. Bank Natl. Assn. v. Gonzalez, 99 AD3d 694 [2d Dept 2012] ; Southstar III, LLC v. Ettienne, 120 AD3d 1332 [2d Dept 2014] ; Chase Home Finance, LLC v. Garcia, 140 AD3d 820 [2d Dept 2016] ; Nationstar Mortgage, LLC v. Avella, 142 AD3d 594 [2d Dept 2016] ; Nationstar Mtg., LLC v. Kamil, 155 AD3d 968 [2d Dept 2017] ). Absent a vacatur of his default, a 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] ).
Further, although defendant's counsel asks for dismissal of the action in his affidavit, as there is no cross-motion for such relief, his request is procedurally defective ( CPLR 2215 ; see, Lee v. Colley Group McMontebello, LLC , 90 AD3d 1000 [2d Dept 2011] ; DeLorenzo v. Gabbino Pizza Corp., 83 AD3d 992 [2d Dept 2011] ).
As there is no motion to vacate defendant's default, the court will not consider the claims raised by defendant's opposition.
PLAINTIFF'S MOTION IS GRANTED
Proof required on default under CPLR 3215 (f) is merely proof of facts constituting the claim. To demonstrate the facts constituting the claim, movant must only submit sufficient proof to enable the court to determine if the claim is viable (see Woodson v. Mendon Leasing Corp. , 100 NY2d 62 [2003] ; Global Insurance Company v. Gorum , 143 AD3d 768 [2d Dept 2016] ; Manhattan Telecommuincations Corp. v. H & A Locksmith, Inc. , 21 NY3d 200 [2013] ; Araujo v. Aviles , 33 AD3d 830 [2d Dept 2006] ; U.S. Bank, N.A. v. Tate , 102 AD3d 859 [2d Dept 2013] ; HSBC Bank USA, N.A. v. Simms, 163 AD3d 930 [2d Dept 2018] ).
Plaintiff establishes its burden on a motion for leave to enter a default judgment and order of reference by submitting proof of service of the summons and complaint, proof of facts constituting the claim and proof of defendant's failure to answer or appear ( CPLR 3215 [f]; RPAPL § 1321 ; see Dupps v. Betancourt , 99 AD3d 855 [2d Dept 2012] ; Green Tree Serv., LLC v. Cary , 106 AD3d 691[2d Dept 2013] ; JPMorgan Chase Bank, N.A. v. Boampong , 145 AD3d 981 [2d Dept 2016] ; US Bank, N.A. v. Singer , 145 AD3d 1057 [2d Dept 2016] ; Bank of Am., NA v. Agarwal , 150 AD3d 651[2d Dept 2017] ). Here plaintiff has met its proof of a prima facie case through proof of service, the production of the original mortgage, the unpaid note, and evidence of defendant's default in payment and in answering (see Deutsche Bank Natl. Trust Co. v. Abdan , 131 AD3d 1001 [2d Dept 2015] ; U. S. Bank N. A. v. Akande , 136 AD3d 887 [2d Dept 2016] ; US Bank, N.A. v. Dedomenico , 162 AD3d 962 [2d Dept 2018] ; 352 Legion Funding Assoc. v. 348 Riverdale, LLC , ––– AD3d ––––, 2018 NY Slip Op. 05662 [2d Dept 2018] ).
The court fixes the defaults of the non-answering, non-appearing defendants and exercises its discretion to make the decisions required by RPAPL § 1321 itself (see Green Tree Serv. v. Cary , supra; Vermont Fed. Bank v. Chase , 226 AD2d 1034 [3d Dept 1996] ; Bank of East Asia, Ltd. v. Smith , 201 AD2d 522 [2d Dept 1994] ). It has performed the calculations to compute the amount due plaintiff under the note and mortgage based upon the submissions of plaintiff, and indicated in the proposed order submitted by plaintiff, as modified by the court, and has determined from the submissions that the property is best sold in one parcel.
Pursuant to AO # 125-17 and the Part 27 Rules approved by the District Administrative Judge, the court also considers plaintiff's combined application for a judgment of foreclosure and sale pursuant to RPAPL § 1351. As plaintiff's submissions meet the requirement of RPAPL § 1351 and the Part 27 Rules, including plaintiff's waiver of a deficiency judgment, the court grants plaintiff a judgment of foreclosure and sale, which is set forth in plaintiff's proposed order, as modified by the court.
This constitutes the decision of the court, and the proposed order submitted by plaintiff, as modified by the court, is signed contemporaneously with this decision.