Opinion
Index No. 38567/2006 Motion Cal. (s): 32 Index : 38567/2006 Mot. Seq. (s): 3
12-09-2024
Mortgage Electronic Registration Systems, Inc., ACTING SOLELY AS NOMINEE FOR AMERICAN HOME Mortgage c/o American Home Mortgage Servicing, 4600 Regent Blvd., Irving, Texas 75063, Plaintiff(s), v. Evelyn McDuffie, GMAC Mortgage Corp., Mortgage Electronic Registration Systems, Inc., et al., Defendant(s).
Unpublished Opinion
Motion Calendar: 11/16/2022.
PRESENT: HON. CENCERIAP. EDWARDS, C.P.A., Justice.
ORDER
Hon. Cenceria P. Edwards, JSC, CPA
The following e-filed papers read herein: NYSCEF Doc. Nos.:
Notice of Motion, Affidavits (Affirmations) and Exhibits ______ 28-51
Opposing Affidavits (Affirmations) and Exhibits______54-61
Reply Affidavits (Affirmations) and Exhibits ______ 63-64
On December 15, 2006, named Plaintiff MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., acting solely as nominee for AMERICAN HOME MORTGAGE c/o AMERICAN HOME MORTGAGE SERVICING, then represented by the Law Offices of Alan Weinreb, PLLC, commenced this action to foreclose on a mortgage encumbering the real property known as 737 Decatur Street, owned by defendant-mortgagor EVELYN MCDUFFIE. By order dated October 29, 2013, the Court (Lawrence Knipel, J.) directed that this action be dismissed, and the notice of pendency canceled, due to Plaintiffs failure to appear at a status conference on that day (see NYSCEF Doc. #46). This order was entered on February 11, 2014. On or about November 16, 2020, SRP 2013-9 Funding Trust ("SRP 2013-9"), as purported successor-in-interest to defendant MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., the holder of an allegedly junior mortgage lien against the subject premises, served a notice of settlement of a proposed judgment dismissing this action upon Justice Knipel's order of dismissal dated October 29, 2013. The Clerk of the Court entered judgment formally dismissing this action without prejudice on December 1, 2020; nine days later, SRP 2013-9 served Notice of Entry by mail upon Plaintiffs counsel of record, and defendant-mortgagor Evelyn McDuffie (see NYSCEF Doc. #s 24-25).
By notice of motion dated and e-filed on May 3, 2021, Deutsche Bank National Trust Company, as Indenture Trustee for American Home Mortgage Investment Trust 2007-SD1 ("Deutsche Bank"), as purported successor-by-assignment to the named Plaintiff, now moves for an order, inter alia, substituting itself into this action as the plaintiff of record pursuant to CPLR §§ 1018 and 1021; vacating the 2013 dismissal order and the 2020 judgment pursuant to CPLR 5015 (a)(1); granting leave to reargue the Court's July 24, 2012 decision and order denying Plaintiffs motion for a judgment of foreclosure and sale pursuant to CPLR 2221 (d); and upon reargument, that the Court award Deutsche Bank a judgment of foreclosure and sale. SRP 2013-9 opposes on several grounds, only one of which is sufficient to dispose of the motion.
Deutsche Bank tried to move for similar relief by Order to Show Cause ("OSC") on April 23, 2021 {see NYSCEF Doc. #s 2-26). Justice Knipel declined to sign the proposed OSC because residential foreclosure proceedings were stayed due to the pandemic-related moratoria {see NYSCEF Doc. #27).
The Court finds that Deutsche Bank has not made an adequate showing to warrant vacating the dismissal of this action made upon Plaintiffs default. The Uniform Civil Rules for the Supreme Court and County Court provide, in pertinent part, that "[a]t any scheduled call of a calendar or at any conference," if parties do not appear and are ready to proceed, "the judge may make such order as appears just," and said remedies include dismissing the action (see 22 NYCRR § 202.27). As discussed, Justice Knipel issued the 2013 dismissal order upon Plaintiffs failure to appear at the Status Conference on October 29, 2013. Hence, the governing standard on Deutsche Bank's motion is as follows:
Generally, in order to vacate a default in appearing at a scheduled conference, the defaulting party must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action or defense to the action. However, in the absence of actual notice of a conference date, a party could not have been in default for failing to appear at that conference. In that situation, the party's default is considered a nullity and vacatur of the default is required as a matter of law and
due process, and no showing of a potentially meritorious cause of action or defense is required (Beneficial Homeowner Sene Corp. v Horan, 230 A.D.3d 1210, 1211 [2d Dept 2024]).
Although Deutsche Bank asserts that it never received notice of the October 29, 2013 Status Conference, it does not submit any evidence of same. Deutsche Bank's reliance on the lack of an entry to that effect in the County Clerk's minutes is of no moment, particularly since this matter was not converted to e-filing until April 23, 2021, and, in any event, that does not establish proof of lack of actual notice. Moreover, this action was commenced on behalf of Plaintiff by a different law firm, and Deutsche Bank merely claims that its "attempts to contain a copy of [said firm's] file pertaining to this matter were unsuccessful" (see NYSCEF Doc. #29, p. 8). Deutsche Bank's contention that notice of the Status Conference was never provided to its servicing agent and attorney-in-fact is also unavailing, since Plaintiff was represented by that prior law firm and hence, any such notice would properly have been sent only to the attorney-of-record (see CPLR 2106 [b]). In failing to submit evidence from someone with personal knowledge as to whether notice of the conference was received, Deutsche Bank did not establish that it did not have actual notice of the conference date" (Bentficial Homeowner Serv. Corp. v Horan, 230 A.D.3d at 1211; cf. U.S. Bank N.A. v Roberts, 216 A.D.3d 1038, 1040 [2d Dept 2023] [standard met, where movant's attorney's affirmation denying receipt of notice of the status conference was uncontroverted]).
Alternatively, as a proffered reasonable excuse for defaulting at the October 29, 2013 Status Conference, Deutsche Bank asserts that approximately three months before the conference, its servicer, at the direction of an investor, sought to transfer Deutsche Bank's representation to a second law firm. Hence, Deutsche Bank appears to assert "law firm failure" as its excuse. However, Deutsche Bank still failed to proffer an affidavit based on personal knowledge from anyone at the first or second law firm, articulating a detailed and credible explanation for either firm's failure to attend the Status Conference, which is fatal to its reliance on this excuse (see Hudson City Sav. Bank v Augustin, 191 A.D.3d 774, 775-776 [2d Dept 2021]). Even accepting Deutsche Bank's assertion that both firms are now defunct, that merely underscores the inability to provide any evidence substantiating the excuse. To the extent that the passage of some eight years before making the instant motion has inhibited Deutsche Bank's ability to properly articulate sufficient grounds for the law office failure excuse, the Court notes that Deutsche Bank has also failed to proffer a reasonable excuse for this protracted delay. Since Deutsche Bank failed to proffer a reasonable excuse for defaulting at the Status Conference, this Court need not consider whether Deutsche Bank also demonstrated the existence of a potentially meritorious cause of action (see id. at 776; see also Beneficial Homeowner Serv. Corp. v Horan, 230 A.D.3dat 1212).
Accordingly, the above-referenced motion by successor-plaintiff Deutsche Bank for an order, inter alia, pursuant to CPLR 5015 (a)(1), vacating the 2013 dismissal order and the 2020 judgment, and restoring this matter to active status, is DENIED in its entirety .
The foregoing constitutes the Decision and Order of this Court.