Opinion
000958/2013
01-18-2019
U.S. Bank, N.A., as Trustee for CSFB Mortgage-Backed Pass-Through Certificate.s, Series 2003-17, Plaintiff, v. Ilana Bliss; City of New York Transit Adjudication Bureau; City of New York Environmental Control Board; City of New York Parking Violations Bureau, Defendants.
Appearances: Jeffrey Marcel Steinitz 11835 Queens Blvd Forest Hills, NY 11375 For the Plaintiff Robert Ambaras, Esq. Attorney for Defendant NYS Division of Housing and Community Renewal 25 Beaver Street New York, NY 10004 Ilana Bliss Pro Se Defendant
Appearances: Jeffrey Marcel Steinitz 11835 Queens Blvd Forest Hills, NY 11375 For the Plaintiff Robert Ambaras, Esq. Attorney for Defendant NYS Division of Housing and Community Renewal 25 Beaver Street New York, NY 10004 Ilana Bliss Pro Se Defendant Johnny L. Baynes, J.
In the underlying foreclosure action, Plaintiff, US. Bank, N.A. (US Bank) moved for an Order granting summary judgment pursuant to CPLR § 3212(a). Defendant, Ilana Bliss ("Bliss") cross-motion for an Order deeming Plaintiff's said motion to be a CPLR § 2221 motion to reargue/renew this Court's below September 24, 2015 decision (the "Discovery Order"), and, in either event, denying the motion, and dismissing the action, either in view of Plaintiff's failure to set forth a prima facie case, or in view of its failure to comply with this Court's below discovery order pursuant to CPLR § 3126. US Bank and Bliss submitted reply affirmations respectively dated October 4, 2018 and October 19, 2018.
In reviewing the motions, it is initially noted that the parties herein have been engaged in protracted motion practice since 2015 when US Bank submitted its first summary judgment motion ("SJM1"). Bliss cross-moved to dismiss the action arguing, inter alia, that US Bank (1) lacked standing to foreclose in view of fatal defects in its prima facie case, and/or (2) that the action should be dismissed on one of several procedural grounds including its servicing agent's failure to file a power-of-attorney in the county in which the underlying property is located, prior to commencing the action, pursuant to Section 421 of the Real Property Law.
On March 26, 2015, after oral argument, this Court denied US Bank's SJM1 in view of its failure at that time to rebut Bliss' foregoing RPL § 421 power-of-attorney registration argument. Said Order did not address the issue of US Bank's standing, and granted Bliss' cross-motion solely to the extent of Ordering US Bank to respond to her Exhibit "G" discovery demands within 60 days (the "Discovery Order").
US Bank then interposed a new summary judgment motion ("SJM2") within less than the 60 days afforded to it to comply with the Discovery Order, and did so without an accompanying affidavit of compliance with said Discovery Order. Accordingly, this Court issued its April 7, 2018 Order denying US Bank's SJM2 motion for the reasons set forth in the record for that day, and Bliss withdrew her cross motion.
US Bank interposed a third summary judgment motion ("SJM3"), again without an affidavit of attempted compliance with this Court's Discovery Order, however, after a conference, it was allowed to withdraw the motion.
Now, US Bank has interposed the underlying fourth summary judgment motion ("SJM4"), yet again without an affidavit of compliance with this Court's Discovery Order, thus leading to the foreseeable conclusion that said motion again will be denied, and leaving only the question of whether Bliss' cross-motion should be granted, and if so, to what extent.
The parties expended considerable energy in their respective motions debating whether US Bank's SJM4 should be deemed a likely untimely CPLR § 2221 motion to reargue/renew, or a "plenary (sic)" CPLR § 3212(a) motion for summary judgment on new grounds.
In this Court's opinion, US Bank may be dancing dangerously close to a conclusion that it is indeed engaging in frivolous motion practice solely for the purpose of "forum shopping" for a different result, however, technically, SJM4 may be construed as a substantively new motion since, in addition to rehashing the same previously rejected arguments, it now includes at least one new, previously unargued legal theory.
Specifically, buried within a sea of arguments, primarily relating to standing, is US Bank's new argument that that this Court's basis for denying SJM1, namely US Bank's failure to rebut Bliss' RPL § 421 power-of-attorney registration argument, is inapplicable in view of EPTL § 13-1.1(a)(7). Said new argument is, however, baseless.
US Bank essentially argues that this Court should not have denied its series of summary judgment motions, despite its servicing agent's unrefuted failure to comply with RPL § 421 filing requirement, because the mortgage secured by the note on the underlying property is personalty, rather than realty, and that accordingly, this State's Real Property Law provisions are inapplicable.
In this regard, Section 13-1.1(a)(7) of New York's Estates, Powers and Trust Law provides that "[d]ebts secured by mortgages" are the personal property of a decent "[f]or purposes of the administration of an estate " See also, e.g., Matter of Cincotta, 106 AD3d 998 (2d Dept. 2013). US Bank has not referred to any section of law or case of higher precedent suggesting that the foregoing provision is inconsistent with Section 421 of the Real Property Law which provides:
"[b]efore any person can convey, charge, incumber or otherwise deal with any registered property, or any estate, right or interest therein, as attorney in fact for another, the deed or instrument empowering him so to act shall be filed with the registrar and a memorial thereof shall be entered upon the certificate in the title book, in like manner as in the case of a charge or incumbrance."
Indeed, while US Bank has not even submitted an affidavit suggesting a factual basis for EPTL § 13-1.1(a)(7) to apply, i.e., that the mortgage secured by the underlying note is part of a decent's estate, it has offered no theory as to why, even if the EPTL were applicable, it would be inconsistent with the RPL § 421's filing obligation for agents who act as their principals' attorney-in-fact while administering for registered properties within decendents' estates, particularly where, as here, the RPL provision applies more broadly to "any right or interest" in "any registered property or estate (emphasis added)."
US Bank further suggests that Bliss' argument that its servicing agent was obligated to comply with RPL § 421 is "nothing short of frivolous" because such power-of-attorney, a copy of which is not even annexed as an exhibit to US Bank's motion, was "readily available online." US Bank further hypothetically speculates that "[d]oubtless, Defendant's counsel entered the CFRN into ACRIS, and confirmed for himself the fact that the power of attorney was recorded."
In the opinion of this Court, it is US Bank's forgoing argument which borders on being deemed "nothing short of frivolous." Once US Bank admitted its reliance upon its servicing agent acting as its attorney-in-fact, and failed to dispute that the property securing its underlying mortgage was a registered property to which RPL § 421 applies, it was US Bank's burden to prove compliance therewith, or an exemption therefrom, as opposed to Bliss', or this Court's, obligation to look up whether or not its serving agent's filed a power-of-attorney.
Moreover, US Bank's argument does not appear to be that Bliss could have confirmed that it servicing agent had a valid power of attorney filed in the applicable county, but rather that its supposedly filing such a power-of-attorney in a different county put Bliss on actual or constructive notice thereof, thereby excusing its compliance obligation. US Bank has, however, pointed to nothing within the statute or cited any case from a court of higher jurisdiction supporting its foregoing theory.
Indeed, since US Bank has not annexed of copy of its supposed power-of-attorney, it is not even clear whether it actually is what counsel alleges that it is. Said supposed power-of-attorney could be a reference to the servicing agent agreement, which depending on its terms, may or may not include authority to commence foreclosure actions.
Meanwhile, Bliss' cross motion'to dismiss the complaint essentially rests upon three theories, namely US Bank's: (1) lack of standing, (2) procedural failure to comply with RPL § 421's filing requirements, and (3) failure to comply with the Discovery Order. As noted, this Court's prior decisions did not opine on US Bank's standing, and merely denied its summary judgment motions in view of its failure to rebut its servicing agent's apparent failure to comply with, or exemption from, RPL § 421's filing requirement. This Court declined rule on the issue of standing in view of both party's failure to adequately brief the issues.
This Court finds, however, that Bliss has established that US Bank's servicing agent was obligated to comply with RPL § 421's procedural filing requirement, but failed to do so.
This Court further finds that US Bank's interposing of three summary judgment motions without an affidavit attesting to its efforts to comply with this Court's Discovery Order weighs heavily in favor of a finding of bad faith, and that its argument that Bliss was obligated to show "good faith efforts to resolve the parties' discovery dispute," or that her discovery requests are "material and necessary," and/or that the evidence sought "is relevant or likely to lead to the discovery of relevant evidence," is baseless prior to its own attestation of what steps it took to comply with what this Court's Order similarly borders on being deemed frivolous. It was US Bank, rather than Bliss, that was Ordered to comply, and any obligation on Bliss' part to make such arguments, would have arisen only after US Bank made its own attempt to demonstrate good faith compliance efforts, as reflected by an affidavit rather than counsel's unsubstantiated, non-evidenciary, hearsay comments.
WHEREFORE, it is hereby
ORDERED AND ADJUDGED that Plaintiff's motion is denied; and it is further
ORDERED AND ADJUDGED that Defendant's cross motion is granted solely to the extent of dismissing the action, without prejudice, in view of Plaintiff's failure to demonstrate its compliance with, or exemption from, RPL § 421's apparent filing requirements for its servicing agent, allegedly acting as attorney-in-fact, and/or in view of Plaintiff's repeated failure to comply with this Court's foregoing Discovery Order.
No opinion is made with respect to the issue of Plaintiff's standing to foreclose, or lack thereof, in view of the parties' failure to adequately support their current motions with valid affidavits and well organized copies of all relevant pleadings and material documentary evidence pursuant to CPLR § 3212(b).
The foregoing constitutes the Decision and Order of the Court.
ENTER
____________________________________ JOHNNY L. BAYNES, JSC So Ordered