Opinion
41815–09
11-29-2017
US BANK NATIONAL ASSOCIATION as Trustee for JP Morgan Mortgage Acquisition Trust 2006–WMC4, Asset Backed Pass-Through Certificates Series 2006–WMC4, Plaintiff, v. Bret EVANS, Mortgage Electronic Registration Systems, Inc., as nominee for WMC Mortgage Corp., Defendants.
McCABE, WEISBERG & CONWAY, 145 Huguenot St.—Ste. 210, New Rochelle, NY 10801, Attys. For Plaintiff. BRET EVANS, Defendant Pro Se JOHN BENNETT, ESQ., Referee 212 Windmill Ln., Southampton, NY 11968.
McCABE, WEISBERG & CONWAY, 145 Huguenot St.—Ste. 210, New Rochelle, NY 10801, Attys. For Plaintiff.
BRET EVANS, Defendant Pro Se
JOHN BENNETT, ESQ., Referee 212 Windmill Ln., Southampton, NY 11968.
Thomas F. Whelan, J.
Upon the following papers numbered 1 to 12 read on this motion by the defendant to vacate all prior orders ; Notice of Motion/Order to Show Cause and supporting papers 1–3 ; Notice of Cross Motion and supporting papers; Opposition papers 4–5 ; Reply papers 6 ; Other 7–8 (Notice of Rejection); 9–10 (Notice of Rejection); 11–12 (Notice of Rejection); (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (# 007) by the defendant, Bret Evans, for the vacatur of all prior orders issued in this action is granted in part and denied in part; and it is further
ORDERED that the portion of defendant's motion (# 007) seeking to vacate the Judgment of Foreclosure and Sale dated July 24, 2017 is granted; and it is further
ORDERED that the remaining portions of defendant's motion (# 007) seeking vacatur of all prior orders in this case, as well as dismissal of the complaint, is denied in its entirety; and it is further
ORDERED that the parties are directed to appear at a status conference to be held on February 8, 2018 , at 9:30 a.m. in Part 33, at the courthouse located at 1 Court Street—Annex, Riverhead, New York; and it is further
The record before the court demonstrates that the plaintiff undisputedly failed to provide the defendant with notice of the motion seeking a Judgment of Foreclosure and Sale in accordance with CPLR 2103. "The failure to give ... timely notice of the motion ‘deprived the court of jurisdiction to entertain the motion’ " and therefore, the resulting order is void ( Wells Fargo Bank, N.A. v. Whitelock , 154 AD3d 906, 906, 62 NYS3d 458, 460 [2d Dept 2017], citing Golden v. Golden , 128 AD2d 672, 673, 513 NYS2d 171 ; see Crown Waterproofing, Inc. v. Tadco Constr. Corp. , 99 AD3d 964, 953 NYS2d 254 [2d Dept 2012] ; Financial Servs. Veh. Trust v. Law Offs. of Dustin J. Dente , 86 AD3d 532, 926 NYS2d 326 [2d Dept 2009] ). Accordingly, the order dated July 24, 2017 is vacated on that basis.
The remaining portions of defendant's motion (# 007) seeking vacatur of all prior orders in this case, as well as dismissal of the complaint, as defendant alleges that the RPAPL § 1303 notice was defective, and that the plaintiff failed to comply with AO 431/11, are denied. The Court finds these allegations to be without merit.
The plaintiff has submitted the affidavit of service upon the defendant which detailed the documents served upon the defendant. Here, the affidavit of service is prima facie evidence "of proper service of the notice required by Real Property Actions and Proceedings Law § 1303" ( Deutsche Bank Natl. Tr. Co. v. Quinones , 114 AD3d 719, 719, 981 NYS2d 107 [2d Dept 2014] ; see US Bank NA v. Tate , 102 AD3d 859, 958 NYS2d 722 [2d Dept 2013] ). The defendant has failed to overcome the presumption of service of the proper RPAPL § 1303 notice as set forth in the affidavit of service, and fails to demonstrate how the notice was improper (see HSBC Bank USA, Nat. Assn, v. Ozcan , 154 AD3d 822, ––– NYS3d –––– [2d Dept 2017] ; Onewest Bank, N.A. v. Mahoney , 154 AD3d 770, 62 NYS3d 144 [2d Dept 2017] ). The defendant's claims are thus without merit.
In any event, this Court had previously struck the defendant's answer and granted plaintiff's order of reference. The defense could have been raised at that time and at this stage of the proceedings, cannot be raised (see generally, HSBC Bank USA, Natl. Assn. v. Hasis , 154 AD3d 832, 62 NYS3d 467 [2d Dept 2017] ; Bank of Am., N.A. v. Agarwal , 150 AD3d 651, 57 NYS3d 153 [2d Dept 2017] ; HSBC Bank USA, Natl. Assn. v. Clayton , 146 AD3d 942, 45 NYS3d 543 [2d Dept 2017] ).
The defendant's request to vacate the remaining orders based on plaintiff's alleged failure to comply with Administrative Order 431/11 is also denied. This mortgage foreclosure action was commenced on October 19, 2009. This Court granted plaintiff's motion for summary judgment and to appoint a referee to compute by Order dated July 16, 2010. The original Administrative Order 548/10 went into effect on November 18, 2010, over four months after the Court granted the Order. Therefore, this assertion is moot with regards to that Order (see US Bank NA v. Ramjit , 125 AD3d 641, 2 NYS3d 587 [2d Dept 2015], citing Wells Fargo Bank, NA v. Ambrosov , 120 AD3d 1225, 1226, 993 NYS2d 322 [2d Dept 2014] ; Flagstar Bank v. Bellafiore , 94 AD3d 1044, 1045, 943 NYS2d 551 [2d Dept 2012] ; US Bank, NA v. Boyce , 93 AD3d 782, 782, 940 NYS2d 656 [2d Dept 2012] ).
The defendant's challenge regarding the plaintiff's filing of the Certificate of Merit with the motion for judgment of foreclosure and sale may bear merit. Administrative Order 208/13, which was issued on August 1, 2013, provides that for actions commenced prior to that date, the plaintiff can establish compliance either through an affirmation filed in accordance with Administrative Order 431/11 or by filing a certificate of merit with a request for judicial intervention pursuant to CPLR 3012–b. Given the directives of Administrative Order 208/13, the Court questions why the plaintiff proceeded with filing the certificate of merit. Nevertheless, because the judgment of foreclosure and sale has been vacated, the plaintiff is directed to proceed with the appropriate filing to confirm the accuracy of the filed pleadings in accordance with Administrative Order 208/13.
Therefore, the Court grants that portion of defendant's motion (# 007) to vacate the Judgment of Foreclosure and Sale dated July 24, 2017, and denies the remainder thereof. Plaintiff is hereby directed to file its motion for judgment of foreclosure and sale within 60 days of the date of this Order and the parties are directed to appear for a conference on February 8, 2018 as indicated above.