Opinion
Index No. 57212/2023
01-08-2024
US Bank Trust National Association, Not In Its Individual Capacity But Solely As Owner Trustee For VRMTG Asset Trust, Plaintiff, v. Noah Weinstein, Kerri Weinstein, John Doe (Said Name Being Fictitious To Represent Unknown Tenants/Occupants Of The Subject Property And Any Other Party Or Entity Of Any Kind, If Any, Having Or Claiming An Interest Or Lien Upon The Mortgaged Property), Defendants.
Stern & Eisenberg counsel for pltf Martin Alan Shell ESQ counsel for deft
Unpublished Opinion
Stern & Eisenberg counsel for pltf
Martin Alan Shell ESQ counsel for deft
Robert S. Ondrovic, J.
In a residential foreclosure action, plaintiff moves for an order granting default judgment, appointing a referee, amending the caption, and declaring all non-appearing and non-answering defendants in default (Motion Seq. 1), and pro se defendant Noah Weinstein cross-moves to dismiss the complaint (Motion Seq. 2).
Papers Considered
Motion Seq. 1 NYSCEF Doc. Nos. 19-38
1. Notice of Motion/Affirmation of Stacey A. Weisblatt, Esq./Affidavit of Priscilla Serrato/Non-military Affirmation/Proposed Order/Affirmation of Service/Exhibits A-N
Motion Seq. 2 NYSCEF Doc. Nos. 39-43
1. Notice of Cross-motion/Affirmation of Noah Weinstein/Exhibit A
2. Affirmation of Stacey A. Weisblatt, Esq. in Opposition to Weinsteins' Cross-motion/Exhibit A
Discussion
By way of background, plaintiff commenced this residential foreclosure action by filing the summons and complaint on February 27, 2023. The subject property is located at XXXXXXX in Chappaqua, New York. It is alleged that on or about October 29, 2013, Noah Weinstein executed and delivered to plaintiff's predecessor-in-interest, JPMorgan Chase Bank, N.A. (Chase), the subject note secured by a mortgage on the subject property. The mortgage was subsequently transferred to plaintiff via assignment and delivery of the subject note. Defendants Noah and Kerri Weinstein allegedly failed to pay installment payments due on March 1, 2019 and thereafter. Defendants did not appear or answer the complaint.
The mortgage and note were assigned from Chase to plaintiff (recorded on June 14, 2022 as control no. 621653513) (see complaint's exhibit C). In addition, the complaint alleges that the original note was transferred and delivered to plaintiff's document custodian, Wells Fargo - Kasota Vault located at 751 Kasota Ave SE Minneapolis, MN 55414, and that plaintiff's document custodian has maintained possession of the original note since March 3, 2022.
Foreclosure settlement conferences were held on April 24, 2023 and May 30, 2023. Plaintiff's counsel appeared but defendants did not.
Plaintiff now moves for an order granting default judgment, appointing a referee, amending the caption, and declaring all non-appearing and non-answering defendants in default. In opposition, Noah cross-moves to dismiss the complaint.
In support, plaintiff proffers, among other things, the affidavit of Priscilla Serrato, Assistant Secretary of Fay Servicing, LLC (Fay), the servicer and attorney-in-fact for plaintiff. Attached to Serrato's affidavit are a power of attorney for Fay, the subject note, mortgage, assignment for the subject mortgage and note, notice of default and intent to accelerate, 90-day notice, records demonstrating the mailing of said notices, proof of filing with Superintendent of the Department of Financial Services, and payment history. Plaintiff further proffers the summons and complaint, notice of pendency, affidavits of service, and affidavits of mailing pursuant to CPLR 3215(g)(3)(i).
Affidavits of service for the summons on complaint indicate that Kerri Weinstein was personally served on March 3, 2023 and Noah Weinstein was served by substitute service on Kerri as a person of suitable age and discretion on March 3, 2023 with a follow-up mailing on March 6, 2023.
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the cause of action, and the defendant's default in answering or appearing" Clarke v Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 1194 [2d Dept 2017]). In determining whether plaintiff's cause of action is viable, "[t]he court may consider the complaint, affidavits, and affirmations submitted by the plaintiff" (id.).
Here, based on plaintiff's moving papers, it appears that defendants were served with process and failed to appear in response thereto, and that plaintiff has a meritorious cause of action.
However, in opposition and in support of his cross-motion to dismiss the complaint, Noah contends that he was not served the summons and complaint. Noah argues that Kerri was not living at the residence at the purported time of service because they were going through a divorce and living separate and apart, and that Kerri has been living in Mount Kisco, New York since 2022. Further, Noah argues that the description of the person served (female, gray hair, 51-65 years old, 5'4-5'8", 131-160 pounds) does not match Kerri's appearance, who is 44 years old with brown hair, is approximately 5'6", and weighs between 115 and 130 pounds.
"A process server's affidavit of service ordinarily constitutes prima facie evidence of service of the summons and complaint pursuant to CPLR 308 (2)" (Bedessee Imports, Inc. v Najjar, 170 A.D.3d 640, 640 [2d Dept 2019]; see Nationstar Mtge., LLC v Kamil, 155 A.D.3d 966, 967 [2d Dept 2017]; Wachovia Bank, N.A. v Carcano, 106 A.D.3d 726, 726 [2d Dept 2013])." 'Although a defendant's sworn denial of receipt generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Nationstar Mtge., LLC, 155 A.D.3d at 967 [quoting Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 719 [2d Dept 2014]]).
Here, Noah's purported discrepancies in appearance do not necessarily warrant a hearing on the issue of service since apart from hair color the discrepancies are minor (44 years old versus 51-65 years old; 5'6" versus 5'4"-5'8"; 115-130 pounds versus 131-160 pounds) (see Indymac Fed. Bank, FSB v Hyman, 74 A.D.3d 751, 751 [2d Dept 2010]). As to Noah's contention that Kerri lives elsewhere, plaintiff rightly points out in its opposition that Noah provided no specifics to substantiate the Weinsteins' separation, divorce, or Kerri's Mount Kisco address. Such lack of specifics would otherwise have been fatal to Noah's application. However, plaintiff's submission in opposition provides support for Noah's contention that Kerri has been living in Mount Kisco since 2022.
In its opposition, plaintiff submitted a "Westlaw People search" (exhibit A to plaintiff's opposition [NYSCEF Doc. 43]) and argues that it reveals Kerri's last known address to be XXXXX in Chappaqua. However, on page 7 of that submission the addresses listed for Kerri S Weinstein are:
XXXXXXX, MOUNT KISCO, NY 10549-3935 | WESTCHESTER COUNTY, UNITED STATES
Reported 01/01/2019 - 10/15/2022
XXXXXXX, CHAPPAQUA, NY 10514-1600 | WESTCHESTER COUNTY, UNITED STATES
Reported 01/15/2015 - 08/15/2022 (id. at p. 7 [entry # 24]).
The above entries indicate that two addresses were reported for Kerri from 2015 to 2022: (1) a Mount Kisco address for a date range of January 1, 2019 to October 15, 2022; and (2) the XXXXX address for a date range of January 15, 2015 to August 15, 2022. A review of the entire submission fails to confirm or report Kerri's connection to the XXXXXXX address later than August 15, 2022. The Court cannot explain the reported Mount Kisco address in plaintiff's submission, and therefore the Court cannot adopt plaintiff's position that the submission reveals XXXXX, Chappaqua, New York to be Kerri's last known address. On balance, a traverse hearing is warranted.
Tax Assessor Record information connecting Kerri to XXXXX was purportedly updated on November 8, 2022 with owner information alleged to be current through October 12, 2022, but the tax roll certification date was July 1, 2021 (see exhibit A to plaintiff's opposition at p. 119 [NYSCEF Doc. 43]).
Accordingly, Noah's cross-motion is GRANTED to the extent that a traverse hearing shall be conducted on the issue of whether Noah was properly served the summons and complaint, and plaintiff's motion is conditionally DENIED pending the traverse hearing.
In the event the hearing Court determines that service was properly effectuated upon Noah, then an order shall issue granting plaintiff's application. In the event the hearing Court determines that service was improperly effectuated upon Noah, then the action shall be dismissed as to Noah for want of personal jurisdiction over him.
All other remaining contentions have been considered and are either without merit or rendered moot by the above determination.
Based on the foregoing, it is hereby
ORDERED that plaintiff's motion for an order granting default judgment, appointing a referee, amending the caption, and declaring all non-appearing and non-answering defendants in default (Motion Seq. 1) is conditionally DENIED pending a traverse hearing on the issue of whether Noah Weinstein was properly served the summons and complaint; and it is further
ORDERED that Noah Weinstein's cross-motion for an order dismissing the complaint (Motion Seq. 2) is GRANTED solely to the extent that a traverse hearing shall be conducted on the issue of whether Noah Weinstein was properly served the summons and complaint; and it is further
ORDERED that within five (5) days following entry of this Decision and Order, plaintiff shall file a hearing Note of Issue; and it is further
ORDERED that the matter shall be referred to the Trial Assignment Part for the scheduling of the traverse hearing.