Opinion
6615/13
07-01-2015
Wells Fargo Bank, N.A., Plaintiff, v. Moniruzzaman Miah; MOSAMMAT SALMA A/K/A MOSAMMAT UMMAY SALMA; CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; CITY OF NEW YORK PARKING VIOLATIONS BUREAU; CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU and JOHN DOE said name being fictitious, it being the intention of plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants.
Plaintiff commenced this action on April 5, 2013 to foreclose a consolidated mortgage given by defendants Moniruzzaman Miah and Mosammat Salma a/k/a Mosammat Ummay Salma to secure a consolidated note in the principal amount of $376,000.00 plus interest on the real property known as 147-40 Coolidge Avenue, Briarwood, New York.
Plaintiff for moves leave to amend the caption to reflect the correct name of defendant "John Doe" to read "Begum Safia," for leave to enter a default judgment against defendants pursuant to CPLR 3215, and for leave to appoint a referee pursuant to RPAPL 1321. Defendants Moniruzzaman Miah and Mosammat Salma a/k/a Mosammat Ummay Salma oppose the motion and cross move pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them, or in the alternative, pursuant to CPLR 2004 and 3012 to excuse their default in answering, and for leave to interpose a late answer as proposed and compel plaintiff to accept their late answer.
Defendants Miah and Salma filed a notice of appearance, and the remaining defendants are in default in appearing or answering.
Plaintiff, through investigation, has determined that Begum Safia, served herein as defendant "John Doe," is a necessary party to the action. That branch of the motion by plaintiff for leave to amend the caption substituting Begum Safia for defendant "John Doe" is granted.
Plaintiff admits that its motion for leave to enter a default judgment against defendants Miah and Salma is made more than one year after their default in answering. "When a plaintiff fails to seek leave to enter a default judgment within one year after the default has occurred, the action is deemed abandoned" (Solano v Castro, 72 AD3d 932 [2d Dept 2010]; see also Giglio v NTIMP, Inc., 86 AD3d 301 [2d Dept 2012]; Cynan Sheetmetal Prods., Inc. v BR. Fries & Assoc., Inc., 83 AD3d 645 [2d Dept 2011]). To avoid dismissal of the action as abandoned pursuant to CPLR 3215(c), a plaintiff is required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious cause of action (see Ohio Sav. Bank v Decaudin, ___ AD3d ___; 2015 WL 3756489, 2015 NY App Div LEXIS 5045 [2d Dept 2015]; see Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 751 [2d Dept 2014]; Giglio v NTIMP, Inc., 86 AD3d 301, 307—308). The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the court (see Giglio v NTIMP, Inc., 86 AD3d 301).
In this instance, the time to answer by defendants Miah and Salma expired on May 27, 2013, and plaintiff requested a residential mortgage foreclosure settlement conference on the "Request for Judicial Intervention" form served on June 25, 2013. A conference was held on April 16, 2014, at which defendants defaulted in appearing. By order of the same date, the Court Attorney Referee directed plaintiff to appear for a status conference on October 14, 2014 and file an application for an order of reference by that date. Thereafter, by order dated October 14, 2014, the Court Attorney Referee directed plaintiff to appear for a final status conference on June 30, 2015 and file an application for an order of reference by that date (see order dated October 14, 2014). The Court Attorney Referee noted that the prior order (April 16, 2014) had not been complied with, and ordered that plaintiff's failure to comply with the terms of the order (dated October 14, 2014) would be grounds for dismissal without prejudice.
Plaintiff's motion for leave to enter a default judgment was made on January 5, 2015, within one year after the case was released from the conference part and in accordance with the order dated October 14, 2014. Under such circumstances, plaintiff may not be said to have abandoned the action and sufficient cause exists as to why it did not move for default judgment within one year of May 27, 2013 (see GMAC Mortg., LLC v Todaro, ___ AD3d ___, 9 NYS3d 588 [2d Dept 2015]; Countrywide Home Loans Servicing, L.P. v Crespo, 46 Misc 3d 1226(A) [Sup Ct, Suffolk County 2015, Whelan, J.]; see also Klein v St. Cyprian Props., Inc., 100 AD3d 711 [2d Dept 2012]). In addition, it appears that plaintiff has a meritorious claim. That branch of the cross motion by defendants Miah and Salma pursuant to CPLR 3215(c) is denied (see GMAC Mortg., LLC v Todaro, ___ AD3d ___, 9 NYS3d 588; Countrywide Home Loans, Inc. v Brown, 19 AD3d 638 [2d Dept 2005]).
With respect to that branch of the cross motion by defendants Miah and Salma to excuse their default in answering, and for leave to interpose a late answer as proposed and compel plaintiff to accept their late answer, a defendant seeking to successfully oppose a motion for leave to enter a default judgment and compel the plaintiff to accept an untimely answer as timely must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 3012[d]; Emigrant Bank v Wiseman, 127 AD3d 1013 [2d Dept 2015]; Chase Home Fin., LLC v Minott, 115 AD3d 634, 634 [2d Dept 2014]; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784, 785 [2d Dept 2011]). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see U.S. Bank Nat. Assn. v Sachdev, 128 AD3d 807 [2d Dept 2015]; Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890 [2d Dept 2010]).
Defendants Miah and Salma state that they were served with the summons and complaint on or about April 10, 2013, and immediately contacted the lender, seeking to obtain a modification of the subject mortgage. Defendants Miah and Salma entered into a forbearance plan with plaintiff and made payments thereunder through December 2013. At the conclusion of the forbearance period, they were not able to afford to resume the regular payments as required pursuant to the forbearance plan, and after settlement negotiations failed, met with counsel to discuss their options. A notice of appearance was filed by counsel on February 4, 2014.
Although the reliance by defendants Miah and Salma upon the forbearance is substantiated, neither defendants Miah and Salma nor their counsel appeared at the scheduled court conferences, which occurred after the forbearance period ended, and thus never engaged in a mortgage modification negotiation under the auspices of the court. Defendants Miah and Salma also fail to substantiate that they engaged in private settlement negotiations with plaintiff at anytime after they met with counsel. The summons, furthermore, included language expressly warning them that they were in "IN DANGER OF LOSING" their home, and a default judgment might be entered against them if they did not "RESPOND BY SERVING A COPY OF THE ANSWER" ( see RPAPL 1320; HSBC Bank USA, Nat. Assn. v Rotimi, 121 AD3d 855 [2d Dept 2014]; HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647, 648 [2d Dept 2014]; Chase Home Fin., LLC v Minott, 115 AD3d at 634—635). Under such circumstances, defendants Miah and Salma have failed to provide a reasonable excuse for their failure to serve an answer following the conclusion of the forbearance period ( see HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647; see also Mannino Development, Inc. v Linares, 117 AD3d 995 [2d Dept 2014]).
In view of the failure by defendants Miah and Salma to offer a reasonable excuse, it is unnecessary to consider whether they sufficiently demonstrated a potentially meritorious defense (see U.S. Bank Nat. Assn v Sachdev, 128 AD3d 807; Citimortgage, Inc. v Stover, 124 AD3d 575 [2d Dept 2015]; HSBC Bank USA, N.A. v Lafazan, 115 AD3d at 648; JP Morgan Chase Bank, N.A. v Palma, 114 AD3d 645, 645-646 [2d Dept 2014]). That branch of the cross motion by defendants Miah and Salma to excuse their default in answering and to compel plaintiff to accept their late answer is denied.
With respect to the branch of the motion by plaintiff for leave to fix the default of defendants, plaintiff has demonstrated defendants failed to appear or answer the complaint within the time allowed. It also has submitted a copy of the consolidated mortgage and note, the CEMA, and an affidavit of Marcus Wolfe, a vice president of loan documentation for plaintiff, setting forth the facts establishing the claim, and evidence of the default by defendants Miah and Salma in payment of the monthly mortgage installment due under the note and mortgage on September 1, 2012 and thereafter (see Bank of New York v Alderazi, 99 AD3d 837 [2d Dept 2010]; Emigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823, 824 [2d Dept 2011]). Plaintiff has further submitted an affirmation of its counsel dated May 13, 2013 in accordance with Administrative Order 431/2011, indicating that on April 4, 2014, she communicated with plaintiff's representative, Maria R. Serrano Jaramillo, vice president for loan documentation for plaintiff, who informed her that Serano Jaramillo had personally reviewed plaintiff's documents and records relating to this case for factual accuracy and confirmed the factual accuracy of the allegations set forth in the complaint and supporting affidavits or affirmations filed with the court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith. To the extent defendants Miah and Salma argue in opposition that plaintiff lacks standing to commence the action, by defaulting in answering, they waived such argument ( see U.S. Bank, N.A. v Bernabel, 125 AD3d 541 [1st Dept 2015]). To the extent they argue plaintiff did not comply with RPAPL 1304, it has tendered sufficient evidence that it complied with RPAPL 1304 ( see Emigrant Mortg. Co., Inc. v Persad, 117 AD3d 676 [2d Dept 2014]).
That branch of the motion for leave to appoint a referee is granted (RPAPL 1321[1]).
Order signed contemporaneously herewith.
Dated: Long Island City, NY
July 1, 2015
______________________________
ROBERT J. McDONALD
J.S.C.