Opinion
604830/2015
06-18-2018
WELLS FARGO BANK, N.A., as Trustee Option One Mortgage Loan Trust 2005–5 Asset–Backed Certificates, Series 2005–5, Plaintiff, v. Won F. HAN a/k/a Won Han People of the State of New York John Doe (Refused Name) Jane Doe (Refused Name), Defendants.
McCABE, WISBERG & CONWAY, LLC, 145 Huguenot Street, Suite 210, New Rochelle, NY 10801, Attorneys for Plaintiff Won F. Hon a/k/a Won Han, pro se John Doe (Refused Name), pro se Jane Doe (Refused Name), pro se
McCABE, WISBERG & CONWAY, LLC, 145 Huguenot Street, Suite 210, New Rochelle, NY 10801, Attorneys for Plaintiff
Won F. Hon a/k/a Won Han, pro se
John Doe (Refused Name), pro se
Jane Doe (Refused Name), pro se
Robert F. Quinlan, J.
Upon the following papers read on this application for an order for: vacating judgment of foreclosure and sale and granting second judgment of foreclosure and sale ; Notice of Motion dated April 3, 2018 and supporting papers; it is
ORDERED that this unopposed motion by plaintiff to vacate the judgment of foreclosure and sale and for an order granting a "second" judgment of foreclosure and sale is denied; and it is
ORDERED that time limit for conducting the sale pursuant to RPAPL 1351(1) is hereby extended, the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of this order; and it is further
ORDERED that all of the remaining terms and conditions of the August 1, 2017 judgment of foreclosure and sale remain in full force and effect.
This is an action to foreclose a mortgage on the premises known as 1415 Ohio Avenue, Bay Shore, Suffolk County, NY. Plaintiff commenced this action in 2015. Judgment of Foreclosure and Sale was granted by order of the court dated August 1, 2017.
Plaintiff has now submitted the present motion (003) to vacate the judgment of foreclosure and sale dated August 1, 2017 and for an order granting a "second" judgment of foreclosure and sale. Plaintiff fails to provide a legal basis for its motion. The only explanation given is that the judgment of foreclosure and sale was granted when the matter was on loss mitigation hold. Based upon that statement, and the lack of facts provided, it appears that the motion for judgment of foreclosure and sale was filed prior to the loss mitigation application.
To the extent plaintiff's requested relief is based upon the rules issued by the Federal Consumer Financial Protection Bureau (CFPB) which prohibit "dual tracking" ( 12 C.F.R. § 1024.41 ), the application is denied. The court notes that 12 C.F.R. § 1024.41 governs a servicer's response to a loss mitigation application. 12 C.F.R.§ 1024.41(c) (3) (I) (D) (2) provides that where a borrower makes application and a judicial foreclosure has already been commenced, "the servicer cannot conduct a foreclosure sale before evaluating the borrower's complete application." Further, 12 C.F.R.§ 1024.41(g) prohibits a servicer from either holding a foreclosure sale or moving for a sale if a borrower makes a loan mitigation application within certain time constraints. In comments on the servicing rules, the CFPB has stated that "nothing in 1024.41(g) prohibits a servicer from continuing to move forward with a foreclosure process (assuming that the first notice or filing was made before a servicer received a complete loss mitigation application) so long as the servicer does not take an action that will directly result in the issuance of a foreclosure judgment or order of sale, or a foreclosure sale (see Mortgage Servicing Rules , 78 Fed. Reg. at 10833–35 ). Additionally, CFPB Official Bureau Interpretations advise that if a servicer takes reasonable steps to avoid a ruling on a motion with an application pending, whether successful or not in avoiding a dispositive motion or order, as long as the servicer did not take direct action resulting in issuance of a foreclosure judgment, the servicer has not violated the rules (see Mortgage Servicing Rules , 78 Fed. Reg. at 10833–35 ). In any event, a violation by the servicer/lender of the prohibition against "dual tracking" merely affords a borrower a separate action in federal court against the servicer/lender for the assessment of a monetary penalty, it is not a defense to a state foreclosure action, nor is it a basis to vacate a valid judgment of foreclosure and sale.
As stated above, if plaintiff's application which resulted in the order of August 1, 2017 was filed prior to the loan modification being made, then there would be no violation of federal regulations. In any event even if the filing was made when the loan modification application was pending, such does not relieve the court of jurisdiction to issue the order of August 1, 2017. Plaintiff's application is both unnecessary and a waste of judicial resources.
There are few cases that can be found in New York that address this issue, among them are this court's decisions in Deutsche Bank Nat. Trust Co. v. Cybula , 57 Misc 3d 1215 (A), 2017 NY Slip. Op 51473 (U) (Sup Ct, Suffolk County 2017) and HSBC Bank, USA, N.A. v. Ahmad , 2018 NY Slip. Op 50564 (U) (Sup Ct, Suffolk County 2018), and two decisions by Justice Thomas F. Whelan of this court, Countrywide Home Loan Servicing, L. P. v. Crespo , 46 Misc 3d 1226 (A), 2015 NY Slip. Op 50306 (U) (Sup Ct, Suffolk County 2015) and Federal National Mortgage Assoc. v. Karastamatis , 52 Misc 3d 1007 (Sup Ct, Suffolk County 2016), holding that a claim of "dual tracking" is neither a defense in a foreclosure action or a basis to stay a foreclosure action. Federal courts have similarly interpreted the "dual tracking" requirements (see Roosevelt Cayman Asset Company II v. Mercado, 259 F. Supp.3d 1[US Dist Ct, Puerto Rico 2016] ; Zaychick v. Bank of America, N.A. [US Dist Ct, SD FL 2015] ).
Accordingly the motion is denied.