Opinion
606954-2015
11-12-2019
WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its Individual Capacity but Solely in its Capacity as Trustee of MFRA Trust 2015-1, Plaintiff, v. William G. FICHTER a/k/a William Fichter, Sarah L. Fichter, a/k/a Sarah Fichter, JPMorgan Chase Bank, Target National Bank, Slomins Inc., Newab U. Din, LVNV Funding LLC, JPMorgan Chase Bank, National Association, Clerk of the Suffolk County District Court, Clerk of the Suffolk County Traffic and Parking Violations Agency, the People of the State of New York, Billy Fichter, Defendants.
FRIEDMAN VARTOLO, LLP, 85 Broad St., Suite 501, New York, NY 10004, Attorneys for Plaintiff. DAVID L. SINGER, PC., 150 Broadhollow Road, Suite 122, Melville, New York 11747, Attorney for Defendants William and Sarah Fichter, [and others, see attached]
FRIEDMAN VARTOLO, LLP, 85 Broad St., Suite 501, New York, NY 10004, Attorneys for Plaintiff.
DAVID L. SINGER, PC., 150 Broadhollow Road, Suite 122, Melville, New York 11747, Attorney for Defendants William and Sarah Fichter, [and others, see attached]
Robert F. Quinlan, J.
Upon the following papers read on this application for an order confirming the referee's report and for judgment of foreclosure and sale; Notice of Motion/Order to Show Cause and supporting papers Doc No.70-87; Affirmation/Affidavit in Opposition Doc #89-90; Reply Affirmation in Further Support and supporting papers Doc # 92-96 ; Other; it is
ORDERED that the motion by plaintiff Wilmington Trust, National Association, not in its Individual Capacity but Solely in its Capacity as Trustee of MFRA Trust 2015-1 for an order confirming the referee's report and for judgment of foreclosure and sale is denied; and it is further
ORDERED that plaintiff Wilmington Trust, National Association, not in its Individual Capacity but Solely in its Capacity as Trustee of MFRA Trust 2015-1 is authorized to file a successive motion for judgment of foreclosure and sale to address the issue raised by defendant William Fichter as to the sufficiency of the content of the notice required by RPAPL § 1303.
This is an action to foreclose a mortgage on residential real property known as 31 Serene Place, Hauppauge, Suffolk County, New York given by defendants William G. Fichter a/k/a William Fichter and Sarah L. Fichter a/k/a Sarah Fichter ("defendants") to Washington Mutual Bank, FA., a predecessor in interest to plaintiff Wilmington Trust, National Association, not in its Individual Capacity but Solely in its Capacity as Trustee of MFRA Trust 2015-1 ("plaintiff").
The prior history of this action is set forth in the court's order of November 14, 2017 granting then plaintiff JPMorgan Chase Bank, National Association, a successor in interest to Washington Mutual Bank, FA. and a predecessor in interest to plaintiff, partial summary judgment dismissing defendants' first and third affirmative defenses (Mot. Seq. #001), and in the decision after trial held October 19, 2018 dismissing defendants' second and fourth affirmative defenses, awarding judgment dismissing defendants' answer and appointing a referee to compute pursuant to RPAPL § 1321. Plaintiff now moves for judgment of foreclosure and sale (Mot. Seq. #002) and only defendant William Fichter ("defendant") opposes the motion, arguing for the first time that plaintiff failed to serve a statutorily complaint notice as required by RPAPL § 1303 along with the summons and complaint upon him. (The court notes that only defendant submits an affidavit in opposition and that defendant's counsel's affirmation in opposition is addressed as only representing defendant.) In reply plaintiff argues that there was compliance with RPAPL § 1303, as shown by its process server's affidavit, that in any event, defendant is now barred from raising this objection as the court has granted summary judgment dismissing defendants' answer, that such finding is "res judicata, " and that defendant's opposition is in reality an untimely application to renew and/or reargue the court's decisions in Motion Seq. #001 and after the trial of October 18, 2018, which is not made, as required, by motion.
In determining defendant's newly raised claim of plaintiff's non-compliance with RPAPL § 1303 the court is again confronted with a defendant, represented by counsel experienced in foreclosure defense, who waits until the last moment to raise a statutory condition precedent that should have been raised earlier in the litigation. Under other circumstances, the court's inclination would be to deem defendant's "new found" objection waived, as it has long been held that if a party moves for summary judgment, it is incumbent upon an opponent to lay bare its proof and present evidentiary facts sufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc . 46 NY2d 1065 [1979] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ; Morgan v. NY Tel ., 220 AD2d 728 [2d Dept 1995] ; Hovi v. City of New York , 226 AD2d 430 [2d Dept 1996] ; Avant v. Cepin Livery Corp., 74 AD3d 533 [1st Dept 2010] ). Defendants had the opportunity to raise this issue in their answer, in opposition to plaintiff's motion for summary judgment in October 2016, or at the limited issue trial of October 2018, yet failed to do so. Instead, defendant now raises the issue of plaintiff's non-compliance with RPAPL § 1303, as to defendant alone, in opposition to plaintiff's motion for a judgment of foreclosure and sale.
As with other RPAPL Article 13 conditions precedent, it has been held that a defendant can raise the claim of non-compliance with the requirements of RPAPL § 1303 at any time (see First Natl. Bank of Chicago v. Silver , 73 AD3d 162 [2d Dept 2010] ; Aurora Loan Services v. Weisblum , 85 AD3d 95 [2d Dept 2011] ; Deutsche Bank Natl. Trust Co. v. Starr , 173 AD3d 836 [2d Dept 2019] ), even as late as in opposition to a motion for a judgement of foreclosure and sale (see Emigrant Mtge Co, Inc. v. Lifshitz , 143 AD3d 755 [2d Dept 2016] ; Wells Fargo Bank, N.A. v. Merino , 173 AD3d 419 [1st Dept 2019] ). Only on appeal has it been held too late to raise the issue for the first time (see 40 B, LLC v. Katalikarn, 147 AD3d 710 [2d Dept 2017] ; Bank of America, NA v. Barton , 149 AD3d 676 [2d Dept 2017] ; Bank of America, N.A. v. Cudjoe , 157 AD3d 653 [2d Dept 2018] ). Therefore, the court must consider defendant's claim, as under the facts as set forth below, failure to do so would constitute an abuse of its discretion.
As indicated by the decisions cited in the preceding paragraph, plaintiff's argument that defendant's opposition is precluded by "res judicata ," the doctrine of the law of the case, or as an improper and untimely attempt to move to renew/ reargue the prior decisions of the court are misplaced and the court will address defendant's claim raised solely in opposition to plaintiff's motion.
The court further notes that neither defendant, nor his co-defendant wife, raise any other objections to plaintiff's motion, including any claim as to the sufficiency of the evidence submitted to the referee pursuant to the order of October 18, 2018, the referee's report or any other matter relating to plaintiff's submissions and motion. Having failed to raise such objections, defendants have waived them.
RPAPL § 1303 requires proper service on a mortgagor, along with the summons and complaint, of a notice entitled "Help for Homeowners in Foreclosure," (the notice") containing the language set forth in the applicable version of the statute in bold fourteen point type, with the title of the notice in bold twenty point type, and on colored paper that is other than the color of the summons and complaint, as a condition precedent to a residential foreclosure action (see Prompt Mtge. Providers of North America, LLC v. Singh , 132 AD3d 833 [2d Dept 2015] ). Once the issue of plaintiff's service of such a notice is raised, plaintiff is required to prove compliance with RPAPL § 1303 by evidence in admissible form (see Bank of New York v. Aquino , 131 AD3d 1186 [2d Dept 2015] ; Cenlar FSB v. Weisz , 136 AD3d 855 [2d Dept 2016] ; M & T Bank v. Joseph , 152 AD3d 579 [2d Dept 2017] ; US Bank, N.A. v. Nelson, 169 AD3d 110 [2d Dept 2019] ). Upon a motion to dismiss by defendant, proof of noncompliance would mandate dismissal of the complaint (see Prompt Mtge. Providers of North. America, LLC v. Singh , supra ; Aurora Loan Services, LLC v. Weisblum , supra ; First Natl. Bank of Chicago v. Silver , supra ), but defendant here has not moved for dismissal, only raising the issue in opposition to plaintiff's motion, and the court will not sua sponte consider dismissal (see US Bank, N.A. v. Emmanuel, 83 AD3d 1047 [2d Dept 2011] ; LaSalle Bank, N.A. v. Jagoo, 147 AD3d 746 [2d Dept 2017] ; JP Morgan Chase Bank, N.A. v. Laszlo , 169 AD3 885 [2d Dept 2019] ).
In an attempt to raise an issue of fact as to plaintiff's compliance with RPAPL § 1303 in opposition to the motion for judgment of foreclosure and sale, defendant submits his affidavit, in which he states that "I was not served with a statutorily compliant RPAPL 1303 notice...." In his affirmation in support, defendant's counsel points out that plaintiff's affidavit of service fails to establish that the headings of the notice were in bold type, or that the font sizes (sic "point type") contained in the notice were in compliance with the requirements of the version of RPAPL § 1303 in effect at the time of service. In support of its motion, plaintiff attached as Exhibit "J" (NYSCEF Doc. #81) a copy of the affidavit of service of the summons and complaint ("the affidavit") which contains a statement that the process server also served a "NOTICE PURSUANT TO RPAPL § 1303 ON PINK COLORED PAPER." This is the only description of the notice and no copy of the notice was submitted as part of Exhibit "J."
In reply, plaintiff submits a third copy of the affidavit (Exhibit "C," NYSCEF Doc. # 95), also without a copy of the notice, arguing that the affidavit of service containing the above language is sufficient to establish proof of the service of a notice in compliance with the terms of RPAPL § 1303 and CPLR § 308 [2] when faced with the defendant's "bare and unsubstantiated denial of receipt" citing U. S. Bank, N. A. v. Tate, 102 AD3d 859 (2d Dept 2013) ; Deutsche Bank Natl. Trust Co. v. Quinones , 114 AD3d 719 (2d Dept 2014) ; PHH Mortg. Corp. v. Israel , 120 AD3d 1329 (2d Dept 2014) and LNV Corp. v. Sofer , 171 AD3d 1033 (2d Dept 2019) (see also U.S. Bank, N.A. v. Sims , 162 AD3d 825 [2d Dept 2018] ; U.S. Bank, N.A. v. Nelson , 169 AD3d 110 [2d Dept 2019] ; U.S. Bank, N.A. v. Ahmed , 174 AD3d 661 [2d Dept 2019] ).
The court notes that a review of the "e-filings" in NYSCEF shows a copy of the same affidavit, also with no copy of the notice, filed as "Docs. #24 & 25" on July 22, 2015 relating to service upon defendants.
Plaintiff's reliance on its above argument is misplaced based upon the objections raised herein and the evidence provided to the court. The cases cited above by plaintiff in support of the argument deal only with cases where a defendant merely denies service of the summons and complaint and the notice, but do not deal with circumstances, as here, where the adequacy of the notice is challenged. This affidavit is insufficient to establish prima facie proof of compliance with RPAPL § 1303, as unlike the affidavit in LNV Corp. v. Sofer , supra , relied upon by plaintiff, the affidavit only mentions service of a "NOTICE PURSUANT TO RPAPL 1303 ON PINK COLORED PAPER. " There is no averment in the affidavit, as in the affidavit in LNV Corp. v. Sofer , supra at 1036 , that a "1303 NOTICE -Help for Homeowners in Foreclosure in bold fourteen-point type and printed on colored paper, and the title to the notice printed in twenty-point type in compliance with RPAPL Sect 1303" was served (see also HSBC Bank, USA, N.A. v. Ozcan , 154 AD3d 822, 827-828 [2d Dept 2017] ). Without such an averment, plaintiff's proof is merely a conclusory statement that the notice complied with RPAPL § 1303 which is insufficient to prove compliance with the statutory condition precedent.
Therefore, the court must deny the motion, as did the trial court in Emigrant Mtge Co, Inc. v. Lifshitz , supra, in a similar situation where defendant raised the issue as to the sufficiency of RPAPL § 1304 compliance for the first time in opposition to plaintiff's motion for a judgment of foreclosure (see Emigrant Mtge Co, Inc. v. Lifshitz , Supreme Court, Kings County, Index # 10272-2009). Where defendant raises a triable issue of fact as to whether or not the RPAPL § 1303 was in proper form, plaintiff's motion should be denied (see Central Mortg. Co. v. Abraham , 150 AD3d 961 [2d Dept 2017] ).
The court searched the record in NYSCEF to see if any copy of the affidavit of service which had a copy of the notice attached was filed, but could find none. There is no copy of the notice filed with the summons and complaint (NYSCEF Doc. #1). As stated above, there is no copy of the notice filed with the affidavits of service upon defendants (NYSCEF Docs. #24 & 25), with the affidavits submitted in support of plaintiff's present motion as Exhibit "J" (NYSCEF Doc. #81), nor with the copy of the affidavit submitted in reply as Exhibit "C" ( NYSCEF Doc. #95). In searching the whole of plaintiff's motion for summary judgment (NYSCEF Doc. # 38) the court found one copy of the notice among all of the affidavits of service included in the motion (NYSCEF Doc. #38 at p. 328). This appears after the affidavit referring to service on defendant Sarah Fichter (NYSCEF Doc. #38 at p. 327). There is nothing that indicates this is a copy of the notice which was served with the summons and complaint upon each defendant. The court notes that a review of that copy of this notice shows that it appears to meet the requirements as to bold faced type and point type that defendant claims are not established, but the court can "guess" that this is the notice referred to in the affidavit of service relating to defendant absent proof to that effect from plaintiff.
As can be determined from the NYSCEF documents filed in Emigrant Mtge Co, Inc. v. Lifshitz , supra, upon remand from the Second Department the claimed deficiency was shown to have been complied with and a judgment of foreclosure was entered. A similar result may be reached here upon the successive motion for a judgment of foreclosure and sale which the court has authorized.
Upon the present submissions, the court is compelled to deny plaintiff's motion.
This constitutes the Order and decision of the Court.