Acocella v. Wells Fargo Bank, NA

• Decision Date: 04 May 2016
• Docket Number: 2014-02674, Index No. 53913/13.
• Parties: Frank A. ACOCELLA, et al., appellants, v. WELLS FARGO BANK, NA, defendant, Bank of New York Mellon as Trustee for CSMC Trust 2011–11, et al., respondents.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 647

32 N.Y.S.3d 187

2016 N.Y. Slip Op. 03458

Frank A. ACOCELLA, et al., appellants,

v.WELLS FARGO BANK, NA, defendant, Bank of New York Mellon as Trustee for CSMC Trust 2011–11, et al., respondents.

2014-02674, Index No. 53913/13.

Supreme Court, Appellate Division, Second Department, New York.

May 4, 2016.

Murphy Law Group, Purchase, N.Y. (Sheila A. Murphy of counsel), for appellants.

Parker Ibrahim & Berg LLC, New York, N.Y. (Anthony W. Vaughn, Jr., and R. Christopher Owens of counsel), for respondents.

REINALDO E. RIVERA, J.P., SANDRA L. SGROI, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

In an action pursuant to RPAPL article 15 to quiet title to real property, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Smith, J.), dated February 24, 2014, which granted the motion of the defendants Bank of New York Mellon as Trustee for CSMC Trust 2011–11 and Green Tree Servicing, LLC, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs; and it is further,

ORDERED that on the Court's own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against the plaintiffs and/or their counsel pursuant to 22 NYCRR 130–1.1(c) as this Court may deem appropriate, by filing an original and four copies of an affirmation or affidavit on that issue in the office of the Clerk of this Court and serving one copy of the same on each other on or before June 3, 2016; and it is further,

ORDERED that the Clerk of the Court, or her designee, is directed to serve counsel for the respective parties with a copy of this decision and order by regular mail.

In this action pursuant to RPAPL article 15, the plaintiffs seek, inter alia, to cancel a mortgage against their premises, claiming that a 2011 assignment of the mortgage was improper. According to the complaint, on March 16, 2007, the plaintiffs executed a note in the sum of $650,000 in favor of the defendant Wells Fargo Bank, NA (hereinafter Wells Fargo). The note was secured by a mortgage against the plaintiffs' real property in Harrison. The mortgage was recorded. In 2011, Wells Fargo assigned the mortgage to the defendant Bank of New York Mellon as Trustee for CSMC Trust 2011–11 (hereinafter BNYM). The note was subsequently endorsed by Wells Fargo without recourse in blank. BNYM possessed the note, and the defendant Green Tree Servicing, LLC (hereinafter Green Tree), was the servicer of the mortgage. The complaint asserted that the mortgage loan was current and that there was no pending action to foreclose the mortgage. The complaint demanded that the defendants and every person claiming under them be barred from all claims to an estate or interest in the subject property, that the court determine that the plaintiffs are vested with absolute title in fee simple to the property free and clear of the note and mortgage, that the mortgage be discharged and cancelled of record, and that the plaintiffs recover all costs paid to the defendants after the 2011 assignment of the mortgage.

BNYM and Green Tree moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the grounds that the plaintiffs' claims were not justiciable, and that even if they were justiciable, there was no basis in law or fact for the relief requested. The Supreme Court granted the motion, and the plaintiffs appeal.

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court is required to accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). To maintain an equitable quiet title claim, a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title, such as in a deed or other instrument, that is actually invalid or inoperative (see RPAPL 1515 ; Acocella v. Bank of N.Y. Mellon, 127 A.D.3d 891, 9 N.Y.S.3d 67 ; Barberan v. Nationpoint, 706 F.Supp.2d 408 [S....