BAC Home Loan Servicing, LP v. Bertram

• Decision Date: 07 January 2016
• Docket Number: 11-14436.
• Parties: BAC HOME LOAN SERVICING, LP, f/k/a Countrywide Home Loans Servicing, LP, Plaintiff, v. Robin D. BERTRAM, Claudette Bertram and “John Doe No. 1” to “John Doe # 10” the last 10 names being fictitious and unknown to plaintiff, the person or parties intended as being the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.
• Court: New York Supreme Court

51 Misc.3d 770

30 N.Y.S.3d 483

2016 N.Y. Slip Op. 26053

BAC HOME LOAN SERVICING, LP, f/k/a Countrywide Home Loans Servicing, LP, Plaintiff,

v.Robin D. BERTRAM, Claudette Bertram and “John Doe No. 1” to “John Doe # 10” the last 10 names being fictitious and unknown to plaintiff, the person or parties intended as being the person or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.

11-14436.

Supreme Court, Suffolk County, New York.

Jan. 7, 2016.

Frenkel, Lambert, Weiss et al., Bay Shore, Attorneys for Plaintiff.

Vivia L. Joseph Law Group, Cambria Hgts., Attorneys for Defendant Robin Bertram.

THOMAS F. WHELAN

, J.

ORDERED that this motion (# 001) by the plaintiff for a default judgment on its complaint, a substitution of the plaintiff and the deletion of the unknown defendants and an order appointing a referee to compute amounts due under the terms of the note and mortgage that are the subject of this foreclosure action is considered under CPLR 3215

, 1018, 1024 and RPAPL § 1321 and is granted; and it is further

ORDERED that the cross motion (# 002) by defendant, Robin D. Bertram, for dismissal of the plaintiff's complaint pursuant to CPLR 3215(c)

and CPLR 3211(8) and other subparagraphs of that rule are considered thereunder and are denied.

On December 21, 2006, the Bertram defendants were advanced the sum of $344,000.00 by a mortgage lender of their choosing which enabled them to purchase a home in Suffolk County. The loan was evidenced by a mortgage note in the amount of the loan and was secured by a mortgage in favor of the lender. The loan went into default on July 1, 2009 and such default has continued without cure to date.

On April 28, 2011, the plaintiff commenced this action by the filing of a summons and complaint in which it demands a judgment foreclosing the lien of the December 21, 2006 mortgage. Six days thereafter, the plaintiff filed a supplemental summons and complaint in an effort to cure an apparent omission of the index number on the face of the filed original summons. After their attempts to serve the Bertram defendants at the mortgaged premises pursuant to CPLR 308(1) and 308(2)

failed, the plaintiff's process server effected service on May 16, 2011, as averred to the affidavit of such process server that is attached to the moving papers.

Prosecution of the plaintiff's claims for foreclosure and sale were delayed by the imposition of federally directed litigation holds following the occurrences of Hurricane Irene in August of 2011 and Hurricane Sandy in October of 2012 which continued into 2013. Thereafter, the defendants applied for a loan modification under the federal HAMP program which was approved on a trial basis by the plaintiff on July 14, 2014. The first of three payments was due on August 1, 2014 and on the first day of each of the two following months. The defendants defaulted in their trial payment obligations and were notified of such default by letter of the plaintiff's servicer dated September 9, 2014. The defendants nevertheless appeared at a CPLR 3408

settlement conference scheduled and held on October 16, 2014 by court personnel assigned to the specialized mortgage foreclosure part of this court but could not reach a resolution with plaintiff's counsel. The action was so marked and released from that part a week later and assigned to the civil case inventory of this court.

In August of 2015, the plaintiff interposed the instant motion (# 001) for an order of reference on default, a substitution of the plaintiff and an order deleting the unknown defendants listed in the caption together with a caption amendment to reflect these changes. The motion is opposed by defendant, Robin D. Bertram, in cross moving papers wherein he seeks a dismissal of the plaintiff's complaint as abandoned pursuant to CPLR 3215(c)

. In addition, the cross moving defendant seeks dismissal of the complaint on the grounds that the court lacks jurisdiction over his person because he never received the supplemental summons and complaint that was served upon him at the mortgaged premises in May of 2011 pursuant to CPLR 308(4) as attested to in the affidavit of the plaintiff's process server. Other grounds for dismissal of the complaint include a lack of standing on the part of the plaintiff which purportedly provides a basis for dismissal of the complaint pursuant to CPLR 3211(a)(1)

due to documentary proof of the standing defense which purportedly renders the pleaded claim for foreclosure and sale legally insufficient under CPLR 3211(a)(7). The plaintiff opposes the cross motion in papers that further serve as a reply to the opposition to its motion-in-chief, to which the cross moving counsel has replied in papers that include an affidavit of the moving defendant's co-defendant.

The court first considers the cross motion (# 002) of defendant, Robin D. Bertram, as determination thereof may render consideration of the plaintiff's motion-in-chief (# 001), academic. Where, as here, a claim for vacatur rests upon a jurisdictional defense, appellate case authorities have instructed trial courts to consider the efficacy of such defense prior to determining whether discretionary grounds for a vacatur of the default exist under CPLR 5015(a)(1)

or CPLR 3012(d) (see

Community West Bank, N.A. v. Stephen, 127 A.D.3d 1008, 9 N.Y.S.3d 275 [2d Dept.2015] ; E*Trade Bank v. Vasquez, 126 A.D.3d 933, 934, 7 N.Y.S.3d 285, 286 [2d Dept.2015] ; HSBC Bank USA Natl. Ass'n v. Miller, 121 A.D.3d 1044, 995 N.Y.S.2d 198 [2d Dept.2014] ; Youngstown Tube Co. v. Russo, 120 A.D.3d 1409, 993 N.Y.S.2d 146 [2d Dept.2014] ; Canelas v. Flores, 112 A.D.3d 871, 977 N.Y.S.2d 362 [2d Dept.2013] ).

“A process server's affidavit of service constitutes prima facie evidence of proper service” (Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 [2d Dept.2009]

; see

NYCTL 2009—A Trust v. Tsafatinos, 101 A.D.3d 1092, 1093, 956 N.Y.S.2d 571 [2d Dept.2012] ). “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the 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” (Countrywide Home Loans Serv., LP v. Albert, 78 A.D.3d at 984–985, 912 N.Y.S.2d 96

[2d Dept.2010; internal quotation marks and citation omitted]; see

Mortgage Elec. Registration Sys., Inc. v. Losco, 125 A.D.3d 733, 5 N.Y.S.3d 112 [2d Dept.2015] ; JPMorgan Chase v. Todd, 125 A.D.3d 933, 5 N.Y.S.3d 181 [2d Dept.2015] ; Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 [2d Dept.2013] ; Countrywide Home Loans Serv., LP v. Albert, 78 A.D.3d 983, 984–985, 912 N.Y.S.2d 96, supra ).

Here, the affidavit of service of the plaintiff's process server constituted prima facie evidence of proper service pursuant to CPLR 308(4)

(see

ACT Prop., LLC v. Garcia, 102 A.D.3d 712, 957 N.Y.S.2d 884 [2d Dept.2013] ; Bank of N.Y. v. Espejo, 92 A.D.3d 707, 708, 939 N.Y.S.2d 105 [2d Dept.2012] ; US Natl. Bank Assn. v. Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352 [2d Dept.2011] ), including the observance of the due diligent requirement imposed by CPLR 308(4)

(see

Wells Fargo v. Besemer, 131 A.D.3d 1047, 16 N.Y.S.3d 819 [2d Dept.2015] ).

A review of the cross moving papers reveals that the same were insufficient to rebut the presumption of due service arising from the process server's affidavit. The denial of receipt of the supplemental summons and complaint advanced by the cross moving defendant in his affidavit in support of his cross motion, was non-specific, conclusory and unsubstantiated. There were no claims that the mortgaged premises were not the cross moving defendant's dwelling place or his usual place of abode or that any of the other facts asserted in the process server's affidavit were erroneous. The submission of the affidavit of the moving defendant's co-defendant, Claudette Bertram, as an attachment to the reply papers of defense counsel, constitutes new matter which the court rejects under the well established rule governing the submission of such material subject where the non-movant has no opportunity to respond (see Sahni v. Kitridge Realty Co., Inc., 114 A.D.3d 837, 980 N.Y.S.2d 787 [2d Dept.2014]

; Mora v. Cammeby's Realty Corp., 106 A.D.3d 704, 966 N.Y.S.2d 99 [2d Dept.2013] ). In any event, a review of the allegations set forth therein do not establish the efficacy of the moving defendant's claims of a lack of personal jurisdiction over him.

Nor do the defendant's challenges to the process server's due diligent efforts to effect service under CPLR 308(1)or (2)

warrant a dismissal of the complaint. Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence (see CPLR 308[4] ). Here, the process server's affidavit demonstrated that three visits were made to the mortgaged premises on three different occasions at different times when the defendants could reasonably be expected to have been found there. Upon a further visit to the subject premises, the supplemental summons and complaint was affixed to the door. The process server also explained an unsuccessful attempt to obtain an employment address for the defendant. Under these circumstances, the court finds that the due diligence element imposed upon the plaintiff's process server by the provisions of CPLR 308(4) were satisfied (see

Wells Fargo Bank v. Besemer, 131 A.D.3d 1047, 16 N.Y.S.2d 819 [2d Dept.2015] ). Those portions of the cross motion by defendant, Robin D. Bertram, in which he seeks dismissal of the complaint due to a purported lack of jurisdiction over his person are thus denied.

Those portions of the moving defendant's cross motion wherein he seeks dismissal of the complaint as abandoned pursuant to CPLR 3215(c)

are also denied. CPLR 3215(...