Bank of Am., N.A. v. Owens, 2010 NY Slip Op 20164 (N.Y. Sup. Ct. 5/4/2010)
| Decision Date | 04 May 2010 |
| Docket Number | 2010 LT 2861. |
| Citation | 2010 NY Slip Op 20164 |
| Parties | BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BA MORTGAGE, LLC, SUCCESSOR BY MERGER TO NATIONBANC MORTGAGE CORPORATION, Petitioner, v. JACOB OWENS, SALINA OWENS, PATRICIA OWENS, LASEAN ROBERTS, AND JOHN DOE, 84 WEST HIGH TERRACE, ROCHESTER, NY 14617, Respondents. |
| Court | New York Supreme Court |
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v.
JACOB OWENS, SALINA OWENS, PATRICIA OWENS, LASEAN ROBERTS, AND JOHN DOE, 84 WEST HIGH TERRACE, ROCHESTER, NY 14617, Respondents.
Steven J. Baum, P.C. (John A. Belluscio, Esq., of counsel) for petitioner.
ELLEN M. YACKNIN, J.
Petitioner in this summary eviction proceeding is a national bank that assumed ownership of rental property following a foreclosure action. As the successor property owner, the bank seeks an order of eviction against the tenants who reside in the property. This case raises the novel issue of whether the successor property owner bank, which is statutorily required to provide bona fide tenants at least ninety days advance notice prior to seeking their eviction, can nonetheless evict the tenants before ninety days have elapsed if the tenants do not provide information demanded by the bank before then.
Petitioner Bank of America, NA, acquired ownership of the rental property at 84 West High Terrace in Rochester, New York on January 4, 2010 following a foreclosure action against the defaulting property owner. Respondents Jacob Owens, Patricia Owens, Salina Owens, LaSean Roberts, and John Doe allegedly reside at the property, apparently having rented from the former property owner.
On January 9, 2010, petitioner purportedly sent a "90 Day Notice to Vacate," dated
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January 6, 2010, to respondents.1 This Notice advised respondents to vacate the property within ninety days, and that if they failed to do so, eviction proceedings would be commenced against them. In addition, the Notice directed each respondent to fill out and return an attached questionnaire asking for information about the nature of his or her tenancy. The Notice also stated:
If the undersigned's attorneys do not receive the requested information within five (5) days, we will assume that you are not a bona fide tenant and we will proceed with an eviction action without delay, in accordance with the laws of the Sate of New York. January 6, 2010 Notice, p. 2.
Respondents did not return the requested questionnaires. For that reason, on January 28, 2010, petitioner's attorney served a ten-day "Notice to Quit Premises" on respondents.2 On February 11, 2010, petitioner filed a Notice of Petition for Judgment and Warrant of Eviction" pursuant to NY Real Property Actions and Proceedings Law [R.P.A.P.L.] §713(5). The Petition was served on all respondents by substitute service on February 15, 2010.
Petitioner's attorney appeared in Court on February 24, 2010, the action's return date. No respondent appeared. On that date, the Court expressed its concern about whether respondents had received sufficient ninety days advance notice under the federal "Protecting Tenants at Foreclosure Act of 2009" [PTFA], Pub.L. 111-22, Div. A, Title VII, §§701-704, May 20, 2009, 123 Stat. 1660.3 For that reason, the case was adjourned to February 26, 2010 for further proceedings.
On that date, petitioner's attorney acknowledged that the PTFA applied to respondents in this action,4 and that petitioner had brought an eviction proceeding against respondents before
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ninety days had elapsed following the initial Notice to Vacate. Petitioner's attorney maintained, however, that because respondents failed to return the completed questionnaires that were demanded in the first Notice, petitioner was entitled to commence an eviction action against respondents before the statutory ninety days notice period had expired.
As petitioner acknowledges, the Protecting Tenants at Foreclosure Act applies to the parties in this action.5 The PTFA provides that all "bona fide tenants" residing in foreclosed residential real property are entitled to at least ninety days advance notice of their obligation to vacate the premises before they can be evicted. See PTFA, §702(a).6 Under the Act, a person is a "bona fide" tenant if: (1) neither the mortgagor nor his or her family member is the tenant; and (2) the tenancy was the result of an arms-length transaction; and (3) the monthly rent (unless it is subsidized rent) is not substantially less than the property's fair market rent. See PTFA, §702(b).
Petitioner contends that the questionnaire it sent to respondents was intended to help petitioner determine whether respondents were bona fide tenants under the PTFA. The solicitation of written information from the tenants of a foreclosed property to help the successor property owner comply with the PTFA is not unreasonable. For example, if petitioner learned from a completed questionnaire that a tenant had nine months remaining on a twelve month lease, petitioner could not evict the tenant until the lease term expired. See PTFA, §702(a)(2)(A).
The solicitation of information, however, was not the sole function of petitioner's questionnaire. Instead, petitioner used respondents' failure to respond to the questionnaire as a
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device to bring an eviction action against respondents well before the expiration of the PTFA's ninety days notice period. Petitioner accomplished this goal by directing respondents to respond to its questionnaire within five days of receiving its Notice to Vacate. Petitioner argues that when respondents failed to respond to the questionnaire, it was entitled to "assume" that respondents were not bona fide tenants under the PTFA. Therefore, according to petitioner, it was entitled to commenced eviction proceedings against respondents thirty-three days after their receipt of the Notice to Vacate.
Petitioner commenced eviction proceedings against respondents prior to expiration of the PTFA's statutory ninety days notice period solely because they failed to respond to petitioner's questionnaire. Doing so violates both the intent and plain language of the PTFA for several reasons.
First, in determining whether the PTFA entitles a successor owner to impose its own prerequisites on tenants before providing them with ninety days advance notice prior to their eviction, it is essential to determine congressional intent in adopting the PTFA. In this regard, the New York Court of Appeals has emphasized:
In matters of statutory and regulatory interpretation, we have repeatedly recognized that
"legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]. Generally, inquiry must be made of the spirit and purpose...
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