Bank of Am. v. Camacho

• Docket Number: Index No. 512671/2019,Mot. Seq. (s). 1
• Decision Date: 25 May 2023
• Citation: 2023 NY Slip Op 31860 (U)
• Parties: BANK OF AMERICA, N.A., Plaintiff(s), v. ENRIQUE CAMACHO, SECRETARY OF HOUSING AND URBAN DEVELOPMENT and "John Doe" and/or "Jane Doe" # 1-10 inclusive, the last ten names, being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons, corporations or heirs at law, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendant(s).
• Court: New York Supreme Court

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2023 NY Slip Op 31860(U)

BANK OF AMERICA, N.A., Plaintiff(s),
v.
ENRIQUE CAMACHO, SECRETARY OF HOUSING AND URBAN DEVELOPMENT and "John Doe" and/or "Jane Doe" # 1-10 inclusive, the last ten names, being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons, corporations or heirs at law, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendant(s).

Index No. 512671/2019, Mot. Seq. #(s). 1

Supreme Court, Kings County

May 25, 2023

Unpublished Opinion

AMENDED ORDER

CENCERIA P. EDWARDS, C.P.A., Justice.

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The following e-filed papers read herein:

NYSCEF Doc. Nos.:
Notice of Motion/Order to Show Cause/Petition/Cross-Motion and Affidavits (Affirmations) and Exhibits	20-37
Opposing Affidavits (Affirmations) and Exhibits
Reply Affidavits (Affirmations) and Exhibits

On June 7, 2019, Plaintiff Bank of America, N.A. commenced this action against, inter alia, Defendant-mortgagor Enrique Camacho ("Camacho") to foreclose his residential mortgage secured against real property located at 274 Stagg Street, Brooklyn, NY 11206. Plaintiff asserts it is entitled to foreclose because Camacho failed to pay the monthly installments of principal and interest on his loan/note, as promised. As of December 1, 2018, Camacho owed $247,419.33.

Plaintiff filed the instant ex-parte motion, pursuant to CPLR 3215, for leave to enter a default judgment against all non-appearing defendants, including Camacho, for their failure to

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answer the complaint. Plaintiff also seeks an order to appoint a referee and amend the caption. When a movant presents an ex-parte application to the court, a thorough review of the movant's submissions is required to determine whether, in this case, plaintiff has demonstrated its entitlement to entry of a default judgment.

"A plaintiff seeking leave to enter a default judgment under CPLR 3215 must file proof of: (1) service of a copy or copies of the summons and the complaint, (2) the facts constituting the claim, and (3) the defendant's default" (CitiMortgage, Inc. v Weaver, 197 A.D.3d 1087, 1088 [2d Dept 2021] [internal quotation marks omitted; see CPLR 3215[f]). "To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable" (Lancer Ins. Co. v Fishkin, 211 A.D.3d 719, 721 [2d Dept 2022]).

Based upon review of the Plaintiff's documentary submissions, the question herein for this Court's determination is whether Plaintiff sustained its burden of proof that service of process of the summons and complaint was properly effectuated upon the Defendants. For the reasons articulated below, the Court finds that analysis of this issue suffices to dispose of the instant motion with denial for entry of a default judgment against Defendants, Camacho, John Doe, and Jane Doe.

PLAINTIFF'S SUBMISSIONS

In support of its motion for default judgment against Defendant-mortgagor Camacho, Plaintiff Bank America submits two (2) affidavits of service (see Exhibit J), purporting to show that its process server effectuated service of the summons and complaint upon Camacho twice on July 3, 2019, and again on August 27, 2019, pursuant to CPLR 308(4). Plaintiff additionally submits two (2) more affidavits of service wherein the same process server avers that he also served Defendants John Doe and Jane Doe using the same method, and on the same dates and times, as set forth in the second affidavit pertaining to the purported August 27, 2019, service upon Camacho.

In the first affidavit of service, the process server averred that he taped the summons and complaint along with other statutory notices to the subject premises, described as a "2 STORY RESIDENCE/ GRAY DOOR," on July 3, 2019 at 6:49AM after three prior unsuccessful attempts to personally serve Camacho, swearing: "Deponent was unable, with due diligence to find defendant or a person of suitable age and discretion on 6/21 @1:27PM; 7/1 @10:41AM; and 7/2 @6:04PM." The process server also averred that he mailed the documents to the subject premises pursuant to CPLR 308(4).

In the affidavits regarding the second attempts at service^[1], the process server reiterates the initial four (4) dates of service documented in the first affidavit of service (July 3^rd) and alleges that service of process was effectuated upon Camacho, Jane Doe, and John Doe on August 27, 2019 @6:07AM by taping the summons and complaint along with other statutory notices to the door of the subject premises a "2 STORY RESIDENCE/ GRAY DOOR" after several

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unsuccessful attempts on: "6/21 @1:27PM; 7/1 @10:41AM; 7/2 @6:04PM; 7/3 @6:50AM; 7/11 @5:37PM; 7/18 @4:59PM; 8/3...