Bank of N.Y. Mellon v. Izmirligil

• Decision Date: 30 November 2016
• Citation: 144 A.D.3d 1063,42 N.Y.S.3d 270,2016 N.Y. Slip Op. 08033
• Parties: BANK OF NEW YORK MELLON, etc., respondent, v. Arif IZMIRLIGIL, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1063

42 N.Y.S.3d 270

2016 N.Y. Slip Op. 08033

BANK OF NEW YORK MELLON, etc., respondent,

v.Arif IZMIRLIGIL, appellant, et al., defendants.

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

Nov. 30, 2016.

David L. Singer, P.C., Melville, N.Y., for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (David V. Mignardi of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.

In an action, inter alia, to foreclose a mortgage, the defendant Arif Izmirligil appeals from (1) an order of the Supreme Court, Suffolk County (Whelan, J.), dated January 28, 2014, which granted the plaintiff's motion to be relieved of any obligation to comply with the attorney affirmation requirement of Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts and 22 NYCRR 202.12–a(f), and (2) an order of the same court dated May 20, 2014, which denied his motion for recusal.

ORDERED that the order dated January 28, 2014, is reversed, on the law, and the plaintiff's motion to be relieved of any obligation to comply with the attorney affirmation requirement of Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts and 22 NYCRR 202.12–a(f) is denied; and it is further,

ORDERED that the appeal from the order dated May 20, 2014, is dismissed as academic; and it is further,ORDERED that one bill of costs is awarded to the appellant.

In 2009, the plaintiff commenced this action to foreclose a mortgage executed in 2006 by the defendant Arif Izmirligil (hereinafter the defendant) to secure a note in the principal sum of $1.1 million. In September 2013, the plaintiff moved to be relieved of any obligation to comply with the attorney affirmation requirement of Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts and 22 NYCRR 202.12–a(f). In an order dated January 28, 2014, the Supreme Court granted the motion, concluding that the subject Administrative Orders were invalid because the Chief Administrative Judge acted beyond her authority in issuing them (see Bank of N.Y. Mellon v. Izmirligil, 43 Misc.3d 409, 980 N.Y.S.2d 733 [Sup.Ct., Suffolk County] ). We reverse.

In 2008, the New York State Legislature, in response to widespread “robo-signing” of affidavits, responded by enacting comprehensive legislation concerning the residential foreclosure process (see L 2008, ch 472; L 2009, ch 507). The legislation imposed new notice and other requirements on mortgage lenders and servicers (see L 2008, ch 472; L 2009, ch 507). It also created a mandatory settlement conference procedure whereby the parties must negotiate in good faith to agree on a loan modification, if possible (see CPLR 3408[a], [f] ), and to which the plaintiff was required to bring certain underlying documents, while the defendant was required to bring, inter alia, proof of income (see CPLR 3408[e] ).

In addition, on October 20, 2010, the Chief Administrative Judge of the Courts issued Administrative Order 548/10, “effective immediately,” requiring a plaintiff's attorney in certain mortgage foreclosure actions to submit an affirmation confirming the factual accuracy and the accuracy of notarizations of all filings in support of foreclosure (see Aurora Loan Servs., LLC v. Gross, 139 A.D.3d 772, 32 N.Y.S.3d 249 ; Wachovia Bank, N.A. v. Akojenu, 138 A.D.3d 1112, 30 N.Y.S.3d 659 ). Administrative Order 548/10 stated that the plaintiff's counsel in a residential mortgage foreclosure action “shall file” an affirmation with the court confirming that he or she communicated with a representative of the plaintiff, who informed counsel that he or she “(a) has personally reviewed plaintiff's documents and records relating to this case; (b) has reviewed the Summons and Complaint, and all other papers filed in this matter in support of foreclosure; and (c) has confirmed both the factual accuracy of these court filings and the accuracy of the notarizations contained therein” (see U.S. Bank N.A. v. Eaddy, 109 A.D.3d 908, 909, 971 N.Y.S.2d 336 ). For new cases, Administrative Order 548/10 provided that the affirmation must accompany the request for judicial intervention (see 1–2 Bergman on New York Mortgage Foreclosures § 2.01). Where a residential mortgage foreclosure action was pending on the effective date of Administrative Order 548/10, and no judgment of foreclosure had been entered, Administrative Order 548/10 provided that the affirmation must be filed “at the time of filing either the proposed order of reference or the proposed judgment of foreclosure” (see U.S. Bank, N.A. v. Ramjit, 125 A.D.3d 641, 642, 2 N.Y.S.3d 587 ; Wells Fargo Bank, NA v. Ambrosov, 120 A.D.3d 1225, 993 N.Y.S.2d 322 ; Wells Fargo Bank, N.A. v. Hudson, 98 A.D.3d 576, 577, 949 N.Y.S.2d 703 ). Where a judgment of foreclosure had been entered but the property had not yet been sold, the affirmation was required to be filed “five business days before the scheduled auction, with a copy to be served on the referee” (see U.S. Bank N.A. v. Eaddy, 109 A.D.3d at 909, 971 N.Y.S.2d 336 ).

In January 2011, 22 NYCRR 202.12–a was amended to add subsection (f), which allows the Chief Administrator of the Courts to continue to require counsel to file affidavits or affirmations confirming the scope of inquiry and the accuracy of papers filed in residential mortgage foreclosure actions.

On March 2, 2011, Administrative Order 548/10 was replaced by Administrative Order 431/11, retroactively effective November 18, 2010, which revised the form for the required attorney affirmation (see Aurora Loan Servs., LLC v. Gross, 139 A.D.3d at 772–773, 32 N.Y.S.3d 249 ; Emigrant Sav. Bank–Brooklyn/Queens v. Makinano, 126 A.D.3d 934, 8 N.Y.S.3d 215 ). Administrative Order 431/11 requires a plaintiff's attorney in a residential mortgage foreclosure action to file an affirmation indicating that he or she communicated with a representative of the plaintiff, and that the representative informed the attorney “that he/she/they (a) personally reviewed plaintiff's documents and records relating to this case for factual accuracy; and (b) confirmed the factual accuracy of the allegations set forth in the Complaint and any supporting affidavits or affirmations filed with the Court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith” (see Wells Fargo Bank, N.A. v. Watanabe, 136 A.D.3d 1413, 1414, 25 N.Y.S.3d 771 ). The order incorporated two forms for this purpose—an affirmation to be filed by the plaintiff's counsel (“shall file”), and an affidavit to be filed by the plaintiff's representative (“may file”) (see Wells Fargo Bank, N.A. v. Pabon, 138 A.D.3d 1217, 31 N.Y.S.3d 221 ).

On August 1, 2013, the Chief Administrative Judge issued Administrative Order 208/13, “effective immediately,” which directs that the provisions of Administrative Order 431/11 “shall not apply to residential mortgage foreclosure actions commenced on or after August 30, 2013.” In actions commenced prior to August 30, 2013, “where no affirmation has been filed pursuant to AO/431/11,” Administrative Order 208/13 states that the “plaintiff's counsel may either (1) comply with AO/431/11, or (2) file with the court at the time of the filing of the Request for Judicial Intervention a certificate of merit whose contents are described in section 3012–b(a) of the Civil Practice Law and Rules ” (see Wells Fargo Bank, N.A. v. Pabon, 138 A.D.3d at 1218 n. 3, 31 N.Y.S.3d 221 ; Patrick M. Connors, 2013 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3012–b ).

CPLR 3012–b, ef...