Federal Home Loan Mortg. Corp. v. Franklin
|167 Misc.2d 800,635 N.Y.S.2d 1006
|FEDERAL HOME LOAN MORTGAGE CORP., Petitioner, v. John FRANKLIN et al., Respondents. * Civil Court of the City of New York, Richmond County
|24 November 1995
|New York City Court
Weisblum & Felice, New York City, for Petitioner.
Sanders, Sanders & Block, P.C., Mineola, for Respondents.
The respondents move for an order dismissing petitioner's Notice to Quit by raising various defenses, one of which is petitioner's failure to abide by HUD Section 8 notice provisions.
The Court finds the facts of this matter to be as follows:
The Franklins moved to 117 North Burgher Avenue, Staten Island, New York, in June 1992. At that time the building was owned by the Nesbitts. The Franklins and the Nesbitts entered into a Section 8 "Landlord-Tenant Lease Agreement" on June 18, 1992. That lease was to be effective from July 1, 1992 until February 28, 1995. That lease contained a successor's clause: "This lease shall be binding upon the landlord and upon his successors, heirs, executors and administrators."
The Franklins' rent was paid directly to the Nesbitts, in part by the New York City Housing Authority pursuant to a Housing Assistance Payment contract with the Nesbitts, and in part by the State Department of Social Services. The Franklins paid no money to the landlord themselves. On March 17, 1993 the First Federal Savings and Loan Association of Rochester initiated proceedings to foreclose on the mortgage held by the Nesbitts at 117 North Burgher Avenue. The Franklins were served with a copy of this foreclosure complaint on April 1, 1993.
First Federal Savings and Loan Association of Rochester was granted summary judgment on their foreclosure action on March 14, 1994. The Franklins did not appear in the foreclosure proceedings. Carol Franklin alleges that she went to the Courthouse on the day of the hearing, but was told that the proceeding was between the bank and the Nesbitts and she need not be concerned.
On July 14, 1994, the Hon. John Leone of the New York State Supreme Court, County of Richmond, entered a Judgment of Foreclosure and Sale which named the Franklins among other defendants. Judge Leone ordered that the property be sold at a public auction. The Court further stated that "the defendants in this action, and all persons claiming under them subsequent to the filing of the Notice of Pendency of this action, be and they are forever barred and foreclosed of all rights, title, claim, mean and equity of redemption in the said mortgaged premises and in each and every part and parcel thereof."
The property was sold on January 26, 1995 and subsequent to the sale at foreclosure the First Federal Savings and Loan Association of Rochester assigned its bid to petitioner Federal Home Loan Mortgage Corp. (hereinafter referred to as "Freddie Mac"). Caisi Management Company, the managing agent for Freddie Mac at the North Burgher Avenue property, gave the Franklins a letter dated February 1, 1995 addressed "Dear Tenant," which stated in relevant part:
Freddie Mac now owns your property as a result of a recent foreclosure sale. As a representative for Freddie Mac on this property, Caisi Management Company Inc. wants to inform you of some of your rights and options.
a tenant are met ...
You will, of course be required to:
Pay rent and sign a written tenancy agreement. The rent you will [be] asked to pay will be set pursuant to the procedures of the Rent Equity Board ...
The deed for the property was transferred to Freddie Mac on February 15, 1995.
The Franklin family made a motion to intervene in the Federal Class Action pending in the Southern District entitled German v. Federal Home Loan Mortgage Corporation et al., (899 F.Supp. 1155, 1158-1159). That class was certified to include " 'children under seven years old residing in buildings owned, managed, or operated by defendants' ... and when there is lead-based paint in or on the dwelling or common area." The gravamen of the Franklins' claims is to obtain defendants' compliance with orders to correct the lead paint violations and with any other requirements regarding hazardous conditions in their premises, to wit: the proper, safe, and full abatement of the lead paint, to reduce the children's exposure, and to ensure and monitor their recovery from past poisonings and protection from future poisonings.
The motion to intervene the Franklin family as plaintiffs in this class action was filed on June 27, 1995. Freddie Mac served a Notice to Quit on the Franklins on July 24, 1995. The Notice was dated July 12, 1995.
The Franklins filed a motion for Preliminary Injunction with the Federal Court on August 2, 1995. The Franklins' motion for a Preliminary Injunction sought to enjoin Freddie Mac from evicting the Franklins pending resolution of the class action or the relocation of the Franklins to some other suitable dwelling unit and to require the defendants to relocate plaintiffs pending abatement of the lead paint in their apartment and to abate the lead paint in the Franklins' apartment.
Since Freddie Mac relocated the Franklins and began the lead abatement in the Franklins' apartment without court order, that portion of the request for a preliminary injunction became moot. In the Hon. Robert Sweet's Order the Court recognized that the issue it was addressing was "only the relief sought with regard to the eviction proceedings." (899 F.Supp. at 1161, supra.) Judge Sweet held that the eviction proceedings should take place in State Court.
He further held that "the question for this Court is whether Freddie Mac must meet the Notice provision and cause standards imposed by Section 8 or whether Freddie Mac may proceed in the absence of any constraints imposed by Section 8." (Supra, at 1162.)
Judge Sweet goes on to analyze this issue of law in his Order (supra, at 1162-1166) as follows:
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