HSBC Bank United States v. Hamid
| Decision Date | 27 June 2014 |
| Docket Number | INDEX No. 20023-09 |
| Citation | 2014 NY Slip Op 31731 (U) |
| Court | New York Supreme Court |
| Parties | HSBC BANK USA, NATIONAL ASSOCIATION as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates Series 2006-12, Plaintiff, v. AISHA HAMID, WELLS FARGO BANK, NA, KANTA KHALIL and ZESHAN HAMID, Defendants. |
ORDERED that this motion (#002) by the plaintiff for an order granting it leave to file a new affidavit of merits, confirming the report of the referee of sale and entry of a judgment of foreclosure and sale is considered under RPAPL Article 13 and is granted; and it is further
ORDERED that the cross motion (#003) by the mortgagor defendant Hamid dismissing this action pursuant to CPLR 3215(c) and on other grounds or for an order vacating the defendant's default with leave to serve a late answer is considered under CPLR 3215 and 3012 and is denied.
The plaintiff commenced this action in May of 2009 to foreclose the lien of a June 5, 2006 mortgage given to the plaintiff's predecessor-in-interest by defendant Hamid. Said defendant was served with process on June 4, 2009 and thereafter defaulted in appearing by answer or otherwise. On October 5, 2009, a conference of the type contemplated by CPLR 3408, which was scheduled on notice to defendant Hamid, was held by personnel assigned to the specialized mortgage foreclosure part of this court at which defendant Hamid did not appear. In May of 2010, the plaintiff moved for an order of reference upon default. By order of this court dated June 24, 2010, the defaults in answering of all defendants served with process were fixed and determined and a referee to compute amounts due was appointed. On April 21, 2011, defendant Hamid appeared herein by the filing of a notice of appearance by his current counsel.
By the instant motion, the plaintiff seeks an order permitting it to file a new affidavit of merits to enable it to file the vouching affirmation of its counsel that is the subject of certain Administrative Orders issued by court administrators (see A.O. 548/10, as amended by A.O. 431/11). In addition, the plaintiff seeks an order confirming the report of the referee to compute and entry of a judgment of foreclosure and sale.
Defendant Hamid vigorously opposes the plaintiff's motion and separately cross moves for an order dismissing this action on grounds that the plaintiff lacks standing, that its failure to submit the vouching affidavit of its attorney warrants such relief, and that its failure to move for default judgment within the one year time limitations period prescribed by CPLR 3215(c) likewise warrants such relief. The defendant alternatively seeks an order vacating his default on excusable default grounds of the type contemplated by CPLR 5015(a)(1) and 3012(d) and leave to appear herein by answer and defend on the merits.
First considered is the defendant's cross motion since the granting thereof may render all or apart of the plaintiff's motion-in-chief, academic. As indicated above, the cross motion is predicated upon several grounds. For the reasons stated below, the cross motion is denied.
Rejected as unmeritorious are the defendant's claims that a purported lack of standing on the part of the plaintiff warrants dismissal of the plaintiff's complaint. Recent appellate case authorities have repeatedly held that a lack of standing is merely an affirmative defense which must be timely raised by a defendant possessed of such defense or it is waived (see CPLR 3018[b]; CPLR 3211[e]; JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821, 979 NYS2d 620 [2d Dept 2014]; U.S. Bank Natl. Ass'n v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d624, 883NYS2d 135 [2d Dept2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 2007]). The defense of standing is thus not jurisdictional in nature (see Wells Fargo Bank, N.A. v Gioia, 114 AD3d 766, 980 NYS2d 535 [2s Dept 2014]; Citimortgage, Inc. v Friedman, 109 AD3d 573, 970 NYS2d 706 [2d Dept. 2013]; HSBC Bank USA, N.A. v Taker, 104 AD3d 815, 962 NYS2d 301 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2013]; US Bank Natl. Ass'n v Tate, 102 AD3d 859, 958 NYS2d 722 [2d Dept.2013]; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810, 954 NYS2d 181 [2d Dept 2012]; Bank of New York v Alderazi, 99 AD3d 837, 951 NYS2d 900 [2d Dept 2012]; U.S. Bank Natl. Ass'n. v Denaro, 98 AD3d 964, supra; U.S. Bank v Emmanuel, 83 AD3d 1047, 921 NYS2d 320 [2d Dept 2011]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-244, supra).
Once waived, a standing defense may not be resurrected by its assertion in opposition to a motion for summary judgment (see Bank of New York Mellon Trust Co. v McCall, 116 AD3d 993, 985 NYS2d 255 [2d Dept 2014]; Capital One, N.A. v Knollwood Prop. II, LLC, 98 AD3d 707, supra; JPMorgan Chase Bank, N.A. v Bauer, 92 AD3d 641, 938 NYS2d 190 [2d Dept 2012]; US Bank Natl. Ass'n. v Denaro, 98 AD3d 964, supra; HSBC Bank, USA v Schwartz, 88 AD3d 961, 931 NYS2d 528 [2d Dept 2011]; U.S. Bank Natl. Ass'n vEaddy, 79 AD3d 1022, 914 NYS2d 901 [2010]). Nor may it be used in support of an untimely motion to dismiss pursuant to CPLR 3211 (see EMC Mtge. Corp. v Gass, 114 AD3d 1074, 981 NYS2d 814 [3d Dept 2014]; U.S. Bank Natl. Ass'n. v Denaro, 98 AD3d 964, supra; U.S. Bank N.A. v Gonzalez, 99 AD3d 694, 694-695, 952 NYS2d 59 [2d Dept 2012]; McGee v Dunn, 75 AD3d 624, 625, 906 NYS2d 74 [2d Dept 2010]; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 883 NYS2d 135 [2d Dept 2009]). In addition, a waived standing defense may not be asserted in support of an application to vacate a default under CPLR 5015(a)(1) (see JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821, supra; Citibank, N.A. v Swiatkowski, 98 AD3d 555, 949 NYS2d 635 [2d Dept 2012]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011]; HSBC Bank, USA v Dammond, 59 AD3d 679, 875 NYS2d 490 [2d Dept 2009]).
Here, defendant Hamid's default in answering occurred some five years ago and it was fixed in the order of reference dated June 24, 2010. The defense of standing was thus waived by such defendant. Those portions of the cross motion wherein defendant Hamid seeks dismissal of the plaintiff's complaint due to a purported lack of standing constitute an untimely motion for such relief pursuant to CPLR 3211(a)(3) and an impermissible attempt to resurrect this waived defense without establishing grounds for a vacatur of his default, all of which, is wholly unavailing under the controlling case authorities cited above (see EMC Mtge. Corp. v Gass, 114 AD3d 1074, supra; U.S. Bank Natl. Ass'n. v Denaro, 98 AD3d 964, supra; U.S. Bank N.A. v Gonzalez, 99 AD3d 694, 694-695, supra; McGee v Dunn, 75 AD3d 624, 625, 906 NYS2d 74 [2d Dept 2010]; Countrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, supra).
The defendant's claim that dismissal of this action is warranted by reason of the plaintiff's failure to submit the vouching affirmation required by Administrative Order 548/10, as amended by A.O. 431/11, is also lacking in merit as any such failure is not jurisdictional in nature and does not otherwise constitute a defect warranting dismissal (see CPLR 3211; Bank of New York Mellon v Izmirligil, 43 Misc3d 409, 980NYS2d 733 [Sup. Ct. Suffolk County 2014]; LaSalle Bank, NA v Pace, 31 Misc3d 627, 919 NYS2d 794 [Sup Ct. Suffolk County 2011] aff'd. 100 AD3d 970, 955 NYS2d 161 [2d Dept. 2012]). In any event, the plaintiff has now submitted an affirmation that is compliant with these Administrative Orders thereby rendering the defendant's claims with respect thereto, academic (see id).
The next demand for dismissal of the complaint is predicated upon a claim that the plaintiff abandoned its claim for foreclosure and sale by reason of its failure to move for a default judgment within the one year time limitation imposed by CPLR 3215(c). This claim is equally lacking in merit.
CPLR 3215(c) requires that a plaintiff commence proceedings for the entry of a default judgment within one year after the default or demonstrate sufficient cause why the complaint should not be dismissed. Where the plaintiff has made an application to the court for the entry of a default judgment within one year of the defendant's default, even if unsuccessful, the court may not later dismiss the complaint as abandoned pursuant to CPLR 3215(c) (see U.S. Bank Nat. Ass'n v Poku, ___ AD3d ___, 2014 WL 2871393 [2d Dept 2014]; Jones v Fuentes, 103 AD3d 853, 962 NYS2d 263 [2d Dept 2013]; see also Mortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d 804, 975 NYS2d 121 [2d Dept2013]; Norwest Bank Minnesota, N.A. v Sabloff, 297 AD2d 722, 747 NYS2d 559 [2d Dept 2002]; Brown v Rosedale Nurseries, Inc., 259 AD2d 256, 686 NYS2d 22 [1st Dept 1999]; Home Sav. of America, F.A. v Gkanios, 230 AD2d 770, 646 NYS2d 530 [2d Dept 1996]).
In mortgage foreclosure actions, is well settled law that foreclosing plaintiffs may not be deemed to...
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