JP Morgan Chase Bank v. Patrick B. Henry, Carolyn Henry, Gold Key Lease, Inc.
| Decision Date | 14 November 2014 |
| Docket Number | INDEX No. 18485/2008 |
| Citation | 2014 NY Slip Op 32980 (U) |
| Parties | JP MORGAN CHASE BANK, NA, as Trustees C-Bass Mortgage Loan Asset Certificates, Series 2005-RP2 Loop Drive, Plaintiff, v. PATRICK B. HENRY, CAROLYN HENRY, GOLD KEY LEASE, INC., LOUISA SALADINO NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, UNITED STATES OF AMERICA ACTING THROUGH THE IRS, Defendants. |
| Court | New York Supreme Court |
SHORT FORM ORDER
PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court
MOTION DATE 10/22/14
SUBMIT DATE : 10/24/14
Mot. Seq. # 004 - MD
Mot. Seq. # 005 - MD
CDISP: YES
LEOPOLD & ASSOCIATES
Attys. For Plaintiff
80 Business Park Dr. - Ste. 110
Armonk, NY 10504
PATRICK B. HENRY, Defendant
Self Represented
5 Orienta Ave.
ORDERED that this motion (#004) by the defendant, Patrick B. Henry a/k/a Patrick Henry, for an order staying the foreclosure that was scheduled and dismissing the complaint and in the alternative, vacating the judgment of foreclosure and all prior proceedings and granting him leave to appear by answer is considered under CPLR 5015(4), 317, 3012 (d) and 5015(a)(1) and 5015 (a)(3) and is denied, and it is further .
ORDERED that motion (#005) by defendant, Patrick B. Henry a/k/a/ Patrick Henry, for the same relief which was incorrectly entered as a new and separate motion, is denied as moot.
From the records maintained by the Clerk of this Court and those maintained electronically by the Chief Clerk, it appears that this action was commenced on May 15, 2008 to foreclose the lien of the mortgage given to secure a mortgage note dated July 27, 2007 by defendant, Patrick B. Henry [hereinafter "moving defendant"], following his default under the terms of payment set forth in said note and mortgage. The moving defendant was served with the summons and complaint on May 20, 2008 pursuant to CPLR 308(1) by in hand delivery at the mortgaged premises and he defaulted in appearing in response thereto by answer, as did all of the other defendants served with process.
In January of 2009, the plaintiff moved for an order of reference pursuant to RPAPL § 1321. On June 15, 2009, the application was granted and an order of reference issued, in which the defaults in answering of all defendants served with process were fixed and determined. In February of 2010, the plaintiff moved for an order confirming the report of the referee to compute and for a judgment of foreclosure and sale. That application was granted by order and judgment issued on March 18, 2010. Following two changes in the representation of the plaintiff, a foreclosure sale was scheduled for October 8, 2014. Just two days prior thereto, moving defendant, Patrick Henry, made his first appearance in this action by the submission of an order to show cause seeking the relief outlined above.
On October 6, 2014, the Honorable Joseph A. Santorelli, J.S.C., signed the moving defendant's proposed order except those portions providing for a stay of the foreclosure sale scheduled for October 8, 2014. When returned to the courthouse, the Order to Show cause was entered as motion sequence 004 bearing a return date of October 22, 2014 and it and the papers attached were calendared to appear on the motion calendar of this court for October 24, 2014. Some time thereafter, and for reasons not apparent from the record, a copy of the Order to Show cause was submitted to the office of special term and entered as motion sequence 005. Attached to that submission was an October 23, 2014 affidavit of an agent of the moving defendant who claims to have recently been in contact with mortgage servicer, Ocwen, with respect to the transmission of loan modification documentation. That affidavit has been considered by the court to be one in reply to the plaintiff's opposing papers on motion sequence 004.
The relief sought in the moving papers is vast and varied. First and foremost, defendant Henry sought a provisional stay of the foreclosure that was scheduled on the day after he obtained the signed Order to Show Cause of October 6, 2014 by which this motion was interposed. While Justice Santrorelli denied the moving defendant's request for a temporary stay, it appears from the opposing papers of the plaintiff that the sale was cancelled. To the extent that defendant Henry seeks a permanent stay of the foreclosure sale, such application is denied, as are the remaining portions of his motion, for the reasons stated below.
Defendant Henry seeks to vacate the judgment of foreclosure and a dismissal of this action on the grounds that the court lacks in personam jurisdiction over him and the other members of his family. That application is considered under CPLR 5015(4) and 32111(a)(8) and is denied. The moving defendant claims that he was not properly and timely served with the summons and complaint (see ¶ 3 of moving defendant's affidavit in support of motion dated October 6, 2014). In addition, the moving defendant denies receipt of process in paragraph 11 of his supporting affidavit as follows: "Not having receivedany legal papers and only still receiving a few calls from plaintiff's representatives threatening foreclosure I had no knowledge that a foreclosure action had been started until the end of August of 2014 from a person who was looking at the house and showed me a copy of the notice of sale". However, these bald, conclusory and nuanced claims of improper service and/or no service are insufficient to rebut the process server's attestation to his personal service of the summons and complaint upon the moving defendant on May 20, 2008 by in hand delivery. Such attestation is set forth in the process server's affidavit of serive which is attached to the opposing papers of the plaintiff (see HSBC Bank USA, Natl. Ass'n v Miller, ___ AD3d ___, 2014 WL 5461646 [2d Dept 2014]; Wells Fargo Bank, N.A. v Gioia, 114 AD3d 766, 980 NYS2d535 [2d Dept 2014]; Citimortgage, Inc. v Bustamante, 107 AD3d 752, 968 NYS2d 513 [2d Dept 2013]; US Natl. Bank Ass'n as Trustee v Melton, 90 AD3d 742, 934 NYS2d 352 [2d Dept. 2011]). The moving defendant's demands for a vacatur of the judgment of foreclosure and sale and dismissal of this action on the ground that the court lacks in personam jurisdiction over him are thus rejected as unmeritorious and are denied on that basis.
The moving defendants' claims for such relief, to the extent based on a purported lack of service of the summons and complaint upon his co-defendant wife, and his children, are also without merit. The defense of lack of personal jurisdiction due to a lack of, or improper service, is personal to the party or parties allegedly not served and, as such, leaves the moving defendant without authority or standing to raise such defense on behalf of those parties (see Wells Fargo Bank, N.A. v Bowie, 89 AD3d 931, 932 NYS2d 702 [2d Dept 2011]; NYCTL 1996-1 Trust v King, 13 AD3d 429, 787 NYS2d 61 [2d Dept 2004]; Home Sav. of Am., F.A. v Gkanios, 233 AD2d 422, 650 NYS2d 756 [2d Dept 1996]).
To the extent that the moving defendant claims an entitlement to a vacatur of the judgment and dismissal of the complaint due to a failure to serve upon him and the other members of his family the notice of sale, the judgment of foreclosure and sale and the other papers issued herein, such claims are similarly rejected as lacking in merit. Persons in default in answering who did not appear by notice and demand for service of such papers are not entitled such service, and even if they were, a lack of service of such papers is not jurisdictional in nature and would alone not warrant a vacatur of any sale, judgment or other proceedings (see Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436, 799 NYS2d 117 [2d Dept 2005]; Olympia Mtge. Corp. v Ramirez, 9AD3d 401, 780 NYS2d 611 [2d Dept 2004]; Bank of New York vAgenor, 305 AD2d 438, 758 NYS2d 817 [2d Dept 2003]).
To the extent that the moving defendant claims an entitlement to a vacatur of the judgment of foreclosure and sale and a dismissal of the plaintiff's complaint upon this court's invocation of its inherent powers to avoid an injustice, such a claim is unavailing. To justify a court in setting aside and vacating a judgment on the ground of fraud, the fraud complained of must have been "extrinsic", that is, practiced in the very act of obtaining the judgment in such a way that a party was prevented from fully and fairly litigating the matter (see Lockett v Juviler, 65 NY2d 182, 490 NYS2d 764 [1985]; Matter of Holden, 271 NY 212, 2 N.E.2d 631[1936]; Matter of Holden, 271 NY 212, 2 N.E.2d 631 [1936];, Augustin v Augustin, 79 AD3d 651, 913 NYS2d 207 [1st Dept 2010]; Shaw v Shaw, 97 AD2d 403, 467 NYS2d 231 [ 1983]), as instances of intrinsic fraud or perjury have been held not to justify invocation ofthe court's inherent powers to vacate its own judgment (see Lockett v Juviler, 65 NY2d 182, supra; Jacobowitz v Herson, 268 NY 130, supra; see also Citimortgage, Inc. v Guarino, 42 Misc.3d 962, 978 N.Y.S.2d 646 [Sup Ct. Suffolk Cty. 2014]). It is the movant's burden "to show that the prior order should be set aside by submission of sufficient evidence supporting the grant of such relief" (Mortgage Elec. Registration Sys., Inc. v Dort-Relus, 107 AD3d 861, 968 NYS2d 117 [2d Dept. 2013]). The moving papers here are devoid of any evidence tending to demonstrate that the...
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