JP Morgan Chase, N.A. v. Hagemeyer

• Decision Date: 11 February 2015
• Docket Number: 13-831
• Citation: JP Morgan Chase, N.A. v. Hagemeyer, 2015 NY Slip Op 25042, 47 Misc.3d 705, 6 N.Y.S.3d 908 (N.Y. Sup. Ct. 2015)
• Parties: JP MORGAN CHASE, N.A., Plaintiff, v. Charles HAGEMEYER, Gina Marie Hagemeyer and County of Suffolk, Defendants.
• Court: New York Supreme Court

47 Misc.3d 705

6 N.Y.S.3d 908

2015 N.Y. Slip Op. 25042

JP MORGAN CHASE, N.A., Plaintiff

v.Charles HAGEMEYER, Gina Marie Hagemeyer and County of Suffolk, Defendants.

13-831

Supreme Court, Suffolk County, New York.

Feb. 11, 2015.

Dollinger, Gonski & Grossman, Carle Place, Attorney for Plaintiff.

Dennis M. Brown, Esq., Suffolk County Attorney by Patricia A. Rouse, Esq., Hauppauge.

Opinion

JOSEPH C. PASTORESSA, J.

Upon the following papers numbered 1 to 32 read on this motion and cross motion for summary judgment ; Notice of Motion/Order to Show Cause and supporting papers 1–16 ; Notice of Cross Motion and supporting papers 17–26 ; Answering Affidavits and supporting papers; Replying Affidavits and supporting papers 27–30 ; 31–32 ; (and after hearing counsel in support and opposed to the motion) it is,ORDERED that the motion by the plaintiff for an order (a) pursuant to CPLR 3212, granting summary judgment declaring (i) that the treasurer's deed issued to the County of Suffolk as incident to a tax lien sale is void as against the real property that is the subject of this action, (ii) that the interests of the plaintiff in and to the subject property were not cut off thereby, (iii) that the mortgage presently held by the plaintiff is a valid first mortgage lien against the subject real property, and (iv) that either the plaintiff or defendants Charles Hagemeyer and Gina Marie Hagemeyer can redeem the subject property upon the payment of all outstanding real property taxes, and (b) correcting the name of the plaintiff from JP Morgan Chase, N.A. to JP Morgan Chase Bank, N.A., is denied ; and it is furtherORDERED that the cross motion by defendant County of Suffolk for an order pursuant to CPLR 3212, granting summary judgment dismissing the complaint, is granted to the extent indicated below, and is otherwise denied .

This action, brought pursuant to RPAPL article 15, is to compel the determination of claims to certain real property located at 111 Cherubina Lane, North Babylon, New York. The plaintiff commenced the action by filing of a summons and complaint on January 8, 2013. Issue was joined by defendant County of Suffolk (“the County”) on or about January 27, 2013. Defendants Charles Hagemeyer and Gina Marie Hagemeyer (“the Hagemeyers”) have not answered the complaint or otherwise appeared in the action.

The plaintiff alleges in its complaint that the Hagemeyers acquired title to the property on or about August 1, 1995; that on or about February 26, 2004, the Hagemeyers obtained a loan from Flagstar Bank, FSB (“Flagstar”) in the amount of $300,000.00; that to evidence the debt and to secure payment of the loan, the Hagemeyers executed and delivered to Flagstar a note and mortgage on the property; that the mortgage was recorded in the Office of the Suffolk County Clerk on March 23, 2004; that on or about March 31, 2012, Mortgage Electronic Registration Systems, Inc., as Flagstar's nominee, assigned the note and mortgage to the plaintiff; and that the assignment was recorded in the Office of the Suffolk County Clerk on June 27, 2012. It also appears that on July 30, 2010, Gina Marie Hagemeyer filed a chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of New York, that she received a discharge in bankruptcy on October 26, 2010, and that the bankruptcy case was closed on January 4, 2011.

According to the records of the Suffolk County Treasurer, the Hagemeyers defaulted in the payment of taxes levied on the property for the 2006/2007 tax year. On December 7, 2007, the County of Suffolk purchased the tax lien at auction. Notice to redeem the property within three years of the date of the tax lien sale (i.e. , by December 7, 2010) was delivered by the Suffolk County Treasurer to the Hagemeyers by certified mail on or about August 12, 2010, during the pendency of the bankruptcy proceeding.¹ When the Hagemeyers subsequently failed to redeem the tax lien, the County acquired the property by tax deed dated August 23, 2011 and recorded on August 24, 2011.

By way of this action, the plaintiff seeks to invalidate the tax lien and to establish itself as the holder of a valid first mortgage against the property. The plaintiff contends that by reason of the bankruptcy filing, all of Gina Marie Hagemeyer's creditors were automatically stayed by operation of 11 USC § 362(a) from taking any action against her to collect any debt; since notice to redeem was given while the bankruptcy case was still pending, it was without force and effect, and her time to redeem has not yet expired. The County objects to the plaintiff's standing to maintain this action, and further contends that it did not violate the automatic stay, as 11 USC § 362(b) excepts from the stay certain procedures to collect real estate taxes.

Now before the court are the parties' respective motions for summary judgment.

Upon review, the court finds the County's argument on summary judgment the more persuasive. Even assuming, without deciding, that the plaintiff possesses the requisite standing to sue, it would seem that the giving of a notice to redeem (as here, under section 52 of the Suffolk County Tax Act) falls within an exception to the automatic stay which provides that the filing of a...