MTGLQ Inv'rs v. Gross

• Citation: 2022 NY Slip Op 34514 (U)
• Decision Date: 09 May 2022
• Docket Number: Index No. 64020/2019,Sequence Nos. 1,2
• Parties: MTGLQ INVESTORS, LP, Plaintiff, v. STEVEN GROSS; JACQUELINE GROSS; "JOHN DOE 1 to JOHN DOE 25," said names being fictitious, the persons or parties intended being the persons, parties, corporations, or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants, Defendants.
• Court: United States State Supreme Court (New York)

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2022 NY Slip Op 34514(U)

MTGLQ INVESTORS, LP, Plaintiff,
v.

STEVEN GROSS; JACQUELINE GROSS; "JOHN DOE 1 to JOHN DOE 25," said names being fictitious, the persons or parties intended being the persons, parties, corporations, or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants, Defendants.

Index No. 64020/2019, Sequence Nos. 1, 2

Supreme Court, Westchester County

May 9, 2022

Unpublished Opinion

DECISION & ORDER

SAM D. WALKER JUDGE

The following papers were considered on the plaintiff's motion seeking a default judgment, order of reference, as well as defendant's cross-motion denying plaintiff's motion in its entirety and granting defendant summary judgment against plaintiff.

Notice of Motion/Affirmations/Affidavits/Exhibits A-K	1-15
Memorandum of Law in Support of Motion	16
Notice of Cross-Motion/Affirmation/Affidavit/	17-20
Memorandum of Law in Support of Cross-Motion/Exh. A-I	21-30
Affirmation/Affidavit in Opposition to Cross-Motion/Exh 1	31-32
Memorandum of Law in Reply	33

This is an action to foreclose a Mortgage on real property located at 14 Grandview Avenue, Ardsley, New York 10502. Defendant Steven Gross borrowed the sum of $417,000.00 from Countrywide Bank, FSB, as evidenced by a Note dated July 25, 2008. As security for repayment of this obligation, on July 25, 2008, Defendants Steven Gross and Jacqueline Gross, executed, acknowledged, and delivered a certain Mortgage granting Mortgage Electronic Registration Systems, Inc. (hereinafter "MERS") solely as nominee for Countrywide Bank, FSB a mortgage lien on the premises. The Mortgage was duly recorded with the Office of the Westchester County Clerk on August 26, 2008.

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The Mortgage was then assigned from MERS as nominee for Countrywide Bank, FSB to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP, by Assignment of Mortgage dated August 26, 2010, which was recorded with the Westchester County Clerk on September 16, 2010. The Note and Mortgage were then transferred and assigned from Bank of America, N.A successor by merger to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP to Nationstar Mortgage, LLC by indorsement of the Note to blank and Assignment of Mortgage dated April 9, 2014 and recorded with the Westchester County Clerk on April 22, 2014. The Note and Mortgage were then transferred and assigned from Nationstar Mortgage, LLC to Bank of America, N.A. by indorsement of the Note to blank and Assignment of Mortgage dated January 17, 2017, and recorded with the Westchester County Clerk on February 14, 2017.

The Note and Mortgage were then transferred and assigned from Bank of America, N.A. to Nationstar Mortgage, LLC by indorsement of the Note to blank and Assignment of Mortgage dated May 15, 2013 and recorded with the Westchester County Clerk on June 24, 2014. The Note and Mortgage were then ultimately transferred from Nationstar Mortgage, LLC to Plaintiff by indorsement of the Note to blank and Assignment of Mortgage dated January 17, 2017 and recorded with the Westchester County Clerk on February 14, 2017. Pursuant to Plaintiffs business records, Plaintiffs Note Custodian, Wells Fargo Bank, N.A. has been in possession of the original Note from December 10, 2016 to present.

Plaintiff alleges that Defendants defaulted in making the monthly payment due pursuant to the Note and Mortgage on September 1, 2009 and monthly thereafter. Plaintiff alleges that on June 6, 2019, a notice of default was mailed by first class mail to Defendants at the address designated for such notice pursuant to the terms of the Mortgage. Plaintiff also alleges that on June 6, 2019, Plaintiff through its servicer, served a RPAPL 1304 Notice (pre-foreclosure 90-Day Notice) with a list of at least five HUD Housing Counseling Agencies, by regular and certified mail, to Defendants at the Premises. Pursuant to the acceleration provisions of said Note and Mortgage, Plaintiff, upon notice, elected that the whole of the principal sum secured be immediately due and payable. By virtue of such acceleration, the principal sum of $412,661.05, plus fees, costs and interest thereon from August 1, 2009 became due and owing.

The within foreclosure action was commenced by filing the Notice of Pendency, Summons and Complaint, and Certificate of Merit on September 9, 2019. Plaintiff alleges that service upon all Defendants with the Summons and Complaint as well as the notices required by RPAPL §1303 and RPAPL §1320 was completed on or before September 19,2019. None of the defendants have appeared or answered the Complaint except Defendants, who filed an Answer with Counterclaims on October 7, 2019 and an Amended Answer with Counterclaims on October 21, 2019.

Plaintiff then filed a Reply to Counterclaims on October 9, 2019 and a Reply to Counterclaims to Defendants' Amended Answer on December 20, 2019 after the parties executed a stipulation permitting Plaintiff to file same.

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Mandatory settlement conferences pursuant to CPLR 3408 was held between October 28, 2019 to January 21, 2020. The parties were unable to settle and Plaintiff was given leave to continue prosecution of the foreclosure action.

Plaintiff now seeks an Order pursuant to RPAPL § 1321 and CPLR R. 3212 granting summary judgment in favor of Plaintiff; granting a default judgment against all the non-appearing Defendants; substituting Matt Gross and Alexa Gross for John Doe 1 to John Doe 25 as party Defendants, amending the caption to reflect said amendments; and appointing a referee to compute the amount of the mortgage debt owed Plaintiff pursuant to RPAPL § 1321. Defendants oppose Plaintiff's motion and cross-move for an order dismissing the instant action and granting summary judgment in favor of Defendants pursuant to CPLR 3212 and quiet title pursuant to RPAPL Article 15 and for such other and further relief which may be appropriate.

In their cross-motion, Defendants' allege that this is the third action commenced by Plaintiff. On September 10, 2010, a foreclosure action on the same property and the same loan as this action was initiated by BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing LP by the filing of a Summons and Complaint, under Index number 22082/2010 with the Westchester County Clerk. That Summons and Complaint referenced a September 1, 2009 date of default. The first action was ultimately discontinued, as BAC Home Loans filed a motion to discontinue the action. Defendants allege that the discontinuance was due to potential defects with the 90-day notice, and said discontinuance was granted on or about January 29, 2013.

On December 31,2014, a Second Action was initiated on the same property and loan, by Nationstar Mortgage, LLC, with the filing of the Summons and Complaint, under Index No. 71926/2014, which contained the same date of default of September 1, 2009. Defendants, Steven Gross and Jacqueline Gross served an Answer on February 12, 2015. After the conclusion of the Residential Foreclosure Settlement Conference Part, on April 22, 2016, Defendant Jacqueline Gross filed a Chapter 7 Bankruptcy with the Southern District of New York. Jacqueline Gross received a discharge of bankruptcy on January 17, 2017. Thereafter, motion practice was conducted by Plaintiff and Defendants which ultimately led to a Decision and Order by the Honorable Charles D. Wood, dated July 3, 2017, which found Plaintiff had standing but failed to prove its compliance with conditions precedent to the commencement of the action.

The matter remained inactive, and the Court subsequently scheduled a status conference in the Mandatory Appearance Part for March 15, 2018 and at that conference, the Court scheduled the matter for a trial for April 27, 2018 and filed a Trial Scheduling Order. Prior to the scheduled Trial, on April 5, 2018, Plaintiff filed a second motion for summary judgment which was opposed by Defendants and resulted in another denial based on Plaintiff's failure to prove compliance with the conditions precedent. The Court further directed the parties to appear in the Foreclosure Trial Part on July 2, 2018, prepared to proceed with trial. At the conclusion of the trial, Referee Albert J. Degatano issued a Referee's Report to the Court in favor of Defendants

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pursuant to CPLR 4401 for judgment as a matter of law. Defendants thereafter made a motion to confirm the referee's report.

Plaintiff then requested three different adjournments, and ultimately filed opposition, which led to a Decision and Order by the Honorable Kathie E. Davidson which inter alia confirmed the Referee's Report, granted Defendants judgment as a matter of law pursuant to CPLR 4401 and directed Defendants inter alia to serve a proposed judgment on notice. A corresponding Judgment dismissing the matter pursuant to CPLR 5013 was executed on May 28, 2019 and entered with the Westchester County Clerk on May 30, 2019 and notice of entry was filed on June 19 2019.

On September 9, 2019, Plaintiff commenced this action by the filing of the Summons and Complaint and Notice of Pendency. Defendants, Steven Gross and Jacqueline Gross filed an Answer with Counterclaims on October 7, 2019, and the matter thereafter was transferred to the Residential Conference Part from October 28, 2019 to January 21, 2020. On December 8, 2020, Plaintiff brought the instant motion for summary judgment. Due to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, passed on December 28, 2020, the matter was stayed for a period of 60 days and therefore, Plaintiff's motion was adjourned. Defendants argue that for the reasons set forth in their memorandum of law, in Defendant's cross-motion for summary judgment should be granted and the action dismissed.

D...