Wells Fargo Bank N.A. v. Arthur
| Decision Date | 01 February 2016 |
| Docket Number | No. 39335–10.,39335–10. |
| Parties | WELLS FARGO BANK N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006–NC2 Asset–Backed Pass–Through Certificates, Plaintiff, v. Hugh G. ARTHUR III; Rosetta I. Arthur; Colorado Capital Investments Inc.,; Commissioners of the State Insurance Fund; FIA Card services NA; JST Capital Inc; New York Anesthesia Associates ; People of the State of New York; Slomins Inc; “John Does” and “Janes Does”, said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien the premises, Defendants. |
| Court | New York Supreme Court |
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y., Attorneys for Plaintiff.
Elias N. Sakalis, Esq., Bronx, N.Y., Cathleen Williams, Esq., Cambria Heights, N.Y., Attorney for Defendant Rosetta I. Arthur.
Upon the following papers numbered 1 to 24 read on this motions for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 1–13; Notice of Cross Motion and supporting papers 14–19; Answering Affidavits and supporting papers 20–23; Replying Affidavits and supporting papers; Other stipulation 24; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (003) by the plaintiff, and the motion (004) by the defendant Rosetta Arthur, which was improperly labeled a cross motion, are consolidated for the purposes of this determination and decided herewith; and it is
ORDERED that this motion (003) by the plaintiff for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor against the defendant Rosetta Arthur, striking her answer, and dismissing the counterclaims set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption is granted; and it is
ORDERED that this motion (004) by the defendant Rosetta Arthur for, inter alia, an order: (1) pursuant to CPLR 3211 and 3212 dismissing the complaint insofar as asserted against her on the grounds that the plaintiff lacks standing; or, in the alternative, (2) restoring this action to a foreclosure conference calendar is denied in its entirety; and it is
ORDERED that the caption is amended by changing Hugh G. Arthur III to Hugh G. Arthur II, and substituting Tammie Grandville for the fictitious defendants “John Does” and “Jane Does” as well as the descriptive wording relating thereto; and it is
ORDERED that the plaintiff shall serve a copy of the order of reference amending the caption upon the Calendar Clerk of this Court; and it is
ORDERED that the plaintiff shall serve a copy of this order with notice of entry upon Elias N. Sakalis, Esq., counsel for the defendant Rosetta Arthur, and all other parties, if any, who have appeared herein and not waived further notice pursuant to CPLR 2103(b)(1), (2) or (3) within thirty (30) days of the date herein, and shall promptly file the affidavits of service with the Clerk of the Court; and it is further
ORDERED that the defendant Rosetta Arthur shall serve a copy of this order with notice of entry upon Rosicki, Rosicki, & Associates, P.C., counsel for the plaintiff and all other parties, if any, who have appeared herein and not waived further notice, pursuant to CPLR 2103(b)(1), (2) or (3) within thirty (30) days of the date herein, and shall promptly file the affidavits of service with the Clerk of the Court.
This is an action to foreclose a mortgage on residential real property known as 42 Pendale Drive, Amityville, New York 11701. On April 5, 2006, the defendant Rosetta Arthur executed a fixed-rate note in favor of Century Mortgage Corporation (“the lender”) in the principal sum of $174,400.00. To secure said note, Rosetta Arthur and her son Hugh G. Arthur II sued herein as Hugh G. Arthur III (collectively “the defendant mortgagors”) gave the lender a mortgage also dated April 5, 2006 on the property. By way of an allonge with an undated endorsement to the note as well as an assignment executed on October 4, 2007 and “effective” as of August 24, 2007, the note and mortgage were allegedly transferred to the plaintiff, Wells Fargo Bank, N.A., as Trustee, for Carrington Mortgage Loan Trust, Series 2006–NC2 Asset–Backed Pass–Through Certificates prior to commencement. The assignment of the note and mortgage to the plaintiff was subsequently duly recorded in the Office of the Suffolk County Clerk on October 22, 2007.
The defendant mortgagors allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on or about February 1, 2009, and each month thereafter. After the defendant mortgagors allegedly failed to cure the default in payment, the plaintiff commenced the instant action by the filing of a summons and complaint on November 18, 2010.
By way of background, a settlement conference was scheduled to be held before the foreclosure conference part on June 13, 2011. A representative of the plaintiff attended and participated in the settlement conference. On said date, this case was dismissed from the conference program by the assigned referee because the parties were unable to achieve a settlement. Accordingly, there has been compliance with CPLR 3408 ; no further conference is required.
By way of further background, the plaintiff previously moved for an order of reference, which was granted by order dated February 12, 2012 (Pastoressa, J.). By said order, Mr. Richard A. Pino, Esq. was appointed referee to compute; however, this order was vacated by subsequent order dated November 7, 2012 (Pastoressa, J.) which granted a motion by Mrs. Arthur to vacate her default and interpose a late answer sworn to on July 31, 2012. Thus, issue was joined by the interposition of Mrs. Arthur's answer. The remaining defendants have neither appeared nor answered the complaint, and, thus, are in default.
By her answer, Mrs. Arthur admits some of the allegations set forth in the complaint, including the execution of the note and mortgage by her, and denies other allegations therein. Mrs. Arthur also asserts fourteen affirmative defenses, alleging, among other things, the lack of standing and legal capacity. In the answer, Mrs. Arthur also asserts five counterclaims, alleging, inter alia, the following: the breach of trust and a fiduciary duty; fraud; unjust enrichment; and violations of General Business Law §§ 349 and 350. In response to the counterclaims, the plaintiff interposed an answer denying the material allegations in the counterclaims, and asserts five affirmative defenses, alleging, among other things, the following: the failure to state a cause of action; claims barred by the doctrines of estoppel, waiver and/or ratification; the statute of frauds; the statute of limitations; and unclean hands.
The plaintiff now moves for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor against the defendant Rosetta Arthur, striking her answer, and dismissing the counterclaims set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption.
Mrs. Arthur opposes the plaintiff's motion and moves for, inter alia, an order: (1) pursuant to CPLR 3211 and 3212 dismissing the complaint insofar as asserted against her on the grounds that the plaintiff lacks standing; or, in the alternative, (2) restoring this action to a foreclosure conference calendar. In her opposing and moving papers, Mrs. Arthur re-asserts her pleaded affirmative defense that the plaintiff lacks standing to prosecute its claims for foreclosure and sale. Mrs. Arthur argues that this action should be dismissed because of the plaintiff's purported lack of standing, contending that a question of fact exists with respect to the assignment of the note and mortgage. In the alternative, Mrs. Arthur argues, among other things, that this case should be restored to the foreclosure conference part to give her the opportunity to secure a loan modification, and that she should be permitted to “discovery evidence” in support of her counterclaims.
In response to Mrs. Arthur's motion, the plaintiff has submitted opposition and reply papers. The plaintiff's counsel argues, among other things, that Mrs. Arthur is not entitled to another settlement conference, averring that a conference was already held on June 13, 2011. According to counsel, Mrs. Arthur represented to the plaintiff and the court that she did not want to participate in further settlement conferences because she sought to litigate this action. The plaintiff's counsel also asserts that discovery is not needed because, inter alia, it has demonstrated its standing and because Mrs. Arthur ratified the instant mortgage loan by making payments for several years prior to the default.
Initially, the court notes that on or about March 22, 2012, a notice of appearance on behalf of Mrs. Arthur was initially filed in this action by her attorney, Cathleen Williams, Esq., and that Mrs. Arthur's answer dated July 31, 2012 was also prepared and filed by counsel Williams. Although a consent to change attorney was never been filed with the court, Mrs. Arthur's instant motion (004) was submitted by Elias N. Sakalis, Esq., as her attorney, without a written notice of appearance from Mrs. Sakalis, and without any explanation from either Mr. Sakalis or Ms. Williams with respect to the same (see, CPLR 321[a], [b] ). Thus, the court is left in the untenable position...
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