Wilmington Sav. Fund Soc'y, FSB v. DeCanio, 600554/15.
| Decision Date | 03 May 2017 |
| Docket Number | No. 600554/15.,600554/15. |
| Citation | 57 N.Y.S.3d 677 (Table) |
| Court | New York Supreme Court |
| Parties | WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a Christiana Trust, not in its individual capacity but solely as legal title trustee for Bronze Creek Title Trust 2013–NPL1, Plaintiff, v. Ardith DeCANIO, Long Island Real Property Holding, Ltd., FM Landscaping Inc., Internal Revenue Service/United States of America, New York State Department of Taxation & Finance and "John Doe # 1" through "John Doe # 12", the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants. |
Knuckles, Komosinski et al., Elmsford, for Plaintiff.
Christopher Thompson, Esq., W. Islip, for Defendant LI Real Prop.
Upon the following papers numbered 1 to 14 read on this motion for summary judgment, among other things and cross motion for dismissal; Notice of Motion/Order to Show Cause and supporting papers 1–9; Notice of Cross Motion and supporting papers: 10–12; Opposing papers: 13–14; Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (# 001) by the plaintiff for, among other things, summary judgment is granted in its entirety, and it is further
ORDERED that the cross motion (# 002) by defendant, Long Island Real Property Holding, Ltd. (hereinafter "LI Holding"), for dismissal of the complaint on various grounds, is denied in its entirety, and it is further
ORDERED that the proposed Order submitted by the plaintiff, as modified, is signed simultaneously herewith; and it is further
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5–b(h)(3).
This foreclosure action was commenced by filing on January 20, 2015. The matter was reassigned to this Part pursuant to Administrative Order No. 43–17, dated April 12, 2017 and submitted for decision on April 14, 2017. In essence, on January 20, 2006, defendant, Ardith DeCanio, borrowed $253,750.00 from plaintiff's predecessor in interest and executed a promissory note and mortgage, for the purchase of the premises located at 97 Washington Drive, Kings Park, NY. Since April 1, 2009, the defendant borrower has failed to pay the monthly installments due and owing. The borrower and mortgagor, Ardith DeCanio, has failed to appear in this action or offer opposition to plaintiff's motion. Only defendant, LI Holding, a subsequent purchaser of the parcel, for just $5,000.00 (see Ex. D, annexed to plaintiff's moving papers, last attachment to the verified complaint)1 , has sought to contest this action. In its answer, the defendant corporation alleges eighteen affirmative defenses and two counterclaims.
From the record before the Court, as reflected in the deed dated December 14, 2012, prepared by and returned to the cross moving counsel, the defaulting borrower, defendant, Ardith DeCanio, no longer occupied the residence, but instead resided at 3 Everit Place, Smithtown, NY. In fact, that is the address at which she was served on January 29, 2015, with the summons and complaint and other initiating papers for commencement of this action.
The subsequent owner corporation has cross moved (# 002), on various grounds, to dismiss the complaint. Plaintiff has opposed the cross motion. The Court will address this cross motion first, since the outcome may undermine plaintiff's moving papers.
The Court rejects the argument concerning certificates of conformity (see CPLR 2309[c] ). Appellate determinations have uniformly held that even if such is missing, it is not fatal to the action (see Deutsche Bank Natl. Trust Co. v. Naughton, 137 A.D.3d 1199, 28 NYS3d 444 [2d Dept 2016] ; Bank of New York Mellon v. Vytalingam, 144 A.D.3d 1070, 42 NYS3d 274 [2d Dept 2016] ; Midfirst Bank v. Agho, 121 A.D.3d 343, 991 N.Y.S.2d 623 [2d Dept 2014] ; Todd v. Green, 122 A.D.3d 831, 997 N.Y.S.2d 155 [2d Dept 2014] ; Gonzalez v. Perkan Concrete Corp., 110 A.D.3d 955, 975 N.Y.S.2d 65 [2d Dept 2013] ; Matos v. Salem Truck Leasing, 105 A.D.3d 916, 963 N.Y.S.2d 366 [2d Dept 2013] ; Betz v. Daniel Conti, Inc., 69 A.D.3d 545, 892 N.Y.S.2d 477 [2d Dept 2010] ).
Contrary to the claim of counsel, Christopher Thompson Esq., a proper Certificate of Merit, pursuant to CPLR § 3012–b, was filed with the summons and complaint as NYSCEF Doc. No. 2. Counsel seeks to engraft new and additional language upon the State Legislature's list of items to be attached to such a certificate. There is simply no requirement that a power of attorney must be included or that the State Legislature sought to impose such a requirement. This Court rejects counsel's suggestion to legislate from the bench. In any event, in opposition to the cross motion, plaintiff has appropriately submitted the limited power of attorney for the servicer, Rushmore Loan Management Services LLC, the servicer and attorney in fact for this loan (see Ex. 3, Aff. of Crystal S. Pannell, Esq., dated April 4, 2016).
Moreover, said statute only applies to residential foreclosure actions, "in which the defendant is a resident of the property which is subject to foreclosure" ( CPLR 3012–b[a] ). Since both the defendant borrower and certainly the defendant corporation were not residents of the property at the time of the commencement of the action, CPLR § 3012–b is not applicable.
A related defense asserted in the defendant's cross moving papers is that the RPAPL § 1304 notice, which is dated July 16, 2014, fails to comply with the requirements of RPAPL. The Court rejects the claim as frivolous. As noted above and as reflected in the deed dated December 14, 2012, prepared and returned to the cross moving counsel, the defaulting borrower, defendant, Ardith DeCanio, no longer occupied the residence, but instead resided in Smithtown, NY. This is prior to the commencement of the instant action and as such, RPAPL § 1304, and the requirement of a 90–day pre-action notice, is statutorily inapplicable (see RPAPL § 1304[3] ).
Additionally, defendant corporation does not possess standing to challenge any claimed defects in the RPAPL § 1304 notice, since the benefit is intended to help keep the obligor mortgagor in her dwelling. Since defendant corporation is not a borrower (see RPAPL 1304[5][ii] ; [iii]; [iv] ), it lacks standing to assert such a defense. This defendant was joined as a party defendant only because it purchased the property from the original borrower and obligor for $5,000.00, by deed dated December 14, 2012. Its title is subject to extinguishment upon the public sale of the premises.
Defendant, LI Holding, has failed to demonstrate that it is a bona fide purchaser for value (see Real Property Law § 266 ). " ‘[W]here a purchaser has knowledge of any facts, sufficient to put him on inquiry as to the existence of some right or title in conflict with [what] he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser’ " ( Lucas v. J & W Realty & Constr. Mgt., Inc., 97 A.D.3d 642, 643, 949 N.Y.S.2d 391 [2d Dept 2012], quoting Williamson v. Brown, 15 N.Y. 354, 362, 1 E.P. Smith 354 [1857] ). As such, the defendant corporation cannot cut off the prior lien, the previously filed mortgage instrument and stands bound by all proceedings in this foreclosure action.
Here, LI Holding did not execute the promissory note or the mortgage. It is a stranger to the transaction and has no standing to challenge matters that are personal to the defendant, Ardith DeCanio. Only the defendant borrower, who has defaulted in this action, possess standing to raise the many issues the defendant corporation seeks to raise. LI Holding, a stranger to the mortgage loan transaction at issue, is certainly not entitled to raise any statutory protection which are designed to help assist a homeowner in retaining his or her home.
Similarly, RPAPL § 1302 is inapplicable, since the obligor and mortgagor does not reside at the premises. LI Holding cannot raise claims under Banking Law §§ 6–m and 6–l since it is not the borrower. Defendant counsel even admits to the fact that under Banking Law § 6–m(4), "the lender is supposed to evaluate the borrower's ability to repay" (see Thompson aff., par.71, dated February 5, 2016). Moreover, Banking Law § 6–l applies to "a natural person" ( Banking Law § 6–l[1][c][ii] ), so LI Holding has no standing. Additionally, this loan issued on April 20, 2006 and does not fall under the preview of Banking Law § 6–m(4), which applies only to subprime and high-cost loans issued on or after September 1, 2008 (see Banking Law § 6–m[4], as added by L.2008, ch. 472; see also Emigrant Mtge. Co. v. Fitzpatrick, 95 A.D.3d 1169, 945 N.Y.S.2d 697 [2d Dept 2012] ). Finally, contrary to defendant's counsel's claim, the complaint does state that the plaintiff is the owner and holder of the subject note and mortgage. Other than speculation, no proof is offered as to any claimed violations of the Banking Law provisions.
The Court must further reject the long discussion set forth in th cross motion concerning compliance with Department of Housing and Urban Development (HUD) servicing requirements and HUD regulations concerning a Federal Housing Administration (FHA) loan. Once again, the LI Holding cannot raise any claimed deficiencies because it does not posses the requisite standing to do so. The property is no longer titled in the name of the intended beneficiary of such regulations. The time has long passed for any discussion of this issue.
The Court must remark upon defendant's counsel's reference to the legislative purpose "to assist in providing a decent home and a suitable living environment for every American family" ...
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...nearly the same exact terms.The prior opinions of this Court (see also Wilmington Sav. Fund Socy. v. DeCanio , 55 Misc.3d 1215(A), 57 N.Y.S.3d 677 [Sup. Ct., Suffolk County 2017] ) emanate from Albertina , supra, wherein the lender refused a late payment three days after the action was file......