Wilmington Tr., N.A. v. Holmes
| Decision Date | 03 September 2020 |
| Docket Number | L & T 73409/19 |
| Citation | 2020 NY Slip Op 51033 (U) |
| Parties | Wilmington Trust, National Association, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR THE MFRA TRUST 2015-1, Petitioner, v. Gina Holmes, ANGEL HOLMES, "JOHN DOE(S)," and "JANE DOE(S)," Respondents. |
| Court | New York Civil Court |
Matthew Lizotte, Esq.
Lizotte PLLC
New City, NY 10956
Attorney for Petitioner
Rohit Chandan, Esq.
Julia McNally, Esq.
The Legal Aid Society
120-46 Queens Blvd., 3rd Floor
Kew Gardens, NY 11415
Attorneys for Respondent Gina Holmes
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent Gina Holmes' motion to dismiss pursuant to CPLR § 3211(a)(7):
Papers/Numbered
Notice of Motion & Affirmation/Exhibit Annexed 1
Affirmation in Opposition & Exhibits Annexed 2
Upon the foregoing cited papers, the decision and order on Respondent's motion to dismiss is as follows.
This post-foreclosure holdover proceeding brought pursuant to RPAPL § 713(5) is based on a Notice of Petition and Petition dated December 10, 2019. After an initial adjournment on January 24, 2020, The Legal Aid Society appeared for Respondent Gina Holmes and made a motion to dismiss pursuant to CPLR § 3211(a)(7). Petitioner submitted opposition papers and the proceeding was adjourned for submission of reply papers and argument to March 18, 2020. Respondent submitted reply papers on March 10, 2020, but due to the shutdown of normal court operations due to the COVID-19 public health emergency, argument was delayed. The court heard argument on Respondent's motion via Skype on August 26, 2020 and reserved decision.
Respondent's motion argues that the predicate "Combined Ten (10) Day Notice to Quit With Alternative Ninety (90) Day Notice to Quit" (hereinafter "Notice to Quit") is defective, on two primary grounds. First, Respondent alleges that the Notice to Quit does not sufficiently describe the nexus between Petitioner and the notice's signatory. Second, Respondent asserts that Petitioner, in the notice, improperly placed the burden upon Respondents to demonstrate bona fide tenant status, in violation of the federal Protecting Tenants at Foreclosure Act (PTFA) and RPAPL § 1305. Alternatively, Respondent requests leave to interpose an answer pursuant to CPLR § 3211(f). Petitioner opposes Respondent's motion in all respects.
Respondent, citing to Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218 [2d Dept 1985], affd 67 NY2d 792 [1986], argues that the Notice to Quit is defective insofar as it lacked proof that the signatory, Sarah Nelson, was authorized to sign on behalf of Petitioner. On the signature page of the Notice to Quit, Ms. Nelson's signature, printed name, date, title, and address appear directly below a typewritten closing salutation and the following: "Wilmington Trust, National Association, not in its individual capacity, but solely as trustee for MFRA Trust 2015-1, by its attorney-in-fact, Fay Servicing LLC." Annexed to the Notice to Quit is a certified deed and certified "Limited Power of Attorney" dated December 15, 2015, which appoints Fay Servicing LLC as attorney-in-fact for Petitioner.
In Siegel, the notices of default therein were defective specifically because the lease between the parties required service of the notices by the "landlord" and the notices at issue, from an attorney with whom the tenant had never dealt, were not authenticated or accompanied by proof to bind the landlord. Siegel, 108 AD2d at 223. Subsequent to Siegel, the Appellate Division, Second Department has stressed the narrowness of its holding. In Matter of QPII-143- 45 Sanford Ave., LLC v. Spinner, 108 A.D3d 558, 559-560 [2d Dept 2013], the Appellate Division specifically noted that "Siegel is limited to the 'factual peculiarities' of the lease in that case" and held that "the failure to include evidence of the agent's authority to bind the landlord did not render [the owner] noncompliant with the requirements of the notice provision and did not render the notice invalid." Respondent does not annex any lease between the parties to her motion. Therefore, the court does not find Siegel to be applicable to this proceeding.
Respondent also cites to two Nassau County District Court decisions for the proposition that a signer of a predicate notice must attach evidence that they have authority to sign in post-foreclosure eviction cases.1 In the first, Fannie Mae v. Lindo, 177 Misc 2d 1003, 1005 [Dist Ct, Nassau County 1998], Judge Joel B. Gewanter held that a notice to quit was defective where it was signed by a new attorney for the petitioner unknown to the respondent. In the second, GMAC Mortg. Corp. v. Toureau, 15 Misc 3d 1139[A], 2007 NY Slip Op 51056[U] [Dist Ct, Nassau County 2007], Judge Scott Fairgrieve similarly held that a notice to quit was defective because the attorney issuing the notice failed to attach proof of authorization to sign notices on behalf of the petitioner. Here, however, unlike in the two aforementioned Nassau County cases and the two Queens County cases cited in the reply papers (Chen v. Villacis, 2008 NY Misc. LEXIS 5223, 240 N.Y.L.J. 36 [Civ Ct, Queens County 2008] and Washington Mutual Home Loans, Inc. v. Calderon, 30 HCR 554A, N.Y.L.J. September 25, 2002, 23:3 [Civ Ct, Queens County 2002]), the Notice to Quit includes the Limited Power of Attorney authorizing Fay Servicing, LLC as its attorney-in-fact for the purpose of, inter alia, pursuing and prosecuting eviction cases. In Deutsche Bank National Trust Company for New Century Home Equity Loan Trustem Series 2005-C v. Cordova, 62 Misc 3d 1219[A], 2019 NY Slip Op 50178[U] [Dist Ct, Nassau County 2019], Judge Fairgrieve held that a limited power of attorney annexed to a notice to quit was sufficient authorization for an employee of the attorney-in-fact to sign on behalf of the petitioner. An analogous holding was reached in Bank of NY Mellon v. Salahuddin, 60 Misc 3d 999, 1005 [Poughkeepsie City Ct 2018], where the court observed that the notice of quit "was not invalid simply because it was signed by an attorney-in-fact instead of the landlord."
To the extent that Respondent argues that the Notice to Quit was impermissibly opaque in its description of Ms. Nelson as "Assistant Vice President of REO," the court disagrees. Ms. Nelson's name appears directly below the statement that the notice is issued by Fay Servicing LLC, as attorney-in-fact for Petitioner (with the preposition "By" before her name). Ms. Nelson's title, "Assistant Vice President of REO," is perhaps not readily understandable by a layperson 2 but the inclusion of the title merely provides identification of Ms. Nelson's role as an employee (and thus an agent) of the attorney-in-fact. See Cordova, 2019 NY Slip Op 50178[U], *4 []; see also Port Royal Owners Corp. v. Navy Beach Rest. Group, LLC, 57 Misc 3d 13, 15 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] [Affirming that an agent may sign predicate notice in the absence of a lease provision providing otherwise].
Accordingly, Respondent's motion fails to establish that the Notice to Quit is defective because of an insufficient nexus between Petitioner and Sarah Nelson, the signer of the notice.
Respondent also argues in her motion that the Notice to Quit is defective because its language puts the burden upon Respondents to provide proof of bona fide tenancy status, in violation of the PTFA and RPAPL § 1305. In assessing this argument, it is necessary to note that the Notice to Quit is a combined 10- and 90-day notice, with alternative provisions for each portion of the notice. Of relevance here, the first page of the notice states that "pursuant to RPAPL 713(5) within ten (10) days after service on you of this Notice, you and all other persons occupying the premises EITHER produce acceptable evidence to the law firm listed below that you are entitled to the protections of RPAPL Section 1305 OR you are required to vacate and surrender possession of the Premises to [Petitioner] within ten (10) days of receiving this Notice." Under the "90 Day Notice" section that begins on Page 2 of the Notice to Quit, specific documents are requested, including a copy of the lease or proof of rent payment, proof of public assistance rental assistance, a phone number and email address, and proof of the last six (6) rent payments or the length of the residence if less than six (6) months.
In a post-foreclosure holdover proceeding brought pursuant to RPAPL § 713(5), the statute specifically states that the cause of action is "[s]ubject to the rights and obligations set forth in section thirteen hundred five [1305] of this chapter." Of relevance here, RPAPL § 1305(3) requires that:
"Notwithstanding any other provision of law, and consistent with subdivision two of this section, a successor in interest of residential real property shall provide written notice to all tenants: (a) that they are entitled to remain in occupancy of such property for the remainder of the lease term, or a period of ninety days from the date of mailing of such notice, whichever is greater, on the same terms and conditions as were in effect at the time of entry of the judgment of foreclosure and sale, or if no such judgment was entered, upon the terms and conditions as were in effect at the time of transfer of ownership of such property; and (b) of the name and address of the new owner."
In RPAPL § 1305(1)(c), "tenant" is defined as:
To continue reading
Request your trial