WENEGIEME v. SOUTHSTAR FUNDING LLC (2019)

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered on or about June 14, 2018, which granted the motion of defendants U.S. Bank, N.A., Wells Fargo Bank, N.A., and Mortgage Electronic Registration Systems (MERS) to dismiss the complaint, unanimously affirmed, without costs.

Even if denominated a “quiet title” action by plaintiff, this action is no different from her multiple prior attempts to vacate the foreclosure.  Her quiet title cause of action rests on the same, previously-decided claims about the supposed invalidity of the mortgage, claims she has had a full and fair opportunity to litigate.  Accordingly, the court below, as did Bronx Supreme Court in 2014 and as did Southern District of New York in 2017, properly dismissed the claim on collateral estoppel grounds (see Schwartz v. Public Adm'r of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 [1969];  see also Wenegieme v. U.S. Bank, N.A., 2014 WL 5480610, 2014 N.Y. Misc. LEXIS 4473 [Sup. Ct., Bronx Co., Sept. 17, 2014];  Wenegieme v. U.S. Bank, N.A., 2017 WL 1857254, 2017 U.S. Dist LEXIS 68909 [S.D.N.Y. 2017], affd 715 Fed. Appx. 65 [2d Cir. 2018]).

To the extent the action constitutes a challenge to the validity of the assignment or the chain of title to the mortgage, such challenge is not appropriately asserted in an action to quiet title (see Cudjoe v. Boriskin, 157 A.D.3d 654, 68 N.Y.S.3d 524 [2d Dept. 2018]).

Plaintiff fails to show how CPLR 4539 advances her position.  To the extent she had grounds to challenge the authenticity of the mortgage documents, such challenge, if appropriately asserted by her at all, would have been in opposition to the summary judgment motion in Bronx Supreme Court in 2013, a motion she did not oppose.  She shows no reason why this Court should hear such challenge now.

More fundamentally, plaintiff fails to show that she has standing to challenge the mortgage.  She does not adequately rebut the findings in the previous court decisions that she was not the borrower on the mortgage;  her contrary allegation in the complaint is belied by the Sylvester affidavit in the record, and she annexes no other documents to show that she, rather than Sylvester, was the original borrower or the assignee (see e.g. Landau v. Hallstead, 159 A.D.3d 1095, 1097, 71 N.Y.S.3d 714 [3d Dept. 2018];  U.S. Bank N.A. v. GreenPoint Mtge. Funding, Inc., 105 A.D.3d 639, 965 N.Y.S.2d 401 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 983 N.Y.S.2d 494, 6 N.E.3d 613 [2014];  cf. Decana, Inc. v. Contogouris, 24 A.D.3d 297, 808 N.Y.S.2d 617 [1st Dept. 2005]).

We have considered plaintiff's remaining arguments and find them unavailing.