BOSCO CREDIT TRUST SERIES 2012 v. Richard D. Parsons care of Bank of New York Mellon, et al., Defendants. (2019)

Judgment of foreclosure and sale, Supreme Court, New York County (George J. Silver, J.), entered February 25, 2019, in favor of plaintiff, unanimously affirmed, with costs.  Appeal from order, same court and Justice, entered February 25, 2019, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.  Appeals from orders, same court and Justice, entered July 11, 2018, July 10, 2018, and April 24, 2019, unanimously dismissed, without costs, as abandoned.

Defendants Derek Johnson and Susan Josie Crawford contend that Supreme Court lacked jurisdiction over this action because a final judgment of foreclosure and sale of the same property was entered in 2007 in an action commenced in 2005, and plaintiff failed to seek leave to commence the instant action pursuant to RPAPL 1301.  Defendants waived this argument by failing to raise it in their opposition to plaintiff's motion for summary judgment, in their reply in further support of their cross motion and opposition to plaintiff's motion, or during oral argument on the motions (see New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 796 [2d Dept. 2013] ).

Were we to consider the argument, we would find it unavailing.  While the 2005 action was not “formally discontinued” or the ensuing 2007 judgment vacated after the instant action was commenced, plaintiff's assignor, the former mortgage lender, entered into a loan modification agreement with defendants in 2008 that eliminated the basis for the judgment (see U.S. Bank Trust, N.A. v. Humphrey, 173 A.D.3d 811, 812, 103 N.Y.S.3d 98 [2d Dept. 2019];  MLB Sub I, LLC v. Grimes, 170 A.D.3d 992, 994, 96 N.Y.S.3d 594 [2d Dept. 2019];  Credit–Based Asset Servicing & Securitization v. Grimmer, 299 A.D.2d 887, 750 N.Y.S.2d 673 [4th Dept. 2002] ).  Thus, defendants are not facing “the expense and annoyance of two independent actions at the same time with reference to the same debt” (Central Trust Co. v. Dann, 85 N.Y.2d 767, 772, 628 N.Y.S.2d 259, 651 N.E.2d 1278 [1995] [internal quotation marks omitted] ), and plaintiff's failure to comply with RPAPL 1301(3) “was properly disregarded as a mere irregularity” (Deutsche Bank Natl. Trust Co. v. O'Brien, 175 A.D.3d 650, 651, 107 N.Y.S.3d 102 [2d Dept. 2019], citing CPLR 2001).

Defendants' argument that plaintiff had “unclean hands” is unavailing, because there is no statute that “requires a lender to take into account the borrower's ability to repay when making a loan, and provides a remedy to the borrower for the lender's failure to meet such requirement” (HSBC Bank USA, N.A. v. Campos, 55 Misc.3d 1221(A), 2017 N.Y. Slip Op. 50695(U), 2017 WL 2325282 *6 [Sup. Ct., Queens County 2017] ).  To the extent defendants argue that plaintiff's predecessor in interest accepted their borrower contribution without properly crediting it, plaintiff submitted an undisputed affidavit averring that the payment was applied in part to principal and interest, in part to legal and other fees incurred as a result of defendants' default, and in part to property taxes and an unpaid water and sewer bill that would otherwise have resulted in a lien on the property, and defendants offer no authority for their contention that the payment should have been applied solely to principal and interest.

M–7622 – Bosco Credit v. Trust Series

2012–1 v Derek Johnson

Motion to compel plaintiff to pay its share of the cost of the record pursuant to 22 NYCRR 1250.9(f)(1)(ii) denied.