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NATIONSTAR MORTGAGE, LLC, Plaintiff, v. Dieula SAINTVAL, Defendant.
Upon the following papers read 1–34 on this application to renew/reargue pursuant to CPLR 2221; Notice of Motion and supporting papers 1–13; Affirmation in opposition and supporting papers 14–29; Reply Affirnation and supporting papers 30–34; it is,
ORDERED that this motion by plaintiff Nationstar Mortgage, LLC pursuant to CPLR 2221, to renew and reargue the December 1, 2016 decision and order of the court (Mot. Seq. # 003), placed on the record at that time, which denied its prior motion to renew and reargue the decision and order of the court dated August 3, 2016 (Mot. Seq. # 001), is denied; and it is further
ORDERED that this action is set for trial before this court on August 6, 2018 at 9:30 A.M., and a pre-trial conference is set for July 10, 2018 at 9:30 A.M.; and it is further
ORDERED that the court will entertain no further motions in this action without the party obtaining the prior permission of the court, which can be obtained by sending a letter to the court explaining the basis/need for such motion.
The history of this action to foreclose a mortgage on residential real property located in Suffolk County is set forth in the decision of this court dated August 3, 2016 (Mot. Seq. # 001 & Mot. Seq. # 002), as well as in the decision of the court placed on the record on December 1, 2016 denying plaintiff Nationstar Mortgage, LLC's (“plaintiff”) first motion to renew/reargue (Mot. Seq. # 003).
In Mot. Seq. # 001 the court granted plaintiff's application to amend the caption, granted plaintiff partial summary judgment pursuant to CPLR 3212 (g) dismissing all of defendant Dieula Saintval's (“defendant”) affirmative defenses except the 12th affirmative defense, which contested plaintiff's compliance with the requirements of RPAPL § 1304, set that matter for a limited issue trial pursuant to CPLR § 2218, and denied its application for the appointment of a referee to compute pursuant to RPAPL § 1321 with leave to renew, while at the same time denied defendant's motion to compel discovery or alternatively to dismiss the complaint (Mot. Seq. # 002). The order also directed plaintiff to file a note of issue within thirty (30) days of the order.
Plaintiff filed a note of issue on September 7, 2016 and submitted Mot. Seq. # 003 seeking to renew/reargue its application to dismiss defendant's 12th affirmative defense; in essence seeking to renew/reargue it's motion for summary judgment. As noted, the court's decision placed on the record on December 1, 2016 denied that application. Although plaintiff submitted an affidavit of it's employee, Jessica Mitchell, which contained more information than that submitted in support of Mot. Seq. # 001, it was still insufficient to establish proof of mailing of the RPAPL § 1304 notices ("the notices"). In addition, plaintiff incorrectly argued that defendant had waived compliance with RPAPL § 1304 by failing to raise it in opposition to its motion for summary judgment, although it had been raised as defendant's 12th affirmative defense.
In the present motion plaintiff again moves to renew/reargue summary judgment, this time in relation to the court's decision of December 1, 2016. The court first notes, as to reargument, a party seeking reargument must convince the court that it overlooked or misapprehended facts or law on the prior motion and mistakenly arrived at its earlier decision (CPLR § 2221 [d]; see Neikam v. County of Suffolk, 253 AD2d 416 [2d Dept 1998] ). Motions for reargument are addressed to the sound discretion of the court (see Haque v. Daddazio, 84 AD3d 940 [2d Dept. 2011] ). Here, plaintiff argues that the court misapplied the law, claiming the court sua sponte raised the issue of plaintiff's failure to comply with RPAPL § 1304, something defendant did not raise it in opposition to plaintiff's motion. As in mot. Seq. # 003, plaintiff ignores the holdings of the Second Department which state that when a defendant raises compliance with RPAPL § 1304 as an affirmative defense, as here in defendant's 12th affirmative defense, plaintiff has the affirmative obligation to establish it's compliance with this statutory condition precedent (see Bank of New York v. Aquino, 131 AD3d 1186 [2d Dept 2015]; Citimortgage. Inc v. Espinal, 134 AD3d 876 [2d Dept 2015]; Zarabi v. Movahedian, 136 AD3d 895 [2d Dept 2016]; Cenlar FSB v. Weisz, 136 AD3d 855 [2d Dept 2016]; JPMorgan Chase Bank, N.A. v. Kutch, 142 AD3d 536 [2d Dept 2016]; M & T Bank v. Joseph, 152 AD3d 579 [2d Dept 2017] ). Instead, in misplaced reliance upon the holding in Nationstar Mortgage, LLC v. Silveri, 126 AD3d 864 (2d Dept 2015), plaintiff claims that it is error for a trial court to “sua sponte” interject the issue of RPAPL § 1304 compliance if it is not raised by defendant in opposition. Not only does that ignore the cases just previously cited, but it ignores the actual holding in Nationstar Mortgage, LLC v. Silveri, supra, where the Second Department held that the trial court erred in raising RPAPL § 1304 compliance because that action that had been commenced prior to the enactment of that statute.
The fact that defendant's counsel's affirmation in opposition appears to be the same one submitted in opposition to Mot. Seq. # 003 and fails to recognize that a new affidavit of mailing had been submitted or refer to any of the deficiencies therein, is of little importance. As indicated, once raised as an affirmative defense, plaintiff must establish compliance with mailing the notices by evidentiary proof in admissible form, as with any motion for summary judgment (see Washington Mut. Bank v. Valencia, 92 AD3d 774 [2d Dept 2012]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 ; Zuckerman v. City of New York, 49 NY2d 557  ). Plaintiff's application to reargue is denied.
As to the argument for renewal, there is nothing submitted by plaintiff that supports that there has been a change in the law, that new facts have appeared, or that facts were unavailable to plaintiff previously and are now available that would warrant a motion to renew (CPLR § 2221 [e] ). By submitting a third affidavit by Ms. Mitchell attempting to sustain proof of mailing of the notices, without explaining how the “new” information it provides, which was clearly available for both prior motions, was not submitted previously, plaintiff is trying to make this a hybrid “renew and reargue” without meeting the requirements for renewal. Although plaintiff argues that renewal can be granted even where plaintiff was aware of the facts at the time of the prior motion, the Second Department cases cited in support of that argument are fact specific, show that renewal is in the discretion of the court, and involve cases where the submission is sufficient to establish the issue at hand. None of those circumstances apply to this application, as discussed below and the unexplained “new” affidavit from Ms. Mitchell is still insufficient to meet the proof of mailing requirements set by the Second Department (see New York & Presbyt. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]; Citibank, N.A. v. Wood, 150 AD3d 813 [2d Dept 2017]; Citimortgage Inc. v. Banks 155 AD3d 936 [2d Dept 2017] ). Under the facts surrounding this case, and the serial motions of plaintiff, the court finds no basis to extend it's discretion to grant renewal.
Further, the holding in Coccia v. Liotti, 70 AD3d 747 (2d Dept 2010) relied upon to show that even if the “new” facts were earlier available to a party, renewal is appropriate, actually holds that where a party fails to offer justification for not having submitted information as to why the additional evidence has not been included in the original motion, renewal should be denied. Though stating as dicta the proposition that it is within a court's discretion to grant renewal upon facts known to a moving party at the time of the original motion, the holding goes on to state that a motion to renew is not a second chance for a party who has not exercised due diligence in their first motion, denying renewal (see Coccia v. Liotti, 70 AD3d at 752–753 [2d Dept 2010] ).
Here, plaintiff without asking for another attempt to rectify it's insufficient prior affidavits, makes a third attempt to do so, without giving an explanation why the information in this third affidavit was not in the two prior affidavits. This is especially odd since the affiant in the second and third affidavits is the same person. Even if the court was inclined to grant “renewal/reargument” upon this submission, it would still have had to deny plaintiff's motion as this second affidavit of Ms. Mitchell fails to establish the mailing by “regular mail.”
The court cannot decide this motion in a vacuum. As a dedicated foreclosure part, this court has heard testimony in a number of limited issue trials involving the issue of proof of mailing of the notices required by RPAPL § 1304 which involved plaintiffs or servicers which used Walz Group Inc. (“Walz”) as a mailing agent for the mailings of the notices and/or the notices of default required by a mortgage. In those cases, evidence has been presented showing how plaintiff or servicer sent information, including addresses of defendant-mortgagors, and prepared notice templates, to Walz by email, how Walz then printed and mailed those notices to defendant-mortgagors on behalf of that entity and provided proof by email to that entity of the mailings by delivery to the U.S. Postal Service (“USPS”). Walz also provided its tracking records of those mailings with the USPS. Witnesses on behalf of the entities have testified pursuant to CPLR 4518 as to the entity's practices and procedures for mailing, their familiarity with the practice and procedures of Walz, how they are related to the entity's practice and procedures for mailing, the communication between the entity and Walz as it's mailing agent, how the entity's computer records relating to mailing are made and maintained, how the emails from Walz showing mailing were made are included in and maintained as part of the business records of that entity, as it was produced by it's mailing agent Walz, and how these records were relied upon by that entity to establish mailing. After proper testimony established by the witness, these records have been admitted into evidence to establish the proof of mailing of the notices.
Here, the evidence provided by Ms. Mitchell's second affidavit comes close to meeting the required proof established by witnesses in the limited issue trials referred to above, but does not reach that point. Further, the court is concerned by the way plaintiff has incrementally revealed how it “mailed” the notices in this action. With each affidavit, plaintiff reveals a few more facts about the “mailing,” though all the acts took place before the affidavits were prepared. It appears as if plaintiff is “forced” to release a little more in each affidavit, but as little as possible of what had already occurred, including just enough to see how little of the facts it had to reveal, to establish mailing. All three affidavits make it appear that plaintiff had physically mailed the notices itself, each revealing a little more about the mailing process. This seems to be done in an effort to avoid admitting that Walz had performed the mailings, and not plaintiff. In an industry that has been plagued with claims of “robo-signing” and questionable documents only a few years ago, the court finds this “lack of clarity” concerning.
The first affidavit of Jacylyn Holloway, an assistant secretary of Nationstar, established her ability to testify to Nationstar's business records pursuant to CPLR 4518, but she provided only conclusory and unsubstantiated claims of mailing the notices, along with copies of the notices claimed to be mailed. Such proof has been held insufficient to establish mailing (see HSBC Mtge. Corp. v. Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v. Espinal, supra; Cenlar, FSB v. Weisz, supra; U. S. Bank, N.A. v. Carey, 137 AD3d 894 [2d Dept 2016]; US Bank, NA v. Sabloff, 153 Ad3d 879 [2d Dept 2017] ).
The second affidavit, the first by Ms. Mitchell, established her ability to testify as to plaintiff's business records pursuant to CPLR 4518, and provided more information, parroting much more of the language of RPAPL § 1304, “certifying” that her review of the records shows that they were “sent,” and “provided to the United States Post Office for mailing,” then “mailed on or about April 16, 2012.” There was no mention of Walz, no affidavit of service, nor any showing of a practice and procedure for mailing to insure the notices were properly mailed. This affidavit also failed to establish the mailing of the notices (see JPMorgan Chase Bank, N.A. v. Schott, 130 AD3d 875 [2d Dept 2015]; Wells Fargo v. Moza, 129 AD3d 946 [2d Dept 2015]; Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Vivane Etienne Med. Care, P.C. v. Country Wide Ins. Co., 25 NY3d 498 ; Citimortgage v. Banks, supra).
The third affidavit, the second by Ms. Mitchell, submitted here adds additional information, all of which had to exist prior to the preparation of Ms. Holloway's affidvait. It attempts to show Nationstar's practices and procedures for mailing, how the mailing is made and sent through the “WALZ TrackRight System,” that “Nationstar relies on the tracking data and other records from the WALZ TrackRight System as proof of (and to establish) compliance․” Rather than refer to Walz as a mailing agent, her affidavit makes it seem as if the “WALZ TrackRight System” was a computer program used by plaintiff to mail the notices directly.
She refers to a copy of the WALZ TrackRight tracking results attached to her affidavit as Exhibit “B” in an attempt to establish proof of mailing. The first page of Exhibit “B” shows under the caption “Date,” “4/16/2012 11:26:31 AM,” under the caption “Event Description” it states “Walz Event–Imported,” and under a caption “Detail” shows an entry “Client Import File: ‘State File 04.16.12.txt’ Walz Import Batch # 2204973.” It also contains two further “Event Descriptions” that appear to show printing and mailing by Walz on “4/16/2012,” and a confirmation of receipt by the USPS “4/19/2012.” There is a second page, with similar information concerning Walz's involvement, but many more “USPS Events” concerning the certified mailing, which mailing appears to have been returned by the USPS to “Temecula, CA.,” the Walz mailing facility.
The court notes that the address given for plaintiff on the notices is Texas, and Ms. Mitchell's affidavit, as well as the other two affidavits, were notarized in Texas. Further, both Walz documents indicate in the “Transaction Information” box in the upper left “Mailed By: Walz Facility.”
Clearly Nationstar may have caused these notices to be mailed through it's mailing agent Walz, but they were not mailed by Nationstar directly, as Ms. Mitchell's affidavit implies. Without establishing her personal knowledge of the business practices and procedures of Walz, or at least the business relationship between Walz as Nationstar's mailing agent, the interplay of the back and forth of the mailing procedures between both entities, how these records from Walz are made on behalf of Nationstar and in the regular course of Nationstar's business, become part of Nationstar's business records, as well as her familiarity and training in these procedures between Nationstar and it's mailing agent Walz, Ms. Mitchell's third affidavit is inadmissible pursuant to CPLR 4518 and therefore insufficient to establish the mailing of the notices by “regular mail.” In this way it is similar to a representative of a plaintiff's present servicer who attempts to testify as to the business records of plaintiff or a prior servicer. That person must establish his/her personal knowledge and familiarity with that other entity's business practices and procedures to make his/her testimony admissible pursuant to CPLR 4518 (see Aurora Loan Servs., LLC v. Mercius, 138 AD3d 650 [2d Dept 2016]; Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d 683 [2d Dept 2016]; JPMorgan Chase Bank v. Kutch, supra; Aurora Loan Servs., LLC v. Bartiz, 144 AD3d 618 [2d Dept 2016]; Citimortgage, Inc. v. Pappas, 147 AD3d 900 [2d Dept 2017], Deutsche Bank Natl. Trust Co. v. Carlin, 152 AD3d 491 [2d Dept 2017]; M & T Bank v. Joseph, 152 AD3d 579 [2d Dept 2017] ).
Even if the court exercised its discretion to consider “renewal/reargument,” as Ms. Mitchell's affidavit fails to establish her personal knowledge of the business practices and procedures of Walz, or at least the business relationship between Walz as Nationstar's mailing agent, plaintiff would have again failed to establish the mailing of the notice required by “regular mail” and therefore defendant's 12th affirmative defense could not be dismissed.
If plaintiff's proof had been in admissible form and the mailing of the notices through Walz had been established in conformity with RPAPL § 1304, the court could have exercised it's discretion to allow this renewal of plaintiff's summary judgment motion. The court recognizes that though successive summary judgment motions are generally not entertained, in the interests of judicial economy, a court may authorize such a motion where the deficiency is a simple defect, and that by allowing the filing of a second summary judgment motion, the court would eliminate the burden on judicial resources that would otherwise require a trial (see Rose v. Horton Med. Ctr., 29 AD3d 977 [2d Dept 2006]; Landmark Capital Investments, Inc. v. Li–Shan Wang, 94 AD3d 418 [1st Dept 2012] ). Similarly, although multiple summary judgment motions are discouraged without a showing of newly discovered evidence, or other sufficient cause, a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources (see Detko v. McDonald's Restaurants of New York, Inc, 198 AD2d 208 [2d Dept 1993]; Valley National Bank v. INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012]; American Equity Insurance Co. v. A & B Roofing, Inc., 106 AD3d 762 [2d Dept 2013]; Kolel Damsek Eliezer, Inc. v. Schlesinger, 139 AD3d 810 [2d Dept 2016] ). The denial of a subsequent dispositive summary judgment motion for the sole reason of the prohibition against second summary judgment motions has been held to be an improvident exercise of the court's discretion (see Burbige v. Siben & Ferber, 152 AD3d 641 [2d Dept 2017] ). As plaintiff's proof failed to establish this, the court cannot grant it's motion.
NO FURTHER SUMMARY JUDGMENT MOTIONS
There have now been three attempts at summary judgment by plaintiff; although the last two were characterized as “renewal/reargument,” they in fact sought summary judgment. As in baseball, this court believes that after three strikes, you are out. The court will not entertain any further summary judgment motions, this action will proceed to trial, a trial at which the court expects plaintiff will provide testimony in admissible form which will establish the business relationship between plaintiff and Walz, and the process and procedures that establish the mailing of the notices; something plaintiff appeared reluctant to do on it's motions. No further motions will be allowed, unless prior permission is obtained from the court by a letter setting forth the basis and need for such motion.
Accordingly, plaintiff's motion is denied.
The action is set for trial on August 6, 2018 at 9:30 A.M., and a pre-trial conference is set for July 10, 2018 at 9:30 A.M.
This constitutes the order and decision of the court.
Robert F. Quinlan, J.
Response sent, thank you
Docket No: 27699–2012
Decided: May 22, 2018
Court: Supreme Court, Suffolk County, New York.
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