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WELLS FARGO BANK NATIONAL ASSOCIATION as Trustee FOR SABR 2004-OP1 MORTGAGE PASS THROUGH CERTIFICATES SERIES 2004-OP1, Plaintiff, v. Marco H. VACA, Consumer Loan Operations, New York State Department of Taxation and Finance, Fleet National Bank; John Doe “1” through “12” said persons or parties having or claimed to have a right, title or interest in the Mortgaged premises herein their respective names are presently unknown to plaintiff, Defendant(s).
Upon the following papers read on this motion for default, appointment of a referee pursuant to RPAPL § 1321 and to amend the caption and cross-motion to dismiss: plaintiff's motion with attached affirmations, affidavits and exhibits; defendant's cross-motion to dismiss with attached affirmation and exhibits; plaintiff's opposition and defendant's reply; as well as plaintiff's supplemental affirmation with points of law and defendants two memorandums of law; it is,
ORDERED that this motion by plaintiff Wells Fargo Bank National Association As Trustee For SABR 2004-OP1 Mortgage Pass Through Certificates Series 2004-OP1 for an order pursuant to CPLR § 3215 to set and fix the default in answering of defendants, for an order to appoint a referee to compute pursuant to RPAPL § 1321, to substitute Mary Smith for “John Doe # 1” and to discontinue the action against “John Does # 2-12.” is granted; and it is further
ORDERED that defendant Marco H. Vaca's cross-motion to dismiss the action pursuant to CPLR § 3215 (c), as well as his argument for dismissal pursuant to RPAPL §§ 1304 and 1306 raised at oral argument, are denied; and it is further
ORDERED that plaintiff's application to amend the caption is granted and the caption shall now appear as follows:
Wells Fargo Bank National Association As Trustee for SABR 2004-OP1 Mortgage Pass Through Certificates Series 2004-OP1,
Marco H. Vaca, Consumer Loan Operations, New York State Department of Taxation and Finance, Fleet National Bank; Mary Smith,
and it is further
ORDERED that plaintiff is directed to serve an executed copy of the order of reference amending the caption of this action upon the Calendar Clerk of this Court within 30 days of the date of this order and all further proceedings are to proceed under that caption; and it is further;
ORDERED that plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order # 41-13; and it is further
ORDERED, that, if a prior notice of pendency is outdated, plaintiff is directed to file a successive notice of pendency at least twenty (20) days prior to the submission of any proposed judgment of foreclosure and sale, submitting a copy thereof with proof of filing with any proposed judgment of foreclosure and sale; and it is further.
ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order, “plaintiff's submissions”; defendant(s) may submit written objections and proof in support thereof, “defendant's objections,” to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this order of reference (CPLR 4311, RPAPL § 1321), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendant's objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendant's objections have been submitted to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit defendant's objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, November 28, 2018 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.
This is an action to foreclose a mortgage on premises known as 201 Peconic Avenue, Medford, Suffolk County, New York (“the property”) given by defendant-mortgagor Marco H. Vaca, (“defendant”) on December 8, 2003 to Option One Mortgage Corporation (“Option One”) to secure a note given the same day to Option One by defendant. The mortgage was filed with the Suffolk County Clerk (“Clerk”) January 15, 2004.
Defendant allegedly defaulted in payment pursuant to the terms of the note and mortgage with the payment due May 1, 2009 and remains in default. Plaintiff Wells Fargo Bank National Association As Trustee For SABR 2004-OP1 Mortgage Pass Through Certificates Series 2004-OP1(“plaintiff’) was assigned the mortgage, which included an assignment of the note, by assignment from a successor in interest to Option One dated January 13, 2010 and filed with the Clerk on February 17, 2010. On March 8, 2010 plaintiff filed the summons, complaint and notice of pendency commencing this action with the Clerk. Plaintiff's process server filed an affidavit of service of the summons, complaint, notice of pendency, notice required by RPAPL § 1303, as well as proof of mailing pursuant to CPLR § 308 (2) upon defendant, with the Clerk on March 17, 2010, as well as proof of service upon the other defendants.
Defendant filed neither a timely answer nor a motion addressed to the summons and complaint, and is in default in answering. The Clerk's records indicate that defendant's counsel filed two notices of appearance with the Clerk: the first dated and filed August 23, 2011, indicating his representation as of August 16, 2011, and a second filed February 18, 2015 which states that he has been retained and appeared for defendant since “1/2010.”
The court's computer records show that the action was conferenced in the courts dedicated Foreclosure Settlement Conference Part five times between August 17, 2011 and February 23, 2012. It was additionally conferenced before the Hon. Daniel J. Martin, Acting Supreme Court Justice, six times between March 6, 2012 and February 3, 2015, but no settlement was reached. Compliance with the requirements of CPLR 3408 have been established.
By notice of motion dated June 22, 2016 and originally returnable August 23, 2016, plaintiff's prior counsel moved this court for an order pursuant to CPLR § 3215 to set and fix the default in answering of defendants, for an order to appointment a referee to compute pursuant to RPAPL § 1321, to substitute Mary Smith for “John Doe # 1” and to discontinue the action against “John Does # 2-12.”
Defendant cross-moved to dismiss the action pursuant to CPLR § 3215 (c) and in opposition to plaintiff's motion. Both the motion and cross-motion were marked “submitted” on August 30, 2016.
By Administrative Order 105-17 of District Administrative Judge C. Randall Hinrichs, dated September 1, 2017, the action and motions were transferred to this dedicated foreclosure part and scheduled for oral argument on November 2, 2017. On that date, as well as considering the parties submissions, the court heard oral argument by counsel. Defendant's counsel for the first time made arguments that the action should be dismissed for plaintiff's failure to comply with the requirements of RPAPL §§ 1304 and 1306. The court directed counsel to submit additional memorandum of law on that claim, as well as other issues already raised in the parties submissions, as well as by the court during the argument, by December 7, 2017. Subsequently, counsel were given until February 15, 2018 to submit memorandum and the motions were marked submitted that day.
DEFENDANT'S CROSS-MOTION PURSUANT TO CPLR § 3215 ( c) DENIED
The court first addresses defendant's cross-motion. Defendant's counsel argues that because plaintiff waited well over the one year set forth in CPLR § 3215 to move to fix defendant's default in answering, the court is bound by the “mandatory” language of CPLR § 3215 (c) to dismiss the case. Defendant's counsel acknowledges that he filed a notice of appearance on behalf of defendant twice, the first dated and filed August 23, 2010, the second filed February 18, 2015 stating that he had appeared on behalf of defendant since January 2010. He further acknowledges that the filing of a notice of appearance has generally been found to be a waiver of defendant's ability to raise a dismissal based upon CPLR § 3215 (c) (CPLR 320, § 321[a]; see Countrywide Home Loans Servicing, LP v. Albert, 78 AD3d 983 [2d Dept 2010]; HSBC Bank, USA v. Lugo, 127 AD3d 502 [2d Dept 2015]; US Bank National Assoc. v. Pepe, 161 AD3d 811 [2d Dept 2018] ). Even actions which amount to an informal appearance have been held to be sufficient to waive a CPLR § 3215 (c) dismissal (see De Lourdes Torres v. Jones, 26 NY3d 742, 772 ; HSBC Bank USA v. Lugo, 127 AD3d 502 [1st Dept 2015]; HSBC Bank USA, N. A. v. Grella, 145 AD3d 669 [2d Dept 2016]; Bank of America, NA v. Rice, 155 AD3d 593 [2d Dept 2017]; US Bank Natl. Assoc. v. Gustavia Home, LCC, 156 AD3d 843 [2d Dept 2017] ).
Defendant's counsel attempts to differentiate those holdings by arguing that he, as defendant's counsel, filed a “limited appearance” “pursuant to CPLR § 3408” to merely appear on behalf of defendant in settlement conferences in the Foreclosure Settlement Conference Part and before A. S. J. Martin. Defendant's counsel cites no statute, rule or case law to support this theory of “limited appearance.” Instead argues that because of his “limited appearance,” and that the above cited cases did not involve mortgages subject to CPLR § 3408, the holdings therein are inapplicable to this case.
A review of CPLR 3408 shows there is no such “limited appearance” provided for in that statute. CPLR 320 (c) only provides for a “limited appearance” where a defendant is contesting the court's jurisdiction based upon failure of service, there is no other form of “limited appearance” provided for in that rule or CPLR § 321. Here defendant raises no issue of lack of service and does not move under CPLR 3211 (a) (8). Defendant's reliance on the holding in Frederic v. Israel, 104 A.D.3d 909, 960 N.Y.S.2d 918 (2d Dept. 2013) as an analogy to his position is misplaced; first as that case involved a defendant who moved pursuant to CPLR § 3211 (a) (8) for dismissal, and more significantly because the Second Department has specifically rejected the holding in that case in American Home Mortg. Services v. Arklis, 150 AD3d 1180 (2d Dept 2017), another case where defendant moved to dismiss pursuant to CPLR § 3211 (a) (8), not CPLR § 3215 (c).
The holding in American Home Mortg. Services v. Arklis, supra, is analogous to the situation here. There, after defendant's time to answer had expired, defendant's counsel appeared at a foreclosure settlement conference and filed a notice of appearance. Counsel failed to move to vacate defendant's failure to answer, to file a late answer, or to extend defendant's time to answer; nor did counsel move promptly to raise the issue of failure to serve defendant. The Second Department held that by submitting itself to the jurisdiction of the court in filing an appearance, defendant had waived any claim of lack of jurisdiction. Here, by submitting his appearance on behalf of defendant, defendant waived any claim pursuant to CPLR § 3215 (c).
Defendant's counsel misinterprets the holding in HSBC Bank USA, N. A. v. Grella, supra to say that a notice of appearance does not waive defendant's right to move pursuant to CPLR § 3215 (c). The holding therein was that where a defendant had not filed a notice of appearance, but instead moved to vacate her default in answering and to file a late answer pursuant to CPLR 3012 (d), such a motion does not constitute a formal or informal appearance/answer (see HSBC Bank USA, N. A. v. Grella, 145 AD3d at 671). Here, defendant made no such motion before moving pursuant to CPLR § 3215 (c) to dismiss; instead defendant's counsel filed a notice of appearance in 2011, and then filed a supplemental notice of appearance in 2015 stating he represented defendant since “1/2010.” The court further notes that although defendant's counsel attempts to characterize the notices of appearances as “limited,” even if a “limited appearance” was recognized, neither of them bear language that supports that claim.
Defendant has neither moved for dismissal pursuant to CPLR § 3211 (a) (8), nor sought an order vacating his default in answering (CPLR § 317, CPLR 5015 [a] ), nor extending his time to answer or compelling plaintiff to accept a late answer (CPLR § 3012 [d] ). As such, the notices of appearances filed by counsel, and defendant's and counsel's active participation in the action without filing an answer compel the court to deny defendant's cross-motion pursuant to CPLR § 3215 (c).
DEFENDANT'S RPAPL § § 1304, 1306 CLAIMS WAIVED
At oral argument defendant, for the first time, raised claims that the action should be dismissed, or alternatively that plaintiff's motion should be denied, because plaintiff failed to establish its compliance with RPAPL §§ 1304 and 1306. Although it has been held that the notice requirement of RPAPL §§ 1304 and 1306 can be raised at any time (see Aurora Loan Services v. Weisblum, 85 AD3d 95 [2d Dept 2011]; Citimortgage v. Espinal, 134 AD3d 876 [2d Dept 2016] ) they are not jurisdictional, so that if defendant fails to raise the defense in his answer it is waived and plaintiff is not required to prove compliance (see U.S. Bank N.A. v. Carey, 137 AD3d 894 [2d Dept 2016]; Flagstar Bank, FSB v. Jambelli, 140 AD3d 829 [2d Dept, 2016] ). In order to raise the defenses, defendant must have answered or moved to vacate his default in answering, without doing either, the defenses are waived (see PHH Mtg Corp v. Celestin, 130 AD3d 703 [2d Dept 2015]; HSBC Bank USA, NA v. Clayton, 146 AD3d 942 [2d Dept 2017]; HSBC Bank USA, Natl. Assoc. v. Hasis, 154 Ad3d 832 [2d Dept 2017] ). As defendant is in default in answering and has not attempted to vacate that default, defendant has waived these claims.
PLAINTIFF'S APPLICATION FOR AN ORDER OF REFERENCE IS GRANTED
On a motion for leave to enter a default, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's failure to answer or appear (CPLR 3215[f]; see Dupps v. Betancourt, 99 AD3d 855 [2d Dept 2012]; Green Tree Serv., LLC v. Carey, 106 AD3d 691[2d Dept 2013]; JPMorgan Chase Bank, N.A. v. Boampong, 145 AD3d 981 [2d Dept 2016]; US Bank, N.A. v. Singer, 145 AD3d 1057 [2d Dept 2016] ). Plaintiff has met its proof of a prima facie case through the production of the original mortgage, the unpaid note, and evidence of defendants default (see Deutsche Bank Natl. Trust Co. V. Abdan, 131AD 3d 1001 [2d Dept 2015]; U.S. Bank N. A. v. Akande, 136 AD3d 887 [2d Dept 2016] ).
Proof required on default under CPLR 3215 (f) is merely proof of facts constituting the claim. To demonstrate the facts constituting the claim, movant must only submit sufficient proof to enable the court to determine if the claim is viable (see Woodson v. Mendon Leasing Corp., 100 NY2d 62; Global Insurance Company v. Gorum, 143 AD3d 768 [2d Dept 2016]; Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., 21 NY3d 200; Araujo v. Aviles, 33 AD3d 830 [2d Dept 2006]; U. S. Bank, N.A. v. Tate, 102 AD3d 859 [2d Dept 2013] ). Plaintiff's submissions have met this burden.
Plaintiff's request for an order fixing the defaults of the non-answering, non-appearing defendants and an order of reference appointing a referee to compute the amount due plaintiff under the note and mortgage pursuant to RPAPL § 1321 is granted (see Green Tree Serv. v. Cary, supra; Vermont Fed. Bank v. Chase, 226 AD2d 1034 [3dDept 1996]; Bank of East Asia, Ltd. v. Smith, 201 AD2d 522 [2d Dept 1994]; U. S. Bank v. Wohlerman 135 AD3d 850 [2d Dept 2016] ).
Plaintiff's application to amend the caption to substitute Mary Smith for “John Doe # 1” and to discontinue the action against “John Does # 2-12.” is granted upon proof submitted, and the caption is amended accordingly (see US Bank, N.A. v. Boyce, 93 AD3d 782 [2d Dept 2012]; Citimortgage, Inc v. Chow Ming Tung, 126 AD3d 841 [2d Dept 2015] ).
This is the order and decision of the court and plaintiff's proposed order, as modified by the court is signed contemporaneously herewith.
Robert F. Quinlan, J.
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Docket No: 9195-2010
Decided: July 26, 2018
Court: Supreme Court, Suffolk County, New York.
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