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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff, v. Jawid NAIM and “Mrs. Naim,” Defendant(s).
Upon the following papers numbered 1 to 93 read on this Order To Show Cause for an order granting intervention, denying judgment of foreclosure and sale, vacating order of reference and dismissing complaint; Order to Show Cause and supporting papers 1-52; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 53-74; Reply Affirmation and supporting papers 75-93; Other ; it is,
ORDERED that this motion by proposed intervenor IPA Asset Management, LCC to intervene in this case is denied; and it is further
ORDERED that as intervention has been denied, proposed intervenor's further applications in opposition to the judgment of foreclosure and sale, to vacate the previously granted summary judgment and order of reference, and to dismiss the complaint are not considered.
Proposed Intervenor, IPA Asset Management, LCC (“IPA”), seeks to intervene in this action to foreclose a mortgage on 220 Arnold Street, Holbrook, Suffolk County, New York (“the property”) given by defendant Jawid Naim (“defendant”) to a predecessor in interest to plaintiff JPMorgan Chase Bank, National Association (“plaintiff”) on January 17, 2006 to secure a note given on the same date. Plaintiff commenced this action by filing a summons, complaint and notice of pendency with the Suffolk County Clerk (“Clerk”) on May 3, 2012. The prior history of the mortgage, note, modification agreement and action, to the extent not referred to herein, is set forth in the court's decision of June 20, 2016 placed on the record after oral argument of plaintiff's motion for summary judgment. That order granted plaintiff's motion for summary judgment, dismissed defendant's affirmative defenses, struck his answer, amended the caption to substitute “Mrs. Naim” as a defendant in place of the “John Doe” defendant and appointed a referee to compute pursuant to RPAPL § 1321. Plaintiff submitted a motion for an order granting a judgment of foreclosure and sale (Mot. Seq. # 002) on December 15, 2016, which was unopposed and signed by the court on January 31, 2017. By a letter dated January 27, 2017, but faxed to the court on February 13, 2017 (a day the courts were closed), plaintiff's counsel asked that the motion be withdrawn. The court retrieved the motion and judgment from the Clerk and issued an order on February 16, 2017 recalling the decision. Plaintiff next submitted another motion for a judgment of foreclosure and sale (Mot. Seq. # 003) on March 30, 2017, but withdrew that on April 6, 2017.
IPA brought this application by order to show cause (Mot. Seq. # 004), which was signed by the court on April 4, 2017, setting the application for oral argument on April 19, 2017. The court reserved decision after oral argument as defendant's counsel also appeared at that time indicating to the court he intended to file a motion addressing the order of the court of June 20, 2016. Defendant's motion, was which was eventually brought by order to show cause, returnable July 5, 2017 (Mot. Seq. # 005), is addressed in a separate decision, and both cases were adjourned after a conference held July 5, 2017. The motions were further adjourned a number of times at the parties request until submitted on August 10, 2017.
Subsequently, at request of plaintiff, the action was returned to the court's calendar for a series of settlement conferences set by the order dated June 1, 2018, which also directed that both motions (Mot. Seq. # 004 and # 005) be held in abeyance pending the outcome of the settlement conferences. After a final settlement on October 24, 2018 was unsuccessful, the motions were again marked submitted.
IPA's motion and submissions claim that it purchased title to the property for $ 15,000 from a Maria Zeppieri (“Zeppieri”) on May 26, 2015, submitting a purported copy of the deed of that date in reply. An affidavit from David Derosa (“Derosa”), a purported “member” of IPA, submitted in support of IPA's motion, states that IPA purchased the property for the above amount referring only to the recording of the deed with the Clerk on March 8, 2016. No copy of the recorded deed was submitted with the order to show cause, nor with IPA's reply to plaintiff's opposition. As indicated above, only a copy of the deed from Zeppieri to IPA was submitted in the reply, and although there are four copies of the deed submitted, none of them show that the deed was recorded. In the deed itself there is a representation that the “premises” was conveyed to Zeppieri the same day, May 26, 2015, but no statement as to from whom. There is no proof offered in evidentiary admissible form that defendant transferred title in the property to Zeppieri, or to anyone else, who then transferred title to Zeppieri. Although the oral argument of Mot. Seqs. # 001 and # 002 occurred on June 20, 2016, a full year after defendant purportedly gave up his title and ownership of the property, this was never brought to anyone's attention by defendant's counsel.
Further, IPA fails to provide a copy of the deed filed with the Clerk, which if submitted in the form provided by the Clerk would be self-authenticating and admissible evidence of the claim of title transfer, at least between Zeppieri and IPA. Instead, as indicated above, in reply IPA provided only copies of the unfiled document, which were not authenticated by any person with the ability to provide evidence in admissible form as to its authenticity. IPA's counsel, who from the documents submitted appears not to have been involved in the title transfer, merely attaches these copies to her reply affirmation, providing no basis for their admissibility or authenticity. The court is also forced to point out that as IPA was required to establish its right to intervene in its original submissions, these documents, with some proof to make them admissible, should have been part of IPA's submissions with its order to show cause; they are improperly submitted in reply and should be disregarded by the court on this application (see Ritt v. Lenox Hill Hospital, 182 AD2d 560 [2d Dept 1992]; Matter of Allstate Insurance v. Dawkins, 52 AD3d 826 [2d Dept 2008]; Duran v. Milord, 126 AD3d 932 [2d Dept 2015]; Bank of America, N.A. v. Moody, 147 AD3d 712 [2d Dept 2017]; Wells Fargo Bank, N.A. v. Osias, 156 AD3d 942 [2d Dept 2017] ).
Upon this record the court questions the sufficiency of proof by IPA that it obtained good title to the property from a person or entity who could establish a chain of title back to defendant, thus establishing IPA's standing to intervene.
In any event, even if IPA was able to establish its standing to bring this application to intervene, by waiting an inordinate amount of time before bringing this application it has forfeited its right to do so. In the Derosa affidavit, he states that “Upon taking ownership of the Property I consulted IPA's attorney to assess the pending foreclosure case and monitor it for IPA.” Whether “ownership” is measured from the date of IPA's acquiring title to the property on May 26, 2015 as shown on the purported deed or March 8, 2016 based upon the deed's alleged filing with the Clerk as the Derosa affidavit attempts to imply, IPA waited as long as almost two years, or at best over one year, before bringing this application on April 4, 2017, although knowing of the foreclosure action that was pending. Where a proposed intervenor with actual notice of the pending foreclosure action waited at least a year before moving to intervene, the intervenor's motion should be denied (see US Bank National Assoc., Inc. v. Bisono, 98 AD3d 608 [2d Dept 2012]; JPMorgan Chase Bank, N.A. v. Edelson, 90 AD3d 996 [2d Dept 2011]; Deutsche Bank Natl. Trust Co. v. Golding, 123 AD3d 757 [2d Dept 2014] ). A delay of as little as four months from the proposed intervenor obtaining title knowing of a pending foreclosure action to the time of the motion to intervene was found to be untimely and required denial of the application (see Castle Peak 2012-1 Loan Trust v. Sattar, 140 AD3d 2016 [2d Dept 2016] ).
IPA's application to intervene in this action is denied.
As intervention is denied, the court will not consider the arguments raised by IPA as to the underlying foreclosure action other than to say that they are without merit and most are personal to the defendant-mortgagor and cannot be raised by another (see Home Savings of America, F.A. v. Gkianos, 233 AD2d 422 [2d Dept 1996]; NYCTL 1996-1 Trust v. King, 13 AD3d 429 [2d Dept 2004]; Wells Fargo Bank v. Bowie, 89 AD3d 931 [2d Dept 2011] ).
This constitutes the order and decision of the Court.
Robert F. Quinlan, J.
Response sent, thank you
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Docket No: 13896-2012
Decided: February 04, 2018
Court: Supreme Court, Suffolk County, New York.
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