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U.S. BANK NATIONAL ASSOCIATION AS Legal Title TRUSTEE FOR LVS TITLE TRUST 1, Plaintiff, v. Mahase SINGH; New York City Environmental Control Board; New York City Transit Adjudication Bureau; Chuck Gonzalez and Herman Rodriguez, Defendants.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of plaintiff, U.S Bank National Association As Legal Title Trustee for LVS Title Trust 1 (hereinafter USBNA or the plaintiff), filed on March 30,2018, under motion sequence number seven, for an order: (1) granting a default judgment against all non-answering defendants pursuant to CPLR 3215; (2) appointing a referee to compute pursuant to the RPAPL 1321; and (3) amending the caption pursuant to CPLR 1018 by substituting USBNA with McCormick 106, LLC (hereinafter McCormick) as the plaintiff.
-Notice of Motion
Proposed order of reference
-Affirmation of regularity and in support
-Affidavit in support by Karin Murphy 1
Affirmation in compliance with the October 10, 2010
Affirmation in opposition
Affirmation in reply
On May 16, 2008, J.P Morgan Chase (hereinafter Chase) commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO). The complaint alleges in pertinent part that on September 28, 2007, Mahase Singh (hereinafter Singh) executed a note in favor of Chase in the amount of $ 440,000.00 (the subject note) and executed a mortgage in favor of Chase (hereinafter the subject mortgage) on certain real property, known as 343 Crescent Street, Brooklyn, New York 11208, Block 4165 Lot 5 (hereinafter the subject property) to secure the subject note. The complaint also alleges that Singh defaulted on making payments due and owing on said note from January 1, 2008 and thereafter. No defendant has answered the complaint. Singh is the only defendant that has opposed the motion.
There is no dispute that Chase transferred over the subject note and mortgage to USBNA and that USBNA transferred over the subject note and mortgage to McCormick.
LAW AND APPLICATION
Plaintiff's Motion for a Default Judgment and Order of Reference
USBNA seeks an order granting a default judgment against all defendants, including Singh, pursuant to CPLR 3215 based on the defendants failure to answer the complaint. USBNA also seeks an order appointing a referee to compute pursuant to RPAPL 1321 on the same grounds.
On a motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff must prove proper service of the summons and complaint on the defendant (Atlantic Cas. Ins. Co. v. RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011] ). Additionally, the plaintiff must submit proof of the defendant's default in answering or appearing and must submit proof of facts sufficient to establish a viable claim (Id.; see also CPLR 3215 [f] ). CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit “made by the party” (HSBC Bank USA, N.A. v. Betts, 67 AD3d 735, 736 [2nd Dept 2009] ).
RPAPL 1321 provides in pertinent part as follows:
If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.
When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1-2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01  [k] [note: online edition] ).
USBNA's instant motion is supported by, among other things, an affirmation of its counsel, Thomas J. Frank, Esq. (hereinafter Frank), an affidavit of Tara Spangler (hereinafter Spangler) and an affidavit of Karin Murphy (hereinafter Murphy). Frank's affirmation alleges fact which he learned from reviewing the records of his law firm. Frank's affirmation, however, demonstrates no personal knowledge of any of the transactions alleged in the complaint. It is therefore of no probative value on plaintiff's claims against the defendants (see Winter v. Black, 95 AD3d 1208 [2nd Dept 2012] ).
Spangler's affidavit was signed on February 11, 2014 then Chase was the named plaintiff in the action. Spangler states that she is the Vice President and representative of BSI Financial Services (hereinafter BSI), the servicing agent and Attorney in Fact for the assignee of the plaintiff. Spangler's affidavit is offered in an attempt to comply with the October 2010 Administrative Order of the Chief Administrative Judge of the Courts of New York. Splanger's affidavit, however, is not offered to serve as evidence of the plaintiff's claim or of the defendant's alleged default. Furthermore, it too demonstrates no personal knowledge of any of the transactions alleged in the complaint.
Murphy's affidavit states that she works as a officer or employee of Servis One, Inc doing business as BSI. Murphy describes BSI as a servicing agent and the attorney-in-fact for McCormick, the assignee of the plaintiff. In paragraph four of her affidavit she states the following:
“To the extent that the business records of the loan in this matter were created by a prior servicer, the prior servicer records for the loan were integrated and boarded into BSI's systems, such that the prior servicer records concerning the Loan are now part of BSI's business records. BSI maintains quality control and verification procedures as part of the boarding process to ensure the accuracy of the boarded records. It is regular practice of BSI to integrate prior servicer's records in BSI's business records. BSI relies on prior servicer's business records in its regularly conducted business activities as if those business records were made by BSI.”
Included in support of Murphy's affidavit is a Limited Power of Attorney (POA). The POA was signed by Brian J. Gray, the Vice President of McCormick on September 23, 2014. The POA gave Servis One limited enumerated powers to act on McCormick's behalf.
Murphy has averred familiarity with the record keeping practices and procedures of BSI Financial Services, Inc. as the servicer of McCormick, USBNA's assignee. Murphy, however, does not claim knowledge of record keeping practices and procedures of either Chase or USBNA. Murphy has described an integration and boarding procedure which BSI utilizes to make the records of a prior servicing its own. Murphy, however, does not state whether that process actually occurred and, if so, the identity of the prior services.
Murphy's affidavit is the only testimony, purportedly based on personal knowledge, that is offered to prove the facts constituting the plaintiff's claim and the amount due. The affidavit and supporting documents did not demonstrate that Murphy was given authority to speak for or on behalf of USBNA, the plaintiff. Moreover, Murphy did not claim to be speaking for or on behalf of USBNA. Rather, Murphy averred and demonstrated authority to speak for and on behalf of McCorrmick. In sum, contrary to the requirements of CPLR 3215 (f), USBNA's motion was not supported by an affidavit of the plaintiff setting forth the facts constituting the claim, the default, and the amount due. Accordingly, USBNA's motion for a default pursuant to CPLR 3215 is denied without prejudice (see HSBC Bank USA, N.A., 67 AD3d at 736). Furthermore, USBNA's application for an order of reference pursuant to RPAPL 1321 is also denied without prejudice for the same reason.
Plaintiff's Motion for an Order Substituting the Plaintiff
CPLR 1018 provides that upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.
“CPLR 1018 addresses the situation in which a party transfers its interest in the subject matter of the action to another person while the action is pending, as, for example, by assignment of the claim (see NY Gen. Oblig. Law § 13-101) or conveyance of the relevant property. CPLR 1018 authorizes continuation of the action by or against the original party-the assignor/transferor-without the need for substitution of the assignee/transferee” (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1018).
The branch of USBNA's motion for an order amending the caption by substituting McCormick 106 LLC in place of USBNA's as plaintiff is unopposed. The request is supported by a recorded assignment of the mortgage from USBNA to McCormick 106 LLC, and by an affirmation of USBNA's counsel alleging that McCormick 106, LLC is the holder of the note. In accordance with CPLR 1018, the motion is granted.
The branch of U.S. Bank National Association As Legal Title Trustee for LVS Title Trust 1's motion for an order granting a default judgment against all non-answering defendants pursuant to CPLR 3215 is denied without prejudice.
The branch of U.S. Bank National Association As Legal Title Trustee for LVS Title Trust 1's motion for an order appointing a referee to compute pursuant to the RPAPL 1321 is denied without prejudice.
The branch of U.S Bank National Association As Legal Title Trustee for LVS Title Trust 1's motion for an order amending the caption by substituting McCormick 106 LLC as plaintiff instead and in place of U.S. Bank National Association as Legal Title Trustee 1 is granted.
The foregoing constitutes the decision and order of this Court.
1. Murphy's affidavit contains seven annexed exhibits labeled A through G and is tabbed under schedule 1
Francois A. Rivera, J.
Response sent, thank you
Docket No: 14552/2008
Decided: March 15, 2019
Court: Supreme Court, Kings County, New York.
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