FEDERAL NATIONAL MORTGAGE ASSOCIATION FANNIE MAE v. RICO (2020)

Defendant Linda Stemler (hereinafter defendant) has resided at 11 Summit Road in Brant Lake, Warren County continuously since 1994. She owned the property until 2007, at which time she conveyed title to defendants Kathryn Rico and Martin Rico, her daughter and son-in-law.¹ In August 2010, the Ricos borrowed $192,800.00 from Bank of America, N.A., which loan was evidenced by a promissory note and secured by a mortgage on the property. This mortgage was then assigned to plaintiff Federal National Mortgage Association by assignment dated December 13, 2013 and recorded on December 24, 2013.

The Ricos defaulted on their loan payments in October 2013 and plaintiff then commenced this action on May 19, 2014. Neither the Ricos nor defendant Board of Directors of the Crystal Lake Preserve Homeowners Association — a judgment creditor named as a necessary party under RPAPL 1311 (3) — have answered or otherwise appeared. Defendant served an answer on January 4, 2016 including, inter alia, the affirmative defense of standing.² Defendant served omnibus discovery demands simultaneous with the answer and thereafter served an amended demand for a bill of particulars in August 2016. With no responses forthcoming, a conference was held on November 28, 2016 and a Preliminary Conference Stipulation and Order (PCSO) was then issued on January 9, 2017. The PCSO directed plaintiff to serve responses to both the omnibus discovery demands and amended demand for a bill of particulars within thirty (30) days of service with notice of entry.

While plaintiff served responses in a timely manner, it objected to those demands which pertained to ownership of the note. Plaintiff argued that, because defendant was not a borrower on the loan, she could not challenge its standing. As a result, defendant moved to dismiss the complaint. This motion was granted — in part — by Decision and Order dated November 14, 2017 (57 Misc 3d 1218[A], 2017 NY Slip Op 51544[U] [Sup Ct, Warren County 2017]), with the Court “find[ing] that plaintiff's objections [were] supported by neither statutory nor case law” (id. at *3). The Court then issued a conditional Order of dismissal whereby the complaint would be dismissed if plaintiff failed to provide substantive responses to the relevant demands within thirty (30) days of service with notice of entry (id.). Plaintiff complied with this directive, as well as permitted defendant to personally inspect the original note in December 2017.

Plaintiff subsequently filed a motion for summary judgment and defendant cross-moved to dismiss the complaint, contending that plaintiff's responses to her demands relative to ownership of the note were still insufficient because they failed to include the location of the original note on the date of commencement of the action. By Decision and Order dated August 3, 2018, the Court denied the motion based upon a finding that plaintiff “failed to meet its prima facie burden of establishing its standing” (60 Misc 3d 1221[A], 2018 NY Slip Op 51202[U], *3 [Sup Ct, Warren County 2018] ). With respect to the cross motion, plaintiff argued that the location of the original note on the date of commencement was irrelevant to the issue of standing and, as such, they were not required to provide the information. While the Court viewed this argument with some skepticism, it nonetheless found that the discovery dispute did not warrant dismissal of the complaint.

On August 24, 2018, defendant sent interrogatories to plaintiff inquiring, inter alia, as to the location of the original note on the date of commencement of the action, as well as the date upon which the original note was delivered to plaintiff. After receiving nothing in response, counsel for defendant sent correspondence to counsel for plaintiff on February 6, 2019 advising that a motion to compel would be filed if answers were not provided within 30 days. Defendant then filed the instant motion to compel on July 23, 2019. On July 26, 2019, plaintiff served its answers to the interrogatories. Counsel for defendant, however, found the answers to be inadequate and submitted a supplemental affidavit in support of the motion. Opposition and reply papers have now been received and oral argument held.

Pursuant to CPLR 3124, “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under [CPLR article 31], the party seeking disclosure may move to compel compliance or a response.” The Court has broad discretion when considering such a motion (see Hurrell-Harring v State of New York, 112 AD3d 1217, 1218 [2013]; Collins v Yodle, Inc., 105 AD3d 1178, 1179 [2013], lv denied 21 NY3d 860 [2013]).

Defendant first contends that the answers to her interrogatories are insufficient and unreliable because “the identity of the true [p]laintiff in this action is not clear.” More specifically, defendant contends that she “cannot accept [a]nswers from some entity that is not the true [p]laintiff in this action.” With that said, defendant appears to be arguing — in essence — that the individual who answered the interrogatories was without authority to do so.

CPLR 3133 (b) “requires that interrogatories be answered in writing under oath by the party served, or by a representative of the party having personal knowledge of the information sought” (Patrick M. Connors, 2018 Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3133:2).

Here, Jennifer Muller, a Litigation Supervisor of Selene Finance, LP, as servicer and attorney-in-fact for NJCC Fund No. 5 Trust (hereinafter NJCC), responded to the interrogatories on plaintiff's behalf on July 26, 2019. Attached to the responses was, inter alia, a copy of a “Limited Power of Attorney” whereby Selene Finance was appointed as servicer and attorney-in-fact for NJCC with respect to, inter alia, the completion of foreclosure proceedings. While a copy of the assignment of the mortgage to plaintiff was also attached, the responses did not attach copies of any other assignments. That being said, a search of the Warren County Clerk's records reveals as follows:

(1) An assignment of the mortgage from plaintiff to PROF-2013-S3 Legal Title Trust II, by U.S. Bank National Association, as Legal Title Trustee (hereinafter PROF-2013-S3), dated January 6, 2017 and recorded January 9, 2017;3

(2) an assignment of the mortgage from PROF-2013-S3 to Community Loan Fund of New Jersey, Inc. (hereinafter Community Loan Fund), dated August 1, 2018 and recorded October 18, 2018;4

(3) an assignment of the mortgage from Community Loan Fund to NJCC, dated September 13, 2018 and recorded October 18, 2018;5 and

(4) a corrected assignment of the mortgage from Community Loan Fund to U.S. Bank National Association (hereinafter U.S. Bank), not in its individual capacity but solely as Owner Trustee for NJCC, dated March 6, 2019 and recorded April 4, 2019.6

While the Court was unable to locate any case law on the issue of whether the representative of a plaintiff's successor in interest is authorized to answer interrogatories on plaintiff's behalf, under the circumstances of this case, the Court finds that Muller was not authorized to respond. Initially, NJCC was not the mortgagee when the responses were executed by Muller. Rather, the mortgagee was U.S. Bank as Owner Trustee for NJCC. Further, while Muller has personal knowledge of the records maintained by Selene Finance as servicer and attorney-in-fact for NJCC, she does not — nor does she claim to — have personal knowledge of the records maintained by plaintiff, and it is these records which must be examined to ascertain the date upon which the original note was delivered to plaintiff and whether the note remained in plaintiff's possession at the time of commencement of the action. Indeed, these are the very issues central to a determination of standing (see Bank of NY Mellon v Rutkowski, 148 AD3d 1341, 1341-1342 [2017]; U.S. Bank N.A. v Carnivale, 138 AD3d 1220, 1221 [2016]; Onewest Bank, F.S.B. v Mazzone, 130 AD3d 1399, 1400 [2015]).

The absence of any personal knowledge is evident upon a review of Muller's responses to the interrogatories. For example, the sixth interrogatory requests that plaintiff “[i]dentify logs and/or any other records made by [p]laintiff, or any custodian, documenting the receipt, storage, location, custody and disposition of original promissory notes, such as the [n]ote [under consideration here.]” In response, Muller states as follows:

“[C]ounsel for plaintiff received the original [n]ote on January 17, 2017. On December 8, 2017 [p]laintiff's counsel appeared with [d]efendant's counsel at the Warren County Courthouse at which time he inspected the original [n]ote. On December 29, 2017, [p]laintiff's counsel ․ returned the original [n]ote to a subsequent servicer of the loan, Fay Servicing. Thereafter, the original [n]ote was lost as evidenced by the attached Lost Note Affidavit ․”

Muller completely fails to address the location of the note prior to January 2017. Incidentally, in his affirmation in opposition to the motion counsel for plaintiff concedes that “NJCC is not in possession” of “[t]he exact address or location of the [n]ote at the time of commencement of this action and logs and records concerning same.”

The eighth interrogatory then inquires as follows: “If [p]laintiff was in possession of the [n]ote on May 19, 2014, on what date did it obtain the [n]ote?” Muller's response to this interrogatory is simply that plaintiff “was in possession of the [n]ote at the time of commencement of [the] action.” Again, she has failed to adequately answer the question.

Based upon the foregoing, defendant's motion is granted and plaintiff is hereby directed to provide supplemental responses to the interrogatories within sixty (60) days of the date of this Decision and Order, simultaneously providing the Court with a copy of the same. These responses shall be executed by an individual with personal knowledge of the information requested — i.e., personal knowledge of the records kept with respect to the original note at or near the time of commencement of the action. Ideally, this should be an individual employed by the named plaintiff — Federal National Bank Association — or its servicer or attorney-in-fact, not someone employed by NJCC or another recent assignee of the mortgage.⁷

Briefly, defendant also contends that plaintiff's answers to the interrogatories are insufficient and unreliable because the identity of its counsel of record is not clear. In this regard, a consent to change attorney form was filed on November 6, 2018 whereby Knuckles, Komosinski & Manfro, LLP was substituted for Gross Polowy LLC as counsel for plaintiff. The form was signed on July 1, 2018 by Selene Finance as attorney-in-fact for NJCC. Plaintiff contends that the form is insufficient because, on July 1, 2018, the mortgage was still assigned to PROF-2013-S3. While the Court agrees that the form is insufficient, this insufficiency has no impact on the validity of plaintiff's responses to the interrogatories. With that said, the Court nonetheless directs counsel for plaintiff to file an amended consent to change attorney form within thirty (30) days of the date of this Decision and Order.

Therefore, having considered the Affidavit of Thomas G. Clements, Esq. with exhibits attached thereto, sworn to July 22, 2019; Supplemental Affidavit of Thomas G. Clements, Esq. with exhibits attached thereto, sworn to August 19, 2019; Affirmation in Opposition of Louis A. Levithan, Esq. with exhibits attached thereto, dated September 9, 2019; Reply Affidavit of Thomas G. Clements, Esq. with exhibit attached thereto, sworn to September 17, 2019; Correspondence via email of Louis A. Levithan, Esq. with attachments thereto, dated January 27, 2020; and Correspondence of Thomas G. Clements, Esq., dated January 28, 2020, and oral argument having been held on January 24, 2020 with Louis Levithan, Esq. appearing on behalf of plaintiff and Thomas Clements, Esq. appearing on behalf of defendant, it is hereby

ORDERED that defendant's motion is granted and plaintiff is hereby directed to provide supplemental responses to defendant's interrogatories within sixty (60) days of the date of this Decision and Order, simultaneously providing the Court with a copy of the same; and it is further

ORDERED that the supplemental responses to defendant's interrogatories shall be executed by an individual with personal knowledge of the information requested; and it is further

ORDERED that counsel for plaintiff shall file an amended consent to change attorney form within thirty (30) days of the date of this Decision and Order; and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated July 22, 2019 and the submissions enumerated above. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.

FOOTNOTES

1.   Defendant did not retain a life estate in the property.

2.   While initially rejected by plaintiff as untimely, defendant's answer was ultimately accepted by stipulation of the parties dated July 7, 2016 and entered on July 12, 2016.

3.   This assignment was executed by Nationwide Title Clearing Inc. as attorney-in-fact for plaintiff. A copy of this limited power of attorney was attached to plaintiff's opposition papers.

4.   This assignment was executed by Selene Finance as attorney-in-fact for PROF-2013-S3. A redacted copy of this limited power of attorney was attached to plaintiff's opposition papers and an unredacted copy was provided at oral argument.

5.   This assignment was executed by Selene Finance, LP as attorney-in-fact for Community Loan Fund. A copy of this limited power of attorney was attached to plaintiff's opposition papers.

6.   This assignment was also executed by Selene Finance, LP as attorney-in-fact for Community Loan Fund.

7.   In the event plaintiff fails to provide supplemental responses in a timely manner, the Court is willing to entertain another motion to dismiss under CPLR 3126 (3).

Robert J. Muller, J.