Opinion
060821/2014
08-30-2017
Beneficial Homeowner Service Corporation, Plaintiff, v. Juliet A. Jordon-Thompson, A/K/A JULIET JORDON THOMPSON A/K/A JULIET A. JORDON THOMPSON; DUDLEY THOMPSON; BENEFICIAL HOMEOWNER SERVICE CORPORATION,"JOHN DOE #1-5" AND "JANE DOE #1-5" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendant(s).
Fein, Such & Crane, LLP Attorneys for Plaintiff 1400 Old Country Road, Suite C103 Westbury, NY 11590 Juliet Jordon-Thompson and Dudley Thompson Pro Se Defendants 106 Locust Drive Amityville, NY 11701
Fein, Such & Crane, LLP Attorneys for Plaintiff 1400 Old Country Road, Suite C103 Westbury, NY 11590 Juliet Jordon-Thompson and Dudley Thompson Pro Se Defendants 106 Locust Drive Amityville, NY 11701 Robert F. Quinlan, J.
Upon the following papers read on this motion for an order granting summary judgment, striking the answer of defendants, appointment of a referee to compute and to amend the caption; Notice of Motion dated April 26, 2016 and supporting papers; Affidavit in Opposition sworn to July 1, 2016; and Reply Affirmation sworn to July 19, 2016 and supporting papers; it is, ORDERED that this motion by plaintiff Beneficial Homeowner Service Corporation for an order awarding it summary judgment against the answering defendants, for default judgment and appointment a referee to compute, is granted to the extent that plaintiff is granted partial summary judgment dismissing defendants Juliet A. Jordon-Thompson a/k/a Juliet Jordon Thompson a/k/a Juliet A. Jordon Thompson and Dudley Thompson's three affirmative defenses; and it is further
ORDERED that the caption is amended to substitute Iman Lindow and Olive Stewart in place of the "John Doe # 1-5" and "Jane Doe # 1-5"defendants upon the proof provided, and the caption shall now appear as follows: X BENEFICIAL HOMEOWNER SERVICE CORPORATION,
Plaintiff, against - JULIET A. JORDON-THOMPSON A/K/A JULIET A. JORDON THOMPSON; DUDLEY THOMPSON; BENEFICIAL HOMEOWNER SERVICE CORPORATION, IMAN LINDOW; OLIVE STEWART,
Defendants X ;and it is further
ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within thirty (30) days of this order, and all further proceedings are to be under the amended caption; and it is further
ORDERED that plaintiff's application to reform the legal description in the mortgage is granted, and the fifth sentence therein shall read "Certain map entitled 'Map of Ted Homes' "; and it is further
ORDERED that the Suffolk County Clerk shall cause a copy of this Order with the reformed Schedule A to be attached thereto by plaintiff, to be recorded with the Mortgage herein, after the payment of such costs and fees as required by the Suffolk County Clerk; and it is further
ORDERED that plaintiff's application to strike defendants Juliet A. Jordon-Thompson a/k/a Juliet Jordon Thompson a/k/a Juliet A. Jordon Thompson and Dudley Thompson's answer and to appoint a referee pursuant to RPAPL 1321 are both denied, subject to renewal, plaintiff's proposed order submitted with this motion is marked "Not Signed;" and in all other respects plaintiff's motion is denied; and it is further ORDERED that this action shall be calendared for a certification conference on Wednesday, November 8, 2017 at 9:30 AM in Part 27.
This is an action to foreclose a mortgage on residential real property known as 106 Locust Drive, Amityville, Suffolk County, New York ("the property") given by defendants Juliet A. Jordon-Thompson a/k/a Juliet Jordon Thompson a/k/a Juliet A. Jordon Thompson and Dudley Thompson ("defendants") to Beneficial Homeowner Service Corporation ("plaintiff").
Plaintiff commenced the action on February 10, 2014. Defendants, pro se, appeared in the action by service of their answer dated February 21, 2014, which consisted of general denials and three affirmative defenses. Three conferences were held in the court's Foreclosure Settlement Conference Part on August 11, 2014, October 31, 2014 and February 25, 2015, after which the action was released to an IAS Part as not settled. Compliance with CPLR 3408 is established.
SUMMARY JUDGMENT
Plaintiff now moves for summary judgment, striking the answer of defendants, appointment of a referee to compute, to amend the caption and reform the legal description in the mortgage. The submissions in support of plaintiff's motion include attorney affirmations, an affidavit by an officer of plaintiff in support of the motion, the note, mortgage, pleadings, affidavits of service and other attached exhibits. Defendants oppose the motion. The motion were originally assigned to Justice Joseph C. Pastoressa, but was transferred to this part by Suffolk County AO #58-16, dated October 12, 2016.
In an action to foreclose a mortgage, a plaintiff establishes its prima facie case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Wells Fargo Bank, N.A. v. DeSouza, 126 AD3d 965 [2d Dept 2015]; Wells Fargo Bank, NA v Erbobo, 127 AD3d 1176 [2d Dept 2015]; Wells Fargo Bank, NA v Morgan, 139 AD3d 1046 [2d Dept 2016]). Here, plaintiff, the original lender and mortgagee, through its submissions has established its prima facie entitlement to summary judgment against defendants (see Bank of New York Mellon Trust Co. v McCall, 116 AD3d 993 [2d Dept 2014]).
The burden then shifted to defendants to submit proof in evidentiary form sufficient to raise a genuine issue of fact rebutting plaintiff's prima facie showing or which support their affirmative defenses. (Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]; Aames Funding Corp. v Houston, 44 AD3d 692 [2d Dept 2007]).
DEFENDANTS' DEFENSES DISMISSED
Defendants' answer raised three affirmative defenses: plaintiff's lack of standing to bring the action, a claim that plaintiff had violated the provisions of the Home Affordable Modification Program ("HAMP") as they had not been offered a loan modification option and that plaintiff failed to file a Request For Judicial Intervention ("RJI"), as well as the affirmation of counsel required by AO/431/11. As plaintiff, original lender/mortgagee, has established its standing by submitting a copy of the complaint with attached copies of the note and mortgage, its standing is established and the claim of lack of standing is dismissed (see Nationstar Mortg., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Wells Fargo Bank v Thomas, 150 AD3d1312 [2d Dept 2017]; Deutsche Bank Natl Trust Co. v Carlin, 152 AD3d 491[2d Dept 2017]; US Bank, NA v Sabloff, _AD3d_, 2017 NY Slip Op 06313 [2d Dept 2017]). As plaintiff's submissions also show its compliance with the affirmation requirement of both AO/431/11 and the CPLR, that an RJI was filed and that defendants have been afforded the opportunity to seek a loan modification in the conferences held pursuant to CPLR 3408, the other two affirmative defenses are likewise dismissed. Additionally, as defendants' never raised these last two affirmative defenses in opposition to plaintiff's motion, they would be dismissed in any event (see Kuehne & Nagel Inc. v Baiden, 36 NY2d 539 [1975]; Kronick v L. P. Therault Co., Inc., 70 AD3d 648 [2d Dept 2010]; New York Commercial Bank v. J. Realty F. Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]; Starkman v. City of Long Beach, 106 AD3d 1076 [2d Dept 2013]; Katz v Miller, 120 AD3d 768 [2d Dept 2014]).
RPAPL § 1304 (2) VIOLATION - ANOTHER ENCLOSURE
In opposition defendants, for the first time, raise non-compliance with RPAPL § 1304 (2). The court notes that defendants to not oppose receipt of the RPAPL § 1304 notice, in fact receipt is admitted (see Affirmation in Opposition at paragraph "3"), so any claims as to possible insufficiency of plaintiff's proof of mailing of the notices required by RPAPL § 1304 are waived. Rather defendants oppose the motion on grounds that plaintiff failed to comply with the requirement of RPAPL § 1304(2) that the RPAPL § 1304 notices "shall be sent...in a separate envelope from any other mailing or notice." Specifically, they state that in the same envelope as the RPAPL § 1304 notice they also received a document they refer to as "a notice about bankruptcy." They also raise a claim that the font size of the notices do not conform to the standard set by the statute, but provide no proof to support their allegation, so the court will dismiss that portion of their claim.
In both its original submission in support of the motion, and in reply to defendants' opposition, plaintiff attaches the affidavit of its officer, as well as a copies of the documents it refers to as the RPAPL § 1304 notice. Plaintiff's RPAPL § 1304 notice consists of a separate "cover letter," dated July 27, 2013, from an employee of plaintiff, identifying herself as defendants' designated Mortgage Servicing Specialist and setting forth her contact information. The document also states "PLEASE NOTE THE ENCLOSED IMPORTANT COMMUNICATION REGARDING YOUR ACCOUNT". This separate enclosure (as indicated by the "Enclosure" notation at the bottom of the "cover letter") is the RPAPL § 1304 notice of the same date (see Exhibit "D" to the affidavit on the motion and Exhibit "B" in plaintiff's reply).
RPAPL § 1304 compliance has been said to be a "super defense," a condition precedent that may "be raised at any time" by a mortgagor (see Aurora Loan Services v Weisblum, 85 AD3d 95 [2d Dept 2011]; Citimortgage v Espinal, 134 AD3d 876 [2d Dept 2016]). In reality, it has been held that it cannot "be raised at any time," as it cannot be raised after a judgment of foreclosure has been issued (see Emigrant Bank v. Marando, 143 AD3d 856, 39 NYS3d 83 (2nd Dept., 2016); Bank of America v. Barton, 149 AD3d 676, 50 NYS3d 546 (2nd Dept., 2017); nor can it be raised by a defendant-mortgagor in default, unless the default is first vacated (see HSBC Bank, N.A. v Clayton, 146 AD3d 942 [2d Dept 2017]; Bank of America v. Agarwal, 150 AD3d 651 [2d Dept 2017]), and it has been held that it is within the discretion of the court to consider it after a default has been set (see Emigrant Mtg. Corp v Lifshitz, 143 AD3d 755 [2d Dept 2016]).
Yet, where as here, defendants had filed general denials of plaintiff's complaint which alleged plaintiff had complied with the requirements of RPAPL § 1304 ( plaintiff's Exhibit "A", paragraph "Ninth" and defendants' answer, plaintiff's Exhibit "D"), plaintiff must present sufficient evidence to demonstrate the absence of any material issues (see Zarabi v Movahedian, 136 AD3d 895 [2d Dept 2015]; JPMorgan Chase Bank, N.A. v Kutch, 142 AD3d 536 [2d Dept 2016]). Additionally, where a defendant has raised non-compliance with the notice requirements of RPAPL §1304 in opposition to plaintiff's motion for summary judgment, plaintiff must adduce due proof that the pre-action foreclosure 90 day notice requirements have been satisfied (see Citimortgage, Inc v Espinal, 134 AD3d 876 [2d Dept 2015]; Zarabi v Movahedian, supra; U.S. Bank, N. A, v Singh, 147 AD3d 1007 [2d Dept 2017]).
Plaintiff, by its own submissions, has established that it included a separate "mailing or notice" in the envelope with the RPAPL § 1304 notice, violating the prohibition of RPAPL § 1304 (2) (see affidavit of Tanya Woods, paragraph "7" submitted both on the motion and as Exhibit "A" in reply, and the attached copies of the notices she refers to as Exhibit "D" in her affidavit submitted with the motion and Exhibit "B" in reply). Albeit, this "letter" was meant to assist defendants, as it contained contact information and highlighted the importance of the enclosed RPAPL § 1304 notice. However, strict compliance with the requirements of RPAPL § 1304 is required, failure to do so will result in denial of summary judgment, no matter the sufficiency of opposing papers (see Hudson City Sav. Bank v DePasquale, 113 AD3d 595 [2d Dept 2014]; Flagstar Bank, FSB v Damaro, 145 AD3d 856 [2d Dept 2016]). The court notes that although defendants raises the issue of an additional notice in the same envelope for the first time in opposition, plaintiff's reply does not directly address the issue, instead it argues that the proof of mailing of the RPAPL § 1304 notices is sufficiently established. Unfortunately for plaintiff, its own submissions treat the notices as separate, as the language on the "cover letter" states: "PLEASE NOTE THE ENCLOSED IMPORTANT COMMUNICATION REGARDING YOUR ACCOUNT.(emphasis added)," clearly establishing that a separate document was included in the same envelope in violation of RPAPL § 1304 and requiring denial of full summary judgment to plaintiff.
STRICT COMPLIANCE THOUGH THE SPIRIT OF RPAPL § 1304 NOT VIOLATED
Although the court will follow the mandate of strict compliance with the language of RPAPL § 1304, the court believes plaintiff's conduct does not violate the "spirit" behind the legislature's purpose in drafting RPAPL § 1304. The purpose of the notice is to allow homeowners the opportunity to try to resolve their mortgage defaults without litigation and to apprise them of available legal and counseling help. This help can be reached thorough the Department of Financial Services' website and "helpline," as well as from the list of available housing counselors provided. Here, the information given by plaintiff's "additional notice" is also an attempt to reach out and help parties like defendants. Further, RPAPL § 1304 did not, and does not even after the most recent amendments, require the notice to "only" contain the language mentioned in the body of RPAPL § 1304 (1). The statute states the notice "shall include the following:" clearly implying that more than just the statutory language may be part of the RPAPL § 1304 notice. Here, if plaintiff had incorporated both notices into one RPAPL § 1304 notice, this court would have found that notice complied with the statute
PARTIAL SUMMARY JUDGMENT - LIMITED ISSUE TRIAL
The court notes the quandary that plaintiff's submissions have created, but the court will not act upon that in a sua sponte manner. The court grants plaintiff partial summary judgment as it has established its prima facie entitlement to foreclose the mortgage, and defendants' affirmative defenses have been dismissed, but pursuant to CPLR 3212 (g) the court finds there is a remaining issue of fact as to whether plaintiff violated the prohibition of RPAPL § 1304 (2) that the notices "shall be sent...in a separate envelope from any other mailing or notice." The court sets the action down for trial, pursuant to CPLR § 2218, which shall be limited to the proof of that issue.
AMENDMENT OF CAPTION - REFORMATION OF ERROR IN MORTGAGE
Plaintiff's submissions support its applications to amend the caption and reform the scriveners' error in the mortgage, therefore those applications are granted (see Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225 [2d Dept 2014]; Bank of New York v Stein, 130 AD3d 552 [2d Dept 2015]). Plaintiff's proposed order of reference has been marked "not signed."
As there is no need for discovery on this issue, a compliance/certification conference is set for November 8, 2017 at 9:30 AM, at which time the parties will execute a compliance conference order, setting the timing for filing of a note of issue and a pre-trial conference
This constitutes the order and decision of the court. Dated: August 30, 2017 _______________________________________ Hon. Robert F. Quinlan, J.S.C.