Opinion
03-5739
Decided April 1, 2005.
SHAPIRO DiCARO, LLP, Attorneys for Plaintiff Rochester, New York.
CORRADO LAW FIRM, P.C. Attorneys for Defts. Rosser Holiday Garden City, New York.
STEVEN P. BERTOLINO, P.C., Attorney for Naxxarr Realty Corp. East Islip, New York.
JAMES F. MATTHEWS, ESQ., Referee Huntington, New York.
ORDERED that this motion by defendant Willie S. Rosser a/k/a Willie Rosser for an order vacating and setting aside the foreclosure sale of premises located at 42 Nottingham Drive, in Middle Island, New York; an order adding the purchaser of the premises, Naxxarr Realty Corp., as a necessary party; and an order pursuant to CPLR 6301 and CPLR 6311 enjoining Naxxarr Realty Corp. from continuing with its eviction proceeding in District Court, Sixth District, Patchogue, is denied.
Defendant Willie S. Rosser a/k/a Willie Rosser (Rosser) defaulted on his mortgage payments on a mortgage securing his premises located at 42 Nottingham Drive, in Middle Island, New York. Plaintiff mortgagee was granted a Judgment of Foreclosure and Sale on the premises on September 10, 2003 (Werner, J.). Following a foreclosure sale on October 1, 2004, non-party Naxxarr Realty Corp. (Naxxarr) obtained said property through a bid assignment and received a referee's deed dated November 12, 2004. Thereafter, Naxxarr sent Rosser a 10-day notice to quit the premises dated November 18, 2004. Naxxarr subsequently commenced an eviction proceeding in District Court, Sixth District, Patchogue, against defendant Rosser, his sister, defendant Annette Holiday, and any other residents of the subject premises.
Defendant Rosser now moves to vacate and set aside the foreclosure sale, to add Naxxarr as a necessary party, and to enjoin the eviction proceeding in District Court on the grounds that plaintiff violated sections 203.605 and 203.616 of the National Housing Act by failing to consider defendant Rosser's loan modification application due to disability for his FHA note and mortgage and failing to work out a repayment plan following his default due to a serious car accident and instead going ahead with the foreclosure sale. In support of his motion, defendant Rosser submits, among other things, his affidavit, the loss mitigation package, the Judgment of Foreclosure and Sale, the Referee's Deed, the Notice of Petition and Petition of the eviction proceeding, the Washington Mutual Financial Worksheet, and the Social Security Administration Disability Report for defendant Rosser. By his affidavit, defendant Rosser explains that in September 2003 he was in a serious car accident that left him in a coma and required him to undergo extensive medical treatment to date, that due to his condition he was unable to open or review mail and was therefore unaware that the foreclosure proceeding was continuing or that a sale date was scheduled, and that he was not served with any of the papers of the foreclosure action.
Plaintiff, in opposition, contends that defendant Rosser's claims lack merit. Plaintiff points to the default that occurred in November 2002, long before defendant Rosser's accident; explains that the loss mitigation file was reviewed by Washington Mutual but that the review was terminated according to bank policy when defendant Rosser filed for bankruptcy shortly thereafter and that later defendant Rosser failed to follow up on the application when contacted by the bank; and provides affidavits of service upon defendant Rosser of all of the foreclosure action papers, adding that defendant Rosser filed bankruptcy petitions after receiving notice of entry of judgment and notice of the foreclosure sale. In support of its opposition, plaintiff submits affidavits of service.
The burden of proving jurisdiction is on the party asserting it, and when challenged, that party must sustain that burden by a preponderance of the credible evidence ( see, Vito M. Fosella Builders Gen. Contractors v. Silver, 208 AD2d 525, 526, 617 NYS2d 59 [2nd Dept 1994]; Dime Sav. Bank of New York v. Steinman, 206 AD2d 404, 613 NYS2d 945 [2nd Dept 1994]). An affidavit of service is not conclusive once there is a sworn denial of receipt ( see, Empire Natl. Bank v. Judal Constr. of New York, 61 AD2d 789, 401 NYS2d 852 [2nd Dept 1978]).
Here, plaintiff established that the Court obtained personal jurisdiction over the defendants by submitting the affidavits of service of the summons and complaint upon defendant Rosser's sister, defendant Annette Holiday. The affidavits of the process server constituted prima facie proof of valid service ( see, Simmons First Natl. Bank v. Mandracchia, 248 AD2d 375, 669 NYS2d 646 [2nd Dept 2001]). Defendant Rosser failed to submit a sworn statement in reply, denying that the person upon whom process was served pursuant to CPLR 308 (2) was his sister ( compare, OCI Mortg. Corp. v. Omar, 232 AD2d 462, 648 NYS2d 175 [2nd Dept 1996]). In addition, since defendant Rosser did not serve an answer or notice of appearance, he was in default and was not entitled to receive notice of the foreclosure sale ( see, Bank of New York v. Agenor, 305 AD2d 438, 758 NYS2d 817 [2nd Dept 2003]).
It is well settled that a foreclosure sale may be set aside when "'fraud, collusion, mistake or misconduct casts suspicion on the fairness of the sale'" ( Liberty Sav. Bank, FSB v. Knab, 281 AD2d 602, 603, 722 NYS2d 178 [2nd Dept 2001], quoting Polish Natl. Alliance v. White Eagle Hall Co., 98 AD2d 400, 407, 470 NYS2d 642 [2nd Dept 1983]). In addition, "[t]he owner of the equity of redemption or any person with an interest in the mortgaged premises has a right to redeem the property at any time prior to the actual sale under a judgment of foreclosure" ( First Fed. Sav. Loan Assn. of Port Washington v. Smith, 83 AD2d 601, 602, 441 NYS2d 309 [2nd Dept 1981]; see also, NYCTL 1996-1 Trust v. LFJ Realty Corp., 307 AD2d 957, 958, 763 NYS2d 836 [2nd Dept 2003], appeal dismissed 1 NY3d 622, 777 NYS2d 21; RPAPL § 1341).
Here, there is no evidence that defendant Rosser followed the redemption procedures mandated by RPAPL § 1341, and therefore, he is not entitled to an order setting aside the foreclosure sale ( see, NYCTL 1996-1 Trust v. LFJ Realty Corp. , supra; Wells Fargo Home Mortgage, Inc. v. Hiddekel Church of God, Inc. 1 Misc 3d 913A, 781 NYS2d 628 (Sup. Ct, Kings. Co. 2004). While defendants' situation is clearly unfortunate, the record is devoid of any showing that their rights were not protected to the fullest extent that the law provides ( see, Long Is. Sav. Bank of Centereach, F.S.B. v. Jean Valiquette, M.D., P.C., 183 AD2d 877, 584 NYS2d 127 [2nd Dept 1992]). Notably, there no private cause of action for noncompliance with the provisions of 12 U.S.C. § 1715u under which 24 C.F.R. §§ 203.605 and 203.616 are promulgated. Miller v. GE Capital Mortg. Serv. ___ F.3d ___, 2005 U.S. App. LEXIS 1778 (4th Cir., 2005). Moreover, the failure of a mortgagee to comply with these federal regulations is not subject to judicial review. See, Dean v. HUD, 2000 U.S. Dist. LEXIS 6361 (W.D.NY 2000). Defendant Rosser failed to demonstrate that he did not receive actual notice of the proceeding in time to defend, a reasonable excuse for the default, or a meritorious defense ( see, Hecht v. Bass Rest., Inc., 267 AD2d 279, 700 NYS2d 198 [2nd Dept 1999]). Since there has been no demonstration that the sale should be vacated and set aside, the request to set aside the sale and for related relief is denied ( see, Chase Manhattan Mortg. Corp. v. Cobbs, 4 AD3d 383, 771 NYS2d 387 [2nd Dept 2004], appeal dismissed 3 NY3d 656, 782 NYS2d 696).
Accordingly, the instant motion is denied.