From Casetext: Smarter Legal Research

Wells Fargo, N.A. v. Levin

Supreme Court, Appellate Division, Third Department, New York.
Dec 27, 2012
101 A.D.3d 1519 (N.Y. App. Div. 2012)

Opinion

2012-12-27

WELLS FARGO, N.A., Doing Business as Americas Servicing Company, Respondent, v. Ofra LEVIN, Appellant, et al., Defendants.

Cohen Law Group, P.C., New York City (Brian S. Cohen of counsel), for appellant. Hogan Lovells U.S. LLP, New York City (Robin L. Muir of counsel), for respondent.



Cohen Law Group, P.C., New York City (Brian S. Cohen of counsel), for appellant. Hogan Lovells U.S. LLP, New York City (Robin L. Muir of counsel), for respondent.
Before: PETERS, P.J., KAVANAGH, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeal from an order of the Supreme Court (Tait, J.), entered August 5, 2011 in Broome County, which denied defendant Ofra Levin's motion to, among other things, vacate a prior order.

In May 2007, defendant Ofra Levin (hereinafter defendant) obtained a loan from Real Estate Mortgage Network, Inc. (hereinafter REMN) and duly executed a promissory note, which was secured by a mortgage on certain real property located in the City of Binghamton, Broome County. Two years later, defendant defaulted on the loan and, in August 2009, REMN's nominee assigned the subject mortgage to plaintiff. Additionally, at some point not disclosed by the record, REMN also executed a rider to the promissory note—denominated by the parties as an allonge—that, in turn, assigned all right, title and interest in the note to plaintiff.

In September 2009, plaintiff commenced this foreclosure actionagainst defendant, and defendant, in turn, answered and raised lack of standing as an affirmative defense, contending that defendant was not the true owner or holder of the note. Plaintiff then moved for summary judgment and an order of reference, and defendant cross-moved for, among other things, an order directing compliance with various discovery demands. Supreme Court granted plaintiff's motion and denied defendant's cross motion, prompting defendant to move for reargument, renewal and vacatur of the underlying order. Supreme Court denied defendant the requested relief, and this appeal ensued.

We affirm. Initially, to the extent that defendant sought reargument, we agree with Supreme Court that this portion of defendant's motion was untimely ( seeCPLR 2221[d][3] ). In any event, it is well settled that no appeal lies from the denial of a motion to reargue ( see Matter of County of Broome, 90 A.D.3d 1260, 1261, 934 N.Y.S.2d 624 [2011] ).

As for that aspect of the motion seeking renewal, the crux of defendant's argument on this point is that the law firm that represented plaintiff before Supreme Court allegedly engaged in various fraudulent and deceptive practices in other foreclosure actions relative to, among other things, the preparation of certain foreclosure documents. According to defendant, the law firm's conduct in those other (and unrelated) matters, as well as the ethical questions raised in conjunction therewith, necessarily call into question the validity of the documents prepared and filed in this case—particularly with respect to the undated rider transferring the note to plaintiff.

To be sure, the law firm in question has been involved in a number of cases in which the foreclosure documentation was not properly completed, resulting in the invalidation of the underlying proceedings and/or the imposition of sanctions ( see e.g. JP Morgan Chase Bank, N.A. v. Ramirez, –––Misc.3d ––––, 2011 N.Y. Slip Op. 30488[U], 2011 WL 916711 [Sup. Ct., Suffolk County 2011]; Federal Home Loan Mtge. Corp. v. Raia, 29 Misc.3d 1226[A], 2010 N.Y. Slip Op. 52003[U], 2010 WL 4750043 [Dist. Ct., Nassau County 2010]; HSBC USA, N.A. v. Yeasmin, 27 Misc.3d 1227[A], 2010 N.Y. Slip Op. 50927[U], 2010 WL 2089273 [Sup. Ct., Kings County 2010]; Lasalle Bank N.A. v. Smith, 26 Misc.3d 1239[A], 2010 N.Y. Slip Op. 50470[U], 2010 WL 1007826 [Sup. Ct., Kings County 2010] ). These cases, however, are of no aid to defendant in the context of her motion to renew, as many of them were decided prior to the underlying summary judgment motion and, in any event, the law firm's conduct in the cited matters does not establish that it engaged in fraudulent or deceptive practices in this case. As defendant failed to come forward with new information, as well as a reasonable justification for failing to bring such facts to Supreme Court's attention in the first instance ( seeCPLR 2221[e]; JPMorgan Chase Bank, N.A. v. Malarkey, 65 A.D.3d 718, 719–720, 884 N.Y.S.2d 787 [2009] ), the court properly denied defendant's request for renewal.

We reach a similar conclusion regarding defendant's motion pursuant to CPLR 5015 seeking to vacate the order granting summary judgment in favor of plaintiff. To the extent that defendant sought relief under the newly discovered evidence prong of CPLR 5015(a)(2), such motion is more properly considered as one for renewal pursuant to CPLR 2221(e)(3) ( see Abrams v. Berelson, 94 A.D.3d 782, 783, 942 N.Y.S.2d 132 [2012],appeal dismissed19 N.Y.3d 949, 950 N.Y.S.2d 96, 973 N.E.2d 193 [2012] ) and, for the reasons previously discussed, is lacking in merit. Further, as the cases relied upon by defendant again fall short of demonstrating that plaintiff and/or the law firm then representing it engaged in fraud, misrepresentation or other misconduct in the matter now before us, defendant's request for vacatur under CPLR 5015(a)(3) also was properly denied. Finally, to the extent that defendant seeks to invoke the lack of jurisdiction provision set forth in CPLR 5015(a)(4), defendant's argument on this point is premised upon her assertion that plaintiff was not the legal owner or holder of the underlying note and, hence, lacked standing to commence the foreclosure action. Lack of standing, however, is not a defect that deprives a court of subject matter jurisdiction for purposes of CPLR 5015(a)(4) ( see Lacks v. Lacks, 41 N.Y.2d 71, 74–75, 390 N.Y.S.2d 875, 359 N.E.2d 384 [1976];Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 243–244, 837 N.Y.S.2d 247 [2007] ).Accordingly, defendant's argument on this point must fail. Defendant's remaining contentions in support of the various branches of her motion, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the order is affirmed, with costs.

PETERS, P.J., KAVANAGH and McCARTHY, JJ., concur.


Summaries of

Wells Fargo, N.A. v. Levin

Supreme Court, Appellate Division, Third Department, New York.
Dec 27, 2012
101 A.D.3d 1519 (N.Y. App. Div. 2012)
Case details for

Wells Fargo, N.A. v. Levin

Case Details

Full title:WELLS FARGO, N.A., Doing Business as Americas Servicing Company…

Court:Supreme Court, Appellate Division, Third Department, New York.

Date published: Dec 27, 2012

Citations

101 A.D.3d 1519 (N.Y. App. Div. 2012)
958 N.Y.S.2d 227
2012 N.Y. Slip Op. 9118

Citing Cases

Bank of N.Y. Mellon Trust Co., Nat'l Ass'n v. Balash

Further, defendant waived any challenge to plaintiff's standing by failing to raise it in either a pre-answer…

GMAT Legal Title Tr. 2014-1, U.S. Bank v. Wood

We affirm. Initially, with regard to that part of plaintiff's motion seeking to reargue, we note that no…