Mortgage Foreclosure-Related Handdowns - February 23, 2022 Edition

Nationstar Mtge., LLC v Krit, 2022 Slip Op 01168 (February 23, 2022)

The Second Department affirmed a decision denying a motion to dismiss pursuant to CPLR § 3211(a)(1), (5) and (7). The defendant argued that there was a satisfaction that he had relied on to his detriment and that the action was time-barred. The court found that there was no showing of a prior over, unequivocal act of acceleration and that payments made by defendant post-dating the purportedly satisfied mortgage demonstrated that he did not rely on the SAT.

U.S. Bank N.A. v Campbell, 2022 Slip Op 01198 (February 23, 2022)

The Second Department reversed a decision that granted vacatur of the dismissal of the action and summary judgment to the plaintiff. Vacatur of the conditional order of dismissal was warranted because issue had been joined in the action. “The Supreme Court was without authority to, sua sponte, direct dismissal the complaint based upon the plaintiff's failure to comply with its directive to proceed by motion, which would have required a motion for summary judgment.” However, summary judgment was not warranted because the servicer affidavit did not demonstrate mailing of the default notice required by the mortgage or the RPAPL § 1304 notices because it did not establish personal knowledge of the mailing or a mailing procedure. Additionally, the affidavit was insufficient to establish default because no documents were attached to the affidavit.

U.S. Bank N.A. v Ramanababu, 2022 Slip Op 01199 (February 23, 2022)

The Second Department reversed a judgment of foreclosure and sale on the basis that the servicer affidavit did not demonstrate defendant’s default as a matter of law. “Contrary to the plaintiff's contention, a review of records maintained in the normal course of business does not vest an affiant with personal knowledge.” The Court declined to revisit proof of compliance with RPAPL § 1304 and adhered to the decision reached at summary judgment stage on that issue.

US Bank N.A. v Ashley, 2022 Slip Op 01200 (February 23, 2022)

This case involved procedural issues relating to an order of reference entered on default. The defendant unsuccessfully moved to vacate the order of reference. The plaintiff filed a notice of settlement of order about 15 months after it was issued, and then the court granted plaintiff’s motion for summary judgment again. However, the action was transferred to a different justice, who then “re-calendared” the motion. Defendant cross-moved to vacate the two prior orders and for summary judgment/dismissal. Then the court entered another order, sua sponte, which vacated its order “re-calendaring” the plaintiff’s motion and found that the order that granted summary judgment the second time remained in effect. The Second Department found that the Supreme Court had the authority to sua sponte vacate the order in which it had “re-calendared” plaintiff’s motion, as that order “was based on mistaken information, and the vacatur of that order did not affect any substantial right of the defendant because she had defaulted in opposing the plaintiff's motion and the court had never vacated her default or its prior order denying her motion to vacate the default.” The Second Department additionally found, “[f]urthermore, the court has inherent power to vacate in the interest of justice its prior order which was based on mistaken information (see Matter of Vascianno v Nedrick, 305 AD2d 420; Block v Block, 153 AD2d 601). Since the court properly vacated its prior order re-calendaring the plaintiff's motion and never vacated the defendant's default or the prior order denying the defendant's motion to vacate the default, the court also properly denied the defendant's cross motion as academic.”

US Bank N.A. v Kaplan, 2022 Slip Op 01201 (February 23, 2022)

The Second Department reversed orders granting summary judgment and a judgment of foreclosure and sale on the basis that the plaintiff failed to demonstrate compliance with RPAPL § 1304 because the notice contained “additional notices.”

Wells Fargo Bank, N.A. v Carter, 2022 Slip Op 01202 (February 23, 2022)

The Second Department affirmed a decision denying a proposed intervenor’s motion to intervene in the action on the basis that it was untimely. “"In considering whether a motion to intervene is timely, 'courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party…Here, the appellant's motion to intervene was untimely, as she moved to intervene more than four years after the action was commenced and six months after the order and judgment of foreclosure and sale was issued.”

Citimortgage, Inc. v Malek, 2022 Slip Op 01137 (February 23, 2022)

The Second Department affirmed an order granting summary judgment to the plaintiff. Plaintiff demonstrated standing by proving that the original lender, ABN Amro, merged with the plaintiff in 2007 and by attaching a copy of the note, endorsed in blank, to the complaint. The action was not time-barred even though a prior action had been filed in 2010, because the second action was filed in 2015.

Citimortgage, Inc. v Roque, 2022 Slip Op 01138 (February 23, 2022)

The Second Department affirmed an order that denied the plaintiff’s motion to vacate an order that granted the defendant’s motion to vacate a judgment of foreclosure and sale, or, alternatively, to renew its opposition to the defendant’s motion. The Supreme Court had found that the affidavit of service of the summons and complaint did not comply with CPLR § 2309(c), which was why it vacated the judgment of foreclosure and sale. Plaintiff’s argument was that the defendant misrepresented herself as the owner of the subject property. “Here, the plaintiff failed to establish that the alleged new fact, to wit, that the defendant transferred ownership of the subject property in September 2011, was not available at the time of the defendant's motion which resulted in the May 25, 2016 order, since a deed evidencing such transfer was recorded in October 2011.” An order may not be vacated on the grounds of fraud, misrepresentation, or misconduct where the moving party had knowledge of the fraud, misrepresentation, or misconduct before the order was issued.

Deutsche Bank Natl. Trust Co. v Beckford, 2022 Slip Op 01143 (February 23, 2022)

The Second Department reversed a decision denying the plaintiff’s motion to vacate a conditional order of dismissal and to restore the action to the active calendar. Justice Knipel did not have the authority to base a conditional order of dismissal on CPLR § 3216 because the order “failed to state that the plaintiff's failure to comply with the notice 'will serve as a basis for a motion' by the court to dismiss the action for failure to prosecute." Additionally, there was no evidence that the plaintiff was present at the status conference at which the conditional order was issued and no proof that the conditional order had been served on plaintiff.

Deutsche Bank Natl. Trust Co. v Idarecis, 2022 Slip Op 01144 (February 23, 2022)

The Second Department reversed an order granting summary judgment to the plaintiff. The plaintiff had relied on two affidavits that alleged that the plaintiff was in possession of the note prior to commencement of the action, but “neither affiant identified any particular document reviewed that pertained to the issue of standing, nor did they attach to their respective affidavits any admissible document.”

Deutsche Bank Natl. Trust Co. v Mecca, 2022 Slip Op 01145 (February 23, 2022)

The Second Department affirmed a judgment of foreclosure and sale. The action was not time-barred, as a default notice did not accelerate and the prior action was commenced less than six years before the second action was commenced. The defendant’s motion to compel the plaintiff to produce documents for inspection, because defendant did not demonstrate that the documents were necessary and material to the affirmative defense of standing.

Deutsche Bank Trust Co. Ams. v Morocho, 2022 Slip Op 01146 (February 23, 2022)

The Second Department affirmed an order denying summary judgment to plaintiff and an order denying leave to reargue the summary judgment motion. The defendant had moved to dismiss on the basis that the action was time-barred, and plaintiff cross-moved for summary judgment. The Supreme Court found that the action was time-barred. A prior action had been filed in 2008, with default judgment entered in 2009. In 2015, the defendant executed a loan modification, and the servicer executed the mod in 2016. In 2017, the plaintiff moved to discontinue the action on the basis that a loan modification had been entered into, and the motion was granted unopposed. The Second Department found that, because the motion to discontinue was filed more than six years from the commencement of the 2008 action, it did not revoke acceleration. “Here, the plaintiff's submissions in support of its cross motion failed to eliminate all triable issues of fact as to whether the defendant's execution of the loan modification agreement constituted "an unqualified acknowledgment of the [mortgage] debt sufficient to reset the statute of limitations."

HSBC Bank USA, N.A. v Blair-Walker, 2022 Slip Op 01150 (February 23, 2022)

The Second Department affirmed an order and judgment of foreclosure and sale. “The Supreme Court properly denied the defendant's cross motion to reject the referee's report in its August 2018 order as the issues as to standing and the affidavit of merit, which the defendant raised in support of her cross motion, were precluded by the doctrine of the law of the case since the court had properly decided those issues on their merits in its [order granting summary judgment.” The Second Department also found that no referee hearing was required below and that the referee’s determination as to the amount due and owing was supported by the record.

IPA Asset Mgt., LLC v Bank of N.Y. Mellon, 2022 Slip Op 01151 (February 23, 2022)

The Second Department reversed an order denying the bank’s motion to dismiss the quiet title complaint, on the basis that the statute of limitations had not expired. Here, the default notice did not accelerate the loan, and the prior action, filed in 2008, had been dismissed on the ground that the defendant lacked standing, which rendered the commencement of that action as a nullity.

Litton Loan Servicing, L.P. v Wasserman, 2022 Slip Op 01154 (February 23, 2022)

The Second Department affirmed an order denying the defendant’s motion to reargue her motion to vacate a judgment of foreclosure and sale. Defendant’s motion to vacate the judgment of foreclosure and sale was her third such motion. “The Supreme Court, upon, in effect, granting reargument, properly adhered to its prior determination, since the motion was premised on grounds asserted in her prior motions to vacate the judgment of foreclosure and sale that had been previously denied by the court in orders from which she took no appeal.”

MLB Sub I, LLC v Mathew, 2022 Slip Op 01156 (February 23, 2022)

The Second Department affirmed two orders, one of which granted summary judgment and upon reargument, adhered to its prior determination denying the defendant’s cross-motion for dismissal. The second order was a long form order appointing a referee. The plaintiff demonstrated that the subject loan was not a home loan within the meaning of RPAPL § 1304 by submitting a 1-4 Family Rider that deleted the “occupancy-by-borrower” requirement in the mortgage. The plaintiff also demonstrated that it sent the default notice required by Paragraphs 15 and 22 of the mortgage.