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Pennymac, Corporation v. DiPrima

Supreme Court, Suffolk County

November 18, 2016

Pennymac, Corp., Plaintiff,
v.
Darren DiPrima, MARGARET DIPRIMA, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR WILMINGTON FINANCE, INC., and "JOHN DOES" & "JANE DOES" said last names being fictitious, parties intended being possible tenants or occupants of premises, and corporations and other entities or persons who claim, or may claim, a lien the premises, Defendants.

          ROSICKI, ROSICKI & ASSOC. Attys. For Plaintiff

          WESTERMAN, BALL, EDERER Attys. For Defendants DiPrima

          THOMAS F. WHELAN, J.S.C.

         Upon the following papers numbered 1 to 13 read on this motion by the plaintiff for accelerated judgments and cross motion by defendants to dismiss; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers 5-9; Answering papers; Reply papers 10-11; 12-13; 9-10; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that this motion (No.001) by the plaintiff for an order granting it summary judgment against the DiPrima defendants, a default judgment against the corporate defendant and the deletion of the unknown defendants and an order appointing a referee to compute is considered under CPLR 3212, 3215, 1024, 1003 and RPAPL §1321 and is granted; and it is further

         ORDERED that the cross motion (#002) by the DiPrima defendants for an order dismissing the plaintiff's complaint on the grounds that the plaintiff failed to comply with RPAPL § 1304 pre-action, 90 day notice requirements and the filing requirements imposed by RPAPL § 1306 and a denial of the plaintiff's motion due to proof failures and the existence of issues of fact with respect to the plaintiff's standing and the defendants' purported default in payment is considered under RPAPL §§ 1304 and 1306 and CPLR 3212 and CPLR 3215 and is denied.

         In January of 2014, the plaintiff commenced this action to foreclose the lien of a June 2, 2007 mortgage given by the DiPrima defendants to Wilmington Finance, Inc., as security for a mortgage note likewise given in the principal amount of $365, 032.00. Under the terms of a loan modification agreement executed by CitiMortgage, Inc., as Lender/Servicer, and the DiPrima defendants in May of 2010, the loan, which was then in default, was modified to reflect a new principal balance of $370, 371.00, a non-adjustable interest rate and an extension of the maturity date of the loan to July 1, 2047. According to the complaint, the modified loan went into default on November 1, 2011 and all notices of default required to be sent to the DiPrima defendants and filed with the NYS Department of Financial Services were duly mailed and filed.

         In response to the plaintiff's service of the summons and complaint, the DiPrima defendants appeared herein by service of an answer. Said answer contains some nine affirmative defenses and one counterclaim for counsel fees pursuant to RPL § 282. The Second, Third and Fourth affirmative defenses challenge the plaintiff's standing and/or the enforceability of the contractual remedy of foreclosure. A challenge to the plaintiff's compliance with the contractual default notice requirements is set forth in the Fifth affirmative defense. The remaining affirmative defenses challenge the legal sufficiency of the complaint, the failure to join a necessary party and the propriety of the joinder of defendant, Mortgage Electronic Registration Systems, Inc. ["MERS"], or assert unidentified defenses predicated upon documentary evidence. The MERS defendant, which was the only other defendant served with process, did not appear herein by answer.

         By the instant motion (#001), the plaintiff seeks summary judgment dismissing the affirmative defenses and counterclaim set forth in the answer of the DiPrima defendants and an award of summary judgment in favor of the plaintiff on its complaint. The plaintiff also seeks a default judgment against defendant MERS, an order deleting the unknown defendants and the appointment of a referee to compute amounts due under the subject note and mortgage. The motion is opposed by the DiPrima defendants in cross moving papers (#002) in which they seek dismissal of the complaint on the unpleaded ground that the plaintiff failed to comply with the pre-action, 90 day notice requirements imposed by RPAPL§ 1304 and the filing of such notices with the NYS Department of Financial Services as required by RPAPL § 1306. The DiPrima defendants further contend that a denial of the plaintiff's motion is warranted due to insufficiencies in the plaintiff's proof and the existence of issues of fact with respect to the plaintiff's standing and the defendants' purported default in payment.

         First considered is the cross motion (#002) by the DiPrima defendants as the court's determination thereof may render the plaintiff's motion-in-chief academic. Therein, the DiPrima defendants seek a dismissal of the complaint on the grounds that the plaintiff failed to comply with the pre-action, 90 day notice requirements imposed upon the plaintiff under RPAPL § 1304 and the filing requirements for such notices that are required by RPAPL § 1306. For the reasons stated, the these demands for dismissal of the complaint are denied.

         By statutory fiat, statements in a pleading, such as the complaint served in this foreclosure action, are deemed admitted unless they are denied (see CPLR 3018[a]). A review of the complaint served in this action reveals that in paragraph 5 of the complaint, the plaintiff alleged, among other things, that it "complied with sending the ninety day notice s as required by RPAPL § 1304" and that "it is in compliance with RPAPL § 1306, if applicable. The tracking number provided by the New York State Department of Financial Services for the reporting in NS3327774" (see complaint ¶ 5 [c];[d]). In addition, a review of the answer served by the DiPrima defendants reveals that they failed to deny any of the allegations in paragraph 5 of the complaint and none of the affirmative defenses asserted in the answer allege facts from which challenges to the plaintiff's compliance with either the notice or filing provisions of RPAPL §§ 1304 or 1306 are discernable.

         By virtue of the foregoing and the application of traditional rules of New York practice and procedure, the DiPrima defendants are charged with making judicial admissions as to the issue of the plaintiff's compliance with the statutory notice and filing requirements of RPAPL §§ 1304 and 1306 and such admissions are final and binding upon them (see CPLR 3018; see also DeSouza v Khan, 128 A.D.3d 756, 11 N.Y.S.3d 168');">11 N.Y.S.3d 168 [2d Dept 2015]; Miller v Bah, 74 A.D.3d 761, 762, 902 N.Y.S.2d 174 [2d Dept 2010]; Maplewood, Inc. v Wood, 21 A.D.3d 933, 801 N.Y.S.2d 60');">801 N.Y.S.2d 60 [2d Dept 2005]; GMS Batching, Inc. v TADCO Constr. Corp., 120 A.D.3d 549, 551, 992 N.Y.S.2d 264');">992 N.Y.S.2d 264 [2d Dept 2014]; " Facts admitted in a party's pleadings constitute formal judicial admissions, and are conclusive of the facts admitted in the action in which they are made "). Under these circumstances, this court finds that the asserted grounds for the dismissal of the complaint advanced in the cross moving papers of the DiPrima defendants, namely that the plaintiff failed to comply with default notice and filing provisions of the RPAPL §§ 1304 and 1306, are unavailing as these defenses are not available to the defendants in light of their pleading admissions as to plaintiff's compliance with these statutory provisions.

         Recent pronouncements set forth in case authorities issued by the Appellate Division, Second Department regarding the nature of a RPAPL § 1304 non-compliance defense and other similar statutory procedural defenses and the burdens of proof with respect thereto do not call for a different result nor any alteration of the foregoing finding. The RPAPL § 1304 non-compliance defense was initially referred to as a "condition precedent" (see Aurora Loan Servs., LLC v Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609');">923 N.Y.S.2d 609 [2d Dept 2011]; First Natl. Bank of Chicago v Silver, 73 A.D.3d 162, 899 N.Y.S.2d 256');">899 N.Y.S.2d 256 [2d Dept 2010]). As such, the plaintiff's non-compliance with RPAPL§ 1304 or § 1303 can be raised at any time "during an action", irrespective of whether the claim of non-compliance is asserted in an answer and a failure to demonstrate compliance was held to warrant dismissal of the complaint (see Aurora Loan Servs., LLC v Weisblum, 85 A.D.3d 95, supra; First Natl. Bank of Chicago v Silver, 73 A.D.3d 162, supra).

         Nevertheless, more recent appellate case authorities refer to claims of non-compliance with RPAPL § 1304 as a "defense", which is the manner in which it is characterized in RPAPL § 1302 (see Pritchard v Curtis, 101 A.D.3d 1502, 957 N.Y.S.2d 440');">957 N.Y.S.2d 440 [3d Dept 2011), and have held that such defense is not one that is jurisdictional in nature (see Flagstar Bank, FSB v Jambelli, 140 A.D.3d 829, 32 N.Y.S.3d 625');">32 N.Y.S.3d 625 [2d Dept 2016]; U.S. Bank N.A. v Carey, 137 A.D.3d 894, 896, 28 N.Y.S.3d 68');">28 N.Y.S.3d 68 [2d Dept 2016]; Citimortgage v Espinal, 134 A.D.3d 876, 23 N.Y.S.3d 251');">23 N.Y.S.3d 251 [2d Dept 2016; cf., Wells Fargo Bank, N.A. v Muricy, 135 A.D.3d 725, 24 N.Y.S.3d 137');">24 N.Y.S.3d 137 [2d Dept 2016]). Nor is compliance with RPAPL § 1304 an element of the plaintiff's claim for foreclosure and sale, as the plaintiff need not establish compliance with RPAPL § 1304 on an unopposed application for an order of reference upon the default in answering of the obligor/mortgagor defendants (see CPLR 3215[f]; Flagstar Bank, FSB v Jambelli, 140 A.D.3d 829, supra; U.S. Bank N.A. v Carey, 137 A.D.3d 894, supra; PHH Mtge. Corp. v Celestin, 130 A.D.3d 703, 11 N.Y.S.3d 871');">11 N.Y.S.3d 871 [2d Dept 2016]. Moreover, the plaintiff need not disprove the defense in the first instance on a motion for a summary judgment if compliance has not been pleaded or the defense has not been asserted in an answer or in papers in which an obligor/mortgagor defendant entitled to the RPAPL§ 1304 notice opposes the plaintiff's motion on that ground (see JPMorgan Chase Bank, Nat. Ass'n v Kutch, 142 A.D.3d 536, 36 N.Y.S.3d 235');">36 N.Y.S.3d 235 [2d Dept 2016]; Citimortgage v Espinal, 134 A.D.3d 876, supra; Bank of NY Mellon v Aquino, 131 A.D.3d 1186, 16 N.Y.S.3d 770');">16 N.Y.S.3d 770 [2d Dept 2016]).

         Although a RPAPL § 1304 non-compliance defense is now more readily viewed as one akin to an affirmative defense, it is no ordinary affirmative defense, as it may be raised at any time during the action. Accordingly, this statutory procedural defense, unlike the affirmative defenses of the type set forth in CPLR 3016, 3018 and 3211(a), is not subject to waiver if not raised in a timely served pre-answer motion to dismiss or in an answer timely served (see Flagstar Bank, FSB v Jambelli, 140 A.D.3d 829, supra; U.S. Bank N.A. v Carey, 137 A.D.3d 894, supra; Citimortgage v Espinal, 134 A.D.3d 876, supra; cf., Bank of New York Trust Co., N.A. v Chiejina, 142 A.D.3d 570, 36 N.Y.S.3d 512');">36 N.Y.S.3d 512 [2d Dept 2016]; Deutsche Bank Trust Co. Americas v Cox, 110 A.D.3d 760, 973 N.Y.S.2d 662');">973 N.Y.S.2d 662 [2d Dept 2013]). Nevertheless, the non-jurisdictional nature of the RPAPL ยง 1304 "super" defense does not render it immune from ...


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