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BAC Home Loans Servicing, LP v. Aprile

Supreme Court, Suffolk County

August 29, 2018

BAC Home Loans Servicing, LP, F/K/A COUNTRYWIDE HOME LOANS SERVICING LP, 400 COUNTRYWIDE WAY, SIMI VALLEY, CA 93065, Plaintiff,
v.
William Aprile, CAPITAL ONE BANK, CHASE BANK USA NA, CITIBANK SOUTH DAKOTA, N.A., GE MONEY BANK, TOWN OF ISLIP SUPERVISOR, JOHN DOE (SAID NAME BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS OF PREMISES BEING FORECLOSED HEREIN, AND ANY PARTIES, CORPORATIONS OR ENTITIES, IF ANY, HAVING OR CLAIMING AN INTEREST OR LIEN UPON THE MORTGAGE PREMISES.), Defendant(s).

          RAS BORISKIN, LLC Attorneys for Plaintiff

          William Aprile Pro Se Defendant

          Hon. Robert F. Quinlan, J.S.C.

         Upon the following papers numbered 1 to 82 read on this motion for default and order of reference: Notice of Motion/ Order to Show Cause and supporting papers 1-34; Affidavit in Opposition and supporting papers 35-82; it is, ORDERED that this motion by plaintiff BAC Home Loans Servicing, LP F/K/A Countrywide Home Loans Servicing LP for an order of reference appointing a referee to compute pursuant to RPAPL § 1321, fixing the defaults as against the non-appearing, non-answering defendants, for leave to amend the caption to add the name of the tenants in place of the "John Doe" defendants and to amend the caption to substitute Nationstar Mortgage LLC D/B/A Mr. Cooper is denied; with leave to renew within 90 days in compliance with the terms of this decision.

         This is an action to foreclose a mortgage on a premises known as 36 Willow Street, Central Islip, Suffolk County, New York ("the property") given by defendant-mortgagor William Aprile ("defendant") on August 5, 2003 to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for GreenPoint Mortgage Funding, Inc. ("GreenPoint") to secure a note in the amount of $107, 200.00 executed the same day to GreenPoint by defendant. The mortgage was filed with the Suffolk County Clerk ("Clerk") on August 27, 2003.

         Through a series of transfers/assignments plaintiff BAC Home Loans Servicing, LP F/K/A Countrywide Home Loans Servicing LP ("plaintiff") allegedly came into possession of the note and mortgage. Upon defendant allegedly failing to make the payment due December 1, 2009, plaintiff commenced this action by filing a summons, complaint and notice of pendency with the Clerk on September 3, 2010. On September 16, 2010, plaintiff's process server allegedly served copies of the summons, complaint, notice of pendency and notice required by RPAPL § 1303 upon defendant pursuant to CPLR 308 (2) by serving a person of suitable age and discretion at 26 Wyndham Road, Brentwood, New York, purportedly defendant's place of employment; the affidavit provides no proof of mailing of the papers served to defendant. On September 28, 2010, plaintiff's process server also allegedly served those same documents on defendant pursuant to CPLR 308 (4) by affixing copies to defendant's purported dwelling place at 909 Ocean Avenue, Bohemia, New York and mailing the same to defendant at that address on October 4, 2010. Defendant never filed an answer or appearance in the action.

         Plaintiff filed a Request for Judicial Intervention ("RJI") with the Clerk on March 31, 2015, and a first conference in the court's dedicated Foreclosure Settlement Conference Part ("FSCP") was scheduled for May 4, 2015. The court's computer records indicate that this conference was "Stayed," without providing the basis for the stay, but the next entry in those records, dated March 4, 2016, states "Remove Stay." The records show that another conference in FSCP was held on April 15, 2016 and upon defendant's failure to appear, the case was released from the part and referred to an IAS Part. The action was originally assigned to another justice of this court, but was transferred to this part by AO 23-18, signed by District Administrative Judge C. Randall Hinrichs on March 29, 2018. The court scheduled a conference on May 17, 2018 at which only plaintiff's counsel appeared. Subsequently, on May 24, 2018, plaintiff submitted this "combined motion" for default and judgement of foreclosure and sale pursuant to the template promulgated by AO/356/17 of the Chief Administrative of the Courts, effective January 1, 2018.

         In opposition to the motion, defendant, acting as a self represented person, submitted opposition which attacked plaintiff's claim of service upon him and contested jurisdiction, raised issues concerning plaintiff's standing to bring the action and its failure to comply with CPLR § 3215 (c), and asked the court to dismiss that action based upon these alleged deficiencies. Defendant did not move or cross-move either for dismissal, to extend his time to answer or to vacate his default in answering.

         The court notes that any request by defendant in his opposition seeking dismissal of the action is procedurally defective as it is not accompanied by a notice of cross motion (CPLR 2215). In the absence of a notice of cross motion, a defendant is not entitled to obtain any affirmative relief (see, Lee v Colley Group McMontebello, LLC, 90 A.D.3d 1000 [2d Dept 2011]; DeLorenzo v Gabbino Pizza Corp., 83 A.D.3d 992');">83 A.D.3d 992 [2d Dept 2011]). Even if defendant had moved for the relief he requested, a party may not move for affirmative relief of a non-jurisdictional nature, such as dismissal of a complaint, without first moving to vacate his default (see Deutsche Bank Trust Co., Am. v. Stathaklis, 90 A.D.3d 694');">90 A.D.3d 694 [2d Dept 2011] ; U.S. Bank Natl. Assn. v Gonzalez, 99 A.D.3d 694');">99 A.D.3d 694 [2d Dept 2012]; Southstar III, LLC v Ettienne, 120 A.D.3d 1332');">120 A.D.3d 1332 [2d Dept 2014] ; Nationstar Mortgage, LLC v Avella, 142 A.D.3d 594 [2d Dept 2016] ; HSBC Bank, N.A. v Clayton, 146 A.D.3d 942');">146 A.D.3d 942 [2d Dept 2017] ; Nationstar Mtg., LLC v Kamil, 155 A.D.3d 968');">155 A.D.3d 968 [2d Dept 2017]) . Therefore, the court must deny defendant's requests for dismissal made in the "Wherefore" clause of his opposition, as well as his alternative requests to set a trial on the issue of plaintiff's standing and to file an answer, without prejudice.

         Although defendant may not have cross-moved for dismissal of the action pursuant to CPLR § 3215 (c), defendant raised the issue in his opposition. CPLR § 3215 (c) was enacted to dispose of abandoned cases and provides that if a plaintiff fails to move upon a default within one year, the court shall dismiss the action as abandoned "unless sufficient cause is shown why the complaint should not be dismissed." This saving provision has been found applicable when the plaintiff's conduct has shown that there was no intent to abandon the complaint (see LNV Corp v Forbes, 122 A.D.3d 805 [2d Dept 2014]; US Bank National Assoc v Wolnerman, 135 A.D.3d 850');">135 A.D.3d 850 [2d Dept 2016]). Where the evidence shows merit to plaintiff's claim and sufficient cause for any alleged delay the court should not dismiss the action (see Bank of New York v Gray, 228 A.D.2d 399');">228 A.D.2d 399 [2d Dept 1996]; LNV Corp. v Forbes, 122 A.D.3d 805');">122 A.D.3d 805');">122 A.D.3d 805');">122 A.D.3d 805 [2d Dept 2014]; Golden Eagle Capital Corp v Paramount Mtg Corp, 143 A.D.3d 438');">143 A.D.3d 438 [2d Dept 2016]). The determination as to what is a reasonable excuse is committed to the sound discretion of the motion court (see Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138 A.D.3d 793 [2d Dept 2016]; Golden Eagle Capital Corp. v Paramount Mgt. Corp., supra ; Bank of New York Mellon v Adago, 155 A.D.3d 594');">155 A.D.3d 594 [2d Dept 2017]).

         Here, plaintiff's submissions fail to address the issue of CPLR § 3215 (c) and provide a reasonable excuse for the extensive delay in moving on defendant's default. The court did not receive any reply by plaintiff to defendant's opposition. Despite plaintiff's failure to address the issue, because the court's records, as indicated above, show that plaintiff was "stayed" from acting on the complaint, and as neither party has referred to the stay in their submissions or explained the reason for the stay, the court will not at this time sua sponte dismiss the action pursuant to CPLR § 3215 (c). The court recognizes that a marking of a "stay" in the court's computer records most often reflects a bankruptcy filing or some other court order, which would prevent plaintiff acting upon the case. As the court's records only recognized this "stay" after the filing of plaintiff's RJI in order to comply with the conference requirement of CPLR 3408, the court is unaware of the initial effective date of the "stay."

         Plaintiff's motion is denied with leave to renew, upon proper papers addressing the issue of compliance with the requirements of CPLR § 3215 (c), within 90 days of the date of this order.

         The action will appear on the court's conference calendar on November 28, 2018 at 9:30 AM, for the court to ...


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