Wells Fargo Bank, N.A. v. Vazquez

OPINION OF THE COURT

It is ordered that this motion by plaintiff Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2007-6, Asset Backed Certificates, Series 2007-6, for an order pursuant to RPAPL 1351 granting a judgment of foreclosure and approving plaintiffs request for attorney’s fees and associated relief is granted; and it is further ordered that plaintiff shall serve the notice of the foreclosure sale and any adjournments upon the Supreme Court Calendar Clerk; and it is further ordered that the referee complete and file the Suffolk County Foreclosure Action Surplus Monies form with the Supreme Court Calendar Clerk and the Suffolk County Clerk within 30 days of the foreclosure sale; and it is further ordered that the referee submit proof of deposit of any surplus monies with the County Comptroller with the Supreme Court Calendar Clerk and the Suffolk County Clerk within 30 days of the closing of title; and it is further ordered that the referee may make an application for additional fees, by letter to the court, as a result of any adjournments of the sale, providing proof of compliance with 22 NYCRR part 36 including the filing of USC forms 872 and 875; and it is further ordered that pursuant to RPAPL 1351 (1) the mortgaged premises are to be sold under the direction of the referee within 90 days of the date of this order.

This is an action to foreclose a mortgage on residential real property located at 107 McKinley Street, Brentwood, Suffolk County, New York given by defendants Christian and Rosita Vazquez (defendants) on March 27, 2007 to Option One Mortgage Corporation to secure a note given by defendant Christian Vazquez to Option One on the same day. Upon defendants’ default in payment under the terms of the mortgage and note, plaintiff Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2007-6, Asset Backed Certifi

Plaintiff’s original counsel (Steven J. Baum, P.C.) appears to have taken no further action, and eventually the action was “purged” from the court’s inventory by the clerk’s office on December 30, 2014 for inactivity. In the interim, it appears that plaintiff’s present counsel became involved, sent a copy of the order of reference and documents in support of the referee’s report to the referee, who issued her report on October 31, 2014 (see plaintiff’s exhibit A), but still waited until June 2016 to file this motion. Defendants, without moving to vacate their default in answering, oppose the motion, as does defendant judgment creditor Debra Falsone.

As Justice MacKenzie is no longer available to hear foreclosure actions, her foreclosure inventory (Part 22) was transferred by administrative order of District Administrative Judge C. Randall Hinrichs to Part 27 in June of 2016. After submission on August 17, 2016, the motion was assigned to this Part and scheduled for oral argument on March 7, 2017. Upon counsel agreeing to adjourn the oral argument, the court removed it from its oral argument calendar and instead determined to prepare a written decision.

In their opposition, defendants acknowledge their default in answering, but claim that as plaintiff failed to move for an order pursuant to CPLR 3215 for over a year after their default, and is now moving more than eight years after their default, plaintiff’s motion should be denied and the complaint dismissed pursuant to the requirements of CPLR 3215 (c). Defendants misinterpret the law and the facts as they apply to this case. The facts show that plaintiff timely moved for an order of reference upon defendants’ default in answering by moving pursuant to RPAPL 1321 for an order of reference on February 5, 2008.

Even if that motion had later been withdrawn, that act has been held to be enough to comply with the provisions of CPLR

Defendants also misinterpret the effect of the fact that the clerk’s office marked the case “off the calendar” for inactivity in 2014. This was an administrative act of the clerk’s office, not an order of Justice MacKenzie dismissing the action pursuant to CPLR 3215 (c) as defendants argue. The “eCourts” site shows a “purge” in “Office Part,” not an order of dismissal by a justice of this court. Further, the court’s internal computer “Case Management System” shows a comment “8/5/16 CASE RESTORED. PURGED IN ERROR.”

Defendants’ attempts to apply the requirements for restoration of a case marked off a trial calendar for failure to prosecute pursuant to CPLR 3404 to this “purge” are fundamentally flawed. As there was no note of issue filed in this case, nor would one have ever been required because of the granting of the default, CPLR 3404 is inapplicable. Case law, as well as John R. Higgitt and David D. Siegel, Practice Commentaries

But defendants’ confusion is mirrored by plaintiff’s argument in support of the motion that the court “vacate the order of dismissal” pursuant to CPLR 2221, as the “dismissal” was improper under CPLR 3216, and in any event, “CPLR 3216 is an ‘extremely forgiving’ statute” (see Baczkowski v Collins Constr. Co., 89 NY2d 499 , 503 [1997]). A reading of the opinion in Baczkowski would show plaintiff that there a 90 day notice to recommence prosecution of the action and file a note of issue had been filed. As there was never a similar notice sent here by the court, pursuant to the strict structure set forth by CPLR 3216 there could be no dismissal under that section (see BankUnited v Kheyfets, 150 AD3d 948 [2d Dept 2017]). Again, as with defendants’ argument under CPLR 3404, the essential argument of a requirement of filing a note of issue in this already determined default is missing as to plaintiff’s worry concerning CPLR 3216. With no CPLR 3216 dismissal, plaintiff need not establish the elements required by that statute to “restore” its case.

Further, the Second Department has made it clear that in cases where issue has never been joined, even if a CPLR 3216 notice was sent by the court and a conditional order of dismissal issued, the court was without power to dismiss (see Deutsche Bank Natl. Trust Co. v Hall, 149 AD3d 803 [2d Dept 2017]; New Century Mtge. Corp. v Davis, 153 AD3d 927 [2d Dept 2017]; Deutsche Bank Natl. Trust Co. v Augustin, 155 AD3d 823 [2d Dept 2017]).

Finally, as there was in fact no dismissal of the case pursuant to CPLR 3215 (c), 3216, 3404 or by any order of the court, as the clerk’s notes indicate, it had been “purged in error,” there was no need to “vacate” or “restore” the action. If the case had been transferred to this dedicated Foreclosure Part along

The arguments made by defendants concerning issues of standing and the sufficiency of plaintiff’s proof have been either waived by their failure to answer, or their failure to move to vacate their default (see Chase Home Fin., LLC v Garcia, 140 AD3d 820 [2d Dept 2016]; Nationstar Mtge., LLC v Avella, 142 AD3d 594 [2d Dept 2016]; Southstar III, LLC v Enttienne, 120 AD3d 1332 [2d Dept 2014]; U.S. Bank N.A. v Gonzalez, 99 AD3d 694 [2d Dept 2012]; Deutsche Bank Trust Co., Ams. v Stathakis, 90 AD3d 983 [2d Dept 2011]; Holubar v Holubar, 89 AD3d 802 [2d Dept 2011]), or are without merit, as with their argument that the report of the referee (exhibit A to plaintiff’s motion) was not filed.

The court recognizes the extraordinary delay by plaintiff in bringing this application for a judgment of foreclosure and sale and does not condone it, and although plaintiff makes some attempt to explain it by blaming the Baum office’s inaction in 2008, the court feels this is barely minimally sufficient, especially in light of the fact that the report of the referee seems to have been in plaintiff’s possession since October 2014, and there is no clear statement as to when plaintiff’s present counsel became involved (although the “blue back” on the referee’s report indicates present counsel were involved at that time). But as the order of reference upon default was granted, defendants have not moved to vacate their default in answering or argued that they were never in default under the note and mortgage, nor shown any prejudice, while they appear to be in possession of the property since their default in payment, the court moves forward and grants plaintiff’s motion for a judgment of foreclosure and sale.

The opposition submitted by defendant creditor Falsone basically sets forth that as a junior lienholder to plaintiff, she received restitution for her damages from Nassau County Consumer Affairs, which thereafter should assume her lien. In essence, she asks that Nassau County Consumer Affairs be substituted in her place as a defendant creditor. Without their agreement to do so, and without actual proof in admissible form to support the claim, the court cannot grant the applica

The proposed order submitted by plaintiff, as modified by the court, is signed contemporaneously with the signing of this order.