wells fargo vs martha l. melga judge mayer ny

8/14/2019 Wells Fargo vs Martha L. Melga Judge Mayer NY

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INDEX NO. 37619-2007

SIJE'REME COURT - STATE OF N EW YORKI.A.S. PART 17 - SUFFOLK COUNTY

l l o i i PE'I.l


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Wells bw g o Barrk v Melgar1tde.v NO. 3 7619-2007Prrge 2

requircmeii s ol'C1~1,IK93215(f), inclu ding but not limited to a prop er affidavit of facts by the plaintiff [orby plaintiff- s agent, provided there is proper proof in evidentiary form of such agency relationship], or aclJmpIaint Lerified by the plaintiff an d not m erely by an attorney o r non-party, such as a servicer, wh o hasn o perw nal kno wledge; (2) failure to submit proper evidentiary proof, including an affidavit from onewith persol-a1 hnowledge, of proper assignm ent(s) of the subject mortg age, sufficient to establish theplaintil'f'c ( wnership of the note and mortg age; (3) failure to subm it evidentiary proof, including ana1torney.s affirmation, of compliance with the form, type size, type face, paper color and contentrequiremeiii s for loreclosure notices, pursuant to W A P L 5 1303, which applies to actions commenced onor alter Ecbruaq 1 , 2007 (as amended A ugust 5, 2008), as well as an affidavit of proper service of suchnotice ( 3 ) failure to :submit evidentiary proof, in clud ing an attorney's affirma tion, of compliance w ith theform. content, type s u e , and type face requirements of W A P L $1320 regarding special summonses inresidential t i>reclo:;urr:actions, and evidentiary proof of proper service of said special summ ons; ( 5 ) failureto submit e\ identiary proof, including an affidavit from one with pers onal know ledge, of compliance w ithtlic requirements of CPLR 53 2 15(g)(3) regarding the additional notice by mail of summonses infor wlo sur rt xtio iis. and proof of proper service of said additional ma iling; and it is further

ORDERED that, inasmu ch this action was initiated prior to S eptemb er 1 ,2 0 0 8 and no final orderof judgment has been issued, and inasmuch as the plaintiff has identified the loan in foreclosure as a"cubprimc home loan'' as defined in RP APL $1304 , pursuant to 2008 N Y Law s, Ch. 472, Section 3-a, thedefendant lionieovmer is entitled to a voluntary settlement conference, which is hereby scheduled forDecember 116,2009 a t 9:30 am before the undersigned , located at Room A -259, Part 17, One Court Street,Rikerhead. VY 1(>01 63 1-852- 17601, for the purpose of holding settlemen t discussions pertaining to therights and cibligations of the parties under the mortgage loan documents, including but not limited to,determining whether the parties can reach a mutually ag reeable resolution to help the defen dan t avoid losinghis or her hcime. and evaluating the potential for a resolution in which pay men t schedules or amou nts maybe ~fio dificd r other workout op tions may be agreed to, and for whateve r other purposes the Court deemsappropriate a nd i t is further

ORDERED that at any conference held pursuant to 2008 N Y Laws, Ch. 472, Section 3-a, theplaintii'f' s h ~ l l ppt'ar in person or by counsel, and if appearing by counsel, such counsel shall be fullymthorized t o dispclse of the case, and all future applications m ust state in one of th e first paragraphs of th eaitorncy'k af irm ati on whether or not a Section 3-a conference has been held; and it is further

ORDERED that the piairitiff shall promptly serve a copy of this Order upon the homeownerdelel idant( ) at all h o w n address es via certified mail (return receipt requested), and by first class mail, andupon al l othcr defendan ts via first class mail, and shall provide proof o f suc h service to the Court at the timeof any schctluled Conference, and annex a copy of this Order and the affidavit(s) of service of same asexhihits to a n y niotion resubmitted pursuant to this Order; and it is further

ORDERED that with regard to any scheduled court conferences or future applications by theplaintiif . if the Court determ ines that such c onference s have been attended, or su ch applications hav e beensubmitted. ui ithout proper regard for the app licab le statutory and case law, or without regard for the requiredproofs delinxited herein, the C ourt may, in its discretion, dismiss this case or den y such applications withprejudice c i ~ i d r impose s anctions pursuant to 22 NYCRR 5 130-1, and may deny th ose costs and attorneysfees atrenda i t m i t h the filing of such future applications.


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btells I.;rrgoBank v Melgarl t ~ d t ? ~0. 3761 9-2007P q e r

I n tliis foreclosure action , the plaintiff filed a summons and com plainton December 4 ,2007, w hichessentiaIl> J l e g e s that the defentiant-homeowner(s), Martha L. Melgar and Pedro Reyes, defaulted inpaymentsu th r e p r d to a mortgage, dated May 5,2 005 , in the principal amou nt of $258,400.00, and givenby th e deteildnnt-homeowner(s) for the premises located at 68 Cran berry Street, Central Islip, New Y ork1 I7 2 2 Tile original lende r, WM C Mo rtgage Co rp., apparently h ad the mo rtgage assigned to entities othert h a n this p l ~ntiff: however, there is no proof of assignments ann exed to the mov ing papers and no proofthat this pla ntiff is the pro per plaintiff. The plaintiff n ow s eeks a default order of reference and requestsamendmeni of the caption to substitute tenant(s) in the place and stead of the Doell defendants. For ther e a s o m set i r t h hereiin, the pl ai nt if fs application is denied.

In s lqqx)r t of this application, the plaintiff submits an affidavit from Valerie Clark, Sr. ViceIrvsident 0 1 Saxon M ortgage Services as the alleged attorney-in-fact for the plaintiff, and a non-party tothis action: iowevcr , there is no su fficient evidentiary proof that suc h person or entity has authority to acton behall 0 1 the lender-mortgage holder.

I n rc levant part, CPLR $ 3 215(a) states: When a d efend ant has failed to appear, plead or proceedt u trial ofai- action re,ached and called for trial, or when the court o rders a d ismissal for any other neglectt o proceed. the plaintiff may seek a default judgm ent against him. With regard to proof necessary on amotion fo r cefault i n general, C P L R 32 15(f) states, in relevant part, that [o ln any application forjud gm entby defaul t , the applicant shall file proof of service of the su mm ons and the complaint . . . and proof of thefacts constiluting the claim, the default and the am ount due by affidavit ma de by the party . . . Where averified complaint has been serveld, i t may be used as the affidavit o f the facts constituting the claim a ndh e amount due: in such case, an affidavit as to the default shall be m ade by the party or the partys attorney.Proofotiiiailiyg the notice required by [CPLR 32 15(g)], wh ere a pplicable, shall also be filed.

With regard to a judg me nt of foreclosure, an order of reference is simply a preliminary step towa rdsobtaining a default judgme nt ( H o m eSav. o j x m . , F A . v . Gkanios, 230 AD2d 7 70 ,646 NYS2d 530 [2d Depi1996 ) Without an affid avit by the plaintiff regarding the facts constituting the claim a nd amou nts due o r,11-1 th e alteri-ative. in affidavit by the plaintiff that its agent has th e autho rity to set forth su ch facts andm o u i i t s d u e , the sfatutor y eq uirem ents are not satisfied. In the absence of either a proper affidavit by theparty or 3 ccymplairt verified by the p art y, not merely by an attorney wi thno personal knowledge, the entryof judgment by default is erroneous (see , Peniston v Epstein, 10 AD 3d 450, 780 NYS2d 919 [2d Dept2004 1 : Gi.tringu \ * Wrighl, 74 A D2d 549, 7 13 NYS2d 182 [2d Dept 20001;Finnegan v. Sheahan, 2 694D2t l 401 . 7 G NYS2d 734 [2d Dept 20001;Hazim v. Winter, 234 AD 2d 42 2, 651 NYS2d 149 [2d Dep11 996 )

In support ofthe mo tion, the mov ant fails to submit the required affidavit made a party. Further.u i t h n u t a pioperly ofered copy of a pow er of attorney, the Co urt is unab le to ascertain whether or not aplaintitTs s:rvicin;A agent. for exam ple, may properly act on b ehalf o f the plaintiff to set forth the factsconstituting the claim, the default an d the amounts due, as required by statute. In the absence of eitheraverijied coiilplalnt x proper affidavit by the party or its authorized age nt, the entry ofju dgm ent by defauliI S erroneouj ( \ee iLlullins1.DiLorenzo, 199 AD2d 2 18; 606 NYS2d 161 [1 t Dept 19931;Hazim v. Winter.234 1\1)2d - 2 2 . 6 5 1 NYS2d 149 [2d Dept 19961;Finnegan v. Sheahan, 2 6 9 AD2 d 4 9 1 ,7 0 3 NYS 2 d 734Il!d I k p t r OOO]) . Ilierefore, the applicatio n for an order of referen ce is denied .

\nitli regard to a mortgage assignm ent which is executed after the com mencem ent of an action and


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Uells Furgo B m k v MelgarIndex !Vo. 3 7619-2007Page 4

which statt s that i t is effective as of a date preceding the comm encement date, s uch assignmen t is validwherc t he c elaulting defendant appears but fails to interpose an answer o r file a timely pre-answer motionthat assert4 the defense of standing, thereby waiving such defense pursuant to CP LR 321 1 e] (see, HSBC13crnk 034 /hmrnoi?d , 9AD3d 679 , 875 NYS 2d 49 0 1445 [2d Dept 20091). How ever, it remains settledthat foreclc sure ola mo rtgage m ay not be brought by o ne who has no title to it and absen t transfer of thedebt. the assignmcnt of the mortgage is a nullity (Kluge v Fugazy, 145 AD2d 53 7,5 36 NYS2d 92 [2d Dept1988 1 . I 11-tliermore.a plaintiff has no foun dation in law o r fact to foreclose upon a mortgage in which theplaintiflha~ o legal or equitable interest (Kutz v East-Ville Realty Co., 249 AD 2d 243, 672 NYS2d 308[ 1 Ilept 1098 1 ) . I f an assignm ent is in writing, the execution d ate is generally controlling and a writtendssignment claiming an earlier effective date is deficient, unless it is accompanied by proof that the physicaldelivci? of the notc and m ortgag e was, in fact, previo usly effectuated (see ,Bankers Trust Co. v Hoovis, 26 3iDZd 93 7 (338.614NYS2d 245 [1999]). Pl ai nt if fs failure to submit proper proof, including an affidavitfrom one with per:,onal know ledge, that the plaintiff is the holder of the note and m ortgage, requires denial01 the plaintiffs application for an order of reference.

I-o r Iinxc1cmu-e actions com menced on or after February 1,20 07, RP APL 5 1303(1)require s that thetoreclosin g party i n a mortgage foreclosure action, which involves residential real property consisting ofouner-occupied oqe-to-four-family dwellings shall provide notice to the m ortgagor in accordance with theprovi\ions of thi. section with regard to information and assistance about the foreclosure process.Iursumt to KPAPL 1303(2), the notice required by this section shall be delivered w ith the sum mons andcomplaint to commence a foreclosure action . . . [and] shall be in bold, fourteen-point type and shall beprinted o n I:olorecl paper th at is othe r than the colo r of the su mm ons and com plain t, and the title of thenotice shall be in bold. tw enty-point type [and] shall be o n its own page. The specific statutorily requiredlanguage a f t h e nctice is set forth in RPAPL 1303(3), which was amended on A ugust 5,2 00 8 to requireadditional language fbr actions com menced o n or after Septem ber 1, 2008.I hc plaintiffs sum mo ns and complaint and notice of pendency were filed with the County Clerk

o n er after- Febru arj 1, 20 07 , thereby requiring complianc e with the notice provisions set forth in RPAPL8 1-30; Plaintiff has failed to subm it proper evidentiary proof, including an attorney s affirmation, uponwhich the t ourt may co nclude that the requirements of RPA PL 5 I303(2 ) have been satisfied, specificallyregarding the content. type size and paper color of the notice. Merely annexin g a copy of a purportedlycompliant notice does not provide a sufficient basis upon which the Court m ay conc lude a s a matter of lawthat the plaintiff has complied w ith the substantive and procedural requirements of the statute. Since theplaintiff ha: failed to establish compliance with the notice requirements of RP AP L $1303 , its applicationf ix an order o f reference must be denied.

I ( pro \ idt additional protection to homeowners in foreclosure, the legislature enacted RPAPL,1320 to I equire a mortgagee to provide additional notice to the mortgagor-hom eowner that a foreclosureaciion has t)een com men ced. I n this regard, effective August 1, 2007 for foreclos ure actions involvingrcs~clentialproperty containing not more than three units, RPAPL 5 1320 imposes a special summonsrequiremenl. in adJitiion to the usual summ ons requirements. The additional notice requirement, whichniust be i n I-oldfacc type. provides an explicit warning to d efendant-mortgagors, that they are in danger oflosing their iom e and having a defaultjud gme nt entered against them ifth ey fail to respond to the summo nsbv s e n ing 611 an su er upon the mortgagee-plaintiff s attorney and by filing an answe r with the court. Thenotice also in fh rim defendant-homeow ners that sending a payment to the mortgag e comp any will not stoptlic foieclostire ac t ion, and adv ises them to speak to an attorney or go to the court for further information


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Wells k argo Bank v MrlgarIndex .No. 3 7619-2007Puge i

on ho\\ , o answer the sum mo ns. The exact form and language of the required notice are specified in thesiaiuie P1aintlft.s failure to subm it an attorneys aff irm atio n of compliance with the special summonsrequiremen1 s o f RPAPL 5 1320, and proof of proper service of the special sum mons , requires denial of theplaintiff%\ pplication fo r an order of reference.

\x, i t t i regard to a motion for a defau ltjudg men t sought against an individual in an action based uponnonpa) mcnt ofa contractual obligation, CPLR $3215(g)(3)(i) requires tha t an affidavit shall be submittedthat additional notice has been given by or on behalf of the plaintiff at least twenty da ys before the entryo f such judgment. by mailing a copy of the sum mons by first-class mail to th e defend ant at his place ofresidence 11- an eni!elope bearing the legend personal and confidential an d not indicating on the outsideof the em elope that the comm unication is from an attorney or concerns an alleged debt. In the event suchmailing is rt.turned as und eliver able by the post o ffice before the entry of a default jud gm ent , or if the placeo f r e s i d e i u of th e defendant is unknown, a copy of the summ ons shall then be mailed in the same mannerto the defendant at the defendant:; place of em ploy men t if known; if neither the place o f residence nor theplace ofe rnp loy nim t oft he defendan t is known, then the mailing shall be to the defendant at his last knownresidence Pursuant to CPLR 32 1 5 (g)(3)(iii), these additional notice requirements are applicable toresidential r ior tgage foreclosure that were comm enced on or after August 1 2007. Since the moving papersfail 1o establish comp liance with the additional mailing requirements of CPL R $3215(g), the applicationfor an ords i olrefvrence must be denied. 0 l h i . constitutes the Decision and Order of the Court.Ilated tober 5 , 2009 PETER H. MAYER, J.S.@

wells fargo vs martha l. melga judge mayer ny

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