| Flagstar Bank, FSB v Pretto |
| 2018 NY Slip Op 08738 [167 AD3d 1314] |
| December 20, 2018 |
| Appellate Division, Third Department |
[*1]
| Flagstar Bank, FSB, Appellant, v Donald Pretto,Respondent, et al., Defendants. |
Druckman Law Group PLLC, Westbury (Richard J. Pelliccio of counsel), for appellant.
McCarthy, J.P. Appeal from an order of the Supreme Court (Zwack, J.), entered January 3,2017 in Ulster County, which denied plaintiff's motion for summary judgment.
In March 2008, defendant Donald Pretto (hereinafter defendant) signed a note and mortgageencumbering real property located in Ulster County. By December 2008, defendant haddefaulted. In April 2009, plaintiff, which had been assigned the mortgage, commenced thisforeclosure action and defendant submitted an answer. In July 2010, plaintiff moved for summaryjudgment and an order appointing a referee to compute the amount due under the note. SupremeCourt apparently held foreclosure conferences from October 2010 through March 2011 andordered that a written status report be filed by September 2011. No status report was filed. InApril 2012, the court denied plaintiff's summary judgment motion and tolled interest on the notebeginning on the date of commencement of the action, based on plaintiff's alleged failure to filean attorney affirmation as required by Administrative Order AO/431/11 of the ChiefAdministrative Judge of the Courts and failure to timely provide a status report. Plaintiffappeals.[FN*]
We reverse. To address concerns and abuses related to residential mortgage foreclosures, theChief Administrative Judge issued Administrative Order AO/548/10 in October 2010, which wassuperseded by Administrative Order AO/431/11 (retroactively effective Nov. 18, 2010)."Administrative Order AO/431/11 requires a plaintiff's attorney in a residential mortgageforeclosure action to file an affirmation indicating that he or she communicated with arepresentative of the plaintiff, and that the representative informed the attorney that he/she/they(a) personally reviewed plaintiff's documents and records relating to this case for factualaccuracy; and (b) confirmed the factual accuracy of the allegations set forth in the [c]omplaintand any supporting affidavits or affirmations filed with the [c]ourt, as well as the accuracy of thenotarizations contained in the supporting documents filed therewith" (Bank of N.Y. Mellon v Izmirligil, 144AD3d 1063, 1065 [2016] [internal quotation marks and citations omitted]; seeAdmin Order of Chief Admin Judge of Cts AO/431/11; Wells Fargo Bank, N.A. v Pabon, 138 AD3d 1217, 1217-1218[2016]; U.S. Bank N.A. v Eaddy,109 AD3d 908, 909 [2013]). "Where an action was pending on the effective date of theAdministrative Order, and no judgment of foreclosure has been entered, the AdministrativeOrder provides that the affirmation must be filed 'at the time of filing either the proposed order ofreference or the proposed judgment of foreclosure' " (U.S. Bank N.A. v Polanco, 126 AD3d 883, 884-885 [2015],quoting Admin Order AO/431/11; seeUS Bank, N.A. v Boyce, 93 AD3d 782, 782 [2012]).
The present foreclosure action was commenced in 2009. The record contains a proposedorder of reference (also granting summary judgment) that plaintiff submitted with its motion inJuly 2010. All of this occurred before Administrative Orders AO/548/10 and AO/431/11 becameeffective. Therefore, pursuant to the express terms of those Administrative Orders, plaintiff wasnot required to file the attorney's affirmation until it filed the proposed judgment of foreclosure(see U.S. Bank N.A. v Polanco, 126 AD3d at 884-885; Wells Fargo Bank, NA v Ambrosov,120 AD3d 1225, 1226 [2014]). Accordingly, Supreme Court erred in denying plaintiff'smotion based on the absence of such an affirmation (see U.S. Bank N.A. v Polanco, 126AD3d at 884-885; US Bank, N.A. v Boyce, 93 AD3d at 782).
Plaintiff made a prima facie showing of entitlement to judgment as a matter of law throughsubmission of the note, mortgage and an affidavit establishing defendant's default (see Flagstar Bank v Bellafiore, 94AD3d 1044, 1045 [2012]). Because defendant did not oppose the motion and his answercontained only conclusory and unsupported defenses, no triable issue of fact existed (seeid.). However, after plaintiff filed its motion, Supreme Court held foreclosure conferencesand ordered submission of a written report advising the court of the status of settlement,refinancing or restructuring of the subject note and mortgage. When more than six months passedafter the due date for that status report without any report being filed, the court denied plaintiff'smotion for summary judgment, based in part on the failure to comply with a court order andtimely file such a report. As it is unclear whether Supreme Court would have denied the motionbased solely on the absence of a written status report (as opposed to the alleged lack ofcompliance with Administrative Order AO/431/11), and the current record contains no supportfor the court's statements regarding its reasons for tolling interest on the note, we remit for furtherconsideration of the motion.
Egan Jr., Lynch, Devine and Clark, JJ., concur. Ordered that the order is reversed, on the law,without costs, and matter remitted to the Supreme Court for further proceedings not inconsistentwith this Court's decision.
Footnote *:Although Supreme Court signedthe order in April 2012, it was apparently lost and plaintiff obtained the court's signature on aduplicate original order in December 2016, which was entered in January 2017.