| U.S. Bank N.A. v Carey |
| 2016 NY Slip Op 01660 [137 AD3d 894] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee, Successorin Interest to Bank of America, National Association, as Trustee as Successor by Mergerto LaSalle Bank NA, as Trustee for Washington Mutual Mortgage Pass-ThroughCertificates WMALT Series 2007-OC1TRUST, Appellant, v Robert Carey, AlsoKnown as Robert J. Carey, et al., Respondents, et al.,Defendants. |
Stiene & Associates, P.C., Huntington, NY (Charles W. Marino of counsel), forappellant.
In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of theSupreme Court, Nassau County (Adams, J.), entered August 11, 2014, which denied itsmotion, inter alia, for an order of reference and for leave to enter a default judgmentagainst the defendants Robert Carey, also known as Robert J. Carey, and Marie C. Carey,also known as Marie Carey, on the ground that the plaintiff failed to prove compliancewith RPAPL 1304, with leave to renew within 60 days, and (2) an order of the samecourt, entered March 19, 2015, which denied, as untimely, its motion for leave to renewits prior motion and, sua sponte, dismissed the complaint without prejudice.
Ordered that the order entered August 11, 2014 is reversed, on the law, the orderentered March 19, 2015 is vacated, the complaint is reinstated, and the plaintiff's motion,inter alia, for an order of reference and for leave to enter a default judgment against thedefendants Robert Carey, also known as Robert J. Carey, and Marie C. Carey, alsoknown as Marie Carey, is granted; and it is further,
Ordered that the appeal from the order entered March 19, 2015 is dismissed asacademic, in light of our determination on the appeal from the order entered August 11,2014; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In January 2007, the defendants Robert Carey, also known as Robert J. Carey, andMarie C. Carey, also known as Marie Carey (hereinafter together the borrowers),executed a note in the principal sum of $870,000 and a mortgage on their residence inGlen Cove, Nassau County. The instant foreclosure action was commenced in February2013 by filing the summons and complaint. Annexed to the complaint were, inter alia, acopy of the note for $870,000 and the mortgage, and copies of notices pursuant toRPAPL 1304 of the borrowers' default.
The borrowers did not appear or answer the complaint. By notice of motion datedApril 10, 2014, the plaintiff moved, inter alia, for an order of reference and for leave toenter a default judgment against them. In support of the motion, the plaintiff submittedthe affidavit of Shelbie Hale, document control officer of Select Portfolio Servicing, Inc.,the servicer of the loan. [*2]Hale stated that, based uponthe business records of Select Portfolio Servicing, Inc., and the prior loan servicer JPMorgan Chase Bank, N.A., Hale's review of those records, and from Hale's "ownpersonal knowledge of how [records] are kept and maintained," the borrowers defaultedon payment of the loan, payment of the loan balance was accelerated, and "a ninety (90)day pre-foreclosure notice was sent to the Borrowers on October 22, 2012. . . by registered or certified and first class mail." Copies of the notices wereannexed to the motion papers. The borrowers did not oppose the motion.
In the order appealed from entered August 11, 2014, the motion was denied, withleave to renew within 60 days, on the ground that the plaintiff's allegations of compliancewith RPAPL 1304 were "conclusory in nature and have failed to establish suchcompliance or provide a reason why such compliance was not required." The SupremeCourt further stated that if a motion for leave to renew were not made within 60 days, theaction would be deemed abandoned pursuant to CPLR 3215 (c).
Thereafter, the plaintiff moved for leave to renew, stating that the defense of aviolation of RPAPL 1304 was waived by the borrower's failure to appear or answer thecomplaint. In the order appealed from entered March 19, 2015, the Supreme Courtdenied the motion as untimely on the ground that the "sixty (60) day extension heretoforeafforded was more than sufficient," and sua sponte dismissed the complaint withoutprejudice.
Where a loan is a home loan for the borrower's principal residence (seeRPAPL 1304 [5] [b]), the mortgage creditor contemplating a mortgage foreclosure actionis required, pursuant to RPAPL 1304, to serve the borrower with notice of his or herdefault in a specified form by registered or certified mail and first class mail at least 90days prior to the commencement of the action (see RPAPL 1304 [2]). Failure tocomply with RPAPL 1304 is not jurisdictional (see Pritchard v Curtis, 101 AD3d 1502, 1505 [2012]).Rather, it is a defense which may be raised at any time (see Citimortgage, Inc. vEspinal, 134 AD3d 876 [2015]; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 105[2011]; First Natl. Bank ofChicago v Silver, 73 AD3d 162 [2010]). However, in this case, that defense hasnever been raised by the borrowers. Therefore, the plaintiff was not required to disprovethat defense (see Citimortgage,Inc. v Espinal, 134 AD3d 876 [2015]; PHH Mtge. Corp. v Celestin, 130 AD3d 703 [2015]; TD Bank, N.A. v Spector, 114AD3d 933 [2014]).
Accordingly, the plaintiff's motion, inter alia, for an order of reference and for leaveto enter a default judgment should have been granted, and the question of whether theplaintiff's motion for leave to renew that motion was properly denied is renderedacademic (see 5000, Inc. vHudson One, Inc., 130 AD3d 678 [2015]). Eng, P.J., Rivera, Hall andHinds-Radix, JJ., concur.