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FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015
NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023
New York Supreme Court
Suffolk County
WILMINGTON SAVINGS FUND SOCIETY, FSB,
DOING BUSINESS AS CHRISTIANA TRUST, NOT IN
ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE FOR BCAT 2014-6TT,
Plaintiff,
-against-
RICH BERNHEIM,
Defendant.
MEMORANDUM OF LAW
THE RANALLI LAW GROUP, PLLC
By: Ernest E. Ranalli, Esq.
Attorneys for Defendant
742 Veterans Memorial Highway
Hauppauge, New York 11788
(631)979-1461
Email: ranalliforeclosuredefense@gmail.com
Suffolk County Clerk's Index No. 608188/2015
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TABLEOFCONTENTS
Page
TABLE OF CONTENTS ..................................................... i
TABLE OF AUTHORITIES-CASES .................................... iii
TABLE OF AUTHORITIES-STATUTES ....................................iv
PRELIMINARY STATEMENT .............................................. 1
QUESTION PRESENTED ................................................... 2
STATEMENT OF FACTS ....................................................3
LEGAL ARGUMENTS ............................................................4
POINT ONE
PLAINTIFF FAILED TO COMPLY WITH THE
TERMS OF THE JUDGMENT REQUIRING THE
SALE OCCUR WITHIN NINETY DAYS OF THE
DATE OF THE JUDGMENT AS REQUIRED
BY RPAPL §1351 ............ 4
POINT TWO
DEFENDANT NEED NOT SHOW THAT HE IS
PREJUDICED BY PLAINTIFF'S FAILURE TO
COMPLY WITH RPAPL §1351 .............7
POINT THREE
THE DEFENDANT IS ENTITLED TO VACATE
THE JUDGMENT OF FORECLOSURE AND
SALE PREVIOUSLY GRANTED ................... 9
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POINT FOUR
THIS COURT SHOULD NOT PERMIT
PLAINT1FF TO SELL THE PROPERTY AT
LOCATION .....................11
AN INCORRECT
......................................................... 12
CONCLUSION
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TABLE OF AUTHORITIES- CASES
Wells Fargo Bank, N.A. v Graziano, 192 AD3d 1192[2d Dept 2021] ................ 5, 6
U.S. Bank, N.A. v Peralta. 191 AD3d 924 [2d Dept 2021] ....................................5, 6
Eastern Sav. Bank, FSB v Tromba, 148 AD3d 675[2d Dept 2017] ...................... 7
Prompt Mtge. Providers of N. Am., LLC v Singh, 132 AD3d 833 ...........................7
Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95[2d Dept 2011].......................... 7
First Natl Bank of Chicago v Silver, 73 AD3d 162 [2d Dept 2010]............................7
Bank of Am., N.A. v Evanson, 199 AD3d 973 [2d Dept 2021] .............................. 8
Wells Fargo Bank, N.A. v McMahon, 202 AD3d 886 [2d Dept 2022] .................. 8
US ROF III Legal Title Trust 2015-1 v Hayes, 188 AD3d 758 [2d Dept 2021] .............8
Bank of America., N.A. v Lauro, 186 AD3d 659 [2d Dept 2020] ........................... 8
Ventures Trust 2013-I-H-R by MCM Capital Partners LLC v Williams,
184 AD3d 893[2d Dept 2020] ..................8
Goshen Mortgage, LLC v Giertl, 180 AD3d 651[2d Dept 2020] ............................ 8
Central Mortg. Co. v Abraham, 150 AD3d 961 [2d Dept 2017] ...........................8
Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017] ....................................... 8
Wells Fargo Bank, NA v Malik, 203 AD3d 1110[2d Dept 2022] ..........................10
Waymand v Zmyewski, 218 AD2d 843 [3d Dept 1995] ...................................11
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TABLE OF AUTHORITIES-STATUTES
CPLR §5015 ............ 1, 2, 9, 10
RPAPL §1303 ............... 7
RPAPL § 1304 ...............8
RPAPL §1351 ................1, 2, 3, 4, 5, 6, 7
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PRELIMINARY STATEMENT
Defendant, Rich Bernheim, through his attorneys, respectfully submit this brief
in support of his Order to Show Cause to stay plaintiff from selling defendant's
property until plaintiff complies with the terms of the judgment. It is also requested
that this Court vacate the judgment because plaintiff cannot as a matter of law
comply with the terms of the previously entered judgment.
The express terms of the judgment previously obtained by plaintiff required
that they sell the property within ninety days of the date of this Judgment. Not only
did plaintiff fail to do this, but they failed to request an extension of time to do so.
Despite having actual knowledge that the sale was required to take place within
days of the date of the judgment, plaintiff attempted to sell the property
ninety
three times. Plaintiff's repeated attempts to sell the property in violation of the
terms of the judgment and in express violation of RPAPL §1351 is sufficient cause
to vacate the judgment pursuant to CPLR §5015(a)(3).
Plaintiff's attempt to sell the property at Riverhead Town Hall violates the
terms contained in the judgment and by itself is sufficient reason for this Court to
order the sale cancelled.
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QUESTION PRESENTED
Question 1. Should this Court determine that plaintiff failed to comply with the
provisions contained in RPAPL §1351?
Answer: The answer to this question should be in the affirmative.
Question 2. Has more than ninety days elapsed since the judgment of foreclosure
and sale was signed?
Answer: The answer to this question should be in the affirmative.
Question 3. Did plaintiff attempt to sell the property in violation of the terms of the
judgment and in express violation of RPAPL §1351 on more than one occasion?
Answer: The answer to this question should be in the affirmative.
Question 4: Is the location of the sale contained in the Notice of Sale the same
location as stated in the judgment?
Answer: The answer to this question should be in the negative.
Question 5: Should defendant be permitted to vacate the judgment pursuant to
CPLR §5015(a)(3) because plaintiff cannot comply with the terms of the judgment
which requires that the sale take place within ninety days of the judgment?
Answer: The answer to this question should be in the affirmative.
Question 6: Does defendant need to show that she was prejudiced by plaintiff's
failure to sell the property pursuant to the terms contained in RPAPL §1351?
Answer: The answer to this question should be in the negative.
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STATEMENT OF FACTS
Plaintiff commenced this action by filing paperwork electronically under this
index number. Plaintiff obtained a judgment of foreclosure and sale on January 28,
2020. That judgment was entered in the County Clerk's Office on February 4,
2020. Plaintiff's prior counsel filed Notice of Entry of that judgment on March 18, 2022.
The judgment required that the sale of the property take place on the front
steps of the Supreme Court within ninety days of the judgment. Plaintiff attempted
to sell the property on more than one occasion in violation of the terms of the
judgment and in express violation of the terms mandated by RPAPL §1351.
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LEGAL ARGUMENTS
POINT ONE
PLAINTIFF FAILED TO COMPLY WITH THE TERMS OF THE
JUDGMENT REQUIRING THE SALE OCCUR WITHIN NINETY DAYS
OF THE DATE OF THE JUDGMENT AS REQUIRED BY RPAPL §1351
To determine whether or not the plaintiff properly complied with the
requirements of RPAPL §1351, a review of it as it existed at the time the judgment
of foreclosure and sale was granted is required.
This statute states the following in pertinent part:
§1351. Judgment of sale
Effective: December 20, 2016
Currentness
1. The judgment shall direct that the mortgaged premises, or so much thereof
as may be sufficient to discharge the mortgage debt, the expenses of the
sale and the costs of the action, and which may be sold separately without
material injury to the parties interested, be sold by or under the direction of
the sheriff of the county, or a referee within ninety days of the date of the
judgment.
(The balance of the statute is intentionally omitted)
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A clear reading of RPAPL §1351 indicates that the sale is required to take place
within days of the date of the judgment. It is clear that plaintiff failed to
ninety
comply with this statute because the sale was not conducted within that timeframe.
Even if this Court believes that the measuring date is the date the judgment was
entered with the Clerk, it will not matter. Plaintiff initially attempted to sell the
property on July 5, 2022 according to my client [ although the Notice of Sale was
not filed electronically filed]. That date was clearly more than ninety days after the
judgment was signed or entered. Furthermore, it is more than ninety days after
plaintiff's prior counsel served Notice of Entry of that judgment upon defendant's
prior counsel.
Plaintiff attempted to sell the property on two additional occasions, both of
which were in express violation of the terms of the judgment and RPAPL §1351.
The Court has recently rendered decisions pertaining to this issue. If the
judgment of foreclosure and sale was entered prior to December 20, 2016,
defendant would not be entitled to dismissal of plaintiff's cause of action. Wells
Fargo Bank, N.A. v Graziano, 192 AD3d 1192 [2d Dept 2021]; U.S. Bank, N.A. v
Peralta, 191 AD3d 924[2d Dept 2021]. Both of these decisions specifically stated
that defendant's cross-motion for dismissal could not be entertained because the
judgment of foreclosure and sale was granted prior to the effective date of the
statute as amended.
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The previous version of the statute did not require that the sale be conducted
by any specific date. Had plaintiff submitted a judgment of foreclosure and sale
which waived this provision, such as the judgment signed by the Honorable Robert
F. Quinlan, J.S.C. plaintiff would not have been required to comply with the
provisions of this statute.
Because the provision contained in this statute is mandatory, plaintiff may not
disregard the statute. If the Appellate Division had believed that the time period
provision contained in RPAPL §1351 was discretionary, they would have stated
that the case would not be dismissed based upon the failure of the bank to timely
sell the property in both Wells Fargo Bank, N.A. v Graziano, supra and U.S. Bank,
N.A. v Peralta, supra. The Court's silence on this issue in those cases should lead
a reasonable person to believe that the Appellate Division would have ruled in the
defendant-appellant's favor if the judgment had been granted after December 20,
2016.
Based upon the fact that plaintiff failed to sell the property within the time
period provided in RPAPL §1351, they are not entitled to an extension of time to
sell the property if they now request same. The judgment of foreclosure and sale
serves as documentary evidence which plaintiff has failed to comply with.
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POINT TWO
DEFENDANT NEED NOT SHOW THAT HE IS PREJUDICED BY
PLAINTIFF'S FAILURE TO COMPLY WITH RPAPL §1351
Defendant need not show that he is prejudiced in any manner by plaintiff's
failure to comply with RPAPL §1351. This Court should be guided by the Court's
decision with respect to plaintiff's compliance with RPAPL §1303 in Eastern Sav.
Bank, FSB v. Tromba, 148 AD3d 675[2d Dept 2017].
The Tromba Court stated the following in pertinent part:
Foreclosure"
"RPAPL 1303 requires that a notice titled "Help for Homeowners in
be delivered to the mortgagor along with the summons and complaint in residential
foreclosure actions involving owner-occupied, one-to-four family dwellings
(Prompt Mtge. Providers of N. Am., LLC v. Singh, 132 AD3d 833, 18 NYS 3d 668,
see RPAPL 1303[1][2]). The statute mandates that the notice be in bold, 14-point
type and printed on colored paper that is other than the color of the summons and
complaint, and that the title of the notice be in bold, 20-point type (see RPAPL
1303 [2]). Proper service of an RPAPL 1303 notice is a condition precedent to the
commencement of a foreclosure action, and noncompliance mandates dismissal of
the complaint (see Prompt Mtg. Providers of N. Am., LLC v. Singh, 132 AD3d at
834, 18 NYS 3d 668; Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 98,
923 NYS2d 609; First Natl Bank of Chicago v. Silver, 73 AD3d 162, 165-166,
899 NYS2d 256. A defendant mortgagor can raise the mortgagee's failure to comply
with the statute at any time (see First Natl. Bank of Chicago v. Silver, 73 AD3d at
"
163, 899 NYS 2d 256.
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This Court may also be guided by various decisions rendered by the Appellate
Division for the Second Department of the State of New York with respect to the
compliance of the lender, assignee or mortgage loan servicer with respect to
RPAPL §1304. The Court has specifically stated that the burden of proof lies upon
the plaintiff to prove compliance with the statute and defendant need not show any
prejudice. That fact was specifically stated on the record at oral argument in Bank
of Am., N.A. v Evanson, 199 AD3d 973 [2d Dept 2021]. The Court has also
reversed lower court determinations granting summary judgment in favor of the
plaintiff when it determined that the lender, assignee or mortgage loan servicer
failed to prove proper compliance with the statute. Wells Fargo Bank, N.A. v
McMahon, 2022 WL 385959 [2d Dept 2022] ; US ROF m Legal Title Trust 2015-1
v Hayes, 188 AD3d 758[2d Dept 2021]; Bank of America, N.A. v Lauro, 186 AD3d
659[2d Dept 2020] ; Ventures Trust 2013-I-HR-R by MCM Capital Partners LLC v
Williams, 184 AD3d 893 [2d Dept 2020]; Goshen Mortgage, LLC v Giertl, 180
AD3d 651 [2d Dept 2020]; Central Mortg. Co. v Abraham, 150 AD3d 961 [2d
Dept 2017] and Citibank, N.A. v Wood. 150 AD3d 813 [2d Dept 2017].
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POINT THREE
THE DEFENDANT IS ENTITLED TO VACATE THE JUDGMENT
OF FORECLOSURE AND SALE PREVIOUSLY GRANTED
The defendant is entitled to vacate the Judgment of Foreclosure and Sale
previously granted pursuant to CPLR § 5015(a)(3). This statute states the
following:
R. 5015 Relief from judgment or order
(a) On motion. The Court which rendered a judgment or order may relieve a
party from it upon such terms as may be just, on motion of any interested
person with such notice as the court may direct on the ground of:
1. excusable default,
Preview
FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 New York Supreme Court Suffolk County WILMINGTON SAVINGS FUND SOCIETY, FSB, DOING BUSINESS AS CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR BCAT 2014-6TT, Plaintiff, -against- RICH BERNHEIM, Defendant. MEMORANDUM OF LAW THE RANALLI LAW GROUP, PLLC By: Ernest E. Ranalli, Esq. Attorneys for Defendant 742 Veterans Memorial Highway Hauppauge, New York 11788 (631)979-1461 Email: ranalliforeclosuredefense@gmail.com Suffolk County Clerk's Index No. 608188/2015 1 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 2 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 TABLEOFCONTENTS Page TABLE OF CONTENTS ..................................................... i TABLE OF AUTHORITIES-CASES .................................... iii TABLE OF AUTHORITIES-STATUTES ....................................iv PRELIMINARY STATEMENT .............................................. 1 QUESTION PRESENTED ................................................... 2 STATEMENT OF FACTS ....................................................3 LEGAL ARGUMENTS ............................................................4 POINT ONE PLAINTIFF FAILED TO COMPLY WITH THE TERMS OF THE JUDGMENT REQUIRING THE SALE OCCUR WITHIN NINETY DAYS OF THE DATE OF THE JUDGMENT AS REQUIRED BY RPAPL §1351 ............ 4 POINT TWO DEFENDANT NEED NOT SHOW THAT HE IS PREJUDICED BY PLAINTIFF'S FAILURE TO COMPLY WITH RPAPL §1351 .............7 POINT THREE THE DEFENDANT IS ENTITLED TO VACATE THE JUDGMENT OF FORECLOSURE AND SALE PREVIOUSLY GRANTED ................... 9 i 3 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 POINT FOUR THIS COURT SHOULD NOT PERMIT PLAINT1FF TO SELL THE PROPERTY AT LOCATION .....................11 AN INCORRECT ......................................................... 12 CONCLUSION ii 4 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 TABLE OF AUTHORITIES- CASES Wells Fargo Bank, N.A. v Graziano, 192 AD3d 1192[2d Dept 2021] ................ 5, 6 U.S. Bank, N.A. v Peralta. 191 AD3d 924 [2d Dept 2021] ....................................5, 6 Eastern Sav. Bank, FSB v Tromba, 148 AD3d 675[2d Dept 2017] ...................... 7 Prompt Mtge. Providers of N. Am., LLC v Singh, 132 AD3d 833 ...........................7 Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95[2d Dept 2011].......................... 7 First Natl Bank of Chicago v Silver, 73 AD3d 162 [2d Dept 2010]............................7 Bank of Am., N.A. v Evanson, 199 AD3d 973 [2d Dept 2021] .............................. 8 Wells Fargo Bank, N.A. v McMahon, 202 AD3d 886 [2d Dept 2022] .................. 8 US ROF III Legal Title Trust 2015-1 v Hayes, 188 AD3d 758 [2d Dept 2021] .............8 Bank of America., N.A. v Lauro, 186 AD3d 659 [2d Dept 2020] ........................... 8 Ventures Trust 2013-I-H-R by MCM Capital Partners LLC v Williams, 184 AD3d 893[2d Dept 2020] ..................8 Goshen Mortgage, LLC v Giertl, 180 AD3d 651[2d Dept 2020] ............................ 8 Central Mortg. Co. v Abraham, 150 AD3d 961 [2d Dept 2017] ...........................8 Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017] ....................................... 8 Wells Fargo Bank, NA v Malik, 203 AD3d 1110[2d Dept 2022] ..........................10 Waymand v Zmyewski, 218 AD2d 843 [3d Dept 1995] ...................................11 iii 5 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 TABLE OF AUTHORITIES-STATUTES CPLR §5015 ............ 1, 2, 9, 10 RPAPL §1303 ............... 7 RPAPL § 1304 ...............8 RPAPL §1351 ................1, 2, 3, 4, 5, 6, 7 iv 6 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 PRELIMINARY STATEMENT Defendant, Rich Bernheim, through his attorneys, respectfully submit this brief in support of his Order to Show Cause to stay plaintiff from selling defendant's property until plaintiff complies with the terms of the judgment. It is also requested that this Court vacate the judgment because plaintiff cannot as a matter of law comply with the terms of the previously entered judgment. The express terms of the judgment previously obtained by plaintiff required that they sell the property within ninety days of the date of this Judgment. Not only did plaintiff fail to do this, but they failed to request an extension of time to do so. Despite having actual knowledge that the sale was required to take place within days of the date of the judgment, plaintiff attempted to sell the property ninety three times. Plaintiff's repeated attempts to sell the property in violation of the terms of the judgment and in express violation of RPAPL §1351 is sufficient cause to vacate the judgment pursuant to CPLR §5015(a)(3). Plaintiff's attempt to sell the property at Riverhead Town Hall violates the terms contained in the judgment and by itself is sufficient reason for this Court to order the sale cancelled. 1 7 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 QUESTION PRESENTED Question 1. Should this Court determine that plaintiff failed to comply with the provisions contained in RPAPL §1351? Answer: The answer to this question should be in the affirmative. Question 2. Has more than ninety days elapsed since the judgment of foreclosure and sale was signed? Answer: The answer to this question should be in the affirmative. Question 3. Did plaintiff attempt to sell the property in violation of the terms of the judgment and in express violation of RPAPL §1351 on more than one occasion? Answer: The answer to this question should be in the affirmative. Question 4: Is the location of the sale contained in the Notice of Sale the same location as stated in the judgment? Answer: The answer to this question should be in the negative. Question 5: Should defendant be permitted to vacate the judgment pursuant to CPLR §5015(a)(3) because plaintiff cannot comply with the terms of the judgment which requires that the sale take place within ninety days of the judgment? Answer: The answer to this question should be in the affirmative. Question 6: Does defendant need to show that she was prejudiced by plaintiff's failure to sell the property pursuant to the terms contained in RPAPL §1351? Answer: The answer to this question should be in the negative. 2 8 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 STATEMENT OF FACTS Plaintiff commenced this action by filing paperwork electronically under this index number. Plaintiff obtained a judgment of foreclosure and sale on January 28, 2020. That judgment was entered in the County Clerk's Office on February 4, 2020. Plaintiff's prior counsel filed Notice of Entry of that judgment on March 18, 2022. The judgment required that the sale of the property take place on the front steps of the Supreme Court within ninety days of the judgment. Plaintiff attempted to sell the property on more than one occasion in violation of the terms of the judgment and in express violation of the terms mandated by RPAPL §1351. 3 9 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 LEGAL ARGUMENTS POINT ONE PLAINTIFF FAILED TO COMPLY WITH THE TERMS OF THE JUDGMENT REQUIRING THE SALE OCCUR WITHIN NINETY DAYS OF THE DATE OF THE JUDGMENT AS REQUIRED BY RPAPL §1351 To determine whether or not the plaintiff properly complied with the requirements of RPAPL §1351, a review of it as it existed at the time the judgment of foreclosure and sale was granted is required. This statute states the following in pertinent part: §1351. Judgment of sale Effective: December 20, 2016 Currentness 1. The judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action, and which may be sold separately without material injury to the parties interested, be sold by or under the direction of the sheriff of the county, or a referee within ninety days of the date of the judgment. (The balance of the statute is intentionally omitted) 4 10 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 A clear reading of RPAPL §1351 indicates that the sale is required to take place within days of the date of the judgment. It is clear that plaintiff failed to ninety comply with this statute because the sale was not conducted within that timeframe. Even if this Court believes that the measuring date is the date the judgment was entered with the Clerk, it will not matter. Plaintiff initially attempted to sell the property on July 5, 2022 according to my client [ although the Notice of Sale was not filed electronically filed]. That date was clearly more than ninety days after the judgment was signed or entered. Furthermore, it is more than ninety days after plaintiff's prior counsel served Notice of Entry of that judgment upon defendant's prior counsel. Plaintiff attempted to sell the property on two additional occasions, both of which were in express violation of the terms of the judgment and RPAPL §1351. The Court has recently rendered decisions pertaining to this issue. If the judgment of foreclosure and sale was entered prior to December 20, 2016, defendant would not be entitled to dismissal of plaintiff's cause of action. Wells Fargo Bank, N.A. v Graziano, 192 AD3d 1192 [2d Dept 2021]; U.S. Bank, N.A. v Peralta, 191 AD3d 924[2d Dept 2021]. Both of these decisions specifically stated that defendant's cross-motion for dismissal could not be entertained because the judgment of foreclosure and sale was granted prior to the effective date of the statute as amended. 5 11 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 The previous version of the statute did not require that the sale be conducted by any specific date. Had plaintiff submitted a judgment of foreclosure and sale which waived this provision, such as the judgment signed by the Honorable Robert F. Quinlan, J.S.C. plaintiff would not have been required to comply with the provisions of this statute. Because the provision contained in this statute is mandatory, plaintiff may not disregard the statute. If the Appellate Division had believed that the time period provision contained in RPAPL §1351 was discretionary, they would have stated that the case would not be dismissed based upon the failure of the bank to timely sell the property in both Wells Fargo Bank, N.A. v Graziano, supra and U.S. Bank, N.A. v Peralta, supra. The Court's silence on this issue in those cases should lead a reasonable person to believe that the Appellate Division would have ruled in the defendant-appellant's favor if the judgment had been granted after December 20, 2016. Based upon the fact that plaintiff failed to sell the property within the time period provided in RPAPL §1351, they are not entitled to an extension of time to sell the property if they now request same. The judgment of foreclosure and sale serves as documentary evidence which plaintiff has failed to comply with. 6 12 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 POINT TWO DEFENDANT NEED NOT SHOW THAT HE IS PREJUDICED BY PLAINTIFF'S FAILURE TO COMPLY WITH RPAPL §1351 Defendant need not show that he is prejudiced in any manner by plaintiff's failure to comply with RPAPL §1351. This Court should be guided by the Court's decision with respect to plaintiff's compliance with RPAPL §1303 in Eastern Sav. Bank, FSB v. Tromba, 148 AD3d 675[2d Dept 2017]. The Tromba Court stated the following in pertinent part: Foreclosure" "RPAPL 1303 requires that a notice titled "Help for Homeowners in be delivered to the mortgagor along with the summons and complaint in residential foreclosure actions involving owner-occupied, one-to-four family dwellings (Prompt Mtge. Providers of N. Am., LLC v. Singh, 132 AD3d 833, 18 NYS 3d 668, see RPAPL 1303[1][2]). The statute mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type (see RPAPL 1303 [2]). Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint (see Prompt Mtg. Providers of N. Am., LLC v. Singh, 132 AD3d at 834, 18 NYS 3d 668; Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 98, 923 NYS2d 609; First Natl Bank of Chicago v. Silver, 73 AD3d 162, 165-166, 899 NYS2d 256. A defendant mortgagor can raise the mortgagee's failure to comply with the statute at any time (see First Natl. Bank of Chicago v. Silver, 73 AD3d at " 163, 899 NYS 2d 256. 7 13 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 This Court may also be guided by various decisions rendered by the Appellate Division for the Second Department of the State of New York with respect to the compliance of the lender, assignee or mortgage loan servicer with respect to RPAPL §1304. The Court has specifically stated that the burden of proof lies upon the plaintiff to prove compliance with the statute and defendant need not show any prejudice. That fact was specifically stated on the record at oral argument in Bank of Am., N.A. v Evanson, 199 AD3d 973 [2d Dept 2021]. The Court has also reversed lower court determinations granting summary judgment in favor of the plaintiff when it determined that the lender, assignee or mortgage loan servicer failed to prove proper compliance with the statute. Wells Fargo Bank, N.A. v McMahon, 2022 WL 385959 [2d Dept 2022] ; US ROF m Legal Title Trust 2015-1 v Hayes, 188 AD3d 758[2d Dept 2021]; Bank of America, N.A. v Lauro, 186 AD3d 659[2d Dept 2020] ; Ventures Trust 2013-I-HR-R by MCM Capital Partners LLC v Williams, 184 AD3d 893 [2d Dept 2020]; Goshen Mortgage, LLC v Giertl, 180 AD3d 651 [2d Dept 2020]; Central Mortg. Co. v Abraham, 150 AD3d 961 [2d Dept 2017] and Citibank, N.A. v Wood. 150 AD3d 813 [2d Dept 2017]. 8 14 of 20 FILED: SUFFOLK COUNTY CLERK 05/18/2023 04:32 PM INDEX NO. 608188/2015 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 05/18/2023 POINT THREE THE DEFENDANT IS ENTITLED TO VACATE THE JUDGMENT OF FORECLOSURE AND SALE PREVIOUSLY GRANTED The defendant is entitled to vacate the Judgment of Foreclosure and Sale previously granted pursuant to CPLR § 5015(a)(3). This statute states the following: R. 5015 Relief from judgment or order (a) On motion. The Court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct on the ground of: 1. excusable default,