Preview
FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021
EXHIBIT S
FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021
SHORT FORM ORDER
INDEX #:29767/09
RETURN DATE: 9/15/09
MOT. $EQ.: 001
SUPREME COURT - STATE OF NEW YORK
I A.S. TERM, PART XXN- SUFFOLK COUNTY
PRESENT:
Hon. PETER FOX COHALAN
CALENDAR DATE: April 14, 2010
MhfEMONIC: MWDN
BAC HOME LOANS SERVICING, LP,
ETC. PLTF'S/PET'S ATTORNEY:
Plaintiff,
Steven J. Baum,. Esq.
-against- 220 Northpointe Parkway
Amherst, NY14228
MARGARET HOWELL, AS TRUSTEE OF
THE MARGARET HOWELL TRUST, BANK :
OF AMERICA, N.A., etc.
Margaret Howell, Pro So
Defendants. 369 Gardiners Drive
Bay Shore, NY 11706
Upon the papers read on this motion to dismiss, it is,
ORDERED that this motion by the defhadant Pro So to dismiss is hereby
withdrawn as the partles are engaged in settlement discussions.
The foregoing constitutes the order of this Court.
Dated: May 13, 2010
J.S.C.
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MEMD DECIsION & ORDER thlDEX NO. 29 009
SUPREME COURT - STATE OF NEW YORK
LA.S. PART 49 SUPPOLK COUNTY .
PÎtBSENT: Motion
X
BAC HOME LOAN SERVIGINO, L.P.,f Wa PraahbI, Lanthert, Weiss,
' '
UNTB.YWIDE HOME LOAN SERVICING L.P., Weisman & Gordon, LLP
' '.'
"" ~~ - -
Stephen J. Esq.
By Wallace,
Attorneys for Plaintiff -
Plaintiff,
. 53 Oibson Snest .
-against- Shore, NY I1706
Bay
MAROARET itOWELL, AS TRUSTEE OF THE Law Offices of Mark L Alter
MARGARET HOWELL TRUST, BANK OF By Margaret Alter, Bug.
DOE"
AMERICA, and ''JOH (thisname being Attorneya for Defendant Margaret Howell,
it
fict).tioup, being the intantian of the plaintiffto as Trustee of the Margaret Howell Test
designate any and alloccupants of the premises being 320 Old Country Road, Suite 103
. . foreclosed heroin and any parties,corpdrations or Oarden City, NY 11530
. entities,ifany, having or claiming an interestor lien
. . uppa themortgaged premises, . Victoria Howell
- - ' ' ' ·
1369 Oardiner Drive
'-
Defendants. Bay Shore, NY 11706
. . X .
, Upon the readingand filingofthe following papersin thismatter:(1)Nodce ofMotion by the plaintif
F, dated
Januaty.13, 2016 and supporting papers; (2) Notice of Cross Motion by thedefendant, dated October 9, 2016 and
papers; Affirmation in Oppositionto Cross Motion ofplaintifidated Dan•=h•r s, 2016 and supporting
supporting (3)
papers; and (4)Aff kmation inReply and infurthesupport of Cross-Motion by thedef bndent dated February p, 2017
and supporting papers: it is
ORDERED that those portions of this motion (#003) by the plaintiff in which itseeks an order
substituting Ditech Financial, LLC, successor by merger to Oreen Tree Servicing, LLC., is considered
under CPLR 1018 and are granted; and itis further
ORDERED that those portions of this nation (#0Ô3) by the p!=intiff in which itseeks an order
amending the caption to reflect the substitution of Ditech Financial, LLC, granted above, are granted
and the Clerk of this IAS Part is directed to note the substitution of Ditech Financial, LLC for the
plaintiff named above and this caption amendment, upon entry of this order-, and itis further
ORDERED that those portions ofthis plotion (#003) by the plaintiff wherein itseeks a default.
judgment on itsclaims forrecovery ofa deficiencyjudgmentagainst the defendantmortgagor,lvJargaret
Howell, sued herein solely in hot capacity as Trustee of the Marggret Howell Trust, isdenied and said
claim is and itsfurther.
dismissed;
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ORDERED that the r=aining portions oftheplaintiff's motion (#003) for
upon default ofthe mortgagor, MargaretHowell, as Trustee ofthe Margaret Howell Trust, and
defendants served with process, including one served as an unknown defendant and other incident i
relief is considered under CPL1t.3215, 1024 and RPPL§ 1321 and are granted; and itis further
ORDFEED that the cross motion (#004). by the defendmat mortgagor, hdargaret Howell, as
Trustee of the Margaret Howell Truat, for a direct and iramediate dismissal of this action, declaratory
relief as to the unenforeeability of thtenote sad mortgagth and/6r teave en sppear herein service of
by
a late answer is considered under CPLR 3211, 321$(c), 3001 and 3012(d) and is denied.
The plaintiff cernmenced this action ce July.30, 2009 to foreclose the lien of 5eptember 13,
2005 mortgage giverrby def badant,MargareLI4owell, in hercapacity as Trustee ofthe MasgaretHowell
Trust, in Aver df America's Wholesale I,ander, to spanna a mortgage atxturof the same date given by
Margaret Howell, individually, in the principal amonmtof$324,4$0EO to the lender. The plaintifFdid
not join the sole obligor under the note as a party defendant, as the pla'mtiff was apparently*under the
mistaken belief that the nom and mortgage were both executed by defendant, Margaret Howell in her
capacity as Trustee ofthe Margaret Howell Trust (ase 1Second of the July 29,2009 complaint attached
as Exhibit A to the plaintiff'smoving papers). The mortgagor defendant was served with process by
in hand delivery pursuant to CPLR 308(1) on August 6,2009.
In moving papera dated August 17, 2009, returnable on September 15, 2009, the non-party
obligormoder the note, Magptat HoweB,.individnatlysfiled a pro so motion to dismiss the complaint
on'the gmends tha‡she#qrgareslkweG,'halividually, wasnsversernyd-withstocess and onlylearani
ofthc^commencement ofthls actlen whos, onAugust4,20093her"son was attheSuffolk.County Clerk
®
and obtained infbrmation about her home and to his surprise, a foreclosure action was in feet feed by
Bank ofAmerSca @rther mentionedms BAC)"tred Bxhibit affidavit ofMargamtHowell dated August
17, 2009, attached as Exhibit D to the deferalantWcross moving papers). Mrs. Howel1further averred
that her son further informed her that, by letterdated August 4, 2009 from certain bankruptcy attomeys,
id.).·
they advised her of the filingof this action (see
.
The plaintiff opposed the non-party's motion (#001) for dismissal ofthe complaint, to which,
said man-party replied. On the sixth scheduled day of oral argument before the Justice then presiding
over thisaction, an orderissued by said Justice in which the def bndant's motionwas marked withdrawn
due to the parties engagement in settlement discussions (ses Order dated May 13, 20 10 [Cohalan, Ji
attached as Exhibit.D to the plaintiff's opposing/reply papeis). Said order incorrectly referred to the
se"
movant as "the defendant, pro since the defendant did not interpose the motion, only the non-party
individual, Margaret Howell, so moved.
In July of2012, thisaction was re-assigned to the case inventory of this court and the matter set
for conference on September 21, 2012. Thereafter, the plaintiff fileda motion (#002) returnable on
December 12, 2012, for an order of refererice on default. At the corfference held on November 28,
2012, the defendant, Margaret Howell as Trustee, appeared by her current counsc1, who characterized
his appearance as "pro bono*and limited for purposes ofthateonference(ses Transcriptofhoceedings
held of record on Novernber 28, 2012 attached as Exhibit E to the plaintifPs opposing/reply papers
After conferring with the court, the plaintiff agreed to withdraw its motion so that settlement
discussions between the borrower, Margaret Howell, indMdually (the sole obligor under the note) and
the plaintiff could continue (Id.). 'The conference was adjoumed to January 30, 2013, but, due to a
clerical error, the plaintiff's motiod (#002) tras not marked withdrawn until July 11, 2013.
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The conferences continued thereaRer untilJanuary 15, 2014, when the matter was marked not
settled. On thatdate, the def bndant's carent counsel Sled an unqualified notice of appearance, as
counsel for such defendant In July of 2016, the plaintiff interposed itscurrent motion (#003) for an
order of refbrance and the other mlief outlined above. A8er seveal adjournmeñts allowing for the
interposition of the defendant's curmat cross motion (#004) mad two status conferences required by
this contt, the plaintifPs motion(#003)and the defbndants cross motion(#004) weremarked submitted
23, 2017. Meanwhile, the plaintiff made a written offer of a trialmodification to the non-
February
party borrower, 1½srgaret Howell, in November of 2016, which she declinail to accept
First considered is the defendant's eross tootton (#004) for an order granting a direct and
immediate dismissal of thisaction and the other relief outlined above, as determination therest may
render the plaintif Ps motion-in-chief, academic. The defendant's deumnds for dismissal appear to be
premised in part upon certain of the grounds set forth in CPLR 3211, including legal insufEciency,
failure to comply with ccaditions precadent, a lack of standing on the part of the plaintiff and a failure
to join a necessary party. For the reasons stated the court rejects these claims as lacking merit
The firstof the noticed dernands for dianissal ispredicated upon a CPLR3211(a)(7) clahn that
the complaint is legally insufficient as itpurporadly fails to state a cognizable cause of action, This
contention is completely without merit. It iswell setoed that the owner of a note and secured by
.maggaga on real preggitty agay seek the remedy of foreolosure and sale·against the owner at the
premises that were entembered by inch owner, who alone, put up his own property as security for the
advancement of mortgage manies to another person or entity (see Amherst Factors, Jac, v
Keckebnrger, 4 NY2d 203, 173 NYS2d 570 (1958] ("[t)hefacethat the ree plent oftheloanandthe
morigqgor are not thesameperson[donnot)impatrthe validity gfan otherwise salldmaqqge";and
"It is neither illegainer insproperto give such a morlgqge "j; 1855 East hement Corp. v Cathrdo
[1"
Holdings LLC, 102 AD3d 567, 961 NYS2d 25 Dept 2013]).
However, the plaintif f s demands for a deficiency judgment against the defendant is legally
insufRcient since such a judgment is available only against persons or entities who am signatories to
and obligors under the note and whose joinder to the action was accomplished in a marmer sufficient
to confer in personam jurisdietten over hira or her (ses RPAPL § 1371). The plaintifPs demands for
a deficiency judgment against the defendant mortgagor, who is not an obligorunder the note, are thus
dismiased as reverse summary judgment is hereby awarded to the defendant Trustee dismissing the
pleaded to recover a deficiency judgment,
The second noticed demand for dismissal rests upon a CPLR 321l(a)(10) defhnse that the
plaintif f s failureto join Margaret Howell, the bonower and sole obligor under the note, as a defendant
in her individual capacity, con,stitutesa failme to join a necessary party thereby warranting dismissal
However, this claim isalso lacking in merit since an obligor under the note who is not a signatmy to
the mortgage not a necessay party to a claim for foreclosure and sale (reg RPAPL§ 1311), unless a
claim for a deficiency judgment against said obligor is demanded. Even ififwere the non-
otherwise,
joinder of a necessary party simply-leaves that party's right unaffected by the judgment catered in a
farenlosure action (see (seePrharte Cqpital Group, LLC v Hassainipour, 86 AD3d 554, 927 NYS2d
665 [2d Dept 2011];142646St.,LLCusern, 60 AD3d740, 876 NYS2d 425 [2d Dept2009);Glass
v Estate qfGold, 48 AD3d 746,853NYS2d 159 [2d Dept 2008]; 6820 Rides Realt yu Goldens, 263
AD2ld 22, 25, 701 hiY82d 69{2d Dept 1999];Scharaga v Schwant6erg, 149 AD2d 578, 579--580, 540
NYS2d 451 [2d Dept I1989];Polish Natt. AUlance of Brooklyn v White EagleHall, Co., 98 AD2d
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672 [2d Dept 1983]). Accordingly, the non-joinder ofsuch obligor does not warrant
dismissal of the action.
The third noticed demand for dismissat of the complaint rests upon the defendant's claim that
the plaintiff lacks standing to prosecute itsclaim for foreclosure and sale. This defense, which is one
encompassed by CPLR3211(a)(3) (see WeDs Fargo Bank Minnesota, Nat. Ass's n Mastro paolo, 42
AD3d 239, 837NYS3d 247 [2d Dept 2007), also lacks meritJhe plaintiff s moving papers included
due proof of the assignment of the subject note and mortgage by the plaintifPs successor by merger
(Bank of America, N.A.) to Green Tree Servicing, LLC under the terms of a written assignment dated
January 6,2014, that was recorded in theoffice ofthe Suffolk County Clerk onNovember25, 2016 (see
Deutscha Bank Nat. 2vast Co. v Romane, 147 AD3d 1021, 48 NYS3d 237[2d Dept 2017]; U.S. Bank
Natl.Ass'n. vAkande, 136 AD3d 887, 26 NYS3d 164[2d Dept 2016] ; Emigrant Bank v Larltra, 129
AD3d 904, 13 NY83d 129 [2d Dept 2015 ] ; ; PeakFim Partners, Inc., v Brook, 119 AD3d 539, 987
NYS2d 916 [2d Dept 2014]; Chase Home 11n., LLC s Micietta, 101 AD3d 1307, 956 NYS2d £71 [3d
Dept 2012]). Momover, this defense was waived by the defendant's failum to assert it in a timely
served answer or pre-enswer motion to dismiss (see Wells Fargo Bank Minnesota, Net. Ass'n n
Mastropaolo, 42 AD3d 239, supra). Under these circumstances itmay not be used to support this
motion to diambe pursuant to CPLR 3211 absent the of an extension of time (see
untimely granting
Nationster Mottage, LLC v Avella, 142 AD3d 594, 36 NYS3d 679 [2d Dept 2016]; Chase Home
Finance v Garefa, 140 AD3d 820, 31 NYS3d 894 [2d Dept 2016]; U.S. Bank N.A. a Gonzales, 99
AD3d 694, 694--695, 952NYS2d 59[2d Dept 2012]; McGas v.Dann, 75 AD3d 624, 625, 906NYS2d
74 [2d Dept 2010];Countrywida Rome Loans, Inc. a DeQhonse, 64 AD3d 624, 883 NYS2d 135 [2d
Dept 2009]).
The defendant next demands a direct dismissal ofthe complaint on the grounds that the plaintiff
did not timely engage in the settlement conthrence processes required by CPLR 3408 in certain
mortgage foreclosure actions. However, the named defendant, Margaret Howell, was sued solely in a
representative capacity as the Trustee of the Margaret Howell Trust, the sole owner of the mortgaged
premises. The Trust is thus the sole real party defendant in interest,as non-party Margaret Howell,
individually, is not a signatory of the mortgage indemme. The plaintiff thus had no duty to negotiate
a^loan modification with the defendant, Margaret Howell in her capacity as Trustee of the Trust, as it
was not the borrower to whom the original loan monies were advanced and secepted. Moreover, the
Trust is not a defendant natural person nor does it occupy the mortgaged promises as a principal
residence. The pmvisions of CPLR3408 applicable to thisaction arethus inapplicableto the defendant
Trustee (ses CPLR3408). In itis the court - not the plaintiff- that isobligated to schedule
any event,
the conferences contemplated CPLR3408. The demand for dismissal of the complaint on the basis
by
of the plaintiff's fhilure to timely comply with CPLR3408 conference procedure isthus without merit
The plaintiff s lastnoticed demand for a direct dismissal of the comp!eint ispremised upon a
claim that the plaintiff did not comply with applicable Administrative Orders requiring the plaintiff's
counseito vouch for the accuracy of certainpapers filed in thisaction. This claim is belied by the record
which contains a fully compliant attomey's affirrnation required by A.O. 548/10 and 431/11 dated
November 16, 2012 isnow before the court. A failure, ifany, on the part ofthe plaintiffto have served
the attorney affirmation with itsfirst motion (#002) for an order of refbrance on defhult interposed in
November of 2012 does not entitlethe defendant to a dismissal of the complaint (see Administrative
Orders of the Chief Administrative Judge numbered 548/10 and 431/11).
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.......- - .
The restoration of the "defendant's"
tiethndant also seeks sinorder directing the prior motion
(6001)a0 dismiss the complaint on a lack ofpersonal jurisdiotlan gmunds and a traverse headagen the
issueof service. this application is denied-since the prior tnotion (#001) was not interposed the
by
mortgagor defendant in this action. Instead, it wat interposed by the non-party borrower/obligor
defendant, Margaret Howell, who therein claimed that she wasnever served withprocess and thatsuch
lack of service warranted a dismissal of tbo compisint. *fhe inortgsgor defbndant is without any
entitlement to assertthe defense of a lack of personal judsdiction over the borrower/obligor defendant
as such defense ispersonal to said borrower and no traverse hearing isrequired (see IMC Marty. Ca,
v Veters, 142 AD3d 954,37 NYS3d 329 [2d Dept 2016]; Wells Fargo Bank, NA. v Bowls, 89 AD3d
931, 932, 932NYS2d 702[2d Dept 2011);see also Wells Fargo Bank,NA. v Backmann, 145 AD3d
713, 43 NYS3d 107 [2d Dept 2016); JPMC Speelal0r Mortg. LLC v Espada, 143 AD3d 611, 40
[1"
NYS3d 70 Dept 2016]).
The related demand for a traverse hearing, to the extent asserted on behalf of the defendant in
her representative capacity as Trustee ofthe Margaret Howell Trust, isalso rejected as lacking inmerit.
The defendant Trustee's nuanced claim that she was unaware ofthe comm£ncement ofthis action until
August 4, 2009 when her ann learned from the County Clerk that an action had been filed and by letter
from bankruptcy attomeys of the same date do not constitute the specific factual averments necessary
to rebut those contained in the affidavit of the process server who served the summons, complaint and
other initiatmy papers upon the defendant, in her Trustee capacity (see Wachovia Mortgage Corp. v
Tenssaint, 144 AD3d 1132, 43 NYS3d 373 [2d Dept 2016]; Wells Fargo Bank, NA. v Walter, 142
AD3d 992, 37NYS3d 446 [2d Dept2016];Mortgage Elec.RegistralianSys.,Inc.v Losco, 125 AD3d
733, 5 NYS3d 112[2d Dept2015]; Weehovia Bank,NA. v Carcane, 106 AD3d 726, 964NYS2d 246
[2d Dept 2013]). The defendant's demand f brthe scheduling of a traverse hearing on the issue of the
existence or validity of service upon her in her Trustee capacity is thus denied.
The defendant's noticed demand for, in e5ect, declarative relief in the form of a judicial
declaration that the mortgage is void ab initio due to the plaintifs fraud, misrepresentation and the
making of faine, misleading and inaccurate statements regarding material information provided the
original lander for purposes of determining the defendant's eligibilityfor the subject loan isdenied.
There are no pleaded demands for such reliefas required by CPLR 3001 or Article 15 of the Real
Property Law, since the defendant defhulted in answering the summons and complaint, whit:h default
has not been vacated. Under theses circumstances, the defendant's interposition atthis dernand for
relief on her cross motion is procedurally def botive in a manner that implicates violations of well
established notions of due process.
In any event, the dernand for declaratory relief also lacks substantive merit as there are no
allegations thatthe plaintiff participated in the original loan transaction or that such transaction was
fraudulent Moreover, any and allclaims of fraud were waived since the loan transaction was ratified
the borrower/obligor's receipt of the loan monies and the making of payments due under the terms
by
of the loan documents for a period'of several years without protest from said borrower/obligor and/or
the defendant mortgagor (see Cort(ktential Landing LLC v Nurse, 120 AD3d 738, 992 NYS2d 77 [2d
Dept ; Hypo Holdings Inc. v Chalasant, 280 AD2d 386, 721 NYS2d 35 [1st Dept 2001]; see
2014]
also Kessler v Kessler, 89 AD3d 687, 931 NYS3d 702 [2d Dept 201 l];Feinstein v Levy, 121 AD2d
499, 503 NYS2d 821 [1st Dept 1986]). Finally, the fraud claim lacks legal sufficiency under the long
rule that the more fact that a borrower "sought and received a loan he could not a5ord does
standing
possible"
not mean that he can now proceed against the party that made his mistake (Pagerson v
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3.,,, estInvasnur Corp.., 96 AD3d 817, 946 NYS2d 217 pd Dept 2012]; see also Aydin v Opteum
Jrinaneral Services, LLC, 2014 WL 2612516 [E.D.N.Y 2014]).
The renalnigg noticed demands for relief while set forth,attematively,"In the aross
movhe
papers distillinto one pursuard to CPLR3012(d) for an extension oftime to answer by a
compelling
idaintif F toaccept the defendant's served answer or for leave to serve the answer
recently attached to
the moving papers under an extension of time granted by the come. To be entitled to this relieC itwas
gmunds"
incumbent uponthe cross moving defendant to demonstrate"excusable default whichrequire
a showing of a reasonable excuse for the default and a demonstration of a potentially meritorious
defense (see Mellon vismirligil, 88 AD3d 930, 931 NYS2d 667 [2d Dept2011],quoting,Wells Fargo
Bank,N.A. v Cervini, 84 AD3d789, 921 NYS2d 643 [2d Dept 2011];RSBC Bank GSA,NatL Ass¼
v Rottmi, 121 AD3d 855, 995 NYS3d 8 l[2d Dept 2014]; Mannino Den, Inc. v Linam, 117 AD3d
995, 986 NYS2d 578 [2d Dept 2014);Diaderielt v Wetrel, 112 AD3d 883, 979 NYS2d 605 [2d Dept
2013]; Community Presern Corp. v Bri4•ewater Condominiums, LLC, 89 AD3d 784, 785, 932
NYS2d 378 [2d Dept 201l]). A review of the cross moving papers reveals that the defendant failed to
establish either of these two necessary elements.
Nor isthe defendant entitled to an order deeming the service other answer dated September 12,
timely. The request for thisreliefis premised upon the withdrawal of the motion non-
2016, (#001) by
party, MargaretHowell, individually, as sole borrower and obligorunder themortgagenote, which was
allegedly conditioned upon a reservation of her right to interpose an answer once her pursuit of
settlement negotiations or a reinstatement and her motion (001) to dismiss were unsuccessful.
However, the cmss moving papers failed to demonstrate that any·such agreement was struck between
and binding upon counsel for the plaintiffand thenon-party defendant, who alone was the movant(see
CPLR. 2104). Nor was there any demonstration as to the manner in which any such agreement inured
to the benefit of the defendant tastee and thus available to her as support for the instant application.
To the extent that the defendant seeks tuch an order deeming her answer timely served, that application
is denied.
Although an express demand for dismissal of the complaint as abandoned pursuant to CPLR
3215(c) is not included in the defendant's notice of cross motion (#004), much of the cenant in the
attorney's affirmation is dedicated to a claim that the plaintiff is not entitled to a default .
underlying
judgment due to its abandonment of its claim for foreclosure and sale under CPLR 3215(c). This
statutory provision requires the plaintiff take proceedings for the entry ofjudgment within one year
after the default and ifitdoes not, the complaint shall be subject to dismissal as abandoned by the court
unless sufficient cause is shown why the complaint should not be so dismissed. Nevertheless, a
defendant may waive the right to seek relief under CPLR 3215(c) by serving an answer or taking "any
appearance"
other steps which may be viewed as a formal or informal (HSBC Bank USA, Nat. Ast'n
v Gratta, 145 AD3d 669, 44 NYS3d 56 [2d Dept 2016] quoting Meyers v Slusky, 139 D2d 709, 527
NYS3d 464 [2d Dept 1988]; see De Lourdes Torres v Joner, 26 NY3d 742, 772, 27 NYS3d 468
[2016] ; HSBC 127 AD3d 502, 503, 9 NYS3d 6 [2d Dept2015]; Hodson v Vinnle's
BankUSAvLuge,
Farne M2t., 103 AD3d 549, 959 NYS2d 440 [2d Dep 2013]). Here, the defendant Trustee appeared
in this action by her cmrent counsel upon the filingof his unqualified notice of appearance on January
15, 2014. In addition, the record reflects thatthe defendant served an answer upon plaintiff's counsel
in September of2016, which answer was subsequently rejected as untimely by plaintifF counsel. The
defendant thus waived any claim to relief under CPLR 3215(c), including thatthis action.
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In view of the foregoing, the comt denies allof the demmñds for relief asserted in the
hemby
def bndant's cross.atoving papers as itfinds thatthey all are lacking in merit The cross motion (#004)
is thus denied in its entirety. .
. Indontrast, the plaintifl's motion(#003)is grantetL Therequest f bres orderatthstitutingDitech
Pinancial, LLC for itselfas plaintiff issupported by due pmofthat the;!eintiff's successor by merger,
(Bank of America, N.A.), transfeaud both the note and mongage to Oreen Tree Bervicing, LLC, a
predecessor-in-interest merger toDitech Firianciat LLC, under the tanns of a writtyn assignment
by
dated Januany 6, 2014 (see CPLR 1018; see U.S. Bank Nat Asr•n v Akands, 136 AD3d 887, 26 ,
NYS3d 164 (2d Dept 2016]; quoting Br¾rhton BR; LLC v Kurbenly, 131 AD3d 1000, 1001, 17
NYSf3d 137 [2d Dept 2016]; seeWoortAmericaBankvGlobgiUnhersalGrotypLaf., 134 AD3d
699, 20 NYB3d 597 [2d Dept 2015]). Accordingly, the court hereby grants the applicatiots for a
substitution of the above named plaintiff by itsassignee, Ditech Financial, LLC, and a caption
amendment to reflect this change.
.
The court furthergrants those pertions ofthe plaintifPs motion (#003)in which itseeks an order
identifying the true name of a defendant served as unknown defendant"Jolm Doe", as Victoria Howell
and a capdon amendment to reflect thisidentification (see CPLR 1024;Loaneanv Carter, 139 AD3d
817, 31 N†S3d 564 [2d Dept 2016]). Pinally, the court grants the application for a defaultjudgments
and theissuance ofan orderofreference against alldefendants served with process, including Victoria
Howell, as.the moving papers included due proof of the facts constituting the plaintifPs claime for
foreclosuie and sale and the default in answering by all defendants served with process (see CPLR
3215[fj;HSBCBank USA, NA v Tiware, 139 AD3d 1009, 32 NYS3d 283 [2d Dept 2016}; f).S.
BankNA v Galley,.137 AD3d 1008, 27 NYS3d 601 [2d Dept2016];DeuscheBankNatl.SVustCo.
v Kuld(p, 136 AD3d 969, 25 NYS3d 653 [2d Dept 2016]). In addition, the plai'ntiffs submissions
included copies of the mortgage, the unpaid note and evidence of default in payment under the terms
of the loan documents thereby entitling the plaintiff to.the reference contemplated by RPAPL § 1321
(seeU.S. Bank NA v Smith, 132 AD3d 848, 850, 19NY53d 62 [2d Dept 2016];BankqfNew York
vStein, 130 AD 3d 552, 552-553, 13 NYS3d 458 [2d Dept 2015)).
The pmposed Order ofReference, as modified by the court to refleet the issuance of this memo
decision and order, has issudd herewith,.
.
- DATED: May 2017
- C
I·
C. RANDALL RI 'HS, J.S.C.
. .
-
[ ] FINAL DISPOSmON [ X ]'NON-FINALDISPOsmON[
a
FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021
b
FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021
SHORT RORM ORDER INDEX NO. 29767-2009
SUPREME COURT - BT E OF NEW YORK
TAE PART 49 - OLK COUNTY
PRESEÑT: Hon. C. RANDALL HINRICIf8 Motion Date: 9-21.2012
Justlem efthe 8upreene Oourt Adjoursed Dates MR-2018
Motion Sequenom OA5-AID
x
D1TECH PINANCL84 LLC $k/a ORBEN TRBB FRENKEL, LAMBERT, WBISS,
SBRVICING 14C, WBIBMAN & OORDON, LLP
Attorneys for Plaintiff
Plaintiff, 53 Oibson Street
Bay Shore, NY 11706
-againet-
MARK B. ALTER, BSQ.
MARGARET HOWELL, AB TRUSTEE OF THB Attorney for Defendant
MAROARET HOWELL TRUST, BANK OF Margaret Howell, as Trustee
Preview
FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 EXHIBIT S FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 SHORT FORM ORDER INDEX #:29767/09 RETURN DATE: 9/15/09 MOT. $EQ.: 001 SUPREME COURT - STATE OF NEW YORK I A.S. TERM, PART XXN- SUFFOLK COUNTY PRESENT: Hon. PETER FOX COHALAN CALENDAR DATE: April 14, 2010 MhfEMONIC: MWDN BAC HOME LOANS SERVICING, LP, ETC. PLTF'S/PET'S ATTORNEY: Plaintiff, Steven J. Baum,. Esq. -against- 220 Northpointe Parkway Amherst, NY14228 MARGARET HOWELL, AS TRUSTEE OF THE MARGARET HOWELL TRUST, BANK : OF AMERICA, N.A., etc. Margaret Howell, Pro So Defendants. 369 Gardiners Drive Bay Shore, NY 11706 Upon the papers read on this motion to dismiss, it is, ORDERED that this motion by the defhadant Pro So to dismiss is hereby withdrawn as the partles are engaged in settlement discussions. The foregoing constitutes the order of this Court. Dated: May 13, 2010 J.S.C. FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 MEMD DECIsION & ORDER thlDEX NO. 29 009 SUPREME COURT - STATE OF NEW YORK LA.S. PART 49 SUPPOLK COUNTY . PÎtBSENT: Motion X BAC HOME LOAN SERVIGINO, L.P.,f Wa PraahbI, Lanthert, Weiss, ' ' UNTB.YWIDE HOME LOAN SERVICING L.P., Weisman & Gordon, LLP ' '.' "" ~~ - - Stephen J. Esq. By Wallace, Attorneys for Plaintiff - Plaintiff, . 53 Oibson Snest . -against- Shore, NY I1706 Bay MAROARET itOWELL, AS TRUSTEE OF THE Law Offices of Mark L Alter MARGARET HOWELL TRUST, BANK OF By Margaret Alter, Bug. DOE" AMERICA, and ''JOH (thisname being Attorneya for Defendant Margaret Howell, it fict).tioup, being the intantian of the plaintiffto as Trustee of the Margaret Howell Test designate any and alloccupants of the premises being 320 Old Country Road, Suite 103 . . foreclosed heroin and any parties,corpdrations or Oarden City, NY 11530 . entities,ifany, having or claiming an interestor lien . . uppa themortgaged premises, . Victoria Howell - - ' ' ' · 1369 Oardiner Drive '- Defendants. Bay Shore, NY 11706 . . X . , Upon the readingand filingofthe following papersin thismatter:(1)Nodce ofMotion by the plaintif F, dated Januaty.13, 2016 and supporting papers; (2) Notice of Cross Motion by thedefendant, dated October 9, 2016 and papers; Affirmation in Oppositionto Cross Motion ofplaintifidated Dan•=h•r s, 2016 and supporting supporting (3) papers; and (4)Aff kmation inReply and infurthesupport of Cross-Motion by thedef bndent dated February p, 2017 and supporting papers: it is ORDERED that those portions of this motion (#003) by the plaintiff in which itseeks an order substituting Ditech Financial, LLC, successor by merger to Oreen Tree Servicing, LLC., is considered under CPLR 1018 and are granted; and itis further ORDERED that those portions of this nation (#0Ô3) by the p!=intiff in which itseeks an order amending the caption to reflect the substitution of Ditech Financial, LLC, granted above, are granted and the Clerk of this IAS Part is directed to note the substitution of Ditech Financial, LLC for the plaintiff named above and this caption amendment, upon entry of this order-, and itis further ORDERED that those portions ofthis plotion (#003) by the plaintiff wherein itseeks a default. judgment on itsclaims forrecovery ofa deficiencyjudgmentagainst the defendantmortgagor,lvJargaret Howell, sued herein solely in hot capacity as Trustee of the Marggret Howell Trust, isdenied and said claim is and itsfurther. dismissed; FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 ORDERED that the r=aining portions oftheplaintiff's motion (#003) for upon default ofthe mortgagor, MargaretHowell, as Trustee ofthe Margaret Howell Trust, and defendants served with process, including one served as an unknown defendant and other incident i relief is considered under CPL1t.3215, 1024 and RPPL§ 1321 and are granted; and itis further ORDFEED that the cross motion (#004). by the defendmat mortgagor, hdargaret Howell, as Trustee of the Margaret Howell Truat, for a direct and iramediate dismissal of this action, declaratory relief as to the unenforeeability of thtenote sad mortgagth and/6r teave en sppear herein service of by a late answer is considered under CPLR 3211, 321$(c), 3001 and 3012(d) and is denied. The plaintiff cernmenced this action ce July.30, 2009 to foreclose the lien of 5eptember 13, 2005 mortgage giverrby def badant,MargareLI4owell, in hercapacity as Trustee ofthe MasgaretHowell Trust, in Aver df America's Wholesale I,ander, to spanna a mortgage atxturof the same date given by Margaret Howell, individually, in the principal amonmtof$324,4$0EO to the lender. The plaintifFdid not join the sole obligor under the note as a party defendant, as the pla'mtiff was apparently*under the mistaken belief that the nom and mortgage were both executed by defendant, Margaret Howell in her capacity as Trustee ofthe Margaret Howell Trust (ase 1Second of the July 29,2009 complaint attached as Exhibit A to the plaintiff'smoving papers). The mortgagor defendant was served with process by in hand delivery pursuant to CPLR 308(1) on August 6,2009. In moving papera dated August 17, 2009, returnable on September 15, 2009, the non-party obligormoder the note, Magptat HoweB,.individnatlysfiled a pro so motion to dismiss the complaint on'the gmends tha‡she#qrgareslkweG,'halividually, wasnsversernyd-withstocess and onlylearani ofthc^commencement ofthls actlen whos, onAugust4,20093her"son was attheSuffolk.County Clerk ® and obtained infbrmation about her home and to his surprise, a foreclosure action was in feet feed by Bank ofAmerSca @rther mentionedms BAC)"tred Bxhibit affidavit ofMargamtHowell dated August 17, 2009, attached as Exhibit D to the deferalantWcross moving papers). Mrs. Howel1further averred that her son further informed her that, by letterdated August 4, 2009 from certain bankruptcy attomeys, id.).· they advised her of the filingof this action (see . The plaintiff opposed the non-party's motion (#001) for dismissal ofthe complaint, to which, said man-party replied. On the sixth scheduled day of oral argument before the Justice then presiding over thisaction, an orderissued by said Justice in which the def bndant's motionwas marked withdrawn due to the parties engagement in settlement discussions (ses Order dated May 13, 20 10 [Cohalan, Ji attached as Exhibit.D to the plaintiff's opposing/reply papeis). Said order incorrectly referred to the se" movant as "the defendant, pro since the defendant did not interpose the motion, only the non-party individual, Margaret Howell, so moved. In July of2012, thisaction was re-assigned to the case inventory of this court and the matter set for conference on September 21, 2012. Thereafter, the plaintiff fileda motion (#002) returnable on December 12, 2012, for an order of refererice on default. At the corfference held on November 28, 2012, the defendant, Margaret Howell as Trustee, appeared by her current counsc1, who characterized his appearance as "pro bono*and limited for purposes ofthateonference(ses Transcriptofhoceedings held of record on Novernber 28, 2012 attached as Exhibit E to the plaintifPs opposing/reply papers After conferring with the court, the plaintiff agreed to withdraw its motion so that settlement discussions between the borrower, Margaret Howell, indMdually (the sole obligor under the note) and the plaintiff could continue (Id.). 'The conference was adjoumed to January 30, 2013, but, due to a clerical error, the plaintiff's motiod (#002) tras not marked withdrawn until July 11, 2013. FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 The conferences continued thereaRer untilJanuary 15, 2014, when the matter was marked not settled. On thatdate, the def bndant's carent counsel Sled an unqualified notice of appearance, as counsel for such defendant In July of 2016, the plaintiff interposed itscurrent motion (#003) for an order of refbrance and the other mlief outlined above. A8er seveal adjournmeñts allowing for the interposition of the defendant's curmat cross motion (#004) mad two status conferences required by this contt, the plaintifPs motion(#003)and the defbndants cross motion(#004) weremarked submitted 23, 2017. Meanwhile, the plaintiff made a written offer of a trialmodification to the non- February party borrower, 1½srgaret Howell, in November of 2016, which she declinail to accept First considered is the defendant's eross tootton (#004) for an order granting a direct and immediate dismissal of thisaction and the other relief outlined above, as determination therest may render the plaintif Ps motion-in-chief, academic. The defendant's deumnds for dismissal appear to be premised in part upon certain of the grounds set forth in CPLR 3211, including legal insufEciency, failure to comply with ccaditions precadent, a lack of standing on the part of the plaintiff and a failure to join a necessary party. For the reasons stated the court rejects these claims as lacking merit The firstof the noticed dernands for dianissal ispredicated upon a CPLR3211(a)(7) clahn that the complaint is legally insufficient as itpurporadly fails to state a cognizable cause of action, This contention is completely without merit. It iswell setoed that the owner of a note and secured by .maggaga on real preggitty agay seek the remedy of foreolosure and sale·against the owner at the premises that were entembered by inch owner, who alone, put up his own property as security for the advancement of mortgage manies to another person or entity (see Amherst Factors, Jac, v Keckebnrger, 4 NY2d 203, 173 NYS2d 570 (1958] ("[t)hefacethat the ree plent oftheloanandthe morigqgor are not thesameperson[donnot)impatrthe validity gfan otherwise salldmaqqge";and "It is neither illegainer insproperto give such a morlgqge "j; 1855 East hement Corp. v Cathrdo [1" Holdings LLC, 102 AD3d 567, 961 NYS2d 25 Dept 2013]). However, the plaintif f s demands for a deficiency judgment against the defendant is legally insufRcient since such a judgment is available only against persons or entities who am signatories to and obligors under the note and whose joinder to the action was accomplished in a marmer sufficient to confer in personam jurisdietten over hira or her (ses RPAPL § 1371). The plaintifPs demands for a deficiency judgment against the defendant mortgagor, who is not an obligorunder the note, are thus dismiased as reverse summary judgment is hereby awarded to the defendant Trustee dismissing the pleaded to recover a deficiency judgment, The second noticed demand for dismissal rests upon a CPLR 321l(a)(10) defhnse that the plaintif f s failureto join Margaret Howell, the bonower and sole obligor under the note, as a defendant in her individual capacity, con,stitutesa failme to join a necessary party thereby warranting dismissal However, this claim isalso lacking in merit since an obligor under the note who is not a signatmy to the mortgage not a necessay party to a claim for foreclosure and sale (reg RPAPL§ 1311), unless a claim for a deficiency judgment against said obligor is demanded. Even ififwere the non- otherwise, joinder of a necessary party simply-leaves that party's right unaffected by the judgment catered in a farenlosure action (see (seePrharte Cqpital Group, LLC v Hassainipour, 86 AD3d 554, 927 NYS2d 665 [2d Dept 2011];142646St.,LLCusern, 60 AD3d740, 876 NYS2d 425 [2d Dept2009);Glass v Estate qfGold, 48 AD3d 746,853NYS2d 159 [2d Dept 2008]; 6820 Rides Realt yu Goldens, 263 AD2ld 22, 25, 701 hiY82d 69{2d Dept 1999];Scharaga v Schwant6erg, 149 AD2d 578, 579--580, 540 NYS2d 451 [2d Dept I1989];Polish Natt. AUlance of Brooklyn v White EagleHall, Co., 98 AD2d FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 672 [2d Dept 1983]). Accordingly, the non-joinder ofsuch obligor does not warrant dismissal of the action. The third noticed demand for dismissat of the complaint rests upon the defendant's claim that the plaintiff lacks standing to prosecute itsclaim for foreclosure and sale. This defense, which is one encompassed by CPLR3211(a)(3) (see WeDs Fargo Bank Minnesota, Nat. Ass's n Mastro paolo, 42 AD3d 239, 837NYS3d 247 [2d Dept 2007), also lacks meritJhe plaintiff s moving papers included due proof of the assignment of the subject note and mortgage by the plaintifPs successor by merger (Bank of America, N.A.) to Green Tree Servicing, LLC under the terms of a written assignment dated January 6,2014, that was recorded in theoffice ofthe Suffolk County Clerk onNovember25, 2016 (see Deutscha Bank Nat. 2vast Co. v Romane, 147 AD3d 1021, 48 NYS3d 237[2d Dept 2017]; U.S. Bank Natl.Ass'n. vAkande, 136 AD3d 887, 26 NYS3d 164[2d Dept 2016] ; Emigrant Bank v Larltra, 129 AD3d 904, 13 NY83d 129 [2d Dept 2015 ] ; ; PeakFim Partners, Inc., v Brook, 119 AD3d 539, 987 NYS2d 916 [2d Dept 2014]; Chase Home 11n., LLC s Micietta, 101 AD3d 1307, 956 NYS2d £71 [3d Dept 2012]). Momover, this defense was waived by the defendant's failum to assert it in a timely served answer or pre-enswer motion to dismiss (see Wells Fargo Bank Minnesota, Net. Ass'n n Mastropaolo, 42 AD3d 239, supra). Under these circumstances itmay not be used to support this motion to diambe pursuant to CPLR 3211 absent the of an extension of time (see untimely granting Nationster Mottage, LLC v Avella, 142 AD3d 594, 36 NYS3d 679 [2d Dept 2016]; Chase Home Finance v Garefa, 140 AD3d 820, 31 NYS3d 894 [2d Dept 2016]; U.S. Bank N.A. a Gonzales, 99 AD3d 694, 694--695, 952NYS2d 59[2d Dept 2012]; McGas v.Dann, 75 AD3d 624, 625, 906NYS2d 74 [2d Dept 2010];Countrywida Rome Loans, Inc. a DeQhonse, 64 AD3d 624, 883 NYS2d 135 [2d Dept 2009]). The defendant next demands a direct dismissal ofthe complaint on the grounds that the plaintiff did not timely engage in the settlement conthrence processes required by CPLR 3408 in certain mortgage foreclosure actions. However, the named defendant, Margaret Howell, was sued solely in a representative capacity as the Trustee of the Margaret Howell Trust, the sole owner of the mortgaged premises. The Trust is thus the sole real party defendant in interest,as non-party Margaret Howell, individually, is not a signatory of the mortgage indemme. The plaintiff thus had no duty to negotiate a^loan modification with the defendant, Margaret Howell in her capacity as Trustee of the Trust, as it was not the borrower to whom the original loan monies were advanced and secepted. Moreover, the Trust is not a defendant natural person nor does it occupy the mortgaged promises as a principal residence. The pmvisions of CPLR3408 applicable to thisaction arethus inapplicableto the defendant Trustee (ses CPLR3408). In itis the court - not the plaintiff- that isobligated to schedule any event, the conferences contemplated CPLR3408. The demand for dismissal of the complaint on the basis by of the plaintiff's fhilure to timely comply with CPLR3408 conference procedure isthus without merit The plaintiff s lastnoticed demand for a direct dismissal of the comp!eint ispremised upon a claim that the plaintiff did not comply with applicable Administrative Orders requiring the plaintiff's counseito vouch for the accuracy of certainpapers filed in thisaction. This claim is belied by the record which contains a fully compliant attomey's affirrnation required by A.O. 548/10 and 431/11 dated November 16, 2012 isnow before the court. A failure, ifany, on the part ofthe plaintiffto have served the attorney affirmation with itsfirst motion (#002) for an order of refbrance on defhult interposed in November of 2012 does not entitlethe defendant to a dismissal of the complaint (see Administrative Orders of the Chief Administrative Judge numbered 548/10 and 431/11). FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 .......- - . The restoration of the "defendant's" tiethndant also seeks sinorder directing the prior motion (6001)a0 dismiss the complaint on a lack ofpersonal jurisdiotlan gmunds and a traverse headagen the issueof service. this application is denied-since the prior tnotion (#001) was not interposed the by mortgagor defendant in this action. Instead, it wat interposed by the non-party borrower/obligor defendant, Margaret Howell, who therein claimed that she wasnever served withprocess and thatsuch lack of service warranted a dismissal of tbo compisint. *fhe inortgsgor defbndant is without any entitlement to assertthe defense of a lack of personal judsdiction over the borrower/obligor defendant as such defense ispersonal to said borrower and no traverse hearing isrequired (see IMC Marty. Ca, v Veters, 142 AD3d 954,37 NYS3d 329 [2d Dept 2016]; Wells Fargo Bank, NA. v Bowls, 89 AD3d 931, 932, 932NYS2d 702[2d Dept 2011);see also Wells Fargo Bank,NA. v Backmann, 145 AD3d 713, 43 NYS3d 107 [2d Dept 2016); JPMC Speelal0r Mortg. LLC v Espada, 143 AD3d 611, 40 [1" NYS3d 70 Dept 2016]). The related demand for a traverse hearing, to the extent asserted on behalf of the defendant in her representative capacity as Trustee ofthe Margaret Howell Trust, isalso rejected as lacking inmerit. The defendant Trustee's nuanced claim that she was unaware ofthe comm£ncement ofthis action until August 4, 2009 when her ann learned from the County Clerk that an action had been filed and by letter from bankruptcy attomeys of the same date do not constitute the specific factual averments necessary to rebut those contained in the affidavit of the process server who served the summons, complaint and other initiatmy papers upon the defendant, in her Trustee capacity (see Wachovia Mortgage Corp. v Tenssaint, 144 AD3d 1132, 43 NYS3d 373 [2d Dept 2016]; Wells Fargo Bank, NA. v Walter, 142 AD3d 992, 37NYS3d 446 [2d Dept2016];Mortgage Elec.RegistralianSys.,Inc.v Losco, 125 AD3d 733, 5 NYS3d 112[2d Dept2015]; Weehovia Bank,NA. v Carcane, 106 AD3d 726, 964NYS2d 246 [2d Dept 2013]). The defendant's demand f brthe scheduling of a traverse hearing on the issue of the existence or validity of service upon her in her Trustee capacity is thus denied. The defendant's noticed demand for, in e5ect, declarative relief in the form of a judicial declaration that the mortgage is void ab initio due to the plaintifs fraud, misrepresentation and the making of faine, misleading and inaccurate statements regarding material information provided the original lander for purposes of determining the defendant's eligibilityfor the subject loan isdenied. There are no pleaded demands for such reliefas required by CPLR 3001 or Article 15 of the Real Property Law, since the defendant defhulted in answering the summons and complaint, whit:h default has not been vacated. Under theses circumstances, the defendant's interposition atthis dernand for relief on her cross motion is procedurally def botive in a manner that implicates violations of well established notions of due process. In any event, the dernand for declaratory relief also lacks substantive merit as there are no allegations thatthe plaintiff participated in the original loan transaction or that such transaction was fraudulent Moreover, any and allclaims of fraud were waived since the loan transaction was ratified the borrower/obligor's receipt of the loan monies and the making of payments due under the terms by of the loan documents for a period'of several years without protest from said borrower/obligor and/or the defendant mortgagor (see Cort(ktential Landing LLC v Nurse, 120 AD3d 738, 992 NYS2d 77 [2d Dept ; Hypo Holdings Inc. v Chalasant, 280 AD2d 386, 721 NYS2d 35 [1st Dept 2001]; see 2014] also Kessler v Kessler, 89 AD3d 687, 931 NYS3d 702 [2d Dept 201 l];Feinstein v Levy, 121 AD2d 499, 503 NYS2d 821 [1st Dept 1986]). Finally, the fraud claim lacks legal sufficiency under the long rule that the more fact that a borrower "sought and received a loan he could not a5ord does standing possible" not mean that he can now proceed against the party that made his mistake (Pagerson v FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 3.,,, estInvasnur Corp.., 96 AD3d 817, 946 NYS2d 217 pd Dept 2012]; see also Aydin v Opteum Jrinaneral Services, LLC, 2014 WL 2612516 [E.D.N.Y 2014]). The renalnigg noticed demands for relief while set forth,attematively,"In the aross movhe papers distillinto one pursuard to CPLR3012(d) for an extension oftime to answer by a compelling idaintif F toaccept the defendant's served answer or for leave to serve the answer recently attached to the moving papers under an extension of time granted by the come. To be entitled to this relieC itwas gmunds" incumbent uponthe cross moving defendant to demonstrate"excusable default whichrequire a showing of a reasonable excuse for the default and a demonstration of a potentially meritorious defense (see Mellon vismirligil, 88 AD3d 930, 931 NYS2d 667 [2d Dept2011],quoting,Wells Fargo Bank,N.A. v Cervini, 84 AD3d789, 921 NYS2d 643 [2d Dept 2011];RSBC Bank GSA,NatL Ass¼ v Rottmi, 121 AD3d 855, 995 NYS3d 8 l[2d Dept 2014]; Mannino Den, Inc. v Linam, 117 AD3d 995, 986 NYS2d 578 [2d Dept 2014);Diaderielt v Wetrel, 112 AD3d 883, 979 NYS2d 605 [2d Dept 2013]; Community Presern Corp. v Bri4•ewater Condominiums, LLC, 89 AD3d 784, 785, 932 NYS2d 378 [2d Dept 201l]). A review of the cross moving papers reveals that the defendant failed to establish either of these two necessary elements. Nor isthe defendant entitled to an order deeming the service other answer dated September 12, timely. The request for thisreliefis premised upon the withdrawal of the motion non- 2016, (#001) by party, MargaretHowell, individually, as sole borrower and obligorunder themortgagenote, which was allegedly conditioned upon a reservation of her right to interpose an answer once her pursuit of settlement negotiations or a reinstatement and her motion (001) to dismiss were unsuccessful. However, the cmss moving papers failed to demonstrate that any·such agreement was struck between and binding upon counsel for the plaintiffand thenon-party defendant, who alone was the movant(see CPLR. 2104). Nor was there any demonstration as to the manner in which any such agreement inured to the benefit of the defendant tastee and thus available to her as support for the instant application. To the extent that the defendant seeks tuch an order deeming her answer timely served, that application is denied. Although an express demand for dismissal of the complaint as abandoned pursuant to CPLR 3215(c) is not included in the defendant's notice of cross motion (#004), much of the cenant in the attorney's affirmation is dedicated to a claim that the plaintiff is not entitled to a default . underlying judgment due to its abandonment of its claim for foreclosure and sale under CPLR 3215(c). This statutory provision requires the plaintiff take proceedings for the entry ofjudgment within one year after the default and ifitdoes not, the complaint shall be subject to dismissal as abandoned by the court unless sufficient cause is shown why the complaint should not be so dismissed. Nevertheless, a defendant may waive the right to seek relief under CPLR 3215(c) by serving an answer or taking "any appearance" other steps which may be viewed as a formal or informal (HSBC Bank USA, Nat. Ast'n v Gratta, 145 AD3d 669, 44 NYS3d 56 [2d Dept 2016] quoting Meyers v Slusky, 139 D2d 709, 527 NYS3d 464 [2d Dept 1988]; see De Lourdes Torres v Joner, 26 NY3d 742, 772, 27 NYS3d 468 [2016] ; HSBC 127 AD3d 502, 503, 9 NYS3d 6 [2d Dept2015]; Hodson v Vinnle's BankUSAvLuge, Farne M2t., 103 AD3d 549, 959 NYS2d 440 [2d Dep 2013]). Here, the defendant Trustee appeared in this action by her cmrent counsel upon the filingof his unqualified notice of appearance on January 15, 2014. In addition, the record reflects thatthe defendant served an answer upon plaintiff's counsel in September of2016, which answer was subsequently rejected as untimely by plaintifF counsel. The defendant thus waived any claim to relief under CPLR 3215(c), including thatthis action. FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 In view of the foregoing, the comt denies allof the demmñds for relief asserted in the hemby def bndant's cross.atoving papers as itfinds thatthey all are lacking in merit The cross motion (#004) is thus denied in its entirety. . . Indontrast, the plaintifl's motion(#003)is grantetL Therequest f bres orderatthstitutingDitech Pinancial, LLC for itselfas plaintiff issupported by due pmofthat the;!eintiff's successor by merger, (Bank of America, N.A.), transfeaud both the note and mongage to Oreen Tree Bervicing, LLC, a predecessor-in-interest merger toDitech Firianciat LLC, under the tanns of a writtyn assignment by dated Januany 6, 2014 (see CPLR 1018; see U.S. Bank Nat Asr•n v Akands, 136 AD3d 887, 26 , NYS3d 164 (2d Dept 2016]; quoting Br¾rhton BR; LLC v Kurbenly, 131 AD3d 1000, 1001, 17 NYSf3d 137 [2d Dept 2016]; seeWoortAmericaBankvGlobgiUnhersalGrotypLaf., 134 AD3d 699, 20 NYB3d 597 [2d Dept 2015]). Accordingly, the court hereby grants the applicatiots for a substitution of the above named plaintiff by itsassignee, Ditech Financial, LLC, and a caption amendment to reflect this change. . The court furthergrants those pertions ofthe plaintifPs motion (#003)in which itseeks an order identifying the true name of a defendant served as unknown defendant"Jolm Doe", as Victoria Howell and a capdon amendment to reflect thisidentification (see CPLR 1024;Loaneanv Carter, 139 AD3d 817, 31 N†S3d 564 [2d Dept 2016]). Pinally, the court grants the application for a defaultjudgments and theissuance ofan orderofreference against alldefendants served with process, including Victoria Howell, as.the moving papers included due proof of the facts constituting the plaintifPs claime for foreclosuie and sale and the default in answering by all defendants served with process (see CPLR 3215[fj;HSBCBank USA, NA v Tiware, 139 AD3d 1009, 32 NYS3d 283 [2d Dept 2016}; f).S. BankNA v Galley,.137 AD3d 1008, 27 NYS3d 601 [2d Dept2016];DeuscheBankNatl.SVustCo. v Kuld(p, 136 AD3d 969, 25 NYS3d 653 [2d Dept 2016]). In addition, the plai'ntiffs submissions included copies of the mortgage, the unpaid note and evidence of default in payment under the terms of the loan documents thereby entitling the plaintiff to.the reference contemplated by RPAPL § 1321 (seeU.S. Bank NA v Smith, 132 AD3d 848, 850, 19NY53d 62 [2d Dept 2016];BankqfNew York vStein, 130 AD 3d 552, 552-553, 13 NYS3d 458 [2d Dept 2015)). The pmposed Order ofReference, as modified by the court to refleet the issuance of this memo decision and order, has issudd herewith,. . - DATED: May 2017 - C I· C. RANDALL RI 'HS, J.S.C. . . - [ ] FINAL DISPOSmON [ X ]'NON-FINALDISPOsmON[ a FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 b FILED: SUFFOLK COUNTY CLERK 09/28/2021 01:27 PM INDEX NO. 029767/2009 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/28/2021 SHORT RORM ORDER INDEX NO. 29767-2009 SUPREME COURT - BT E OF NEW YORK TAE PART 49 - OLK COUNTY PRESEÑT: Hon. C. RANDALL HINRICIf8 Motion Date: 9-21.2012 Justlem efthe 8upreene Oourt Adjoursed Dates MR-2018 Motion Sequenom OA5-AID x D1TECH PINANCL84 LLC $k/a ORBEN TRBB FRENKEL, LAMBERT, WBISS, SBRVICING 14C, WBIBMAN & OORDON, LLP Attorneys for Plaintiff Plaintiff, 53 Oibson Street Bay Shore, NY 11706 -againet- MARK B. ALTER, BSQ. MARGARET HOWELL, AB TRUSTEE OF THB Attorney for Defendant MAROARET HOWELL TRUST, BANK OF Margaret Howell, as Trustee