Motion-Secondary: Deutsche Bank National Trust Company AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF FEBRUARY 1, 2007, GSAMP TRUST 2007-FM2 v. Sarah Messiah, Heritage Asset Management, Inc., Brunswick Federal Credit Union, Mortgage Electronic Registration Systems, Inc. AS NOMINEE FOR FLEET BANK

On September 01, 2021 a Motion-Secondary was filed involving a dispute between Deutsche Bank National Trust Company As Trustee Under The Pooling And Servicing Agreement Dated As Of February 1, 2007, Gsamp Trust 2007-Fm2, and Brunswick Federal Credit Union, Heritage Asset Management, Inc., Mortgage Electronic Registration Systems, Inc. As Nominee For Fleet Bank, Sarah Messiah, for Real Property - Mortgage Foreclosure - Residential in the District Court of Nassau County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
---------------------------------------------------------------------X INDEX NO.: 015189/2008
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE UNDER THE POOLING AND
SERVICING AGREEMENT DATED AS OF
FEBRUARY 1, 2007, GSAMP TRUST 2007-FM2,
Plaintiff, AFFIRMATION IN
OPPOSITION
-against-

SARAH MESSIAH, BRUNSWICK FEDERAL CREDIT
UNION, HERITAGE ASSET MANAGEMENT, INC.,
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC. AS NOMINEE FOR FLEET BANK,
Defendants.
---------------------------------------------------------------------X

I, Brandon M Wrazen, Esq., pursuant to CPLR §2106 and under the penalties of perjury,

affirms as follows:

1. I am an attorney associated with Robertson, Anschutz, Schneid, Crane & Partners,

PLLC, attorneys for DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE

UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF FEBRUARY 1,

2007, GSAMP TRUST 2007-FM2 (“Plaintiff”).

2. I am fully familiar with the facts and circumstances of the case, the basis of my

knowledge being the file maintained by the office with respect to this matter.

3. The above-entitled action is for the foreclosure of a mortgage on the premises

known as 18 N Baldwin Pl, Massapequa, NY 11758 (hereinafter referred to as the “Subject

Premises”).

4. I make this Affirmation in Opposition to the Motion to Dismiss filed by defendant

Sarah Messiah (hereinafter referred to as “Defendant”) for an Order dismissing Plaintiff’s action

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(“Defendant’s Motion”). Defendant also sought preliminary injunctive relief, i.e., a temporary

restraining order staying Plaintiff from proceeding with the foreclosure sale closing of the Subject

Premises in an Order to Show Cause presently scheduled for July 14, 2023 pursuant to the Order

of this Court. However, Defendant’s application for a temporary restraining order staying Plaintiff

from proceeding with the foreclosure sale was denied in the signed Order to Show Cause. See

NYSCEF Doc. Nos. 47-48.

5. This Court should deny Defendant’s Motion because (1) Defendant is in default by

failing to timely appear in the above captioned action pursuant to CPLR § 320 or raise any

available defenses to the action; (2) the Court held Defendant in default by Order entered on

August 11, 2009, and Defendant has not sought to vacate her default pursuant to CPLR §5015(a)(1)

or CPLR § 317, and cannot move without doing so; (3) Defendant fails to present a reasonable

excuse for her failure to timely answer Plaintiff’s Complaint; (4) Defendant does not present a

meritorious defense to the foreclosure action; (5) Judgment of Foreclosure and Sale is final.

RELEVANT PROCEDURAL HISTORY

6. This action was commenced by the filing of the Summons and Complaint in the

NASSAU County Clerk's Office on August 14, 2008. See NYSCEF Doc. 16.

7. All Defendants were served and having received no Answer, On or about February

2, 2009, Plaintiff filed a motion for Order of Reference. Said motion was granted on August 11,

2009. See NYSCEF Doc. 17.

8. On or about February 23, 2010, Plaintiff filed a motion for Judgment of Foreclosure

and Sale. Said motion was granted on April 20, 2010. . See NYSCEF Doc. 18.

9. On September 17, 2012, the action was mark “disposed pending further app” by

the Court.

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10. On or about December 1, 2017, Plaintiff filed a motion to Vacate the dismissal and

restore the matter to the active calendar. Said motion was granted on April 3, 2018. See NYSCEF

Doc. 19.

11. On or about November 16, 2018, Plaintiff filed a motion seeking to Appoint a

Substitute Referee to Sell. Plaintiff was granted an Order Appointing Substitute Referee to Sell

dated February 06, 2019 and entered on February 7, 2019. See NYSCEF Doc. 20.

12. Plaintiff thereafter filed a request to file a Notice of Sale on January 27, 2022 which

was granted on February 15, 2022 directing the Property to be sold at auction on May 19, 2022.

See NYSCEF Doc. 4.

13. Defendant filed an Order to Show Cause to dismiss which was signed by the Court

on April 28, 2022. See NYSCEF Doc. 7.

14. The May 19, 2022 sale was cancelled and the Court issued an Order dated April 29,

2022 that due to a loss mitigation application, the sale would be cancelled. See NYSCEF Doc. 9.

15. On April 28, 2022, Defendant additionally filed a Motion to Dismiss and Vacate

the granted Judgment raising substantially the same arguments in her April 28, 2022 Order to Show

Cause. See NYSCEF Doc. 10.

16. By Decision and Order dated July 28, 2022 and entered on August 3, 2022, the

Court denied Defendant’s Order to Show Cause and Motion to Dismiss finding that service was

not properly effectuated on Plaintiff for either and thus, the Court did not have jurisdiction to hear

the Motions. Notice of Entry was filed on August 12, 2022. See NYSCEF Docs. 31-32.

17. Plaintiff again noticed the sale of the Property for October 6, 2022. See NYSCEF

Doc. 36.

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18. Prior to the sale, Defendant filed another Order to Show Cause seeking a TRO and

dismissal. The Court declined to sign the proposed Order to Show Cause dated October 20, 2022.

See NYSCEF Doc. 39.

19. However, prior to the sale date, Defendant filed for bankruptcy and the action was

stayed and sale cancelled.

20. Plaintiff again noticed the sale of the Property for May 23, 2023. See NYSCEF Doc.

42.

21. Defendant filed a 3rd Order to Show Cause seeking substantially the same relief as

the prior 2 which was signed by the Court on May 23, 2023; however, the TRO language was

struck from the signed Order. See NYSCEF Doc. 48. The Order to Show Cause is currently

returnable for July 14, 2023.

22. Subsequent to the Order to Show Cause return date, Defendant additionally filed

the present Motion seeking to again dismiss the action for Plaintiff’s lack of standing and

Plaintiff’s compliance with the applicable statute of limitations.

23. On May 23, 2023, the Property went to auction and was sold to a third-party with

the closing being scheduled.

ARGUMENT

I. DEFENDANT IS IN DEFAULT AND HAS FAILED TO SEEK AN ORDER
VACATING HER DEFAULT

24. As noted above, Defendant is seeking dismissal of the Complaint.

25. However, default judgment was granted against Defendant by Order of Reference

entered on August 11, 2009. Said Order of Reference was served on Defendant with Notice of

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Entry on September 11, 2009. Annexed hereto as Exhibit “A” is a copy of the Order of Reference

with Notice of Entry.

26. Accordingly, Defendant remains in default in this action and is not entitled to seek

any affirmative relief until Defendant vacates said default.

27. CPLR § 5015, entitled Relief from Judgment or Order, states in pertinent part:

(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, upon
the ground of: 1. excusable default, if such motion is made within
one year after service of a copy of the judgment or order with written
notice of its entry upon the moving party, or, if the moving party has
entered the judgment or order, within one year after such entry;

28. It is well settled under New York law that, in order to vacate a default, a defendant

must provide a reasonable excuse for the default and demonstrate the existence of a meritorious

defense to the foreclosure action. See CPLR §5015[a][1]; Lemberger v. Congregation Yetev Lev

D'Satmar, Inc., 33 AD3d 671, 672, 822 N.Y.S.2d 597; Krieger v. Cohan, 18 AD3d 823, 796

N.Y.S.2d 633; Kaplinsky v. Mazor, 307 AD2d 916, 762 N.Y.S.2d 902.

29. Here, even though it would be impossible for Defendant make a timely motion

pursuant to CPLR § 5015(a)(1) as the Order of Reference was served upon Defendant with Notice

of Entry more than 10 years ago, Defendant entirely fails to offer a reasonable excuse for her

default in the foreclosure action.

30. Where the movant fails to demonstrate a reasonable excuse for the default, there is

no need to consider whether he has proffered a potentially meritorious defense. Reich v. Redley,

96 A.D.3d 1038 (2d Dept. 2012); Fremont Investment & Loan v. Bertram, 90 A.D.2d 988 (2d

Dept. 2011); General Elec. Tech. Servs. Co. v. Perez, 156 A.D.2d 781, 783 (3d Dept. 1989) (“If

there is a failure to establish either a reasonable excuse or a meritorious defense, it is an

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improvident exercise of discretion to vacate the default judgment”) citing Roundout Val. Pub. Co.

v. AM Int., 93 A.D.2d 912 (3d Dept. 1983).

31. Notwithstanding the foregoing, Defendant wholly fails to demonstrate a

meritorious defense to the foreclosure action. It should be noted that Defendant waived any

challenge to Plaintiff’s standing or statute of limitations to commence this action by way of

Defendant’s failure to timely interpose an answer or pre-answer motion to dismiss as will be

discussed at length infra.

32. As a result, Defendant fails to show that she is entitled to an Order for the relief

requested. Moreover, Defendant also fails to show that she is entitled to vacatur of the default

judgment granted against her, if she had sought such relief as would have been proper in this

instance.

II. DEFENDANT WAIVED ANY CHALLENGE TO PLAINTIFF’S STANDING TO
COMMENCE THIS ACTION

33. As noted above, Defendant argues in her Motion (and Order to Show Cause) that

Plaintiff did not have standing to commence this action.

34. It should first be noted that Defendant’s argument that the documents submitted by

Plaintiff were altered because they were redacted is wholly without merit. Pursuant to 22 NYCRR

§ 202.5, Plaintiff is required to redact any information on documents containing in pertinent part,

taxpayer ID numbers, social security numbers, dates of birth, and any financial account numbers.

35. Nevertheless, Defendant has waived any challenge to Plaintiff’s standing by failing

raise same in a timely answer or pre-answer motion to dismiss.

36. The Court of Appeals and the Second Department have squarely held that a defense

based on Plaintiff's lack of standing must be asserted in a defendant's answer or pre-answer motion

to dismiss the complaint or it is waived pursuant to CPLR §3211(e). See Wells Fargo Bank

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Minnesota, National Association v. Mastropaolo, 837 N.Y.S.2d 247, 42 A.D.3d 239 (2d Dept.

2007) at 250 citing Matter of Fossella v. Dinkins, 66 NY2d 162, 167-168, 485 NE2d 1017, 495

NYS2d 352 (1985); Dougherty v. City of Rye, 63 NY2d 989, 991-992, 473 NE2d 249, 483 NYS2d

999 (1984); Matter of Prudco Realty Corp v. Palermo, 60NY2d 656, 657, 455 NE2d 483, 467

NYS2d 830 (1983); Security Pac. Natl. Bank v. Evans, supra; Matter of Klein v. Garfinkle, 12

AD3d 604, 786 NYS2d 77 (2004); Continental Capital Corp v Fiore, 239 AD2d 381, 658 NYS2d

889 (1997); Gilman v. Abagnale, 235 AD2d 989, 653 NYS2d 176 (1997); National Assn. of Ind.

Insureers v. State of New York, 207 AD2d 191, 197, 620 NYS2d 448 (1994), affd 89 NY2d 950,

678 NE2d 465, 655 NYS2d 853 (1997).

37. Accordingly, once the defense is waived, the Court cannot, sua sponte, dismiss the

Complaint for lack of standing. See e.g. US Bank Natl. Assn. v. Emmanuel, 2011 Slip Op 03586

(2d Dept. 2011) (party's lack of standing does not constitute jurisdictional defect and does not

warrant sua sponte dismissal by the Court); Mastropaolo, supra at 252.

38. In HSBC v. Dammond, 59 A.13.3d 679, 875 NYS 2d 490 (2d Dept. 2009), the

Second Department expanded on Mastropaolo's holding to include defendants who had defaulted

in answering a complaint for foreclosure.

39. As explained by the Court of Appeals, in a decision relied upon heavily by the

Second Department in Mastropaolo:

[Q]uestions of [ ] standing of parties may be
characterized as raising questions of subject matter
jurisdiction (see, e.g., Sosna v Iowa, 419 U.S. 393,
398, 402, supra; Massachusetts v Mellon, 262 U.S.
447, 484-485). But these are not the kinds of judicial
infirmities to which CPLR 5015 (subd [a], par 4) is
addressed. That provision is designed to preserve
objections so fundamental to the power of
adjudication of a court that they survive even a final

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judgment or order (see, generally, 5 Weinstein-Korn-
Miller, NY Civ Prac, par 5015.10).

In Thrasher v United States Liab. Ins. Co. (19 NY2d
159, 166), this court, in discussing subject matter
jurisdiction, drew a clear distinction between a
court's competence to entertain an action and its
power to render a judgment on the merits (accord
Burnet v Desmornes, 226 U.S. 145, 147 [Holmes, J]).
Absence of competence to entertain an action
deprives the court of "subject matter jurisdiction";
absence of power to reach the merits does not.

Lacks v. Lacks, 41 N.Y.2d 71, 74-75 (1976).

40. Justice Oliver Wendell Holmes seems to have best articulated said principle:

Whether prescription goes only to the remedy or
extinguishes the right, it affects the jurisdiction no
more than any other defense. When a court has
general jurisdiction to try the question whether an
alleged right exists the rules that determine the
existence of the right ordinarily govern the duty only
of the court, not its power.

Burnet v. Desmornes, 226 U.S. 145, 147 (1912).

41. “The Supreme Court indisputably has the power to entertain mortgage foreclosure

actions, like this one (see Security Pac. Natl. Bank v Evans, supra at 280), and that power remained

undisturbed by” purported defects in the plaintiff’s standing. Mastropaolo, supra at 244.

42. “Whether the action is being pursued by the proper party is an issue separate from

the subject matter of the action or proceeding, and does not affect the court's power to entertain

the case before it.” Mastropaolo, supra at 243; Taher, supra; Matter of Dadey v Hunter, 970

N.Y.S.2d 852 (4th Dept. 2013); New York Commercial Bank v J. Realty F Rockaway, Ltd., 108

A.D.3d 756 (2d Dept. 2013); Ashley, supra; McHale, supra. See Deutsche Bank National Trust

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Company v. Ford, 183 A.D.3d 1168, 124 N.Y.S.3d 430 (3d Dept. 2020)(standing of plaintiff to

bring suit ‘is an issue separate from the subject matter of the action ..., and does not affect the

court's power to entertain the case before it).

43. “[A] party's lack of standing does not constitute a jurisdictional defect”. U.S. Bank,

Natl. Assn. v Emmanuel, 83 A.D.3d 1047, 1048-1049 (2d Dept. 2011).

44. Accordingly, a party’s lack of standing does not constitute a jurisdictional defect.

45. Further, Plaintiff acknowledges the recently enacted RPAPL §1302-a, entitled

“defense of lack of standing; not waived”, which became effective on December 23, 2019, and

provides the following,

“Notwithstanding the provisions of subdivision (e) of rule thirty-two
hundred eleven of the civil practice law and rules, any objection or
defense based on the plaintiff's lack of standing in a foreclosure
proceeding related to a home loan, as defined in paragraph (a)
of subdivision six of section thirteen hundred four of this article,
shall not be waived if a defendant fails to raise the objection or
defense in a responsive pleading or pre-answer motion to dismiss.
A defendant may not raise an objection or defense of lack of
standing following a foreclosure sale, however, unless the judgment
of foreclosure and sale was issued upon defendant's default.”
Emphasis added.

46. However, nowhere in the foregoing statute does it say it has retroactive application.

Accordingly, it is presumed to only have prospective application. Cty. of St. Lawrence v. Daines,

81 A.D.3d 212, 214–15, 917 N.Y.S.2d 330, 332 (3rd Dep’t 2011) (holding that where a statute did

not explicitly provide for retroactivity it was to be accorded only a prospective application);

Murphy v. Bd. of Educ., N. Bellmore Union Free Sch. Dist., 104 A.D.2d 796, 797, 480 N.Y.S.2d

138, 139 (2d Dep’t 1984), aff'd, 64 N.Y.2d 856, 476 N.E.2d 651 (1985) (“As a general

rule statutes are to be construed as prospective only in the absence of an unequivocal expression of

a legislative intent to the contrary, and where a statute directs that it is to take effect immediately,

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it does not have any retroactive operation or effect (McKinney's Cons.Laws of N.Y., Book

1, Statutes, § 51, subd. b)”).

47. Accordingly, as this action was commenced more than 11 years prior to the

enactment of the aforementioned statute which did not become effective until December 23, 2019

and contains no language about retroactive application, Defendant has waived any challenge to

Plaintiff’s standing.

48. As detailed at length supra, Defendant cannot challenge Plaintiff’s standing due to

Defendant’s failure to timely answer the Complaint or seek to vacate Defendant’s default and for

leave to file a late answer. Moreover, the Court cannot sua sponte dismiss the Complaint for lack

of standing pursuant to the Second Department’s decision in Emmanuel.

49. Furthermore, Defendant did not raise this argument in opposition to Plaintiff’s

motion for Order of Reference or Judgment of Foreclosure and Sale. Therefore, Defendant should

not be able to raise this argument at this stage of the litigation as Judgment of Foreclosure and Sale

is final as to all issues that were, or could have been, litigated as will be discussed at length infra.

50. Based on the foregoing, Defendant’s Order to Show Cause should be denied in its

entirety.

III. ANY DEFENSE PREMISED UPON THE EXPIRATION OF THE STATUTE OF
LIMITATIONS HAS BEEN WAIVED BY DEFENDANT’S FAILURE TO RAISE
SAME IN AN ANSWER OR PRE-ANSWER MOTION TO DISMISS
51. Defendant has additionally waived any defense premised upon the expiration of the

statute of limitations by failing to raise same in an answer or pre-answer motion to dismiss.

52. CPLR §3211(e) provides in pertinent part,

(e) Number, time and waiver of objections; motion to plead over.
At any time before service of the responsive pleading is required, a
party may move on one or more of the grounds set forth in
subdivision (a), and no more than one such motion shall be

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permitted. Any objection or defense based upon a ground set
forth in paragraphs one, three, four, five and six of subdivision
(a) is waived unless raised either by such motion or in the
responsive pleading. Emphasis added.

53. Accordingly, Defendant has waived this defense as a matter of law by failing to

raise said defense in a pre-answer motion to dismiss or in an answer. See CPLR §3211(e). See

also Dougherty v. City of Rye, 63 N.Y.2d 989, 483 N.Y.S.2d 999, 473 N.E.2d 249 (1984); Innis v.

State, 60 N.Y.2d 654, 467 N.Y.S.2d 830, 455 N.E.2d 483 (1983).

54. Based on the foregoing, Defendant’s Motion should be denied in its entirety.

IV. DEFENDANT’S REQUEST FOR DISMISSAL SHOULD BE DENIED AS
JUDGMENT OF FORECLOSURE AND SALE IS FINAL AS TO ALL ISSUES
THAT WERE OR COULD HAVE BEEN LITIGATED

55. Defendant’s challenge to issues that have already been decided via prior

interlocutory orders, such as Plaintiff’s standing and statute of limitations, must fail because the

right to challenge the same terminated with the entry of the final judgment of foreclosure and sale.

Nivens v. NYC Housing Authority, 246 A.D.2d 52, 667 N.Y.S.2d 415 (2nd Dept. 1998); Gruen v.

Village of Piermont, 131 A.D.3d 1007, 16 N.Y.S.3d 273 (2nd Dept. 2015). Upon entry of a final

judgment, appellate review of the intermediate orders is only available on appeal of the final

judgment. In re Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285 (Ct. of Appeals 1976); Davon v. Downe

Communications, 42 A.D.2d 889, 347 N.Y.S.2d 459 (1st Dept. 1973).

56. The judgment of foreclosure and sale entered against a defendant is final as to all

questions at issue between the parties, and all matters of defense that were or might have been

litigated in the foreclosure action are concluded. 83-17 Broadway Corp. v. Debcon Financial

Services, Inc., 39 A.D.3d 583, 835 N.Y.S.2d 602 (2nd Dept. 2007); NAB Asset Venture IV, LLP v.

Orangeburg Equities, 19 A.D.3d 565, 796 N.Y.S.2d 536 (2nd Dept. 2005) [“A judgment of

foreclosure and sale entered against a defendant is final as to all questions at issue between the

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parties, and all matters of defense which were or might have been litigated in the foreclosure action

are concluded.”] See Green Point Sav. Bank v. Clarke, 220 A.D.2d 384, 385, 631 N.Y.S.2d 888;

Money Store of N.Y. v. Doner Holding Corp., 112 A.D.2d 284, 287, 491 N.Y.S.2d 730; Gray v.

Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168, 442 N.Y.S.2d 610 (3rd Dept. 1981), appeal

denied 58 N.Y.2d 604, 459 N.Y.S.2d 1026, 445 N.E.2d 564.

57. Recently, in the matter of Tromba v. Eastern Federal Savings Bank, FSB, 148

A.D.3d 753, 48 N.Y.S.3d 501 (2nd Dept. 2017), the Second Department found that a judgment of

foreclosure and sale is final as to all questions at issue between the parties, and concludes all

matters of defense which were or might have been litigated in the foreclosure action. A judgment

of default which has not been vacated is conclusive for res judicata purposes, and encompasses the

issues which were raised or could have been raised in the prior action.

58. The Second Department, in Glickman v. Bd. Of Educ., 278 A.D.2d 364, 366, 717

N.Y.S.2d 373, 374-75 (2nd Dept. 2000), recognized that in New York State there is a “rule

regarding the finality of judgments” and held that “because the plaintiffs’ motion was made after

judgment was entered and the time to appeal had expired, it should have been denied as untimely.”

59. The Third Department, in James v. Shave, 97 A.D.2d 927, 471 N.Y.S.2d 17 (3rd

Dept. 1983), affirmed 62 N.Y.2d 712, 476 N.Y.S.2d 532, 465 N.E.2d 39, held “no plenary action

lies to set aside a prior judgment. This can only be effected by a proper and timely motion to

vacate. CPLR § 2221.

60. The Fourth Department, in Quinn v. Guerra, 26 A.D.3d 872, 811 N.Y.S.2d 238 (4th

Dept. 2006), held the [court] has the inherent authority to vacate its own order for ‘sufficient

reason, in the furtherance of justice however that inherent authority is not unlimited. “A court’s

inherent power to exercise control over its judgments is not plenary, and should be resorted to only

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to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or

excusable neglect. McKenna v. County, 61 N.Y.2d 739, 742, 472 N.Y.S.2d 913, 460 N.E.2d 1348

[internal quotation marks omitted]; see Dyno, 300 A.D.2d at 785, 752 N.Y.S.2d 117; Gasteiger v.

Gasteiger, 288 A.D.2d 881, 732 N.Y.S.2d 300.”

61. Defendant is attempting to litigate defenses that could have been raised throughout

the course of the litigation of this matter.

62. As such, this matter has been litigated to a conclusion, the Property has been sold,

and Defendant may not attempt to re-litigate this action. Accordingly, Defendant’s Motion should

be denied in its entirety.

V. DEFENDANT’S MOTION SHOULD BE BARRED BY LACHES

63. In Markell v Markell, 91 AD3d 832, 834 (2d Dept 2012), the Second Department

held: “The doctrine of laches is an equitable doctrine which bars the enforcement of a right where

there has been an unreasonable and inexcusable delay that results in prejudice to a party …

Notably, “[p]rejudice may be established by a showing of…change of position…or some other

disadvantage resulting from the delay” (Skrodelis v. Norbergs, 272 A.D.2d at 316–317).”

64. Clearly, the Defendant’s delay in making this motion all these years without any

credible explanation for delay requires that their motion must be dismissed based upon the doctrine

of laches. See, Hudson City Sav. Bank v Hossain, 181 AD3d 572 (2d Dept 2020) (“combination

of inexcusable delay and detriment to other parties requires application of the doctrine of laches”);

Chase Manhattan Mortg. Corp. v Anatian, 22 AD3d 625 (2d Dept 2005) First Nationwide Bank

v. Calano, 223 A.D.2d 524, 525, 636 N.Y.S.2d 122, 123 (2d Dep’t 1996)(denying motion to vacate

because of delay in moving until after foreclosed property was transferred); Kent v Fearless Realty,

Inc., 174 AD2d 499 (1st Dept 1991) (“Even if a party has a potentially meritorious defense, a

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default judgment should not be vacated if that party has stood by idly, willfully and persistently,

while the action proceeded to judgment and enforcement proceeds”). Amsterdam Sav. Bank v City

View Mgt. Corp., 45 NY2d 854 (1978) (“The three-month delay in taking action after having

learned within minutes of the irregularity in the foreclosure proceeding was inexcusable, and

caused a substantial change in position by respondents, who had contracted to resell the property

to third parties. This combination of inexcusable *856 delay and detriment to other parties requires

application of the doctrine of laches.

VI. PLAINTIFF TIMELY COMMENCED THIS ACTION

65. As a general matter, the six year statute of limitations to foreclose begins to run on

the entire mortgage debt once a mortgage debt is accelerated. See e.g., CPLR § 213(4); see also

EMC Mtge. Corp. v Patella, 279 AD2d 604 (2d Dept. 2001); Federal Natl. Mtge. Assn. v Mebane,

208 AD2d 892, (2d Dept. 1994).

66. Regardless, “[W]ith respect to a mortgage payable in installments, there are

‘separate causes of action for each installment accrued, and the Statute of Limitations [begins] to

run, on the date each installment [becomes] due.” Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753

(2d Dept 2011)

67. "[E]ven if a mortgage is payable in installments, once a mortgage debt is

accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire

debt" (Wells Fargo Bank, N.A. v Burke, 94 A.D.3d 980 (2d Dept 2012) quoting EMC Mtge. Corp.

v Patella, 279 A.D.2d 604, 605 (2d Dept 2001).

68. A mortgage debt is accelerated when a creditor commences an action to foreclose

upon a note and mortgage and seeks, in the complaint, payment of the full balance due (see Milone

v US Bank N.A., 164 A.D.3d 145, 152 (2d Dept 2018).

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FILED: NASSAU COUNTY CLERK 06/19/2023 04:20 PM INDEX NO. 015189/2008
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/19/2023

69. Here, Plaintiff commenced this action on August 14, 2008 for a default of a March

1, 2008 payment, well within the six years allowed by the statute.

70. Defendant incorrectly raises the Foreclosure Abuse Prevention Act (“FAPA”)

stating that because this action has commenced for longer than 6 years, the statute of limitations

has expired. This argument is inapplicable and without merit.

71. There is no provision in FAPA, or any case law, that states that a foreclosure must

come to a conclusion within 6 years after commencement.

72. As such, Defendant’s Motion should be denied.

WHEREFORE, your affirmant prays for an Order of this Court: Denying the Defendant’s

motion in its entirety with prejudice; and for such other and further relief as the Court may deem

just and proper.

Dated: June 19, 2023
Westbury, New York

ROBERTSON, ANSCHUTZ, SCHNEID,
CRANE & PARTNERS, PLLC

____________________________________
By: Brandon M Wrazen, Esq.
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, New York 11590
Telephone: 516.280.7675

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FILED: NASSAU COUNTY CLERK 06/19/2023 04:20 PM INDEX NO. 015189/2008
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/19/2023

WORD COUNT CERTIFICATION

The total number of words in the foregoing brief, memorandum, affirmation or affidavit
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc. is 4,335.
The document complies with the applicable word count limit and is based on the word
count of the word-processing system used to prepare the document.

Date: June 19, 2023
Westbury, New York

_______________________
Brandon M Wrazen, Esq.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, NY 11590
516-280-7675

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FILED: NASSAU COUNTY CLERK 06/19/2023 04:20 PM INDEX NO. 015189/2008
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/19/2023

INDEX NO.: 015189/2008

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER THE POOLING
AND SERVICING AGREEMENT DATED AS OF FEBRUARY 1, 2007, GSAMP TRUST 2007-
FM2,

Plaintiff,
vs.

SARAH MESSIAH, BRUNSWICK FEDERAL CREDIT UNION, HERITAGE ASSET
MANAGEMENT, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS
NOMINEE FOR FLEET BANK,

DEFENDANTS.

AFFIRMATION IN OPPOSITION

ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC
Attorneys for Plaintiff
900 Merchants Concourse
Westbury, New York 11590
Phone: 516.280.7675
Facsimile: 516.280.7674 (not for service)

===============================

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Case Info

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Nassau Fp2 Track Judge’s New Case

Case No.

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Document Filed Date

June 19, 2023

Case Filing Date

September 01, 2021

County

Parties

BORISKIN, SARA Z. Attorney for the Plaintiff
BRUNSWICK FEDERAL CREDIT UNION Defendant
DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF FEBRUARY 1, 2007, GSAMP TRUST 2007-FM2 Plaintiff
HERITAGE ASSET MANAGEMENT, INC. Defendant
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR FLEET BANK Defendant
Sarah Messiah Defendant
WRAZEN, BRANDON MICHAEL Attorney for the Plaintiff
SAMANTHA SANDLER Attorneys for Plaintiffs
JAMES ROBERTSON Attorney
JOHN CRISAN Attorney
WILLIAM KNOX Attorney
DANIEL GREENBAUM Attorneys for Plaintiffs
FRANK DODDATO Attorneys for Plaintiffs
GREGG SIDOTI Attorneys for Plaintiffs
RAQUEL FELIX Attorney
ORIT AVRAHAM Attorneys for Plaintiffs
PAUL MAHLER Attorney
DAVID GRANTZ Attorneys for Plaintiffs
JULIA KRUKOWSKI Attorneys for Plaintiffs
LUCE PIERRE-RUSSON Attorneys for Plaintiffs
KIMBERLY MULLIGAN Attorney

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