Martin v. Lewis

1

2023 NY Slip Op 34114(U)

HON. LARRY D MARTIN, J.S.C. DEUTSCHE BANK, Plaintiff, v. AQUILA LEWIS et al, Defendant,

Index No. 525912/18

Supreme Court, Kings County

September 22, 2023

Unpublished Opinion

MOTION DECISION

DECISION AND ORDER

Hon Larry D Martin JSC

Recitation as required by CPLR §2219 (a), of the papers considered in the review of this Motion:

Papers Numbered

Motion (MS 3)

Opp/Cross (MS 4)

Reply/Opp to Cross

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

Plaintiff moves for renewal of its motion for summary judgment and Defendant's crossmotion for summary judgment which led to the dismissal of this action for failure to comply with RPAPL 1304. Defendant consents to renewal and the vacatur of the dismissal based upon Kessler but cross-moves for dismissal based upon an alleged failure to comply with RPAPL 1306.^[1] Plaintiff opposes.

It is undisputed that Plaintiffs proof of filing statement reflects that it provided erroneous information to DFS. Specifically Plaintiff characterized the loan as a 1^st lien when actually it is in second position, as adjustable rate when it has a fixed rate of 12%, and its term as "other" rather than fifteen years. Defendant argues that, in doing so, Plaintiff defeated the purpose of RPAPL 1306 and, thus, did not comply with that precondition to suit. Plaintiff counters that the errors are non-prejudicial and can be overlooked.

"[C]ompliance with RPAPL 1306 is a condition precedent to the commencement of a foreclosure action" (US Bank v Chiramannil, 205 A.D.3d 966, 967 [2d Dept 2022]). "RPAPL 1306(2) specifically requires the filing of information that 'will enable the superintendent to ascertain the type of loan at issue' (emphasis added) and states that the data collected shall be used to 'perform an analysis of loan types' (id. § 1306[4]) and to direct appropriate services to borrowers in need" (US Bank v Adams, 202 A.D.3d 867, 870 [2d Dept 2022]). "[T]he principal objective of the filings is to provide statistical data permitting DFS to accurately track and analyze loans at risk of foreclosure and properly allocate foreclosure counseling resources statewide in order to combat the mortgage crisis-an aim also reflected in the legislative history" (CIT Bank v Schiffman, 36 N.Y.3d 550, 559-560 [2021]). Herein the errors thwart that goal -DFS has been provided with the wrong lien position, wrong loan type, and wrong loan term all of which are certainly material to its analyses (see, Adams, 202 A.D.3d at 871).

Motion granted to the extent that renewal is granted and, thereupon, the previous dismissal is vacated. Cross-motion to dismiss granted. Case dismissed for failure to comply with RPAPL 1306.

This...