Ocwen Loan Servicing v. Coles

203 N.Y.S.3d 351

OCWEN LOAN SERVICING, LLC, plaintiff,

v.Alvarine COLES, etc., appellant, et al., defendants;

Wilmington Savings Fund Society, FSB, etc., nonparty-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 14, 2023

January 10, 2024

Michael Kennedy Karlson, New York, NY, for appellant.

Friedman Vartolo LLP, New York, NY (Ronald P. Labeck, Oran Schwager, and Zachary Gold of counsel), for nonparty-respondent.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Alvarine Coles appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Sally Unger, J.), entered October 16, 2019. The order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court dated November 26, 2018, inter alia, granting those branches of the plaintiff’s motion which were pursuant to CPLR 5015(a) to vacate a prior order of the same court dated November 9, 2017, directing dismissal of the complaint insofar as asserted against the defendant Alvarine Coles, to reinstate the notice of pendency, to restore the action to the active calendar, to confirm a referee’s report, and for a judgment of foreclosure and sale, granted those branches of the plaintiff’s motion, confirmed the referee’s report, and directed the sale of the real property at issue.

ORDERED that the order and judgment of foreclosure and sale is modified, on the law, (1) by deleting the provisions thereof granting those branches of the plaintiff’s motion which were to confirm the referee’s report and for a, judgment of foreclosure and sale, and substituting therefor provisions denying those branches of the motion, and (2) by deleting the provision thereof directing the sale of the real property at issue; as so modified, the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs to the defendant Alvarine Coles payable by Wilmington Savings Fund Society, FSB, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

In 2013, the plaintiff, Ocwen Loan Servicing, LLC (hereinafter Ocwen), commenced this action to foreclose a mortgage on certain real property located in Queens (hereinafter the property), owned by, among others, the defendant Alvarine Coles (hereinafter the defendant). The defendant failed to interpose an answer to the complaint or appear in the action. By order dated March 1, 2017, the Supreme Court granted Ocwen’s motion, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. The defendant did not move to vacate that order.

Thereafter, the Supreme Court marked the matter "final," and directed Ocwen to move for a judgment of foreclosure and sale by October 24, 2017. Ocwen failed to comply. In an order dated, November 9, 2017 (hereinafter the November 2017 order), the court, inter alia, directed dismissal of the complaint, without prejudice, and the cancellation and discharge of all notices of pendency filed in the action.

Notwithstanding the issuance of the November 2017 order, in May 2018, Ocwen served the defendant, among others, with a notice of computation. In June 2018, a special referee executed an oath of computation and issued a report of computation, reporting, inter alia, that the amount due to Ocwen was $363,038.48 as of May 27, 2018.

In August 2018, Ocwen moved, among other things, pursuant to CPLR 5015(a)(1) to vacate the November 2017 order, to reinstate the notice of pendency, to restore the action to the court’s active calendar, to confirm the referee’s report, to amend the caption to substitute Wilmington Savings Fund Society, FSB (hereinafter Wilmington), for Ocwen as the plaintiff, and for a judgment of foreclosure and sale. The defendant opposed on the grounds, inter alia, that Ocwen failed to demonstrate a reasonable excuse for its failure to timely move for a judgment of foreclosure and sale, failed to establish its strict compliance with the mailing and content mandates of RPAPL 1304, and failed to establish its standing to foreclose.

By order dated November 26, 2018, the Supreme Court granted Ocwen’s motion "without opposition." The court, upon the November 26, 2018 order, entered an order and judgment of foreclosure and sale, granting those branches of Ocwen’s motion which were pursuant to CPLR 5015(a)(1) to vacate the November 2017 order, to reinstate the notice of pendency, to restore the action to the court’s active calendar, to confirm the referee’s report, and for a judgment of foreclosure and sale, confirmed the referee’s report, and directed the sale of the property. The defendant appeals.

[1] CPLR 5015(a)(1) authorizes a court to relieve a party from an order or judgment, on motion, upon the ground of "excusable default" (HSBC Bank USA N.A. v. MacPherson, 210 A.D.3d 966, 968, 180 N.Y.S.3d 171, citing U.S. Bank, N.A. v. Hossain, 200 A.D.3d 1094, 1095,...