Sharova v. Wells Fargo Bank, Nat'l Ass'n

62 Misc.3d 925

92 N.Y.S.3d 546

Yelena SHAROVA, Plaintiff,

v.WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR the STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST, Mortgage Pass-Through Certificates Series 2007-6 ; and Nationstar Mortgage, LLC d/b/a Mr. Cooper, Defendants.

502846/2018

Supreme Court, Kings County, New York.

Decided January 3, 2019

Plaintiff's Attorney: Charles W. Marino, Esq., 2314 Poe CT, Seaford, NY 11783-2922, (516) 459-0009

Defendant's Attorney: CAROLINE WEAVER LENCI, Esq., Sandelands Eyet, LLP, 1545 US Highway 206 Ste. 304, Bedminster, NJ 07921-2560, (908) 470-1200

Debra Silber, J.

This is an action for a declaratory judgment pursuant to RPAPL § 1501(4) declaring that the mortgage on the property, 1349 East 54th Street, Brooklyn, NY, Block 7834 Lot 23, is unenforceable due to the time bar of the six-year statute of limitations, and should be cancelled, discharged and stricken from the records of the City Register. Plaintiff moves for summary judgment seeking said declaratory judgment, on the basis that there are no issues of fact in dispute that require a trial. Defendants cross-move for summary judgment dismissing the complaint or, in the alternative, permitting defendants to file and serve the proposed amended answer and counterclaim annexed to their motion (e-file doc 114).

Statement of Facts

On March 30, 2007, plaintiff Yelena Sharova and another individual who is not a party herein, Andrew Gayott, purchased the property, a two-family home in Brooklyn, as tenants in common. At the same time, they were given two mortgages by Gateway Funding Diversified Mortgage Services L.P., ("Gateway") a first mortgage for $412,500 and a second mortgage for $110,000. The deed and mortgages were recorded. The first mortgage was subsequently assigned several times and is now held by plaintiff Wells Fargo. The second mortgage has not been assigned by a recorded assignment. This action is solely addressed to the first mortgage, and the holder of the second mortgage has not been named or served as a party defendant.

On April 16, 2009, a foreclosure action was commenced by Aurora Loan Services LLC (one of the entities in the chain of assignments, whose assignment was recorded on 6/16/08) against plaintiff and the co-borrower Andrew Gayott under Ind. No. 9289/2009. Sharova answered the complaint but Gayott did not. Sharova included one affirmative defense in her answer, filed June 26, 2009, that she had discharged the debt in Bankruptcy Court in 2008 under Docket 08-70703 [EDNY]. However, Aurora had brought a motion and obtained an order from the Bankruptcy Court on August 1, 2008 which lifted the automatic stay and permitted Aurora to proceed with a foreclosure action. Thus, the mortgage was not discharged in the Bankruptcy proceeding.

In the 2009 foreclosure action, Aurora brought a motion in this court for summary judgment against Sharova and a default judgment against Gayott and the other named defendants in October of 2009. This motion was withdrawn by the office of Steven J. Baum, then plaintiff's attorney. Another law firm was substituted and a second motion for this relief, which also sought, inter alia, to amend the caption to reflect that the loan had been assigned to Nationstar Mortgage LLC, was filed in January 2014, which was denied by another justice of this court, despite it being unopposed, and the action was dismissed, sua sponte, by order dated June 12, 2015 and entered July 1, 2015. There was no opposition filed to the lender's motion by Sharova or anyone else. The order concluded that, as to Sharova, she had not been served with a 90-day notice as required by RPAPL § 1304, which was a condition precedent to commencing the action, and as to Gayott and the other defendants, that the time to move pursuant to CPLR § 3215 (d) had expired and plaintiff did not provide any excuse for its delay in seeking a default judgment. No motion to reargue was made and no notice of appeal was filed.¹ On May 17, 2016, the lender's counsel filed a substitution of attorneys. Sharova then served the court's order which dismissed the action, with notice of entry, on the lender's new attorneys, on May 24, 2016. Nothing further transpired in the action. A second foreclosure action against Sharova and Gayott was not commenced prior to the commencement of this action, although the lender had six months to do so, pursuant to CPLR § 205(a). Neither side alleges that any action is currently pending or that any appeal is currently pending.

On June 6, 2016, the mortgage was assigned to Wells Fargo, a defendant herein, by Nationstar Mortgage LLC, the other defendant herein, which was recorded on June 28, 2016. The assignment to Nationstar had been recorded in 2012. Nationstar is currently listed on the NY State Department of State Division of Corporations website as a Delaware limited liability company which is authorized to do business in New York. The court has no idea why the caption lists Nationstar as "d/b/a Mr. Cooper." Defendants state that "Mr. Cooper" is the loan servicer.

Plaintiff's Motion

Plaintiff moves for summary judgment on her complaint and an order that can be recorded with the New York City Register which declares that the mortgage is unenforceable, is discharged, and that any claims under it are barred by the statute of limitations. Plaintiff avers that the mortgage was accelerated on April 16, 2009, when the foreclosure action was commenced, and was not de-accelerated by the order "granting plaintiff reverse summary judgment and dismissing the complaint" in 2015. Therefore, plaintiff herein reasons, as the lender's assignee has not taken any action to enforce the mortgage after the issuance of the dismissal order, and the date of acceleration was in 2009, the statute of limitations has run, and she is entitled to an order discharging the mortgage. Plaintiff proceeds to analyze each of the numerous affirmative defenses asserted in the answer to her complaint herein, and finds each of them to be irrelevant, inapplicable, meritless or erroneous. Finally, plaintiff asserts that, as the boilerplate provision at Paragraph 19 of the mortgage, which provides that the borrower has the right to reinstate the mortgage up to the point that the judgment is entered, was expressly deleted in the 1-4 Family Rider to the mortgage, the " MacPherson " decision² is inapplicable. Plaintiff also asserts that the court cannot apply this decision to the matter at hand because it is not asserted as an affirmative defense in defendants' answer and because the decision "is incorrect as a matter of law."

Defendants' Cross Motion

Defendants oppose plaintiff's motion, claiming it is premature as discovery has not been completed, and cross-move to dismiss the complaint, or, in the alternative, for leave to amend their answer to add a counterclaim against plaintiff for the payments they have made on her behalf for real estate taxes and insurance.

Defendants claim the complaint should be dismissed because plaintiff has failed to name a necessary party to the action, that is, co-borrower Andrew Gayott. Counsel claims that the failure to name him as a co-plaintiff results in the failure to state a claim under RPAPL Article 15. They also aver that there are "genuine issues of material fact as to the effectiveness of the alleged acceleration of the mortgage." Next, defendants claim that their "Macpherson " argument is property before the court. Finally, defendants argue that they should be permitted to amend their answer in the form annexed to their motion, which, inter alia , adds a counterclaim.

Plaintiff's Opposition to the Cross Motion

Plaintiff claims that defendants waived their right to move to dismiss under CPLR § 3211 by answering the complaint and not raising as an affirmative defense that the plaintiff failed to join an indispensable party. Plaintiff further claims that defendants have waived all of their affirmative defenses by not raising any of them in opposition to plaintiff's motion for summary judgment. Plaintiff also claims that the cross motion is a motion for summary judgment under CPLR § 3212 and, as such, fails to provide any evidence in admissible form to support summary judgment, as defendants only include legal argument. Plaintiff also avers that Andrew Gayott is not an indispensable party, as he transferred his interest in the mortgaged property to plaintiff in 2016, before this action was commenced, and that only the parties with an interest in the premises need to be named. Plaintiff states the Second Department has so held, and attaches the court's decision in 53 PL Realty, LLC v. U.S. Bank National Association .³

Defendants' Reply

Defendants reply by disputing plaintiff's claim that their motion is untimely, and that they waived their affirmative defenses. They aver that their MacPherson argument is persuasive, that they should be permitted to amend their answer, and that there are genuine issues of material fact as to whether there was a valid acceleration, due to the 2015 order finding that the lender's predecessor in interest failed to comply with a condition precedent, that is, RPAPL § 1304.

Discussion

The first issue that must be addressed is whether the absence of plaintiff's co-borrower is a failure to name either a necessary or an indispensable party so this action under RPAPL § 1501(4) may not proceed.

Plaintiff claims this branch of defendants' motion is untimely and was waived as a result of defendants' not moving for this relief pre-answer and then answering the complaint and not including it as an affirmative defense. Plaintiff is incorrect. The court notes that CPLR § 3211 contains a long list of reasons a defendant may move to dismiss either a complaint or a cause of action. Some of the reasons must be asserted within a specified time, but others may be asserted at any time. While defendants conflate section (a)(7), "that the pleading fails to state a cause of action", with (a)(10), "the court should not...