U.S. Bank NA v. Warshaw

208 A.D.3d 919

173 N.Y.S.3d 665

U.S. BANK NA, etc., respondent,

v.Miriam WARSHAW, et al., appellants, et al., defendants.

2019–09347, 2020–01242

Index No. 613641/17

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

Argued—April 21, 2022

August 31, 2022

Auciello Law Group, P.C. (Anthony J. Auciello and Chirico Law, PLLC, Brooklyn, NY [Vincent Chirico ], of counsel), for appellants.

Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Geraldine A. Cheverko of counsel), for respondent.

BETSY BARROS, J.P., ANGELA G. IANNACCI, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Miriam Warshaw and Howard Warshaw appeal from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered March 15, 2019, and (2) an order and judgment of foreclosure and sale (one paper) of the same court entered January 23, 2020. The order entered March 15, 2019, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Miriam Warshaw and Howard Warshaw and for an order of reference. The order and judgment of foreclosure and sale, among other things, confirmed the referee's report and directed the sale of the subject property.

Motion by the respondent, inter alia, to dismiss the appeal from the order entered March 15, 2019, on the ground that the right of direct appeal therefrom terminated upon the entry of the order and judgment of foreclosure and sale in the action. By decision and order on motion of this Court dated June 3, 2020, the branch of the motion which is to dismiss the appeal from the order entered March 15, 2019, was held in abeyance and referred to the panel of Justices hearing the appeals from the order entered March 15, 2019, and the order and judgment of foreclosure and sale for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

ORDERED that the branch of the motion which is to dismiss the appeal from the order entered March 15, 2019, is granted; and it is further, ORDERED that the appeal from the order entered March 15, 2019, is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the order entered March 15, 2019, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Bank of N.Y. Mellon v. Viola, 181 A.D.3d 767, 768, 122 N.Y.S.3d 55 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

On January 26, 2007, Miriam Warshaw (hereinafter Miriam) executed a note in sum of $248,064.42 in favor of Washington Mutual Bank, FA (hereinafter Washington Mutual). The note was secured by a mortgage on residential property in Roslyn (hereinafter the premises), which was executed by Miriam and by Howard Warshaw (hereinafter together the defendants). At the same time, the defendants executed a consolidation, extension, and modification agreement (hereinafter the CEMA), pursuant to which the note and mortgage executed that day and certain prior notes and mortgages were consolidated to form a single lien in the sum of $975,000. Miriam executed a consolidated note in the sum of $975,000, and the defendants executed a consolidated mortgage on the premises. By assignment of mortgage dated December 3, 2009, Washington Mutual assigned the mortgage to Bank of America, National Association, as "successor by merger to LaSalle Bank NA as trustee for WaMu Mortgage Pass–Through Certificates Series 2007–HY3 Trust."

On June 22, 2015, Miriam entered into a loan modification agreement pursuant to which the loan was modified to, among other things, provide for a new principal balance on the consolidated note in the sum of $1,476,773.44. The defendants allegedly defaulted on their obligations under the modified note and mortgage by failing to make the monthly payments due on September 1, 2015, and thereafter.

On December 15, 2017, U.S. Bank NA, as "successor trustee to Bank of America, NA, successor in interest to LaSalle Bank NA, as trustee, on behalf of the holders of the WaMu Mortgage Pass–Through Certificates, Series 2007–HY3" (hereinafter the plaintiff), commenced this action against the defendants, among others, to foreclose the modified mortgage. The defendants interposed an answer dated January 28, 2018, in which they asserted various affirmative defenses, including lack of standing. In December 2018, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The defendants opposed the motion. In an order entered March 15, 2019, the Supreme Court, among other things, granted those branches of the plaintiff's motion and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. Thereafter, the court issued an order and judgment of foreclosure and sale, among other things, confirming the referee's report and directing the sale of the premises. The defendants appeal.

The plaintiff established, prima facie, that it sent the defendants a notice of default as...