U.S. Bank, Nat'l Ass'n v. Rodriguez

81 Misc.3d 1231 (A)

202 N.Y.S.3d 724 (Table)

U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR the HOLDERS OF the SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST, MORTGAGE LOAN ASSETBACKED CERTIFICATES, SERIES 2006-BC4, Plaintiff(s),

v.Teodora Margarita RODRIGUEZ, New York City Transit Adjudication Bureau, New York City Environmental Control Board, New York City Parking Violations Bureau, Romona Ortiz, Jenny Ortiz, Maria Ortiz, Myra Ortiz, Homero Sanchez, Victor Sanchez, Jose Sanchez, Carmen Motta, Wanda Motta, Alex Motta, Hector Motta, Defendant(s).

Index No: 381105/07E

Supreme Court, Bronx County, New York.

Decided on January 16, 2024

Fidel E. Gomez, J.

In this action for foreclosure on a mortgage and the sale of the real property pledged as security, plaintiff moves for an order extending the time to conduct the sale of the mortgaged property prescribed by RPAPL § 1351(1). Plaintiff contends that a myriad of reasons beyond its control prevented a sale of the mortgaged premises within 90 days of the issuance of the judgment of foreclosure and sale. Defendant TEODORA MARGARITA RODRIGUEZ (Rodriguez) opposes the instant motion asserting that this action should be dismissed, thereby precluding the relief sought by plaintiff. To that end, Rodriguez cross-moves seeking to dismiss this action pursuant to CPLR § 3215(c), asserting that plaintiff's failure to timely seek the entry of a default judgment against her warrants dismissal of this action. Plaintiff opposes Rodriguez’ cross-motion, asserting, inter alia , that the relief requested is barred by the law of the case doctrine.

For the reasons that follow hereinafter, plaintiff's motion is granted and Rodriguez’ cross-motion is denied.

The instant action is for foreclosure on a mortgage and the sale of the real property which it encumbers. The complaint, filed on December 5, 2007, alleges that on May 26, 2006, Rodriguez executed a note between herself and plaintiff wherein Rodriguez agreed to repay a loan totaling $450,500. On the same day, as security for the foregoing loan, Rodriguez executed a mortgage, which pledged premises located at 1809 Phelan Place, Bronx, NY 10453 (1089) as security. Pursuant to the note, Rodriguez was required to repay the loan via monthly payments, each totaling $3,621.58. Per the note and mortgage, the failure to make a payment when due constituted a default. Pursuant to the note and mortgage, upon a default, plaintiff could initiate foreclosure proceedings. It is alleged that on July 1, 2007, Rodriguez defaulted by failing to make a payment then due. Based on the foregoing, plaintiff seeks a judgment allowing it to foreclose on the mortgage and sell 1089 and deeming plaintiff's copy of the mortgage an original.

On August 3, 2009, the Court (Thomson, J.) granted plaintiff's unopposed application for the entry of a default judgment against all defendants and an order of reference.

On January 8, 2016, the Court (Thompson, J.) granted plaintiff's unopposed application for a judgment of foreclosure and sale. The motion was granted on default and without opposition.

On March 16, 2018, Rodriguez filed a petition for bankruptcy¹ .

On March 19, 2018, the Court (Thompson, J.) marked Rodriguez’ application seeking to, inter alia , cancel the sale of 1089 withdrawn.

On August 12, 2019, the Court (Gonzalez, J.) denied Rodriguez’ application pursuant to CPLR § 5015(a)(4) seeking to, inter alia , vacate the judgment of foreclosure and sale and the order of reference. Saliently, Rodriguez argued that the Court never acquired jurisdiction over Rodriguez. In addressing the merits of the denial, the Court held that the "issue of service was waived by [Rodriguez's] appearance by counsel in March 2018, in which [Rodriguez] moved for a stay and other relief, without raising the issue of personal jurisdiction."

On January 11, 2022, the Appellate Division, First Department, affirmed the order issued by the Court (Gonzalez, J.), holding that vacatur of the order of reference and the judgment foreclosure and sale was properly denied, since Rodriguez's appearance was "equivalent to personal service of the summons upon her" ( U.S. Bank N.A. as Tr. for Holders of Specialty Underwriting and Residential Fin. Tr., Mtge. Loan Asset-Backed Certificates, Series 2006-BC4 v Rodriguez , 201 AD3d 493, 493 [1st Dept 2022] ).

On June 2, 2022, this Court granted plaintiff's unopposed application seeking to extend the time to conduct the sale of 1089 and extended the foregoing time by one year from the date of the order.

On July 6, 2022, this Court amended the foregoing order, extending the time to conduct the sale of 1089 from one year thereof.

PLAINTIFF'S MOTION

Plaintiff's motion seeking an order extending the time to conduct the sale of 1089 is granted. Significantly, plaintiff establishes that since the delay in selling 1089 was occasioned by, inter alia , Rodriguez’ conduct, an extension of the time to conduct the sale will not prejudice her.

RPAPL § 1351(1) states that the

judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action, and which may be sold separately without material injury to the parties interested, be sold by or under the direction of the sheriff of the county, or a referee within ninety days of the date of the judgment.

Thus, pursuant to RPAPL § 1351(1), in a foreclosure action, a sale must be conducted within 90 days of the date of the judgment.

CPLR § 2004 states

[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.

In determining whether to extend the time sought, the court should consider factors such as "the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit" ( Tewari v Tsoutsouras , 75 NY2d 1, 11-12 [1989] ; see Arias v First Presbyt. Church in Jamaica , 97 AD3d 712, 712 [2d Dept 2012] ; Klughaupt v Hi-Tower Contractors, Inc. , 64 AD3d 545, 546 [2d Dept 2009] ). CPLR § 2004, by its express terms, does not extend times where other statutes prescribe mechanisms for extensions of the times prescribed therein ( Powers v Foley , 25 AD2d 525, 525 [2d Dept 1966] ["The Board is not bound to continue error in its interpretation of the law governing its powers. Nor does CPLR 2004 permit an extension of time to be granted to the petitioner; it applies to extensions of time for the doing of acts in actions and proceedings and not for the doing of acts which are substantive in character and provided for under other statutes."]).

In addition to the orders discussed above, in support of the instant motion, plaintiff's counsel states that the sale could not be conducted after August 12, 2019, when the Court (Gonzalez, J.) lifted the stay precipitated by Rodriguez’ motion seeking to vacate the order of reference and judgment of foreclosure and sale because of the Covid 19 pandemic² .

Plaintiff submits two documents from the Public Access to Court Records website. The first evinces that on November 11, 2022, Rodriguez filed a bankruptcy petition. The second document evinces that on May 15, 2023, the bankruptcy was dismissed and all stays arising therefrom were lifted.

Based on the foregoing, plaintiff's application seeking to extend the time to conduct the sale of 1089 is granted. As noted above, the instant application is one pursuant to CPLR § 2004 and as such, in determining whether to extend the time sought, the court should consider factors such as "the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit" (Tewari at 11-12;see Arias at 712; Klughaupt at 546). Here, it is clear that all delays in selling 1089 within the 90 days prescribed by RPAPL § 1351(1) and the time period prescribed by this Court's most recent order, dated July 7, 2022, were occasioned by Rodriguez’ applications seeking to stay the sale, vacate the Court's prior orders, and have this action dismissed, the multiple bankruptcies filed by Rodriguez, and the regulations promulgating a stay in foreclosure actions precipitated by the Covid 19 pandemic. All of he foregoing actions and events were not precipitated by plaintiff and as a result, where as here, the Court has issued an order of reference defaulting all defendants, a final judgment of foreclosure and sale, and has denied Rodriguez’ motion to vacate the same, Rodriguez’ will not be prejudiced by the extension sought.

Nothing urged by Rodriguez warrants denial of the instant motion and as will be discussed below, her application seeking to dismiss this action is wholly without merit and therefore, must be denied.

RODRIGUEZ’ CROSS-MOTION

Rodriguez’ cross-motion seeking to dismiss this action pursuant to CPLR § 3215(c) is denied. Significantly, where as here, Rodriguez has defaulted and such default has been ratified by a subsequent order and appeal affirming the same, the law of the case doctrine, among other legal principles, precludes vacatur of the Court's order.

It is well settled that unless there is a lack of subject matter jurisdiction rendering it void, "an order or judgment of a court is binding on all persons subject to its mandate until vacated or set aside on appeal" ( Murray v Goord , 298 AD2d 94, 97 [1st Dept 2002], affd , Matter of, 1 NY3d 29 [2003] ; see Hughes v Cuming , 165 NY 91, 94 [1900] ).

To that end, the law of the case doctrine generally bars the re-litigation of a prior pre-judgment judicial...