U.S. Bank Nat'l Ass'n v. Pierre

184 N.Y.S.3d 890

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR RESIDENTIAL ASSET SECURITIES CORPORATION, HOME EQUITY MORTGAGE ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-EMX8, Plaintiff,

v.Castel PIERRE, Brookhaven Memorial Hospital as Assignee for Suffolk Healthcare Solutions Inc., Good Samaritan Hospital, Slomins, Inc., Patricia Pierre, Defendants.

Index No. 208030/2022

Supreme Court, Suffolk County, New York.

Decided on February 23, 2023

Woods Oviatt Gilman LLP, Attorneys for Plaintiff, 500 Bausch & Lomb Plaza, Rochester, New York 14604

JEFFREY HERZBERG, PC, Attorneys for Defendant Castel Pierre, 300 Rabro Drive, Suite 114, Hauppauge, New York 11788

Robert F. Quinlan, J.

It is

ORDERED that the defendant's motion to dismiss is denied, and it is further

ORDERED that the defendant is directed to answer the complaint within 30 days after this decision and order is filed with NYSCEF.

On July 25, 2006, defendant, Castel Pierre, executed and delivered to plaintiff's predecessor-in-interest a note in the sum of $340,000.00, which was secured by a mortgage on his property at 134 Ridge Road, Wyandanch, NY The note and mortgage were subsequently assigned to the plaintiff. The defendant failed to make the required monthly payments starting on August 1, 2013 and thereafter. The plaintiff commenced a foreclosure action (Index number: 028188/2013). This court, by decision and order dated July 26, 2022, granted the defendant's to dismiss the action based upon the failure to comply with RPAPL § 1304.¹ By order dated September 13, 2022, the action was discontinued and the notice of pendency was cancelled.

The plaintiff commenced this present action on December 15, 2022. The defendant has moved to dismiss the action based upon the statute of limitations and the failure to serve the notice pursuant to RPAPL § 1304.

Initially, contrary to the plaintiff's position, the new CPLR 205-a² is applicable, as the new law, Foreclosure Abuse Prevention Act, applies to all action which a final judgment of foreclosure and sale has not been enforced. The amendment was to provide a specific savings statute for foreclosures "in order to address judicial decisions that have been contrary to the spirit of this savings provision which have been overly indulgent of foreclosure plaintiffs whose cases have been dismissed for various forms of neglect, who are not entitled to the six months grace period means for diligent plaintiffs whose cases were dismissed for reasons that do not reflect their own fault" (New York Committee Report, Bill Number A7737B, 2021 NY A.B. 7737). However, even applying the new statute, the dismissal under RPAPL § 1304 is not neglect so that the plaintiff does receive the six month saving period ( Merino v. Wells Fargo Bank, N.A., 195 A.D.3d 489, 145 N.Y.S.3d 337 [1st Dept. 2021] ; CitiMortgage, Inc. v. Moran, 188 A.D.3d 407, 135 N.Y.S.3d 378 [1st Dept. 2020] ). As the action was commenced with the six month saving period, the part of the motion to dismiss based upon the statute of limitations must be denied.

The defendant's claim that the plaintiff failed to comply with RPAPL § 1304 must also be rejected. The plaintiff includes the affidavit of Armenia Harrell the Vice President Loan Documentation of Wells Fargo Bank N.A. the Servicing Agent for Plaintiff. She states that she has personal knowledge of the business practices of Wells Fargo Bank. Further, she states that she has personal knowledge of the practices of Covius, LLC which does the printing, mailing, and tracking of the required notices to borrowers. Moreover, the documentation, including with the affidavit, establishing the two required mailing has been provided. This is sufficient to establish the required mailings ( U.S. Bank NA v. Warshaw, 208 A.D.3d 919, 173 N.Y.S.3d 665 [2nd Dept. 2022] ).The defendant's claim of non-receipt is insufficient to establish a basis for dismissal (see United Nations Federal Credit Union v. Diarra, 194 A.D.3d 506, 149...