U.S. Rof III Legal Title Trust 2015-1 v. John

189 A.D.3d 1645

140 N.Y.S.3d 59

U.S. ROF III LEGAL TITLE TRUST 2015–1, etc., plaintiff-respondent,

v.Kunjamma C. JOHN, appellant,Sperry Associates Federal Credit Union, defendant-respondent, et al., defendants.

2019–10348

2019–10355

Index No. 7431/11

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

Argued—September 11, 2020

December 30, 2020

Hogan & Cassell, LLP, Jericho, N.Y. (Michael Cassell of counsel), for appellant.

Adam Leitman Bailey, P.C., New York, N.Y. (Jaclyn Halpern Weinstein and Jeffrey R. Metz of counsel), for plaintiff-respondent.

Scott A. Rosenberg, P.C., Garden City Park, NY, for defendant-respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Kunjamma C. John appeals from (1) an order of the Supreme Court, Nassau County (Anna Anzalone, J.), entered May 31, 2019, and (2) an amended judgment of foreclosure and sale of the same court, entered July 9, 2019. The order entered May 31, 2019, granted the plaintiff's motion to amend a resettled judgment of foreclosure and sale of the same court (Thomas A. Adams, J.) entered September 27, 2018. The amended judgment of foreclosure and sale, upon an order of the same court (Thomas A. Adams, J.) entered March 14, 2018, inter alia, granting the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, granting the defendant Sperry Associates Federal Credit Union's cross motion pursuant to RPAPL 1351 and 1354 for a provision in the judgment of foreclosure and sale directing that any surplus from the proceeds of the sale be used to satisfy a second mortgage held by that defendant, and denying the cross motion of the defendant Kunjamma C. John pursuant to CPLR 3215(c) to dismiss the complaint as abandoned or, in the alternative, pursuant to CPLR 4403 to reject the referee's report, inter alia, confirmed the referee's report, directed the sale of the subject property, and directed that any surplus from the proceeds of the sale be used to satisfy a second mortgage held by the defendant Sperry Associates Federal Credit Union. The appeal from the amended judgment of foreclosure and sale brings up for review three orders of the same court (Thomas A. Adams, J.) entered October 25, 2016, October 25, 2016, and April 21, 2017, respectively. The first order entered October 25, 2016, granted those branches of the motion of the plaintiff's predecessor in interest, JPMorgan Chase Bank, National Association, which were for leave to enter a default judgment against the defendant Kunjamma C. John and for an order of reference, and denied the cross motion of the defendant Kunjamma C. John, inter alia, pursuant to CPLR 5015(a)(4) to vacate her default in answering the complaint and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction or, in the alternative, pursuant to CPLR 317 to vacate her default in answering the complaint and pursuant to CPLR 3012(d) for leave to serve a late answer. The second order entered October 25, 2016, inter alia, granted and denied the same relief, and appointed a referee. The order entered April 21, 2017, inter alia, denied the motion of the defendant Kunjamma C. John for leave to renew her opposition to the motion of JPMorgan Chase Bank, National Association, and her cross motion.

ORDERED that the appeal from the order entered May 31, 2019, is dismissed; and it is further,

ORDERED that the amended judgment of foreclosure and sale is reversed, on the law, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale are denied, that branch of the cross motion of the defendant Kunjamma C. John which was pursuant to CPLR 4403 to reject the referee's report is granted, the referee's report is rejected, the cross motion of the defendant Sperry Associates Federal Credit Union pursuant to RPAPL 1351 and 1354 for a provision in the judgment of foreclosure and sale directing that any surplus from the proceeds of the sale be used to satisfy a second mortgage held by the defendant Sperry Associates Federal Credit Union is denied, the order entered March 14, 2018, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a new report computing the amount due to the plaintiff in accordance herewith, followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter; and it is further,

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

This action was commenced in May 2011 by the plaintiff's predecessor in interest, JP Morgan Chase Bank, National Association (hereinafter Chase), to foreclose a mortgage executed by the defendant Kunjamma C. John in 2007. Proof of service of the summons and complaint upon John was filed with the clerk's office on June 1, 2011, reflecting service pursuant to CPLR 308(2). John defaulted in answering the complaint. The defendant Sperry Associates Federal Credit Union (hereinafter Sperry) filed a notice of appearance, in which it made a claim to any surplus monies that may arise out of any foreclosure sale of the premises, to satisfy sums owed to it as the second mortgagee.

On April 9, 2013, Chase filed a request for judicial intervention, and the Supreme Court scheduled 14 settlement conferences between May 2013 and October 2015. The matter was released from the settlement conference part on or about October 25, 2015. On or about November 13, 2015, an attorney filed a notice of appearance on behalf of John, demanded service of all papers, and reserved "all objections to jurisdiction, standing, statute of limitation, and any other matter that may be appropriate for Defendant John's defense."

Several months later, in April 2016, Chase moved for leave to enter a default judgment and for an order of reference. The motion also sought substitution of the party plaintiff, because the mortgage had been assigned and the note transferred to U.S. Rof III Legal Title Trust 2015–1. John opposed those branches of the motion which were for leave to enter a default judgment and for an order of reference, and cross-moved, inter alia, to vacate her default pursuant to CPLR 5015(a)(4) and to dismiss the complaint insofar as asserted against her on the ground that she was not properly served with process, or in the alternative pursuant to CPLR 317 to vacate her default and pursuant to CPLR 3012(d) for leave to serve a late answer. The Supreme Court granted Chase's motion and denied John's cross motion in an order entered October 25, 2016. The same day, the court signed a separate order, inter alia, granting and denying the same relief and appointing a referee.

John thereafter moved, inter alia, for leave to renew her opposition to Chase's motion and her cross motion. The Supreme Court denied John's motion in an order entered April 21, 2017.

On or about February 1, 2017, the plaintiff's counsel served a notice of referee's hearing on John's counsel, noticing a hearing for February 16, 2017, and directing John to notify the referee in writing two business days prior to the hearing if she intended to attend. On February 13, 2017, John's attorney sent a letter to the plaintiff's attorney of his "inten[t] to subpoena plaintiff or its servicer to obtain verification of principal balance and interest, as well as escrow advances" and asking for a "three-week adjournment" of the hearing. The record does not reflect that John's attorney ever sent notice to the referee of John's intent to participate in a hearing.

The referee issued a report calculating the total amount due and owing to the plaintiff to be $1,310,404.78 and recommending that the property be sold as one parcel.

In April 2017, the plaintiff moved to confirm the referee's report, but later withdrew that motion prior to decision. In October 2017, the plaintiff again moved to confirm the report and for a judgment of foreclosure and sale. John opposed the motion and cross-moved pursuant to CPLR 3215(c) to dismiss the complaint as abandoned or, in the alternative, pursuant to CPLR 4403 to reject the referee's report and to direct the referee to recalculate the amount due.

Sperry cross-moved, pursuant to RPAPL 1351 and 1354, for a provision in the judgment of foreclosure and sale directing that any surplus from the proceeds of the sale be used to satisfy Sperry's second mortgage. John opposed Sperry's cross motion.

In an order entered March 14, 2018, the Supreme Court granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, granted Sperry's cross motion pursuant to RPAPL 1351 and 1354, and denied John's cross motion to dismiss the complaint as abandoned or, in the alternative, to reject the referee's report. The court eventually entered a resettled judgment of foreclosure and sale on September 27, 2018, which included a finding that Sperry was owed $577,202.51 on its second mortgage. Thereafter, in February 2019, the plaintiff moved to amend the resettled judgment of foreclosure and sale, to correct an error in the Schedule A legal description of the property. John opposed the motion, arguing that the referee's report should be recalculated because it was inaccurate and "outdated," that the plaintiff should not be awarded interest from March 1, 2010, given its "inordinate" delay in prosecuting the action, and that Sperry should not be awarded a judgment.

In an order entered May 31, 2019, the Supreme Court granted the plaintiff's motion to amend the judgment, and the court thereafter entered the amended judgment of foreclosure and sale. John appeals from the order entered May 31, 2019, and from the amended judgment of foreclosure and sale.

In a related appeal (see JP Morgan Chase Bank v. John, 189 A.D.3d 1568, 135 N.Y.S.3d 291 [decided herewith] ), John appealed from the two orders entered October 25, 2016, and from the order...