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We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP. In Countrywide Bank, FSB. v. Charan Jit Singh, et al; Appellate Division 2nd Judicial Department, 2016-05663 -6/5/19; Supreme Index 28609/08.   In an action to foreclose a mortgage, nonparty Christiana Trust, as assignee of the plaintiff, Countrywide Bank, FSB, appealed from an order of the Supreme Court, Queens County, dated February 23, 2016. The order, insofar as appealed from, denied those branches of the plaintiff’s motion which were to vacate an order of dismissal and to restore the action to the active calendar.

At oral argument, we articulated the arguments presented in Plaintiff`s brief, namely that the lower court should have exercised its equitable power and vacate the dismissal order because Defendant consented to judgment in a so-ordered stipulation, balance of the equities, and the context surrounding the delay (i.e., the legislation that passed in the months and years following commencement). Thereafter, opposing counsel argued the points contained in his opposition brief, highlighting the 4-year period that the case was dormant (2011-2015) with prior counsel.  The Court found that equity and justice require vacatur of the dismissal order in the interest of justice and that the Court improperly applied AO 548/10 retroactively, erred in denying the plaintiff’s’ motion for summary judgment pursuant to a so ordered stipulation.  AO 548/10 had not been promulgated at the time that plaintiff’s motion was filed, and by the legislations language, could be updated at the next motion.   However, the Court found that given the delays in proceeding on the matter, plaintiff was not entitled to any interest accrued after July 8, 2009, 30 days after the so ordered stipulation.  While the action was restored with the limitation of recovering the principal balance on the loan and interest accrued through July 8, 2009, the asset was saved.

A great job by Oran Schwager, Esq. of our firm! For more information regarding this case, please contact  Deborah Gallo, Director of Operations at [email protected]

We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  In Citibank, NA, not in its individual capacity but solely as Trustee of NRZ Pass Through Trust V1 v. Janice Chang,  et al  612369/2018, Supreme Court Ct. 5/31/19, Hon. Thomas F. Whelan of Suffolk County, New York granted the Motion for summary judgment to the Plaintiff after reviewing key statute of limitations arguments made by the firm.

The instant action was commenced on June 28, 2018.  On August 27, 2018 the defendant filed an answer with affirmative defenses and counterclaims.  On January 3, 2019, Plaintiff filed the motion seeking summary judgment.  Defendant alleged that plaintiff’s action was untimely under the statute of limitations and challenged the proof of mailing of the RPAPL 1304 notice. 

A prior foreclosure action was filed on July 9, 2010 and defendant contended that the prior action accelerated the debt and that said acceleration has not been withdrawn or revoked.  The defendants, in support of this, allegation submitted an unverified complaint from the 2010 action, as well as, an order dismissing the action as a result of failure to comply with the Court’s prior order as to standing. 

The Second Department has recognized that the filing of a verified complaint constitutes a valid election to accelerate.  Additionally, the Second Department, in two recent 2018 cases, has noted the significance of a “sworn statement”.   Thus, the Court found that it was inconsistent to hold that an unverified complaint cannot support a default judgment, but, that an unverified complaint may accelerate future monthly installment payments that have not yet come due.  Additionally, since standing was not established in the 2010 case, acceleration could not have taken place.  The Court, therefore, granted the motion for summary judgment and gave the plaintiff the opportunity to address some additional evidentiary issues with updated affidavits. 

A great job by Richard O’Brien, Esq. and David Seibert, Esq. of our firm! For more information regarding this case, please contact   Deborah Gallo, Director of Operations at [email protected]

We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  Hon. Thomas F. Whelan of Suffolk County, New York granted the motion for summary judgment arguments made by the firm.  Wilmington Savings Fund Society, FSB, as trustee cs. Jose Artola, et al, No. 6146662/2016, Suffolk Supreme Court, May 28, 2019.

The Court found that Plaintiff had met its burden of proof as to the prima facie elements of the motion for summary judgment.  The burden then shifted to the defendants to raise genuine questions of fact rebutting Plaintiff’s prima facie showing.  The Court then noted that affirmative defenses predicated on legal conclusions are subject to dismissal.  Additionally, failure to raise plead affirmative defenses in Defendant’s opposition rendered them abandoned.

Anna Artola failed to answer the complaint and thus she waived all potential defenses.  She, in fact, only had a possessory interest and was not a party to the mortgage itself.  The Court found that an RPAPL 1304 defense is not jurisdictional and may be brought at any time during the action. As to denial of receipt of the RPAPL 1304 notice, a simple denial without more was found insufficient to merit dismissal.  Plaintiff submitted an affidavit from the prior loan servicer, including access to records, kept in the regular course of business, and the servicers business practices.   Further, proof of mailing may be done by actual proof of the mailing of the actual document or by detailing the standard office practice or procedure designed to ensure proper mailing.  The Court found that the affidavit executed by the prior servicer properly demonstrated proper mailing.  Thus, the motion for summary judgment was granted by the Court.

A great job by Eleazar Jacobs, Esq. of our firm! For more information regarding this case, please contact: Deborah Gallo, Director of Operations at [email protected] 

We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  in U.S. Bank National Association, not in its Individual Capacity, but, solely as Trustee NRZ Pass-Through Trust X vv. Wyndel Williams, Index 608532/2018, Nassau County Supreme (2019) denied the defendant Motion to dismiss the action on the grounds that that the suit was barred by the statute of limitation.

A prior action was filed on October 13, 2009 under Index 020974/2009, in which the Plaintiff brought the foreclosure action based upon a default on the loan payment of May 1, 2009.  The defendant argued that the statute of limitations, six years, elapsed since the loan was accelerated by the commencement of the 2009 action.  It is well established that a lender may revoke its election to accelerate a mortgage, but, it must do so by an affirmative act of revocation within the six-year statute of limitations.  In the case herein, the plaintiff voluntarily discontinued the prior action as it did not have standing at commencement.  A stipulation of discontinuance dated February 18, 2013 supported plaintiff’s argument that the prior action lacked standing and met the burden of an affirmative act to revoke the election to accelerate.

A great job by Attorney Zachary Gold of our firm! For more information regarding this case, please contact   Deborah Gallo, Director of Operations at [email protected]

We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  in SRMOF II 2012-1 Trust, US Bank Trust National Association, not in its individual capacity but solely as trustee v Tina Concepcion,  et al  135261/2015, Supreme Court Ct. 5/10/19, Hon. Desmond A. Green of Richmond County, New York denied the defendant’s the motion to renew, re-argue, and vacate the prior decision of thee Court granting the Motion for summary judgment to the Plaintiff after reviewing several important arguments made by the firm.

During oral argument, Defendant argued that because the chain of assignments and indorsements flow from JP Morgan Chase Plaintiff cannot have standing in this action based upon the judicial determination in the prior action that Plaintiff did not own the debt.  Defendant then argued that, in any event, this decision precluded us from seeking to foreclose again as a determination had already been made on the merit of Plaintiff’s “chain of ownership.”

Attorney O’Brien informed the Court that Defendant had misstated the nature of the Order from the prior action.  The order dismissing the prior action merely stated that Plaintiff had failed to provide sufficient evidence to prove its standing.  This is a distinction with a difference as the Court did not, as Defendant was arguing, make an affirmative finding that Plaintiff in the prior action did not own the note.  Thus Defendant’s argument that the chain of assignments was fatally flawed was not supported by the order from the prior action.

Attorney O’Brien then argued that pursuant to the UCC all that is required to evidence standing is possession of the note at commencement of the action.  Even if there is a flaw in the assignment or allonge history, possession by the current Plaintiff with an appropriate allonge is sufficient to prove standing.  Attorney O’Brien noted that Plaintiff in this action had provided a properly indorsed note as part of its summons and complaint and that such production is sufficient to prove standing under the current law, as this Court had already found when it granted Plaintiff’s Motion for Summary Judgment.

Finally, Attorney O’Brien argued that because the decision in the prior action was a dismissal for failure to evidence standing it lacked claim preclusive effect on the current action and Defendant’s attempts to evoke collateral estoppel and/or res judicata are inappropriate.  Attorney O’Brien suggested that no less an authority than the Court of Appeals had found that a finding of lack of standing lacks preclusive effect and Defendant’s attempts to argue otherwise go against all settled law on the subject.

The Court held defendant failed to present argument/evidence and failed to present evidence that the Court erred on the facts or law in deciding the previous application.

Further, the Court held that the motion was not timely as it was brought 64 days after Notice of entry of the decision was served. 

A great job by attorneys Richard O’Brien and Chad Harlan of our firm! For more information regarding this case, please contact   Deborah Gallo, Director of Operations at [email protected]