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We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP.  In NYCTL 2014-A TRUST, and the Bank of New York As collateral Agent and Custodian for NYCTL 2014-A Trust v. Nadia Vargas, et al Index 3289/2015, Queens County decided June 28, 2019.   The order to show cause to renew/reargue and vacate the Court’s prior order was denied and motion by third party for distribution of the surplus funds was also denied.

By decision dated September 17, 2018 the Court granted defendant Wilmington’s motion to confirm the referee’s report and direct disbursement of the surplus monies.  Thereafter, a nonparty appeared for the first time and filed a motion on September 25, 2018 for distribution of surplus funds.  The movant alleged that it purchased the property between the commencement and the foreclosure occurred and thus that it had the equity of redemption.

The Court found that movant filed to oppose the earlier motion and the arguments were not previously before the Court – thus the Motion to Reargue was denied.  The order to show cause to renew the earlier decision was also denied.  Movant was charged with notice of the entered Judgment of foreclosure and sale and failed to provide reasonable excuse for failing to appear.  As to the surplus, the movant had no judgment or lien against the property.  They obtained no interest in the property from Vargas until after the foreclosure sale – when Nadia Vargas’ interest was already extinguished.  Thus, they were not entitled to a share in the surplus.   

A great job by Richard O’Brien, 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 HSBC BANK,USA, NA, v. Mihai Margineanu, etal  Index 609027/2015, Suffolk County decided June 12, 2019.  Plaintiff’s motion for summary judgment was granted and defendant’s cross motion to renew denied.

The defendants sought leave to renew their prior cross motion for summary judgment and order seeking dismissal of the complaint.  However, there were no new facts or demonstration of change in the law.  Defendant, alleged a change in law, based on the recent Dieudonne case (Bank of New York Mellon v. Dieudonne (171 AD3rd 34, 96 NYS3d 354 (2^nd Dept 2019).  Second, they allege the de-acceleration letter was improperly mailed to prior counsel instead of defendant.

The Court found, that defendant correctly argued Dieudonne rejected the interpretation of the mortgage contract language as one that does not trigger an acceleration of the entire debt, until Judgment.  However, Dieudonne, only addresses one argument from the Court’s October 9, 2018 decision.  Thus, the Court’s position that the action was not timely was unchanged based on the remaining three reasons in the decision.  As to the de-acceleration, the Court found that the defendant’s failed to provide reasonable justification for failure to present such facts in the original motion.

The plaintiff met the prima facie burden in the motion for summary judgment, however, the defendants’ submission did not oppose plaintiff’s application.

A great job by Annette Gershovich, Esq. and Zachary Gold, 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 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]