SUPREME COURT – STATE OF NEW YORK
CIVIL TERM – IAS PART 34 – QUEENS COUNTY
25-10 COURT SQUARE, LONG ISLAND CITY, N.Y. 11101
P R E S E N T : HON. ROBERT J. MCDONALD
Justice
– – – – – – – – – – – – – – – – – – – x
U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR ASSET-BACKED PASS-THROUGH
CERTIFICATES, SERIES 2006-NC2
3476 Stateview Boulevard
Ft. Mill, SC 29715
Plaintiff,
– against –
THOMAS BETHELMIE, LUCY DUENAS, NEW
CENTURY MORTGAGE CORPORATION, NEW YORK
CITY ENVIRONMENTAL CONTROL BOARD, NEW
YORK CITY TRANSIT ADJUDICATION BUREAU,
ABLAM KLOUSTE, ABLAUI KISSI, NUSHANA
RAGLAN, SHANA FABIEN,
Defendants.
– – – – – – – – – – – – – – – – – – – x
The following papers numbered 1 to 21 to were read on this crossmotion
by defendant, THOMAS BETHELMIE, for an order dismissing
the plaintiff’s complaint for failure to provide the defendant
with a 90-day notice pursuant to RPAPL § 1304; dismissing the
complaint pursuant to CPLR 3211(a)(8) for lack of personal
service upon defendant; or in the alternative permitting the
defendant to file a late answer:
Papers Numbered
Notice of Motion-Affidavits-Exhibits……………..1 – 7
Defendant Bethelmie’s Cross-Motion……………….8 – 12
Affirmation in Opposition to Cross-Motion………..13 – 17
Reply Affirmation……………………………..18 – 21
This is an action brought to foreclose a mortgage in the
principal sum of $454,400.00 executed by plaintiff Thomas
Bethelmie, dated July 11, 2006, pertaining to the property
located at 102-30 134 Street, Richmond Hill, N.Y., 11420. The
plaintiff asserts that it is the assignee of a mortgage delivered
by Bethelmie to New Century Mortgage. Based upon the record
before this court, the defendant defaulted on his mortgage when
he failed to make his monthly mortgage payments beginning October
1, 2007. Plaintiff subsequently accelerated the defendant’s
mortgage and brought an action to foreclose its mortgage by
filing a lis pendens and a summons and complaint on June 10,
2009. Defendant Bethelmie was purportedly personally served with
the summons and complaint on June 13, 2009. Alice A. Nicholson,
Esq. filed a notice of appearance on behalf of Thomas Bethelmie
dated September 11, 2009.
On November 12, 2009, a settlement conference was held
before Referee Florio. Plaintiff appeared as did defendant
Bethelmie and his attorney, Alice A. Nicholson. The referee filed
an order stating that the defendant is in debt on two mortgages
totaling in excess of $650,000. The case was not settled at that
time and the Referee ordered that the matter proceed by Order of
Reference.
Defendant failed to interpose an answer in the foreclosure
action. Subsequently, pursuant to RPAPL 1321, the plaintiff moved
for an order of reference appointing a referee to compute the
sums owed. By order dated December 23, 2009 the Court granted the
plaintiff’s unopposed motion for an order appointing a referee.
In support of the Order of Reference, an Affidavit of Merit and
Amount Due dated September 1, 2009 was executed by Xee Moua, Vice
President of Loan Documentation of Wells Fargo Bank, N.A. the
servicer for the plaintiff, setting forth the basis of
plaintiff’s claims and the amounts due and owing by the
defendant.
An Order of Reference was signed by this Court on May 20,
2010 appointing David W. Graber, Esq. as Referee. On May 17,
2011, Mr. Graber executed his Oath and Report of Amount Due.
On July 14, 2011, plaintiff moved for a Judgment of
Foreclosure and Sale. Plaintiff requested the court accept and
substitute, nunc pro tunc, a new affidavit of merit dated April
15, 2011, executed by David M. Beitz, in place and stead of the
previously filed Affidavit of Merit. Plaintiff’s counsel, Douglas
C. Weinert, Esq. states that the reason for the substitution was
that his firm was notified by its client that there may have been
irregularities with regard to the execution of the Affidavit of
Merit and Amount Due and therefore certification cannot be
provided. Counsel states that the client was unable to confirm or
deny that the affidavits previously filed with the court in
support of the order of reference were properly reviewed or
notarized. Plaintiff’s counsel avers that as the prior affidavit
was defective, the new Affidavits of Merit should be substituted
nunc pro tunc pursuant to CPLR 2001 and CPLR 5019(a).”
Prior to the submission date of the motion for a Judgment of
Foreclosure, plaintiff executed a consent to change attorneys
dated December 16, 2011, substituting the law firm of Gross,
Polowy & Orlans for the law firm of Steven Baum, P.C. On March 2,
2012, plaintiff’s incoming attorneys filed a notice withdrawing
the motion for Judgment of Foreclosure and Sale. The notice
states, however, that the plaintiff will not be discontinuing the
action.
On October 24, 2011, prior to the motion for Judgment of
Foreclosure being withdrawn, defendant Bethelmie filed a crossmotion
opposing the motion for judgment of foreclosure, and in
addition, requesting an order dismissing the plaintiff’s
complaint based upon plaintiff’s failure to provide the defendant
with a 90-day pre-foreclosure notice pursuant to RPAPL § 1304;
dismissing the complaint pursuant to CPLR 3211(a)(8) for lack of
personal service upon defendant or in the alternative, permitting
the defendant to file a late answer.
On April 12, 2012, the plaintiff’s motion was marked
withdrawn but the defendant’s cross-motion to dismiss the
complaint was fully submitted. Plaintiff states that it
anticipates submitting a motion to vacate the prior order of
reference and submitting a new order of reference on the ground
that plaintiff cannot confirm the signatures of the affidavit of
merit submitted with the Order of Reference presently on file
with the Court.
The basis of the cross-motion is that the plaintiff’s
complaint should be dismissed for failure to comply with RPAPL §§
1302 and 1304 which requires the plaintiff, prior to instituting
a foreclosure action to give notice to the borrower 90 days prior
to the commencement of the action. Citing Aurora Loan Servs., LLC
v Weisblum, 85 AD3d 95 [2d Dept. 2011], which states that “proper
service of RPAPL 1304 notice on the borrower or borrowers is a
condition precedent to the commencement of a foreclosure
action,” defendant contends that the action must be dismissed for
failure to comply with this mandatory condition precedent.
Secondly, counsel asserts that Mr. Bethelmie was not
personally served in the action. The affidavit of personal
service executed by process server, Alan Feldman, on June 19,
2009, states that on June 13, 2009 he personally served Mr.
Bethelmie by serving a copy of the summons and complaint to
“Shana Fabien (co-occupant) a person of suitable age and
discretion at defendant’s dwelling place.” Mr. Bethelmie submits
an affidavit in opposition, dated October 20, 2011, stating that
on the date of the purported service, June 13, 2009, he lived on
the second floor of the residence and Ms. Fabien. a tenant, lived
on the first floor. He states that he never received notice of
the action until he received a notice from the Court to appear
for a settlement conference. In the alternative, defendant
requests that his default be vacated and that he be granted an
extension of time to submit an answer.
Upon review and consideration of the defendant’s crossmotion,
plaintiff’s affirmation in opposition, and defendant’s
reply thereto, this court finds that the defendant’s motion to
dismiss the complaint is granted.
RPAPL 1304 provides that at least ninety days before a
lender begins an action against a borrower to foreclose on a
mortgage, the lender must provide notice to the borrower that the
loan is in default and his or her home is at risk (see Aurora
Loan Services, LLC v Weisblum, 85 AD3d 95[2d Dept. 2011]).
“[P]roper service of the RPAPL 1304 notice on the borrower or
borrowers is a condition precedent to the commencement of the
foreclosure action, and the plaintiff has the burden of
establishing satisfaction of this condition” (Aurora Loan
Services, LLC v Weisblum, 85 AD3d at 107). Because satisfaction
of a statutory condition precedent is an element of the claim
itself which must be proved by the plaintiff, as opposed to an
affirmative defense which must be pled by the defendant (see
Matter of Langella v. Front Door Assoc. Inc., 34 Misc. 3d 1212A
[Sup. Ct. Suffolk Co. 2012]), plaintiff’s failure to show strict
compliance requires dismissal (see Aurora Loan Services, LLC v
Weisblum, 85 AD3d at 103).
Here, plaintiff’s counsel states in her affirmation that on
January 19, 2009, a 90 day notice pursuant to CPLR 1304 was sent
to the defendant via first class mail and certified mail to his
home address located at 102- 30 134 Street, South Richmond th
Hill, New York. A copy of the notice was attached to the
opposition papers. However, plaintiff has failed to submit proof
of service of the RPAPL 1304 notice. Counsel’s affirmation is not
based upon personal knowledge, and thus, does not constitute
proper proof of service (see Aurora Loan Services, LLC v
Weisblum, 85 AD3d 95[2d Dept. 2011][(n)or did (the plaintiff)
submit an affidavit of service to establish proper service .[on
the borrower] by registered or certified mail and also by
first-class mail’ to [the borrower’s] last known address (RPAPL
1304[2]; also see Wells Fargo Bank, N.A. v Barrett, 33 Misc. 3d
1207A [Sup. Ct. Qns. Co. 2011]).
Accordingly, for all of the aforesaid reasons, it is hereby,
ORDERED, that the defendant’s motion to dismiss the
complaint for failure to comply with RPAPL 1304 is granted, and
it is further,
ORDERED, that the notice of pendency is canceled.
In view of the above, the other branches of the defendant’s
motion are academic.
Dated: June 29, 2012
Long Island City, N.Y.
