Decided on November 4, 2011
HSBC Bank, USA, National Association, As Trustee for WFHET 2006-2, Plaintiff,
William F. Norton, a/k/a William Norton, Michelle L. Norton, Defendants.
Steven J. Baum, P.C.,
John A. Belluscio, Esq., of counsel
Attorneys for Plaintiff,
Barrett Greisberger, LLP,.
Mark M. Greisberger, Esq., of counsel,
Attorneys for Defendant.
W. Patrick Falvey, J.
This is a residential foreclosure proceeding. Plaintiff moves for an order nunc pro tunc validating the court’s January 21, 2010 order of reference, the court’s April 26, 2010 judgment of foreclosure, and substituting nunc pro tunc the affidavit of merit and amount due attached to the motion papers, in place of the affidavit attached to the initial motion papers.
The judgment of foreclosure was executed prior to Chief Administrative Judge Pfau’s Administrative Order 548-10 (revised November 18, 2011) requiring plaintiffs’ attorneys in mortgage foreclosures to confirm the factual accuracy of allegations set forth in the Complaint and any supporting affidavits or affirmations filed with the court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith.
Since the order of reference and judgment predated implementation of AO 548-10, in preparing for the foreclosure sale, plaintiff’s attorney attempted to gather the information required to make the affirmation. In doing so, plaintiff’s attorney could not confirm via the attorney’s contacts with the client, the accuracy of the execution and notarization of the original affidavit of merit and amount due, and so seeks this order.
The plaintiff’s attorney was able to obtain a new affidavit of merit by Kara Dolch, a Vice President of Wells Fargo Bank, the servicer for plaintiff. Ex E. This affidavit confirms:
Plaintiff is the holder of the note and mortgage of record.
There is a default because defendants failed to make the February 1, 2009 payment and subsequent payments.
The 90 day pre-foreclosure notice was sent to borrowers by registered or certified mail and by first class mail to last known address of the borrowers, and if different, to the residence that is the subject of the mortgage.
The 90 day pre-foreclosure notice was mailed prior to February 13, 2010, and there was no filing requirement with the superintendent of banks at that time.
A notice of default was mailed to the mortgagors at the last known address provided by the mortgagors. The default stated in the notice was not cured.
Based on the default, plaintiff elected to call due the entire unpaid principal balance with interest, disbursements, attorney fees, costs.
The amount due as reflected in the complaint is $343,299.46, plus 7.375% interest from 1/1/09, plus late charges, etc.
At the initial return, defendants’ attorney appeared, and informed the court that his clients had recently received a letter from the plaintiff, inviting the defendants to apply for a mortgage modification. The Court then adjourned the matter several times to allow the parties to sort out this new development. At the last appearance date of November 1, 2011, neither of the parties offered any information concerning a modification, and so the court determined that it would decide the motion, and reserved decision.
There are form affidavits and affirmations prepared by the Unified Court System, to cover the information required by Judge Pfau’s order. The attorney’s affirmation in support of plaintiff’s motion by Bridget Faso does not contain all the information contained in this form affirmation, and so the court will not grant the relief requested until Ms Faso, or another attorney from the Baum firm, provides an additional affirmation with the missing information, including:
The date she communicated with which representatives of plaintiff, their names and titles.
Based on her communications with these named representatives, as well as upon her own inspection and other reasonable inquiry under the circumstances, she affirms to the best of her knowledge, information and belief, the summons, complaint and other papers filed or submitted to the court ( with the exception of the prior affidavit of merit) contain no false statements of fact or law. That she understands her continuing obligation to amend the affirmation in light of newly discovered material facts following its filing.
That she is aware of her obligations under 22 NYCRR part 1200 and part 130. [*2]
Additionally, Ms. Dolch’s affidavit does not contain all the information required under the rule, and so the court requires that she, or another officer, with knowledge, on behalf of plaintiff, supplement her affidavit to state, if applicable, that she performed the following actions in order to confirm the truth and veracity of the statements set forth, to wit:
1.That she/he reviewed the summons and complaint to confirm the factual accuracy of the identity of the proper plaintiff, the defaults and the amounts claimed to be due to plaintiff as set forth therein,
2.That she/he confirmed the affidavits executed and submitted by plaintiff together with this application have been personally reviewed by her, that the notary acknowledging the affiant’s signature followed applicable law in notarizing the affiant’s signature, and
3.That she/he is unable to confirm or deny that the underlying documents previously filed with the court have been properly reviewed or notarized.
Upon the foregoing, it is therefore,
ORDERED that plaintiff’s attorney shall supply the supplemental attorney affirmation and plaintiff’s affidavit to the Court and opposing counsel by January 2, 2012; and it is further
ORDERED that if these supplemental papers are not received and served upon opposing counsel by January 2, 2012, or if they do not contain all the information herein required by the court, the court will dismiss the foreclosure action, with prejudice.
Submission of an order by the parties is not necessary. The mailing of a copy of this Order and Judgment by this Court shall not constitute notice of entry.
The foregoing constitutes the Decision, Judgment and Order of this Court.
Dated: November, 2011
W. Patrick Falvey
Acting Justice Supreme Court
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