Decided on May 19, 2015

15956/09

Attorney for plaintiff

Davidson Fink LLP

28 East Main Street STE 1700

Rochester, New York 14614

585 760-8218

Attorney for defendant

Angelyn Johnson & Associates

Angelyn D. Johnson, Esq.

188 Montague Street, Suite 500

Brooklyn, new York 11201

718-875-2145
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the ex parte motion of plaintiff U.S. Bank National Association, as Successor Trustee to Bank of America, N.A. as Successor by Merger to Lasalle Bank N.A., as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-backed Certificates, Series 2007-2 (hereinafter USBNA or the movant), filed on January 28, 2013 with the Kings County Foreclosure Department, for, among other things, an order appointing a referee to compute pursuant to the RPAPL 1321.

Ex parte motion

Affirmation in support

Affidavit of merit

Untabbed annexed exhibits

Proposed order of reference

[*2]BACKGROUND

On June 26, 2009, USBNA commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency with the Kings County Clerk’s office (hereinafter the commencement papers).

The complaint alleges in pertinent part, that on March 20, 2007, defendants Jose Lopez and Roberto Rosario (hereinafter the mortgagors) executed a note (the subject note) promising to pay First Franklin Financial Corp, the lender, (hereinafter FFFC) the sum of $627,520.00. On that same date, the mortgagors executed a mortgage (the subject mortgage) in favor of MERS as nominee for FFFC on certain real property known as 210 Marcus Garvey Boulevard, Brooklyn, New York 11211, Block 1792 Lot 43 (hereinafter the subject property) to secure the debt.

The movant avers that it owns the subject note and mortgage. The movant also avers that the mortgagors have defaulted on making payments due and owing on the subject note from January 2009 and thereafter. Based on the mortgagors’ alleged default and the failure to cure same, the movant has accelerated the subject note and has commenced the instant mortgage foreclosure action.

No defendant has answered the complaint or submitted opposition to the instant motion.

LAW AND APPLICATION

A motion for an order of reference is a preliminary step toward obtaining a default judgment of foreclosure and sale (HSBC Bank USA, N.A. v Alexander, 124 AD3d 838 [2nd Dept 2015]; see also RPAPL 1321 [1].

CPLR 3215 (g) sets forth when and under what circumstances notice of an application or motion for leave to enter a default judgment must be given. It provides that any defendant who has appeared in an action but subsequently defaults “is entitled to at least five days’ notice of the time and place” of the motion for leave to enter a default judgment. It further provides, as relevant to the instant motion, that if more than one year has elapsed since the default any defendant who has not appeared is entitled to the same notice unless the court orders otherwise.

The failure of the plaintiff to give notice to the defendants of its motion for leave to enter a default judgment pursuant to CPLR 3215 (g) (1) deprives the Supreme Court of jurisdiction to entertain the motion (Paulus v Christopher Vacirca, Inc., —- NYS 3d —&mdash, 2015 WL 1542183 [2nd Dept 2015]).

The failure to provide a defendant with proper notice of a motion renders the resulting order and judgment entered upon that order nullities, warranting vacatur pursuant to CPLR 5015 (a) (4) (Id. citing Financial Services Vehicle Trust v Law Offices of Dustin J. Dente, 86 AD3d 532, 533 [2nd Dept 2011]). The failure to provide proper notice of a motion can readily be viewed as a fundamental defect because it deprives the opposing party of a fair opportunity to oppose the motion (Paulus v Christopher Vacirca, Inc., —- NYS 3d —&mdash, 2015 WL 1542183 [2nd Dept 2015]).

In a mortgage foreclosure action, a plaintiff that has initiated proceedings for entry of default judgment within one year of defendant’s default, by taking preliminary step of moving for order of reference, does not abandon its foreclosure action (Klein v St. Cyprian Properties, Inc., 100 AD3d 711 [2nd Dept 2012]).

CPLR 3215 (c) provides, with regard to default judgments, in pertinent part, that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed (Pipinias v J. Sackaris & Sons, Inc.,

116 AD3d 749, 750 [2nd Dept 2014]).

The movant commenced the instant foreclosure action on June 26, 2009 and made the instant motion on January 28, 2013. Assuming the movant properly served the commencement papers upon each defendant that it is seeking a default judgment against, then each of those defendants has defaulted more than three years prior to the filing date of the instant motion.

Despite this fact, the movants have offered no explanation for the over three year delay in making the instant motion or for making the motion ex parte. As a result, the motion for a default judgment must be denied; and the complaint is subject to dismissal pursuant to CPLR 3215(c). Moreover, pursuant to CPLR 3215 (g) (1) each defendant was entitled to notice of the instant motion. The movant’s determination to move ex parte under these circumstances has deprived the Court of jurisdiction to entertain the motion (Paulus v Christopher Vacirca, Inc., —- NYS 3d —&mdash, 2015 WL 1542183 [2nd Dept 2015]).

Based on the failure of the movant to move by notice of motion served upon all of the allegedly defaulting defendants, the Court is denying the motion in its entirety, including that branch which seeks an order to amend the caption. The motion, however, is denied without prejudice.

The movant’s papers contain the following additional problems. The affirmation of regularity by Alissa L. Wilson, the movant’s counsel, is unsigned. The affidavit of merit is by an individual who has described himself as an officer of an entity that is the servicing agent of the movant. However, the motion papers contain no evidence of the servicing agent’s authority to speak on behalf of the movant. Contrary to the requirements of Part A of the Kings County Supreme Court Uniform Civil Term Rules, the motion papers lack an index and protruding exhibit tabs for the numerous exhibits annexed to it.

In the interest of judicial economy, the Court stopped reviewing the instant motion papers after finding the above mentioned problems. In the event that the movant seeks the same relief in a subsequent motion it is directed to comply with the following directives. The movant is directed to annex the instant decision and order with its motion papers. The movant is directed to move by notice of motion in accordance with CPLR [*3]3215 (g). The movant is directed to submit with its motion papers sworn allegations of fact by someone with personal knowledge explaining the over three year delay in moving for a default judgment. The movant is directed to include an index and protruding tabs for all exhibits annexed to its motion. The movant is also directed not to attach any exhibit to its motion that is not accompanied by an explanation for its inclusion.

CONCLUSION

USBNA’s motion for an order of reference pursuant to RPAPL 1321 is denied without prejudice.

USBNA’s motion for a default judgment against all defendants pursuant to CPLR 3215 is denied without prejudice.

USBNA’s motion to amend the caption is denied without prejudice.

The foregoing constitutes the decision and order of this court.

Enter:———————————————————————————x

J.S.C.

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