Bayview Loan Servicing, LLC v. Bernard

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Docket Number

Attorney(S)

Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.

Judges

Peter B. Skelos
Ruth C. Balkin
Cheryl E. Chambers
Robert J. Miller

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Smart Summary

Factual and Procedural Background

This appeal arises from an action to foreclose a mortgage. The plaintiff, Bayview Loan Servicing, LLC, moved for an order of reference, which was denied by the Supreme Court, Kings County, initially on August 6, 2013, and the denial was adhered to upon reargument on September 22, 2014. The plaintiff appeals from the denial of that branch of its unopposed motion for an order of reference. The defendants failed to answer the complaint within the time allowed.

Legal Issues Presented

Whether the Supreme Court erred in denying the plaintiff’s unopposed motion for an order of reference in a mortgage foreclosure action.
Whether the Supreme Court properly raised the issue of the plaintiff’s standing sua sponte in connection with the order of reference motion.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 816 (N.Y. App. Div. 2013)	Supporting entitlement to an order of reference through submission of mortgage, note, and affidavits attesting to default.	Used to establish that the plaintiff demonstrated entitlement to an order of reference with proper documentation.
Aurora Loan Servs., LLC v. Shahmela Shah Sookoo, 92 A.D.3d 705, 707 (N.Y. App. Div. 2012)	Supporting entitlement to an order of reference through submission of mortgage, note, and affidavits attesting to default.	Reinforced the plaintiff’s showing of entitlement to an order of reference based on submitted evidence.
HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d 930, 932 (N.Y. App. Div. 2015)	Waiver of defense of lack of standing if not raised by defendant before answering or by pre-answer motion.	Supported the court’s conclusion that the defendants waived the standing defense by failing to answer or move to dismiss before answering.
JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 A.D.3d 821, 822 (N.Y. App. Div. 2014)	Waiver of defense of lack of standing if not timely raised by defendant.	Further supported the waiver of the standing defense by the defendants in this case.

Court's Reasoning and Analysis

The court found that the Supreme Court erred in denying the plaintiff’s unopposed motion for an order of reference. The defendants failed to answer the complaint within the time allowed, which entitled the plaintiff to the order of reference upon submission of the mortgage, note, and affidavits attesting to default, consistent with established precedent. Additionally, the Supreme Court improperly raised the issue of the plaintiff’s standing sua sponte, as the defendants waived any standing defense by not answering or making a pre-answer motion to dismiss. The court relied on prior decisions to support both the entitlement to the order of reference and the waiver of the standing defense.

Holding and Implications

The order dated September 22, 2014, is reversed insofar as appealed from, the determination denying the plaintiff’s motion for an order of reference is vacated, and that branch of the plaintiff’s motion is granted.

This decision directly grants the plaintiff’s motion for an order of reference in the mortgage foreclosure action. No new precedent was established; the ruling applies existing legal standards to the facts of this case, reinforcing procedural requirements regarding standing and default in foreclosure proceedings.

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BAYVIEW LOAN SERVICING, LLC, appellant, v. Jean BERNARD, et al., defendants.

Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Lijue T. Philip and Andrew Morganstern of counsel), for appellant.

In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated September 22, 2014, as, upon reargument, adhered to its prior determination in an order dated August 6, 2013, denying that branch of its unopposed motion which was for an order of reference.

ORDERED that the order dated September 22, 2014, is reversed insofar as appealed from, on the law, without costs or disbursements, upon reargument, the determination in the order dated August 6, 2013, denying that branch of the plaintiff's motion which was for an order of reference is vacated, and that branch of the plaintiff's motion is granted.

The Supreme Court erred, upon reargument, in adhering to its original determination denying that branch of the plaintiff's unopposed motion which was for an order of reference. The defendants failed to answer the complaint within the time allowed, and the plaintiff demonstrated its entitlement to an order of reference by submitting, in support of its unopposed motion, the mortgage, the note, and affidavits from its employees attesting to the default ( see HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 816, 962 N.Y.S.2d 301; Aurora Loan Servs., LLC v. Shahmela Shah Sookoo, 92 A.D.3d 705, 707, 941 N.Y.S.2d 503).

It was also error for the Supreme Court to raise the issue of the plaintiff's standing sua sponte. Since the defendants did not answer the complaint, and did not make a pre-answer motion to dismiss the complaint, they waived the defense of lack of standing ( see HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d 930, 932, 5 N.Y.S.3d 175; JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 A.D.3d 821, 822, 979 N.Y.S.2d 620) in connection with that branch of the plaintiff's motion which was for an order of reference.

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.