Countrywide Home Loans, Inc. v. Drew Taylor, Ctr., Inc.

THOMAS F. WHELAN

Rosicki, Rosicki & Assoc., PC, Batavia, for Plaintiff. Drew Taylor, Deer Park, Defendants Pro Se.
THOMAS F. WHELAN, J.

It is, ORDERED that this motion (# 004) by the plaintiff for an order vacating the judgment of foreclosure and sale, cancelling the notice of pendency and granting the plaintiff leave to discontinue this mortgage foreclosure action is considered under CPLR 3217, 5015 and 6514 and is denied.

This mortgage foreclosure action was commenced by the above named plaintiff by the filing of the summons and complaint in office of the Clerk on November 2, 2006. An order fixing the defaults in answering of the defendants and appointing a referee to compute was issued upon the plaintiff's ex parte application on November 29, 2007. The report of the referee to compute was confirmed in the judgment of foreclosure and sale that was entered by the Clerk on June 20, 2008. In July of 2008, the named plaintiff ceased its operations as it had been taken over by Bank of America.

By the instant motion (# 004), counsel for the named plaintiff, without any elaboration of its retention by any successor to the now defunct named plaintiff, seeks an order vacating the judgment of foreclosure and sale, cancelling the notice of pendency and granting the plaintiff leave to discontinue this mortgage foreclosure action. The sole ground alleged is as follows: “After commencement of this action and after the Judgment of Foreclosure and Sale was entered, plaintiff requested that the action be discontinued. Therefore, affirmant is requesting the discontinuance of this action, vacature of the Judgment of Foreclosure and Sale, discharge of the appointed referee and cancellation of the notice of pendency” ( see ¶ 7 of the affirmation of plaintiff's counsel attached to moving papers). For the reasons stated below, this application is denied in its entirety.

“It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties' substantive rights...” ( Da Silva v. Musso, 76 N.Y.2d 436, 440, 560 N.Y.S.2d 109, 559 N.E.2d 1268 [1990] ). A judgmentthey are reversed by appellate processes or are vacated by the court itself under its inherent powers or those statutorily conferred upon it by CPLR 5015 ( see Matter of Huie, 20 N.Y.2d 568, 285 N.Y.S.2d 610, 232 N.E.2d 642 [1967] ). While a court possesses both inherent and statutory powers to vacate a default judgment on certain grounds ( see Wilson v. Galicia Contr. & Restoration Corp., 10 N.Y.3d 827, 830, 860 N.Y.S.2d 417, 890 N.E.2d 179 [2008];Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ), nothing in the record adduced on the instant motion reveals that the drastic relief of vacatur is appropriate under the circumstances ( see Matter of Huie, 20 N.Y.2d 568, 285 N.Y.S.2d 610, 232 N.E.2d 642 [1967] ) (“ Absent the sort of circumstances mentioned in CPLR 5015 ... a determination of a court from which no appeal has been taken ought to remain inviolate ”).

With the judgment in place in this action, all that remains to be done is the actual foreclosure sale. The court emphasizes that pursuant to RPAPL § 1353(3), upon the sale, “[t]he conveyance vests in the purchaser the same estate only that would have vested in the mortgagee if the equity of redemption had been foreclosed. Such a conveyance is as valid as if it were executed by the mortgagor and mortgagee, and, except as provided in section 1315 and subdivision 2 of section 1341, is an entire bar against each of them and against each party to the action who was duly summoned and every person claiming from, through or under a party by title accruing after the filing of the notice of the pendency of the action.” Caselaw holds that title derived from a foreclosure sale is clear and absolute title that is beyond attack directly or collaterally ( see Dorff v. Bornstein, 277 N.Y. 236, 14 N.E.2d 51 [1938];Dulberg v. Ebenhart, 68 A.D.2d 323, 417 N.Y.S.2d 71 [1st Dept. 1979] ). Something more than a mere assertion of a right is essential to create an unmarketable title ( see Argent Mtge. Co., LLC v. Leveau, 46 A.D.3d 727, 848 N.Y.S.2d 691 [2d Dept. 2007] ).

Neither the judgment of foreclosure and sale, the order of reference previously issued by the court upon the defaults in answering of the mortgagor and other defendants nor the papers underlying them have been challenged as fraudulent or otherwise subject to vacatur by any interested party. Instead, it appears that the counsel is having difficulty complying with the requirements of a post-commencement Administrative Order 548–10 that was issued by court administrators following national media reports detailing misdeeds by signatories to affidavits of merit employed by those seeking foreclosure in jurisdictions other than New York. This order, or rule as it is sometimes referred to, mandates the submission of an affirmation of the mortgagee's counsel verifying, among other things, the accuracy of the notarizations contained in the supporting documents filed with the foreclosure action. Administrative Order numbered 548–10 was amended, slightly in 2011, in an attempt to quell the objections thereto expressed by the bar of this state ( see Administrative Order # 431–11).

By order dated February 28, 2011, this court declared that the 2011 Administrative Order and a subsequently promulgated provision of court Rule 202.12–a, requiring the submission of this affirmation during the course of a mortgage foreclosure action was ultra vires and otherwise invalid ( see LaSalle Bank, NA v. Pace, 31 Misc.3d 627, 919 N.Y.S.2d 794 [Sup. Ct., Suffolk County 2011] ). That order was appealed and was recently affirmed by the Second Department ( see LaSalle Bank, NA v. Pace, 100 A.D.3d 970, 955 N.Y.S.2d 161 [2d Dept. 2012] ). Although the Second Department found that “the attorney affirmation is not itself substantive evidence or a new argument supporting summary judgment” ( cf., Wells Fargo Bank, NA v. Hudson, 98 A.D.3d 576, 949 N.Y.S.2d 703 [2d Dept. 2012] ), the court did not invalidate the Administrative Order. Counsel for foreclosing plaintiffs thus attempt to comply with these non-substantive, administrative requirements of the Administrative Orders and Rule. However, compliance is difficult to achieve due, in large part, to an inability to locate the affiants or others who participated in the preparation of the original affidavits of merit. The affirmation requirement is particularly onerous in cases in which a change in the named plaintiff, its servicer or its counsel has occurred.

Concern on the part of court administrators as to the veracity of the content and the procedures employed in the preparation of affidavits of merit submitted in residential New York foreclosure actions is evident from the broad brush insinuations of misconduct on the part of agents of foreclosing plaintiffs that are recited, as if they were fact, in the preamble text of the affirmation form set forth in the subject Administrative Orders. It is the view of this court that such affirmation, which has been held not to constitute “substantive evidence” ( see LaSalle Bank, NA v. Pace, 100 A.D.3d 970, 955 N.Y.S.2d 161, supra ), is a mis-guided and unnecessary attempt on the part of court administrators to do the “lawyering” for certain parties to residential foreclosure actions under the guise of protecting “the honesty and integrity of the judicial process” ( see Wilson v. Galicia Contr. & Restoration Corp., 10 N.Y.3d 827, 830, 860 N.Y.S.2d 417, 890 N.E.2d 179 [2008] ). Under these circumstances, judgments of foreclosure and sale which remain unchallenged under common law and statutory provisions governing vacatur should not be subject to vacatur due to an inability to comply with post-judgment, administrative orders of questionable validity.

The time has come to remind all that secure property rights provide the foundation for a free society and that the courts are charged with the obligation of assuring that such rights are well defined, well enforced, and readily transferable. Notions of continuity and predictability are important values which guide the exercise of contract and property rights by the citizenry of this state by their voluntary engagement in personal and business transactions involving such rights. These same notions of continuity and predictability also serve to guide the courts in the adjudication of cases before them and resort thereto is particularly stringent in cases involving contract and property rights ( see generally Eastern Consol. Prop., Inc. v. Adelaide Realty Corp., 95 N.Y.2d 785, 710 N.Y.S.2d 840, 732 N.E.2d 948 [2000] ).

Recently, the Second Department reminded trial courts that “[t]he stability of contract obligations must not be undermined by judicial sympathy” ( Emigrant Mtge. Co., Inc. v. Fisher, 90 A.D.3d 823, 935 N.Y.S.2d 313 [2d Dept. 2011], quoting First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 638, 290 N.Y.S.2d 721, 237 N.E.2d 868 [1968],quoting Graf v. Hope Bldg. Corp., 254 N.Y. 1, 4–5, 171 N.E. 884, supra ). While the judiciary has recognized that the remedy of foreclosure and sale may result in the loss of one's home, “[w]hen a default is undisputed, the court (cannot) abrogate the right of foreclosure and sale ... which is incorporated in the contract and on the strength of which (the creditor) lent his money” ( Home Loan Inv. Bank, F.S.B. v. Goodness and Mercy, 2011 WL 1701795 [E.D.N.Y.2011], quoting United States v. Victory Hwy. Vil., Inc., 662 F.2d 488, 494 [8th Cir.1981], quoting United States v. Sylacauga Prop., Inc., 323 F.2d 487, 491 [5th Cir.1963];see also United States v. Flaherty, 172 F.3d 39, 1999 WL 66153 [2d Cir.1999];Graf v. Hope Bldg. Corp., 254 N.Y. 1, 4–5, 171 N.E. 884, supra ).

In view of the foregoing, the instant motion is in all respects denied.