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One Westbank, FSB v. Rodriguez

Supreme Court, Bronx County

July 7, 2017

One Westbank, FSB, Plaintiff,
v.
George A. Rodriguez, JOYCE D. SPANN-SMOOT, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., AS NOMINEE FOR AMNET MORTGAGE IN LIEU OF TRUE CORPORATE NAME AMERICAN MORTGAGE NETWORK INC. and JOHN DOE No.1 through JOHN DOE #10, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants.

          Plaintiff's counsel: Ras Boriskin, LLC by Austin T. Shufelt, Esq.

          Defendants' Counsel: D'Angelica & Bilski by Christopher P. Bilski, Esq.

          Hon. Lizbeth González, J.S.C.

         By letter dated 9/29/10, defendant George Rodriguez was notified that his mortgage loan for the subject premises known as 2735 Hering Place in Bronx County was in serious default; a total amount of $22, 065.22 was due for outstanding monthly payments, late charges and fees. On 6/21/11, plaintiff commenced a foreclosure action under Index No. 380677/2011. Plaintiff filed an RJI to discontinue that action on 7/18/12.

         The underlying foreclosure action was commenced on 12/3/12 under Index No. 35153/2012e. The basis for the discontinuance and the delay in filing the second action are unexplained.

         Plaintiff filed an RJI on 6/14/13 requesting a residential foreclosure settlement conference. At the settlement conference subsequently held on 12/11/13, defendants Rodriguez and Joyce D. Spann-Moot were denied a modification. By Order dated 12/11/13, the Hon. Robert E Torres dismissed their appeal, directed plaintiff to proceed with the foreclosure and issued a 45-day stay. On 12/21/15, plaintiff moved for an order granting summary judgment, striking the answer, awarding a default judgment and appointing a Referee.

         By Decision dated 5/24/16, this court denied summary judgment on the ground that plaintiff's proffered indorsement was placed not on the note itself but rather on a separate piece of paper, thus creating a triable issue as to who held the note at the time that the action was commenced. The court additionally held that by waiting more than three years to file an RJI after the defendants' alleged default, plaintiff violated the "good faith" requirements of CPLR § 3408. After careful consideration, the court referred the parties to the Foreclosure Settlement Part for a review of the accrued interest and penalties and for possible settlement.

         In lieu of appearing in the Foreclosure Settlement Part, plaintiff moves to reargue its earlier application for summary judgment. Defendants Rodriguez and Joyce D. Spann-Moot oppose the motion on several grounds.

         TIMELINESS

         A motion to reargue must be made within 30 days after service of a copy of the order determining the prior motion and written notice of its entry (CPLR 2221[d][3]). On 6/2/16, defendants e-filed a copy of the 5/24/16 Order with Notice of Entry. Plaintiff e-filed a motion for reargument on 7/5/16. Defendants contend that plaintiff's summary judgment is untimely because its 30-day period for argument expired on 7/2/16. Plaintiff contends that the 30-day period was extended pursuant to General Construction Law § 20-a because 7/2/16 was a Saturday, and the following Monday was July 4th, a holiday.

         General Construction Law § 20-a (1) provides that when any period of time falls on a Saturday, Sunday or public holiday, such act may be done on the next succeeding business day. Defendants argue that no such extension is available since Uniform Rule 202.5(d)(3)(i) provides that electronically filed documents may be transmitted at any time of night or day to the NYCEF site. No citation is proffered to buttress their argument. The court accordingly declines to adopt defendants' narrow construct. Plaintiff's motion to reargue is deemed timely filed.

         INDORSEMENT

         Plaintiff's motion to reargue this court's 5/24/16 Decision is granted to the following extent. This court in its prior decision determined that plaintiff lacked standing to sue to the extent that the indorsement appeared on a separate piece of paper and not on the note itself (see U.S. Bank, N.A. v Faraque,120 A.D.3d 575');">120 A.D.3d 575 [2d Dept 2014]; U.S. Bank, N.A. v Collymore,68 A.D.3d 752');">68 A.D.3d 752 [2d Dept 2009]; see also MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Avenue Development, LLC,116 A.D.3d 745');">116 A.D.3d 745 [2d Dept 2015]). In a supporting affirmation, plaintiff's counsel establishes that the mirror image of the original stamped indorsement bled through and appears in reverse on the note's signature page. Counsel superimposes side-by-side images on his affirmation to establish that ...


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