The following papers numbered 1 13 to were read on this motion by defendant, MARCIA REID, for an order vacating the Judgment of Foreclosure and Sale on the ground of fraud, misrepresentation, lack of standing and lack of personal jurisdiction, for an order declaring the judicial sale to be declared null and void based upon predatory lending practices to stay the eviction holdover proceeding in Queens Civil Court:Papers Numbered

Order to Show Cause-Affidavits-Exhibits................1 - 5

Affirmation in Opposition-Affidavits-Exhibits..........6 - 10

Reply Affirmation.....................................11 - 13

The background of this case was summarized by this Court in its prior decision dated May 16, 2011. At that time the Court stated that this action pertains to the foreclosure of the property located at 146-08 130th Avenue, Jamaica, New York. The defendant executed a promissory note on March 8, 2006 for the sum of $330,000.00. As security for payment of the debt the plaintiff gave a mortgage on the premises. The defendant defaulted on her mortgage when she failed to make her monthly mortgage payments [*2]beginning April 1, 2007. Plaintiff subsequently accelerated the defendant's mortgage and brought an action to foreclose by filing a lis pendens and a summons and complaint on August 13, 2007.

Defendant, Marcia Reid, was served at her residence pursuant to CPLR 308(2) on August 17, 2007 by leaving a copy of the summons and complaint with the defendant's daughter, a person of suitable age and discretion and by mailing a copy of the summons and complaint to the mortgaged premises(see affidavit of service dated August 17, 2007 executed by process server Alan Feldman). Defendant failed to appear or interpose an answer in the foreclosure action. Subsequently, pursuant to RPAPL 1321, the plaintiff moved ex parte for an order of reference which was granted by this Court on November 1, 2007 appointing a referee to compute the sums owed.

On November 19, 2007, counsel for defendant, Michael N. Durante, served a notice of appearance but did not serve an answer to the complaint. On May 9, 2008, after the referee issued his report, plaintiff moved for a judgment of foreclosure and Sale which was served on defendant's counsel. Defendant failed to oppose the plaintiff's motion and a judgment of foreclosure and Sale was granted by judgment dated July 31, 2008.

Pursuant to the judgment of foreclosure, a foreclosure sale was scheduled for March 20, 2009. However, based upon an order to show cause filed by the defendant, the foreclosure sale was stayed based upon the defendant's affirmation that she was in the process of refinancing the property when the judgment of foreclosure was signed by this Court. By decision and order dated May 22, 2009, this Court denied the motion and vacated the stay on the ground that the defendant was in default and failed to provide a reasonable excuse for failure to serve an answer or a meritorious defense to the foreclosure action.

The plaintiff subsequently scheduled a second foreclosure sale for July 17, 2009. However, the sale was cancelled when the defendant entered into a loan modification with the plaintiff. The defendant failed to make payments under the modification plan and plaintiff proceeded with the foreclosure action and scheduled a third foreclosure sale for August 29, 2009. However, that sale was cancelled when the defendant filed for Chapter 13 Bankruptcy. The automatic stay was terminated on December 10, 2009 based upon a stipulation signed by the defendant permitting plaintiff to proceed with the foreclosure.

A fourth foreclosure sale was scheduled for February 5, 2010 but was cancelled when the defendant re-filed for Chapter 13 [*3]Bankruptcy. The second bankruptcy proceeding was dismissed on by order dated March 17, 2010 and a fifth foreclosure sale was scheduled for May 7, 2010. That sale was cancelled when the plaintiff attempted to adjust the terms of the mortgage. However, based upon the defendant's income and expenses, the loan modification could not be achieved. The plaintiff thereupon scheduled a sixth foreclosure sale for June 11, 2010. That sale was cancelled to enable the defendant to apply to the federal HAMP program. Defendant was evaluated for the program but ruled ineligible due to her failure to make the trial period payment.

A seventh foreclosure sale was held on August 6, 2010 and the property was sold back to the plaintiff. The defendant then filed a second order to show cause seeking to stay the transfer of the deed, to set aside the order of foreclosure and sale and to obtain a further review for eligibility under the HAMP program. By decision and order dated September 3, 2010, this Court denied the motion on the ground that the defendant was in default, had failed to provide a sufficient basis to vacate the default and that she was provided with all the proper notices of the foreclosure sale.

In February 2011, defendant moved to set aside the foreclosure sale held on August 6, 2010, scheduling a settlement conference and requesting that plaintiff provide the defendant with the original loan documents. In addition, defendant challenged plaintiff's standing to bring the action, raised allegations of fraud and misrepresentation at the time of the loan application and again challenged service of process of the summons and complaint.

By decision and order dated May 16, 2011, this Court denied the defendant's motion for an order vacating the judgment of foreclosure and sale dated July 31, 2008. The Court held that service of the summons and complaint was properly made upon the defendant. The Court also held that the defendant failed to offer any excuse for her failure to answer the summons and complaint and failed to provide a meritorious defense for her failure to make payments on the mortgaged property. The Court also held that defendant failed to provide a sufficient factual basis other than speculative and conclusory allegations for her contention that the terms of the mortgage were unfair or that the plaintiff made fraudulent misrepresentations at the time the defendant executed the loan application. The plaintiff submitted copies of documents indicating that the defendant was provided with a truth in lending statement at the time of the closing of the mortgage and that she executed a copy of the note and mortgage. [*4]

The Court also held that the defendant waived any argument that Wells Fargo lacked standing to commence the foreclosure action by failing to interpose an answer or file a timely pre-answer motion which asserted the defense of standing (see CPLR 3211(e); US Bank v Eaddy, 79 AD3d 1022 [2d Dept. 2010] Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983 [2d Dept. 2010] Deutsche Bank Natl. Trust Co. v Hussain, 78 ASD3d 989 [2d Dept. 2010] HSBC Bank, USA, v Dammond, 59 AD3d 679 [2d Dept. 2009]). Moreover, the Court found that the plaintiff submitted documentary evidence, in opposition to the motion, demonstrating that Wells Fargo Bank N.A., the plaintiff herein, was the entity to whom the defendant executed the Note and Mortgage on March 8, 2006. Wells Fargo Bank, N.A. was the record holder of the Note and Mortgage on the date this action was commenced and thus had standing to commence the action. The Note and Mortgage was properly assigned to HSBC Bank USA, National Association, as Trustee after the action was commenced.

By order to show cause dated August 7, 2013, plaintiff again moves to vacate the judgment of foreclosure and sale and to vacate the judicial sale of the property to the plaintiff on the grounds of newly discovered evidence and on the ground of fraud, misrepresentation, lack of standing and lack of personal jurisdiction. Defendant also seeks to stay the eviction holdover proceeding in Queens Civil Court filed under Index Number 78542/2010.

Plaintiff filed opposition to the motion contending that the purported newly discovered evidence is insufficient to demonstrate that the plaintiff engaged in any fraud or misconduct that would warrant vacatur of the judgment of foreclosure and sale.

This Court finds that the defendant's motion is denied,. The plaintiff has not presented any evidence or arguments that have not been previously presented and previously ruled upon by this court in its prior decisions and orders. The plaintiff has failed to present any new evidence which would tend to show that the judgment of foreclosure and sale was obtained by fraud or misrepresentation. Further, the foreclosure sale extinguished as a matter of law any further right on behalf of the defendant to redeem the property (see American Holdings Inv. Corp. v Josey, 71 AD3d 927 [2d Dept. 2010] Chase Manhattan Mtge. Corp. v Harper, 54 AD3d 987 [2d Dept. 2008] NYCTL 1996-1 Trust v Moore, 51 AD3d 885 [2d Dept. 2008]).

Accordingly, it is hereby, [*5]

ORDERED, that the defendant's motion to vacate the judgment of foreclosure and sale is denied, and it is further,

ORDERED, that the temporary stay of eviction proceedings contained in the order to show cause dated August 7, 2013 is hereby vacated, and it is further,

ORDERED, that the plaintiff's application for counsel fees and/or sanctions on the ground that the defendant filed a frivolous motion is denied.

Dated: February 25, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.