In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLLP f/k/a MCM Capital Partners, LLC, its Trustee v. Tomala, et al., the borrowers appeared in the action through counsel and timely interposed an answer to the complaint. ALBPC moved for summary judgment and an order of reference on behalf of the foreclosing Plaintiff (“Summary Judgment Motion”) and the borrowers failed to oppose, despite being duly served. The Summary Judgment Motion was ultimately granted, a referee was appointed to compute the amount due and owing to the foreclosing Plaintiff under the subject loan, and the borrowers’ answer was stricken.
After the appointed referee executed his report of amount due, ALBPC moved for confirmation of the report and for a judgment of foreclosure and sale (“Motion for Judgment”).
Thereafter, one of the borrowers retained new counsel and cross-moved to: (i) renew the Summary Judgment Motion, (ii) vacate the order granting the Summary Judgment Motion and appointing a referee to compute, (iii) dismiss the complaint, and (iv) toll any late fees and interest which accrued between the action being released from the settlement conferencing part and Plaintiff filing its Summary Judgment Motion.
In opposition to the foreclosing Plaintiff’s Motion for Judgment and in support of the cross-motion, the borrower argued that the foreclosing Plaintiff’s Summary Judgment Motion should have been denied and the action should be dismissed for lack of standing –a defense asserted in the borrowers’ answer.
The borrower additionally argued that the foreclosing Plaintiff intentionally delayed in filing its Summary Judgment Motion after the action was released from the settlement conferencing part, which caused confusion as to which attorney was representing the borrower at the time the Summary Judgment Motion was made and increased the interest and fees owed under the loan.
In reply and in opposition to the cross-motion, ALBPC successfully argued and established, inter alia, that: (i) Plaintiff’s standing was already determined and confirmed by the Court upon the grant of Plaintiff’s Summary Judgment Motion and now constitutes the law of the case; (ii) the borrower is barred from opposing Plaintiff’s Motion for Judgment and from seeking renewal due to his default in opposing Plaintiff’s Summary Judgment Motion; (iii) Plaintiff’s Summary Judgment Motion was duly served upon the borrowers’ prior counsel who remained counsel of record in the action from the time of service and filing of the borrowers’ answer; (iv) any purported change of counsel, which the foreclosing Plaintiff was not notified of and which was not effected in the mode prescribed by law, to wit, the filing of a consent to change attorneys with the Court, does not constitute a reasonable excuse for the borrower’s failure to oppose Plaintiff’s Summary Judgment Motion, as a matter of law; and (v) after the action was released from the settlement conferencing part, the foreclosing Plaintiff made multiple attempts to settle the action, including approving a loan modification, which was rejected by the other borrower who is the obligor under the subject note. As such, any alleged delay in filing the Summary Judgment Motion was a result of the foreclosing Plaintiff’s attempts to settle the action.
In an order dated January 25, 2018, Judge Howard H. Heckman Jr. accepted and adopted all of ALBPC’s arguments in granting Plaintiff’s Motion for Judgment in its entirety and denying the borrower’s cross-motion in its entirety.
Jackie Halpern Weinstein, Esq.and another attorney of the Foreclosure Group at Adam Leitman Bailey, P.C. secured this win for the foreclosing Plaintiff.