Federal Natl. Mtge. Assn. ("FANNIE MAE") v. Walter

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Federal Natl. Mtge. Assn. ("FANNIE MAE") v Walter 2024 NY Slip Op 33098(U) September 4, 2024 Supreme Court, Kings County Docket Number: Index No. 511185/2018 Judge: Carolyn Mazzu Genovesi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 09/04/2024 01:18 PM INDEX NO. 511185/2018 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 09/04/2024

At an IAS Part FRP-5 of the Supret11e Coutt of thcState of New York, held in and for the County ofKings, at t~e Cour~house, at 360 Adams~~;~ Brooklyn, New York, on thef d a y ~ ~

Present Hon. Carolyn Mazzu Genovesi -- .----- .--- .--------· --- .-------------· ------- ·------. - ·- .· -----. X. FEDER:A:L NATIONAL MORTGAGE ASSOCIATION ("FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE lJN[TEDSTATESOF AMERICA,

Plaintiff: DECISION AND ORDER -against- Index No.: 51 1 185/2018 Motim¹ Cal. No.; 9 Mot. Seq. 2 CHAIM WALTER AS HEIR TO THE ESTATE OF FERENCE WALTER, GITTY ORIGINAL FILED WITH THE NIEDERMANAS HEIR TO THE ESTATE OF.FERENCE WALTER, ESTHER SCHWARTZ AS HEIR TO THE ESTATE OF FERENCE WALTER, CHANA WOSNER AS HEIR TO THE ESTATE.OF FERENCE WALTER MARTIN WALTER AS HEIR TO THE ESTATE OF FERENCE WALTER, ANSI·TEL WALTER AS HEIR TO THE ESTATE OF FERENCE WALTER, SHULEM V.1ALTER AS HEIR TO TIIE ESTATE OF FERENCE WALTER, DAVID WALTER AS HEIR TO THE ESTATE OF FERENCE WALTER, SIMON WALTER AS HEIRTO THE ESTA TE OF FERENCEWALTER, UNKNOWN HEIRS TO THE EST ATE OF FERENCE \V ALTER IF LIVING.AND IF HE/SHE BE DEAD, ANY AND ALL PERSONS UNKNOWN TO PLAINTIFF, CLAIMING, OR WHO MAY CLAIM TO HAVE AN INTEREST IN, OR GENERAL OR SPECIFIC. LIEN UPON THE RIZAL PROPE:R'fY DESCRIBED IN tHIS ti~g~~E1~E~ g~~~I~~Jt~1(i~~BED AND INTENDED TO BE INCLUDED IN WIFE, WIDOW, HUSBAND; VfIDOWER; HEIRS AT LAW; NEXT.OF KIN,

FILED: KINGS COUNTY CLERK 09/04/2024 01:18 PM INDEX NO. 511185/2018 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 09/04/2024

the payments . to plaii1tiff 011 January 9, 2024. Plaintitlthen explains . that on.February26,.2024,

they notified the defendants that the payment was being returned to theii: issuing bank and

requested that the defendants resubmit the payment. The reason for this remittance and request

for defondants·to resubmit the. settlement amount was not provided to·the court. Thereafter,.

plaintiff asserts that defendants·never provided the paymei1ts purst1ant to the Settletnen:t

Agreei'neht. On March 28, 2024; the ban:k provided de fondants With it(1tice of the bteach of the

settlementagreemei1t as (llltlined in the agreehtent.

Plaintiff argues that pursuant to CPLR 2104 and the Court of Appeals case of Bonnette v

Long ls: Coll. Hosp., 3 N.Y.3d 281 (2004), they are entitled to set aside the Settlement

Agreement because defendants have breached that agreement Further, they seek to enforce the

tei"ms of the agreement vv'bich include the ability to continue the foreclosure Action commenced

on May 31, 20 l 8, lii1der the index nm11berin this 1nattet (51 I 185/2018). Addhionally, they

request an order frbtri the court dit'ectingthe defendants cure their breach of failure to pay

pursuant· to the agreement.

Defendants filed an Affirmation in Opposition to plaintiff's Orel.er to Show Cause arguing

that the court lacks subject matterjurisdiction in order to grantthi:!relief sought by plaintiff.

Defei1dant argliesthat the court lacks subject matter jurisdiction because the action had been

discontim1ed and is.therefore no \011ger pending; Dd:endant proi./idesanAppellate Division;

Second Department case of Estate q[Abranis 1,. SeavieH' Assn of Fire ls. New Yifrk, Inc., 151

AP3 d 809 (2d Dept 201 7). ln that matter t h.eh:i ,.:vas a motion to ettfo rce a sti1::>ulation of

settlement w\1ich was denied after the action was tetminated by a stipulatioi1 of discontinirnrice

and the Appellate Court determined that the..denial \Vas.proper becatise the. relie{ requestecl was

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FILED: KINGS COUNTY CLERK 09/04/2024 01:18 PM INDEX NO. 511185/2018 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 09/04/2024

not m;ailable by way ofmotion since the action was terminated by the stipulation of

discontinuance.

The court finds that it lacks subject matterjurisdiction to decide plaintiff's orclei- to show

cause to ehJ'otce the agreement because there ,,vas a stipulation of discontinuance of this action

on February 9_, 2024 and that the forecfosute case index numbet51185/20 I 8 is no longer

pending. Estate q/Abrdms v Seaview Assn q{Fire ls. New Ydrk, Inc., 151 AD3d 809 (2d Dept

2017}, Teitelbaum Holdii7gs v Gold, 48 NY2d 51 (1979), hlatter ofSerpico, 62AD3d 887, 887-

'888 (2009).

Accordingly; plaititiff's order to show cause is denied.

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Footnotes

[1] of 5 [* 1] DESCENDANTS, EXECUTORS. ADMINISTRATORS, DEVISEES, LEGATEES,. CREDITO RS, TRUSTEES, COMMITTEES, LIEN ORS, AND ASSIGNEES OF SUCH DECEASED ' ANY AND ALL . . . . . . PERSONS DERIVING INTEREST IN OR LIEN UPON, OR TITLE TO SAID REAL PROPERTY BY, THROUGHOR UNDER THEI'vl,OR EITHER OF THEM. AND THEIR RESPECTIVE·WJVES, WIDOWS, I-TU SB ANDS, WIDOWERS, HEIRS AT LAW, NEXT OF KIN, DESCENDANTS, EXECUTORS, ADMINISTRATORS, DEVISEES; LEGATEES, CREDITORS, TRUSTEES, COMMITTEES, LIEN ORS, AND ASSIGNS, ALL OF WHOM AND \VF-I.OSE NAMES; EXCEPT AS STATED, ARE UNKNOWN TO PLAINTIFF1 PEOPLE OF THE STATE OF NEV/ YORK. UNITED STATES OF AMERICA ACTING THROUGH THE IRS, BOARD OF MANAGERS OF THE

[89] HARRISON AVENUE CONDOMINIUM, NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY, NEV/ YORK ST ATE DEPARTMENT OF TAXATION AND FINANCE; COMMISSIONER OF JURORS KINGS . . . COUNTY. ' SELDA . . TURAN . . ~ MUSTAFATURAN JOHN DOE (Those unknov,,rn tenants, occupants; persons or corporations ortheir heirs; distributees, executors, administrators, trustees, gual'dians, assignees, creditors; or successors claiming an interest in the inortgaged pretn ises) Defendants, ·.. --------. - ·-. - .-- ·---- ·--------------.. ----- .. ·-------. ---. ----X The following papers were read on this.mqtion·pursuant to CPLR 22 l 9(a):. Pnpers Numbered .Order to Show Cause (MS# 2), Affirmation in !Support, Ex[ ii bits, A t'fi dhation .·in Su ppo1t of Proposed OSC 77. 69- 76 Aftirma,tion in Opposition to ()SC · 79 2 of 5 [* 2] Upon the fotegoing papers, Federal National.Mortgage Association ("plaintiff') moves, by order to show cause, to enforce a settlement agreement dated November 29, 2023, pursuant to CPLR2104 (MS# 2). Plaintiff commenced a Foreclosure Action \\'ith the filing of a Smnmons and Complaint on May 3 I , 20 18. The defendantsjoined issf1e with the filing of an Answer on July 25, 20 18. 0 n Nqvcmber 29. 2023, the parties entered into a Stipulation ofAgreementwhich provided that defendant had agreed to pay $200,000 in a settlement of the outstanding amount of money due. Oi1 February 9. 2024, the parties filed a Stipulation ofWi.thdrawal of the Answer with Counterclaiilis arid a Voluntmy Disccintintmnce of the action executed by both parties. The stipulation of withdta\val in re\evatit part provided the following: t. The Eoreclosi.1re Complaint filed by Plain:tiffon May 31, 2018 and under index number 511185/2018 in the Supreme Court of New York, County of Kings is hereby voluntarily discontinued. . . 2, TheAnswer,vith Comiterdaims filed by Defendants mi July 25, 2018 is hereb)' withdrawnwith pr~judice: 3. The foredosure action has been settled as a result of a short payoff Further, the parties executed and filed a stipulation ofthe cancellation of the Lis Pendei1s (m February 9, 2024. Plaintiff seeks b5; Order to Show Cause to enforce the terms of the Settlement Agreement. by securing the payment of the note and mottgage that defendants had executed on March 20, 2003. Plaintiff asserts that after the parties entered theStipulation of Agreement on November 29; 2023, the defendants were to pay $200,000 pursuant to tlie settleme11.t. Defendants did not provide the amount due at the deadline for the payment uoder the terms of the agreement. That date in the settlement agreement was December 29, 2023. Pursuant to an addendum to agreement the plaintiff extended the defendants' deadline to pay to January 9, 2024. Defendants then wired 3 of 5 [* 3]