43 Misc. 3d 409
N.Y. Sup. Ct.2014Background
- Plaintiff (bank) commenced a residential mortgage foreclosure in Nov. 2009 against Arif Izmirligil for default on a >$1M loan; defendant defaulted and his attempts to vacate the default were denied and affirmed on appeal.
- Plaintiff moved for relief from compliance with attorney "affirmation"/vouching requirements imposed by Chief Administrative Judge Administrative Orders (AO/548/10, AO/431/11, AO/584/10) and 22 NYCRR 202.12‑a(f).
- Those administrative measures required foreclosing plaintiffs' counsel to affirm independent verification of affidavits of merit and notarizations at specified stages in pending residential foreclosure cases.
- Defendant argued affirmations were necessary to police alleged widespread foreclosure-document misconduct (e.g., "robo‑signing") and that affirmations were validated by some appellate decisions.
- Meanwhile, the Legislature enacted CPLR 3012‑b (effective Aug. 30, 2013) requiring a less burdensome certificate of merit prospectively for new foreclosures; Chief Administrative Judge later made affirmations optional or waived for cases commenced on/after that date via AO/208/13.
- The court held it had authority under 22 NYCRR 202.1(b) and inherent powers to waive the administrative affirmation requirements and concluded those administrative vouching requirements were invalid/inconsistent with statutory authority and CPLR 3012‑b.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of administratively imposed attorney affirmations (AO/548/10, AO/431/11, 22 NYCRR 202.12‑a(f)) | Affirmations are invalid/ultra vires and conflict with statutory scheme; plaintiff seeks waiver | Affirmations are a proper administrative response to nationwide foreclosure misconduct and were validated by appellate authority | Court waived/declared administratively imposed affirmations invalid for this action; they are inconsistent with statutory framework and beyond administrators' rule‑making authority |
| Effect of CPLR 3012‑b (statutory certificate of merit) on administrative affirmations | Legislature's prospective enactment of CPLR 3012‑b circumscribes administrative vouching; statute is less onerous and does not implicate attorney‑client privilege | Administrative affirmations remain justified for pending cases and are consistent with rule‑making authority | CPLR 3012‑b supplants or limits the field; administrative affirmations are inconsistent with and more stringent than the statute, undermining their validity |
| Attorney‑client privilege / RPC 1.6 conflict | Affirmation requirements force counsel to disclose privileged communications; thus unconstitutional/in violation of professional rules | Affirmations do not necessarily implicate privilege and serve to prevent fraud on the court | Court found privilege objection moot after waiving affirmation requirement and observing statutory certificate does not implicate privilege |
| Standing/defendant's ability to litigate misconduct claims after default | N/A (plaintiff seeks waiver) | Defendant contends alleged nationwide misconduct shows fraud on the court and requires affirmations; challenges plaintiff's standing | Defendant's factual challenges are largely foreclosed by his adjudicated default and waiver of affirmative defenses; claims of general misconduct elsewhere are not persuasive to validate the administrative rule |
Key Cases Cited
- LaSalle Bank, N.A. v. Pace, 100 A.D.3d 970 (App. Div. 2012) (affirming lower court order without addressing validity of administrative affirmations; discussed non‑substantive nature of the attorney affirmation)
- U.S. Bank N.A. v. Eaddy, 109 A.D.3d 908 (App. Div. 2013) (addressed mandatory compliance with affirmation timing; did not resolve broader validity question)
- Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62 (Ct. of Appeals 2003) (defaulted party deemed to have admitted factual allegations and reasonable inferences)
- Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1 (Ct. of Appeals 1986) (limits on court administrator rule‑making; administrative rules must be consistent with statute)
- People v. Ramos, 85 N.Y.2d 678 (Ct. of Appeals 1995) (inherent powers and limits on courts fashioning remedies that invade recognized rights)
- Wells Fargo Bank, N.A. v. Mastropaolo, 42 A.D.3d 239 (App. Div. 2007) (standing is waivable and not jurisdictional if not timely raised)