Rowe v U.S. Bank N.A.

Rowe v U.S. Bank N.A.2021 NY Slip Op 31586(U)

May 4, 2021Supreme Court, Suffolk CountyDocket Number: 610690/2020

Judge: Andrew A. CreccaCases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New YorkState 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: SUFFOLK COUNTY CLERK 05/05/2021 12:00 PMJ INDEX NO. 610690/2020

RECEIVED NYSCEF: 05/05/2021 NYSCEF DOC. NO. 107

SHORT FORM ORDER INDEX No. 610690/2020

SUPREME COURT - STATE OF NEW YORK I.A.S. PART 57 - SUFFOLK COUNTY

PRESENT:

Hon. ANDREW A. CRECCA Justice of the Supreme Court

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ROGER ROWE,

Plaintiff,

- against -

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR J.P. MORGAN MORTGAGE ACQUISITION TRUST 2006-ACCl, ASSET BACKED PASS-THROUGH CERTIFICATE SERIES 2006-ACC I, JP MORGAN CHASE BANK, N.A. , SELECT PORTFOLIO SERVICING, INC., RG NY MANAGEMENT COMPANY, LLC, LONDON PROPERTY MANAGEMENT CORP, SARAH K. HYMAN, ESQ., GROSS POLOWY, LLC, GERALDINE A. CHEVERKO, ESQ., ECKERT SEAMANS CHERIN & MELLOTT, LLC,

Defendants.

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Motion Date: 001: I 016120; 002: 10113/20; 003 & 004: 10/23/20

Adjourned Date: 11 /27/20 Motion Sequence: 001-MG; 002-MG;

003-MG; 004-MG

ROGER ROWE, Pro Se 20 Spruce Road, Amityville, NY 11 701

BONCHONSKY & ZAINO, LLP Attorneys for Defendant JPMorgan Chase Bank 226 Seventh Street, Suite 200 Garden City, New York 11530

NELSON LAW GROUP, PLLC Attorneys for Defendant RG NY Management Co. & London Property Management Corp. 761 Koehler A venue, Suite A Ronkonkoma, New York 11779

GROSS POLOWY, LLC Pro Se & Attorneys for Defendant Hyman 900 Merchants Concourse, Suite 201 Westbury, New York 11590

ECKERT SEAMANS CHERIN & MELLOTT, LLC Pro Se and Attorneys for Defendants US Bank National, Select Portfolio Servicing and Cheverko I 0 Bank Street, Suite 700 White Plains, New York l 0606

Upon the E-file document list numbered I through 103 on the application of defendant JP Morgan Chase Bank, N.A. for an order dismissing the complaint, with prejudice, pursuant to CPLR 3211 (a)( I), (5), and (7) , the application of defendants US Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-ACC 1, Asset Backed Pass-Through Certificate Series 2006-ACC l , and Select Portfolio Servicing, Inc., for an order dismissing the complaint, with prejudice, pursuant to CPLR 32 11 (a)( I), (5), and (7), the application of defendants Eckert Seamans Cherin & Mellott, LLC and Geraldine A. Cheverko, Esq., for an order dismissing the complaint, with prejudice, pursuant to CPLR 3211 (a)( I), (5), (7), and (8), and on the application of defendants Gross Polowy, LLC and Sarah K. Hyman, Esq ., for an order dismissing the complaint pursuant to CPLR 3211 (a)( I), (5), and (7); it is

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Rowe v U.S. Bank Natl. Assn. Index No. 610690/2020 Page 2

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ORDERED that the respective motions (sequences 001, 002, 003, and 004) are consolidated for purposes of a determination herein; and it is further

ORDERED that the motion by defendant JP Morgan Chase Bank, N .A. for an order dismissing the complaint, with prejudice, pursuant to CPLR 3211 (a)(l), (5), and (7), is granted for the reasons set forth herein; and it is further

ORDERED that the motion by defendants US Bank.National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-ACC I , Asset Backed Pass-Through Certificate Series 2006-ACC 1, and Select Portfolio Servicing, Inc., for an order dismissing the complaint, with prejudice, pursuant to CPLR 3211 (a) (1 ), (5), and (7), is granted for the reasons set forth herein; and it is further

ORDERED that the motion by defendants Eckert Seamans Cherin & Mellott, LLC and Geraldine A. Cheverko, Esq., for an order dismissing the complaint, with prejudice, pursuant to CPLR 3211 (a)(l ), (5), (7), and (8), is granted for the reasons set forth herein; and it is further

ORDERED that the motion by defendants Gross Polowy, LLC and Sarah K. Hyman, Esq., for an order dismissing the complaint, with prejudice, pursuant to CPLR 3211 (a)(l), (5), and (7), is granted for the reasons set forth herein.

Plaintiff Roger Rowe ("plaintiff' or "Rowe") commenced this action by the filing of a summons and complaint on August 13, 2020, seeking to set aside the foreclosure sale of the premises located at 2 Mortell Court, Copiague, New York (the "premises") pursuant to Article 15 of the Real Property Actions and Proceedings law ("RP APL"), which was sold pursuant to a judgment of foreclosure and sale entered on July 11, 2019, in an action under Index Number 611113/2016 ("the foreclosure action"). Plaintiff also seeks to void the note, mortgage, and assignment of mortgage (the "mortgage documents") at issue in the foreclosure action and requests an award of statutory and punitive damages. The complaint alleges claims against certain parties in the foreclosure action, including the defendants therein, the plaintiffs loan servicers, and the attorneys who represented the plaintiff in the foreclosure action. The complaint alleges causes of action sounding in breach of contract, breach of fiduciary duty, and conversion. In regard to these causes of action, the complaint alleges violations of the federal Truth in Lending Act (15 U.S.C. §§ 1601 , et seq.) (hereinafter "TILA") based upon an alleged alteration of the mortgage documents by the original lender and alleged liability of the assignee thereof pursuant to TILA (15U.S.C.§ 1641 [d][2][B]). The complaint further alleges violations of UCC § 3-415(5), regarding liability of an indorser to a negotiable instrument, UCC § 3-419, regarding instruments signed for accommodation, UCC § 3-404, regarding imposters and fictitious payees, UCC § 3-407, regarding forged signatures or alterations of instruments, and UCC § 9-203, regarding security interests. Plaintiff also asserts a claim under the federal Fair Debt Collection Practices Act (15 U.S.C. §§ 1692, el seq.) (hereinafter "FDCPA"). In sum and substance, the complaint alleges, inter alia, that certain mortgage documents were fraudulently or negligently altered when the note and mortgage were assigned by the original lender, by adding the name of the assignee thereto, without Rowe 's consent, and that the assignment of mortgage was otherwise improper.

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Defendant JP Morgan Chase Bank, N.A. ("Chase Bank")1 now moves for an order dismissing the complaint, with prejudice, pursuant to CPLR 3211 (a) (1 ), (5), and (7). In support of its motion, Chase Bank submits, inter alia, an attorney affirmation, plaintiffs complaint, the answer interposed by Rowe in the foreclosure action, the summary judgment order in the foreclosure action dated June 26, 2018, the order in the foreclosure action dated September 7, 2018, the unsigned order to show cause in the foreclosure action, the order in the foreclosure action dated July 5, 2019, the judgment of foreclosure and sale dated July 5, 2019, the report of sale dated December 4, 2019, and the notices of appeal in the foreclosure action. Plaintiff opposes the motion and submits a sworn affidavit and memorandum oflaw. Chase Bank replies.2

Defendants US Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-ACC 1, Asset Backed Pass-Through Certificate Series 2006-ACC 1 ("US Bank National")3

, and Select Portfolio Servicing, Inc. ("SPS")4

, also move for an order dismissing the complaint, with prejudice, pursuant to CPLR 3211 (a)(l ), (5), and (7). In support of their motion, US Bank National and SPS submit, inter alia, an attorney affirmation, the pleadings in the foreclosure action, the complaint in the within action, the orders issued in the foreclosure action, and a memorandum oflaw. Plaintiff opposes the motion and submits, inter alia, a sworn affidavit and memorandum of Jaw. US Bank National and SPS reply.

Defendants Eckert Seamans Cherin & Mellott, LLC ("ESCM") and Geraldine A. Cheverko, Esq., ("Cheverko")5 move for an order dismissing the complaint, with prejudice, pursuant to CPLR 321 l (a) ( ! ), (5), (7), and (8). In support thereof, ESCM and Cheverko submit, inter alia, an attorney affirmation, plaintiffs complaint, and the pleadings and orders in the foreclosure action. Plaintiff opposes the motion and submits a sworn affidavit and memorandum of law. ESCM & Cheverko reply.

Defendants Gross Polowy, LLC ("Gross Polowy") and Sarah K. Hyman, Esq. ("Hyman")6, move for

an order dismissing the complaint pursuant to CPLR 321 l(a) ( 1 ), (5), and (7), and submit in support thereof, inter alia, an attorney affirmation, the pleadings and orders issued in the foreclosure action, the unsigned order to show cause in the foreclosure action, correspondence, and the referee's report of foreclosure sale. Plaintiff opposes the motion and submits a sworn affidavit and memorandum of law. Gross Polowy and Hyman reply.

1Chase Bank was a mortgage loan servicer for US Bank ational Association.

2Plaintiff rejects as untimely the reply papers of defendants. It is well established that the ··supreme Court has the authority to regulate the motion practice before it, as well as the discretion to determine whether to accept late papers or even sur

reply papers" (U.S. Bank Tr. , N.A. v Rudick, 156 AD3d 841 , 842, 67 NYS3d 646 [2d Dept 2017]; CPLR 2214).

3Defendant US Bank National was the plaintiff in the foreclosure action.

4Defendant SPS was a mortgage loan servicer for US Bank National.

5ESCM was a law firm that represented US Bank ational during the foreclosure action and Cheverko was an attorney

employed by ESCM.

6Gross Polowy was the law firm that commenced the foreclosure action on behalf o f US Bank ational and

Hyman was an attorney employed by Gross Polowy.

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In support of their respective motions, defendants argue that plaintiff was required to bring an application pursuant to CPLR 5015 and CPLR 2221 in the foreclosure action in order to vacate the judgment of foreclosure and sale. Defendants assert that it is improper for plaintiff to commence a separate subsequent action pursuant to Article 15 of the RP APL by raising allegations that were or could have been raised in the foreclosure action. Further, defendants assert that plaintiffs claims are barred by the doctrines of res judicata and collateral estoppel, in that the judgment of foreclosure and sale finally determined the validity of the mortgage documents at issue in the foreclosure action, and cannot be collaterally challenged in this action. Moreover, defendants argue that the issues raised in the instant action, either directly or by implication, were decided in the foreclosure action against plaintiff, who contested such action by, inter alia, opposing the motion for summary judgment, moving to renew and reargue that motion, and by opposing the motion for a judgment of foreclosure and sale. Defendants further assert that plaintiffs causes of action sounding in breach of contract, breach of fiduciary duty, and conversion are insufficiently pied. There being no basis to set aside the mortgage documents or the judgment of foreclosure and sale, defendants contend plaintiff is not entitled to set aside the foreclosure sale pursuant to § 1503 of the RP APL. Moreover, Cheverko argues that thi s Court lacks personal jurisdiction over her, as she was not served and no affidavit of service indicating service of the summons and complaint upon her has been filed. In opposition, plaintiff argues, inter alia, that his claims raise new issues that did not exist at the time of the foreclosure action, and that he is not precluded from asserting them in a separate action.

In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Matneja v Zito, 163 AD3d 800, 801, 81NYS3d174 [2d Dept 2018]; see also Rosenblum v Island Custom Stairs, Inc. , 130 AD3d 803, 803, 14 NYS3d 82 [2d Dept 2015]; Country Pointe at Dix Hills Home Owners Assn., Inc. v Beechwood Organization, 80 AD3d 643, 649, 915 NYS2d 117 [2d Dept 2011], quotingSclmeider v Hand, 296 AD2d 454, 744 NYS2d 899 [2002]). The test of the sufficiency of a pleading is '"whether it gives sufficient notice of the transaction, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments'" (Hampshire Prop. v BTA Bldg. & Developing, Inc. , 122 AD3d 573, 573, 996 NYS2d 129 [2d Dept 2014], quoting Leon v Martinez, 84 NY2d 83, 88, 614 NYS2d 972 [1994] ; see also JPMorgan Cltase vJ.H. Electric o/N. Y., Inc., 69 AD3d 802, 803, 893 NYS2d 237 [2d Dept2010], quoting Moore vJoltnson , 147 AD2d 621 , 621 , 538 NYS2d 28 [1989]). Thus, the inquiry is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (Sokol v Leader, 74 AD3d 1180, 904 NYS2d 153 [2d Dept 201 O]). "Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sac/ts & Co. , 5 NY3d 11 , 19, 799 NYS2d 170 [2005]). However, "conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts" (Muka v Greene County, 101 AD2d 965, 965, 477 NYS2d 444 [4th Dept 1984]; see also DiMauro v Metropolitan Suburban Bus Autlt., 105 AD2d 236, 483 NYS2d 383 [2d Dept 1984]; Melito v Interboro Mut. Indem. Ins. Co., 73 AD2d 819, 423 NYS2d 742 [4th Dept 1979]; Greschler v Greschler, 71 AD2d 322, 422 NYS2d 718 [2d Dept 1979]). Thus, "factual allegations which are flatly contradicted by the record are not presumed to be true, and ' [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action. ,, (Deutsche Bank Natl. Trust Co. v Sinclair, 68 AD3d 914, 915, 891NYS2d445 [2d Dept 2009], quoting

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Peter F. Gaito Architecture, LLC v Simone Dev Corp., 46 AD3d 530, 530, 846 NYS2d 368 [2d Dept 2007]). "Dismissal of the complaint is warranted if they plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc. , 29 NY3d 137, 141-42, 53 NYS3d 598 [2017]).

On a motion to dismiss a complaint based on documentary evidence pursuant to CPLR 321 l(a)(l), such a motion will only be granted where the documentary evidence that forms the basis of the defense is such that it resolves all of the factual allegations as a matter of law, and conclusively disposes of the plaintiffs claims (see Turkat v Lalezarian Developers, Inc. , 52 AD3d 595, 596, 860 NYS2d 153 [2d Dept 2008]). The court may grant a motion to dismiss pursuant to CPLR 321 l(a)(l) "only where the documentary evidence utterly refutes plaintiffs allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N. Y. , 98 NY2d 314, 326 746 NYS2d 858 [2002]; Sobel v Ansanelli, 98 AD3d 1020, 951NYS2d533 [2d Dept 2012]; Harris v Barbera, 96 AD3d 904, 947 NYS2d 548 [2d Dept 2012]). In order to qualify as documentary evidence, the printed materials "must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86, 898 NYS2d 569 [2d Dept 201 O]). For example, judicial records, such as the orders and judgment issued in the foreclosure action, as well as mortgages, deeds, and contracts have been found to qualify as documentary evidence (see S & J Service Ctr., Inc. v Commerce Commercial Group, Inc., 178 AD3d 977, 112 NYS3d 584 [2d Dept 2019]). On the other hand, affidavits, deposition testimony, letters, and electronic mail are not considered documentary evidence under CPLR 3211 (a)( l) (see Gawrych v Astoria Federal Sav. & Loan, 148 AD3d 681 , 48 NYS3d 450 [2d Dept 2017]; Granada Condominium Ill Assn. v Palomino, 78 AD3d 996, 913 NYS2d 668 [2d Dept 201 OJ).

Pursuant to CPLR 3211 (a)(5), an action is subject to dismissal under the doctrines of collateral estoppel and res judicata. Collateral estoppel, or issue preclusion, precludes a party who had a full and fair opportunity to litigate, "from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Napoli v Breaking Media, Inc. , 187 AD3d 1026, 1027, 131 NYS3d 264 [2d Dept 2020]; see also Ryan v New York Telephone Co., 62 NY2d 494, 478 NYS2d 823 [1984]; Luscher vArrua, 21 AD3d 1005, 801NYS2d379 [2d Dept 2005]). "The party seeking the benefit of the doctrine of collateral estoppel bears the burden of establishing that the identical issue was necessarily decided in the prior action, and the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (Leung v Suffolk Plate Glass Co., Inc. , 78 AD3d 663, 663-664, 911 NYS2d 376 [2d Dept 2010]; see Oxford Health Plans (NY), Inc. v Biomed Pharm., Inc. , 181 AD3d 808, 122 NYS3d 4 7 [2d Dept 2020]).

"Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party" (Djoganopoulos v Polkes, 67 AD3d 726, 727, 889 NYS2d 213 [2d Dept 2009]; see also Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 , 485, 414 NYS2d 308 [1 979]). The doctrine of res judicata bars "not only every matter which was offered and received to sustain and defeat the claim or demand, but also any other admissible matter which might have been offered for that purpose" (Paramount Pictures Corp. vA/lianz Risk Transfer AG, 31 NY3d 64, 73, 73 NYS3d 472 [2018]).

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Moreover, it is well established that a judgment of foreclosure and sale entered against a defendant "is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action" (Eaddy v US Bank N.A. , 180 AD3d 756, 758, 119 NYS3d212 [2dDept2020]; ChapmanSteamerCollective,LLCvKeybankN.A., 163 AD3d 760, 81 NYS3d 501 [2d Dept 2018]; U.S. Bank N.A. v Castillo, 38 Misc3d 1228, 967 NYS2d 870 [Sup Ct, Suffolk County 2013]).

Here, a judgment of foreclosure and sale was entered on July 11 , 2019 in the foreclosure action. The judgment of foreclosure and sale, which qualifies as documentary evidence, was final as to all issues raised in the foreclosure action, including those with respect to the validity of the mortgage documents, the standing of US Bank National to commence the action, and its ability to enforce the mortgage documents in its possession. In the foreclosure action, Rowe filed an answer with affirmative defenses7 and opposed the applications of U.S. Bank National for summary judgment, the appointment of a referee, and a judgment of foreclosure and sale. After the issuance of an order dated June 26, 2018, granting summary judgment to US Bank National, plaintiff filed a motion to renew and reargue, which was denied by order dated September 10, 2018. Upon the entry of the judgment of foreclosure and sale on July 11, 2019, the subject property was sold on October 29, 2019, and on December 9, 2019, the court-appointed referee filed a report of sale. Plaintiff now seeks to collaterally attack the judgment of foreclosure and sale entered in the foreclosure action, which is impermissible for the reasons set forth herein (see Matter of Amona v County of Orange, 123 AD3d 1117, 1 NYS3d 166 [2d Dept 2014]; SSJ Dev. of Sheepshead Bay I, LLC v Amalgamated Bank, 128 AD3d 674, 10 NYS3d 105 [2d Dept 2015]; Indymac Bank, F.S.B. v Vincoli, 105 AD3d 704, 962 NYS2d 624 (2d Dept 2013]).

The causes of action sounding in breach of contract, breach of fiduciary duties, and conversion allege violations of the UCC and TILA. These claims relate to the same transactions involved in the foreclosure action and arise out of the mortgage documents at issue in the foreclosure action. Plaintiff appeared in and defended the foreclosure action at every stage of the litigation. Thus, plaintiffs claims herein, which were or could have been asserted in the foreclosure action, are dismissed as barred by the doctrine of res judicata (see Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 130 NYS3d 332 (2d Dept 2020]; Eaddy v US Bank N.A. , supra; Archibald v Wells Fargo Bank, N.A., 166 AD3d 573, 87 NYS3d 298 [2d Dept 2018] [post foreclosure action under Article 15 of the RP APL based upon claims under TILA barred by res judicata]; Chapman Steamer Collective, LLC v KeyBank N.A., 163 AD3d 760, 81 NYS3d 501 [2d Dept 2018]; Tromba v Eastern Fed. Sav Bank, FSB, 148 AD3d 753, 48 NY3d 501 [2d Dept 2017]; SSJ Dev. of Sheepshead Bay I, LLC v Amalgamated Bank, supra). Therefore, the first, second, and third causes of action are dismissed under the doctrine of res judicata. Moreover, defendants assert that all claims alleged under TILA are barred by the statute oflirnitations. Indeed, the claims under TILA are dismissed, as they were not brought within one year from the date of the occurrence of the alleged violation, that is, the date when Rowe executed the loan documents in 2006 (see 15 USC §1640[e] ; 12 CRF 226.2[a][13] ; Midouin v Downey Savings & Loan Assoc., F.A. , 834 F Supp 2d 95, 109 [ED NY 2011] ; Grimes v Fremont General Corp., 785 F Supp 2d 269, 288, n. 27 [SD NY 2011]).

7 On February 15, 2019, in the foreclosure action, plaintiff filed a document asserting counterclaims, which was rejected

by US Bank National on February 20, 2019.

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The fourth cause of ?Ction is against SPS only for violations of the FDCP A and alleges that SPC falsely represented itselfin the foreclosure action. This claim could have been raised in the foreclosure action and thus, the fourth cause of action is dismissed as barred by res judicata. Moreover, SPS asserts that this claim is time-barred, as it is subject to a one-year statute oflimitations. The complaint alleges that this claim arose in November of 2018. As such, this cause of action is dismissed as barred by the statute oflimitations, inasmuch as the complaint was filed more than one year from the accrual of the alleged FDCP A violation (see 15 USC § l 692k[ d]).

The fifth cause of action alleges that Hyman and Cheverko, who were attorneys representing the plaintiff in the foreclosure action, aided and abetted the alleged alteration of plaintiffs mortgage documents. This cause of action involves the mortgage documents at issue in the foreclosure action and should have been asserted in that action. Moreover, the Second Department has ruled that res judicata applies not only to the litigants but also the attorneys who represented them, insofar as the claims against the attorneys are predicated on their prosecution of the action (see Eaddy v US Bank N.A., 180 AD3d 756, 758, 1l9NYS3d 212 [2d Dept 2020]). Thus, the fifth cause of action is dismissed as barred by res judicata (Eaddy v US Bank N.A. , supra; Tracey v Deutsche Bank Natl. Trust Co. , 187 AD3d 815, 130 NYS3d 332 [2d Dept 2020]; SSJ Dev. of Sheepshead Bay I, LLC v Amalgamated Bank, supra; Chapman Steamer Collective, LLC v Key Bank N.A., supra). In any event, no affidavit of service upon Cheverko has been filed herein. The document referenced by plaintiff in opposition to Cheverko' s motion to dismiss for lack of service refers to SPS, not Cheverko. Thus, all claims against Cheverko are dismissed for lack of jurisdiction pursuant to CPLR 321 l(a)(8).

Notwithstanding that the causes of action sounding in breach of contract, breach of fiduciary duties, and conversion are barred by res judicata, they each fail to state a claim. The elements of a cause of action for breach of contract are: (1) the existence of a contract between plaintiff and defendant, (2) performance by the plaintiff, (3) defendant' s failure to perform, and (4) damages resulting from such failure to perform (see 143 Bergen St., LLCvRuderman, 144 AD3d 1002, 1003, 42 NYS3d 252 [2d Dept 2016]; JPMorgan Chase vJ.H. ElectricofN.Y., Inc., 69 AD3d 802, 803, 893 NYS2d 237 [2d Dept2010]; Furia v Furia, 116 AD2d 694, 498 NYS2d 12 [2d Dept 1986]). The complaint fails to allege the specific provision of the mortgage documents that allegedly were breached by defendants. Moreover, plaintiffs performance has not been alleged nor could it be, as it was determined in the foreclosure action that plaintiff defaulted under the terms of the note and mortgage. Thus, the first cause of action fails to state a claim.

The elements of a cause of action to recover damages for breach of fiduciary duty are: (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct (Varveris v Zacharakos, 110 AD3d 1059, 973 NYS2d 774 [2d Dept 2013]; Palmetto Partners, LP v AJW Qualified Partners, LLC, 83 AD3d 804, 921 NYS2d 260 [2d Dept 2011 ]). "A breach of fiduciary duty cause of action must be pleaded with the requisite particularity under CPLR 3016(b)" (Faith Assembly v Titledge of N. Y. Abstract, LLC, 106 AD3d 47, 61, 961 NYS2d 542 [2d Dept 2013], quoting Parekh v Cain, 96 AD3d 812, 816, 948 NYS2d 72 [2d Dept2012];Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 808, 921 NYS2d 260 [2d Dept 2011 ]). Here, the complaint fails to plead the existence and scope of a fiduciary relationship with particularity. The bare and conclusory allegations of negligence and failure to exercise ordinary care are insufficient to state a claim for breach of fiduciary duty. Thus, the second cause of action fails to state a claim.

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To state a claim for conversion, it must be alleged that "someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person 's right of possession" (Castellotti v Free, 138 AD3d 198, 210, 27 NYS3d 507 [1st Dept 2016], quoting Colavito v New York Organ Donor Network, Inc. , 8 NY3d 43, 49-50, 827 NYS2d 96 [2006]). There are no allegations in the complaint that plaintiff had a possessory right to any personal property or that the defendants took control of any such alleged personal property. Thus, the third cause of action fails to state a claim. Inasmuch as the complaint has not asserted any viable causes of action against any of the defendants, and no claims can be asserted against the attorneys for aiding and abetting, as the complaint has not alleged that the attorneys who represented the plaintiff in the foreclosure action substantially assisted in the alleged alteration of the mortgage documents, the fifth cause of action fails to state a claim (see Betz v Blatt, 160 AD3d 696, 74 NYS3d 75 [2d Dept 2018]).

The sixth cause of action of the complaint seeks to set aside the foreclosure sale pursuant to RP APL § 1503. This cause of action pertains to the assignment of mortgage at issue in the foreclosure action and the resulting judgment of foreclosure and sale issued therein. The assignment of mortgage, and all of the mortgage documents, were deemed to be valid and enforceable in the foreclosure action. Indeed, the mortgage documents were the basis for the judgment of foreclosure and sale. The judgment of foreclosure and sale issued in the foreclosure action is final as to all issues concerning the mortgage documents at issue therein and concluded all of the within claims asserted by plaintiff, which were or might have been litigated in the foreclosure action (see Eaddy v US Bank N.A. , 180 AD3d 756, 758, 119 NYS3d 212 [2d Dept 2020]; Chapman Steamer Collective, LLC v KeyBank N.A. , 163 AD3d 760, 81 NYS3d 501 [2d Dept 2018]; Indymac Bank, F.S.B. v Vincoli, 105 AD3d 704, 962 NYS2d 624 [2d Dept 2013]). As such, all claims regarding the mortgage documents were or could have been raised in the foreclosure action. Thus, the sixth cause of action is dismissed as barred under the doctrine of res judicata. Further, as there are no claims which have been asserted against any defendant herein which would entitle plaintiff to void the mortgage documents or set aside the judgment of foreclosure and sale, the complaint does not state a claim for relief pursuant to RP APL § 1503. Plaintiffs recourse is to seek relief in the foreclosure action pursuant to CPLR 5015 and 2221 and not impermissibly collaterally attack the judgment of foreclosure and sale in this action. The Court has considered the remaining arguments of plaintiff and finds that they lack merit.

Accordingly, defendants' motions are granted.

Dated: May 4, 2021

X FINAL DISPOSITION N -FINAL DISPOSITION

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