Deutsche Bank Natl. Trust Co. v Garvin
Annotate this CaseDecided on October 26, 2010
Supreme Court, Queens County
Deutsche Bank National Trust Company as Trustee for the MLMI Trust Series 2005-NCI, Plaintiff,
against
Muriel E. Garvin; et al., Defendants.
17582/09
For the plaintiff:
Rosicki, Rosicki & Associates, P.C., by Andrew Morganstern, Esq., 51 East Bethpage Road, Plainview, NY 11803
For the defendant:
Joan Beranbaum, Esq., by Salli J. Barash, Esq.., of Counsel, 125 Barclay St., NY, NY 10007-2179
Charles J. Markey, J.
Plaintiff moves to strike the answer of the defendant Muriel E. Garvin; for summary judgment; to amend the caption substituting Neal Garvin s/h/a John Doe No.1 for "John Does" and "Jane Does;" and for leave to appoint a referee to compute the sums due and owing plaintiff; and to reform the subject mortgage to correct the legal description of the subject property.
Plaintiff commenced this action by filing a copy of the summons and complaint on July 1, 2009. Plaintiff seeks to foreclose on a mortgage on the subject real property known as 111-24 140th Street, Jamaica, New York 11435, to secure repayment of a note, evidencing a loan in the original principal amount of $181,260.00, plus interest, extended to Muriel E. Garvin, as the record owner of the premises, by New Century Mortgage Corporation. Plaintiff alleges that it is the holder of the mortgage and underlying obligation pursuant to an assignment and that the defendant Muriel E. Garvin defaulted under the terms of the mortgage and note by failing to make the monthly installment payment due on October 1, 2008, and as a consequence, it elected to accelerate the entire mortgage debt.
All the defendants were duly served with copies of summons and complaint. All [*2]defendants defaulted in answering the complaint or otherwise appearing in the action except the defendant Muriel E. Garvin. The defendant Muriel E. Garvin served an answer denying some allegations in the complaint and admitting others, and asserting various affirmative defenses.
That branch of the motion by plaintiff for leave to amend the caption as proposed, is granted. The branch of the motion by plaintiff to correct the legal description of the property is granted.
On a motion for summary judgment in a foreclosure action, a plaintiff must make a prima facie showing by producing the mortgage, the unpaid note, bond, or obligation, the evidence of default, and the assignment of the mortgage documents to it (see, EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2nd Dept. 2002]; IMC Mtge. Co. v Griggs, 289 AD2d 294 [2nd Dept. 2001]; Paterson v Rodney, 285 AD2d 453 [2nd Dept. 2001]; see also, Bercy Investors, Inc. v Sun, 239 AD2d 161 [1st Dept. 1997]).
In support of the motion for summary judgment against defendant Muriel E. Garvin, the plaintiff offers a copy of the pleadings, affidavits of service, a copy of the subject mortgage, underlying note and assignment, and an affidavit of Tamara Foye, the Vice President, the attorney in fact for the plaintiff, indicating, among other things, that defendant Muriel E. Garvin is in default in payment of the monthly mortgage installment due under the mortgage.
The submissions establish plaintiff's prima facie entitlement to summary judgment as against defendant Muriel E. Garvin (see, EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370, supra ; IMC Mtge. Co. v Griggs, 289 AD2d 294, supra ; Paterson v Rodney, 285 AD2d 453, supra ; see also, Bercy Investors, Inc. v Sun, 239 AD2d 161, supra ). The burden shifts to defendant Muriel E. Garvin to raise a triable issue of fact regarding her defenses (see, Barcov Holding Corp. v Bexin Realty Corp., 16 AD3d 282 [1st Dept. 2005]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370, supra ; First Nationwide Bank, FSB v Goodman, 272 AD2d 433 [2nd Dept. 2000]).
The defendant's first affirmative defense is lack of personal jurisdiction on the grounds that due diligent attempts were not made to serve her personally before serving a person of suitable age and discretion. This defense has been waived as the defendant did not bring a motion to dismiss on this basis within 60 days of serving the answer (CPLR 3211(e); Dimond v Verdon, 5 AD3d 718 [2nd Dept. 2004]). In any event, no such due diligent attempt is required and the defendant was properly served under CPLR 308(2).
The defendant's second affirmative defense is that the plaintiff does not have standing. The plaintiff has refuted this defense by submitting assignments. Inasmuch as the assignment to the plaintiff was executed prior to the filing of the summons and complaint, the plaintiff had standing to bring this action.
The defendant's third affirmative defense is that the defendant did not receive the 90-day notice required by RPAPL section 1304. The plaintiff has submitted evidence that this letter was mailed to the defendant.
The defendant's fourth affirmative defense is that there was a violation of General Business Law section 349. The defendant failed to allege any conduct attributable to the [*3]plaintiff which had a potential impact on consumers at large (see, Lakehill Assoc., Inc. v 6077 Jericho Turnpike Realty Corp., 18 AD3d 506 [2nd Dept. 2005]).
In opposition, the defendant argues that the summary judgment should be denied because the loan is a high cost loan home loan and had excessive fees. The defendant argues that the loan should be considered a high cost loan based on the interest rate. The interest rate was adjustable rate starting at 7.9% and the maximum interest rate on the loan is 14.9%. A high cost loan is defined as a loan with an interest rate 8 points over the yield on treasury securities (Banking Law § 6-1). The defendant argues that, if the interest rate increased to the maximum rate of 14.9%, the rate would be more than 8 points over the interest rates for treasury securities for the fifteenth of the month preceding the closing, which was 5.28%. However, the defendant's interest rate under the terms of the rider will be set with the treasury yield and will only rise to a higher level if the treasury yield rate rises as well. The interest rate is, therefore, below the applicable threshold and the loan cannot be considered high cost based on the interest rate (Banking Law § 6-1).
This loan also cannot be considered a high cost loan based on the amount of fees and points charged. The defendant admitted in her affidavit that the settlement charges did not exceed the five percent threshold. Therefore, since this is not a high cost loan, the prohibitions of Banking Law section 6-1(2)(m) do not apply (see, Emigrant Mortg. Co. v Fitzpatrick, ____Misc 3d _____, 906 NYS2d 874 [Sup Ct Suffolk County 2010]; Wells Fargo Bank, Natl. Ass'n v. Rolon, 2009 WL 2022875, 2009 NY Slip Op. 51477 [U] [Sup Ct Queens County 2009]).
The defendant's argument that summary judgment should be denied because she was misled to sign the loan documentation because it misstates her income is without merit. A defendant cannot claim to have been misled by an inaccurate statement of income in a loan application as the defendant is aware of his or her own income (see, Deutsche Bank Nat. Trust Co. v Sinclair, 68 AD3d 914 [2nd Dept. 2009]; accord, Morales v AMS Mortg. Servs., 69 AD3d 691 [2nd Dept. 1010] [reversing lower court, Appellate Division ruled that mortgagee was not liable for fraud]).
Plaintiff, therefore, is entitled to summary judgment in its favor against defendant Muriel E. Garvin (see, NYCTL 1998-2 Trustee, v 2388 Nostrand Corp., 69 AD3d 594 [2nd Dept. 2010]; Wells Fargo Bank Minnesota Nat. Ass'n v Perez, 41 AD3d 590 [2nd Dept. 2007], lv. to appeal dismissed, 10 NY3d 791 [2008]; Fed. Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [1997]; DiNardo v Patcam Serv. Station, 228 AD2d 543 [1996]). Those branches of the motion by plaintiff for summary judgment in its favor against defendant Muriel E. Garvin and to strike the answer of the defendant Muriel E. Garvin are granted.
That branch of the motion by plaintiff for leave to appoint a referee is granted.
The proposed order attached to the papers is being forwarded to the Motion Support Clerk's office in Jamaica for its review. [*4]
_________________________________
Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York
October 26, 2010
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