Citimortgage, Inc. v LePore

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Citimortgage, Inc. v LePore 2012 NY Slip Op 32290(U) July 13, 2012 Supreme Court, Suffolk County Docket Number: 10538-10 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] MEMORANDUM DECISION & ORDER INDEX No. 10538-10 SUPREME COURT - STATE OF NEW YORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DAlE 7/6112 ADJ. DATE Mot. Scq. # 001 - Mot D Mot. Seq. # 002 - XMD eDlsP: NO _ ---------------------------------------------------------------X CITIMORTGAGE, INC., Plaintiff, DAVIDSON FiNK LLP Attys. For Plaintiff 28 East Main St. Rochester, NY 14614 -againstPETER J. LEPORE, JENNIFER R. LEPORE, ET ALS, RANK J. ROMANO, ESQ. Attys. For Defs. Lepore 51 East Main St. Smithtown, NY 1787 Defendants. ---------------------------------------------------------------)( Upon the following papers numbered I to _, _,_ read on this motion by plainlifffor accelerated judgments <Ind to appoint a referee and cross motion by defendants Lepore to dismiss ; Notice of Motion/Order to Show Cau~e and supporting papers -l..:L; Notice of Cross Motion and supporting papers 5-7 ; Answering Affidavits and supporting papers 8-9 , Replying Affidavits and suppOlting papers 10-11 ; Other ; (tlnd i'lMer"nil illg eotlll$cl il' .~uppOI1 !llld opposed h"l the lIlNiol!, it is ORDERED that those portions of this motion (#001) by the plaintiilfor accelerated judgments against the defendants and the appointment of a referee to compute is considered under CPLR 3212, 3215 and RPAPL 132] and is granted only with respect to the plaintiffs First cause of action; and it is further ORDERED that the second cause or action set forth in the plaintiff 's complaint, wherein it demands a judgment extinguishing certain prior mortgages and/or liens and/or declaring them to be subordinate to the mortgage that is the subject orthis action is considered under CPLR 3215 and RPAPL § 1501 and is dismissed; and it is further [* 2] Citimortgage, Inc. v Lepore et al Index No. J 0538- J 0 Page 2 ORDERED that those portions of this motion wherein the plaintiJT seeks an order dropping as party defendants lhe unknown defendants listed in the caplion is granted while lhe plaintiffs request for an order substituting the plaintifr s assignee is denied without prejudice; and it is further ORDERED that the cross motion (#002) by the ddcndants, Peter Lepore and Jennifer Lepore, for an order dismissing the complaint or staying all proceedings pending a settlement conference is considered under CPLR 3211(a)(3) and 3408 and is denied. In this mortgage foreclosure action, the plaintiff seeks foreclosure of a mortgage on certain real property situated in Suffolk County. The plaintilT also demands in a separate Second cause of action, that certain prior mortgages and/or liens asserted against the subject premises be extinguished and!ordeclared subordinate and inferior to the mortgage lien of the plaintiff. By the instant motion, the plaintiff moves for summary judgment on its claims for foreclosure against the answering defendants and the appointment of a referee to compute amounts due under the tenns of the subject note and mortgage pursuant to RPAPL 1321. The plaintiff also seeks an order dropping as party defendants, the unknown defendants listed in the caption and an order substituting the post-action commencement assignee of the note and mortgage in the place and stead of the named plaintiff. The motion is granted only to the cxtent that accelerated judgments are awarded to the plaintiff on its First cause of action sounding in foreclosure and salc pursuant to CPLR 3212, 3215 and RPAPL 1321 and on its demands for an ordcr dropping the unknown defendants as party defendants to this action. The moving papers established the plaintiffs entitlement to slilllmary judgment on its complaint to the extent it asserts claims against the answering defendants, Peter J. Lepore and Jennifer R. Lepore, as they included copies of the mortgage, the unpaid note and due evidence of a delimIt under the terms thereof(see CPLR 3212; RPAPL § 1321, HSBC Balik vSllwarfz, 88 AD3d 961,931 NYS2d 528 [2d Dept 2011]; Countrywide Home Loans v Delphonse, 64 AD3d 624, 883 NYS2d 135[2d Dept 2009]; J.P. Morgan Chase Bal1/\ IIAgnello, 62 AD3d 662. 878 NYS2d 397 [2d Dept20091; Wells Fargo Ba"k Minnesota v Perez, 41 AD3d 590, 837 NYS2d 877l2d Dept 2007]; Household Fin. Realty Corp. of New fork v Winn. 19 AD3d 545. 796 NYS2d 533 [2d Dept 2005]; Oewell Fed. Bank FSB)I Miller. 18 AD3d 527, 794 NYS2d 650 [2d Dept 20051). It wa.";thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of facl rebutting the platntitr's prima facie showing or in support of one or more oCthe alTinnative defenses asserted in their answer (see Grogg Assocs. v SOllth Rd. Assocs., 74 AD3d 1021 907 NYS2d 22/.2d Oept 2010]; Washington Milt. Balik v O'Connor, 63 AD3d 832. 880 NYS2d 696 [2d Dept 2009]; J.P. Morgan Chaw Bank, NA v Agnello, 62 AD3d 662, 878 NYS2d 39712d Dept 20091; Wells Fargo Bank Minnesota Natl. Assn. v Perez, 41 AD3d 590. 837 NYS2d 877l2d Dept 20071). The Lcpores' opposition to the plaintiffs motion is set forth in an affirmation of counsel thm is attached to the cross moving papers orthe Lepores. Although the ans\o er oCthe Lepore defendants . ¢.. contains cleven (II) affirmative defenses, the only defenscs raised in the opposing/cross moving papers of the Lcpores is an alleged insufficiency 111 the proof adduced by the plaintiJT in support of its motion and a purported lack of standing on the pali of the plaintifr [* 3] Citimortgage. Inc. v Lepore et al Index NO.1 0538-1 0 Page 3 Rejected as unmeritorious are the Lepores' challenges to the sufficiency of the proof upon which the plaintiff relies to support its motion for summary judgment. Contrary to the contentions of defendants' counsel, an affidavit made by the plaintiff is not required to support this motion, since the plaintitT is not seeking a deFault judgment against the Lepore defendants, but instead, is moving for summary judgment (see CPLR 3212 [b]; cj; 32151.1']; eutsche Bank NtUl. Trust Co. v Barnett, 88 D !\D3d 636, 931 NYS2d 630 [2d Dept 2011]), The affidavit of the agent of the loan servicer and the other documentary submissions including the statutorily mandated notices regarding the defendants' default in payment under the terms of their $432,000.00 mortgage loan are legally sufficient and comport with the requirements ofCrf.R 3212 (see LaSalle Bank, NA v Pace, 31 Misc3d 627, 919 NYS2d 794 ISup. Ct.. Suffolk County, 2011]). Also unavailing are the Lepore defendants' claims that the plaintiff's lack of standing warrants a denial of its motion for summary judgment and the granting of the Lepores' cross motion for dismissal pursuant to CPLR 3211 (a)(3). A plaintiff has standing where it is either the actual holder, by way of ownership, indorsement and/or delivery of the note and mortgage, or the assignee of such note and mortgage, by way of delivery or written assignment, at the lime the action is commenced (see US Bank Natl. ASSII. v Callge, _ AD3d _' 2012 WL 2122540 [2d Oept 2012]; Delltsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636, supra; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 838 NYSS2d 622 [2d Dept 2007]) or the servicer of such holder or assignee (see RYAPL 1302[1][al; CPLR 3408[e]; see also CWCapital Asset Mgt., LLCv Clwmey-FPG 114 4JS1 Street, LLC, 84 AD3d 506,923 NYS2d 453 [1st Dept 2011]; Fairbank. ¢ ¢Capital Corp. v Nagel, 289 AD2d 99, 735 NYS2d 13 [1st Oept 200 1]). Here, the record reveals that the original note bears an indorsement on the face thereof in favor orthe plaintiff Such indorsement is sufficient evidence of an effective transfer of the note to the plaintiff, which in turn, effected a concomitant transfer of the mortgage, all of which vests in the plaintiff the requisite holder status that is sufficient for standing purposes (see Mortgage Elec. Registration ,s)s., Inc. I' Coakley. 41 AD3d 674, supra). Contr31Y to the contentions of del'cndants' counseL an assignment in favor of the plaintin~ is not necessary to establish the standing of the plaintifr. The defendants' claims oran entitlement to a conference ofthc type contemplated bycruz 3408 are unavailing. The record reveals that a conference of the type mandated by CPLR 3408 was previously scheduled and held on May 11,2011 in the specialized mortgage foreclosure part of this court, at which. the defendants did not appear. and that no further conferences are required by Rule 3408 or any others. Nor arc the defendants entitled to ajudicially mandat'ed loan modification (see Jp Morgan Chm;e Balik, Natl. AsslI. v lIardo. _ Misc3d __ ' 940 NYS2d 829 lSup. Ct. Suffolk County, 2012]). The remallling contentions orthe defendants asserted in opposition to the plaintiffs motion and in support of the answering defendants' cross motion for dismissal are equally unavailing (see Carver Fed. Sav. Balik v Redeemed Christiall Church of God, Illtem. Chapel, HHll Parish, Long Islalld, New York, II/C .. 35 Misc.3d 1228[1\], 20] 2 WL 18773] 6 [Sup. Ct. Suffolk County, 20 12J; LaSalle BOIlk, NA v Pace, 31 Misc3d 627, supra). [* 4] Citimortgage, r nc. v Lepore et al Index No. 10538-10 Page 4 Under these circumstances, the defendants' cross motion (#002) for dismissal of the plaintiff's complaint IS denied while those portions of the plaintiff's motion (#001) for summary judgment and dismissal of the affirmative defenses set forth in the answer of the Lepore defendants is granted only as to the First Cause of action set forth in the complaint. The moving papers established defaults in answering on the part of all other defendants joined as parties to the plaintitrs First cause of action for a judgment offoreclosure and sale. The plaintiff is thus entitled to the issuance of an order of reference by virtue of the award of accelerated judgments against all answering and non-answering dclendants joined herein as necessary parties to the plaintiff's first cause of action for a judgment offoreclosure and sale (see RPAPL § ]321; Bank of East Asia, Ltd. v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]; Vermont Fed. Bank v Chase, 226 AD2d 1034,641 NYS2d 440 [3d Dept 1996]; Perla v Real Prop. Holdings, LLC, 23 Misc3d 697, 874 NYS2d 873 [Sup Ct. Kings County 2009]). However, the moving papers failed to address, let alone establish, the plaintiffs possession oj' cognizable claims for relief pursuant to RPAPL Article ~ 150 I declaring the J11validity and extinguishment ofthe liens and interests of the defendants listed in the plaintiffs Second cause of action (see CPLR 3215[f]; RPAPL §§ 1515; 1519). Nor is it apparent that the plaintiffacqUlredjurisdiction over all persons whose interests might be affected by the granting of such relief (see RPAPL § 1511). The court thus finds that the plainti 1'1' not entitled to an order fixing the defaults of the def-cndants set is forth in the plaintiffs Second cause of action, as it failed to assert facts which constitute cognizable claims for the declaratory reliefdemanded against the defendants targeted in the plaintiff s Second cause of action (see CPLR 3215[fJ; Resnick v Lebovitz,28 AD3d 53, supra). In addition, the court finds that the plaintiff abandoned its Second cause of action for dedaratOlY relief by its interposition of this motion. It is axiomatic that the appointment of a referee to compute pursuant to RPAPL § 1321 is not appropriate unless all pleaded claims of the parties have been adjudicated by the court and the only issues left for determination are those concerning the long account (see Vermont Fed. Bank v Chase, 226 AD2d ] 034, supra), which are limited in mortgage foreclosure actions to amounts due the plaintiff by reason of the obligor's default under the terms of the note, mortgage and/or guaranty sued upon and the other matters specified in RPAPL § 1321 (see New York State J,.,ftge. oan Enforcement ami Admin. Corp. v New Colony Camp HOllS., Inc., un AD2d 955. L 590 NYS2d 635 l4th Dept 1992J) Consequently, in a mortgage foreclosure, a plaintiff is only entitled to an order appointing a rcJcree to compute amounts due under the subject note and mOligage it has been awarded Judgment after malar pursuant to CPLR 3212 and/or 3215 against a.1I defendants joined to the action (see RPAPL § 132]; Bank of East Asia, Ltd. v Smith, 201 AD2d 522, supra; Vermont fed. Bank v Chase, 226 AD2d 1034, supra; Perla v Real Prop. Holdings, LLC, 23 Misc3d 697, supra: HSBC Mtge. ,Serv., fne. v Alphonso, 16 Misc3dlA], 2007 \VL 2429711 [Kings County' Sup C1. 2007]) By moving for the appointment of a referee without establishing its entitlement 10 Judgment on its claims for declaratory relief. the plaintiff effectively abandoned those claims. Accordingly, the Second cause of action set forth in the pla1l1tiff's complaint is disl11lSsed. [* 5] Citimortgage, Inc. v Lepore et aJ Index No. 10538-10 Page 5 The plaintiff's demands lor an order dropping a<; any dctcndants the unknown defendants listed p in the caption is granted. All future proceedings shall be captioned accordingly. The court, however, denies the plaintiffs application for an order substituting US Bank National Association as Trustee of Castle Peak 20 I0-1 Loan Trust in the place and stead of the current plaintilf, Citimortgage, Inc. ·rhat a plaintitf may continue to prosecute an action notwithstanding an assignment of its interest in the subject matter is clear since the provisions ofCPLR 1018 which govern substitution upon transfer of interests are permissive not mandatory (see GRP Loall, LLC v Taylor, 95 AD3d 1172,945 NYS2d 336 [2d Dep12012]; Wells Fargo Bank,N.A. v Wine, 90 AD3d 1216,935 NYS2d 664 [3d Dept 2011]; CitiMortgage, Illc. v Rosenthal, 88 AD3d 759, 931 N.Y.S.2d 638 [2 Dept 2011]; Tarr v Delseller, 70 AD3d 774, 895 NYS2d 168 [2d Dept 2010]; BnYlVise Holding, LLC v Harris, 31 AD3d 681, 821 NYS2d 213 [2d Dept 2006]). It is equally clear that a substitution of plaintiffs may not be accomplished by a mere caption amendment since a non-party may not be substituted nor otherwise made a partyplaintiff to a pending action without its consent, and declared willingness to take up the prosecution of the claims of its predecessor-in-interest and its submission to the jurisdiction of the court. This rule is mandated by the provisions of CPLR 1001(a) which provide, among other things, that an unwilling plaintiff shall be joined as a defendant to the action. Moreover, the moving papers do not clearly establish an effective transfer, by assigrunent or otherwise, of the note and mortgage to the Trustee of Castle Peak or its holder status under the delivery or indorsement methods (c;f,see GRP Loan, LLC v Taylor, 95 AD3d 1172. supra). The court thus denies the plaintiffs request for the substitution of its purported assignee pursuant to CPLR 1018. Such denial is, however, without prejudice to a new application for the same relief upon proper papers. The Order appointing simultaneously herewith. DATED: _7In/ b, referee to compute, as modified by the court, has been signed T-lfiLAN, .l.S.c.

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