GMAC Bank v Carroll
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GMAC Bank v Carroll 2012 NY Slip Op 32294(U) August 21, 2012 Supreme Court, Suffolk County Docket Number: 20806-10 Judge: Emily Pines 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] SHORT fORM ORDER INDEX NO,: 20806-10 SUPREME COURT - STATE OF NEW YORK IAS PART 23 - SUFFOLK COUNTY -" PRESENT: -, Hon. EMILY PINES Justice of the Supreme Court Motion Date: 01-10-12 Submit Date: 5-31-2012 Mot. Seq. # 001 MG Mot. Seq. # 002 MD x GMAC BANK. Plaintiff, BRYAN CAVE LLP Attorneys for Plaintiff 1290 Avenue of Americas New York, N. Y. 10104 -againstFRANK CARROLL, and "JOHN DOE #1" through "JOHN DOE #10", the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon tbe Mortgage premises described in the Complaint, LAW OFFICES OF NEIL H. GREENBERG & ASSOCIATES, P.c. Attorneys for Defendant Frank Carroll 900 Merchants Concourse, Suite 314 Westbury, N. Y. 11590 Defendants, x Upon the following papers numbered I to 24 read on this motion for summar\! judgement and related relief; Notice or'Motion/ Order 10 Show Cause and supporting papers ( memorandum of law ) 1- 17 ; Notice of Cross Motion and supporting papers 18-20 , Answering! Replying Affidavits and supporting papers (memorandum of law 21-25 ; Other _0_; (tllld Il:flel hell:l ilih eOtll'3e1in .\t1ppOI1 and 0ppo$cd tn llie motioll) it is, ORDERED that this motion (001) by the plaintiff for an order and/or judgment; (I) pursuant to CPLR 3025 (b) granting Plaintiff leave to amend the reply to counterclaims to assert a statute of limitations defense in response to Borrower's federal statutory counterclaim and affirmative defense under the Truth in Lending Act; (2) pursuant to CPLR 3212, granting summary judgment in favor of Plaintiff and against the defendant Frank Carroll ("Borrower"), on the grounds that there are no triable issues of fact in this proceeding, that the Borrower's affirmative defenses and counterclaims asserted in his Answer lack merit and fail to state valid [* 2] GMAC Bank v Carroll Index No. 10-20806 Page No.2 defenses to foreclosure, Rcferec's Report. Plaintiff is entitled to all of the rclief requested in its complaint. judgment of foreclosure each ofthc Borrowcr's anirmative defenses and that accordingly. upon the presentation and sale as a mater of law: (3) dismissing and lour counterclaims and coming in of the including five as each is without merit: (4) pursuant to RPAPL 1321 (I) referring this action to some suitable person as a referee ( the "Refcree ") (i) to ascertain and compute the amount due Plaintiff for principal and interest under the loan set forth in the complaint and lor any other amounts due and owing Plainliffor the original mortgagee under the terms ofthc Mortgage. (ii) to examine and report whether the mortgaged in 8 single parceL (iii) to direcl that upon submission usual judgment of foreclosure oCthe Referee's and sale, and (iv) amending premises should be sold Report, Plaintiff have the the caption of lhis proceeding by directing that the names of the "John Doe" defendants be deleted from the caption, is granted: and it is further ORDERED that the unopposed defense of statute oflimitations amended reply by plaintiff setting forth an affirmative to the defendants federal statutory counterclaim and an affinnativc defense under the Truth in Lending Act shall be deemed served upon the defendant upon service of a copy of this Order with Notice of entry; and it is further ORDERED that the cross-motion (002) by the defendant for an Ordcr pursuant to CPLR 32 I I(a)(3) dismissing the plaintiffs complaint in its entirety on the ground that pia inti ff lacked standing to commence this action and lacks standing to maintain this action is denied; and it is further ORDERED that this action bc referred to Keith O'Halloran, Esq. (Fid. Id. # 415965), 32 Mill Rd., Westhampton !leach, N.Y. I 1978, (63 I) 998-3601, as Rererce to compute the amount due Plaintiff as sought in Plaintitrs Complaint herein, including without limitation any and all sums for principal, interest, water and sewer rents, taxes, insurance premiums, and for any other charges and liens upon the subject premises, liens arising by virtue of any payment pursuantlO including, without limitation. or advance made by Plaintiff or thc original mortgagee the terms nrthe subject mortgage or pursuant to the order of any Court, \vith interest on said sums from the dates orthe respective payments and advances thereof of reasonable any such charges or attorneys' of the indebtedness Ices and expenses incuITcd by PlaintilTin connection due upon the subject mortgage and the foreclosure and a sum in respect with the collection of said mortgage; and to examine and report whether the mortgaged premises should be sold in a single parcel; and that the [* 3] GMAC Hank v Carroll Index No. 10-20806 Page NO.3 said Referee make his or her report to the ORDERED filing orthe that pursuant COlin with all convenient speed; and it is further to CPLR 8003(a) and in the discretion Referee's report. the Referee shall be paid a fee 01'$250.00 of the Court, upon the for the computation stage; and it is further ORDERED that by accepting this appointment, the ReJCrcc certifies that the Referee is in compliance with 22 NYCRR from Appointment'") and Part 36. including but not limited to § 36.2(c) ("'Disqualifications and § 36.2(d) ("Limitations on appoinlIl1cnts based upon compensation"); it is further ORDERED that the branch of tile Plaintiffs motion to amend the caption is granted and the "John Doc" defendants arc hereby deleted from the caption which shall henceforth read as follows: SUPREME COUNTY COURT OF THE STATE OF NEW YORK OF SUFFOLK -----------------------------------------------------------------~x GMAC Bank, Index No.: 20806/1 0 PlaintiJT, -against- FRANK CARROLL. Defendant. ------------------------------------------------------------------x and it is further; ORDERED that the Plaintiff shall submit with the Proposed Judgment, the required [* 4] GMi\C Bank v Carroll lndcx No. 10-20806 Page No.4 affidavit of non-military status orthe DefendaIH pursuant to 50 U.S.c. 521 ct scq.; and it is further ORDERED that plaintirfshall serve a copy of this order with Notice of Entry within sixty (60) days or the date this Order is signed upon counsel lor the defendant pursuant to CPLR 2103(b)( I). (2) or (3) and thereafter lite tl1<: nidavit of service with the Clerk of the Court. a The present action involves the foreclosure on a mortgage alleging that the derendant Frank Carroll defaulted in repaying a note and mortgage which was secured by real property located at 1 Hillcrest Road, a/kJa 210 River Road, Nissequogue, Ne\v York 11780. Issue was joined on or about July 31, 2010, by the service of Carroll's answer with five affirmative defenses and four counterclaims. In response to the counterclaims, plaintiff, as a defendant on the counterclaims served a reply on or about August 20, 2010, thus joining issue. The Court will first address that part or the plaintiffs motion whieh seeks to amend its reply to defendant's counterclaims to assert a statute of limitations defense to the defendant's federal statutory counterclaim and an aftinllative defense under the Truth in Lending Act. Leave to amend a pleading is within the Court's discretion. The Court finds that the defendant has not been prejudiced. The motion was served upon the defendant's counsel on December 22,2011, and defendant subsequently submitted a cross-motion 'which only addressed plaintiff's standing to bring the action and did not address plaintiff's request to amend its reply to the defendant's counterclaims. Thus. that part of plain tiff's motion is unopposed and is granted on default. Lack of opposition is tantamount to consent (see /lermitage Ins. Co. v Trance Nite Club, Inc., 40 i\D3d 1032 r2d Dcp! 2007]; CPLR 3215; Zillo" ./aob Taxi, lI1C.,20 i\D3d 52 J l2d Dcp! 20051; Woodson v Mendon Leasing Corp., 100 NY2d 62 [20031; Neuman v Zurich N. Am., 36 AD3d 60 I [2d Dcp! 2007]). Plaintiffalso moves lor summary judgment and made a prima facie showing of entitlement to judgment as a matter of law by the submission ofthe affidavits of Michael Labrum, an AVP 01" plaintift~s servicer, Brandie Parry, also an of!icer of plaintiffs servicer, along with copies of the pleadings and relevant mortgage documents. including the note and mortgage signed by defendant, and documentary evidence of defendant's default since .July I, 2009, and that the default to date has not been cured (see Valley Natl. Bank l' Delltsch, 88 ;\D3d 691 [2d Dept 2011J; Wells Fllr/:o Bank" Kllrlll, 71 i\D3d 1006 [2d Dcpt 2010]; Wasil. Mill Blink F.A. " 0' [* 5] GMAC Bank v Carroll Index No.1 (J-2080G Page No.5 COllller, 63 AD3d 832 [2d Dept 2009]; Bercy IlIvs. v SUII, 239 AD2d 161 [1" Dcpt 1997]: Balik 0/ Lel/IIli Trust Co. o/New York v Lightning Park,/nc, 215 i\D2d 246 [1 Sl Dcpt 1995]; Village Bank v Wild O"ks Holding, Inc., 196 AD2d 812 [2d Dept 1993]; Dart Assoc. v Rosa Meat Mkt., 39 AD2d 564 12d Dcpt 1972): Gould v McBride, 36 AD2d 706 [ 1" Dept 1971]; afTd 29 NY2d 708 [19711). and other documentary proof that it is a current holder in due course of a valid note and mortgage executed by defendant (see Zuckerman v City a/New York, 49 NY2d 557 [1980]). PlaimitThas established and defendant does not deny the existence ofa valid note and mortgage. Plaintiff also alleges a past due, unpaid mortgage balance, which defendant has not contested. as well as the acceleration/default notice (see Fed. Home Loan Mtge Corp. v Karastatlzis, 237 AD2d 558 [2d Dept 19971; First Trust Natl. Ass'll v Meisels 234 AD 2d 414 [2d Dep! 1996]). Thus, plainti ffhas made a prima facie showing of entitlement to summary judgment (see Northeast Sav. v Rodriguez, 159 AD2d 820 [3d Dcp! 1991]; app dfs", 76 NY2d 889, 561 NYS2d 550 [1990]). Since plaintiff has presented documentary evidence of its entitlement to summary judgment as a matter of law, it now becomes incumbent upon defendant to come forward with proof of evidentiary facts showing the existence ofa triable issue with regard to bona fide defenses to the action such as waiver, estoppel, bad faith, fraud, oppressive and/or unconscionable conduct on the part or the plaintiff or its predecessor in interest (see Marine Midland Bank, N.A. v Freedom Rd. Realty Assoc., 203 AD2d 538 [2d Dep' 1994]; Village BlIllk v Wild Oaks Holdillg, IIlC., 196 AD2d 812. supra: Martoll Assoc. v Vitale, 172 AD2d 501 [2d Dep! 1991]; Alldre v Pomery, 35 NY2d 362 [i974]). Defendant has not met that burden. Defendant's general denials and denial or information sufficient to form a beliel~ arc insufficient, as a matter onaw, and summary judgment wil [ be granted when "the Answer proffers nothing more than general denials" (Fairbanks Co. l' Simplex Supply Co., 126 AD2d 882 [3d Dep! 1987.1). Bare denials, such as those asserted by Carroll without more, are insufficient to dcreat plaintilT's motion for summary judgment (see J /30 Andersoll Ave. Realty Corp. v Mimi Equities Corp., 95 AD2d 169 [I" Dcp! 1983]). "Where ... (he cause ofae(ion is based upon documentary evidence. the authenticity of\vhich is not disputed, a general denial. without more, will no! sulIice (0 raise an issue of fact""(Gould v McBride, 36 AD2d 706 [1~ Dep! 1971]; afJd 29 NY2d 768 [1971]). Further. speculation and conjecture is insufficient lo defeat plaintiffs motion (see Capobiallco " Mari, 267 AD2d 191 [2d Dep! 1999]; Presta v Houssiall, 186 AD2d 542 [2d Dept [* 6] GMAC Bank v Carroll Index No.1 0-20806 Page NO.6 1992]). In facl. dcfendant has not submitted affirmative defenses and counterclaims judgment. Lack of opposition is an affidavit or in opposition tantamount to consent either in support to plaintiffs of his pleadings. motion tor summary and in effect a concession that no qucslion(s) oflae! exist (see Argenf Mfge. Co., LLC v Menfe.<a, 70 AD3d 1070 12d Dcpt20 101; Hermitage Ins. Co. v Trance Nite Club, IIIC., 40 AD3d 1032. supra: CPLR 3215; Zillo v 1aob Taxi, fIlC., 20 I\D3d 521. supra; Woodson v Mendoll Leasing Corp., 100 NY2d 62. supra; see olso Neumall v Zurich N. Am., 36 AD3d 60 I, supra; Kuehne & Nagel, Ilrc. v Baiden, 36 NY2d 5391 I9751). Additionally, <'uncontradicted facts arc decmed admitted" (Tortorel/o v Larry M. Carlin, 260 AD2d 20 I, .IIII'm ). Turning to the defendant's cross-motion seeking an order pursuant to CPLR 32\ J(a)(3) ( see Wells Fargo Bank Milln. National AssocilltioJl v Mastropaolo, 421\D3d 239, 837 NYS2d 247 [2d Dept 2007]) dismissing the plainti ffs complaint in its entirety on the ground that plaintiff lacked standing to commence this action and lacks standing to maintain this action, the general contentions of defendant's delaying determination sufficient basis under CPLR 3212(0 for (see Lewis v Safety Disposal 12 AD3d 324 [I" Dept2004]). order to commence interest in the mortgage" do not provide of plainti ffs motion for summary judgment Sys. of Pennsylvania, fnc., C'Ill counsel a foreclosure action, the plainti Ff must have a legal or equitable ( Wells Fargo Balik, N.A. v Marchione, 69 AD 3d 204, 207, supra). 1\ plaintiff has standing where it is both (1) the holder or assignee ofthe subject mortgage and; (2) the holder or assignee of the underlying ,lssignmcnt note, either by physical delivery or execution prior to the commencement of the action with the filing of the complaint of a written (see Wells Fargo Balllt, N.A. v Marchione, 69 AD 3d 204, supra; U.S. Bank, N.A. )' Collymore, 68 AD3d 752 I 2d Dcpt2009 J). The documcntary endorscmcnt evidence submitted in blank. The effect of the endorsement to UCC § 1-201 (5). When an instrument herein consists of a note transferred Vla an is to make the note payable to bearer pursuant is indorsed in blank (and thus payable to bearer) it may be negotiated by transfer of possession alone (see UCC §§ 3-202 [I]; 3-204(21). Furthermore, UCC § 9-203(g) explicitly provides that the assignment security interest in the note automatically assignee. of un interest of the seller or other grantor ofa transfers a conesponding The relevant provision states, "the atlachment or pertonnance secured by a security interest in the mortgage to the of a security interest in a right to payment interest or other lien on personal or real property is also [* 7] GMAC Bank v Carroll Index NO.1 0-20806 Page NO.7 attachment ofa security in the security instrument mortgage or other lien." (g). irthe holder orthe note in question demonstrated Under UCC § 9-203 that it had an attached security in the note. the holder or the note in question would also have a security interest the mortgage even in the absence of a separate assignment possession of the mortgage. derendant 's cross-mati Oil. counsel for plainti ffaffinns assignee, Plaintiff' has been in continuous of the note as set for in the affidavit of Michael Labium prior to the commencement 636 f2d Dept 20 J I D. the action (see Deutsche Ballk )/ Barnett, 88 AD3d possession securing the note of the original note in its office. by the written assigmnent Here, the plaintifrhas and physical complaint and which is reflected in the complaint. produced suflicient documentary finds that the affirmation categorically In oppositioll of to and confirms that counsel is in established its lawful status as delivery of the note prior to the tIling of the Whereas in this loreelosure action plaintiff has evidence and has eliminated all material issues of fact. the Court of defendant's counsel alone in this cross motion is insufficient (see Zuckerman v C;~v New York, 49 NY2d 557, supra), and is without probative value in opposition of to plaintiffs motion (see DiclIpe v City ofNelV York, 124 AD2d 542 [2d Dept 1986]). Therefore the cross- mOlion is denied and the atlinnative Accordingly, defense of lack of standing is dismissed. the motion for summary judgment compute and amend the caption amongst other affirmative denied. and for the appointment relief is granted. All malters not decided herein are hereby deemed denied. This eonslilules the DECISION and ORDER of the Court. l!Iatell: AlIllm;t 21, 2012 ~{jlll'rlP~illl,Nl~l\l1l111rh. [ J FINAL [X INON-FINAL of a referee to The cross-motion is
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