US Bank, NA v Crocitto

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US Bank, NA v Crocitto 2012 NY Slip Op 32455(U) September 20, 2012 Supreme Court, Suffolk County Docket Number: 16096-10 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] MEMO DECISION & ORDER INDEX No. 16096-10 SUPREME COURT - STATE OF l\TEWYORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. Wj-fELAN Justice of the Supreme Court MOTION DATE 8/13112 ADJ. DATES 9114/12 Mot. Seq. 1/001- Mot D CDfSP: No ---------------------------------------------------------------)( US BANK, NA, as Trustee for the Certificate holders of Bane of America Funding 2008-FTl Trust, mortgage passthrough certificates, series 2008-FT!, Plaintiff, -against- DRUCKMAN LA W GROUP, PLLC Attys. For Plaintiff 242 Drexel Ave. Westbury, NY 11590 ELLEN DURST-BLAIR, ESQ. Atty. For Defendants 250 Mineola Blvd. Mineola, NY 11501 NANCY CROCITTO, BANK OF AMERICA, NA, : MIDLAND FUNDING, LLC, ADVANTAGE ASSETS n, INC., CAPITAL ONE BANK, USA, NA, "JOHN DOE I to JOHN DOE 25", said names: being fictitious, the persons or parties intended being the persons, parties, corporations or entities, if any, having or claiming an interest in or lien upon: the mortgage premises described in the complaint, Defendants. ---------------------------------------------------------------)( Upon the following papers numbered I to ~ read on this motion for summary and default judgment. and to appoint rcfcrcE' ; Notice of Motion/Order to Show Cause and supporting papers I - 6 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 7·8 ; ReplyingAffidavits and supporting papers _9_-_1o .;Other : (:loud :loRel 1,cllorir,g ammel ;11 JUPPt'JI\ {\lid oppt'lJed \0 th~ Iilotion, it is ORDERED that this motion (#00 I) by the plaintiff for summary judgment against the answering defendant, Nancy Crocitto, the appointment of a referee to compute and other incidental relief is considered under CPLR 3212, 3215 and RPAPL 1321 and is granted only to the extent that summary judgment against the answering defendant is awarded to the plaintiff. [* 2] US Bank v Crociuo ct al Index No. 16096-10 Page 2 On May 5. 20 IO.the plaintillcomn1enced this action on to foreclose a March 25. 2004 mortgage given by defendant, Nancy Crocitto. to secure a line of credit advanced by Fleet National Bank. Prior 10 such COlllmcnccment. the Bank of America, NA in its capacity as successor by merger to Fleet National I1ank. assigned the su~ject note together with the debt represented by the line of credit note and security agreement to the plaintiff. Issue was iOllled by service of defendant Crociuo's answer. [t mdudes some eleven affirmative defenses and one counterclaim which charges the plaintiO' with reckless and negligent lending practices and the ··gouging·' of the defendalll·s equity interest in her real property. The plaintilT now moves for an order awarding it summary judgment against the answering defendant together with dismissal of her answer containing the eleven affirmative defenses and one counterclaim and appointing a refcree to compute amounts due under the subject mortgage. The motion is considered under CPLR, 3212 and RPAPL § 1321 and is granted only with respect to the plaintiWs demands for summary jutlgr.1ent. The moving papers established the plaintiffs entitlement to summary judgment on its complaint to the e~:tent it asserts claims against answering defendant, Crocitto, as it mcluded copies of the mortgage, the unpaid note and due evidence of a default under the terms thereof (see CPLR 3212; RPAPL § 1321; lISBC Bmlli v Sltwartz, 88 AD3d 961. 931 NYS2d 528 [2d Dept 20 II]; Countrywide Home Loans v DelpJuJIlse, 64 !\D3d 624, 883 NYS2d 135 [2d Dept 2009]; J.P. Morgan Chase Ballk v Agnello, 62 AD3d 662, R78 NYS:~d 3971.2d Dept 2009J; Wells Fargo Bank MilllleS01ll" Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 20071; Household Fiu. Real()! Corp. o/New York v Willll, I91\D3d 545, 796 NYS2d 533 [2d Oept 2005]; Oewen Fed. Bank FSB v Miller, 18 AD3d 527, 794 NYS2d 650 [2d Dcpt 2005]). The moving papers further establ ished, prima facie, that the at1irmative defenses, including those premised upon the plaintiffs purported lack 01" standing, and the counterclaim asserted in the defendant's answer. are without merit. It was thus incumbent upon the answering defendant 10 submit proof sul1icient to raise a gCllU1l1C question of I~\clrebulting the plainti frs pnma facie showing or in support orthe aftirmative defenses asserted in her answer or otherwise available to her (see Fhlgstar Bank v Bellajiore, 94 AD3d 1044,943 NYS2d 551 ]2d Dept 20121: Grogg Assoc.\". v South Rd. Assocs., 74 AD3d 1021 907 NYS2d 22 [2d Dept 2010"]: 'flashington Mut. Bank v O'Conllor. 63 AD3d 832, 880 NYS2d 69612d Dept 2009]: J.P. Morgan Chm;e Bank, NA II Agnello, 62 AD3d 662. supra; Household Fin. Reaf(JI Corp. of New York v Win", 19 !\D3d 545. supra). In this regard. the coul1 notes that where a defendant fails to oppose some or all matters advanced on u motion for summury judgment, the facts, as alleged in the movant's papers, may be deemed admined as there is. in effect. a concession that no question of fact exists (see Kuehne & Nagel, fnc. l' Bair/ell, 36 NY2d 539. 369 NYS2d 667 [1975"]:Argent Mtge. Co., LLC l' Meute.'wl1u. 79 AD3d 1079.915 NYS:!t1591 12d Dept 20 10 j). For the reasons stated below. the court finds that the opposmg papers submitted by derendant Crocitto were insufficient to raise any genuine question of facl requiring a trial on the merits of the plaintiffs claims for foreclosure and sale and insufficient to demonstrate any bona fide defenses (. ¢ ¢. et' CPI.R 31 I I leI). [* 3] US Bank v Crocitto c\ al Index No, 16096-10 Page ~ 'I'he opp{)sing papers submitted by defendant Crocitto consist of an affirmation by her counsel together with :::ertainexhibits attached to the plaintiff's moving papers, A review thereof reveals that none of the affimlative defenses set forth in the answer of defendant Crocino are advanced in oppositionlO the plaintitrs motion for the dclcndant' s challenges to the plaintiffs standing. All affirmative defenses not asserted by the defendant arc thus dismissed under the case authorities set forth above. Of the grounds advanced in the opposing papers the first rest upon claims that the plaintiffs proor is insufficient to establish its claims for foreclosure and sale. Such claims arc without merit since the plaintifrs prima facie case was established upon its production of the mortgage, the unpaid note and due evidence o1'a default under the terms thercof{see CPLR 3212; RPAPf, § 1321; HSBC Ballk v Shwartz, 88 AD3d 961. 931 NYS2d 528 [2d Dept 20111. Countrywide Home Loans v DelpllOnse, 64 AD3d 624, supra: J.P. Morgillr Chase Bauk v Agllello, 62 AD3d 662. supra; Wells Fargo Bank Miunesota v Perez. 41 AD3d 590. supra: House/rold Fill. Realty Corp. o/New York v Wblll. 19AD3d 545, supra; Oewell Fed. Balik FSB v l'vlilfer. 18 AD:ld 527. supra). The defendant's attack upon the plaintiff's standing, which is incorporated into her clmms of an absence of sufficient prool: rest upon the alleged invalidity orthe assignment upon which the plaintifr relies to establish its standing. As indicated above. the plaintiffs standing is premised upon an April 26, 2010 corporate assignment ol"the subject mortgage \>\'hichincluded a transler of the underling debt represented by the cnxlit line agreement. This assignment was executed by a corporate officer of Bank Of America, NA. which is described therein as the successor by merger to the original lender. Fleet National Bank. The defendant claims that due to a purportcd absence any ownership in the note and mortgage by the assignor, Bank of America. NA. said assignment was ineffective to transfer the mortgage to the plaintiff especially in the absence or any prior assignment from the original lender. Fleet Nationall3ank. These claims are. however, unavailing in light of the provisions of Banking Law S 602, which govern the eifcct of a merger of bunks. It is therein provided that the receiving bank "shal1 he considered the same busin:::ss and corporate entity" as the bank merged into it, and that all orthe property, rights, and powers of the merged bank shall vest in the receiving bank (see Ladillo I' Blmk o/Ameriea, 52 AD3d 571. 861 NYS2d 683 l2d Dept 2008.1), The defendant's challenges to the validity of the assignmelll are thus rejected as unmeritorious. Moreover. the transfer of the note representing the mortgage debt by Bank of Amen ca. NA. as successor by merger to Fleet National Bank. contained in the April 26. 2010 assignment in f~lVoroffhL: plaintiff. was sufficient in and of itsc If to effect a transfer of the mortgage (see US Balik Natl. As,m. l' Ctl1lge. 961\D3d 825. 947 NYS2d 52212d Dept 2012]: GNP Loan, LLC v Taylor. 95 AD3d 1172.945 NYSld 336 12d Dept 2012]: Deutsche B(mk Natl. Tmst Co. v Rivas. 95 AD3d 1061.945 NYS2d 328 [2d Dcpt 10121: lJS Balik, Natl. Assll. I,Sharif. 89 AD3d 723. 933 NYSld 293 [2d f)epI20111: U.S. Balik, .NA vColfJ'lIlOre. 68 AD3d 752.1NO NYS2d 57812d Dept 2009]: Deut.,·c11e Balik Natl. TTlI,"fCo. v Pietranico, 33 Misc3d 528. 928 NYS]d 818 I Sup. Ct .. Suffolk County. 2011 D. The defendant thus failed to establish that her standing dcfcn~e is sufficiently meritorious to deteat the plaintiffs motion for summary judgment. [* 4] US Bank Ii CrociLlo ct al Index No. 16096-10 Page 4 The defendant further claims an entitlement to a default judgment on her counterclaim to recover a moneyjuugmcnt from the plaintiffin the pnncipal amount ofS60,OOO.OO to the plaintiff s failure to reply due to said counterclaim. As the plaintifTcorrectly points out, however. the defendant's demand for such relief is improperly asserted in her opposing papers which were served without benefit of notice of cross motion (see CrLR 2215), In addition, such demand is othcnvise improper due the defendant's abandonment of her counlerclaim by her failure to move for Judgment thereon within the one year time period required by CPI....R 3215(c) and her concomitant hlilure to advance a reasonable excuse fOrlhc delay (see Giglio v NTlIMP, Inc, 86 AD3d 301. 926 NYS2d 546 [2d Oept 2011 D, In any event, the defendant's counterclaim for recovery of money damages due to the gouging of her equity interest by reason of the purportedly tmconseionab\e. unfair and unscrupulous terms of the loan are so wholly lacking in merit that a denial of a default judgment is warranted under CPLR 3215(1) (see Csaszar v. County of Dutchess, 95 AD3d 1009,943 NYS2d 610, 12d Dept 20121; see also Baron AS,foe., LLC v Garcia Group Enter., Inc., 96AD3d 793, 946 NYS2d 611 [2d Dept 20121; Argelll Mige. Co., LLCv Mentesalla. 79AD3d 1079, supra; Ricca v Ricca 57 AD3d 868, 869, 870 NYS2d 419 12d Dep! 2(081). Those portions of this motion wherein the plaintiff seeks summary judgment dismissing the affirmative de lenses ofdc!cndant Crocitto and in favor of the plaintiff on its complaint against such defendant is thus grantcd. However. the plaintiffs application for the appointmcnt of a referee to compute is denied, without prejudicc, to a new application for the same relief upon proper papers. It is wdl established that the appointment of a retcree to compute as contemplated by RPAPL § 1321 is not appropriate unless the claims oflhe plaintiffhave been adjudicated in its favor by the court and the only issue~;left for determination are those concerning the long account (see Vermont Fed. Bank v elm.ft!, 226 AD2d 1034,641 NYS2d 440 pd Dept 109961). Favorable adjudications of the claims of the plaintiffs may be made by the fixation of de tau Its in answering or by an award ofsumll1aryjudgment on its complaint against the ddendanls (see Bank (~f Emit Asia Ltd. v Smit", 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994J; Vermont Fed. Bank v Chase, 226 i\D2d 1034, supra; Perla v Real Prop. Holdings, LIe, 23 Mies2d 697, 874 NYS2d 873 r.Sup Ct. Kings County 2009]). Until the plaintiff's claims against all orthe defendants joined in the foreclosure action have been so adjudicated, an application for the appointment of a referee to compute is prematurc (see RPAPL 1321; Sllllraga v Schwartzberg, 149 AD2d 578, 540 NYS2d 45] r2d Dcp! 1989]). * ! !en:. the plaintiffs' motion papers did not include a demand for a default.judgment against the nOI1answering defendants with the requisite elements of proof required by CPI J{ 3215(0. -I'he moving papers also railed to establish whether appearances by service of answers or otherwise were interposed by the delcn::lants other than dclcndant Crocltto, Under these circumstances. the c01ll1denies the plaintiffs' motion for the appointment 01" relcree pursuant to RPAPI.... 1321 as the same is premature. Said denial is without a § prejudice to the interposition of a new application for the fixation of the defaults of all non-answering defendants pursuant to CPI.R 3215(f) and (g) and the appointment of a referee to compute as contemplated by RPAPL § 1321. Any such applicatIOn shall include a copy of this order. as the award of summary [* 5] US Dank v Crocitto et al Index No. 16096-10 Pagc 5 judgment in favor of the plaintiffs against the answering defendant set forth in this order is a necessary component of any future application for the issuance of an order of reference. The record rcllects that a conference orthe type mandated by the Laws of Laws of2008. eh. 472 § 3-a as amended by the I,aws 01" 2009 eh. 507 § 10 and/or by CPI,R 3408 was previously conducted once by this court on September 27.2011 and nine times prior in the specialized mortgage foreclosure. It is quite apparent that no further conferences are required under any statute, law or rule. In view of the foregoing. the mstant motion is granted only to the extent set forth above. A copy or for an order fixing the defaults of the defendants who have not answered and for an order of reference by virtue of all accelerated judgments granted to the plaintiffs pursuant 10 CPI.R 3212 and 3215. Said application should also reflect that the conference requirement imposed upon court by above cited statutory provisions has been satisfied. 1his order mllSI accompany any [lIfllre applicalion Proposed order granting summary judgement and appointing referee to compute has been marked "not signed" without prejudice. ) i I . 'IHOMA" F. W IELAN . .I.S.C..

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