Bank of New York Mellon v Fuentes

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Bank of New York Mellon v Fuentes 2012 NY Slip Op 32514(U) September 14, 2012 Sup Ct, Suffolk County Docket Number: 32801/10 Judge: Joseph Farneti 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] SIIOlH FORM ORDER INDEX NO.: 32801110 SUPREME COURT - STATE OF NEW YORK [AS PART 37 - SUFFOLK PRESENT: COUNTY HOIl. JOSEPH FARNETI . MOTION DATE 1-27-[2 ADJ. DATE 9-13-12 Mot. Seq. # 001 MG Justice of the Supreme Court THE BANK OF NEW YORK MELLON F/KJA THE BANK OF NEW YORK. AS TRUSTEE. FOR CW AIlS, INC., ASSET -I1ACKED O;RTlF[CATES, SERIES 2007-12, I1RYAN CAVE LLP Attorneys for Plaintiff 1290 Avenue of the Americas New York, N. Y. 10104 Plaintiff, LAW OFFICES OF FOX & LEFKOWITZ, LLP Attorneys for Defendant 666 Old Country Road Suite 201 Garden City, N. Y. 11530 -againstMARILYN FUENTES: FERNANDO ARNALDO: .JOSE ORTIZ: TOYOTA MOTOR CREDIT CORPORA nON, "JOHN DOE 1" to "JOHN DOE 25", said names being fictitious, the persons or parties intended being the persons, parties, corporations or entities, if auy, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants, x Upon the following papers numbered 1 to 31 read on this motion for summary judgment, an order of reference and Olher affim13.tivc relief ; Notice of Motion and supporting papers 1-19 , Affirmation/Affidavit in Opposition and supporting papers 20-26 ; Replying Affidavits and supporting papers 27-31 , Other Memorandums of law ; (and aftel heal in!; cot\ll3e1 ju SttppOlt altd opposed 10 the ll!tJtivnj it is, ORDERED that this motion by the plaintiff for an Order: (I) pursuant to CPLR 3025 (h), granting Plaintiffleave to amend the reply to counterclaims to assert a statute of limitations defense 10 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 ofPJaintiff and against the 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 her Answer lack merit and fail to state valid defenses to foreclosure, and that accordingly, upon the presentation and coming in of the Referee's Report, Plaintiff is entitled to all of the relief requested in its complaint, including a [* 2] Ihl' nank ur New York Mellon v J'uenles, el:d Index No, 32kO 1/10 I 0 Page 2 judgmt:nt of fort:closure and sale as a mater of law; (3) dismissing each of the Borrower's five aCfinnatlvc defenses and four counterclaims as each is without merit, (4) pursuant to 3125 (c), entenng Judgment on de!~1U1t against defendant Toyota Motor Credn COlvoration as it has f~l1lcdto appear, anS\'It:ror otherwIse move with respect to the Compla11lt, alter bemg duly served and the tone 11l which to do so has passed; (5) amending the captIon of this proceeding by dircctlllg that: (i) the names of tile "John Doc" defendants be deleted, and (li) the names oCFemando Amoldo and Jose Ortiz also be deleted as this action has been voluntarily discontinued against these judgment creditors; (6) pursuant to RPAPL 1321, rcfemng thlS action to some suitable person as referee ( the '"Rderee"), (11) to ascertain and compute the amount due Plamti iT for principal and interest under the loan set CorthIn the complaint and for any other amounts due and owing Plaintiff or the original mOl1gagce under the terms oftl1e Mortgage, (iii) to examine and report whether the mortgage premises should be sold in a slllg"leparcel, and (iv) to direct that lIpon presentation and coming 111 f the Referee's Rep0l1, Plamtiff o have-the usual Judgment of foreclosure and sale, is hereby granted; and it IS further ORDERED that the amended reply by plaintiff setting fOl1h affinnative defenses of a stature of hmitations defense to the defendants' aftirmative defense/counterclaims attached to its movmg papers shall be deemed served mmc pro tUllC to the date of service of this motion; and it is fLlrther ORDERED that plaintiff shall serve a copy of this Order ",,'ithnotice of entry within sixty (60) days of the date this Order is signed upon counsel for the defendant pursuant to CPLR 2] 03 (b), (1), (2) or (3), and thereafter file the aCfidavit(s) of service \vith the Clerk of the Court. The present action involves the foreclosure of a mortgage alleging that the defendant Marilyn Fuentes (hereinafter "Fuentes") defaulted in repaying a note and mortgage which was secured by real property located at 119 Deauville Parkway, Lindenhurst. New York] 1757. Issue was joined by the service of Fuentes answer with two affirmative/counterclaims on or about September 14.20]0, In response to the counterclaims, plaintin-~ as a defendant on the counterclaims. served a reply answer on or about January 5,201]. The Court will first address that branch of the plaintiffs motion which seeks to amend its reply to defendant's counterclalln to assert a stature of limitations defense to the defendants' federal statutory counterclaim and affinnative defense under the Truth 111 Lending Act. Fuentes opposes the motion and submIts her affidavit and counsels affirmation Il1oppOSition to the motion both facts of the motlOl1 CPLR 3025 (b) provides: (b) Amendments and supplemental pleadings by leave. A party may amend hIS pleading, or supplement It by setting forth additional or subsequent transactions or occupancies, at any time by leave of court or by stipulation of all parties. Leave shall be fi:ee1ygiven upon such terms as may be just. [* 3] ilK Ihlnk orNcw York Mellol1 v Fuentes, Index No. 32S0]/2010 t't al Leallc to amend a pleading IS wlthlll a court's discretIon should be freely granted in the absence of a 5hO\\/Ingol'prcJudlce or sUllmsc resulting directly f)'om the delay (see McCaskey Dal'l'es & Assoc. Iffc. l' New York City Health (lilt! 1I05jJS. Corp., 59 NY 2d 755, 4()3 NYS2d 434 [ 1083]; Fahey v COlllltyofOlltllrio, 44 NY2d 934, 408 NYS2d 314 [ 1978J). The Appellate Division, Second Department, in V.,S. Balik, N. A. v Shanf; 89 AD3d 723, 724, 933 NYS lei 293 (2d Dcpt 2(11) bas explained' "'Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay 111ceking leave, unless the proposed s amendment IS palpably insufficient or patently devoid of merit' (Aurora Loan Servs., LIC v TllOfflas, 70 AD3d at 987 [201 OJ;see CPLR 3025 [bJ; Lucido v Mancuso, 49 AD3d 220, 222 [2008]). ·'Mere lateness IS not a b,llTier to the amendment. It must be lateness coupled with significant prejudlce to the other side, the very elements ofth0 laches doctrine '" Public Adm'r of Kings COllJ1~V Hossain COllstr. Corp., 27 AD 3d v 714,716 [2006]; quoting Edellwald COllstr. Co. v City of New York, 60 NY2d 957, 959 [1983J; see Abrahamian v Tak Own, 33 AD3d 947, 949 [2006]). The COUli finds that the dcvoid of merit (see u.s. Bank Slutsky v Blooming Grove lIlli, branch of the plaintIffs motion affirmative defense is granted. proposed amended answer by plaintiff is not palpably insufficient or N.A. v Collymore, 68 .W3d 752, 890 NYS2d 578 [2d Dept 2009J; 147 AD2d 208, 542 NYS 2d 721 [2d Dept 1989]). Therefore that to amend its counterclaim answer to assert a statute of1imitations Plamtiff additionally moves for summary judgment (see CPLR 3212 [a]; Myung Clllln v North American Mortgage Co., 285 AD2d 42; 729 NYS2d 716 [1st Dept 2001]) to dismiss Fucntes' answer, afflrmativc defenses/counterclaims and for the issuance of an order of reference. "[IJn an action to foreclose a 11100igage, plaintiff estabhshes its case as a matter of law through the a production of the mortgage, the unpaId note, and evidence of default" (Republic Natl. Balik of N.Y. v O'Kane, 308 AD2d 482,764 NYS2d 635 [2d Dept 2003J; see also Wells Fargo Bank v Cohen, 80 ADJeI 753,915 NYS2e1 509 [2d Dep! 2011]). Plaintiff has established a pnma facie case 111his foreclosure action by the submission of the t affidavit testimony Keith F. Goforth, an AVP of plaintiff's servicer and counsel's affinnation along along with caples of the pleadings, and relevant mortgage documents, such as the note and mortgage Signed by Fuentes on J Lily6, 2001, and documentary evidence of Fuentes' default since November 1, 2008 and that the default to datc has not been cured (see Valley Natl. Bank v Deutsch, 88 ADJd 691, 930 NYS2e1477 [2d Dop' 2011J; Wells Fargo Bank v Karla, 71 AD3d 1006.896 NYS2d 081 [2e1 Dcp' 2010]; Wash. Milt Bank F.A. v 0' Conner, 63 AD3d 832. 889 NYS2d 696 [2e1Dcp! 2009]; Bercy IllVS. v SUIl, 239 AD2d 161,657 NYS2d 47 [1st Dept 1997]; Bank of Leumi Trust Co. o/New Fork v Liglztnillg Park, l11C,215 AD2d 246, 626 NYS2d 202 [1st Dept 1995]; Village Bank v Wild Oaks Holding, IIIC., 196 AD2d 812, 601 NYS2d 940 [2d Dept 1993]; Dart Assoc. v Rosa Melfl MIa., 39 AD2d 564, 321 NYS2d 853 [lei Dcp' 1972]. Gouf<l,' McBride, 30 AD2d 700. 319 NYS2d 125 [* 4] l'hl' Hank ol'Nc\v York .Mellon v Fuentcs, e\ al InJex No :;1~Ol/20]O Pagl' 4 I: ISI Dept 19711; aiI'd 29 NY2d 708, 36 NYS2d 565 [1971]), and other documentary proofthat it is a current holder ill due course of a valid note and mortgage executed by Fuentes (see Deutsche Balik Nl1ll' Trust Co. \' Pietrtllloico, 33 Misc3d 528, 928 NYS 2d 818 [Sup Ct Suffolk County 2011 J; Zuckerman I' City of New York, 49 NY2d 557,427 NYS2d 595 [1980J). PlaintIff has established and Fucntcs docs not deny the existence ora valid note and mortgage. Plall1tlrfalso alleges and noticed the past due, unpaid mortgage balance, whIch Fuentes has not contested as well as the acceleration default nOllce (see Fed. Home Loall Mtge Corp. v Karastllt!tis, 237 AD2d 558, 655 NYS2d 631 t:2d Dept 1997], First Trust Natl. Ass '" I' i~leisels 234 A02d 414, 651 NYS2d 121 [2d Dept 19%]). Thus, plainti ff has made a prima Ji-lCIC showing of entitlement to summary judgment I n its favor C<"('(' Northeast Sa\'. \'RodriglW7., 159 AD2d 820, 553 NYS2d 400 [3d Dept 1991]; app dism 76 NY2d 889,561 NYS2d 550 [1990]), Since plalnli ffhas presented documentary evidence of its entitlement to summary.i udgment as a matter of law, it now becomes incumbent upon Fuentes to come forward with evidentiary facts provmg the eXIstence ora triable Issue wIth regards to bona fide defenses to the action such as waIver, estoppel, bad faith, fraud, oppressive and/or unconscionable conduct on the part of the plaintiff or its predecessor in interest (see 1l-1arine111idlaudBunk, N.A. v Freedom Rd. Real(J' Assoc., 203 AD2d 538.611 NYS2d 34 [2d Dept 1994]; Village Bank \' Wild Oaks Holding, IIlC., 196 AD2d 812, supra; Mart011 Assoc. v Vitale, 172 AD2d 501,568 NYS2d 119 [2d Dept 1991 J; Andre v Pomery, 35 NY2d 362 NYS2d 131 [1974]). Fuentes has not met that burden. Fuentes general denials and denial of mformation sufficient to form a belief, are insufficient, as a matter of law, and summary judgment V'ill! be granted when "the Answer proffers nothing more than general denials" (Fairbanks Co. v Simplex Supply Co., 126 AD2d 882, 511 NYS2d 171 [3d Dept 1987]; (see also I I 30 Anderson Ave. Realty Corp. v Mina Equities Corp .. 95 AD2e! 169,465 NYS2d 511 [15t Oept ] 983]). "Where ... the cause of aetion ISbased upon documentary evidence, the authenticity of which is not disputed, a general denial, without more, wIll not suffice to raise an issue offaet" (Gould v McBride, 36 AD2d 706, 319 NYS2d 125 [I st Dept 1971 J; affcl29 NY2d 768, 326 NYS2d 565 [1971]). Further, speculation and conjecture lS insufficlcnt to defeat plaintiffs motion (see Capobianco v Mari, 267 AD2d 191,699 NYS2d 487 [2d Dept 1999]; Presta v Holtssiall, 186 A02d 542, 589 NYS2d 791 1:2dDepl 1992]). In opposition, Fuentes has failed to offer any valid evidentiary defense or counterclaim to the motion (see Castro \' Liber(v Bus Co., 79 A02d 1014, 435 NYS2d 340 [2d Dept 1981]J. As noted herem, Fuentes does not even deny in her affidavit that she is 111 efault in her d mortgage payments. Fuentes states In her aflidavit that after closing on the loan she learned that her earnings were insuffiCient to make the monthly mortgage payments. Fuentes was a sIgnatory to the Truth In Lending DIsclosure Statement on July 7, 2007, the closing date for the loan. "A party IS under an obligation to read a document before he or she SIgns it, and a party cannot gencral1y avoid the effect of a [document] on the ground that he or she did not read it or know its contents" ( Martino v Kascha!<. 208 AD2d 698, 617 NYS2d 529 [2d Oept 1994]; see also Lavi \' Hamedin , 234 A02d 428, 631 NYS2d [2d Oept 1996]). Her allegations of a violation of the Federal Truth in Lending Act are just that, allegations unsupported by factual al1egatlOns. These allegations do not give the Court and the plaintiffnotiee of the transactions, occurrence, or series of transactions or occurrences intended to be proved (see CPLR 3013). Accordingly, the conclu50ry allegations of a violation of thc federal act, [* 5] The 13ank oi' Ne\v York Mcl10n v Fuentes. d al. Index Nn, 3280J/2010 Page :) \Vllhout more, IS lllsuilicient 10 stale a legally cognizable defense or claim (see Cedeno v /fl(/yMac Ballcorp. JIlC. 2008 WL 39992304 [SDNY]; Perez v Grace /;,piscopal Church, 6 ADJd 596, 774 NYS2d n5 [2d Dcpl 2004]; Glassman vZorej; 291 AD2d 430, 737 NYS2d 537 [2ei Dcpt 20W]; Rebecchi v tflhitmore, 172 AD2d (lOa [2d Dcpt 19911; Zuckerman v City of New York. 49 NY 2d 557,427 NYS 2e1595 [1980]), and tbe defenses and counterclaims arc dismissed as being without lllent III law and fact. 111 ssence, Fuenles seeks a slay of the foreclosure procel':dings to allow her to recover Cram e personalll1isforlunes which occurred aner the issuance o1'lhe mOl1gage. However, she has not provided any legally sufficient grounds to support a stay of tile foreclosure sale. FurthemlOre, "[alny sympathy which tile mortgagors SituatIOnl111ght rouse cannot be permitted to undermine Ihe slabiltly a of conlractual obligations" (Jamaica S{willgs Bank II Cohen, 36 AD2d 743, 320 NYS2d 471 [2d Dept 1971]). While this Court is sympathetic to Fuentes' plight, the plaintiff has demonstrated that all the proceedlI1gs 111 this foreclosure action have been regular and in accordance with the contract and accordingly, the contract must be upheld; it cannot relieve the defendant from the consequences of her failure to pay the mortgage payments because the results arc harsh (see Grafll Hope Bldg Corp., 254 NY J [J930]). Accordingly, the motion for summary judgment and for the appointment of a referee to compute and amend the caption amongst other affimlative reliefis granted. The Order of Reference is being conculTently signed with this Order. All matters not decided herein are hereby deemed denied. This constitutes the decision and Order of the Court. /)/' Dated: September J 4, 20] 2 Riverhead, NY --- FINAL DISPOSITJON i: / J <..> ¢ Ho'n ,os~ph Farneti ll1g Justice Supreme Court 4 x NON-FINAL DISPOSITION

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