Valley Natl. Bank v Fowkes

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Valley Natl. Bank v Fowkes 2012 NY Slip Op 32797(U) October 26, 2012 Supreme Court, Suffolk County Docket Number: 32875-10 Judge: John J.J. Jones Jr 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] SJlOItT fORM OMEn INDEX NO.: 32875-10 SUPREME COURT - STATE OF NEW YORK IAS PART 10 - SUFFOLK COUNTY PRESENT: Hon. JOHN J. J. JONES, JR. Justice of the Supreme Court Motion Date: 5-29-2012 Adj. Date: 6-20-2012 Seq. #: 002-MotD VALLEY NATIONAL BANK, Plaintiff, BERKMAN, HENOCK, PETERSON, PEDDY & FENCHEL, P.c. -against- Attorneys for Plaintiff 100 Garden City Plaza Garden City, N. Y. 11530 WILLIAM .1.FOWKES, JENNIFER FOWKES, ALFRED S. WALENDOWSKI, P.c. ",JOHN DOE #1" through "JOHN DOE #12", the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if an)', having or claiming an interest in or lien upon the premises, described in the complaint, Attorney for Defendants William J. Fowkes Jennifer Fowkes 532 Broad Hollow Road, Suite 144 Melville, NY 11747 Defendants, x Upon the following papers numbered I lU 12 read on this motion for summar\' judgment: Notice ofMotion/Orderto Show Cause and supporting papers J - 5 . Notice of Cross Motion and supporting papers ; Answering Affidavitsand supporting papers 6 - 8 ,Replying Affidavits and supporting papers 9 - I J ; Other Stipulation - 12 it is, ORDERED that this renewed motion by the plaintiff for, inter alia, an order pursuant to CPLR 3212 awarding summary judgment in its nlVor and striking the joint answer of the defendants, William J. Fowkes and Jennifer Fowkes, amending the caption, fixing the defaults in answering of the non-answering defendants, and appointing a referee to compute amounts due, is determined as indicated below, and it is further that the notice of pendency and verified complaint filed herein on September 3, 2010 is amended nunc pro tunc to reflect that the correct name of the assignor is Mortgage Electronic Registration Systems, Inc. as nominee for Continental Home Loans, Inc., instead of Countrywide Home Loans, Inc.; and it is further ORDE'RED [* 2] Valley Natl. Bank v Fowkes Index No.· 32875-10 Pg. 2 ORDERED that the plaintiff shall serve a copy of this Order with notice ofcl1lry upon counsel tor the defendants within forty-five (45) days of the date of this Order and thereallcr lilc the allidavit(s) of service \vith the Clerk of the Court. The plaintiff commenced this residential foreclosure action by the tiling ora summons and complaint on September 3, 20 I0 alleging that William J. Fowkes (hereinalter the defendant mortgagor) de[~llllted in repaying an interest only period fixed rate note dated December 21. 2006 and given to Continental 1--1ome Loans, fnc. (Continental) in the princip8! sum of $427,500.00. The note provides, among other things, for initial payments of interest only commencing on February], 2007 in the approximate amount of $2,894.53 for the first 120 months of the note, and payments of principal and interest thereafter in the approximate or $3.609.J J through to January 1, 2037, the maturity date. As security for the loan, the defendant mortgagor gave Continental a mortgage also dated December 21,2006 against the real property known as 567 Accabonac Road, East Hampton, New York 11937. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for Continental and its successors and assigns and that for the purposes of recording the mortgage, MERS was the mortgagee of record. By undated allonge, Continental allegedly transfern:d the note to VNB Mortgage Loans, Inc. (VNE~),which is now known as Valley National Bank (Valley). By assignment dated June 23, 2010, MERS purportedly assigned the mortgage and note to the plaintit1; Valley National Bank (Valley). In the complaint, the plaintiff alleges, inter alia, that the defendant mortgagor allegedly denlUlted under the terms oi'the note and mortgage by failing to make monthly payments on February I, 20] 0 despite due demand; and that, as a result, the plaintiff has elected to declare due and owing the entire unpaid balance of principaL together with applicable interest. Issue was joined by the service ofajoint answer dated September 20, 2010 tiled by the defendant mortgagor and the defendant ./ennifer Fowkes (collectively the defendants Fowkes). In their answer, the defendants Fowkes admit the execution oflhe subject mortgage and the note, but generally deny the other allegations set forth in the complaint. The rernaining derendants have not nppeared or answered the complaint. According to the records maintained by the Court's computenzed database, this case was assigned to the specialized mortgage ['()reclosurepart and settlement conferences were held on March 22, 2011 (pre-screening) and April] 1. 20] 1 (full conJerencc). ;\t the last conference, this matter \vas marked to indicate that the deJCndants Fowkes WTIT not eligible for 8n <ldditional conference. As a result, this matter was dismissed from the conference program. Accordingly, the conference requirement imposed upon the Court by CPLR 3408 [* 3] Valky Natl. Bank v F()\vkcs Index No.: 32875-1 () Pg. 3 and/or the Laws or 2008, eh. 4 72 ~ 3-a as amended by Laws of 2009 Ch. 507 ~ ] () has been satistied. No further conference is required under any statute, law or rule. rhe plaintllT's previously moved (00 1) fi)r, inter alia, an order appointing (J rdcree. By Order dated January 3, 2012 (Jones, Jr., J.), the plaintiff's prior motion was denied, without prejudice to resubmit due to the plaintiff's failure to provide, among other things, evidentiary proof as to whether the subject mortgage is a "home loan'· as defined in RPAPI. § 1304(5 )(a); whether the plaintiffwas required to comply with the 90-day notice requirements ofRPAPL § 1304; and whether there was a nexus between VNB and Valley. The plaintiff now moves again (002) for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its hlVor and striking the joint answer of the defendants Fowkes; (2) pursuantto CPLR 1024 amending the caption~ (3) fixing the det~lUlts in answering of the non-answering defendants; (4) pursuant to RPAPL § 1321 appointing a referee to compute amounts due; (5) awarding the costs of this motion to the plaintiff; and (6) amending the notice of pendency and verified complaint nunc pro tunc to reflect the correct name of the assignor as MERS as nominee for Continental, instead of Countrywide Home Loans, Inc. (Countrywide). In response, the defendants Fowkes have filed opposition papers. A reply has been filed by the plaintiff Upon reargument and renewal of this Court's prior order dated January 3, 2012, this motion is considered. A plaintilTin a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl. Balik v Deutsche, 88 AD3d 691, 930 NYS2d 477 [2d Dep! 2011 J; Wells Fargo Bank v Karia, 71 AD3d 1006,896 NYS2d 681 [2d Dept201 0]; Wash. MuUlank, f~A. v O'Collllor. 63 AD3d 832. 880 NYS2d 696 [2d Dept 2009]). The hurden then shi Irs to the defendant to demonstrate "the existence of a triable issue of fact as to a bona llde defense to the action, such as waiver, estoppel, bad nlith, traud, or oppressive or unconscionable conduct Oil the part of the plaint] ff" (Capstone Bu.\·. Credit, LLC v Imperia f;'flmily Realty, LLC, 70 AD3d 882, 883. 895 NYS2d 199 [2d Dept 20101). In the instant case. the plaintiiTprodueed the note and the mortgagc executed by the deCendant mortgagor, the allonge and the assignment, as well as evidence of nonpayment (see, Deutsche Bank Trust Co. Ams. v Cot!io, 94AD3d 1040.943 NYS2d 545 [2d Dept 20 12]; Fed. Home Lonll Mtge. COI1!.v Karnstathis. 237 AD2d 558. 655 NYS2d 631 [2d Dept 1997[; First Trust Natl. Assll. I' Meisels. 234AD2d 414,651 NYS2d !21 f2d Dert 1996]). The plaintiff also submitted. intcr alia, an anidavit lhml an oIliccr of the plaintifC whercby it is alleged that the plaintiff is the holder anel is in posscssion of the note and mortgage that 'were delivered to it on August I, 200X, and subsequently memorialized by the assignmcnt datcd June 23, 2010 (G./. lISBC BanA USA v [* 4] Valley Nutl. Bank v Fowkes Index No.: 32875-10 Pg.4 Hernandez, 92 AD3d 843, 939 NYS2d 120 [2d Dcpt 20 I21; U.S. Bank, N.A. !' Co/(vmore. 68 AJJ3d 752, 890 NYS2d 578[2d Dept 2009[). More specifically. the "nicer alleges that, by !hc allonge, Continental endorsed the note to the order ofVNI3, which is now known as Valley. With respect to compliance with RPAPL ~ 1304, the officer alleges that. although a 90-day foreclosure notice was not required, four notices were mailed to the delcndant mortgagor, two at the mortgaged property, and two at the mailing address provided to Valley. According to the officer, a 90-day notice was not required because the subject property was purchased as investment property. He further alleges that the subject property was not resided in, or intended to he resided in, as indicated by the defendant mortgagor's uniform residential mortgage application. In another affidavit, the plaintiffs officer alleges that the suhject mortgage loan is not a "home loan" as defined in RPAPL 1304(5)(a) (see, Meyerson Capital X LLC J! Kats, 33 Misc3d WI?, 935 NYS2d 257 [Sup Ct, Kings County 20 11:1; Eastern SllV. Bank vAguirre, 30 Misc3d 1230A, 924 NYS2d 308 [Sup Ct, Queens County 2011]). Parenthetically, the Court notes that the defendant mortgagor executed a 1-4 family rider (assignment of rents) dated Decemher 21, 2006, wherehy section "6" of the mortgage concerning occupancy of the property by him is deleted (see, RPAPL § 1304 [3]; see, Emigrant Sa!'s. Bank v Sia, 20 I2 NY Mise LEXIS 3377, 2012 WI. 3134214, 2012 NY Slip Op 31854U [Sup Ct, Suffolk County, July I I. 2012, Martin . .I.]). By its submissions, the plaintiff established its prima facie entitlement to summary judgment on the complain! (see, CPUZ 3212; RPAPL § 1321; HSBC Bank USA, N.A. " Schwartz, 88 AD3d 961, 931 NYS2d 528 [2d Depl20 11]; Countrywide Home Loans, Inc. v De/p/lOnse, 64 AD3d 624,883 NYS2d 135 [2d Dept 2009[; Citimortgage1nc. v Lepore, 2012 NY Mise LEXIS 4282, 20 12 WI. 3947031, 2012 NY Slip Op 32290U rSup Ct. Sull,)lk County, July 13,2012, Whelan, .1_]). As the plaintiff duly demonstrated its entitlement to judgment as a maHcr of 1m the burden of proofs hilled to the defendants Fowkes to produce evidentiary v, proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide del'ense to thc action (see, Baron Assoc., LLe 11 Garcia Group Enter."'-., nc., 96 I AD3d 793. 946 NYS2d 6 11 [2d Dept 2012]; Wash. Mut. Bank" Vir/encia, 92 AD3d 774. 939 NYS2d 73 [2d Dep! 20 I2[; Aames Fnnding Corp. "Houston, 44 AD3d 692. 843 NYS2d 660 r2d Dep! 2007[; liSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d 59813d Del" 2007]). In opposition to the motion, the defendants Fowkes have ollcred the afllrmation of their counsel. Counsel mgues, inter alia, that the plaintiff did not estahlish standing and that the dclcndants Fowkes should be awarded reverse summary judgment against the plaintiJT dismissing the complaint- Initially, the detCndants Fowkes' request for summary judgment. which \vas improperly asserted in their opposition papers and served without the bcnclit 01" a cross motion, is denied as procedurally and substantively deficient (see. CPLR 2215: see a/so, [* 5] Valley Natl. Bank v Fowkes Index No.: 32X75-10 fig. 5 u.s. Bllllk, NA v Crocillo. 20]2 NY Mise LEXIS 4597, 2012 NY Slip Op 32455U [Slip Ct. Sufl-,:)lkCounty, Sept. 20, 2012, Whelan, J.I). Concerning the opposition, the defendants Fowkes waived any deCense based upon the plaintiff's lack of standing as they t-~liledto interpose that defensc in their joint answer, or in a timcly pre-answer motion to dismiss the complaint (see, CPL,R 32] I [e1; U.S. Bllllk Nilil. Assll. v Dellllrll, __ AJ)Jd~, 950 NYS2d 58l r2d Dept 2012]: Wells Fargo Bank MinJ1., N.A. I' Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 20071). Further, the defendants Fowkes' answer. consisting of general denials and no aflirmative detenses. is without apparent merit especially in light of their admission that they executed the subject note and mortgage (see, EMCMtge. Corp. v Stewart, 2 AD3d 772. 769 NYS2d 408 12d Dep! 2003]). Moreover. the afl]rlllation ofthe dclendants Fowkes' attorney, who has no personal knowledge of the operative facts, is \vithout probative value and insufficient to defeat the motion (see, e.g., Zuckerman v City of New York, 49 NY2d 557. 563. 427 NYS2d 595 [19801; 2 N. SI. Corp. v Gel/y Sllllgerlies Corp., 68 AD3d 1392. 1395. 892 NYS2d 217 [3d Dept 2009]) Even when viewed in the light most favorable to defendants Fowkes, their submission is insufficient to raise a triable issue of fact (see, Neighborhood Hous. Servs. N. Y. City, Inc. v Mellzer, 67 AD3d 872. 889 NYS2d 627 [2d Dept 2009]; Cllehrall Illv. Co. Ille. v JlIeksoll, 38 AD3d 704, 834 NYS2d 198 [2d Dcpt 2007]). Under these circumstances, the Court linds that the defendants f owkes failed to rebut the prima facie showing made by the pIainti f1'of its entitlement to summary judgment (see, Valley Nat!. Bank v Deutsche, 88 AD3d 691, supra: RlIssroek Flllld fJ, L.P. v Commllek Illv. GroIlP, file., 78 AD3d 920, 9]2 NYS2d 7] [2d Dept 20101; Wells FlIrgo Bllllk Milln., N.A. v Perez, 4] AD3d 590, 837 NYS2d 877 [2d Dept 2007]). The plaintin: therefore, is mvarded summary judgment in its tllvor and against the defendants FO\\ikes (see. Argent Mtge. Co., LLC v Mentesano, 79 AD3d 1079, 915 NYS2d 591 ["2dDcpt 2010]; Fed. Home Loan ~1tge. Corp. v Karastat1tis, 237 AD2d 558, supra). Accordingly, the defendants Fowkes' answer is stricken. The branch or the instant motion wherein the plaintiff seeks an order amending the caption by substituting Mike Mazzar, Natalie Sheppard and Cheryl Bennett as party defendants for John Doe #1 through John Doe #3, and excising the fictitious defendants sued herein as John Doc #4 through John Doe #IL is granted pursuant to CPLR 1024. 8y its suhmissions, the plaintiff estahlished the basis for this relief (see, Flagstaf Bank )' Bellaj;ore, 94 ;\D3d 1044. 943 NYS2d 551 [2d Dcpt 20 12J; Neighborhood HlIllS. Servs. N. Y. Cily, file . ¢. Me/lzer. 67 AD3d 872, supra). All future proceedings shall be captioned accordingly. By its moving papers, the plaintiff further established the default in answering on the part of the newly substituted defendants. Mike Mazzar, Natalie Sheppard and Cheryl Bennett, [* 6] Valley Natl. Bank v Fowkes Index No.: 32875-10 Pg.6 never interposed ,lIls\vers to the complaint (see, RP API, 9 1321 ~f1/;"BC Balik USA, lV.A. v [{o/dall, 80 AD3d 566, 914 NYS2d 647 [2d Dept 20 II]. Emigrallt Savs. Bank v Sia, 20 l2 NY Slip Op 31854U, supra). Accordingly, the debults of all such defendants are fixed and determined, Since the plaintiff has been awardcd summaryjudgmcnt against the defendants Fowkes, and has establishcd a default in answering or appearing by lhe rcma1l1ing del't:ndants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see, RPAPL § 1321; Ocwen Fed. Bank FSB v ,"filler. 18 AD3d 527. 794 NYS2d 650 [2d Dept 2005]; Vt. Fed. Balik v Cltase. 226 AD2d 1034,641 NYS2d 440 [3d Dcpt 1996]; Balik otE. Asia, Ltd. v Smitlt. 20 IAD2d 522. 607 NYS2d 431 [2d Dept 19941) since these ddcndants The plaintiffs request that the notice ofpendency and verified complaint Jiled herein on September 3, 2010 be amended nunc pro tunc to reflect that MERS as nominee l(x Continental is the correct name of the assignor, instead of Countrywide, is granted (see, CPLR 2001; Balik ofSaffolk Coullty vAll Shores Wltolesale Foods, Inc., 90 AD3d 530, 455 NYS2d 33 [2d Dcpt 1982]). By its submissions, the plaintitT demonstrated that the inclusion of Countrywide in the notice of pendency and the complaint was due to a scrivener's errOL and no prejudice has been shown to any of the defendants. The plaintiff's request for the costs of this motion is denied without prejudice, leave to renew upon proper documentation for costs at the time of submission of the judgment. Accordingly. this motion by the plaintiff is determined as indicated above. The proposed order appointing a referee to compute pursuant to RPAPL § 1321 has been signed simultaneously herewith as modifi.ed by the Court. Dated; I-Ion JOHN .I l, FINAL DISPOSITION X NON-FINAL t" " vJr. .iOl,ES. DISPOSITION JS.c.

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