Wells Fargo Bank, N.A. v Velasquez

[*1] Wells Fargo Bank, N.A. v Velasquez 2012 NY Slip Op 52300(U) Decided on December 10, 2012 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2012
Supreme Court, Queens County

Wells Fargo Bank, N.A., as Trustee, for Carrington Mortgage Loan Trust, Series 2006-NC3 Asset Backed Pas-Through Certificates, Plaintiff,

against

Roberto Velasquez; City of New York Environmental Control Board; City of New York Parking Violations Bureau; City of New York Transit Adjudication Bureau; JPMorgan Chase Bank, N.A. successor in interest to Washington Mutual Bank, F.A., and "JOHN DOE No. 1 through JOHN DOE #10," the last ten names being fictitious and unknown to the Plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.



12909/2011

Robert J. McDonald, J.

The following papers numbered 1 to 20 were read on this motion by the plaintiff for an order striking the answer with affirmative defenses of defendant Roberto Velasquez;; granting summary judgment for the relief demanded in the verified complaint pursuant to CPLR 3212; substituting certain named defendants as necessary party defendants in stead and place of "John Doe # 1 through John Doe # 6; and appointing a referee to ascertain and compute the amount due to the plaintiff; and the cross-motion of the defendant for an order dismissing all causes of action against the defendant and cancelling the lis pendens on the ground that the plaintiff does not have standing to bring the action: [*2]

Papers

Numbered

Notice of Motion Affidavits-Exhibits....................1 - 7

Cross-Motion and Affirmation in Opposition-Affidavits ..9 - 12

Opposition to Cross-Motion and Reply Affirmation.......13 - 20

_________________________________________________________________

In this mortgage foreclosure action, plaintiff moves for an order striking the answer with affirmative defenses of defendant Robert Velasquez; granting summary judgment against defendant Velasquez on the grounds that the answer contains no valid defense and that no triable issue of fact exists; granting a default judgment against the remaining defendants who have not answered; appointing a referee to compute the sum due and owing to plaintiff, and amending the caption. Defendant Velasquez has submitted opposition to the motion and a cross-motion seeking summary judgment dismissing all causes of action asserted against him on the ground that the court has no subject matter jurisdiction as the plaintiff allegedly has no standing to sue and that the actual owner of the mortgage and note has not been named as a party to the action.

This foreclosure action pertains to the property located at 248-04 Francis Lewis Boulevard, Rosedale, New York. Based upon the record before this court, the defendant entered into a mortgage with New Century Mortgage Corporation on May 19, 2006 in the principal amount of $549,000.00. The plaintiff asserts that defendant defaulted on her mortgage when she failed to make her monthly mortgage payments beginning August 1, 2008.

The plaintiff subsequently accelerated the defendant's mortgage and brought an action to foreclose its mortgage by filing a lis pendens and summons and complaint on May 27, 2011. The defendant was personally served on June 15, 2011 by allegedly serving a person of suitable age and discretion at the defendant's residence. Defendant served a verified answer on July 1, 2011 containing a general denial and asserting that the plaintiff does not have standing to sue because it was not the legal owner of the Note and Mortgage at the time it commenced the action and, in addition, defendant asserts improper service of the summons and complaint.

A foreclosure settlement conference was scheduled by the [*3]court for August 24, 2011, however, defendant failed to appear for the conference.

In support of the motion for summary judgment, the plaintiff submits the affirmation of counsel John A. DiCaro, Esq., the affidavit of Tom Croft, Sr. Vice President of REO Carrington Mortgage Service, LLC, the mortgage loan servicing agent and attorney-in-fact of the plaintiff Wells Fargo Bank, N.A.; a copy of the Note and Mortgage; copies of the affidavits of service on all the defendants; a coy of the pleadings; a copy of the mortgage assignment; 90 day notice of intent to foreclose sent on January 26, 2011; copy of the RPAPL 1304 notices sent to the defendant with the summons and complaint; a copy of the attorney affidavit pursuant to the Administrative Order of the Chief Administrative Judge dated October 20, 2010, under AO/548/10, executed by Michael J. Chatwin, Esq.

In his affirmation, plaintiff's counsel asserts that at the time the action was commenced it was the holder of the Note and Mortgage. The record contains copies of the indorsed note, mortgage and assignment of mortgage. Defendant Roberto Velasquez is named as the fee owner of the premises as well as the mortgagor. Counsel submits evidence that the plaintiff was served with a 90 day notice pursuant to RPAPL 1304 and with all notices in compliance with RPAPL 1303.Counsel states that the defendant's answer contains only a general denial but does not affirmatively assert that the delinquent payments required by the Note and Mortgage have been made.

The affidavit of Tom Croft, Sr., Vice President of Carrington Mortgage Services LLC, the mortgage loan servicing agent for the plaintiff, states that he reviewed the entire file and sets for the sums due and owing to the plaintiff. He states that the mortgage was originally given by Roberto Velasquez to New Century Mortgage on May 19, 2006 in the principal sum of $549,000.00. Said mortgage was recorded on June 15, 2006 in the Queens County Office of the City register. The mortgage was transferred by assignment to Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, the plaintiff herein on June 1, 2010 and recorded on January 28, 2011. As stated above this action was commenced subsequent to the date of the assignment. Mr. Croft states that plaintiff has failed to make his monthly payments on the mortgage commencing August 1, 2008 and as a result the amount due and owing including interest as of February 20, 2012 is $730,933.17. [*4]

Counsel states that based upon the evidence submitted the plaintiff has made a prima facie showing that it is entitled to a judgment of foreclosure and sale. Further counsel asserts that the plaintiff was lawfully served with a summons and complaint and that the court therefore has personal jurisdiction. In addition, the plaintiff asserts, contrary to the defendant's contention, that it had standing to bring the action by presenting sufficient evidence of the written assignment and transfer of the note and mortgage to the plaintiff prior to the commencement of the action.

It is well settled that a Plaintiff in a mortgage foreclosure action establishes a prima facie case of entitlement to summary judgment through submission of proof of the existence of the underlying note, mortgage and default in payment after due demand (see Witelson v Jamaica Estates Holding Corp. I, 40 AD3d 284 [1st Dept. 2007]; Marculescu v Ouanez, 27 AD3d 701 [2d Dept. 2006]; US. Bank Trust National Assoc. v Butti, 16 AD3d 408 [2d Dept. 2005);Layden v Boccio, 253 AD2d 540 [2d Dept.1998); State Mortgage Agency v Lang, 250 AD2d 595(2d Dept.1998]). Upon such a showing, the burden shifts to the defendant to produce evidence in admissible form sufficient to raise a material issue of fact requiring a trial.

This Court finds that the plaintiff's submissions are sufficient to establish its entitlement to summary judgment against defendant mortgagor Roberto Velasquez. The moving papers demonstrated, prima facie, that none of the asserted defenses set forth in the answer of defendant are meritorious and that plaintiff is entitled to summary judgment on its claims against Velasquez (see EMC Mortg. Corp. v. Riverdale Assocs., 291 AD2d 370 [2d Dept. 2002]; State of New York v Lang, 250 AD2d 595 [2d Dept. 1998]). As stated above, the complaint herein sufficiently sets forth a valid cause of action for foreclosure. The affidavit of service of the process server constitutes prima facie evidence that Velasquez was validly served pursuant to CPLR 308(2) (see Bank of NY v Segui, 68 AD3d 908 [2d Dept. 2009; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524 [2d Dept. 2008]; Jefferson v Netusil, 44 AD3d 621 [2d Dept. 2007]). Moreover, the defense of lack of personal jurisdiction was waived by the defendant's failure to move for dismissal on this ground within 60 days of interposing the answer [see CPLR 3211(e)]. Plaintiff has submitted a copy of the mortgage, note and affidavit establishing Velasquez's default in payment. The plaintiff demonstrated proper service of the summons and complaint and showed by admissible evidence that it had been properly been assigned the note and mortgage as of the date of the commencement of the action. Plaintiff demonstrated when it [*5]became the lawful holder of the note pursuant to the valid assignment of the note to it. Therefore, the moving papers demonstrated, prima facie, that none of the asserted defenses set forth in the answer of defendant are meritorious and that plaintiff is entitled to summary judgment on its claims against Velasquez (see State of New York v Lang, 250 AD2d 595).

The burden then shifted to defendant to establish the existence of a triable issue of fact (see State Bank of Albany v Fioravanti, 51 NY2d 638, 647 [1980]). In opposition, defendant submits an affirmation and memo of law from his counsel Roberto L. Pagan-Lopez, Esq., asserting that the assignment from New Century to Wells Fargo as Trustee for Carrington Mortgage Loan Trust is invalid as the trust closed in August 2006. Counsel also asserts that the assignments provided by the plaintiff do not contain an assignment to MERS and that the assignment signed by Tom Croft was robosigned.

Here, although the defendant's counsel made several allegations regarding the invalidity of the mortgage assignment, counsel has failed to provide any supporting documentation in support of his contentions. Although the defendant states that there was no MERS assignment, the plaintiff states that MERS was not involved in the loan as the original mortgagee was New Century Mortgage Corporation. The assignment which was provided by the plaintiff was valid and there is insufficient proof that robo signing was involved in this matter. Plaintiff also submitted proof indicating that Carrington Mortgage Services, LLC has power of attorney to act as attorney in fact for New Century Mortgage Corporation. This court finds therefore, that the defendant's assertions in opposing the motion are without merit as the attorney's affirmation does not provide a sufficient evidentiary basis to raise a material issue of fact as to personal jurisdiction or the validity of the note, the mortgage or the assignment.

Accordingly, this court finds that the conclusory allegations of the Affirmative Defenses set forth in defendant's answer are insufficient to defeat the motion for summary judgment. Therefore, the motion for summary judgment is granted and the affirmative defenses contained in the defendant's answer are stricken. The submissions further reflect that Plaintiff is entitled to amend the caption to substitute Harriet Campbell, Keith Campbell, Jose Medina, Roxanne Medina, Marjorie Priestly, and Donovan Grahm as party defendants. That branch of the motion for a default judgment against the remaining defendants who have not answered or appeared herein is granted. Plaintiff's further application for the appointment of a referee to compute the [*6]amounts due under the subject mortgage is also granted.

For the reasons stated above, defendant's cross-motion for an order dismissing the plaintiff's complaint is denied in its entirety.

Settle order on Notice.

Dated: December 10, 2012

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.