OneWest Bank, FSB v Filimon

[*1] OneWest Bank, FSB v Filimon 2012 NY Slip Op 52312(U) Decided on December 12, 2012 Supreme Court, Queens County Siegal, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2012
Supreme Court, Queens County

OneWest Bank, FSB, Plaintiff,

against

Rodica Filimon, Gheorghe Filimon; "John Doe" and "Jane Doe" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of the premises being foreclosed herein, Defendants.



34938/09

Bernice Daun Siegal, J.

The following papers numbered 1 to 12 read on this motion for an order striking the answer of defendant Rodica Filimon and Gheorghe Filimon, granting plaintiff summary judgment, ordering that the caption in this action be modified deleting "John Doe" and "Jane Doe", as defendants, and ordering a referee to compute pursuant to the Real Property Actions and Proceedings Law, on the ground that the said Defendant has no valid defense to the cause of action and no triable issue of fact exists in this case.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition.....................................................5 - 9

Reply.......................................................................................10 - 12

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Plaintiff OneWest Bank, FSB (hereinafter "Plaintiff") moves for an order striking the answer of Defendants Rodica Filimon and Gheorghe Filimon (hereinafter collectively "Filimons" or "Defendants"), granting Plaintiff summary judgment, ordering that the caption in this action be [*2]modified deleting "John Doe" and "Jane Doe", as defendants, and ordering a referee to compute pursuant to the Real Property Actions and Proceedings Law, on the ground that the said Defendants have no valid defense to the cause of action and no triable issue of fact exists in this case.

Facts

Plaintiff commenced, on December 31, 2009, the within action to foreclose a mortgage on property in Queens County alleging that Defendants Filimon were in default of said mortgage. On or about, January 27, 2010, Defendants appeared and filed an answer with counterclaim.

Defendants contend that Plaintiff misrepresented to the defendants, at the time of closing, that they were refinancing at 5% when in fact they were refinancing at 5.85%.

Discussion

On a summary judgment motion the court must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and determine whether there are any triable issues of fact outstanding . (Caggiano v. Cooling, 92 AD3d 634 [2nd Dept 2011].) The court must determine if the moving party's papers justify holding as a matter of law that the cause of action or defense has no merit. (Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990].) It is well established that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a material issue of fact or where the issue is arguable (see CPLR 3212; Barclay v. Denckla, 182 AD2d 658 [2nd Dept 1990];Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]; Stillman v. Twentieth Century—Fox Film Corp., 3 NY2d 395 [1957].) While all "facts must be viewed in the light most favorable to the non-moving party", mere conclusory allegations or defenses are insufficient to preclude summary judgment. (see Zuckerman v. City of New York, 49 NY2d 557 [1980].)

Once the movant establishes its prima facie entitlement to judgment, the burden shifts to the opposing parties to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action." (See CPLR §3212(b); Zuckerman, 49 NY2d at 562.)

In a foreclosure action a plaintiff must submit the mortgage and unpaid note, along with evidence of default in order to establish prima facie entitlement to summary judgment. (Capstone Business Credit, LLC v. Imperia Family Realty, LLC, 70 AD3d 882 [2nd Dept 2010].) "The burden then shifts to the defendant to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff." (Id. at 883 quoting Mahopac Nat. Bank v. Baisley, 244 AD2d 466 [2nd Dept 1997].)

Plaintiff established, prima facie, its entitlement to judgment as a matter of law. The burden the shifts to the defendants to raise a triable issue of fact. (See Alvarez v. Prospect Hosp., 68 NY2d 320 [1986].)

Truth in Lending Act

Filimons contend that Plaintiff violated the Truth in Lending Act ("TILA") in that the loan documents are misdated creating defective Notice to Cancel "NOC" and TIL Documents and that documents are not complete, clear or unambiguous because the dates on the documents stat that the loan closed on September 20, 2006 when the parties actually closed on September 21, 2006.

The purpose of TILA is to "assure a meaningful disclosure of credit terms so that the [*3]consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." (See 15 USC § 1601(a).) Section 15 USC § 1601 of TILA permits rescission on certain transactions that involve the consumer's principal dwelling. (Washington Mut. Bank v. Valencia, 92 AD3d 774 [2nd Dept 2012].)

However, for the TILA to apply the annual percentage rate for the mortgage must be ten percentage points over the yield on securities having a comparable term of maturity. The annual percentage rate on the subject loan was 5.875 percent while the U.S. Treasury Daily Treasury Yield Curve Rate on August 15, 2006 was 5.05 percent. Accordingly, "defendants have failed to demonstrate the annual percentage rate of interest at consummation for the loan transaction exceeded the statutory threshold level ( see 15 USC § 1602[aa][1][A]; Fremont Inv. and Loan v. Haley, 23 Misc 3d 1138(A), 4 [Sup. Ct. Qns Cty. 2009].) The annual percentage rate on the subject loan was 5.875 percent while the U.S. Treasury Daily Treasury Yield Curve Rate on August 15, 2006 was 5.05 percent. As 5.875 percent is substantially below 15.05 percent, Defendants' contention that TILA applies fails.

Predatory Lending

Defendant Gheorghe Filimon contends that prior to the closing he and his wife negotiated the terms of the loan with the bank at an interest rate of 5% for 10 years. Defendants contend that relying on those negotiations they signed all the documents at the closing. However, "a party who signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it." (Hutchinson Burger, Inc. v. Hutch Restaurant Associates, L.P., 2012 WL 5846329, 1 [1st Dept 2012] citing Arnav Industries, Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300 [2001]; see also Shklovskiy v. Khan, 273 AD2d 371 [2nd Dept 2000].) Here, Defendants' excuse that they had negotiated different terms prior to the closing is not a valid excuse for their failure to read the loan documents as the circumstances leading up to the closing were substantially similar to the circumstances leading up to the vast majority of closings.

Furthermore, the subject loan documents demonstrate that the principal amount of $1,240,000, was not a "high cost home loan" as of the date of the making of the subject loan on September 20, 2006, because the mortgage loans with principal amounts exceeding $300,000 were not covered by the statute in effect at that time. (See Banking Law § § 6-1 (l)(d) and 6-l(l)(e)(I) [L 2002, c 626 4 11; Tribeca Lending Corn v. B a r n , 84 AD3d 496 [1' Dept 2011].)

Therefore, Defendants' assertions of "predatory lending," even construed liberally to invoke former Banking Law § 6— l ( see L. 2007, ch. 552, § 1), fail to meet their burden because the loan at issue does not fall within the parameters of a pre-2007 amendment of New York Banking Law §6-1.

Conclusion

For the reasons set forth above, plaintiff's motion is granted in all respects.

Submit Order.

Dated : December 12 , 2012___________________________

Bernice D. Siegal, J. S. C.