Indymac Fed. Bank, FSB v Garcia

[*1] Indymac Fed. Bank, FSB v Garcia 2014 NY Slip Op 50256(U) Decided on February 26, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2014
Supreme Court, Queens County

Indymac Federal Bank, FSB, Plaintiff,

against

Wilfredo Garcia, Mortgage Electronic Registration Systems, Inc., as Nominee for Indymac Bank F.S.B. Criminal Court of the City of New York; New York State Department of Taxation and Finance; City of New York Environmental Control Board; City of New York Parking Violations Bureau, Defendants.



20049/08

Bernice D. Siegal, J.

The following papers numbered 1 to 12 read on this motion for an order awarding plaintiff summary judgment against answering defendant and to strike the answer interposed by defendant; awarding plaintiff default judgment against the remaining defendants; appointing a referee to compute the sum due and owing to plaintiff; and amending the caption.

PAPERS

NUMBERED

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

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

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

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

Plaintiff moves summary judgment against the answering defendant and default judgment against the remaining defendants and for an Order of Reference appointing a Referee and amending the caption. As more fully set forth below, Plaintiff's motion is granted.

[*2]Facts

Plaintiff brought the within action to foreclosure a mortgage, held by Plaintiff, for the premises known as 86-21 102nd Road, South Ozone Park, New York 11420. ("Premises".) Plainitff submitted the affidavit of Caryn Edwards, an assistant secretary of OneWest Bank, FSB, holder and servicer of the subject loan for Indymac Federal Bank FSB.

On or about August 7, 2006, Plaintiff's predecessor advanced to defendant Wilfredo Garcia ("Garcia" or "Defendant"), the sum of $475,200. Garcia executed and delivered to Plaintiff's predecessor a note and mortgage. It is undisputed that Garcia breached his obligations under the terms of the note and mortgage by failing to make the monthly payments commencing on February 1, 2008.

Garcia's answer contains defenses pursuant to GBL §349 and common law fraud.

Discussion

A plaintiff seeking foreclosure must establish that it was the owner or holder of the note and mortgage at the time that it commenced the foreclosure action (see Mortgage Elec. Registration Sys. v. Coakley, 41 AD3d 674 [2nd Dept. 2007]; Federal Natl. Mtge. Assn. v. Youkelsone, 303 AD2d 546 [2nd Dept., 2003]; see also, Wells Fargo Bank, N.A. v. Marchione, 69 AD3d 204 [2nd Dept., 2009]). A plaintiff may do so by demonstrating that it was the assignee of the mortgage and the underlying note or the assignee of the mortgage and by indorsement the holder of the note at the time that the action was commenced (see Federal Natl. Mtge. Assn. v. Youkelsone, 303 AD2d at 546 [2nd Dept.2003]; First Trust Natl. Assn v. Meisels, 234 AD2d 414 [2nd Dept. 1996]; Slutsky v. Blooming Grove Inn, Inc., 147 AD2d 208 [2nd Dept.1989].) Plaintiff has met this burden.

In order to establish prima facie entitlement to summary judgment in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of default ( see, Capstone Business Credit, LLC v. Imperia Family Realty, LLC, 70 AD3d 882 [2nd Dept. 2010].) Plaintiff must also prove the mailing of all statutory required notices. Proper service of the RPAPL 1304 Notice is a condition precedent to the commencement of a foreclosure action. ( Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95 [2nd Dept 2011]; First National of Chicago v Silver, 73 AD3d 162 [2010].) Should those requirements be met, the burden would then shift 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" (Capstone, supra quoting Mahopac Natl. Bank v. Baisley, 244 AD2d 466 [2nd Dept., 1997], lv dismissed 91 NY2d 1003[1998].) IndyMac Bank FSB submitted proof that it held the mortgage and note at the time of commencement [FN1] of the within action thereby establishing standing. (see Federal Natl. Mtge. Assn. v. Youkelsone, 303 AD2d at 546 [2nd Dept.2003]; First Trust Natl. Assn v. Meisels, 234 AD2d 414 [2nd Dept. 1996]; Slutsky v. Blooming Grove Inn, Inc., 147 AD2d 208 [2nd Dept.1989].)

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. quoting Mahopac Natl. Bank v. Baisley, 244 AD2d 466 [2nd Dept., 1997], lv dismissed 91 NY2d 1003[1998].) The plaintiff established, [*3]prima facie, its entitlement to judgment as a matter of law by submitting the affidavit of Caryn Edwards, proof of the note and mortgage, Notice of Default and 90-Day Notice.

In opposition, Garcia failed to submit an affidavit, but merely seeks to rely upon the affirmation of his attorney.

Counsel for Garcia initially contends that summary judgment is premature as discovery remains outstanding. However, a party may not "rely upon mere hope that evidence sufficient to defeat summary judgment may be uncovered during the discovery process." (Piltser v. Donna Lee Management Corp., 29 AD3d 973 [2nd Dept 2006]; Baron v. Newman, 300 AD2d 267 [2nd Dept 2002].) Furthermore, Garcia failed to establish that he has submitted discovery demands during the six years this action has been pending.

Defendant also asserts an affirmative defense under General Business Law §349. Defendant argues Plaintiff induced Garcia into a loan that was against his interests and that violated General Regulations of the Banking Board of the State of New York by misrepresenting the cost of the loan including failing to provide a "Good Faith Estimate." A claim under GBL § 349 is subject to a three-year statute of limitations. (CPLR §214(2); see Corsello v. Verizon New York, Inc., 18 NY3d 777, 787 [2012].) Furthermore, Garcia's claim accrued when he was injured by the alleged deceptive act, not when he learned that he had been deceived. (Id. at 788—90, citing Gaidon v. Guardian Life Ins. Co. of Am., 96 NY2d 201, 210 [2001].) In the within action, the alleged "deceptive" acts took place on August 7, 2006, when the loan was originated, however, the Defendant did not allege a violation of GBL §349 until August 27, 2009, after the statute of limitations had already expired. Accordingly, Defendant's affirmative defense and counterclaim with respect to GBL §349 is dismissed.

Even if the Statute of Limitations had not expired, Garcia's GBL §349 defense is without merit. GBL allows a private right of action by any person who has been injured by a violation of the section.(Emigrant Mortg. Co., Inc. v. Fitzpatrick, 95 AD3d 1169, 1171 [2nd Dept 2012]; see General Business Law § 349[h]) "To assert a viable claim under General Business Law § 349(a), a [party]must plead that (1) the challenged conduct was consumer-oriented, (2) the conduct or statement was materially misleading, and (3) damages." (Lum v. New Century Mortg. Corp., 19 AD3d 558, 559 [2nd Dept 2005] citing Stutman v. Chemical Bank, 95 NY2d 24 [2000].) Garcia failed to proffer evidence to raise a triable issue of fact. Plaintiff purchased the loan that plaintiff admittedly has defaulted upon and Plaintiff is simply enforcing its right to foreclose on said defaulted mortgage. Furthermore, "the fact that the plaintiff sought and received a loan that he allegedly could not afford does not mean that he can now proceed on a General Business Law] Section 349 claim against the party that made his purported mistake possible." (Hayrioglu v. Granite Capital Funding, LLC, 794 F. Supp. 2d 405, 413 [E.D.NY 2011]; Patterson v. Somerset Investors Corp., 96 AD3d 817 [2nd Dept 2012].) In the within action, the plaintiff demonstrated that the terms of the subject mortgage loan were fully set forth in the loan documents, and that no deceptive act or practice occurred in this case. (See Shovak v Long Is. Commercial Bank, 50 AD3d 1118 [2nd Dept 2008].)

Garcia also argues a "common law" cause of action for fraud. Specifically, Garcia contends that his attorney at the closing, allegedly chosen by the real estate and mortgage broker, failed to insure that the mortgage was fixed. Garcia also contends he had been promised, by the mortgage broker and bank representative, that the mortgage would be fixed, but instead he was given a variable mortgage. "The elements of a cause of action sounding in fraudulent inducement are "representation [*4]of a material existing fact, falsity, scienter, deception and injury." (Dalessio v. Kressler, 6 AD3d 57, 61 [2nd Dept 2004] citing Channel Master Corp. v. Aluminum Limited Sales, Inc., 4 NY2d 403 [1958].) Furthermore, defendant's allegations are conclusory and unsupported by factual assertions (See Mancuso v. Rubin, 52 AD3d 580 [2nd Dept 2008].) Here, as Garcia's answer contains only "bare and conclusory allegations, without any supporting detail, it fails to satisfy the requirements of CPLR §3016(b)." (IndyMac Bank, F.S.B. v. Vincoli, 105 AD3d 704, 707 [2nd Dept 2013]; Sargiss v Magarelli, 50 AD3d 1117 [2nd Dept 2008].)

Conclusion

For the reasons set forth above, Plaintiff's motion is granted.

Submit Order.

Dated:February 26, 2014___________________________

Bernice D. Siegal, J. S. C. Footnotes

Footnote 1:Defendant erroneously argues that Plaintiff needs to demonstrate possession of the note and mortgage prior to commencing the within action, as opposed to at the time of commencement.