Wells Fargo Bank, N.A. v Boller

[*1] Wells Fargo Bank, N.A. v Boller 2014 NY Slip Op 50508(U) Decided on March 24, 2014 Supreme Court, Saratoga County Nolan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2014
Supreme Court, Saratoga County

Wells Fargo Bank, N.A., as Successor by Merger to WELLS FARGO HOME MORTGAGE, , Plaintiff,

against

James E. Boller a/k/a JAMES BOLLER, DIANNE BUNZEY BOLLER a/k/a DIANNE L. BOLLER a/k/a DIANNE BUNZEY, LOGGERS EQUIPMENT SALES, INC, HUDSON RIVER CREDIT UNION and "JOHN DOE No.1" to "JOHN DOE No.10", Defendants.



20112365



APPEARANCES:

MCCABE, WEISBERG & CONWAY, P.C.

Attorneys for Plaintiff

145 Huguenot Street, Suite 499

New Rochelle, New York 10801-5252

LAW OFFICES OF RONALD J. KIM

Attorneys for Defendant James E. Boller

P.O. Box 318

Saratoga Springs, New York 12866

OVERTON, RUSSELL, DOERR AND DONOVAN, LLP

Attorneys for Defendant Hudson River Credit Union

19 Halfmoon Executive Park Drive

Clifton Park, New York 12065

Thomas D. Nolan, J.

In this mortgage foreclosure action, plaintiff moves for an order granting summary judgment against defendant James E. Boller, an order appointing a referee to compute, an order directing entry of a default judgment against the non-answering defendants and an order amending the caption to delete defendant Dianne Bunzey Boller and substituting Jamie Boller for "John Doe #1", and deleting all other defendants Doe. Defendant James E. Boller opposes and cross-moves for an order, inter alia, directing further discovery and compelling plaintiff to respond to discovery demands previously served upon it and requesting the court, in considering the plaintiff's motion, to take judicial notice of a document prepared by the U.S. Department of Housing and Urban Development's Office of Inspector General titled, "Memorandum of Review: Wells Fargo Bank Foreclosure and Claims Process Review".

Background

In January 2000, defendants James E. Boller and Dianne Boller borrowed $93,780.00 from Capitaland Funding Group, LLC (Capitaland) and signed a promissory note agreeing to repay the lender over 30 years with annual interest of 9% in monthly installments of $754.58. To secure the loan, the borrowers executed a mortgage for $93,780.00 covering real property known as 148 Bunzey Mountain Road, Town of Hadley, Saratoga County. Capitaland endorsed the note to Crossland Mortgage Corp., its successor and assigns. The mortgage was recorded in the Saratoga County Clerk's Office. Wells Fargo Home Mortgage, Inc., successor to Crossland, recorded in March 2003 an "affidavit of missing assignment with indemnity" stating that it is "the present holder of the certain note and mortgage given by [the Bollers]" covering the Bunzey Mountain Road property and that it "has not been able to obtain an Assignment [from Capitaland] or locate an individual, agent, corporation or other entity with the authority to provide said Agreement". Plaintiff is successor by merger to Wells Fargo Home Mortgage, Inc.

In 2010, defendants Boller defaulted on the note. In July 2011, plaintiff commenced this action in which it alleged a balance due of $90,351.57 with interest from June 2010. Defendants James Boller (hereinafter defendant) answered the complaint in which he admitted that he executed the note and mortgage and asserted affirmative defenses including plaintiff's lack of standing to sue and a claim that loan agreement and mortgage are unconscionable. The settlement conference procedure required by CPLR 3408 was held, but settlement did not occur.

Pending Motion

In support of its motion, plaintiff submits the pleadings which include a copy of the note, recorded mortgage, recorded affidavit of missing assignment, agreement of merger between Wells Fargo Home Mortgage, Inc. and plaintiff, an attorney's affirmation detailing the underlying mortgage transaction and disputing the merits of defendant's affirmative defenses, the affidavit of a bank officer outlining defendant's default and stating that plaintiff, in June 2011 prior to commencement, possessed the endorsed note and mortgage and a second attorney's affirmation detailing compliance with CPLR 3408.

In opposition and in support of the cross motion, defendant submits an attorney's affirmation in which it is asserted that plaintiff's supporting proof fails to prima facie establish its standing to pursue foreclosure, that plaintiff's discovery responses to defendant's demands are inadequate and incomplete, and that the court should take judicial notice of alleged deficiencies and inadequate documentation and procedures in other foreclosure actions plaintiff commenced as detailed in the report of the HUD inspector general. [*2]

In opposing the cross motion, plaintiff submits an attorney's affirmation disputing the adequacy of defendant's opposing papers and objecting to the court's consideration of HUD's findings on its claim that they are not relevant to the legal and factual issues of this action.

Discussion and Analysis

First addressed is defendant's cross motion. CPLR 3212 (f) permits a court to deny or hold in abeyance a summary judgment motion pending further discovery when an evidentiary showing, as opposed to mere hope, speculation or conjecture, demonstrates that essential opposing facts lie within the exclusive knowledge of the moving party or another party and identifies those allegedly "salient" facts which are likely to be revealed in discovery. Stubbs v Ellis Hospital, 68 AD3d 1617 (3rd Dept 2009); Bevens v Tarrant Mfg. Co., 49 AD3d 939 (3rd Dept 2008); Odorizzi v Otsego Northern Catskills Bd. of Coop. Educ. Servs., 307 AD2d 490 (3rd Dept 2003); Firth v State of New York, 287 AD2d 771 (3rd Dept 2001), affd of other grounds 98 NY2d 365 (2002).

Although discovery has not been completed and many of plaintiff's discovery demands are still outstanding, the disposition of the summary judgment motion hinges on legal, not factual, issues which can be determined based on the record now before the court.

Moreover, the HUD findings which were the result of claims made that many foreclosure plaintiffs, including plaintiff, were guilty of submitting "robosigned" affidavits in support of their actions have no relevance to this particular foreclosure action. The report includes no evidence that plaintiff engaged in any deceptive acts or improper practices such as "robosigning" in this action. The findings of the HUD report, even if the court were to take judicial notice of them, do not standing alone, defeat plaintiff's motion. see Citimortgage v Bustamante, 107 AD3d 752 (2nd Dept 2013) [Allegations of improper practices by bank's agents in other matters does not meet defendant's burden of establishing fraud, misrepresentation, or other misconduct by plaintiff in case at bar]; Wells Fargo, N.A. v Levin, 101 AD2d 1519 (3rd Dept 2012) [Law firm's documented improprieties in prosecuting other foreclosure actions does not establish that firm engaged in fraudulent or deceptive practices in case at bar]; Citimortgage v Vatash, 41 Misc 3d 1236 (A) (Sup Ct, Suffolk County 2013) [Defendant's entitlement to remuneration based on plaintiff bank's settlement of litigation in other foreclosures does not constitute proof that plaintiff engaged in deceptive acts or improper practices regarding the pending action to estop it from pursing foreclosure].

Defendant's cross motion is denied, without costs.

Now, plaintiff's motion. A mortgagee establishes entitlement to summary judgment in a foreclosure action by "submitting the mortgage and unpaid note, along with evidence of default in payments" and in that event, the burden shifts "to defendants to demonstrate by competent and admissible proof that a defense existed so as to raise a question of fact". PHH Mortgage Corp. v Davis, 111 AD3d 1110 (3rd Dept 2013). The affidavit of a bank officer, based on a review of records maintained in the ordinary course of business, along with a copy of the relevant documents, here the original unpaid note, modified unpaid note and mortgage is sufficient to meet the mortgagee's threshold burden. HSBC Bank USA, N.A. v Sage, 112 AD3d 1126 (3rd Dept 2013); Charter One Bank, FSB v Leone, 45 AD3d 958 (3rd Dept 2007).

Here, plaintiff meets its threshold burden with the affidavit of its vice-president of loan [*3]documentation confirming plaintiff possessed the original endorsed note when the action was commenced and establishing that it is the assignee of the underlying mortgage based upon the "affidavit of missing assignment".

In opposition, defendant admits signing the note and mortgage and does not offer any evidence refuting plaintiff's claim that the mortgagors failed to make payments after June 2010. Defendant's affirmative defenses have been considered and found to lack merit. Again, standing has been satisfactorily established and "the terms of the note and mortgage are not so unreasonably favorable to plaintiff that no reasonable and competent person would accept them' or so inequitable as to shock the conscience'". PHH Mortgage Corp. v Davis, supra at.

Plaintiff's motion is granted, without costs. The court herewith signs the order of reference submitted by plaintiff modified to incorporate the defendants' cross motion and opposing papers and plaintiff's reply papers.

This constitutes the decision of the court. The original decision and signed order are returned to counsel for the plaintiff. All original motion papers are delivered to the Supreme Court Clerk/County Clerk for filing. Counsel for plaintiff is not relieved from the applicable provisions of CPLR 2220 relating to filing, entry, and notice of entry of the decision and order.

DATED: March 24, 2014

Ballston Spa, New York

HON. Thomas D. Nolan, Jr.

Supreme Court Justice