US Bank N.A. v Zeidman

[*1] US Bank N.A. v Zeidman 2014 NY Slip Op 50833(U) Decided on May 27, 2014 Supreme Court, Westchester County Connolly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 27, 2014
Supreme Court, Westchester County

US Bank National Association, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST INC. 2006-AR7, MORTGAGE-BACKED NOTES, SERIES 2006-AR7, Plaintiff,

against

Robert Zeidman, AMERICAN HOME MORTGAGE, BOARD OF DIRECTORS OF BELLEFAIR COMMUNITY HOMEOWNERS ASSOCIATION, and "JOHN DOE," said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of the premises being foreclosed herein, and any parties, corporations or entities, if any having or claiming an interest or lien upon the Mortgaged Premises, Defendants.



52204/2012



Shapiro Dicaro & Barak, LLC

Attorneys for the plaintiff

200 Mile Crossing Boulevard, Suite One

Rochester, NY 14624

By NYSCEF

Law Office of Peter Spino, Jr., Esq.

Attorney for the defendant Robert Zeidman

7-11 South Broadway, Suite 308

White Plains, NY 10601

By NYSCEF
Francesca E. Connolly, J.

The following documents were read in connection with the plaintiff's motion for summary judgment, default judgment, amendment of the caption, and an order of reference:

Notice of motion, affirmations, affidavit, proposed order, exhibits1-15

Affirmation in opposition, exhibits16-18

Reply affirmation19

In this action to foreclose a mortgage, the plaintiff moves for summary judgment against the defendant Robert Zeidman, a default judgment against the remaining defendants, amendment of the caption and complaint to delete the John Doe defendants, and an order of reference.

In support of the motion, the plaintiff submits, inter alia, the California affidavit of Mireya M. Valencia, Vice President of Loan Documentation for Wells Fargo Bank, N.A., the plaintiff's servicer. Valencia avers that the plaintiff was in possession of the original promissory note prior to commencement of the action, and that Zeidman defaulted upon the repayment terms of the note, which is secured by a mortgage. The affidavit contains both a notary's jurat and a "Uniform Certificate of Acknowledgment," which states in relevant part:

On the 7th day of October, in the year 2013 before me, the undersigned, personally appeared Mireya M. Valencia, personally known to me or proved to me to be on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, that by her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument, and that such individual made such appearance before the undersigned in Santa Ana, Ca.

(Valenica Affidavit at 3).

In opposition the motion, Zeidman argues that Valencia' affidavit should be disregarded because it lacks a certificate of conformity pursuant to CPLR 2309 (c). Zeidman contends that without the affidavit, the plaintiff has not met its prima facie burden for summary judgment.

In reply, the plaintiff contends that, since the affidavit was acknowledged in the form required by New York law, no certificate of conformity was required.

DISCUSSION

The plaintiff has met its prima facie burden for summary judgment against Zeidman by establishing proof of the note, the mortgage, and Zeidman's default on the subject loan (see Redrock Kings, LLC v Kings Hotel, Inc., 109 AD3d 602, 603 [2d Dept 2013]).

Zeidman's contention that the Valencia affidavit should be disregarded because it lacks a certificate of conformity is without merit. "An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation" (CPLR 2309 [c]). To be valid in New York, an acknowledgment "may be taken in the manner prescribed either by the laws of the state of New York or by the laws of the state . . . where the acknowledgment or proof is taken" (Real Property Law § 299-a [1]). "The acknowledgment . . . if taken in the manner prescribed by such state . . . must be accompanied by a certificate to the effect that it conforms with [*2]such laws," i.e., a certificate of conformity (Real Property Law § 299-a [1]).

By implication, Real Property Law § 299-a does not require a certificate of conformity if the acknowledgment is taken in the manner prescribed by New York law (see Onewest Bank v Wright, 2013 NY Slip Op 30763[U]; at *2 [Supreme Court, Queens County 2013]; ["Because Ms. Taylor's acknowledgment conforms substantially with that of this state, a certificate of conformity is not required" (citation omitted)]).

Here, since the acknowledgment appearing at the end of the affidavit satisfies the requirements of New York Law, no certificate of conformity was required. The requirements for a valid acknowledgment are set forth in three statutes: Real Properly Law §§ 292, 303, and 306 (see Galetta v Galetta, 21 NY3d 186, 192 [2013]; [holding that these "[t];hree provisions of the Real Property Law must be read together to discern the requisites of a proper acknowledgment"]). Real Property Law § 292 states that an "acknowledgment can be made only by the person who executed the [document];" (see id. at 192 ["Real Property Law § 292 requires that the party signing the document orally acknowledge to the notary public or other officer that he or she in fact signed the document"]). Real Property Law § 303 states that "[a];n acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence, that the person making it is the person described in and who executed such instrument." Real Property Law § 306 requires that "[a]; person taking the acknowledgment . . . must indorse thereupon or attach thereto, a certificate, signed by himself, stating all the matters required to be done, known, or proved on the taking of such acknowledgment or proof; together with the name and substance of the testimony of each witness examined before him, and if a subscribing witness, his place of residence." Since the certificate of acknowledgment indicates that the Valencia affidavit was acknowledged by Valencia (i.e., the person who executed the document) as required by Real Property Law § 292, that the officer who accepted the acknowledgment had satisfactory proof that Valencia was who she represented herself to be as required by Real Property Law § 303, and since the affidavit contains a certificate of acknowledgment meeting the requirements of Real Property Law § 306, the acknowledgment is compliant with New York law, and is, therefore, admissible absent a certificate of conformity.[FN1]

Further, to the extent that Zeidman has raised the issue of standing as an affirmative defense in his answer, the plaintiff has established that it had standing by virtue of its physical possession of the original note prior to commencement (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 108 [2d Dept 2011]; ["A plaintiff has standing where it is both (1) the holder or assignee of the subject mortgage and (2) the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint"]; see also US Bank, N.A. v Collymore, 68 AD3d 752, 753 [2d Dept 2009]; ["Where, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief"]).

In opposition to the plaintiff's prima facie showing, Zeidman fails to raise an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]; ). Accordingly, the plaintiff is entitled to summary judgment.

Moreover, the plaintiff has established its entitlement to a default judgment against all remaining non-appearing defendants, amendment of the caption and complaint by deleting the John Doe defendants, and an order of reference.

Accordingly, it is hereby,

ORDERED the branch of the plaintiff's motion which is for summary judgment against the defendant Robert Zeidman is granted; and it is further

ORDERED that the branches of the plaintiff's motion which are for a default judgment against American Home Mortgage and the Board of Directors of Bellefair Community Homeowners Association are granted; and it is further

ORDERED that the branches of the plaintiff's motion which are to amend the caption and complaint by deleting the John Doe defendants are granted; and it is further

ORDERED that the caption of this action is amended and shall now read as follows:

x

US BANK NATIONAL ASSOCIATION, AS TRUSTEE

FOR CITIGROUP MORTGAGE LOAN TRUST INC. 2006-AR7,

MORTGAGE-BACKED NOTES, SERIES 2006-AR7,

Plaintiff,-against-Index No. 52204/2012

ROBERT ZEIDMAN, AMERICAN HOME MORTGAGE,

BOARD OF DIRECTORS OF BELLEFAIR COMMUNITY

HOMEOWNERS ASSOCIATION,

Defendants.

x

; and it is further

ORDERED that the branch of the motion which is for an order of reference is granted, and this action is referred to [OMITTED FOR PUBLICATION], as referee to ascertain and compute the amount due to the plaintiff herein, for principal, interest, and other disbursements advanced for by statute and in the note and mortgage upon which this action was brought, to examine and report whether or not the mortgaged premises should be sold in parcels, and that the referee make his/her report no later than 60 days from the date of this Order; and it is further.

ORDERED that the Referee appointed herein is subject to the requirements of Rule 36.2 of the Chief Judge; and it is further

ORDERED that a copy of this order with notice of entry shall be served upon all parties to this action, and upon the appointed Referee; and it is further

ORDERED that the referee is entitled to a fee of $250 for the report and $500 upon the sale, and $250 for any sale canceled on less than 24 hours' notice to the referee and $250 for any third party closing; and it is further

ORDERED that the Plaintiff shall make application for Judgment of Foreclosure and Sale within six (6) months of this Order of Reference, unless extension is granted by the Court for good cause shown; and it is further

ORDERED that the referee shall, within thirty (30) days, complete and submit to the County Clerk and a copy to the chambers of the undersigned, the "Surplus Monies Form" available at http://www.nycourts.gov/FORMS/SurplusMoniesFormFillable.pdf; and it is further

ORDERED that all other relief requested but not decided herein, is denied.

This constitutes the decision and order of the Court.

Dated:White Plains, New York

May 27, 2014

_____________________________________HON. FRANCESCA E. CONNOLLY, J.S.C. Footnotes

Footnote 1:The Court notes that the Valencia affidavit was taken by a California notary public. An acknowledgment made in another state will be recognized within this State if it is taken by, among others, a notary public acting within his of her territorial jurisdiction (see Real Property Law § 299 [3]).