HSBC Bank USA, N.A. v Haque
Annotate this CaseDecided on January 12, 2016
Supreme Court, Queens County
HSBC Bank USA, National Association as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates Series 2006-AR10, Plaintiff,
against
Mohammed M. Haque; AFRIN ARA HAQUE; WELLS FARGO BANK, N.A.; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; PORTFOLIO RECOVERY ASSOCIATES, LLC; UNIFUND CCR PARTNERS; CRIMINAL COURT OF THE CITY OF NEW YORK; CAPITAL ONE BANK (USA) NA; CAPITAL ONE BANK; DISCOVER BANK; HERITAGE ASSET MANAGEMENT INC; CITIBANK (SOUTH DAKOTA), N.A.; NEW CENTURY FINANCIAL SERVICES, INC.; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; MIDLAND FUNDING, LLC; NORTH FORK BANK; VALLEY NATIONAL BANK; TARGET NATIONAL BANK; HOUSEHOLD BANK (SB), N.A.; CACV OF COLORADO, LLC; ERIN CAPITAL MANAGEMENT LLC; EMPIRE PORTFOLIOS, INC.; VELOCITY INVESTMENT, LLC; ARROW FINANCIAL SERVICES, LLC; CCU, LLC; INVESTMENT RETRIEVERS INC.; HSBC BANK NEVADA, N.A.; CHASE BANK USA N.A.; COLLINS FINANCIAL SERVICES, INC.; UNITED STATES OF AMERICA - DEPARTMENT OF THE TREASURY - INTERNAL REVENUE SERVICE; "JOHN DOE 1 TO JOHN DOE 25," said names being fictitious, the persons or parties intended being the persons, parties, corporations or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants.
11851/12
Robert J. McDonald, J.
The following papers numbered 1 to 12 read on this motion by plaintiff for an Order granting plaintiff summary judgment; dismissing the answer of defendants Mohammed M. Haque and Afrin Ara Hague (collectively hereinafter defendants); granting plaintiff an Order of Reference; granting permission to treat defendants' answer as a limited notice of appearance; amending the caption; ordering that all the non-answering defendants be deemed in default and said defaults be fixed and determined; and declaring that all prior adverse liens are invalid and extinguished and reforming the record to so reflect:
Papers
Numbered
Notice of Motion-Affidavits-Exhibits-Memo. of Law.....1 - 5
Affirmation in Opposition-Exhibits....................6 - 8
Affirmation in Reply-Exhibits.........................9 - 12
This is an action to foreclose a mortgage encumbering property located at 31-04 96th Street, East Elmhurst, NY 11369.
Defendants entered into a note and mortgage in the amount of $362,800 with Wells Fargo Bank, N.A. on April 11, 2006 and recorded on May 12, 2006. According to the complaint, the note and mortgage were subsequently assigned to plaintiff on January 12, 2010. Based upon the record before this Court, defendants defaulted on the mortgage when they failed to make their monthly mortgage payments beginning on July 1, 2011.
Plaintiff alleges that a notice of default and a 90 day pre-foreclosure notice were mailed to defendants. Plaintiff subsequently accelerated defendants' mortgage and commenced an action to foreclose its mortgage by filing a lis pendens and a summons and complaint on June 5, 2012. Plaintiff submits affidavits of service on all of the named defendants. Defendant borrowers served an answer with affirmative defenses and counterclaims dated July 7, 2012. All other defendants are in default.
Pursuant to CPLR 3408, residential settlement conferences were held from April 26, 2013 to May 18, 2015. This matter was released from the settlement conference part as a mutually-agreeable resolution could not be reached.
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 American Airlines Federal Credit Union v Mohamed, 117 AD3d [2d Dept. 2014]; TD Bank, N.A. v 126 Spruce Street, LLC, 117 AD3d 716 [2d Dept. 2014]; Citibank, N.A. v Van Brunt Properties, LLC, 95 AD3d [2d Dept. 2012]). Upon such a showing, the burden shifts to defendants to produce evidence in admissible form sufficient to raise a material issue of fact requiring a trial.
In support of the motion for summary judgment, plaintiff submits the affirmation of counsel, Michelle L. Moshe, Esq.; a copy of the pleadings and lis pendens; copies of the affidavits of service; copies of letters sent to defendants denying their loan modification options; a copy of plaintiff's discovery responses; the affidavit of Teri L. Townsend, Vice President Loan Documentation of plaintiff; copies of the note, mortgage, and pooling and servicing agreement; a copy of the loan modification agreement; and copies of the notice of default and 90-day pre-foreclosure notice.
In the affidavit of merit, Teri L. Townsend states that based upon a personal review of plaintiff's business records, plaintiff is in possession of the note and was in possession of the note prior to commencement of this action. Defendants are in default under the terms and conditions of the note and mortgage because the March 1, 2011 and subsequent payments were not made, although sporadic payments were made and applied retroactively to the amounts due on March 1, 2011, April 1, 2011, May 1, 2011, and June 1, 2011. From March 23, 2012 defendants have made no payments. As such, the loan remains due for the July 1, 2011 payment and all payments due thereafter. Teri L. Townsend affirms that a notice of default and 90-day pre-foreclosure notice were mailed to defendants on October 2, 2011.
Plaintiff contends that it has made a prima facie showing that it is entitled to summary judgment based upon its submission of the note, mortgage, Pooling and Servicing Agreement, Loan Modification Agreement, the notice of default, and Teri L. Townsend's affidavit evidencing defendants' failure to make the contractually required loan payments.
In opposition, counsel for defendants, Soma S. Syed, Esq., contends that plaintiff failed to credit payments, miscalculated the amounts due, refused to accept payments, and violated General Business Law § 349 (the Deceptive Practices Act).
This Court finds that the complaint herein sufficiently sets forth a valid cause of action for foreclosure. Plaintiff has submitted a copy of the mortgage, note, and affidavit from Teri L. Townsend establishing defendants' default in payment. Plaintiff demonstrated proper service of the summons and complaint and showed by admissible evidence that it had standing to commence the action. Therefore, the moving papers demonstrated, prima facie, that none of the asserted defenses set forth in defendants' answer or in defendants' opposition to the motion are meritorious and plaintiff is therefore entitled to summary judgment on its claims against defendants (see State of New York v Lang, 250 AD2d 595 [2d Dept. 1998]).
The burden then shifted to defendants to establish the existence of a triable issue of fact (see State Bank of Albany v Fioravanti, 51 NY2d 638, 647 [1980]). In opposition to the motion, defendants failed to submit any evidence which would raise a question of fact.
A dispute as to the exact amount owed by defendants to plaintiff does not warrant the denial of summary judgment (see Crest/Good Mfg. Co. v Baumann, 160 AD2d 831 [2d Dept. 1990]). Such a dispute is a matter for an appointed referee to determine (see id. at 831; Johnson v Gaughan, 128 AD2d 756 [2d Dept. 1987]). Additionally, defendants' argument that plaintiff failed to accept late and partial payment is meritless. Pursuant to the terms of the mortgage, under "Covenants" Section 1, plaintiff was permitted to refuse to accept lesser payments. Accordingly, because defendants failed to bring their loan current and are still in default, plaintiff acted within its rights by failing to accept any late and partial payments that were not sufficient to bring the loan current.
Moreover, defendants' conclusory allegations regarding the deceptive practices act fail to raise a material question of fact as to whether the plaintiff engaged in deceptive or misleading practices by offering defendants a mortgage loan imposing restrictions or limitations on modifying the loan. The fact that defendants wish to modify the mortgage is not a defense to the foreclosure action, and the court may not endeavor to force an agreement upon plaintiff (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d [2d Dept. 2013]).
Accordingly, for all of the above stated reasons, the motion for summary judgment is granted and the affirmative defenses contained in the defendants' answer are stricken. The submissions further reflect that plaintiff is entitled to amend the caption to delete the "John Doe" defendants. That branch of the motion [*2]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 amounts due under the subject mortgage is also granted.
Order of reference signed contemporaneously herewith.
Dated: January 12, 2016
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
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