Endeavor Funding Corp. v Allen

Endeavor Funding Corp. v Allen 2013 NY Slip Op 00426 Decided on January 29, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 29, 2013
Andrias, J.P., Sweeny, DeGrasse, Freedman, Richter, JJ.
9089 106712/07 590557/09

[*1]Endeavor Funding Corp., Plaintiff-Respondent,

v

Ollie Allen, et al., Defendants-Appellants, Pariser Industries, Inc., et al., Defendants. [And a Third-Party Action]




The Whittier Law Firm, New York (Charles A. Whittier of
counsel), for appellants.
Fidelity National Law Group, New York (Edward C. Kesselman
of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered April 15, 2010, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on its foreclosure complaint and dismissed defendant Ollie Allen's defenses and counterclaims, and referred the matter to a special referee for computation of damages, unanimously affirmed, without costs.

By submitting proof of the existence of a mortgage and of default, plaintiff established a prima facie case for foreclosure. In opposition, defendant failed to raise a triable issue of fact as to plaintiff's involvement in a fraud in connection with the refinancing transaction (see Deutsche Bank Natl. Trust Co. v Gordon, 84 AD3d 443 [1st Dept 2011]).

The formation of Ollie Allen Holding Company, LLC was not defective, and the company therefore was capable of taking title to real property (see Matter of Hausman, 13 NY3d 408 [2009]). Nor did defendant lack the authority to transfer title of the mortgaged property to the company.

The protections against predatory lending found in the Home Equity Theft Prevention Act (Real Property Law § 265-a) and Banking Law § 6-l are not applicable here. The $475,000 mortgage was executed in 2006, before the February 2007 effective date of [*2]
the Home Equity Theft Prevention Act, and the amount of the loan exceeded the then applicable $300,000 monetary limit of Banking Law § 6-l.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2013

CLERK