Wachovia Bank, N.A. v Williams

[*1] Wachovia Bank, N.A. v Williams 2007 NY Slip Op 52170(U) [17 Misc 3d 1127(A)] Decided on November 15, 2007 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 2007
Supreme Court, Kings County

Wachovia Bank, N.A., f/k/a First Union National Bank, Plaintiff,

against

Otto N. Williams, a/k/a Otto Williams, Defendant



37524/2006

Francois A. Rivera, J.

By notice of motion filed on March 26, 2007, plaintiff Wachovia Bank, N.A. (hereinafter Wachovia or plaintiff) moves pursuant to CPLR §3212 for an order granting summary judgment in their favor against defendant Otto N. Williams (Williams) and dismissing the defendant's three affirmative defenses. Defendant has appeared pro se and provided an email letter [FN1] to Wachovia which sets forth his response to the motion.

On December 7, 2006, plaintiffs commenced this action by filing a summons and verified complaint [FN2] with the Kings County Clerk's office. Issue was joined by defendant's answer, dated February 8, 2007. The complaint contains fourteen allegations of fact in support of two causes of action, namely, Williams' breach of an agreement to make payments on a promissory note, and Williams' liability for the attorney fees, costs and expenses incurred by Wachovia in the prosecution of the instant action.

Williams' answer asserts three defenses, namely, Wachovia's improper service of the complaint, his general denial of liability for the debt, and a claim that the property which secures the alleged debt is the subject of another litigation.

The motion was scheduled for oral argument on April 13, May 11, July 13 and August 17, 2007. Williams appeared pro se and advised the court during oral argument that the email [*2]letter that he sent to Wachovia was intended as his response to the instant motion [FN3]. The court offered Williams the opportunity to swear to the contents of his email response on the record. He accepted the offer and swore to the truth of the facts alleged therein.

MOTION PAPERS

Wachovia's motion papers consist of an affirmation of counsel, an affidavit of a retail credit collection officer, five annexed exhibits and a memorandum of law. The exhibits consist of a copy of the summons and complaint, and affidavit of service of the summons and complaint, a form requesting change of address information, defendant's answer to the complaint, and an account statement for attorney fees from Wachovia's counsel.

Williams' opposition consists of the statement he sent by electronic mail to Wachovia. The statement, now sworn, indicates the following salient facts: Williams co-signed a loan for his sister to purchase a home in Philadelphia. He was not contacted by the lending bank and was not aware that the loan was in default until he received the summons and complaint. After, he was served with the summons and complaint, he confronted his sister about the loan. She told him that the city of Philadelphia had torn the house down by mistake. He was never given an opportunity to work something out with the lender before being sued.

LAW AND APPLICATION

Wachovia seek summary judgment finding that Williams is liable on the two cause of actions based on his alleged failure to make monthly payments on a promissory note after April 2, 2002. Wachovia contends that this alleged failure breached the agreement and triggered Wachovia's entitlement to attorney fees incurred to enforce the agreement. Wachovia also seeks a dismissal of Williams three defenses.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate any material issues of fact from the case (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). In order to meet this burden Wachovia must submit proof of the existence of the underlying note executed by the defendant, the unconditional terms of repayment, and the defendants' failure to make payment (see generally Famolaro v. Crest Offset, Inc., 24 AD3d 604, 605 [2nd Dept 2005] citing MDJR Enters. v. LaTorre, 268AD2d 509 [2nd Dept. 2000]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez v. Prospect Hospital, supra, at 324. A failure to make that showing requires the denial of the motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 1062 [1993]).

In support of the instant motion Wachovia relies on the affirmation of their counsel, the affidavit of their retail credit collection officer, and five annexed documents. The court will address the probative value of each of these items beginning with the affirmation of plaintiff's counsel.

The affirmation relies completely on the affidavit of Ms. Alicia May, Wachovia's retail credit collection officer, and the annexed exhibits that she references in her affidavit. The [*3]affirmation also demonstrates counsel's lack of personal knowledge of the alleged transactions between the parties. However, the affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may of course, serve as a vehicle for the submission of acceptable attachment which do provide evidentiary proof in admissible form' e.g. documents, transcripts (Worldwide Assets Publishing LLC v. Karafotias, 3 Misc 3d 390 at 395 [Civ.Ct., Kings County 2005, citing Zuckerman v. City of New York, 49 NY2d 563 [1980]; see also New York central Fire Ins. Co. v. Josue, 15 Misc 3d 1144(a){NY Sup 2007]).

Ms. May's affidavit avers that she is fully familiar with the facts contained in her affidavit and has possession of all the records and documents in connection therewith. She makes references to five annexed exhibits, namely, the summons and complaint; the affidavit of service of same; a request for change of address form; Williams' answer to the complaint; and an account statement from plaintiff's counsel for attorney fees.

Ms. May alleges that First Union National Bank merged operations and assigned Williams account to Wachovia. She refers to the note and mortgage annexed to the summons and complaint which allegedly created the obligation of Williams to make payments to First Union Bank. She then avers that notice of default, demand for payment, and acceleration of the balance due under the note was duly made on Williams, and that he failed and refused to make payments to the plaintiff.

Ms. May's affidavit does not set forth the date that First Union Bank merged with Wachovia. To the extent that the promissory note and mortgage was allegedly made between First Union Bank and Williams, the court infers that the transaction which forms the basis for the instant action occurred prior to the merger. The court also infers that the business records which Ms. May describes as the William's account and which Ms. May used to become familiar with the instant matter were the records of First Union Bank.

Ms. May's affidavit does not set forth her personal knowledge of the business practice of either Wachovia or of First Union Bank. As such, she does not and cannot demonstrate a sufficient basis to make the business records of either Wachovia or First Union Bank admissible (Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term 2d & 11th Jud. Dists. 2006]). Although Ms. My does not explicitly state that any of the annexed exhibits are business records of the Williams' account, to the extent plaintiff seeks to admit them on that basis, they are not admissible (Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., supra).

Ms. May does not describe the manner that Williams was notified of his alleged default or of Wachovia's acceleration of the balance due under the note. Nor does she describe the manner in which payment was demanded of Williams. Indeed, Wachovia's motion papers do not contain copies of any documents that were allegedly used to give notice of the foregoing to Williams.

Turning to the annexed exhibits, there is no dispute that the summons, the complaint, the affidavit of service of same, and Williams' answer to the complaint are all court documents filed with the KCC. As such the court may take judicial notice of theses items and they are therefore deemed admitted (see generally Matter of Khatibi v Weill, 8 AD3d 485 [2nd Dept 2004], citing Matter of Allen v. Strough, 301 AD2d 11, 18 [2nd Dept 2002]).

The probative value of these documents in connection with the instant motion is another matter. As previously indicated, the summons and complaint are verified by Wachovia's counsel pursuant to CPLR §3020(d)(3) and not by Wachovia. As such, these pleadings may not [*4]serve as Wachovia's affidavit pursuant to CPLR §105(u). Therefore, the summons and complaint has no probative force in connection with the motion. Williams answer may serve as an adverse party admission, however, since it is, in substance, a general denial of the complaint, its content sheds no light on the merits of plaintiff's motion. The change of address form is unexplained and, as such, has no probative force.

Plaintiff relies on language contained in the note annexed to the summons and complaint to support its claim for attorney fees, cost and expenses. However, the vehicle used to admit the note is the pleading which, as previously mentioned, has no probative force. As such, the document must be independently admissible to have any probative force standing alone. Examination of the note reveals a signature purportedly of Otto W. Williams. Above the signature is the following statement.

"Each borrower acknowledges receipt of a copy of this note fully completed prior to the signing and further acknowledges that this is a sealed instrument." This language does not constitute a certificate of acknowledgment as contemplated by CPLR § 4538. An acknowledged deed or other instrument is one to which is attached a certificate of a notary public, commissioner of deeds, or other officer designated by statute that the person purporting to have executed the instrument appeared personally before the office and acknowledged that he executed it (Newman v. Newman, 192 AD2d 924 [3rd Dept 1993]). An acknowledgment involves two important elements: "the oral declaration of the signer of the document and the written certificate of acknowledgment endorsed by an authorized public officer attesting to the declaration"(Matter of Estate of O'Brien, 233 AD2d 561, 562 [3rd Dept 1996] citing Newman v. Newman, supra.).

The signature lacks an acknowledgment and as such cannot serve as prima facie evidence that the defendant executed the note.

The account statement for attorney fees received from plaintiff's counsel is probative of the fact that legal costs were incurred by Wachovia in pursuit of the instant claim. The statement, however, has no probative value on the merits of Williams' alleged breach of an agreement to make payments on a promissory note. In the absence of the alleged note in admissible form, plaintiff's claim for attorney fees, cost and expenses premised on said note cannot be established as a matter of law. Furthermore, plaintiff has not demonstrated any efforts taken to resolve the alleged debt prior to commencement of the instant action. In particular, there are no documents evidencing plaintiff's communication with the defendant about any monies allegedly due from him. In the absence of same, plaintiff did not and cannot demonstrate that litigation was necessary to procure payment of the alleged debt.

In light of the foregoing, Wachovia has not tendered evidence in admissible form demonstrating entitlement to summary judgment in its favor against the defendant as a matter of law.

Wachovia's motion to strike Williams three affirmative defenses relies on the same grounds and evidence set forth in the motion for summary judgment on liability. It therefore fails for the same reasons.

Plaintiff's motion for summary judgment is denied in its entirety.

The foregoing constitutes the decision and order of this court.

 1;-x [*5]

J.S.C. Footnotes

Footnote 1:The email letter is annexed and marked as exhibit A to Wachovia's reply papers.

Footnote 2:The complaint was verified by Wachovia's counsel pursuant to CPLR § 3020(d)(3) and contains a promissory note and a mortgage as annexed exhibits.

Footnote 3:Williams was referring to the same email that Wachovia annexed and marked as exhibit A in their reply papers