Wells Fargo Home Mtge. v Moutopoulos

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Wells Fargo Home Mtge. v Moutopoulos 2011 NY Slip Op 33374(U) December 12, 2011 Supreme Court, Nassau County Docket Number: 23730/10 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. -- - ----- - ----- -- ---- -- --- -- --- -- ---- --- - -- ----- -- --- - - ----------- --- - - ----- -- ------ --- - -- ------ - - - - -- - - - - -- - - - -- [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU : PART 17 ---- x WELLS FARGO HOME MORTGAGE a division of WELLS FARGO BANK, N. A., its successors and/or assigns, Plaintiff DECISION AND ORDER - against - Index No: 23730/10 DIMITRIOS MOUTOPOULOS; V AS ILIA MOUTOPOULOS a/kla LISA MOUTOPOULOS; and " JOHN DOE #1" through " JOHN DOE #12 the last twelve names being fictitious and unknown to Plaintiff, the persons or parties intended being the tenants, occupants, person or corporations, if any, having or claiming an interest in or lien upon the Motion Sequence No: 001 Original Return Date: 09- 05- property, described in the complaint Defendants. - --x PRESENT: HON. JOEL K. ASARCH Justice of the Supreme Court. The following named papers numbered 1 to 3 were submitted on this Notice of Motion on September , 2011 : Papers numbered Notice of Motion , Affrmation and Affidavit in Support Affidavit in Opposition The motion by plaintiff, Wells Fargo Home Mortgage , a division of Wells Fargo Bank , N. its successors and/or assigns, seeking a default judgment pursuant to CPLR 3215 against the ," [* 2] defendants Dimitrios Moutopoulos , Vasilia Moutopoulos alk/a Lisa Moutopoulos John Doe #1" alk/a Lisa Vassilou; and " John Doe #2" alk/a Steve Moutopoulos; a declaration that plaintiff is owner and holder of an equitable mortgage upon the propert; and a decree to quiet title against the defendants , is granted in part. The instant motion arises out of an underlying action commenced under Article 15 of the RP APL to declare that the plaintiff holds an equitable mortgage and to compel the defendants to re- execute a certain unecorded mortgage and the unrecorded consolidation agreement. The plaintiff commenced this action by filing a Summons and Complaint with the County Clerk of Nassau County on December 31 , 2010. Process was personally served upon Vasilia Moutopoulos , Steve Moutopoulos and Dimitrios Moutopoulos , by delivering copies ofthe Summons and Complaint with Lisa Vassilou , a person of suitable age and discretion , at the defendants ' dwellng place (and the encumbered real property) and mailing copies of the process to the defendants. FACTS The Moutopoulos defendants , specifically Dimitrios and Vasilia (aik/al Lisa) Moutopoulos acquired a fee simple interest in the real property located at 311 Dorchester Road , Garden City South , New York 11530 , and legally described as Section 33 , Block 491 , Lot 446 in the County of Nassau , from Anthony Riggi and Maria Riggi by a deed dated May 15, 2008. Such deed is recorded in the Nassau County Clerk' s offce in Liber 12401 , p. 0834. According to plaintiff, on or about May 14 , 2008 , the Moutopouloses executed certain mortgage instruments involving a first mortgage given by Anthony Riggi and Maria Riggi to JP Morgan Chase Bank , securing the amount of$353 000 , and a second mortgage given by Dimitrios and Vasilia Moutopoulos to Wells Fargo Bank in the amount of$318 291.21. Both mortgages were [* 3] consolidated pursuant to a Consolidation Modification and Extension Agreement (" CEMA" ) and such was to be recorded in the Nassau County Clerk' s office as a single lien in the amount of $640 000. Plaintiff bank also tendered the sum of $318 291. 21 to the Moutopouloses. The foregoing documents (in addition to the corresponding promissory notes) were executed in the Law Office of Alex Constantopes , P. mortgage documentation was to be fied , the agent for the plaintiff bank. After execution , the with the Nassau County Clerk; however it was later discovered that the second mortgage and CEMA were never fied. The plaintiff was unable to locate the original documents as they were either lost or misplaced. As a result , the plaintiff issued a demand to the defendants in December 2010 , by way of the underlying Summons and Complaint to re-execute the mortgage documents. The Summons and Complaint was served on the borrower defendants by leaving the same with a person of suitable age and discretion at the subject premises on Januar 6 , 2011. Defendant Lisa Vassilou John Doe , #1 " , daughter - in- law of Dimitrios and Vasila Moutopoulos , and wife of Steve Moutopoulos John Doe , #2" , received service on behalf of the foregoing named defendants as well as on her own behalf. On January 10 2011 , the plaintiff also mailed the same to each pary (with the exception of Lisa Vassilou) at the subject property. Proof of service was fied on January , 2011 and more than fort days have elapsed. The defendants did not respond nor did they answer the complaint. The instant motion was filed in August 2011 , to be heard before this Cour on September 5 2011. The defendants received notice as the moving papers were served on each of them by mail at the subject residence of311 Dorchester Road , Garden City South , NY 11530. As of this date , the defendants have not answered or appeared in response to this motion. [* 4] PROCEDURE Pursuant to CPLR ~3215 , when a defendant has failed to appear , plead or proceed to trial of an action reached and called for trial , or when the court orders a dismissal for any other neglect to proceed , the plaintiff may seek a default judgment against him or her. The record indicates that the defendants were properly served in accordance with the provisions set forth in CPLR ~308 , as evidenced by the affidavits of service in the record. CPLR ~308(l) and (2) require that personal inter alia by delivering the summons and complaint service upon a natural person shall be made, within the state to the person to be served; or by delivering the summons and complaint within the state to a person of suitable age and discretion at the actual dwelling place , place of business or usual place of abode of the person to be served and by mailing a copy of the process to the person to be served at his or her last known residence. As to the instant motion , the plaintiffs were not required to give such notice since the defendants did not appear in the action , and the motion for a default judgment is being made less than one year after the default. (see JajJery v. MacMilan Webb Enterprises, Inc. 27 AD3d 422 Dept 2006J). Notwithstanding, the plaintiff served a copy of the instant motion by mail to each defendant at the subject premises and their last known residence. None of the defendants have appeared in response to the process or the motion. Accordingly, that portion of the motion seeking entry of a default judgment pursuant to CPLR ~32l5 against the defendants Dimitrios Moutopoulos Vasilia Moutopoulos alk/a Lisa Moutopoulos #2" alk/a Steve Moutopoulos John Doe #1" alk/a Lisa Vassilou; and " John Doe is granted. As the defendants have defaulted , this Court wil now consider the relief requested by the [* 5] plaintiff. Regarding the issue of an equitable mortgage , a court wil impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of propert is to be held or transferred to secure an obligation (see VilageoJPhiladelphiav. FortisUSEnergyCorp. (4thDept2004J; v. Tornatore Bruno 12 AD3d 1115 1193 (4th Dept 2008)). 48AD3d Furher, New York has long recognized that " (a)n equitable mortgage may be constituted by any writing from which the intention so to do may be gathered , and an attempt to make a legal mortgage which fails for want of some solemnity, is valid in equity, * * * a specific lien upon land * * * and that an equitable mortgage thus created" (see v. FD.lC Five Star Management, Inc. 258 AD2d 15 (1st Dept 1999)). Here , the evidence indicates that the parties intended to execute instruments purporting to be mortgages and Notes to be secured by the real property. However , the documentation has noted deficiencies. For example , on the signature page of the CEMA , while bearing the signatures of both Dimitrios and Vasilia Moutopoulos , there is an unsigned notary acknowledgment and another notary acknowledgment referrng to a " Teresa Meyer" (sic). Additionally, the mortgage referencing the amount of $640 00.0 bears the signature of Dimitrios and Vasila Moutopoulos , where the corresponding Note only bears the signature of Dimitrios Moutopoulos . Provisions of a mortgage that set forth that if there is more than one mortgagor , each shall be separately liable , are not sufficient to allow a promissory note , signed by only one mortgagor , to be secured by a jointly executed mortgage (Coolidge East Equities, LP Babcock 283 AD2d 968 ( 4th Dept 2001)). Here , the relevant language in the subject instrument provides: Lender may enforce Lender s rights under this Security Instrument as Borrower, each of [* 6] us is fully obligated to keep all Lender s rights under this Security Instrument against each of us individually or against all of us together... However , if one of us does not sign the Note... that Person is signing this Security Instrument only to give that Person s rights in the Property to Lender under the terms of this Security Instrument; ... that Person is not personally obligated to pay the Sums Secured... " ( see Wells Fargo Mortgage 13). Based on the foregoing, the Note was only signed by one part executed. Therefore , although the mortgage was jointly the Note cannot be secured by the mortgage as executed. Moreover , there is no evidence that the defendants actually received the $318 , 291.21 in mortgage proceeds. This Court recognizes that there may have been an intent to create a mortgage , but additional evidence is required to evince the proper terms and to bind the proper paries. Accordingly, after due deliberation , it is ORDERED , that the defendants Dimitrios Moutopoulos and Vasilia Moutopoulos alk/a Lisa on January 18, Moutopoulos , and the plaintiff, shall appear before the undersigned at this Court 2012 at 9:30 a. m. at the cOUlihouse , 100 Supreme Court Drive , Mineola , New York 11501 , for a hearing where both paries wil produce sufficient evidence to enable the Court to make a determination as to whether the plaintiff is entitled to a declaration as sought in the moving papers. If such evidence uncovers that the defendants have indeed received proceeds from a mortgage encumbering the subject residence and for the benefit of the home ownership, this Court wil then compel the defendant Moutopouloses to re-execute the mortgage documents and such other relief as may be appropriate; and it is furher ORDERED , that the plaintiff shall cause this Order to be served pursuant to CPLR 308(1) or (2) upon all defendants within FIFTEEN (15) days of its issuance and shall fie with the Court prior to the hearing date. proof of service [* 7] The foregoing constitutes the Decision and Order of the Cour. Dated: Mineola, New York December 12 2011 ENTER: 1 ELK. ASARCH J.S' Copies mailed to: DEC 13 2011 The Hopp Law Firm , LLC Attorneys for Plaintiff Dimitrios Moutopoulos and Vasilia Moutopoulos Defendants Pro Se, NTEReD in default NASSAU COUNTY COUNTY CLERK' OFFIC::'

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