Emigrant Mtge. Co., Inc. v Mullen

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Emigrant Mtge. Co., Inc. v Mullen 2012 NY Slip Op 33085(U) December 6, 2012 Sup Ct, Suffolk County Docket Number: 28285/2010 Judge: William B. Rebolini 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] Short Fonn Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Emigrant Mortgage Company, Inc., Plaintiff, -against- Motion Sequence No.: 001; MOT.D Motion Date: 3/9/12 Submitted: 5118112 Index No.: 2828512010 Mary Grace Mullen, Attornev for Plaintiff: "John Doe #1" through "John Doe #10", the last ten names being fictitious and unknown to the plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, havmg or claiming an interest in or lien upon the premises, described in the complaint, Stagg, Terenzi, Confusione & Wabnik, LLP 401 Franklin Avenue, Suite 300 Garden Ci ty, NY 11530 Defendants. Attorney for Defendant: O'Shea, Marcincuk & Bruyn, llP 250 North Sea Road Southampwn, NY 11968 Clerk of the Court Upon the following papers numbered 1 to 11 read upon this motion for summary judgment: Notice of Motion and supporting papers, 1 - 8; Answering Affidavits and supporting papers, 9 - 11; Replying Affidavits and supporting papers, 12 - 16; it is ORDERED thai this motion (001) by the plaintiff for, imer alia, an order: (I) pursuant to CPLR 3212 awarding summary judgment in its favor and against the answering defendant Mary Grace MuUen; (2) striking the answer and affirmative defenses interposed by Mary Grace Mullen; (3) pursuant to RPAPL § 1321 appointing a referee to compute amounts due under the subject ffiOitgage; (4) amending the caption by excising the defendants, sued herein as John Doe # 1through John Doe #10; and (4) awarding the costs of this motion to the plaintiff, is determined as indicated below. [* 2] Emigrant (\Iortgage \'. Mullen Index No.: 28285/2010 Page 2 The plaintiff commenced this residentIal foreclosure action by the filing of a summons and complaint on August 3, 20 10 alleging that Mary Grace Mullen (hereinafter the defendant mortgagor) defaulted In repaying a note in the principal Slim of $800,000.00. The note dated October 9,2007 provides for the repayment of principal and interest to Emigrant Mortgage Company, Inc. (Emigrant M0I1gage) in mitial monthly installments in the approximate sum of $7,467.85 for thIrty years commencing on December 1,2007. As secUlity for the loan, the defendant mongagor gave Emigrant Mortgage a mongage also daled October 9,2007 against the real property known as 108 Buell Lane. East Hampton, New York 11937. In the complaint, the plaintiff alleges, inter alia, that the defendant mortgagor allegedly defaulted under the terms of the note and mOl1gage by failrng to make monthly payments on February 1, 20 I0 despite due demand; and that, as a result, the plainti fr has elected to declare due <lndowing the entire unpaid balance of prinCIpal, together with applicable interest. Issue was joined by the defendant mOl1gagor's answer dated Apri I 5, 20 II. In her answer, the defendant mortgagor admits the execution of the subject note and mortgage, but denies the remaining allegations set forth 111 complaint. In her answer, the defendant mortgagor also asserts, 1I1teralia, as affirmative the defenses, the plaintiffs lack of capacIty to sue, the stature of frauds. the doctrine of unclean hands, documcnt<lry evidence, the protections afforded (0 the defendant by federal legislation relating to lending practices, types of mOI1gages and foreclosures, and the lack of compliance with the provIsIons of RPAPL ~ 1302. The rernarnlllg defendants have not appeared or :.lnswcred the complaint. According to the records maintained by the Court's computeril,ed database, In compl1ance with CPLR 3408 settlement conferences were held in this Court's Specialized Mortgage Foreclosure Conference Part on June 17, August 30, October 26 and November21, 20 II. At the last conference, this maHer was marked "held" and referred as an IAS case as a loan modification or other settlement had not been achieved. Accordingly, no further settlement conference is required. The plainti 1'1' now moves for, infer alia, an orcler pursuant to CPLR 3212 awarding summary judgment \l1 its favor aguinst the defendant mortgagor and stnking her answer and affirmative defenses; appointing a referee to compute amounts due; amending the caption by excis11lg the dcfend:.lnts, sued herein as John Doe # 1 through John Doe # I0, and awarding the plaIntiff the costs of this motion. In response, the defendant mortgagor has filed opposition papers. Reply papers have also been filed hy the plaintifr. A plaintiff in a mortgage foreclosure action establishes a prilllafacie case for summary judgment by submission of the m011gagc, the mortgage note, bond or obligation, and evidence of default (see. Valley Nat!. flank v Deutsche, 88 AD3d 691,930 NYS2J 477 r2d Dept 20 ll.l; Wells Fargo flank v Karla, 71 AD3d 1006, 896 NYS2d 681 [ld Dept 20101; Wash. Milt. Balik, F.A. v O'Con1lor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009.1). The burden then shifts to the defendant to demonstrate "the ex]slCnee of a tnable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct" on the pan of the plaintiff" (Capstone 8m;. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 883, 895 [* 3] Emigrant Mortgage \'. Mullen Index No.: 2828512010 Page 3 NYS2d 199 [2d Depl 2010.1). Tnthe instant case, the plaintiff produced the nme, and the mOitgage executed by {he defendant mortgagor as well as evidence of non-payment and the acceleration/default notice (see, Fed. Home Loan Mtge. Corp. v Karastathis. 237 AD2d 558, 655 NYS2d 631 [2d Dept 1997]; First Trust Nat!. Assu. v Meisels, 234 AD2d 414, 651 NYS2d 121 [2d Dept 1996]). The plaintiff also submitted, inter alia, an affidavit from an officer of the plaintiff whereby it is alleged that the plaintiff is the holder and servicer of the mortgage and note and was so at the time of commencement of this action (see, U.S. Bank, N.A. v Collymore, 68 A03d 752, 890 NYS2d 578 [2d Dept 20091). As the plaintiff duly demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagor (see, fTSBC Bank USA v Merrill, '37 A03d 899, 830 NYS2d 598 [3d Dept2007J). Accordingly, iLwas incumhent upon the defendant mortgagor 1'0 produce eVIdentiary proof in admissible form sufficient to demonstrate the existence of a triable Issue of fact as to a bona f1dcdefense to the action (see,Argellt Mtge. Co., LLC v Mcntesll1la, 79 AD3d 1079,915 NYS2d 591 [2d Dept201O]; Aames FUllding Corp. v 1J0usflm, 44 ADJd 692, 843 NYS2d 660 [2d Dep! 20071), In opposition Lathe motion, the defendant mortgagor has offered no arguments 111upport s of any of her pleaded defenses, except [he third and fOUl1haffirmative defenses (see, Argeut Mtge. Co., LLCv Men(esanll, 79 AD3d 1079, sl/pra; Citibllllk, N.A. v Souto Geffen Co., 231 ADld466, 647 NYS2d 467 lISl Dept 1996]; see gef1crally, Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]). In instances where a defendant fails to oppose a motion for summary Judgment, the facts, as alleged in the movmg papers, may be deemed admitted and there is, in effect, a concession that no question of fact exists (see ge1leraLly,Kuehne & NagelJ fnc. v Baidell, 36 NY2d 539,369 NYS2d 667 1975l;Argellt Mtge. Co., LLC v Melltesana, 79 AD3d 1079, supra; Madison Park TilliS., LL-C v Atlantic Lofts Corp., 33 Misc3d 1215A, 941 NYS2d 5381Sup Ct, Kings County 20ll]). Further, the affirmative defenses set forth in the answer, which arc factually unsupported by an affidavit from the defendant mOltgagor, are without apparent merit (see, Neighborhood lIous. Servs. N. Y. City, fuc. v Meltzer, 67 AD3d 872, 889 NYS2d 627 [2d Dcpt 2009]). Moreover, the affirmation of the defendant mC)]1gagor'sattorney, who has no personal knowledge of the operati ve facts, is w1thout probati ve value and insuff1c1ent to defeat the motion (e.g.,Zuckerman v City New York, 49 NY2d557, 563, 427 NYS2d 595 [1980.1;2 N. St. COIp. v Getty Saugertie.\>Corp., 68 AD3d 1392, 1395,892 NYS2d 217 [3d Oept 2009]). Contrary to the defendant mortgagor's contentions, she has failed to demonstrate that discovery, whIch she could have sought by way of a preliminary conference order, IS necessary with respect to any defense asseltcd by her III the answer (see generally, lP Morgan Chase Bank v Agnello, 62 AD3d 662, 878 NYS2d 397 r2d Dept 2009]; FiIlancial Freedom Acquisition LLC v Malloy, 2012 NY Mise LEXIS 2037, 2012 WL J 576472, 2012 NY Slip Op 31160U [Sup Ct, Suffolk County, Apr 25, 2012, Pastoressa, J.1). FU11her,"!tlhc mere hope that discovery would yield evidence of a triable issue of fact is not a baSISfor denYlllg summary Judgment" (Lee v T.P. DeMilo Corp., 29 AD3d 867, 868, 815 NYS2d 700 [2d Dcpt r (~r 2006]), The first affirmative defense, in which it is alleged that the plaintiff lacks capacIly to sue herein (see, CPLR 3211 [aJ [3]), is factually unsupported and withoUl merit (see generally, ZuckermaIl v City of New York, 49 NY2d 557, supra). The plaintiff already demonstrated its pnma [* 4] Emigrant Mortgage Y. Mullen Index No.: 28285/2010 Page 4 facie showing of entitlement to judgment as a matter or law (see, Wells Fargo Bank l'Mastropaolo, 42 A03d 239, 837 NYS2d 2471"2dDept 2007]). Further, in SUpp011 the motion, the plaintIff has of submItted an affidavit of merit from an officer of the plaintiff by which it is alleged that the plainti ff was and still IS the holder and servicer of the subject mortgage and note. As noted above, in response 10 this motion the defendant mortgagor has neither alleged nor demonstrated that the plaintiff does not exist as a valid legal entity. Nor has the defendant mOltgagor alleged that the plaintiff does not have the authority to sue herein. Accordingly, the first affirmative defense is stricken. With respect to the second affirmative defense based upon the statute of frauds, the defendant mortgagor has failed to allegc or prove any facts supporting this defense (see, Bank of Am., N.A. v 414 Midlalld Ave. A. ¢ ¢. wc., LLC, 78 AD3d 746, 911 NYS2d 157 [2d Dept 2010]; Glenesk v Guidance Realty Corp., 36 AD2d 852, 321 NYS2d 685 [2d Oept 19711,abrogated 011 other groul/ds hyButler v Catinella, 58 AD3d 145,868 NYS2d 101 [2d Dept 2008"]). All of the loan agreements were in wntmg and signed by the defendant mOl1gagor (see, Gen Oblig § :5-701; see also, EMC Mortg. Corp. v Stewart, 2 AD3d 772,769 NYS2d 408 [2d Oept 2003]). Accordingly, the second affirmatIve defense is stricken as enlirely without merit. The third affirmati ve defense, which pleads the doctrine of unclean hands, is stricken as the defcndant mortgagor has failed to come forward with any facts demonstrating that the plaintiff's conduct was Immoral or unconscIOnable (see, Citibank, N.A. v Walker, 12 AD3d 480, 787 NYS2d 48 [2d Oept 2004], abrogated Oil other grou/lds by Butler v Catillel/a, 58 AD3d 145, .wpm; CFSC Capital Corp. XXVIl v W. j. Bachman Meeh. Sheet Metal Co., 247 A02d 502, 669 NYS2d 329 l2d Oert 19981; Connecticut Natl. Bank v Peach Lake Plaza, 204 AD2d 909, 612 NYS2d 494 [Jd Dcpt 1994 D. The fourth affirmative defense or contributory and comparative negligence docs not constitute a defense to this mortgage foreclosure action. The concept of apPol1ioning culpable conduct ISone related to ton. Since the c!"lIms asserted by the plaintiff IIIthIS casc sound in breach of contract, as opposed to tortious conduct, an affirmative defense based upon the notion of culpable conduct is unavailable herein (see, CPLR 1401; Pilewski v Solymmy, 266 AD2d 83, 698 NYS2J 660 [Pi Dept 1999]; Nastro Contracting v Augusta, 217 AD2d 874, 629 NYS2d 848 [3d Dept 1995J: Schmidt's Wholesale, Inc. v Miller & Lehman Const., Inc., 173 AD2d 1004,569 NYS2d 836 f3d Oept 19911). Thus, the founh affirmati ve defense is stricken. The fifth affirmativc defense that documentary evidence bars the plaintiff's claims for foreclosure and sale is belied by or unsupported by the record and otherwise without basts in fact or law (see, Wells Fargo Bank v Karla, 71 A03d 1006, supra; U.S. Hank, N.A. v Flynn, 27 Misc3d 802.897 NYS2d 855 [Sup Ct, Suffolk County 20 10]). A defense that merely pleads conclusIons 01" law wIthout support11lgfacts is insufficlcnt and fatally deficient (see, l1echer v Feller, 64 AD3d 672, 884 N YS2d 83 [2d Dept 2009]). In any event, the plainti fr has established its prima faCIeentltlernenl 10summary judgment Therefore, the fifth affirmative defense is stricken. [* 5] Emigrant Mortgage v. ]\'Iullen Index No.: 28285/2010 Page 5 The sIxth affirmative defense is stricken as the defendant mortgagor has failed to come forward With any admissible evidence ShOWlllg that the loan was unconscionable or that the plaintiff engaged in predatory loan practices or bad faith with respect to the subject loan (see, Gillman v Chase Manhattan Bank, N.A., 73 NY2d 1,537 NYS2d 787[19881; Citiballk, N.A. v Walker, 12 AD3d 480, supra; abrogated 011 other grounds by Butler v Catinella, 58 AD3d 145, xupra; CFSC Capital Corp. XXVII v W. J. Bachman Mech. Sheet Metal Co., 247 AD2d 502, supra; Connecticut Natl. Balik v Peach Lake Plaza, 204 AD2d 909, 612 NYS2d 494 [3d Dept 1994]; Gelldat Assocs. Illc. v Kallfold, 2012 NY Mise LEXIS 1131,2012 WL 1141238,2012 NY Slip Op 30599U [Sup Ct, Suffolk County, Mar. 7, 20 12, Spinner, J.]; 10 Connor Lane v C. Connor Lane Assoc., 20 II NY M"c LEXIS 2584, 2011 WL 2283791, 2011 NY Slip Op 31439 [Sup Ct, Suffolk County, May 10, 20 II, Martin, J.]). The loan II1slruments submitted by the plaintiff in support of ItSmotion, which included the note, mortgage, adjustable-rate rider and early prepayment/modification rider, demonstrate that the terms of the same were fully set forth III Ihe loan documents. Further, m thiS mSlance, the defendant 1110l1gagor layed a role in inducing the plaintiff to make the loan. rt is wellp settled that a party who signs a document without any valid excuse for having failed to read it IS "conclusively bound" by its terms (Gillman v Chase Manhattan Bank. 73 NY2d 1, 11,537 NYS2d 787 1988]; see, KMK Safety COllSulting, LLCv Jeffrey M. Brown Assoc.,IIlC., 72 AD3d 650, 650651, 897 NYS2d 649 [2d Depl 2010]). r The seventh affirmative defense that the plaintiff failed to give proper notice to the defendant mortgagor pursuant to RPAPL § 1302 is stricken as entirely WIthout melit. In the complaint, the plaIntiff alleges that it is the holder and owner of the subject rnol1gage and note, and that it complied with Banking Law 595-.a and 6-1 or 6-m, if applicable, and RPAPL §1304 of the RPAPL (Comple, (ll 5). Since the defendant mortgagor denied information or knowledge sufficient to form a helief as to the allegations set forth in paragraph "5" ofthe venfied complaint in her answer (Ans., (113),this defense is clearly frivolous. s* Even when viewed in the light most favorable 10defendant mortgagor, her submissions are insufficienr to raise a triable issue of fact as LO the affirmative defenses (see, Neighborhood HOliS. Sen'!.·. N. Y. City, Inc. v Meltzer, 67 AD3d 872, supra; Cochranlnv. Co. Inc. v Jackson, 38 AD3d 704, 834 NYS2d 198 [2d Dept 2007J). Under these Circumstances, the Court finds Ihat the defendant mortgagor failed to rebulthe prima facie showing made by the plaintiff of its entitlemenl to summary judgment (see, Valley Natl. Bank v Deutsche, 88 AD3d 691, supra; Rossrock Fund II, LP. v Commack lllv. Group, Inc., 78 AD3d 920, 912 NYS2d 71 [2d Dcpt 2010]). The plaintiff, therefore, is awarded summary judgment in its favor and against the defendant mortgagor (see, Arf~ellt Mtge. Co., LIJC v Mentesalla, 79 AD3d 1079, supra; Fed. l/ome Loan Mtge. Corp. v Karastat!lis, 237 AD2d 558, supra). Accordingly, the defendant mortgagor's answer and the affirmative defen$cs contained Ihcrein are stricken in their entirety. The branch of the instant motion wherein the plaintiff seeks an order amending the caption by excising the defendants, sued herein as John Doc #1 through John Doe #10, is granted pursuant to CPLR 1024. By its submissions, the plaintiff established the basis for this relief (see, [* 6] Emigrant Mortgage v. Mullcn Index No.: 28285/2010 Pagc 6 Neighborhood HOliS. Servs. N. Y. City, Inc. v Meltzer, 67 AD3d 872, supra) All future proceedings shall be capllOned accordingly. Since the plaintiff has been awarded summary judgment agamst the defendant mortgagor, the plamtiff IS entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see, RPAPL § 1321; Oewen Fed Bank FSlJ v Miller, 18AD3d 527, 794 NYS2d 650 [2d Dcpt 2005]; Vt. Fed. Bank v Chase. 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Bank oiB. Asia, Ltd. v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]). The plainti 1'1" s request for the costs of this motion is denied without prejudice, leave to renew upon proper documentation for costs at the time of submission of the Judgment'. Accordingly, thiS motion by the plamtiff IS determined as indicated above. The Proposed Order appointing a referee to compute pursuant to RPAPL § 1321 is signed as modified by the Court. Dated ;' 2 /& 1.2eJ / ___ GHlt L FINAL DISPOSITION RON. WILLIAM ]( ./ E. RE NON·FJNAL mSPOSITION

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