JPMorgan Chase Bank v Goldstein

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JPMorgan Chase Bank v Goldstein 2013 NY Slip Op 30597(U) March 11, 2013 Supreme Court, Suffolk County Docket Number: 04712/2011 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 Form Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice JPMorgan Chase Bank, National Association, Plaintiff, Motion Sequence No.: 001; MG Motion Date: 7/12/12 Submitted: Index No. : 047 12/201I -against Mitchell Goldstein, JPMorgan Chase Bank, NA, Security Pacific National Bank, State Street Bank and Trust Company, John Does and Jane Does , said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim or may claim, a lien against the premises, Attorneys/Parties [See Rider Annexed1 Defendants. Upon the following papers numbered 1 to 16 read upon this motion for summary judgment and order of reference: Notice of Motion and supporting papers, 1 - 12; Answering Affidavits and supporting papers, 13 - 14; Replying Affidavits and supporting papers, 15 - 16; it is ORDERED that this motion by plaintiff JP Morgan Chase Bank, National Association (Chase) pursuant to CPLR 3212 forsummaryjudgmenton its verifiedcomplaint, tostrike the answer of defendant Mitchell Goldstein (Goldstein), awarding plaintiff a default judgment as to the ixmaining non-appearing and non-answering defendants, and for an order of reference appointin;< a referee to compute pursuant to Real Property Actions and Proceedings Law 9 1321, is granted; and i t I S further ORDERED that plaintiff s application for leave to amend the caption of this action pursuant to CPLR 3025 (b), is granted; and i t is further ORDERED that the caption is hereby amended by strilung the names of defendants John Does and Jane Does ; and it is further [* 2] JYMorpaii v. Goldstein, et al. Index No.: 04712/2011 Page No. 2 ORDERED that the caption of this action hereinafter appear as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK JPMORGAN CHASE BANK, NATIONAL AS SOCIATION, Plaintiff, -againstMITCHELL GOLDSTELN; JPMORGAN CHASE BANK NA; SECURITY PACIFIC NATIONAL BANK; STATE STREET BANK AND TRUST C0MPANY ; Defendants. This is an action to foreclose a mortgage on premises known as 17 Fenwick Place, Montauk., New York. On June 21, 2007, defendant Goldstein executed an adjustable rate note in favor of Washington Mutual Bank, FA (Washington Mutual), agreeing to pay the sum of $880,000.00 at the starting rate of 6.750 percent per annum. On June 21, 2007, defendant Goldstein executed a first mortgage in the principal sum of $880,000.00on the subject property. The mortgage was recorded on July 5 , 2007 in the Suffolk County Clerk s Office. The note is indorsed in blank by Cynthia Riley, vice president of Washington Mutual. Plaintiff Chase asserts that they are the holder of the note and mortgage. Chase sent a notice of default dated December 6, 2010 to defendant Goldstein stating that he had defaulted on his mortgage loan and that the amount past due was $24,379.22. As a result of defendant s continuing default, plaintiff commenced this foreclosure action on February 17,2011. In its complaint, plaintiff alleges, in pertinent part, that defendant breached his obligations under the terms and conditions of the note and mortgage by failing to make the monthly payments commencing with his September 1, 2010 payment and subsequent months thereafter. Defendant Goldstein interposed an answer consisting of a general denial with no affirmative defenses or co u n t erc 1ai m s . Tlie Court s computerized records indicate that a foreclosure settlement conference was held on September 3, 2012 at which time this matter was referred as an IAS case since a resolution or settlement had not been achieved. Thus, there has been compliance with CPLR 3408 and no fui-ther settlement conference is required. [* 3] JPMorgan v. Goldstein, et al. Index No.: 04712/2011 Page No. 3 Plaintiff now moves for summary judgment on its complaint contending that defendant Goldstein breached his obligations under the terms and conditions of the note and mortgage by failing to make his monthly payments commencing with the September 1, 2010 payment and subsequent months thereafter and that the answer of defendant raises no triable issues of fact or meritorious defenses to the instant proceeding. In support of its motion, plaintiff submits among other things: the sworn affidavit of Tiffany Rutherford, vice president to Chase; the sworn affidavit of Robert C. Shoppe, receiver in charge for FDIC as receiver of Washington Mutual; the affirmations of Richard Fay, Esq. in support of the instant motion; the reply affirmation of Jessica Bookstaver, Esq.; the affirmation of Richard Fay, Esq. pursuant to the Administrative Order of the Chief Administrative Judge of the Courts (A0/431/11); the summons and complaint; the note and mortgage; defendant Goldstein s answer, a notice of default; notices pursuant to RPAPL $3 1320, 1303 and 1304; affidavits of service for the summons and complaint; and, a proposed order appointing a referee to compute. Defendant Goldstein opposes the summary judgment motion asserting, inter alia, that plaintiff has not made a prima facie showing based on a failure to provide adequate proof; that plaintiff does not have standing; and, plaintiff failed to provide evidence as to how it arrived at the figure it claims is due and owing. [Iln an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Republic Nutl. Bank of N. Y. v O Kane, 308 AD2d 482,482,764 NYS2d 635 [2d Dept 20031; Village Bamk v Wild Oaks Holding, 196 AD2d 8 12,601 NYS2d 940 [2d Dept 19931; see also Argent Mtge. Co,., LLC v Mentesana, 79 AD3d 1079,915 NYS2d 591 [2d Dept 20101). Once a plaintiff has made this showing, the burden then shifts to defendant to produce evidentiary proof in admissible forrn sufficient to require a trial of their defenses (see Aames Funding Corp. v Houston, 44 AD3d 69:!, 843 NYS2d 660 [2dDept 20071; Household Fin. Realty Corp. of New York v Winn, 19 AD3d 545, 796 NYS2d 533 [2d Dept 200.51; see also Washington Mut. Bank v Valencia, 92 AD3d 774,939 NYS2d 73 [2d Dept 20121). Here, plaintiff produced the note with blank indorsement and mortgage executed by defendant Goldstein, the affidavit of Robert C. Shoppe, as well as evidence of defendant s nonpayment, thereby establishing a prima facie case as a matter of law (see Wells Fargo B a d Minnesota, Natl. A n n . v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 20071). Tiffany Rutherford, vice president to Chase, avers that defendant Goldstein failed to comply with the terms of the note and mortgage by failing to make monthly payments commencing on September 1,2010; that the defendant has not cured the default; that a letter of default was sent to defendant on December 6,2010; that i n accordance with RPAPL 1304, plaintiff forwarded a ninety day notice to the last known address of defendant on October 8,2010; and, that Chase is the holder of the note. Robert C. Shoppe, receiver in charge for FDIC as receiver of Washington Mutual, avers that on September 25, 2008, Washington Mutual was closed by the Office of Thrift Supervision and the FDIC was named receiver-;that the FDIC as receiver of Washington Mutual, may transfer any asset or liability without any iipproval or assignment; that pursuant to the terms and conditions of a [* 4] JPMorgan v. Goldstein, et al. Index No.: 04712/2011 Page No. 4 Purchase and Assumption Agreement between the IBIC and Chase dated September 25, 2008, Chase acquired all loans and all loan commitments of Washington Mutual and, as a result thereof, Chase became owner of the loans and loan commitments of Washington Mutual by operation of law. Once plaintiff has made a prima facie showing, it is incumbent on defendant to demonstrate the existence of a triable 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 part of the plaintiff (see Coclzran Iizv. Co., Inc. v Jackson, 38 AD3d 704, 834 NYS2d 198, 199 [2d Dept 20071 quotinq Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467, 664 NYS2d 345 [2d Dept 19971). Here, defendant Goldstein has failed to demonstrate, through the production of competent and admissible evidence. a viable defense which could raise a triable issue of fact (Deutsche Bank Natl. Trust Co. v Posner, 89 AD3d 674,933 NYS2d 52 [2d Dept 201 11). Motions for summary judgment may not be defeated merely by surmise, conjecture or suspicion (see Shaw v Time-Life Records, 38 NY2d 201, 379 NYS2d 390 [1975]). Furthermore, defendant Goldstein s failure to raise lack of standing as an affirmative defense in his answer constitutes a waiver of that defense (see CPLR 321 1[e]; see also Citibank v Swiatkowski, 98 AD3d 555, 949 NYS2d 635 [2d Dept 20121; US Bank, Nut!. Assoc. v Sharq, 89 AD3d 723,933 NYS2d 293 [2d Dept 201 11). Based upon the foregoing, the motion for summary judgment is granted and the defendant s answer is stricken. That branch of the motion for a default judgment against the remaining defendants who have not answered or appeared herein is granted. In addition, plaintiff s request for an order of reference appointing a referee to compute the amount due plaintiff under the note and mortgage is granted (see Vermont Fed. Bank v Chase, 226 AD2d 1034,641 NYS2d 440 [3d Dept 19961; Bank of East Asia, Ltd. v Smith, 201 AD2d 522,607 NYS2d 43 I [2d Dept 19941). The proposed order appointing a referee to compute pursuant to RPAPL $1321 is signed as modified by the court. Plaintiff is directed to serve a copy of this order amending the caption of this action upon the Calendar Clerk of this Court . HON. WILLIAM B. REBOLINI, J.S.C. FINAL DISPOSITION X NON-FINAL DISPOSITION [* 5] RIDER Attorney for Plaintiff: Rosicki, Rosicki & Associates, P.C. 26 Harvester Avenue Batavia, NY 14020 Attorney for Defendant Mitchell Goldstein: James T. Reynolds, Esq. 35 Arkway Drive, Suite 200 Hauppauge, NY 11788 Defendants : JPMorgan Chase Bank, NA CT Corp. System 1 11 8"' Avenue, 13"' Floor New York, NY 10011 Security Pacific National Bank 265 Montauk Highway Islip, NY 11751 State Street Bank and Trust Company One Lincoln Street Boston, MA 021 11 Occupants 17 Fenwick Place Montauk NY 11954 Clerk of the Court

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