American Home Mtge. Serv., Inc. v Dulisse

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American Home Mtge. Serv., Inc. v Dulisse 2013 NY Slip Op 30637(U) March 22, 2013 Sup Ct, Suffolk County Docket Number: 13963-11 Judge: Elizabeth H. Emerson 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 INDEX NO.: 13963-11 SUPREME COURT - STATE OF NEW YORK TRIAL TERM, PART 8 SUFFOLK COUNTY PRESENT: Honorable Elizabeth H. Emerson AMERICAN HOME MORTGAGE SERVICING, INC., Plaintiff, -against.JOSEPH R. DULISSE, JPMORGAN CHASE BANK, N.A., TEACHERS FEDERAL CREDIT IINION, AND JOHN DOE #1 THROUGH JOHN DOE # I 0, THE LAST TEN NAMES BEING FICTITIOUS AND UNKNOWN TO THE Pl,AINTlFF, THE PERSON OR PARTIES, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE MORTGAGE PREMISES DESCRIBED I N THE COMPLAINT, MOTION DATE: 8-1 0- 12 SUBMITTED: 8-10-1 2 MOTION NO.: 001-MG 002-XMD FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP Attorneys for Plaintiff One Whitehall Street, 20 Floor New York, New York 10004 NIERODA & NIERODA, PC Attorneys for Defendant Joseph R. Dulisse 320 Carleton Avenue, Suite 6400 Central Islip, New York 11722 Defendants. tipon the following papers numbered 1-20 read on this motion for summary iudenieiit and ordcr of reference-: Notice of Motion and supporting papers 1-12 ; Notice of Cross Motion and supporting papersl:!, - Answering Affidavits and supporting papers - Replying Affidavits and supporting papers 18-20 ; it is, 17; ; ORDERED UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that this motion (001) by plaintiff American Home Mortgage Servicing, Inc., pursuant to CPLR 3212 for suniiiiary judgment on its complaint, to strike the answer of defendant Joseph R. Dulisse (Dulisse), awarding plaintiff a default judgment against the remaining defendants, [* 2] Index No.: 13963-1 1 Page 2 for an order of reference appointing a referee to compute pursuant to Real Property Actions and Proceedings Law 6 1321, is granted; and it is fk-ther ORDERED that plaintiffs application for leave to amend the caption of this action ptirsuant to CPLR 3025 (b), is granted; and it is further ORDERED that the caption is hereby amended by substituting the name Sergio Doe for .John Doe #1 and by striking the names of defendants John Doe #2 through John Doe #IO ; and it is fiirther ORDERED that the caption of this action hereinafter appear as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK X - American Home Mortgage Servicing, Inc., Plaintiff, -againstJoseph R. Dulisse, JP Morgan Chase Bank, N.A., Teachers Federal Credit Union, Sergio Doe, Defendants. ORDERED that this cross motion (002) by defendant Dulisse seeking to restore the instant matter to the court s Residential Mortgage Foreclosure Settlement Conference Calendar is denied. The plaintiff commenced this action to foreclose a mortgage on April 25, 201 1 in connection with the premises known as 28 Blueberry Lane, Patchogue, New York. On August 3, 2005, defendant Dulisse executed a note in favor of American Home Mortgage, agreeing to pay the sum of$285,000.00 at the rate of 6.500 percent. On August 3, 2005, defendant Dulisse executed a fir!;t mortgage i n the principal sum of $285,000.00 on the subject property. The mortgage indicated American Home Mortgage to be the lender and Mortgage Electronic Registration Systems, 1nc. (MERS) to be the nominee of American Home Mortgage as well as the mortgagee of record for the purposes of recording the mortgage. The mortgage was recorded on October 17, 2005 i n the Suffolk County Clerk s Office. Thereafter, the mortgage was transferred by assignment of mortgage dated March 30, 201 1 from MERS to American Home Mortgage Servicing Inc. (AHMSI), the plaintiff herein. The assignment of mortgage was recorded on April 13, 201 1 with the Suffolk County Clerk s Office. The note was indorsed in blank by Ryan McGroaiy, assistant secretary of [* 3] Index No.: 13963-1I Page 3 American Home Mortgage. Plaintiff AHMSI sent a notice of default dated November 3, 2010 to defendant Diilisse stating that he had defaulted on his mortgage loan and that the amount past due was $35,902.53. As a result of defendant s continuing default, plaintiff commenced this foreclosure action. 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 November 1, 2009 payment. l he Court s computerized records indicate that a foreclosure settlement conference was held on July 29, 201 1 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 further settlement conference is required. Defendant interposed an answer consisting of a general denial aiid six affirmative defenses. Plaintiff now moves for summary judgment on its complaint contending that defendant Dulisse failed to comply with the terms of the loan agreement and mortgage, that notice of default was mailed to the defendant, that the defendant failed to timely cure the default, that the answer o f defendant Dulisse raised no triable issues of fact or valid defenses to this proceeding. In support of its motion, plaintiff AHMSI submits, inter alia, the affirmation of Barry M. Weiss, Esq.; the summons and verified complaint; the note, mortgage and assignment; defendant s verified answer, a notice of default; notices pursuant to RPAPL $5 1320 and 1304; affidavits of service for the summons and complaint; an affidavit of service for the instant summary judgment motion upon tlie attorneys for defendant Dulisse; and a proposed order appointing a referee to compute. Defendant Dulisse by notice of cross motion seeks to restore the instant matter to the court s residential mortgage foreclosure settlement conference calendar. In addition, defcndant opposes 1 he summary judgment motion which seeks to strike the defendant s answer. Plaintiffs reply affirmation asserts that defendant failed to state any facts that would establish an issue of fact precluding summary judgment. h addition, plaintiff points out that no atfidavit by the defendant or anyone else with personal knowledge of the circumstances of this case was offered to refute the facts established by plaintiff. On the cross motion, plaintiff avers that defendant was given an opportunity to conference the case in the Mortgage Foreclosure Settlemciit Part on JUIY 29, 201 1 however, failed to appear; that defendant has offered no cxplanation why lie failed to appear; and, that defendant had one year to restore this matter to the Mortgage Forcclosure Conference Part but failed to do so. [I111 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 Natl. Barik o N. Y . v O Kane, 308 AD2d 482,482, 764 NYS2d 635 [2d Dept 20031; Village Bank f I Wild Oaks Holding, 196 AD2d 812, 601 NYS2d 940 [2d Dept 19931; see also Argent Mtge. Co., [* 4] Index No.: 13963-1 1 Page 4 LLC v Mentesarza, 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 form sufficient to require a trial of their defenses (see Aames Funding Corp. v Houston, 44 AD3d 69;!, 843 NYS2d 660 [2d Dept 20071; Household Fin. Realty Corp. o New York v Wirzn, 19 AD3d f 545, 796 NYS2d 533 [2d Dept 20051; see also Washington Mut. Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 20121). Here, plaintiff produced the note and mortgage executed by defendant Dulisse, the assignment of mortgage, as well as evidence of defendant s nonpayment, thereby establishing a prima facie case as a matter of law (see Wells Fargo Bank Minnesota, Natl. Assrz. v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept 20071). Emmitt Wilson IV, vice president of AHMSI, avers that the defendant defaulted under the terms of the Note and Mortgage by failing to tender payment for the monthly installment due for November 1, 2009 and subsequent payments thereafter. Defendant was mailed a notice of default dated November 3, 2010 which was not cured. As a result thereof, plaintiff elected to accelerate the mortgage debt and declared all sums secured thereby due and payable on the mortgage. Plaintiff maintains that they are in physical possession of tlie original note and mortgage. Once plaintiff lias 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 ( s ~ e Cochran Inv. Co., Inc. v Jackson, 38 AD3d 704, 834 NYS2d 198, 199 [2d Dept 20071 quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466,467, 664 NYS2d 345 [2d Dept 19971). Here, defendant Dulisse lias failed to demonstrate, through the production of competent and admissible evidence, a viable defense which could raise a triable issue of fact (Deutsclze 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-Lqe Records, 35 NKJd 201, 379 NYS2d 390 [1975]). Here, the defendant s papers are devoid of sufficient evidence to support his contentions. This court finds that the answer, affirmative defenses aiid averments contained in the affirniation in opposition to summary judgment submitted by defendant, which contain mere denials and unsupported declarations, to be insufficient so as to raise a triable issue of fact. The defendant has cross-moved seeking to restore the instant matter to the court s residential mortgage foreclosure settlement conference calendar. Defendant through his attorney, in pertinent part, contends that [pllaintiff, by this motion, attempts to negate all of tlie hard work aiid effort [dlefendant and his attorney have put into the loan modification process as a basis for this Court s denial of summary judgment and restoration of the matter to the conference calendar. In support of his application, defendant submits a copy of his verified answer; correspondence from plaintiff AHMSI dated November 17, 201 1 and November 15, 201 1; fax transmission sheets from his attorney s office dated November 11, 201 1; Making Home Affordable Program Request for Modification and Affidavit dated November 4,201 1; Citibank Statements for the periods Ai~g~ist [* 5] Index No.: 13963-1 1 Page 5 10, 201 1 through September 11, 201 1 and September 12, 201 1 through October 10, 201 1, and a IRS Schedule C, Profit and Loss Defendant from Business for the year 201 0. While it appears that a limited effort was made by defendant in November 201 1 to attempt to obtain a loan modification, same cannot be characterized as "hard work". Furthermore, the Court's computerized records indicate that a foreclosure settlement conference was held on July 29, 201 1 at which time the defendant inexplicably failed to appear. No request for an adjournment was submitted and no request to have the matter re-calendared has been submitted. Here, the evidence in support of thc cross motion as offered by defendant is patently insufficient to warrant this Court to grant the relief requested. As such, the court denies such application. Based upon the foregoing, the motion for summary judgment is granted, the answer of defcndant Dulisse and the affirmative defenses contained therein are stricken. The cross motion is denied. In addition, plaintiffs 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; Bunk ofEast Asia, Ltd. v Smith, 201 AD2d 522, 007 NYS2d 431 [2d Dept 19941). The proposed order appointing a referee to compute pursuant to RPAPL 5 1321 is signed as inodificd 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. Dated: - March 22,2012 J.S.C.

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