US Bank Natl. Assoc. v Weinman

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US Bank Natl. Assoc. v Weinman 2013 NY Slip Op 31277(U) June 11, 2013 Sup Ct, Suffolk County Docket Number: 4754/10 Judge: Thomas F. Whelan 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] INDEX No. 4754110 SUPREME COIJRT - STATE OF NEW Y O N I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: MOTION DATE 2/04/ 13 ADJ. DATES 6/7113 Mot. Seq.# 00 1- MG Mot. Seq. #002 - MD HEARING HELD 6/7/13 : Hon. THOMAS F. WHELAN Justice of the Supreme Court ____________________------------------------------------------X US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CREDIT SUISSE FIRST BOSTON CSFB ARMT 2006-1 HOGAN & LOVELLS, US LLP Attys for Plaintiff 875 Third Avenue New York, NY 10022 Plaintiff -againstCAROLINE W AL 0SKI WEINMAN, and JOHN DOE, (said the name being fictitious it being the intention of Plaintiff to designate any all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises). Defendants. : : : : : MICHAEL ROMANO & ASSN. Attys. For Defendant Weinman 220 Old Country Rd. Mineola, NY 1 1501 : DECISION AFTER HEARING IJpon thc following papers numbered I to 22 read on this motion for summary judgment, the d e l e t b ofparties and the appojntment of a referee to compute and cross motion for summary judgment, sanctions and dismissal pursuant to CPLR 32 1 1 (a)(7) and 3 126 ; Notice of Motion/Order to Show Cause and supporting papers 1-3; 4-S-; Notice of Cross Motion and supporting papers 6-8 ; Answering Affidavits and supporting papers 9- I O -; Ileply papers 1 1 - 12 ; Other 13- I4 (Memorandum of Law in support of motion) IS- 16 (Memorandum of 1 3 i n support o f ' m o t i u 7 - I8 (Memorandum o f Law in support o f motion); 19-20 (Memorandum of Law in s u p p o ~ f cross motion); 2 1.-22leniorandum in support of Cross Motion) ; and after issuing an Order of the Court dated March 39, 20 13 which scheduled this matter for a hearing on June 7, 2013 and the hearing having been held on June 7, 2013 at which counsel was heard in suppot? of and in opposition to the motions, the Court makes the following determination. [* 2] US Rank National Assn. v Weinman Index No. 4754/2010 Page 2 Familiarity with this Court s prior Order of March 29,201 3, which detailed the issues raised in the underlying motion and cross motion, is presumed. As noted therein, the complaint charges defendant Weinman with defaults in payment of the monthly installments due under the terms of the note and mortgage beginning on September 1, 2009. This default in payment, which continues; to date, is admitted in the answers served by defendant Weinman. One of the various demands set forth in the cross motion, included a demand for dismissal due to the absence of proof of service of the RPAPL $1304 notice. The Court directed a hearing ofthe type contemplated by CPLR 221 8 and/or CPLR 3212(c), regarding service of the RPAPL 5 1304 notice and held in abeyance final determination of this respective motions. That hearing was held on June 7, 2013 at which time plaintiff produced a witness, Amber Ott, who explained her duties as a loan verification analyst for the plaintiff servicer. She detailed her knowledge of the case history and the system of records established to service the loan. She explained her familiarity with the business practices and procedures with respect to the sending of the KPAPL 9 1304 notice, that is, the 90-day letters. She also explained her familiarity with the record keeping procedures and practices of the servicer and set forth a proper foundation for the admission of that history. She further explained the archived collection notes and provided the Court with the business records concerning the subject loan. She demonstrated the admissibility of the defendant s payment history on the note and the business records of the servicer under the business records exception to the hearsay rule (see CPLR 45 18[a]; compare JP Morgan Chase Bank, N4 v Rads Group, Inc., 88 AD3d 766,930 NYS2d 899 [2d Dept 201 11). With tlhat foundation, the business record, that is the CollectiodCustomer Service Loan Activity Archive, was admitted into evidence without objection (see P1. Ex. 1). An examination of the business record (see P1 Ex. 1, p. 2878339) reveals that on October 18,2009, the plaintiff issued separate notices of default as required by RPAPL 5 1304 by certified mail (see P1 Ex. 2) and regular mail (see P1 Ex. 3). As explained upon cross examination. it is only after the servicer s mailing unit delivers the W d a y letters to the U.S. Postal Service, that the notations are made in the archived collection notes (see P1 Ex. I , p. 2878339), confirming the sending of the notices. Copies of same are digitally forwarded back to the loss mitigation unit (see P1 Ex. 2 and 3). The witness explained that fix tracking purposes, the certified mailing codes are no longer maintained by the 1J.S. Postal Service. after such ;anextended period of time. The witness did acknowledge that there existed no green card on tile confirming receipt, but noted that there is no requirement to confirm receipt of the 90 day notice. RPAT I, 1304(2) provides that the requisite notice shall be sent by such ... servicer to the borrower. by registered or certiiied mail and also by first-class mail to the last known address of the borrower..,. I lere, defendant Weinman did acknowledge the proper address set forth on the 90-day notice letters, which were sent on October 18, 2009 (sec. PI Ex 2 and 3). While various cases [* 3] US Bank National iissn. v Weinman Index No. 4754/20 10 Page 3 discuss the necessity of proper service of a RPAPL 5 1304 notice on the borrower as a condition precedent to the commencement of a foreclosure action (seeAurora Loan Servs., LLCv Weisblum, 85 AD3d 95. 104, 923 NYS2d 609 [2d Dept 201 11) and that the failure to submit an affidavit of service of same necessitates denial of a summary judgment motion on that issue (see Deutsclze Bank Natl. Trust Co. v Spanos, 102 AD3d 909,961 NYS2d 200 [2d Dept 20131; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106, supra), there is no requirement in the statute that proof of service can only be accomplished by way of a filed affidavit of service (compare CPLR 308[:2], [4]; und RPAPL 5 735[2][a] with CPLR 2103[b][2] service by mail shall be complete upon ,, mailing ). In Iact, the statute only requires that the notices shall be sent by such ... servicer ... Here, the witness detailed the servicer s custom and practice surrounding mailings of RPAPL 5 1304 notices and, in particular, the notices with respect to this loan. Thus, in support of its motion for summary judgment, plaintiff has proved its allegation by tendering sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 5 1304. Moreover, there is no claim that the statutorily-mandated content was omitted from the notice, as required by RPAPL 5 1304(2) (compare Wells Fargo Bank, NA v Barrett, 33 Misc3d 1207[A], 938 NYS2d 230 [Sup ( 3 , Queens County 201 11). Therefore, the Court holds that by virtue of the testimony and the accompanying records, plaintiff met its prima facie burden pursuant to RPAPL 5 1304. Rejected as insufficient is the defendant s denial of receipt of the RPAPL 5 1304 notice. Such denial rests upon her failure to recall receipt of the certified mail notice. The Court notes that initially, there was no denial of receipt of the RPAPL 5 1304 notice set forth in the defendant s moving papers. The only complaint offered therein was that the plaintiff failed to produce a copy of such notice. In response, the plaintiff attached a copy of such notice to its opposingheply papers which, as noted at the hearing, provides evidence of mailing on the face thereof that supports the plaintiffs pleaded claim that it complied with the notice requirements of RPAPL S; 1304 (see RPAPL S; 1302). In her reply papers and in her hearing testimony, the defendant asserts a denial of receipt of the RPAPL 5 1304 notice. However, upon cross examination, defendant failed to recollect allegations set forth in her recent papers supplied to the Court, which occurred just a few months ago. The bare and unsubstantiated denial of receipt is insufficient to rebut the testimonial and documentary proof of proper sending of the 90-day notices (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95,103, viiprrr; Deutsclre Bank Nail. Trust Co. v Hussain, 78 AD3d 989,912 NYS2d 595 [2d Dept 20101: .tee e g US Bank Natl. Assrz. v Tate, 102 AD3d 859. 958 NYS2d 722 [2d Dept 20131; Stevens v Charles, 102 AD3d 763,958 NYS3d 443 [2d Dept 20131; Irwin Mtge. Corp. v Devis, 72 AD3d 743, 898 NYS2d 854 [2d Dept 20101; BeneficialHonzeowner Serv. Corp. v Girault, 60 AD3d 984,875 NYS2d 815 [2d Dept. 20091; Cifimortgage, Inc. v Pembelton, 39 Misc3d 454, 960 NYS2d 867 [Sup. Ct Suffolk County 201 31). [* 4] US Bank National Assn. v Weinman Index No. 47541201 0 Page 4 In any event, as noted above. it is the moment of posting that is controlling, regardless ofthe 1 claimed lack of delivery to or receipt by the addressee (see St. Clare s Hosp. v Allcity Ins. CO.,210 AD2d 71 8,608 NYS2d 325 [2d Dept 19941; Barton v La Point, 67 AD2d 760,412 NYS2d 463 [3d Dept 19791). The defendant s claims and defenses regarding a lack of compliance with the alleged 5 1304 notice are dismissed as unmeritorious. There remains one reserved claim from this Court s Order of March 29, 2013. As noted therein, the defendant s cross moving papers did not contain a demand for summary judgment on her FOIJRTH Counterclaim in which she asserts a claim for damages under the Federal Truth-nnLending Law [TILA]. Discussion of that defense was advanced only as opposition to the plaintiffs motion-in-chief wherein it sought dismissal of all counterclaims and affirmative defenses. Having resolved, after hearing, the predicate question regarding service of the RPAPL $1304 default notice, the Court now turnis its determination to the nature, scope and viability and/or merits of the defendant s FOURTH counterclaim. Plaintiff argues that the original loan documents are in full compliance with TILA. A Truth in Lending Disclosisre Statement was executed by defendant Weinman on July 14, 2005. This statement reflected the loan in the amount of$600,000.00 at 6.5% with an APR at 6.37%. It also included a break down ofthe 360 monthly installments due during the thirty year term of the loan. Payments of principal and/or interest were listed in the amount of $3,792.41 together with $193.23 for taxes and $251.00 for insurance for a total monthly payment of $4,236.72. This monthly installment payment of $3,792.4 1 was the same as that set forth in the note and mortgage, wherein it was noted that it was subject to change. The Truth in Lending Disclosure Statement also included notations that the $3,792.4 1 monthly installment figure for principal and/or interest would continue for 120 months and that for the next 239 months, that amount would be reduced to $3,664.17 and that a final payment of $3,645.46 would be due on August I , 2036. Thc FOURTH Counterclaim only asserts a claim for damages and not one for rescission, since the defendant has not alleged that she can tender to the mortgagor the principal of the loan (,we Cervini v Znnoni, 95 AD3d 919, 944 NYS2d 574 [2d Dept 20121). TILA compels lenders to provide certain specific information to borrowers, such as interest rates, finance charges, and annual percentage rates, so ihat they can make educated decisions (see e.g. Stein v JPMorgan Chase Bank, 279 F Supp2d 286,291 [SDNY 20031). TILArequires creditors to disclose, clearly and accurately, all the material1 terms of consumer credit transactions (McKenna v First Horizon Home Loan Corp..475 F3d 41 8,421 [lstCir. 20071). Upon review ofthe papers submitted, summary judgment is appropriate in that plaintiff has shown that there are no issues of fact regarding whether ithe disclosure requirements under TILA were violated. [* 5] US Bank National Assn. v Weinman Index No. 47.54120 10 Page 5 In seeking damages under TILA for deficient disclosures, defendant has failed to establish violations that were apparent on the face of the disclosure statement (15 USC $ 3 1641[ a]; 1641[e][l]; see U.S. Bank Natl. Assn. vPia, 73 AD3d 752, 901 NYS2d 104 [2d Dept 20101; fee also Akar v Federal Natl. Mtge. Assn., 845 F Supp2d 381, 394 [D Mass 20121). Additionally, although there is some caselaw to the contrary. the Court believes that the failure to show actual damages under 15 1JSC 5 1641(g) mandates dismissal of the statutory damage claim (see Parhizm v HSBCMtge. Corp., 826 F Supp2d 906,913 [ED Va 201 11, ufd 473 Fed Appx 244,2012 V VL 1655391 [4 hCir 20121; Byrdv GuildMtge. Co., 201 1 WL 6736049, at * 5 [SD Cal20111; Turner v American Home Key Inc., 201 1 WL 3606688 [ND Tex 201 11; Borowiec v Deutsche Bank Niztl. Trust Co., 201 1 WL 2940489 [D Hawaii 201 11; cfFoley v Wells Fargo Bank, NA, 849 F Supp2d 1345 [ SD Flor 20 121). Defendant has offered only conclusory allegations, which are insufficient to iy defeat a motioii for summary judgment (see Zuckerman v Ct of New York, 49 NY2d 557,427 NYS2d 595 [1980]). In view of the foregoing, the courts denies the defendant s cross motion. The court hereby grants the plaintiffs motion (#001) for summary judgment and other relief. It is therefore ORDERED that this motion (#00 1) by the plaintiff for summary judgment against defendant, Caroline Waloski Weinman, the deletion of the unknown defendants, the appointment of a referee to compute and other incidental relief is considered under CPLR 32 12,3215 and RPAPL 4 132 I and is granted; and it is further ORDERED that the cross motion (#002) by defendant, Caroline Waloski Weinman, for summary judginent on a claim of breach of contract; an order imposing sanctions; dismissal of the complaint pursuant to CPLR 321 1(a)(7) and for failure to satisfy prerequisites to foreclosure and/or dismissal pursuant to CPLR 3 126 is considered under CPLR 32 12, 22 NYCRR Part 1301-1, CPLR 32 1 1, and 3 126 and is denied; and it is further ORDERED that the plaintiff shall settle a separate order appointing a referee to compute, upon a copy ofthis order, providing in blank for the court s appointment ofsuch referee and all other matters attendant with such appointments consistent with the terms of this order and the prior order of the court. Dated: June 1 1 , 2013

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