HSBC Bank USA v Kaya

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HSBC Bank USA v Kaya 2013 NY Slip Op 32239(U) August 27, 2013 Sup Ct, Suffolk County Docket Number: 28200-10 Judge: W. Gerard Asher Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX NO.: 28200-10 SUPREME COURT - STATE OF NEW YORK IAS PART 28 - SUFFOLK COUNTY PRESENT: Hon. W. GERARD ASHER Justice of the Supreme Court H G C BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR DEUTSCHE ALT-B SECURITIES MORTGAGE LOAN TRUST SERIES 2006-AB4 MORTGAGE PASS-THROUGH CERTIFICATES, Plain tiff, -againstTHERESA KAYA, ENDER KAYA, NEW YORK STATE COMMISSIONER OF TAXATION and FINANCE and John Doe 1 through 12 said persons o r parties having or claimed to have a right, title, or interest in the Mortgaged premises herein their respective names are presently unknown to the plaintiff, MOTION DATE 2-25-13 ADJ. DATE Mot. Seq. #OOl-MotD KOZEN L , MCCUBBIN & KATZ, LLP Attorney for Plaintiff 395 North Service Road, Suite 401 Melville, N. Y. 11747 FREDEF~CK STERN & ASSOCIATES P. Attorney for Defendants Theresa Kaya Ender Kaya 2163 Sunrise Highway Islip, N. Y. 11751 NEW YORK STATE COMMISSIONER OF TAXATION AND FINANCE 250 Veterans Memorial Highway Hauppaiige, N. Y. 11788 Defendants. read on this motion for summarv iudgment; Notice of Upon the following papers numbered 1 to 7 MotioniOrder to Show Cause and supporting papers 1 - 7 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers ; Replying Affidavits and sup 3orting papers ; Other ; ( ) it is, ORDERED that this unopposed motion by the plaintiff for, inter alia, an order: (I) pursuant to CPLR 3212 awarding summary judgment in its favor against the defendants Theresa Kaya and Ender Kaya, and striking their joint answer and affirmative defenses; (2) pursuant to WAPL 5 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; (3) amending the caption; and (4) awarding the plaintiff the costs of this motion, is determined to the extent indicated below; and it is [* 2] HSBC Bank USA v Kaya Index No.: 28200-10 Pg. 2 ORDERED that the plaintiffs request for the costs of this motion is denied without prejudice, leave to renew upon proper documentation for costs at the time of sub mission of the judgment; and it is further ORDERED that the plaintiff is directed to serve a copy of this Order with notice of entry upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2 103(b)(l), (2) or (3) within thirty (30) days of the date herein, and to file the affidavks of service with the Clerk of the Court. This is an action to foreclose a mortgage on real property known as 32 Lincoln Road, Medford, New York 1 1763. On June 2, 2006, the defendants Theresa Kaya executed a fixed-rate note in favor of American Brokers Conduit (American) in the principal sum of $23;!,000.00. To secure said note, Theresa Kaya and Ender Kaya (the defendant mortgagors) gave American a mortgage also dated June 2, 2006 on the property. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for American and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. By way of an undated, blank endorsement without recourse, the note was allegedly transferred to the plaintiff, and the same was memorialized by an assignment of the mortgage dated June 18 , 2 0 10 and recorded on July 6, 2010. The defendant mortgagors allegedly defaulted on the note and mortgage by failing to make their monthly payment of principal and interest due on February 2 , 2 0 1 0, and each month thereafter. After the defendant mortgagors allegedly failed to cure their default, the plaintiff commenced the instant action by the filing of a lis pendens, summons and verified complaint on August 2,20 10. Issue was joined by the interposition of the defendant mortgagors answer 011 or about dated May 6,20 1 1. By their answer, the defendant mortgagors generally deny some of the allegations in the complaint, and admit other allegations, including, inter alia, the execution of the note by the Theresa Kaya. In their answer, the defendant mortgagors also assert four affirmative defxses, alleging, inter alia, the plaintiffs failure to modify their mortgage loan pursuant to the applicable Federal Home Affordable Modification Program (HAMP) guidelines (see, 12 USC 0 52 19a); the commencement of this action in violation of HAMP; standing; and the failure to state a cause of action The remaining defendants have neither appeared nor answered. In compliance with CPLR 3408, foreclosure settlement conferences were held on June 22 and September 13 20 12. On the last date, this case was dismissed from the conference program and referred as an IAS case as the loan was not modified and the case not otherwise settled. Accordingly, there has been compliance with CPLR 3408 and no further settlement zonference is required. In any event, it appears that the subject property is not owner-occupied, and that the defendant mortgagors reside elsewhere. The plaintiff now moves for, inter alia, an order: (1) pursuant to CPLR 32 12 awarding summary judgment in its favor against the defendant mortgagors, and striking their joint answer and affirmative defenses; (2) pursuant to RPAPL 8 1321 appointing a referee to (a) compute amounts due [* 3] HSBC Bank USA v Kaya Index No.: 28200-10 Pg. 3 under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; (3) amending the caption; and (4) awarding the plaintiff the costs of this motion. No opposition papers have been filed herein. A plaintiff in a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl. Bank v Deutsche, 88 AD3d 691,930 NYS2d 477 [2d Dept 201 11; Wells Fargo Bank v Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 20101; Wash. Mut. iyank, E A . v O'Connor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 20091). The burden then shifts 1;o the 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' (Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882,883,895 'VYS2d 199 [2d Dept 20101). By its submissions, the plaintiff estabIished its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212; RPAPL fj 1321; U S . Bank Natl. .4ssn. v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 20121; Capital One, N.A. v Knollwood Props. 11, LLC, 98 AD3d 707,950 NYS2d 482 12d Dept 20121; HSBC Bank USA, N.A. vSchwartz, 88 AD3d 961,931 NYS2d 528 [2d Dept 201 I]). In the instant case, the plaintiff produced the endorsed note, the mortgage and the assignment as well as evidence of nonpayment (see, Fed. Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558,655 NYS2d 631 [2d Dept 19971; First Trust Natl. Assn. vMeisels, 234 AD2d 414,651 NYS2d 121 (2d Dept 19961). The plaintiff also submitted, inter alia, an affidavit from a representative of the plaintiff, whereby it is alleged, inter alia, that the plaintiff is the holder and the owner of the note and mortgage (see, US. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 20091) The plaintiff also submitted sufficient proof to establish, prima facie, that the affirmative defenses set forth in the defendant mortgagors' answer are subject to dismissal due to their unmeritorious nature (see, Becher v Feller, 64 AD3d 672, 884 NYS2d 83 [2d Dept 20091; Wells Fargo Bank Minn., Natl. Assn. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 20071; Coppa v Fabozzi, 5 AD3d 71 8, 773 NYS2d 604 [2d Dept 20041 [unsupported afirmative defenses are lacking in merit]; see also, Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638, 958 NYS2d 331 [lst Dept 20121; EMCMtge. Corp. vstewart, 2 AD3d 772,769 NYS2d 408 [2d Dept 20031; United Cos. Lending Corp. v Hingos, 283 AD2d 764,724 NYS2d 134 [3d Dept 20011; First Fed. Sav. Bank v Midura, 264 AD2d 407, 694 NYS2d 121 [2d Dept 19991 voreclosingplaintifhas no obligation to mod@ loan]). As the plaintiff duly demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagors (see, HSBC Bank USA v illerrill, 37 AD3d 899, 830 NYS2d 598 [3d Dept 20071). Accordingly, it was incumbent upon tb: defendant mortgagors to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona jide defense to the action (see, Baron ASSOC., LLC v Garcia Group Enters., Inc., 96 AD3d 793,946 NYS2d 61 1 [2d Dept 20121; Wash. Mut. Bank v Valencia, 92 AD3d 774,939 NYS2d 73 [2d Dept 20121; Grogg v South Rd. ASSOCS., 74 AD3cL 1021,907 NYS2d 22 [2d Dept LP, 20 IO]). [* 4] HSBC Bank USA v Kaya Index No.: 28200-10 Pg. 4 The defendant mortgagors answer is insufficient, as a matter cf law, to defeat the plaintiffs unopposed motion (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, 5143 NYS2d 551 [2d Dept 20121; Argent Mtge. Co., LLC vMentesana, 79 AD3d 1079,915 NYS2d 591 [2d Dept 20101). Further, the affirmative defenses are factually unsupported and without apparent merit (see, Neighborhood Hous. Servs. N. Y. City, Inc. v Meltzer, 67 AD3d 872, 889 NYS2d 627 [2d Clept 20091; see generally, Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638, supra; JPMorgan Chase Bank, N.A. v Ilardo, 36 Misc 3d 359,940 NYS2d 829 [Sup Ct, Suffolk County 20121). By their first affirmative defense, the defendant mortgagors assert that the complaint fails to state a cause of action, however, the defendant mortgagors have not cross moved to dismiss the complaint on this ground (see, Butler v Catinella, 58 AD3d 145, 868 YYS2d 101 [2d Dept 2008]), and, in any event, the plaintiff has established its prima facie entitlement to summary judgment as indicated above. Therefore, the first affirmative defense is surplusage, and the branch of the motion to strike such defense is denied as moot (see, Old Williamsburg Candle Corp. v Seneca Ins. Co., 66 AD3d 656, 886 NYS2d 480 [2d Dept 20091; Schmidt s Wholesale,hc v Miller & Lehman Const., Inc., 173 AD2d 1004,569 NYS2d 836 [3d Dept 19911). In any event, in instances where a defendant fails to oppose a notion for summary judgment, the facts, as alleged in the moving papers, may be deemed admitted ar,d there is, in effect, a concession that no question of fact exists (see generally, Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539, 369 NYS2d 667 [ 19751). Additionally, uncontradicted facts are deemed admitted (Tortorello v Larry M. Carlin, 260 AD2d 20 1,206, 688 NYS2d 64 [ 1St Dept 19991). Under these circumstances, the Court finds that the defendant mortgagors failed to rebut the plaintiffs prima facie showing of its entitlement to summary judgment requested by it (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra; lrlossrock Fund II, L.P. v Commack Inv. Group, Inc., 78 AD3d 920,912 NYS2d 71 [2d Dept Z.0101; Wells Fargo Bank Minn., N.A. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 20071; see generally, Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032, 834 NYS2d 870 [2d Dept 20071). The plaintiff, therefore, is awarded summary judgment against the defendant mortgagors (see, Fed. Home Loan Mtge. Corp. v Karastathis, 237 AD2d 5 5 8 , supra; see generally, Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [1980]). Accordingly, the defendant mortgagors answer is stricken, and the first, second and third affirmative defenses therein are dismissed. The branch of the instant motion wherein the plaintiff seeks arl order amending the caption by substituting Ian Horner and Cari Horne as defendants for the fictitious defendants John Doe #1-2, and by excising the remaining fictitious defendants, John Doe #2-10, is grmted pursuant to CPLR 1024. By its submissions, the plaintiff established the basis for this relief (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Neighborhood Hous. Servs. N. Y. City, Inc. v Meltzer, 67 AD3d 872, supra). All future proceedings shall be captioned accordingly. By its moving papers, the plaintiff further established the defaiilt in answering on the part of the New York State Commissioner of Taxation and Finance (the Commissioner) and the newly substituted, Ian Horner and Cari Horner (the Horner defendants), none of which answered the complaint (see, RPAPL fj 1321; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566,914 NYS2d 647 [* 5] HSBC Bank USA v Kaya Index No.: 28200-10 Pg. 5 [2d Dept 201 11). Accordingly, the defaults of the Commissioner and the Horner defendants are fixed and determined. Since the plaintiff has been awarded summary judgmmt against the defendant mortgagors, and has established the defaults in answering by the Commissioner and the Horner defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see, RPAPL 1321; Ocwen Fed. Bank FJYB v Miller, 18 AD3d 527,794 NYS2d 650 [2d Dept 20051; VI. Fed. Bank v Chase, 226 AD2d 1034, 541 NYS2d 440 [3d Dept 19961; Bank @ E . Asia, Ltd v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 19941). Accordingly, this motion for, inter alia, summary judgment and to appoint a referee to compute is determined as indicated above. All other relief requested in the motion and not specifically addressed herein is denied. The proposed long form order appointing i i referee to compute pursuant to W A P L 5 1 32 1, as modified by the Court, has been signed concurrently herewith. Hon. W. GERARD ASHER, J.S.C. FINAL DISPOSITION X NON-FINAL D [SPOSITION

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