OneWest Bank FSB v Tinney

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OneWest Bank FSB v Tinney 2013 NY Slip Op 32241(U) September 5, 2013 Sup Ct, Suffolk County Docket Number: 39664/10 Judge: Arthur G. Pitts 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.: 39664110 SUPREME COURT - STATE OF NEW YORK IAS PART 43 - SUFFOLK COUNTY PRESENT: Hon. ARTHUR G . PITTS Justice of the Supreme Court M O T I O N DATE: 2-11-13 ADJ. DATE: 8-29-13 Mot. Seq. # 001-MotD OneWest Bank, FSB, Plain tiff, FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP Attorneys for Plaintiff 53 Gibson Street Bay Shore, N .Y. 11706 -againstDebra R.Tinney, Citibank, N.A., and JOHN DOE #1 through JOHN D O E #lo , the last ten names being fictitious and unknown t o the plaintiff, the person or parties, if any, having or claiming an interest in or lien upon the Mortgage premises described in the Complaint, L A W O F F I C E OF E R I C A K. F. GUERIN Attorney for Defendant Debra It. Tinney 858 Route 212 Saugeties, N. Y. 12477 Defendants. X CITIBANK, N.A. 150 Motor Parkway Haupp:wge, N. Y. 11788 read on this motion for summary iudgment; Notice of Motion/Order Upon the following papers numbered 1 to. 9 to Show Cause and supporting papers 1 - 9-; Notice of Cross Motion anti supporting papers ; Answering ; Other ; Replying Affidavits and supporting papers Affidavits and supporting papers ;( ~) it is, ORDERED that this unopposed motion by the plaintiff for., inter alia, an order: (1) pursuant to CPLR 32 12 awarding summary judgment in its favor against the defendant Debra R. Tinney, and striking her answer and affirmative defenses; (2) pursuant to CPLR 32 15 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL 9 132 1 appointing a referee tc (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject pr1:mises should be sold in one parcel or multiple parcels; and (4) amending the caption, is determined as indicated below; 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 2103(b)(l), (2) or (3) within thirty (30) days of the date herein, and to file the affidavits of service with the Clerk of the Court. This is an action to foreclose a mortgage on residential real property known as 73 Highview Drive, Sag Harbor, New York 11963. On Odober 25, 2005, the defendant Debra R. T h e y (the defendant mortgagor) executed amortgagenote in th: principal amount of $615,500.00 in favor of Meritage Mortgage [* 2] OneWest v Tinney Index No.: 39664-10 Pg. 2 Corporation (Meritage). To secure said note, the defendant mortgagor gave Meritage a mortgage also dated October 27,2005. The mortgage indicates that Mortgage Electronic Re,gistrationSystems, Inc. (MERS) was acting solely as a nominee for Meritage and its successors and assigns and that, for the purposes of recording the mortgage. MERS was the mortgagee of record. By assignment dated October 29,2037 and recorded on December 27,2007, the transfer of the note and mortgage by Meritage to IndyMac Bank, F.S.B. (IndyMac) was mernorialized. Thereafter, by agreement dated November 28, 2007 and recorded December 27,2007, the note was restated and the mortgage was extended and modified. Pursuant to the agreement, the restated note was given by the defendant mortgagor in favor of IndyMac Bank, F.S.B. (IndyMac), in the principal sum of $417,000.00. The extension and modification agreement restated, among other things, the amounts then due and owing, and provided for a fixed rate of interest at a yearly rate of 6.50% for a term of thirty years. The restated note also contains an undated endorsement in blank and without recourse by IndyMac Bank, whereby IndyMac transferred the same to the plaintiff The transfer of the restated note and of the extmded and modified mortgage to the plaintiff was memorialized by an assignment dated October 18,20 10 and recorded on March 14,201 1. The defendant mortgagor allegedly defaulted on the consolid,iited note and mortgage by failing to make her loan payments due on May 1,20 LO and thereafter. Upon the failure of the defendant mortgagor to cure her default, the loan was accelerated. After the defendant mortgagor allegedly failed to cure her default, the plaintiff commenced the instant action by the filing of a lis pendens, summons and verified complaint on October 2 1, 20 10. Issue wasjoined by the interposition of the defendant mortgago r s answer dated November 16,2010. By her answer, the defendant mortgagor generally denies some of the allegations set forth in the complaint and admits other allegations, including the execution of the note and mortgage and ownership of the property. The defendant mortgagor also asserts seven affirmative defmses, alleging failure to state a cause of action; waiver and estoppel; claims barred by release, payment anlYor waiver; the statute of frauds; the lack of personal jurisdiction; claims barred by failure to satisfy statutory and/or contractual conditions precedent; and failure to comply with the 90-day notice requirement of RPAPL $ 1304. The remaining defendants have neither answered nor appeared. According to the information maintained by the Court s data base, settlement conferences for this case were held in this Court s mortgage foreclosure conference part or1 September 28,201 1 and January 25, 201 2. At the last conference, this case was dismissed from the conference program as a settlement or other resolution had not been achieved. As a result, this matter was referred as IAS case. Accordingly, there has been compliance with CPLR 3408 and no further settlement conference is required. The plaintiff now moves for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor against the defendant mortgagor, and striking her answer and affirmative defenses; (2) pursuant to C PLR 321 5 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL 3 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; and (4) amending the caption. No opposition papers have been filed herem. [* 3] OneWest v Tinney Index No.: 39664-10 Pg. 3 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 47 7 [2d Dept 201 11; Wells F argo Bank v Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 20101; Wash. Mut. Bank, F.A. v O Connor, 63 AD3d 832,880 NYS2d 696 [2d Dept 20091). The burden then shifts to 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 p Laintiff (Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882,883, 895 NYS2d 199 [2d Dept 20101). By its submissions, the plaintiff established its prima facie entjtlement to summary judgment on the complaint (see, CPLR 32 12; RPAPL 4 1321; US. Bank Natl. Assrz. v Denaro, 98 AD3d 964,950 NYS2d 581 [2d Dept 201211 Capital Olze, N.A. vKnollwoodProps. II,LLC: 98 AD3d 707,950 NYS2d 482 [2d 88 Dept 20123; HSBC Bank USA, N.A. ~Schwartz, AD3d 961,931 NYS2d 528 [2d Dept 201 I]). In the instant case, the plaintiff produced the restated note, the mortgage and the assignments as well as evidence of nonpayment (see,Fed. Home Loan Mtgt?.Corp. v Karastathis, 237 AD2d 558,655 NYS2d 63 1 [2d Dept 19971; First Trust Natl. Assn. v Meisels, ;!34 AD2d 414,651 NYS2d 121 [2d Dept 19961). The plaintiff also submitted, inter alia, an affidavit from an officer of the plaintiff, whereby it is alleged that a 90-day notice was served in compliance with RPAPL 0 1304. Additionally, the plaintiff submitted sufficient proof to establish, prima facie, that the affirmative defenses set forth in the defendant mortgagor s 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 Fahozzi, 5 AD3d 718,773 NYS2d 604 [2d Dept 20C141 [unsupported aflrmative defenses are lacking in merit];see also, Wachovia Bank, Natl. Assn. v Carcmo, 106 AD3d 726,964 NYS2d 246 [2d Dept 20131; Bank 0fN.Y. Mellon vscura, 102 AD3d 714, 961 NYS2d 185 [2d Dept 20131 lprocess server s sworn afJidavit o service is prima facie evidence ofproper service pursuant to CPLR 308(2)]; f Grogg v South Rd. , ~ S S O C S . , 74 AD3d 1021,907 NYS2d 22 [2d Dept 20 101 [the mere denial of receipt L.P., of [he notice of dejiiult is insufficient to rebut the presumption o delivery];Manufacturers and Traders f Trust Co. v David G. Schlosser & Assocr., 242 AD2d 943, 665 NYS2d 949 [4thDept 1997][conclusory allegations of the conduct constituting alleged waiver are insufJicient to raise a triable issue offact];FGH Realty Credit Corp. v VRD Realty Corp., 23 1 AD2d 489, 647 NYS2d 229 [2d Dept 19961; Prudential Home Mtge. Co. v Cermele, 226 AD2d 357,640 NYS2d 254 [2d Dept 19961 [no valid defense or claim of estoppel where mortgage provision bars oral modijkation]; NaugatuckSav. Bank v Gross, 2 14 AD2d 549, 625 NYS2d 572 [2d Dept 19951 [unsubstantiated allegations offacts are insuflcient to raise a triable issue offact with respecf to an estoppel defense 1; Charter One Bank, FS13 v Leone, 45 AD3d 958, 845 NYS2d 5 13 [3d Dept 2007 I [no competent evidence o an accord and satis~xtion]). f As the plaintiff duly demonstrated j ts entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagor (see, HSBC Bank USA v Merrir l, 37 AD3d 899, 830 NYS2d 598 [3d Dept 20071). Accordingly, it was incumbent upon the defendant mortgagor to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see, Baron ASSOC., LLC v Garcia Group Enters., Inc., 96 AD3d 793, 946 NYS2d 61 1 [2d Dept 20121; Wush. Mut. Bank v Valencia, 92 AD3d 774,939 NYS2d 73 [2d Dept 20121; Grogg vSouth Rd. ASSOCS., 74 AD3d 102 1, supra). LP, [* 4] OneWest v Tinney Index No.: 39664-10 Pg. 4 The defendant mortgagor s answer is insufficient, as a matter of law, to defeat the plaintiffs unopposed motion (see, Ffagstar Bank v Beffafiore,94 AD3d 1044, 943 NYS2d 551 [2d Dept 20121; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 915 NYS2d 591 [2d Dept 20101). Further, the affirmative defenses asserted by the defendant mortgagor are factually unsupported and without apparent merit (see, Beclzer v Feller, 64 AD3d 672, supra). Also, by her first affirmative defense, the defendant mortgagor asserts thi3t the complaint fails to state a cause of action, however, the defendant mortgagor has not cross moved to dismiss the complaint on this ground (see,Butler v Catinelfa,58 AD3d 145,868 NYS2d 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 WilfiamsbmirgCandle Corp. v Seneca Ins. Co., 66AD3d 656,886NYS2d480 [2d Dept 20091; Schmidt s Wlzofesafe,.Inc, vMilfer&Lehman Const.,Inc., 173 AD2d 1004, 569 NYS2d 836 [3d Dept 19911). Moreover, the fifth affirmative defense, in which the defendant mortgagor alleges that the Court lacks jurisdiction over the defendant mortgagor, is stricken as she does not allege that she was not properly served with process herein (see,Associates First Capital Corp. v Wiggins, 75 AD3cl614,904 NYS2d 668 [2d Dept 20101). Additionally, this defense was waived as the defendant mortgagor failed to move to dismiss the complaint against her on this ground within 60 days after serving his answer (,we, CPLR 321 1[e]; Reyes vAlbertson, 62 AD3d 855,878 NYS2d 623 [2d Dept 20091; Dimond v Verdon, 5 AD3d 718,773 NYS2d 603 [2d Dept 20041). In any event, in instances where a defendant fails to oppose a motion for summary judgment, the facts, as alleged in the moving papers, may be deemed admitted and t iere is, in effect, a concession that no question of iact exists (see generally, Kuehne & Nagef, Inc. v Baiden, 36 NY2d 539, 369 NYS2d 667 [ 19751). Additionally, uncontradicted facts are deemed admitted (Tortorello v Larry M. Carfin, 260 AD2d 201, 206, 688 NYS2d 64 [lstDept 19991). Under these circumstances, the Court finds that the defendant mortgagor failed to rebut the plaintiffs prima facie showing of its entitlement to summary judgment requested by it (see, Ffagstar Bank v Beffafiore,94 AD3d 1044, supra; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra; Rossrock FundII, L.P. v Comnrack Inv. Group, Inc., 78 AD3d 920, 912 NYS2d 71 [2d Dept 20101; Wells Fargo Bank Minn., N.A. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 20071; see yenerally, Hermitagelns. Co. TranceNite CCu6, Inc., 40 AD3d 1032,834 NYS2d 870 [2d Dept 20071). The plaintiff, therefore, is awarded summary judgment against the defendant mortgagor (see, Fed. Home Loan Mtge. Corp. v Karartathis, 237 AD2d 558, supra; see generally, Zuckerman v City ofNew York,49 NY2d 557,427 NYS2d 5515 [ 19801). Accordingly, the defendant mortgagor s answer, and the second through seventh affirmative defenses contained therein, a re stricken. The branch of the instant motion wherein the plaintiff seeks an order amending the caption by excising the fictitious defendants, John Doe #1 through #lo, is granted pursuant to CPLR 1024. By its submissions, the plaintiff established the basis for this relief (see, F lagstar Bank v Beffafiore,94 AD3d 1044,supra: NeiglzhorlzoodHous. Sews. i L Y. City, Inc. vMeftzer,6; AD3d 872,889NYS2d 627 [2d Dept 20091). All future proceedings shall be captioned accordingly. By its moving papers, the plaintiff further established the default in answering on the part of the remaining defendant, Citibank, N.A., which never answered the coinplaint (see, RPAPL fj 1321; HSBC Barzk USA, N.A. v Rofdan, 80 AD3d 566. 914 NYS2d 647 [2d Dept 201 13). Accordingly, the default of [* 5] OneWest v Tinney Index No.: 39664-1 0 Pg. 5 Citibank, N.A. is fixled and determined. Since the plaintiff has been awarded summary judgment against the defendant inortg,agor, and has established the default in answering by Citibank, N.A., the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see, RPAPL 4 1321; O w e n Fed. Bank FSB vMiZZev, 18 AD3d 527,794 lVYS2d 650 [2d Dept 20051;Vt. Fed. Barzk v Chase, 226 AD2d 1034,641 NYS2cl440 [3d Dept 19961; Bank ofE. Asia, Ltd. v Smith, 201 AD2d 522,607 NYS2d 43 I [2d Dept 19941). Accordingly. this motion for summary judgment and to appoint a referee to compute is determined as indicated above. The proposed long form order appointing a referee to compute pursuant to RPAPL 8 1321, as modified by the Court, has been signed concurrently herewith. Dated: September 5,20 13 Hon. ARTHUR G. PITTS, J.S.C. FINAL DISPOSITION X NON-FINAI, DISPOSITION

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