Deutsche Bank Natl. Trust Co. v Kent

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Deutsche Bank Natl. Trust Co. v Kent 2013 NY Slip Op 32661(U) October 8, 2013 Supreme Court, Suffolk County Docket Number: 09-18755 Judge: Joseph C. Pastoressa 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] INDEX No . 09-18755 SHORT FORM ORDER SUPREME COURT - STATE OF ·Ew YORK f.A.S. PART 34 - SUFFOLK COU TY PRESENT: Hon. JOS EPH C. PASTORESSA Justi ce o f the Supreme Court MOTION DATE 12-19-1 2 ADJ. DATE Mot. Seq. # 002 - MG # 003 - XMD ----------------------------------------------------------------X DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR BCAPB LLC TRUST 2007-AB 1 KOZENY, McCUBBI & KATZ, LLP Attorneys for Plaintiff 395 N. Service Road, Suite 401 Melville, New York 11747 Plaintiff, - against ROBERT F. KENT, JAWS BROKERAGE INC. , WORKER COMPENSATION BOARD OF THE ST ATE OF NEW YORK, ELIAS N. SAKALIS, ESQ . Attorney for Defendant 430 West 259 1h Street Bronx, New York 10471 JOHN DOE (Said name being fictitious, it being the intention of Plaintiff to designate any and 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. ----------------------------------------------------------------X Upon the following papers numbered 1to23 read on this motion for summaiy judgmentand an order ofrcference; Notice ofMotion/ Order to Show Cause and supporting papers ..1...:..Q; otice of Cross Motion and supporting papers 13 - 2 1; Answering Affidavits an d suppo11ing papers 22 - 23 ; Repl; ingAffida ¢ its and sttppo11i11g p11pe1s _ , Othe1 _ , (111d 11fte1 hc111 i1 1 eot111sel 1 g in st1ppo1t and oppo.'led to the 111otio11) it is, UPO T DUE DELIBERATION AND CONSIDERA TIO motion is decided as fo ll ows: it is BY THE COURT of the foregoing papers. the ORDEREJJ that this motion (002) by plaintiff Deutsche Bank ational Trust Company, as Trustee for BCAPB LLC Trust 2007-AB 1 (Deutsche Bank) pursuant to CPLR 32 12 for summary judgment on its complaint, to strike the answer of defendant Robert F. Kent (Kent), fo r an order of reference appointi ng a referee to compute pursuant to Real Property Actions and Proceedings Law§ 1321 , and for leave to amend the caption of thi s action pursuant to CPLR 3025 (b) is granted· and it is further [* 2] Deutsche Bank v K 'lll lndc" I o. 09-1875 5 Page o. 2 ORDJ~RED tha t the caption is hereby amended by substituting dcl'endant Ma ri a Concci:is in place of defendants ··Jo h i Doc··: and it is rurther ORDERED that pk inti ff is di rected to serve a co py of"th is on! ' r amend ing the caption of" this ac ti on upon the Calendar Clerk or this Court; and it is further ORDERED that the caption of this action hereinaJter appear ·1 fo llow·: s Sl!PRl~ME CO URT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK DEUTSC I JE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR BCAPB LLC TRUST 2007-/\B I Plain ti ft~ - against ROBERT F. KE T, JI\ WS BROKERAGE 11 C. WORKER COM PE S/\TION BOARD OF THE STATE Of 1 EW YORK, MARIA CONCEIAS, Defendants. ORDERED that the cross moti on (003) hy defendant Kent for an order purs ian t to CPLR 3211 and 32 12 dismissing the acti on on the grounds that plaintiff lacks standi ng and personal juri sdiction over the defendant or in the alternat ive. for an order denying plaintifrs summ· ry judg1 ent motion and reinstat ing this matter to the foreclosure settlement conference calendar is denie_. This is an action to foreclose a mortgage on premises known as 3 7 Ri crdale /\venue. Oakdale. Ic\\' York. On 'ovembcr 27 . 2006, defendant Kent executed a fix cl rate note in favo r of Wells Fargo l3 ;:ink . ./\.agree ing to pay $300.000.00 at the year y rate of 6.625 percent. On November 27. 200(>. clc!Cndant Kent also executed a lir.·1 mortgage in the pri1 ci al um of $300.000.00 on his home. the subject property. The mortgage was recorded on February l , 2007 in the Suffolk Coun ty Clerk ·s Office. Thcrearter. the mortgage and note wcr' transfo rrcd by assignm ent of mortgage dated May 4, 2009 from \ ·ells Fargo Bank. I.A to pla intiff De utsche Bank . The assignmclll or mortgage W8S recorded on June ~- 200<) \\·ith the Suffolk County Clerk·.- Office . The subject no te contains an ind orsemcnt in bl ank by .loan iv!. 1!ills. \·ice pres ident or Wells Fargo Bank. I ·. / \ .. 1 \\e lls Fargo 1Jome \.l ortgage sent a notice of defo ult dated January -L 2009 t( cklc nd ,111! stat in g that hi s loan \\"a· in defau lt and that the amount past due was $11.38 ..+ .63. J\ s a rcsu l or ckl'cndant Kent's continuing default. plaintiffeommenccd thi ·foreclosure action on May 13 . 2009. In its compbi111. plaintiff [* 3] Deutsche Bank v Kent Index c i.0 ~>- 18 755 !>age J o. 3 alleges in pertinent part that <lcfcn<..lant Kent breached his obligati ons unde r the terms of the 1101L· ~ind mortgage hy foiling to make monthly payments commencing with his .lanm ry I. 2009 pay ment. Dcfl:nda nt Kent interposed an answer with seven arlirmati,·e defenses. The Court" s computeri zed records indicate that a forcclosur, settlement co nfCrL'nee ,,·as held on September 29. 20 I 0 at which time this matter was rckrred as an JA,' case si nce a re: oluti on nr settlement had not been achieved. Thu s. th 're has bccn compli nee with CP I,R 340, and no r·urther settlc1111.:nt conforence is required. Plaintiff no' moves for summary judgment on its complaint contending that del"cndant defoultcd under the terms of the loan agreement and mortgage for failure to pay th"' January l. 2009 payment und subsequent payments thereatter ar cl that defendant's answer is without meri t. In support of its motion. plaintiff submits among other ti ings: the sworn anidavit of Leon Mirasol, vice president Joan documentation of" Wells Fargo Bank. .A., th" servicer for plaintiff herein; the affirmation of Lauren Currie. Esq.; the summons and complaint; defendant ' s answer; the note, mortgage and a. signment; a not ice of default; notices pursuant to RP APL §§ 13 20. 1303 and 1304; the affirmation of Lauren Curri \ Esq . pursuant to the Administrative Order of the Chief Administrative Judge of the Courts (A0/431111 ); affidavits of service for the summons and complaint· an aflidavit of service fo r the instant summary judgment motion: and a proposed order appointing a referee to compute. Defendant Kent cross-moves seeking summary judgment in his favor and ismi sing the action pursuant to CPLR 3211 and 3212 or in the alternative, a denial of plaintiff's summary j udgment applicution with a rcstoral of this matter to the foreclosu e settlement conference calendar. Plaintiff in reply opposes defendant's cross-motion . "'11 In an action to forecl ose a mortgage, a plaintiff establishes its case as a matt · r oflaw through the production or the mo11gage, the unpaid note, and evidence of default' (Republic at!. Bank or .Y. v r2d Dept 2003 I· see also Village Bank v Wild Oaks Ho ld ing. 196 /\D2d 812 j2d Dept 19931 ; .1\n2cnt Mtue. Co .. LLC v Mcntesana, 79 AD3d I 079 [2d Dept 201 O "i). Whe re. as here. standing is put into i ·sue by th ' de fondant, the plaintiff is required to prove it has standing in order to be entitled to the relief re ucstcd (sec Deutsche Ban at!. Trust Co. v Haller. I00 AD.1 d 680 j2d Dept 2011 I: US Bank . 'NA v Co llvrnore. 68 /\D3d 752 j'2d Dept 20091: Wells Fan:i.o Bank Minn .. N/\'" Mastrnpaolo. 42 /\D3d r9 j2d Dept 20071). In a mortgage foreclosure act ion '"[al plaintiff I as sta nding where it is the holder or assignee or both the subject mortgage and o f" the underl ying 1 otc at lhe t"me the action is cnmmc11ccd·· (f !SBC Bank US/\ v l Tcrnandez, 92 /\D3d 843 [2d Dept 20 12 J: US Bank . N /\ ,. Colh·mo re. 68 1\D3d at 753: Countrv,vide I Iome Loans. Inc . v Gress. 68 AD3d 709 !2d Dept 2009 1J. -·Either a \\Tittcn assignment nr the underl ying n te or the phys ic l deliYc ry of the note prio r to the commencement or the foreclosure act ion is . unicient tn transfer the obligation" (I !SBC Bank L S. \jlcrnamkz. C):?, : \D_~d sr ). o· Kane, 308 AD2d 482 I Je re. plainti!T has c:>ta hl ishcd . primafaL'ie. that it had standing to commcn ·c thi .- action. ·1 he uncontrn,·ertecl ,,·idcncc subm itted by the pl ainti ff in support of its moti m demonstra ed tha t till' 11\lt e and the mortgage were as: igned to it pri or to the c01rnncncemcnt or the action. h1rtherm nre . the allida ,·it ur Leon ivlirasnl prn\'ided factual detai ls as to the note and pl aintiff _ physical possession or sa me. Plaintiff prod uced the note and rnongage executed by defendant Ken t. the a.- ·ignmrn t or mort gage. as ,,·ell as [* 4] Deutsche 13ank \' Kent lnckx ro. 09-18755 Page o. -J. evide nce ofdcl'c idanL nonpayment. thereb, establishing aprima f{1cie c 1 as a matter o!'la\\ (sce W~lb. se h1J!.!.O Bank Minne:ota. at!. Ass n. v Ma tropa >lo, 42 AD3d 239 f2d Dept 2007 1). fn addit ion to producing the note. mortgage and assignment of mortgage. plaintiff produced evidence or dcl<.:nda nt Krn t·s nonpayment. Leon irasol ave rred that del'cndant Kent defoulted on paying his monthly pay111c111 du· .January I. 2009 and mon thly payments thereafte r: that a notice of d ·fault was sen t to the dell:ndant: that defendant fa iled to timely cure: tha t a 90 day l re-forecl osure notice was mail ·cl to dekndant hy certilied mai l and first class mail: and. that plaintifTi s in possession orthe original note. Once pl aint iff has made a prima fa cie bowing, it is incumbent on de1Cnda1 I "to demo nstrate the ex istc nce or a tri able issue or tact as to a bona fide de fensc to the action. such as wa ivcr. estoppc l. bad l'a i th. fornd. or oppress ive or unconscionable conduct on the part of the pl aintif ' (see Coch ran Inv. Co .. Inc. \' Jackson , 38 AD3d 704 l2d Dept 2007] quoting Mahopac Nat l. Ban k v Baislcv, 244 A!Ld 466 [:2d D~p l 1997 J). Herc, answering defendant has foiled to demonstrate. thro ugh the prod uct ion of competent and admissib le ev idence, a viable defense which could raise a triable issue of fac t (Deut 'ch Bank at !. Trust Co. v Posner. 89 !\D3d 674 f2d Dept 20 l l ]). "Motions for summary j udgment may not be defeated mere ly by surmise. conjectur ·or suspicion'· (sec Shaw v Time-Life Records, 38 NY2d 20 1 fl 975.]). otabl y. defendant docs not deny that h' has not made payments of interest or principal on the not (sec Citibank. N.A. v Souto Geften Co., 23 l AD2d 466 Jl si Dept 1996]). Likewise. defe ndant's asse rtion attacking the validity of the affidavi of servi ce based upon a dispute in the physical description of the person served is rejected by the court. Here, the process server' s anidavit of service pursuant to CPL 308 (2) by delivery to Maria Conceias. a co-occupant at the subject premises. constituted prima foci, evidence of proper service upon defendant Kent (sec Wachovia Bank. at!. !\ssn. v Carcano , 2013 Y Sli p ( p 03083 J2d Dept 20 13]). Defendant's conciusory and uns ubstan tiated den ial of receipt of the summons and complaint was insufficient to rebut the presumpti on of proper service created by said affidavit (see 13endi cial Homeowner Service Corp. v GiraulL 60 J\D3d 984 [2 :i Dept 20091 : Mauro v Mauro. 13 AD3d 345 [2d Dept 2004]). Lastly. defendant's asserti on of Jack of perso nal jurisdiction mu ·t be denied on the basis that defendant failed to move to di smiss the complaint u on such ground v\·ith in (>() days or serv ice of a copy or the answer. and have made no sho wing of undue hard sh ip. !\s a consequence. the defense is deemed \vaivcd (sec CPLR 321 l[el: DeSena v llIP II sp.. lne .. 258 AD2d 55~ J2nd Dept l 999 1 Wade v 13yurw. Yam'. Ki m. 250 AD2d 323 [2nd Dept 1998]: Fleet Bank. 1. 1\. v Ric:e. '.2-l7 !\D2J : 276 fl st Dept !9981). The ddcndant has also cross-moved seek ing to restore the instant matter to the comt's residentia l mortgage force los ure scll lernen t con lerenci.: calendar. I)efcndant. in pcrti nent part. cont ·nds that his at torncy has inl'ormed hi 11 that he is a candida te ror a loan modification and tlrnt h' \Vi ii be r ·applying li.1r a loan modification through hi s allorneys. I lowcver. in support of his applicati on. def ndant has l'a ikd to submit an_ · c\'i dence or docu rn entat ion sugges ting that he has comm 'ncccl the loan mod i fi ·at ion appl ication process. !\: such. it would a1 p ·ar that no efforts ha\·i.: been made by the defendant to attempt to obtain a loan 111 od if ic~1 lilrn at th is j unc lllri..:. Furth ermori.:. the court' s computerized reco rd .· indicate that thi s matter appeared on thc forec losure settlement ctrnfl: rcnce calendar on th irteen occisions and \\·as li nally marked '" not settled .. on \fay 23. :20 I :1. 1fcre . the C\·idcncc in upport of the cros:-motiun as u lkrcd by clcfcnJant is paten tly i11surticic1 t to \\·arrant thi s court to !.!rant the reli ef requ cstcd. 1\s : uch. th..: cuun de nies such application. [* 5] Deutsche Bunk v Kent o. 09-187-- lnd ~x Page o. 5 .'\ccordingly. the motion for surnmury judgment 1s granted against dclendant Kent and l 1e dcfendunt"s a1swer is stricken. In addition. plaintif'f s request for an order of reference appointing a rckrcc t0 compute the ~1111ou111 due plaintiff under the note and mortgage is granted (sec Vermont Fed. Bank v Cha.·c. 226 1 \D'.:'.d I OJ.+ I3d Dept l 996j: Bank or East /\sia. Ltd. v Smith. 201 /\D2d 522 [2d Dept 19941). The propo:ed order appointing a referee to compute pursua nt lo RP/\PL simultaneously herewith s modified by the court. ~ 1321 1s signed The delendant" s cross-motion seeking, inter a/ia, dismissal or the co mplaint. is denied in its cnlir 'ty. To the extent that either plaintiff or defendant have requested other forms of relief but have not supported such noticed forms ofrclief with any allegations oflaw or r~~ot~~tj~nics such applications. Datccl: October 8. 20 13 71~-- ,,. '-·-· · - -- HON . .JOSEPH C. PASTORESSA, .J .S.C. FINAL DISPOSITION _ X _ NON-FINAL DISPOSITIO -·

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