Bank of Am., N.A. v Guzman

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Bank of Am., N.A. v Guzman 2013 NY Slip Op 32664(U) October 15, 2013 Supreme Court, Suffolk County Docket Number: 39003/2011 Judge: William B. Rebolini 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 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Bank of America, N.A., Plaintiff, Motion Sequence No.: 001; MG Motion Date: 1110/13 Submitted: 7/24113 Index No.: 39003/2011 -againstTania Guzman, Jose Argueta, Bank of America, NA, New York State Affordable Housing Corporation, LR Credit 18 LLC, New York State Commissioner of Taxation and Finance, Bethpage Federal Credit Union, People of the State of New York, Attorney for Plaintiff: McCabe, Weisberg & Conway, P.C. 145 Huguenot Street, Suite 499 New Rochelle, NY 10801 Defendants Pro Se: "John Doe # 1" to "John Doe # 1O," the last ten names being fictitious the persons or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants. Tania Guzman 480 Nostrand A venue Central Islip Y 11772 Jose Argueta 480 Nostrand A venue Central Islip, NY 11772 Clerk of the Court Upon the following papers numbered 1to14 r ad upon this motion for sununary judgment: otice of Motion and supporting papers, l - 14; 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 Tania Guzman and Jose Argueta, and striking their joint answer and affirmative defenses; (2) pursuant to CPLR 3215 [* 2] Bank of America v. Guzman, et al. I ndcx No. : 39003/2011 Page 2 s lixing the defaults of the non-answering defendant:('') pursua t to RP/\PL 1321 appointing a rclcree to (a) compute amount · due under the subject mortgage: and ( b) examine and re ort whether the subject prc1 1iscs shoul be sold in one parcel or multiple pare Is: and (4) amend ing the caption. is granted: and it is furt her ORDERED that th~ plaintiff shall submit with proposed judgment of f'on.:closure an affidav·t or affirmation of' non-military status of the deJendants Tania Guzman a d Jose Arg·1eta, pursuant to 50 USC 521 et sec;. (see, Central Mtge. Co. v Acevedo, 34 Misc3d 213, 934 'YS2d 285 ISup Ct, Kings County 201 JI);· nd it is further ORDt,'RED that the plaintiff' is directed to serve a copy of thi Order with notice of entry upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2103(b)(J), (2) or (3) within thirty (30) day of the ate herein, and to file the affidavits of service with the Clerk of the Cou . This is an action to foreclose a mortgage on residential real property known as 408 Nostrand /\.venue, Central Islip, Ne York 11722. On May 1, 2006 Tania Guzman and Jose Argueta (the defendant mortgagors) executed a fixed-rate note in favor of Bank of America, N .A. (the plaintifl) in the principal sum of$35 2,600.00. To secure said note, the defendant mortgagors gave the plaintiff a mortgage also d· t d May I, 2006 on the property. The defendant mortgagors allegedly defaulted in making their monthly payment of principal and interest due on March I, 2010, 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 pcndens. summons an verified complaint on December 23 , 2011. Is ·uc was joined by the interposition of the defendant mortgagors' joint answer dated January I L 2012. By their answer, the defendant m rtgagors generally deny some of the allegations in the complaint. admit other allegations. including. inter alia, their execution of the note and mortgage, and assert two affirmat ive defenses. /\s a first affi rmative defonse. the defendant mortgagors all ege that they were unable to timely submit the docum ntation required for a loan modification. As a second af1irmative dctcns~. the defendant 11101 1gagors allege that they submitted al I the documentation re uircd for a loan revie'v, and that they have also offered payments which the plaintiff has rej ected . Th remaining defendants ha ·c neither ansv ered nor appeared. In compliance with CPLR 3408. a series of sett le ment conC'rcnces were held in this Court" s specia lized mortgage forecl osure part on /\.pril 24, July I 0, August 22 and Octob .. r 16. 2012. /\.t the last conference. this action ' as dismissed from the conference pro~ram as the def enc ant mort~<.w: o rs did no t appear or thcrwise p·1rticipatc. Accordingly. the conCcrcnce requirement impos 'd upon the Court by CPI.R 3408 and/or the La\vs oC2008. Ch . 472 ~ 3-a as an ended by Laws of 2009 Ch. 507 · I 0 ha. bc~n sati sfi ·d . ' o further conference is requ ired under any statute. law or rul '. ~ ~ ~ [* 3] Bank of America"· Guzman. ct al. Index No. : 39003/2011 Page 3 The plaintiff now 11ovcs for. inter 'l]ia. an order: (1) pursua t to CPLR 3212 awarding sum mary judg1 1ent in its favor against the defendant mortgagors. and strik ing thei r answer and affirmat ive defenses : 12 ) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants: (")pursuant t RP APL§ 1321 appo inting a rcforee to (a) compute amounts due under the subject mortga,:Se; and ( b) examine and report whether the subj ct premises should be sold in one parcel or multiple parcels: and (4) ame1 ding the caption. 'o opposition pap ·rs hav~ been filed herein. A plaintiff in a mortgage foreclosu re action establishes a prima fac ic case fo r summary judgment by submiss ion of the mortgage, the note, bond or obligation, and cvid ·nee of default (see, Valley Natl. Bank vDeutsche, 88 AD3d 691, 930 NYS2d 477 [2 Dept 20 1 ll; Wells Fargo Bank v Karla, 71 AD3d I 006, 896 YS2d 681 l2d Dept 2010]· Wash. M ut. Bank, FA . v O'Connor, 63 A03d 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 acti n, such as waiver, estoppel. bad faith fraud, or oppressive or unconscionable conduct on the part of the plaintiff' (Capstone Bus. Credit, LLC v /mperia Family Realty, LLC, 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 20101). By its submissions. the plaintiff established its prima facie entitlement to summary j udgrnent on the complaint (see, CPLR 3212; RP APL§ 1321 ; U.S. Bank Natl. Assn. v Denaro, 98 AD3d 964, 950 · YS2d 58 l [ 2d Dq t 20 121; Capital One, N.A . v Knollwood Props. II, LLC. 98 J\D3d 707, 950 YS2d 482 [2d Dept 2012J; HSBC Bank USA, N.A . v Schwartz , 88 03d 961, 931 NYS2d 528 [2d Dept 2011 ]). fn the instant case, the plaintiff produced the note and the mortgage executed by the defendant mortgagors as well as evidenc of nonpayment (see, Fed. Home loan Mtge. Corp. v Karastatflis 237 AD2d 558, 655 NYS2d 631 l2d Dept 19971; First Trust Natl. Assn. v Meisels, 234 AD2d 414, 65 1 YS2d 121 [2d Dept 1996]). The plainti ff also submitted, inter alia. an affidavit from an officer of the plaintiff, whereby it is alleged, inter alia, that the plaintiff is the holder and is in possession of the note and mortgage (see . U.S. Bank, N.A. v Col()11110re, 68 AD3d 752. 890 NYS2cl 578 f2cl ept 20091). Additionally. the plaintiff su mitted sufticicnt proof o cstahl ish. prima facie, that the affirmative defonses set forth in the defendant mortgagors' answer arc subject to dismissal due to their unmeritorious nature (see, Beclier v Feller. 64 AD3d 6T2 884 NYS2d 8~ [2d Dept 2009] : Wells Fargo Bank M i1111., Natl. Assn. v Perez. 1 AD3d 590, 837 YS2d 877 12<l Dept _00 I; Coppa v Fabozzi. 5 AD3d 718. 773 YS2d 6 4 12cl Dept 20041 I1111.\'/lpportecl affimwlii ¢e cllfenses are lacking in merit]: see also. Wells Fargo Bank, N.A . "Van Dyke . I 0 1 AD3d 638, 958 YS2d 331 11 st Dept 201 21: EMC Mtge. Corp. v Stewart. 2 AD3J 772. 769 YS2d 408 j2d Dept 2003.1: United Cos. Lending Corp. v llingos. 283 D2d 764. 724 1 YS2<l n4 I3d Dept 20 1 j: First Fed. Sav. Bank v M idura . 264 AD2d 407. ()94 YS2d 12 1 [2cl Dept I 999 ] lfrn·ec!osing pluint{f/'lws 1w ohligation to 11wd{f.i !0011)). 1 /\s the plaintiff duly demonstrated its entit lement to judgment as a matter of law. the burden or proof shilled t ihc dcl'cndant mortgagor: (see. HSBC Bank USA v M errill. 37 AD~cl 899, 8:0 :\IYS2d 598 [3d Dept 20071). t\ccordingly. it was incumbent upon the de fe ndant nrnrtgagors to [* 4] Bank of America v. Guzman. ct al. Index No .: 39003/2011 Page -t produce evidcnt iary proof in admissible form sufficient to demonstrate the existence ofa triable issue of fact as to a bona fide defense to the action (see, Baron Assoc., LLC v Garcia Group Eu ten"., Inc .. 96 /\D3d 793. 946 Y ··2d 611 [2d Dept 2012J: Waslt. ~1ut. Bank v Valencia. 92 AD~d 774, 939 NYS'.2d 73 !2d De t 20121: Grogg vSoutlt Rd. Assocs., LP. 74 /\D3d 1021. 907 YS2d 22 !2d Dept 201C)l}. The defendant mo11gagors' answer is insufficient as a matter orlaw. to defeat the plaintiff's unopposed motion (see. Flagstar Bank v Bellafiore, 94 /\D3d 1044, 943 NYS2d 551 f2cl Dept 2012 J; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 915 YS2d 59 l l 2d Dept 201 OJ). rurther, the affi m1ative defenses asserted by the defendant mortgagors are factually unsupported and without apparent merit (see, Wells Fargo Bank, N.A . v Van Dyke, 101 AD3d 638, suprCl' Neighborhood Hous. Servs. N. Y. City, Inc. v Nleltzer, 67 AD3d 872 889 YS2d 627 [2d Dept 2009]; JP Morgan Cltase Bank, N.A . v Jlardo, 36 Misc3d 359 940 YS2 829 up Ct, Suffolk County 2012]). 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 adr 1itted and there is, in effect. a concession that no question of fact exists (see genernlly, Kuehne & Nagel, Inc. v Baide11 36 NY2d 539, 369NYS2d 667f1975] ; see also, Jl.fadeline D'Anthouy Enters., In c. v Sokolowsky, l 01 AD3d 606, 957 NYS2d 88 [l st Dept 2012]; Argent Mtge. Co., LLC v ~fentesana , 79 AD3d l 079, supra). 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, Rossrock Fund II, L.P. v Commack Inv. Group, Inc., 78 AD3d 920, 912 NYS2d 71 l2d Dept 2010]; see generally. Hermitage Ins. Co. Trance Nite Club, Inc. , 40 /\. 3d 1032, 834 Y 2d 870 !2d Dept 2007]). The plaintiff, therefore, is awarded summary judgment against the defendant mortgagors (see Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra ; Fed. Home Loan Mtge. Corp. v Karastatltis, 237 AD2d 558, supra; see generally, Zuckerman v City of New York, 49. Y2d 557, 427 YS2d 595 [1980]). rs The branch of the instant motion wherein the plaintiff seeks an ordc;· amending the caption by substituting Nancy Guzman as a party defendant for John Doe # 1, and excising the fictitious defendants sued herein 'ts .John Doc #2 through # 10, is granted pursuant to CPLR 1024. By its submissions. the plaintiff established the basis for this relief (see. Flagstar Bank v Bellafiore. 94 AD3d l 044. supra: Neighborltood Rous. Servs. N. Y. City, Inc. v Meltzer, 67 AD3d 872. supra). /\II future proceedi gs shall be captioned accordingly. By its moving paper:. the plaintiff further established the default in answering on the part of the defendants. v York ,' talc Affordable Housing Corporation. LR Cred it J ', Ll .C. New York State Com missioner or Tax ation and Finance. Bethpage Federal Credit Union. People of the State or· C\ York. and the n wly substituted defe ndant, ancy Guzman. as the c c cfcndants never in terposed answers t >the.; complaint (sC'e . RPAPL ~ 1321 : HSBC Bank USA, N.A . v Roldan. 80 /\D3cl : 66. 914 YS2cl 64 7 l2d Dept 20 l J'! ). Accor ingly. the de fa ults or all such non-anS\\·ering defendants arc fi x d an determined. Since the pla intiff has been awarded summary judgment a!.!ainst the defendant mort!l.' ...... .... .... !!Ors. and has cs ta bl ished the default in answeri D!l hv the 1101H.msweri nu ... . ~ [* 5] Bank of Ame rica v. Guz man , ct al. Index No.: 39003/201 l Page 5 de fe ndants, the plaintiff is entitled to an order appointing a referee to compute amounts due unde r the subject note and mortgage (see . RP APL · 1321; Ocwen Fed. Bank FSB v Miller. 18 AD3d 527. 794 YS2d 650 [2d Dept 2 05_1; Vt. Fed. Bank v Clwse, 226 AD2d I 0~4. 64 I NYS2d 440 f3d Dept I 996 J: Bank of E. A sia, Ltd. v Smitlr . 20 l D2d -22, 607 NYS2d 431 [2d Dept I 994 ]). Accord ingly, this motion by the plaintiff is granted. The proposed order appointing a referee to compute pursuant to RP. PL§ 1321 has been signed concurrently herewith. Dated: iv Il1-:;jk I 7 1 I " ) _ _ FINAL DISPOSITION X NON-FlNAL DISPOSITION

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