Bank of Am., N.A. v Snyder

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Bank of Am., N.A. v Snyder 2013 NY Slip Op 34176(U) June 26, 2013 Supreme Court, Kings County Docket Number: 13402/12 Judge: Ellen M. Spodek Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] Pago 1ol 277 1:i.02/2012 0.C.S""1 and O<dor doted 6/2e/13 At an IAS Term, Part 63 of the Supreme Court of the State ofNew York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 26th day of June, 2013. PRES ENT: HON. ELLEN M. SPODEK, Justice. --------------------------------------X BANK OF AMERICA, N .A., Successor by Merger to BAC HOME LOANS SERVICING, L.P., f/k/a COUNTRYWIDE HOME LOANS SERVICING, L.P., Plaintiff, - against - DECISION/ORDER/JUDGMENT Index No. 13402/12 YAFFA SNYDER a/k/a JAFFA SNYDER, SHABBIR MOHAMMAD and 3028 BRIGHTON 8 ST. RAINSPRING, LLC, Mot. Seq. No. 1, 2 Defendants. --------------------------------------X The following papers numbered 1 to 9 read herein: Papers Numbered Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed_ _ _ _ _ _ __ __ Opposing and Reply Affidavits (Affirmations) _ _ _ _ __ Memorandum of Law_ _ _ _ _ _ _ _ _ _ _ _ __ 1-3· 4-6 7-8 9 In this action to quiet title to residential real property, the following motion and cross motion are resolved as follows. Request for a Default Judgment Against Snyder In sequence No. I , the branch of the motion of Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, L.P., formerly known as Countrywide Home Loans Servicing, L.P. (BANA), for a default judgment against Yaffa Snyder, also known as Pnnted 12Jt8l2017 [* 2] 13'02/2012 OeclJtOn Ind order dlltd e/2el13 P1go 2 of 277 Jaffa Snyder, is granted. According to the Jan. 10, 2012 affidavit of Terry Love, a litigation specialist with BANA, BANA has been in physical possession of the underlying note since 2009 (i.e., before the inception of this action)(~ 7). 1 In addition, BANA obtained the rights to the underlying mortgage by assignment dated June 8, 2012, which was 20 days before the inception of this action. Thus, BANA has standing to commence this action. The merits of plaintiffs claim, insofar as asserted against Mr. Snyder, are established by the Dec. 12, 2012 affidavit of Donlita Cloud, Assistant Vice President, Operations Team Lead of Bank of America, N.A. 2 Service of process on Mr. Snyder is established by the Aug. 14, 2012 affidavit oflicensed processed server Ben Cohen.3 In addition, service of the instant motion on Mr. Snyder is established by the Jan. 3, 2013 affidavit of Joel Jean. Mr. Snyder has not answered or otherwise appeared in this action. Accordingly, BANA is granted a default judgment as against Yaffa Snyder, also known as Jaffa Snyder. Request for a Default Judgment Against Rainspring LLC In sequence No. 1, the remaining branch ofBANA's motion for a default judgment against 3028 Brighton 8 St. Rainspring, LLC (Rainspring LLC) is denied. It is undisputed that, before the inception of this action, Rainspring LLC acted as an intermediary in the 1. The Court takes judicial notice of Ms. Love's affidavit which was filed with County Clerk in connection with the Court's Jan. 14, 2013 decision and order in a related action of Snyder v ME. Registration Systems, Inc., index No. 24846/ 10 (Sup Ct, Kings County). 2 · Although the affidavits of Ms. Cloud as well as the affidavit of Ms. Love were executed in Texas and are not accompanied by a certificate of conformity as required by CPLR 2309 (c), the requirement of certification may be dispensed with where, as here, the person administering the oath for the out-of-state affidavits is a notary (see JPMorgan Chase Bank, NA. v S.J. Wood Furniture Corp., 34 Misc 3d 1214[A], 2012 NY Slip Op 50074[U] [Sup Ct, Kings County 2012] [collecting authorities]). 3 · See Exhibit H to BANA's motion. 2 Pnnted 12/18/2017 [* 3] 13402/2012 0.0ff0n Ind Ofder dat9d 6126113 Page 3 of 277 initial conveyance of the underlying property from Mr. Snyder to Rainspring LLC and in the subsequent conveyance of the underlying property from Rainspring LLC to Shabbir Mohammed. Thus, at the inception of this action, Rainspring LLC possessed no right, title, or interest in or to the underlying property. Moreover, Rainspring LLC was never a party to the related action of Snyder v ME. Registration Sys., Inc., index No. 24846/1 0 (Sup Ct, Kings County).4 Thus, insofar as Rainspring LLC is concerned, BANA cannot claim that Rainspring LLC should "be barred from all claims to any estate or interest in the [underlying property] .. . adverse to or in derogation of [the underlying] mortgage" and "be enjoined and restrained from selling, mortgaging, encumbering or transferring [the underlying property] and from interfering with [the underlying] mortgage. . . . (Complaint, "Wherefore" clauses [a] and [c]). Moreover, Rainspring LLC was never an obligor on the underlying loan. Hence, BANA cannot claim, as against Rainspring LLC, that BANA "has a valid and existing .. . mortgage ... encumbering the [underlying property] . . .." (Complaint, "Wherefore" clause [b]). Request for a Bona Fide Purchaser Status In sequence No. 2, Mr. Mohammed's motion which is, in effect, for summary judgment on his counterclaim against BANA for a declaration that his title to the underlying property is superior to the underlying mortgage (now held by BANA) is denied with leave 4 · In the Snyder action, the underlying mortgage was invalidated by order, on default, dated Feb. 14, 2011. The default order was subsequently vacated by decision and order, dated Jan. 14, 2013 . See Exhibit A to BANA' s motion for a copy of the Feb. 14, 2011 default order. See Exhibit A to BANA's affirmation in opposition for a copy of the Jan. 14, 2013 decision and order. 3 Pnnted 12/1812017 [* 4] 13-40212012 Otc;1sion and oro.r Gated 012&/13 Pagt 4 of 277 to renew within sixty days after the completion of discovery and the filing of a note of issue.5 Triable issues of material fact exist as to whether Mr. Mohammed was a bona fide purchaser for value, given ( 1) the discrepancy between what he paid for the underlying property ($160,000) in 2011 and what Mr. Snyder paid for the same property ($700,000) about five years prior, and (2) the lack of any admissible evidence indicating that Mr. Mohammad's purchase price for the underlying property ($160,000) was fair, considering, inter alia, that Mr. Mohammed's own moving papers suggest that the underlying property had a market value of$548,000 in 20126 (see Beltway Capital, LLCv Soleil, 104 AD3d 628, 631-632 [2d Dept 2013]). Miscellaneous Matters It appears that some explanation of the wording of the conclusion in the Court's Jan. 14, 2013 decision and order entered in the related action of Snyder v ME. Registration Sys., Inc., index No. 24846/ 10 (Sup Ct, Kings County), is necessary. In particular, the Jan. 14, 2013 decision and order concluded (at page 3): "Therefore, both of the non-party motions to intervene are moot. Non-party BANA's motion to vacate the court order is granted. It is hereby, s. No copy of Mr. Mohammad's answer to BANA's complaint and BANA's reply to his counterclaim are annexed to his cross motion, in derogation of CPLR 3212 (b). · Mohammad avers (in~ 21 of his Mar. 8, 2013 affidavit) that "[t]he Court should . .. take judicial notice of the sale prices for houses in the surrounding area. According to an online search, it appears that houses in the surrounding area have sold for $125,000 on 1/31/13, $171 ,400 on 6/ 19/ 12, $175,750 on 9/ 12/ 12 and $243,000 on 11/9/12. (See a printout annexed to the Lederman Aff. as Exhibit ' L')" (emphasis omitted). However, Exhibit L, which is a two-page print-out from www.trulia.com, says nothing of the sort. It does not reference any of the aforementioned sales. Rather, it states that the 2012 market value of the underlying property was $548,000, at least for real estate tax purposes. 6 4 Pflnttd 12/18120l7 [* 5] 13402/2012 Docnoo ano onle<d"1od llm/13 Pogo S of 277 ORDERED, that the court order issued on February 14, 2011 is sua sponte vacated.... " (emphasis added). There is no inconsistency between the Court granting the branch ofBANA' s motion which was to vacate the Feb. 14, 2011 default order and the Court concurrently exercising its sua sponte powers to vacate the remainder of the Feb. 14, 2011 default order. The Feb. 14, 2011 default order canceled two mortgages: the first was the underlying mortgage (now held by BANA); the second was a subordinate mortgage held by National City Bank. Insofar as the underlying mortgage was concerned, the Court granted the branch ofBANA's motion which was to vacate the Feb. 14, 2011 default order that had canceled the underlying mortgage. Significantly, BANA did not move to vacate the remaining portion of the Feb. 14, 2011 default order that had canceled the National City Bank mortgage. Hence, the Court, in exercising its sua sponte powers, concurrently vacated the remainder ofthe Feb. 14, 2011 default order insofar as it canceled the National City Bank mortgage. Lastly, the Court notes that the docket in yet another (and also related) action of Countrywide Home Loans, Inc. v Snyder, index No. 10840/08 (Sup Ct, Kings County), needs to be supplemented. In particular, the docket in the aforementioned action reflects the entry of the Feb. 14, 2011 default order but fails to reflect the subsequent entry of the Court's Jan. 14, 2013 decision and order in the Snyder action under index No. 24846/ 10, which decision and order vacated the Feb. 14, 2011 default order. Accordingly, the County Clerk 5 Pnnted 12/18l20t 7 [* 6] 13-402/2012 Decfsion and order dattd 6126113 Pago&ol 277 is directed to add the following notation to its records for Countrywide Home Loans, Inc. v Snyder, index No. 10840/08: Order discontinuing action, canceling notice of pendency ORDER FILED UNDER# 24846/ 10 vacated by DECISION AND ORDER dated 1/1 4/ 13 and FILED 3/5/ 13 UNDER # 24846/ 10. The remaining parties (BAMA and Shabbir Mohammad) shall appear for a preliminary conference in the PCP at 360 Adams Street, Room 282, on July 30, 2013, at 9:30 A.M. The foregoing constitutes the decision, order, and judgment of the Court. ENTER, f'oo.> -"" '" c:::t <- c I 0 ~ ..... · - i~ ( -n (. - ..;. r- c,,,_ 0 -{ --:: ,.,., (") ;i::J ;<: 6 Pnnt.O 1211812017

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