Bac Home Loans Servicing, L.P. v Zhagui

[*1] Bac Home Loans Servicing, L.P. v Zhagui 2013 NY Slip Op 51188(U) Decided on May 9, 2013 Supreme Court, Queens County Sampson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 9, 2013
Supreme Court, Queens County

Bac Home Loans Servicing, L.P. F/K/A COUNTRYWIDE HOME LOANS SERVICING, L.P., Plaintiff,

against

Jorge A. Zhagui, et. al., Defendant.



31146/2009

Frederick D.R. Sampson, J.

Plaintiff BAC Home Loan Servicing, LP (BAC) moves for an order striking the answer of defendants Jorge A. Zhagui and Lucia A. Bonilla and granting summary judgment in its favor against these defendants; discontinuing the action against defendants John Doe No.1 and John Doe #12; and deeming all non-appearing parties and non-answering defendants in default, pursuant to CPLR 3215(a); and appoint a referee to ascertain and compute the amount due plaintiff and to report whether the mortgaged real property can be sold in one or more parcels.

Plaintiff BAC commenced the within action on November 19, 2009 to foreclose a mortgage against real property known as 88-21 215th Street, Queens Village, , New York given by Jorge O. Zhagui and Lucia A. Bonilla to secure a note evidencing a loan in the principal amount of $392,000.00. Plaintiff filed a notice of pendency against the subject property on November 19, 2009 and on November 13, 2012.

Plaintiff alleges that it is the holder of the mortgage pursuant to an assignment dated October 29, 2009, and that it is the holder of the note which was endorsed in blank. Plaintiff alleges that defendants Zhagui and Bonilla defaulted under the terms of the mortgage by failing to make the monthly installment payment due on February 1, 2009, and by failing to tender subsequent installments. Plaintiff, therefore, elected to accelerate the entire mortgage debt.

Defendants Zhagui was served with process on November 30, 2009, pursuant to CPLR 308(1). Defendant Bonilla was served with process on November 30, 2009, and in December 2009, pursuant to CPLR 308(2). Defendants New York City Transit Adjudication [*2]Bureau, New York City Environmental Control Board, Mortgage Electronic Registration Systems Inc., and Countrywide Bank, N.A. were served with process in November and December 2009. All the defendants, with the exception of the John Does, were duly served with copies of summons and complaint, along with a RPAPL 1303 notice. The summons included a notice pursuant to RPAPL 1320.

None of the John Doe defendants were served with process, and plaintiff asserts that they are not necessary parties as there are no other tenants or occupants residing at the subject premises other than Mr. Zhagui and Ms. Bonilla.

Self represented defendants Zhagui and Bonilla served a form answer on December 19, 2009 and asserted as defenses and affirmative defenses that the summons and complaint were improperly served; that the 90 day notice required by RPAPL 1304 was inadequate without indicating whether said notice was not served or whether it was prematurely served; and that they sought a modification of the mortgage. The remainder of the defendants who were served with process did not appear, serve an answer, or otherwise move.

A settlement conference was scheduled for June 3, 2010 and was then adjourned to August 5, 2010. Defendants Zhagui and Bonilla did not appear at the August 5, 2010 conference, and an order was issued on that date permitting the plaintiff to proceed by way of an order of reference or motion.

Plaintiff served the within motion on all defendants on April 16, 2013, and seeks an order striking defendants Zhagui and Bonilla's answer and for summary judgment against these defendants; discontinuing the action against the John Doe defendants; deeming all non-appearing parties and non-answering defendants to be in default pursuant to CPLR 3215(a); and appointing a referee to compute, and report whether the property can be sold in a single parcel or parcels.

On a motion for summary judgment in a foreclosure action, a plaintiff must make a prima facie showing by producing the mortgage, the unpaid note, bond or obligation and the evidence of default and the assignment of the mortgage documents to it (see Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2nd Dept. 2009]; Republic Nat'l Bank of NY v O'Kane, 308 AD2d 482 [2nd Dept. 2003]; see Aames Funding Corp. v Houston, 44 AD3d 692 [ 2nd Dept. 2007]). Here, plaintiff has submitted a copy of the pleadings, the note, mortgage, a copy of the notice of default, an affirmation of regularity of its counsel, the affidavit of Benjamin Walter Hassett, an officer of Bank of America, N.A., the entity that maintains the records for the subject loan; and an affirmation from counsel which conforms to Administrative Order 411/10 . Plaintiff further states that a 90 day notice was served on Zhagui and Bonilla, prior to the commencement of this action. These submissions establish plaintiff's prima facie case to summary judgment as against defendants Zhagui and Bonilla (see East New York Savings Bank v Carlinde Realty Corp., 54 AD2d 574 [2nd Dept. 1976], affirmed 42 NY2d 905 [1977]). The burden then shifts to the defendant 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 Argent Mtge. Co., LLC v Mentesana, 79 [*3]AD3d 1079, [2d Dept. 2010]; Aames Funding Corp. v Houston, 44 AD3d 692, [2d Dept. 2007], supra ). Where, as here, a defendant fails to oppose a motion for summary judgment, the facts, as alleged in the moving papers, may be deemed admitted and there is, in effect, a concession that no question of fact exists (see generally, Kuehne & Nagel, Inc. v Baiden, 36 NY2d 539 [1915]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079 [2nd Dept. 2010], supra).

Further, to the extent that defendants Zhagui and Bonilla preserved the defenses of lack of jurisdiction in their answer, said defense has been waived, as they failed to move to dismiss the complaint on this ground within 60 days of the service of their answer on December 19, 2009 (CPLR 3211[e]). The remainder of the defenses asserted in said answer are factually unsupported by an affidavit from defendants Zhagui and Bonilla and, therefore, are without merit (see Neighborhood Hous. Servs. NY City, Inc. v Meltzer, 67 AD3d 872 [2d Dept 2009]). Therefore, that branch of plaintiff's motion which seeks an order granting summary judgment against defendants Jorge O. Zhagui and Lucia A. Bonilla and striking their affirmative defenses, is granted.

That branch of plaintiffs' motion which seeks to delete defendants "John Doe #1 through John Doe #12 defendants , is granted, and the new caption shall read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

x

BAC HOME LOAN SERVICING L.P. F/K/A

COUNTRYWIDE HOME LOANS SERVICING, L.P.,

Plaintiff,

INDEX NO. 31146/2010

-against-

JORGE A. ZHAGUI, LUCIA A. BONILLA,

NEW YORK CITY ADJUDICATION BUREAU,

NEW YORK CITY ENVIRONMENTAL

CONTROL BOARD, MORTGAGE

ELECTRONIC REGISTRATION SYSTEMS,

INC., COUNTRYWIDE BANK, N.A.,

Defendants. -

x

That branch of plaintiff's motion which seeks an order deeming defendants New York City Transit Adjudication Bureau, New York City Environmental Control Board, Mortgage Electronic Registration Systems, Inc., Countrywide Bank, N.a., is denied with leave to renew, [*4]upon proper papers, setting forth good cause for the delay in seeking a default judgment, as more than a year has passed since the default (CPLR 3215[c]).

Finally, that branch of the motion which seeks the appointment of a referee to compute the amount due on the mortgage, is granted. (see Bank of NY v Alderazi, 99 AD3d 837 [ 2012]; Emigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823, 824 [2011]; RPAPL 1321)

Submit order.

J.S.C.