Oceanfirst Bank v Cox

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Oceanfirst Bank v Cox 2014 NY Slip Op 31452(U) May 30, 2014 Supreme Court, Suffolk County Docket Number: 12-37822 Judge: Jerry Garguilo 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] \I [( INDEX No. i ( 1[\ \[ ( !Rili [\ ·coPYi 12-37822 SUPREME COURT - STATE OF NEW YORK I.AS. PART 47 - SUFFOLK COUNTY PRESENT: Hon _ _ _J_r_:R_R_\_'~G~'A_R_G~'l~J_IL_O~--.J ustice of the Supreme Court MOTION DATE ADJ. DATE l l-18-13 2-26-l 4 Mot. Seq.# 00 l - MG ---------------------------------------------------------------X OCEAJ'\FIRST BANK. Plaintiff~ STAGG, TERENZI, CONFUSIONE & WABNIK Attorney for Plaintiff 401 Franklin Avenue, Suite 300 Garden City, New York 11530 - against BRIAN COX. SUSAN COX, HSBC BANK USA, N .A. AS TRUSTEE FOR THE REGISTERED HOLDERS OF NOMURA ASSET ACCEPTANCE CORPORATION, ALTERNATIVE LOAN TRUST, SERIES 2006S 1 C/O OCWEN LOAN SERVICING, LLC, PEOPLE OF THE STATE OF NEW YORK, COMMISSIONER OF TAXATION AND FINANCE. CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, TARGET NATIONAL BANK, HOUSEHOLD FINANCE CORPORATION III, ATLANTIC CREDIT & FrNANCL INC. A/P/O BANK OF AMERICA, UNITED STATES OF AMERICA (EASTERN DeLISA LAW GROUP, PLLC Attorney for Defendants Cox 475 Montauk Highway West Islip, New York 11795 DTSTRICTL ··JOHN DOE# I through '·JOHN DOE #20," the last 20 names being fictitious and unknown to plaintiff. the persons or parties intended being the tenants. occupants, persons or corporations, if any having or claiming an interest in or lien upon the premises described in the Complaint, 11 Defendants. ---------------------------------------------------------------X Upon the rollowing papers numbered I to -2.l__ read on this motion for summary judgment; Notice of Motion/ Order Slw1\ Cause anJ supporting papers I -13 ; Notice of Cross Motion and supporting papers_; Answering Affidavits and -,upporting papers 14 - 18 ; Replying Affidavits and supporting papers 19 - 21 : Other_; (:md 11fte1 lie111 i11g eouri~el i11 ,upport 2111d oppmcd to the 111otio11) it is, 10 [* 2] lnde;.; 0iu. Page 2 ORDERED that the motion by the plaintiff for an order pursuant to CPLR 3212 granting summary judgment in its favor against the defendants. for an order striking the answer of defendants Brian Cox and Susan Cox, for a default j udgrnent against the remaining non-appearing defendants, for leave to amend the caption of this action pursuant to CPLR 3025 (b) and for an order of reference appointing a referee to compute the sum due and owing plaintiff pursuant to Real Property Actions and Proceedings Law § J 321. is granted; and it is further ORDERED that the caption is hereby amended by substituting defendants "Mr. Cox" and Southvillc Petroleum Corp. as '"John Doe #1 ''and ·'John Doe #2" and by striking therefrom defendants named as ··.John Doc #3 - #20''; and it is further ORDERED that plaintiff is directed to serve a copy of this order amending the caption of this action upon the Calendar Clerk of this Court; and it is further ORDERED that the caption of this action hereinafter appear as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------------------------------------------)( OCEANFIRST BANK. Plaintitl - against BRIAN COX, SUSAN COX, HSBC BANK USA, N.A. AS TRUSTEE FOR THE REGISTERED HOLDERS OF NOMURA ASSET ACCEPTANCE CORPORA T!ON. ALTERNATIVE LOAN TRUST. SERIES 2006-S l C/O OCWEN LOAN SERVICING. LLC. PEOPLE or THE STATE OF NEW YORK, COMMISSIONER OF TAXATION AND FINANCE. CI ~ERK OF THE SU Ff OLK COUNTY DISTRICT COURT. TARGET NATIONAL BANK. l IOUSLI IOLD FINANCE CORPORATION III. \TLANTIC CREDIT & PINANCE. INC. A/P/O 13/\NK OF AMERfCA, UNfTED ST A TES OF .\MERICA (EASTERN DISTRICT). MR. COX and SOUTI IVIL.LF PFTROLEUM CORP .. Defendants. ----------------------------------------------------------------)( [* 3] lnde\ No. Page 3 In this residential foreclosure action, the plaintiff seeks to foreclose a mortgage on the premises known as 20 Stonegatc Drive, St. James, New York. On June 8, 2005, Brian Cox executed a promissory note agreeing to pay the principal sum of $648,000.00 per year in return for a loan received from Columbia Home Loans, LLC. To secure said note, Brian and Susan Cox executed a mortgage on the same date on the subject property. The mortgage was recorded on June 24, 2005 in the Suffolk County Clerl-.:"s Ofticc. Cox defaulted on his monthly payment of principal and interest on August 1, 2010 and each month thereatkr. By assignment dated March 7, 2011 and recorded in the Suffolk County Clerk's office on April 13, 201 L the mortgage and note were assigned by Columbia Home Loans, LLC to the plaintiff. Thereafter, the plaintiff sent Cox a letter of default. Cox failed to cure his default. The plaintiff commenced the instant action on December 18, 2012. The Coxes served an answer. In support of the plaintiff's motion, the plaintiff submits, among other things, the note and mortgage, the notice of default letter, the summons and complaint, the notice pursuant to RP APL § 1304. affidavits of service for the summons and complaint, an affidavit of service for the instant summary judgment motion upon defendants' counsel, an affidavit of merit, and a proposed order appointing a referee to compute. '"[f jn an action to foreclose a mortgage, a plaintiff establishes its case as a matter oflaw through the production of the mortgage, the unpaid note, and evidence of default" (Republic Natl. Bank of N. Y. v O'Kane, 308 AD2d 482, 482, 764 NYS2d 635 [2d Dept 2003]; see Argent Mtge. Co., LLC v ~fentesana, 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). Here, the plaintiff produced the note and mortgage executed by the mortgagor, as well as evidence of nonpayment thereby establishing its prima facie entitlement to judgment as a matter of law (see Argent Mtge. Co., LLC v Mentesana, supra; Republic Natl. Bank of N. Y. v O'Kane, supra). Since the plaintiff made a prima facie showing of entitlement to judgment as a matter of law, it \Vas incumbent on the defendants "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 plaintiff" (see Cochran Inv. Co., Inc. v Jackson. 38 AD3d 704, 834 NYS2d 198, 199 [2d Dept 20071 c111oting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467, 664 NYS2d 345 [2d Dept 1997j). In opposition. the Cox.es assert that the plaintiff has failed to establish standing. Specifically, the Coxes state that the plaintiff submitted a document entitled ''Allonge to Promissory Note" which bears an indorsemcnt to the plaintiff by Columbia Home Loans, LLC but is undated and provides no proof that 1t was effectuated prior to the commencement of this action. They also assert that there is no indication that it was physically attached to the original note. In addition, the Coxes assert that the plaintiff failed to demonstrate ownership through factual details of delivery of the note. The Court tinds the Coxes' contention that the plaintiff lacks standing to be lacking in merit. .\nne.xecl to the plaintilrs motion papers is a copy of the assignment which specifically states that both the note and the mortgage were assigned to the plaintiff by Columbia Home Loans, LLC. The assignment is dated prior to the commencement of this action. fn addition, George Mace Ii, the assistant [* 4] Index No. Page..+ \ice president of plaintiff states in his affidavit that the plaintiff is the owner and holder of the note. which was transfCrred and delivered to the plaintiff prior to the commencement of this action. Thus, there is sufficient evidence establishing that the plaintiff was in physical possession of the note prior to the commencement of this action. In light of the foregoing, the plaintiff's motion is granted. The proposed order appointing a referee to compute pursuant to RP APL § 1321 is signed as rnoditied by the court. Dated: FINAL DISPOSlTION ~X~_NON-FI [* 5] ~7 At an f. A.S. Te rm Part of the Supreme Court, held in and fo r the Count \ of SUFFO l,K at the Supreme ' , ·J;\-fk, .. ( ourthn usc . on t he ~ day ol I ~ fi)A''( - - - - - - .. - - - - - - - - - BON. -JERRY-GARGUILO - - - - --X ----- ------ ----------- <>Cl :.'\ \! iTR ST COPY f~ ANK. IN DEX NO. 37821112 ORDER f3RIA \J COX. SUSAN COX, HSBC BA NK USA . KA. AS TR USTEE FOR TH E REG ISTERED HOLDERS OF NOMURA ASSET ACCEPTANCE CORPORATION. ALTERNATfVE LOAN TR UST. SERIES 2006-SI C/O OC WEN LOAN SERV ICING. LLC Pt-:OPLE OF T f-ff STATE OF NEW YO RK. CO '.v!rv11 SS T ONER OF TAXATION AN D FfNANCE. CLERK O F I HE SUFFO LK COUNTY DTSTRTCT COURT. Ti\RG ET '\A TIO~A T. B;\ NK. HOUSFIIOLD FINANCT CORPOR1 TION Ill. A TLANTIC CREDIT & F fN i\NCF. INC. \ \/PIO 13'\\'K OF AME RICA. UN fT I·]) STA TL S OF Arv1F RfCA ( 1-:l\S ! l· RN D fS TRfCT). "JOHN DOE 1120.·· the last l\vcnty names hcin g li cti ti ous and unknown to plaintiff. the persons or parties intended being the tenants. occupa nts. persons or corporations. if any. ·.I O f fN DOI · If r .. th roug h : lw\ in g or c l~1imi11 g an in terest in or li en u pon the prem ises . d escribed in the compl a int. De JCndan ts --- ----- ---- -- -------------------- ---- ----------- x l ;p<) N the su111 111011s. ve ril iecl complaint and no1icc 0 1 pcnd cncy · or ac ti on all dul y ll kcl ih.:i-c in _ < lHI due prno i' that all the deit.' ncb nts lrnvc been duly served wit h said summ ons. or have l 1rily a ppeared in th is ac ti o1 and upo n the arti cbv its nf service and the notice(s) o i' 1, \ (Jlu 11t< z01 Lj [* 6] dc!Cnda ms lmL\ l\J COX and SUSAN COX. and upon readin g and filin g the affidav it of' Geo rge .I. MctL'cli S\\Urn tu October 11. 20 13. and the noti ce u!' motion and aflirm at ion o f' Patriqu e Deni :te . ;tlt nf"lh'Y l(lr the plain tiff. both dated Oct ober 2-L 201.1 a11d now <Jn rn ntiun ol' s ·1J\CiG. Tl:RL \'/'. I. CONH :s rON I·: & W :\f3 N IK. f.I Y. attorne ys l(ir plai11ti1r :md ulkr due de libe ratio n ha\ing been had th ereon . it is < >RDU\ l.D. tha t plaintiffs nrntion l'cir summ my jud gme nt be and the same 1 hcrch v s g r< cd: and it is further 1111 (Jf<f)IJ\ U). that the ans \ver of defC ndants BRf 1 N COX and SUSAN CO X be and the same \ is hereby stri cken: and it is further Of<f)f ·:RED. th at the default of a ll other defe ndants with the exception of tho se that put in a notice nl' appearance is confirmed; and it is furth er ORDFRED. th at by re aso n of certain defaults as alleged in the Veritied Co mplaint. that all or th1.: detCncla nt s have been duly served \vith the Su mmon s and Ve rified Co mplaint. except clcknd ants Su1n111otb --.ror IN DOf~iQ()"' who were not served copies of the and Vcrilied Compl aint and arc not necessary parties to this action. and it is further Of~f)f]\IJ) , hLls sue h DOE #3" through ··.rCHIN C\ th at the time for all clclcndant s to appea r or ans\.ver has not been extended nor tcnsion been rcq ucstcd and al I u 1 l he de l'cnda n ts . wit h th e except ion of delcndant s · fml :\ i\ COX . SUSAN C OX and UN!TI]) STAI .LS 01 ,;\MERI C;\ (LASTf:RN DISTRI CT). arc 110\\ in dcf~tul t :thscntcL·s: dlld ror want or pleading it is l'urthcr and that none or the clcfcncl ants arc infant s. inco mpdcnts or [* 7] r-· :111.I 11rnrtg<1gc upon which this ;iction \\3S hruugh t ;ind to examine v ;111d report whether the 1 n·· and SOUT!IVTIJ.I: nwrl g:tgL·d premises can be sold in one parcel: and it is rurthcr ( >Rl)l·R IJ). that MR . COX he substituted fr1 r ··.JOI! 1 DOF Pl · 11\(J l.l' l '\ [ CORP . he suhstilutcd l(n ··JOI! ~ DOI ·: if '}. " as a party dc tendanls in the caption of' : thi s ;1ctiu11: ;ind it is runher Ol(l)l : RIJ). tha t the de!Cndants captioned dS "JOI IN DOL In" through "JO H DOE #20 ... not having been served \Vith copies 0 1 the summons and veririccl comp laint, arc neither necessary · nor proper part y dct'endants and their namc( s) a rc hereby stri cken from the caption of this action: ~111d it is i'urther ORDERED h ' I at pursuan1 to CPL . a fee of$ 5/Vl . ,.... '" R 8003 (~) in lhe discretion of the comp t~ shall be paid lo the R 1 fc the Court · u allon stage and upo Iii' . c crec or n ' mg ofhis/her report GRANTED MAY 3 0 20\4 Judith A. Pascale :N ,,. OF SUFFOLK coUN CLER" HON. JERRY GAJ?GF!I ~

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