Federal Natl. Mtge. Assn. v Penalver

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Federal Natl. Mtge. Assn. v Penalver 2014 NY Slip Op 33397(U) December 19, 2014 Supreme Court, Suffolk County Docket Number: 9034-13 Judge: W. Gerard Asher 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 INDEX NO.: 9034-13 SUPREME COURT- STATE OF NEW YORK IAS PART 28 - SUFFOLK COUNTY PRESENT: Hon. W. GERARD ASHER Justice of the Supreme Court FEDERAL NATIONAL MORTGAGE ASSOCIATION MOTION DATE 5-22-14 ADJ. DATE _ _ _ __ Mot. Seq. #001-MotD Plaintiff, ROSICKI, ROSICKI & ASSOCIATES, P.C. Attorneys for Plaintiff 26 Han-ester Avenue Batavia, N. Y. 14020 -againstROBERTO PENALVER; JPMORGAN CHASE BANK N.A.; "JOHN DOES" and "JANE DOES", said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien against the premises, ROBERT PENALVER Defendant Pro Se 114 Coventry Avenue Mastic, N. Y. 11950 Defendants. Upon the following papers numbered I to 8 read on this motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers I - 8 ; Notice of Cross Motion and supporting papers _ _ ; Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers _ _ ; Other _ _ ; (tmd atte1 hea1 i11g eo1:111'el i11 s1:1ppo11 and opposed to the motion) it is, ORDERED that this unopposed motion by the plaintiff for, inter alia, an order awarding summary judgment in its favor against the defendant Roberto Penalver, fixing the defaults of the non-answering defendants, appointing a referee and amending the caption is determined as indicated below; and it is ORDERED that the plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of this Court; and it is further ORDERED that the plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2103(b)(l), (2) or (3) within thirty (30) days of the date herein, and to promptly file the affidavits of service with the Clerk of the Court. [* 2] Federal National Mortgage Association v Penalver, et. al. Index No.: 09034-13 Pg.2 This is an action to foreclose a mortgage on the real property known as 114 Coventry Avenue, Mastic, New York 11950. On July 27, 2004, the defendant Roberto Penalver (the defendant mortgagor) executed a fixed-rate note in favor of Greenpoint Mortgage Funding, Inc. (the lender) in the principal sum of $208,350.00. To secure said note, the defendant mortgagor gave the lender a mortgage also dated July 27, 2004 on the property. The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for the lender and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. By way of a blank endorsement with physical delivery, the note was transferred to Federal National Mortgage Association (the plaintiff). The transfer of the note to the plaintiff was subsequently memorialized by an assignment of the mortgage executed on September 7, 2011. Thereafter, the assignment was duly recorded in the Office ofthe Suffolk County Clerk on January 19, 2013. The defendant mortgagor allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on or about June l, 2011, and each month thereafter. After the defendant mortgagor allegedly failed to cure the default in payment, the plaintiff commenced the instant action by the filing of a lis pendens, summons and complaint on March 28, 2013. Issue was joined by the interposition of the defendant mortgagor's verified answer sworn to on April 9, 2013 . By his answer, the defendant mortgagor admits some of the allegations contained in the complaint, and denies the remaining allegations set forth therein. In the answer, the defendant mortgagor also asserts seventeen affirmative defenses, alleging, among other things, the lack of personal jurisdiction; the lack of standing and legal capacity; fraud and misrepresentation in connection with the origination, servicing and closing of the loan; the lack of good faith with respect to a loan modification; the doctrine of unclean hands; an improperly verified complaint; the failure to state a cause of action; the failure to mitigate damages; and the plaintiffs failure to comply with the provisions of RP APL § 1303 as well as Banking Law§§ 595-a and "61" (repealed L. 2006, ch 703, § 3, effective Sept. 13, 2006), the last of which the Court deems to be an affirmative defense pursuant to Banking Law § 6-1. The remaining defendants have neither appeared nor answered the complaint. In compliance with CPLR 3408, a settlement conference was scheduled to be held before this Court's specialized mortgage foreclosure part on November 21, 2013. On the aforementioned date, this case was dismissed from the conference program because the defendant mortgagor failed to appear or otherwise participate. Accordingly, no further conference is required under any statute, law or rule. The plaintiff now moves for, inter alia, an order: ( 1) pursuant to CPLR 3212 awarding summary judgment in its favor and against the defendant mortgagor, striking his answer and dismissing the affirmative defenses set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due wider the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption. No opposition has been filed in response to this motion. [* 3] Federal National Mortgage Association v Penalver, et. al. Index No.: 09034-13 Pg. 3 A plaintiff in a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl Bank v Deutsch, 88 AD3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Das Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank, F.A. vO'Connor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009]). 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 action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff' (Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 2010], quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467, 644 NYS2d 345 [2d Dept 1997]). By its submissions, the plaintiff established its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212; RP APL § 1321; Wachovia Bank, N.A. v Carcano, 106 AD3d 724, 965 NYS2d 516 [2d Dept 2013]; U.S. Bank, N.A. v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Capital One, N.A. v Knollwood Props. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]). In the instant case, the plaintiff produced, inter alia, the endorsed note, the mortgage, the assignment and evidence of nonpayment (see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, 655 NYS2d 631 [2d Dept 1997]; First Trust Natl. Assn. v Meisels, 234 AD2d 414, 651 NYS2d 121 [2d Dept 1996)). The plaintiff also submitted proof of compliance with the notice requirements of RP APL§ 1303 (see, U.S. Bank N.A. v Tate, 102 AD3d 859, 958 NYS2d 722 [2d Dept 2013]; Wachovia Bank, N.A. v Carcano, 106 AD3d 724, supra,' see also, Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 923 NYS2d 609 [2d Dept 2011 ]). Further, the plaintiff submitted an affidavit from its representative wherein it is alleged that the plaintiff, directly or through a custodian, has been in continuous possession of the endorsed note by physical delivery on June 1, 2010, a date being prior to commencement, and that it maintained possession ofthe same since that date (see, Kondaur Capital Corp. v McCary, 115 AD3d 649, 981NYS2d547 [2d Dept 2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 969NYS2d 82 [2d Dept 2013]; HSBC Bank USA, N.A. vAvila, 2013 NY Misc LEXIS 4521, 2013 WL 5606741, 2013 NY Slip Op 32412 [U] [Sup Ct, Suffolk County 2013)). The documentary evidence submitted also includes, among other things, the note transferred via an endorsement in blank (cf, Slutsky v Blooming Grove Inn, Inc., 147 AD2d 208, 542 NYS2d 721 [2d Dept 1989]). Therefore, it appears that the plaintiff is the owner and the holder of the original note and the assignee of the mortgage by virtue of the written assignment. Thus, the plaintiff demonstrated its prima facie burden as to the merits of this foreclosure action and as to its standing. The plaintiff also submitted sufficient proof to establish, prima facie, that the remaining affirmative defenses set forth in the defendant mortgagor's answer are subject to dismissal due to their unmeritorious nature (see, Becher v Feller, 64 AD3d 672, 884 NYS2d 83 [2d Dept 2009]; Wells Fargo Bank Minn., N.A. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 2007]; Coppa v Fabozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [unsupported affirmative defenses are lacking in merit]; see also, Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178, 919 NYS2d 465 [2011] [CPLR 3016(b) requires that the circumstances of fraud be "stated in detail," including specific dates and items]; Bank of America, N.A. v Lucido, 114 AD3d 714, 981 NYS2d 433 [2d Dept 2014] [plaintiffs refusal to consider a reduction in principal does not establish a failure to negotiate in good faith]; Washington Mut. Bank v Schenk, 112 AD3d 615, 975 NYS2d 902 [2d Dept 2013) [plaintiff not obligated to accept a tender [* 4] Federal National Mortgage Association v Penalver, et. al. Index No.: 09034-13 Pg.4 of Jess than full repayment as demanded]; Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638, 958 NYS2d 331 [1st Dept 2012] [defense based upon the doctrine of unclean hands lacks merit where a defendant fails to come forward with admissible evidence of showing immoral or unconscionable behavior]; Patterson v Somerset Jnvs. Corp., 96 AD3d 817, 817, 946 NYS2d 217 [2d Dept 2012] ["a party who signs a document without any valid excuse for having failed to read it is 'conclusively bound' by its terms"]; Shufelt v Bu/famante, 92 AD3d 936, 940 NYS2d 108 (2d Dept 2012] [dispute as to amount owed by the mortgagor is not a defense to a foreclosure action]; Grogg v South Rd. Assoc., L.P., 74 AD3d I 021, 907 NYS2d 22 [2d Dept 201 OJ [the mere denial of receipt of the notice of default is insufficient to rebut the presumption of delivery]). Furthermore, with respect to the assertion set forth in the tenth affirmative defense that the defendant mortgagor was improperly refused a loan modification, there is ample authority emanating from the Appellate Division holding that "[n]othing in CPLR 3408 requires plaintiff to make the exact offer desired by [the] defendant[], and [the] plaintiffs failure to make that offer cannot be interpreted as a lack of good faith" (Bank ofAmerica, N.A. v Lucido, 114 AD3d 714, supra at 715-16, quoting Wells Fargo Bank, N.A. v Van Dyke, 101AD3d638, supra at 638). Moreover, there is no requirement that a complaint in a foreclosure action be verified (see generally, CPLR 3020; see also, CPLR 3022). As the plaintiff duly demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagor (see, HSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d 598 [3d Dept 2007]). Accordingly, it was incumbent upon the defendant mortgagor 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, Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793, 946 NYS2d 611 [2d Dept 2012]; Washington Mut. Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]). Self-serving and conclusory allegations do not raise issues of fact, and do not require the plaintiff to respond to alleged affirmative defenses which are based on such allegations (see, Charter One Bank, FSB v Leone, 45 AD3d 958, 845 NYS2d 513 [2d Dept 2007]; Rosen Auto Leasing, Inc. v Jacobs, 9 AD3d 798, 780 NYS2d 438 [3d Dept 2004]). In instances where 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, Kuehne & Nagel v Baiden, 36 NY2d 539, 369 NYS2d 667 [1975]; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1'1 Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 915 NYS2d 591 [2d Dept 201 OJ). Additionally, "uncontradicted facts are deemed admitted" ( Tortorello v Carlin, 260 AD2d 20 l, 206, 688 NYS2d 64 [ l 51 Dept 1999] [internal quotation marks and citations omitted]). The defendant mortgagor's answer is insufficient, as a matter of law, to defeat the plaintiff's motion (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012];Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra). In this case, the affirmative defenses asserted by the defendant mortgagor are factually unsupported and without apparent merit (see, Becher v Feller, 64 AD3d 672, supra). In any event, the failure by the defendant mortgagor to raise and/or assert each of his pleaded defenses by way of admissible proof in opposition to the plaintiffs motion warrants the dismissal of the same as abandoned under the case authorities cited above (see, Kuehne & Nagel v Baiden, 36 NY2d 539, [* 5] Federal National Mortgage Association v Penalver, et. al. Index No.: 09034-13 Pg. 5 supra; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606, 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, Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Argent Mtge. Co., LLC v Mentesana, 79 AD3d I 079, supra; Rossrock Fund II, L.P. v Commack Inv. Group, Inc., 78 AD3d 920, 912 NYS2d 71 [2d Dept 201 O]; see generally, Hermitage Ins. Co. v Trance Nile Club, Inc., 40 AD3d 1032, 834 NYS2d 870 [2d Dept 2007]). The plaintiff, therefore, is awarded summary judgment in its favor against the defendant mortgagor (see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, supra; see generally, Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [ 1980]). Accordingly, the defendant mortgagor's answer is stricken, and the affirmative defenses set forth therein are dismissed. The branch of the instant motion wherein the plaintiff seeks an order pursuant to CPLR 1024 amending the caption by excising the fictitious named defendants, John Does and Jane Does, is granted (see, PHH Mtge. Corp. v Davis, 111 AD3d 1110, 975 NYS2d 480 [3d Dept 2013]; Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Neighborhood Hous. Servs. of N. Y. City, Inc. v Meltzer, 67 AD3d 872, 889 NYS2d 627 (2d Dept 2009]). By its submissions, the plaintiff established the basis for the above-noted relief. All future proceedings shall be captioned accordingly. By its moving papers, the plaintiff further established the default in answering on the part of the defendant JPMorgan Chase Bank, N.A. (JPMorgan) (see, RPAPL § 1321; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 (2d Dept 2011]). Accordingly, the default of JPMorgan is fixed and determined. Since the plaintiff has been awarded summary judgment against the defendant mortgagor, and has established the default in answering by JPMorgan, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see, RP APL§ 1321; Green Tree Servicing, LLC v Cary, 106 AD3d 691, 965 NYS2d 511 (2d Dept 2013 ]; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527, 794 NYS2d 650 [2d Dept 2005]; Vermont Fed. Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Bank of E. Asia v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]). Accordingly, this motion for, inter alia, summary judgment and an order of reference is determined as indicated above. The proposed long form order appointing a referee to compute pursuant to RP APL § 1321, as modified by the Court, has been signed concurrently herewith. Dated: f>.tet>J;~ J.0f)A_J;JrW 1q , io1'4 FINAL DISPOSITION Hon. W. GERARD ASHER, J.S.C. X NON-FINAL DISPOSITION

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