U.S. Bank Natl. Assn. v Marcelo
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U.S. Bank Natl. Assn. v Marcelo
2015 NY Slip Op 51812(U)
Decided on November 13, 2015
Supreme Court, Queens County
McDonald, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 13, 2015
Supreme Court, Queens County
U.S. Bank National Association, as Trustee for Adjustable Rate Mortgage Trust 2006-3, Adjustable Rate Mortgage-backed Pass-through Certificates, Series 2006-3, Plaintiff,
against
Silvia Marcelo; CITY REGISTER OF THE CITY OF NEW YORK, QUEENS COUNTY; MORTGAGE REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FREMONT INVESTMENT & LOAN; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR GREENPOINT MORTGAGE FUNDING INC.; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; JOHN DOE (being fictitious, the names unknown to Plaintiff intended to be tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heirs at law, distributees, executors, administrators, trustees, guardians assignees, creditors or successors, Defendants.
14566/2013
Robert J. McDonald, J.
Numbered Notice of Motion-Affidavits-Exhibits-Memo. of Law.....1 - 5
Affirmation in Opposition.............................6
Reply Memo. of Law....................................7
This is an action to foreclose a mortgage encumbering property located at 43-06 53rd Street, Woodside, New York 11377.
On May 30, 2006, defendant obtained a loan in the principal amount of $588,000.00 from First United Mortgage Banking Corp. secured by a mortgage encumbering the subject premises. The note was endorsed in blank by First United Mortgage Banking Corp. On July 1, 2006, the note and mortgage were transferred, assigned, set over and otherwise conveyed to plaintiff pursuant to a Pooling and Servicing Agreement (PSA). Plaintiff asserts that defendant defaulted on the note and mortgage when she failed to make the monthly mortgage payments beginning on January 1, 2010 and continuing thereafter.
Plaintiff alleges that a notice of default was mailed to defendant on March 18, 2013 pursuant to the terms of the mortgage. A 90 day pre-foreclosure notice was mailed to defendant on March 18, 2013 as well. Plaintiff subsequently accelerated the mortgage and commenced this action by filing a lis pendens and summons and complaint on July 31, 2013. Plaintiff submits affidavits of service on all of the named defendants, including Osana Morales, sued herein as John Doe 1. Defendant borrower filed a Notice of Appearance, Verified Answer and Counterclaims dated August 28, 2013. All other defendants defaulted in appearing.
Pursuant to CPLR 3408, a residential foreclosure settlement conference was held on September 18, 2014, defendant failed to appear, and plaintiff was permitted to proceed with this foreclosure action. Court Attorney-Referee, Toni Cimino, Esq., noted that there have been two denials for modifications in the residential foreclosure part based upon "unaffordability".
It is well settled that a plaintiff in a mortgage foreclosure action establishes a prima facie case of entitlement to summary judgment through submission of proof of the existence of the underlying note, mortgage, and default in payment after due demand (see American Airlines Federal Credit Union v Mohamed, 117 AD3d [2d Dept. 2014]; TD Bank, N.A. v 126 Spruce Street, LLC, 117 AD3d 716 [2d Dept. 2014]; Citibank, N.A. v Van Brunt Properties, LLC, 95 AD3d [2d Dept. 2012]). Upon such a showing, the burden shifts to defendant to produce evidence in admissible form sufficient to raise a material issue of fact requiring a trial.
In support of the motion for summary judgment, plaintiff submits the affirmation of counsel, Jeffrey A. Dougherty, Esq.; a copy of the pleadings; copies of the affidavits of service upon all defendants; a copy of the Residential Foreclosure Conference Order; a copy of the notes, mortgages, satisfaction of prior mortgages, and assignments; the affidavit of Alisha Mulder, a Vice President Loan Documentation for Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc. d/b/a America's Servicing Company (Wells Fargo), the servicer for plaintiff; a copy of the PSA dated July 1, 2006; a copy of the Uniform Residential Loan Application; a copy of the Truth in Lending Disclosure Statement; a copy of the U.S Department of Housing and Urban Development Statement; a copy of the notice of default and 90 day pre-foreclosure notice; a copy of the New York State Banking Department Filing Statement; and an affidavit from Laura M. Strauss, Esq. with exhibits.
In the affidavit of merit, Ms. Mulder states that based upon her personal review of plaintiff's business records, defendant executed and delivered a note and mortgage to Mortgage Electronic Registration Systems, Inc. as nominee for First United Mortgage Banking Corp. on May 30, 2006. She states that on July 1, 2006 the note and mortgage were transferred to plaintiff pursuant to the PSA and affirms that Wells Fargo, as servicer for plaintiff, was in possession of the note and mortgage as of October 17, 2006. The note was indorsed in blank. She affirms that the note and mortgage were released to plaintiff's foreclosure counsel and counsel advised that it received the Note and Mortgage on July 1, 2013. Ms. Strauss' affidavit confirms such. Ms. Mulder attests that there is in fact a default under the terms and conditions of the note and mortgage because the January 1, 2010 mortgage payment was not timely made. She confirms that both the notice of default and 90 day pre-foreclosure notice were sent to defendant on March 18, 2013.
Plaintiff contends that it has made a prima facie showing that it is entitled to summary judgment based upon its submission of the note, mortgage, PSA, assignment, and Ms. Mulder's affidavit evidencing defendant's failure to make the contractually required loan payments and stating that plaintiff was the holder of the note prior to commencement of this action.
In opposition, defendant contends that plaintiff lacks standing, that Ms. Mulder's affidavit is insufficient as a basis for summary judgment, and that she was not properly reviewed for a loan modification.
"Where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief" (Aurora Loan Services, LLC v. Taylor, 114 AD3d 627 [2d Dept. 2014][internal citations omitted]; see Midfirst Bank v. Agho, 121 AD3d 343 [2d Dept. 2014]; U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept. 2009]). A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the underlying note at the time the action is commenced (see Aurora Loan Services, LLC v. Taylor, 114 AD3d 627 [2d Dept. 2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931 [2d Dept. 2013]; Bank of NY v Silverberg, 86 AD3d 274 [2d Dept. 2011]).
This Court finds that the evidence submitted by plaintiff, including a copy of the note and [*3]an affidavit from Ms. Mulder stating that based upon a personal review of the records, plaintiff was in possession of the note and mortgage prior to commencing this action, is sufficient to establish standing to commence the action (see Bank of NY v Silverberg, 86 AD3d 274 [2d Dept. 2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept. 2009]). "Where a note is transferred, a mortgage securing the debt passes as an incident to the note" (Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909 [2d Dept. 2013]). Therefore, "either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation" (HSBC Bank USA v Hernandez, 92 AD3d 843 [2d Dept. 2012]). Since the mortgage passes with the debt that is evidenced by the note as an inseparable incident thereto, plaintiff established its standing to commence the within action (see US Bank Natl. Assn. v Cange, 96 AD3d 825 [2d Dept. 2012]; U.S. Bank, NA v Sharif, 89 AD3d 723[2d Dept 2011]). Accordingly, plaintiff has demonstrated its standing by demonstrating that it was the holder of, and in possession of, the note at the time this action was commenced.
Regarding defendant's contest of Ms. Mulder's affidavit, "a witness who is familiar with the practices of a company that produced the records at issue, and who generally relies upon such records, may have the requisite knowledge to meet the CPLR requirements for the admission of a business record, provided that the witness can also attest that (1) the record was made in the regular course of business; (2) it was the regular course of business to make such record; and (3) the record was made contemporaneously with the relevant event, thereby assuring its reliability" (People v Brown, 13 NY3d 332, 341 [2009]). The factual allegations set forth in Ms. Mulder's affidavit, including her personal review of the records and the annexed PSA, sufficiently established the admissibility of her statements under the business records exception to the hearsay rule (see Portfolio Recovery Assoc., LLC v Lall, 127 AD3d 576 [1st Dept. 2015]; Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336 [1st Dept. 2006]; Bank of Am., NA v. Maeder, 16 NYS3d 791 (Sup. Ct., Suffolk Cnty. 2015]).
Lastly, the fact that defendant wishes to modify the mortgage is not a defense to the foreclosure action, and the court may not endeavor to force an agreement upon plaintiff (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d [2d Dept. 2013]). Defendant does not dispute the note, mortgage, and default thereunder.
As defendant has failed to raise a material issue of fact in opposition, plaintiff is entitled to the relief sought (see Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793 [2d Dept. 2012]; Wells Fargo Bank Minn., Natl. Assn. v Perez, 41 AD3d 590 [2d Dept. 2007], lv dismissed 10 NY3d 791 [2008]). However, the granting of the within motion does not in any way eliminate the possibility that in the future a short sale, loan modification, forbearance, reinstatement and/or workout agreement may be entered into should defendant so qualify.
Order of Reference signed simultaneously herewith.
Dated: November 13, 2015
Decided on November 13, 2015
Supreme Court, Queens County
U.S. Bank National Association, as Trustee for Adjustable Rate Mortgage Trust 2006-3, Adjustable Rate Mortgage-backed Pass-through Certificates, Series 2006-3, Plaintiff,
against
Silvia Marcelo; CITY REGISTER OF THE CITY OF NEW YORK, QUEENS COUNTY; MORTGAGE REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FREMONT INVESTMENT & LOAN; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR GREENPOINT MORTGAGE FUNDING INC.; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; JOHN DOE (being fictitious, the names unknown to Plaintiff intended to be tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heirs at law, distributees, executors, administrators, trustees, guardians assignees, creditors or successors, Defendants.
14566/2013
Robert J. McDonald, J.
The following papers numbered 1 to 7 read on this motion by plaintiff for an Order granting plaintiff summary judgment, striking the Verified Answer and Counterclaims of defendant [*2]SILVIA MARCELO (defendant) and treating her answer as a limited Notice of Appearance; amending the caption of this action; appointing a Referee to compute the amount due to plaintiff; determining that all of the non-answering defendants be deemed in default; and declaring that any prior adverse liens are invalid and extinguished:
Papers
Numbered Notice of Motion-Affidavits-Exhibits-Memo. of Law.....1 - 5
Affirmation in Opposition.............................6
Reply Memo. of Law....................................7
This is an action to foreclose a mortgage encumbering property located at 43-06 53rd Street, Woodside, New York 11377.
On May 30, 2006, defendant obtained a loan in the principal amount of $588,000.00 from First United Mortgage Banking Corp. secured by a mortgage encumbering the subject premises. The note was endorsed in blank by First United Mortgage Banking Corp. On July 1, 2006, the note and mortgage were transferred, assigned, set over and otherwise conveyed to plaintiff pursuant to a Pooling and Servicing Agreement (PSA). Plaintiff asserts that defendant defaulted on the note and mortgage when she failed to make the monthly mortgage payments beginning on January 1, 2010 and continuing thereafter.
Plaintiff alleges that a notice of default was mailed to defendant on March 18, 2013 pursuant to the terms of the mortgage. A 90 day pre-foreclosure notice was mailed to defendant on March 18, 2013 as well. Plaintiff subsequently accelerated the mortgage and commenced this action by filing a lis pendens and summons and complaint on July 31, 2013. Plaintiff submits affidavits of service on all of the named defendants, including Osana Morales, sued herein as John Doe 1. Defendant borrower filed a Notice of Appearance, Verified Answer and Counterclaims dated August 28, 2013. All other defendants defaulted in appearing.
Pursuant to CPLR 3408, a residential foreclosure settlement conference was held on September 18, 2014, defendant failed to appear, and plaintiff was permitted to proceed with this foreclosure action. Court Attorney-Referee, Toni Cimino, Esq., noted that there have been two denials for modifications in the residential foreclosure part based upon "unaffordability".
It is well settled that a plaintiff in a mortgage foreclosure action establishes a prima facie case of entitlement to summary judgment through submission of proof of the existence of the underlying note, mortgage, and default in payment after due demand (see American Airlines Federal Credit Union v Mohamed, 117 AD3d [2d Dept. 2014]; TD Bank, N.A. v 126 Spruce Street, LLC, 117 AD3d 716 [2d Dept. 2014]; Citibank, N.A. v Van Brunt Properties, LLC, 95 AD3d [2d Dept. 2012]). Upon such a showing, the burden shifts to defendant to produce evidence in admissible form sufficient to raise a material issue of fact requiring a trial.
In support of the motion for summary judgment, plaintiff submits the affirmation of counsel, Jeffrey A. Dougherty, Esq.; a copy of the pleadings; copies of the affidavits of service upon all defendants; a copy of the Residential Foreclosure Conference Order; a copy of the notes, mortgages, satisfaction of prior mortgages, and assignments; the affidavit of Alisha Mulder, a Vice President Loan Documentation for Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc. d/b/a America's Servicing Company (Wells Fargo), the servicer for plaintiff; a copy of the PSA dated July 1, 2006; a copy of the Uniform Residential Loan Application; a copy of the Truth in Lending Disclosure Statement; a copy of the U.S Department of Housing and Urban Development Statement; a copy of the notice of default and 90 day pre-foreclosure notice; a copy of the New York State Banking Department Filing Statement; and an affidavit from Laura M. Strauss, Esq. with exhibits.
In the affidavit of merit, Ms. Mulder states that based upon her personal review of plaintiff's business records, defendant executed and delivered a note and mortgage to Mortgage Electronic Registration Systems, Inc. as nominee for First United Mortgage Banking Corp. on May 30, 2006. She states that on July 1, 2006 the note and mortgage were transferred to plaintiff pursuant to the PSA and affirms that Wells Fargo, as servicer for plaintiff, was in possession of the note and mortgage as of October 17, 2006. The note was indorsed in blank. She affirms that the note and mortgage were released to plaintiff's foreclosure counsel and counsel advised that it received the Note and Mortgage on July 1, 2013. Ms. Strauss' affidavit confirms such. Ms. Mulder attests that there is in fact a default under the terms and conditions of the note and mortgage because the January 1, 2010 mortgage payment was not timely made. She confirms that both the notice of default and 90 day pre-foreclosure notice were sent to defendant on March 18, 2013.
Plaintiff contends that it has made a prima facie showing that it is entitled to summary judgment based upon its submission of the note, mortgage, PSA, assignment, and Ms. Mulder's affidavit evidencing defendant's failure to make the contractually required loan payments and stating that plaintiff was the holder of the note prior to commencement of this action.
In opposition, defendant contends that plaintiff lacks standing, that Ms. Mulder's affidavit is insufficient as a basis for summary judgment, and that she was not properly reviewed for a loan modification.
"Where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief" (Aurora Loan Services, LLC v. Taylor, 114 AD3d 627 [2d Dept. 2014][internal citations omitted]; see Midfirst Bank v. Agho, 121 AD3d 343 [2d Dept. 2014]; U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept. 2009]). A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the underlying note at the time the action is commenced (see Aurora Loan Services, LLC v. Taylor, 114 AD3d 627 [2d Dept. 2014]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931 [2d Dept. 2013]; Bank of NY v Silverberg, 86 AD3d 274 [2d Dept. 2011]).
This Court finds that the evidence submitted by plaintiff, including a copy of the note and [*3]an affidavit from Ms. Mulder stating that based upon a personal review of the records, plaintiff was in possession of the note and mortgage prior to commencing this action, is sufficient to establish standing to commence the action (see Bank of NY v Silverberg, 86 AD3d 274 [2d Dept. 2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept. 2009]). "Where a note is transferred, a mortgage securing the debt passes as an incident to the note" (Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909 [2d Dept. 2013]). Therefore, "either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation" (HSBC Bank USA v Hernandez, 92 AD3d 843 [2d Dept. 2012]). Since the mortgage passes with the debt that is evidenced by the note as an inseparable incident thereto, plaintiff established its standing to commence the within action (see US Bank Natl. Assn. v Cange, 96 AD3d 825 [2d Dept. 2012]; U.S. Bank, NA v Sharif, 89 AD3d 723[2d Dept 2011]). Accordingly, plaintiff has demonstrated its standing by demonstrating that it was the holder of, and in possession of, the note at the time this action was commenced.
Regarding defendant's contest of Ms. Mulder's affidavit, "a witness who is familiar with the practices of a company that produced the records at issue, and who generally relies upon such records, may have the requisite knowledge to meet the CPLR requirements for the admission of a business record, provided that the witness can also attest that (1) the record was made in the regular course of business; (2) it was the regular course of business to make such record; and (3) the record was made contemporaneously with the relevant event, thereby assuring its reliability" (People v Brown, 13 NY3d 332, 341 [2009]). The factual allegations set forth in Ms. Mulder's affidavit, including her personal review of the records and the annexed PSA, sufficiently established the admissibility of her statements under the business records exception to the hearsay rule (see Portfolio Recovery Assoc., LLC v Lall, 127 AD3d 576 [1st Dept. 2015]; Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336 [1st Dept. 2006]; Bank of Am., NA v. Maeder, 16 NYS3d 791 (Sup. Ct., Suffolk Cnty. 2015]).
Lastly, the fact that defendant wishes to modify the mortgage is not a defense to the foreclosure action, and the court may not endeavor to force an agreement upon plaintiff (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d [2d Dept. 2013]). Defendant does not dispute the note, mortgage, and default thereunder.
As defendant has failed to raise a material issue of fact in opposition, plaintiff is entitled to the relief sought (see Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793 [2d Dept. 2012]; Wells Fargo Bank Minn., Natl. Assn. v Perez, 41 AD3d 590 [2d Dept. 2007], lv dismissed 10 NY3d 791 [2008]). However, the granting of the within motion does not in any way eliminate the possibility that in the future a short sale, loan modification, forbearance, reinstatement and/or workout agreement may be entered into should defendant so qualify.
Order of Reference signed simultaneously herewith.
Dated: November 13, 2015
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
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