Wells Fargo Bank, N.A. v Acheampong
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Wells Fargo Bank, N.A. v Acheampong
2015 NY Slip Op 51813(U)
Decided on November 9, 2015
Supreme Court, Queens County
McDonald, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2015
Supreme Court, Queens County
Wells Fargo Bank, N.A., Plaintiff,
against
Eric Acheampong; GLORIA NIMOH; THE UNITED STATES OF AMERICA ACTING THROUGH THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT; CRIMINAL COURT OF THE CITY OF NEW YORK; CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; CITY OF NEW YORK PARKING VIOLATIONS BUREAU; CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU and "JOHN DOE", said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises., Defendants.
701534/2015
Robert J. McDonald, J.
Numbered Notice of Motion-Affidavits-Exhibits..................1 - 5
Affirmation in Opposition-Exhibits....................6 - 7
Affirmation in Reply-Exhibits.........................8 - 9
This is an action to foreclose a mortgage encumbering property located at 194-43 112th Avenue, Saint Albans, New York 11412.
On December 26, 2013, defendants entered into a Modified Mortgage with plaintiff in the principal amount of $368.957.45. The Modified Mortgage modified the mortgage given be defendants to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Ameritrust Mortgage Bankers, Inc. dated September 2, 2009 and the loan modification agreement given by defendants to MERS as nominee for plaintiff dated May 2, 2011. Plaintiff asserts that defendants defaulted on the Modified Mortgage when they failed to make the monthly mortgage payments beginning on March 1, 2014 and continuing thereafter.
Plaintiff alleges that a notice of default and a 90 day pre-foreclosure notice were mailed to defendants. Plaintiff subsequently accelerated the mortgage and commenced this action by filing a lis pendens and summons and complaint on February 18, 2015. Plaintiff submits affidavits of service on all of the named defendants. Defendant The United States of America acting through the Secretary of Housing and Urban Development filed a Notice of Appearance and waived service of this application. Defendant borrowers served an Answer with affirmative defenses and counterclaims. All other defendants are in default.
Pursuant to CPLR 3408, a residential foreclosure settlement conference was held on May 7, 2015, the case was not settled, and plaintiff was permitted to proceed with this action. Referee Toni Cimino noted that "the defendant received an FHA HAMP Partial Claim in 2/2014; thus, he cannot apply for another mod. for 24 months from that time."
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 defendants 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, Alexander Phengsiaroun, Esq.; the affidavit of Renee Hicks, Vice President Loan Documentation [*2]of plaintiff; copies of the note, mortgage, loan modification, and assignments; a copy of the notice of default and 90 day pre-foreclosure notice; a copy of the pleadings; copies of the affidavits of service on all defendants; and a copy of the certificate of merit.
In the affidavit of merit, Renee Hicks states that based upon a personal review of plaintiff's business records, plaintiff is in possession of the note which was indorsed in blank. She states that defendants are in default under the terms and conditions of the note and mortgage because the March 1, 2014 and subsequent payments were not made. Ms. Hicks affirms that a 90 day pre-foreclosure notice was mailed and filed with the superintendent of banks. She also affirms that the mortgage does not require a notice of default, but one was mailed to defendants at their last known address.
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, Modified Mortgage, assignment, and Renee Hicks' affidavit evidencing defendants' failure to make the contractually required loan payments and that plaintiff was the holder of the note prior to commencement of this action.
In opposition, defendants contend that plaintiff lacks standing, plaintiff failed to comply with RPAPL 1304, and summary judgment is premature as discovery has not yet been conducted.
"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 an affidavit from Renee Hicks stating that based upon a personal review of the records plaintiff is in possession of the note, 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 [*3]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]). Here, plaintiff is foreclosing upon the Modified Mortgage dated December 26, 2013 in which plaintiff was the original lender. Accordingly, as 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, any challenge to the assignments is insufficient to demonstrate that plaintiff lacks standing.
Defendants also allege that plaintiff did not proffer sufficient evidence establishing that it complied with RPAPL 1304. RPAPL 1304 provides that at least 90 days before a lender begins an action against a borrower to foreclose on a mortgage, the lender must provide notice to the borrower that the loan is in default and his or her home is at risk (see Aurora Loan Services, LLC v Weisblum, 85 AD3d 95 [2d Dept. 2011]). "[P]roper service of the RPAPL § 1304 notice on the borrower or borrowers is a condition precedent to the commencement of the foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Id. at 107). The presumption of receipt by the addressee "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept. 2001]).
Plaintiff submits Ms. Hicks' affidavit to demonstrate compliance with RPAPL 1304. Ms. Hicks affirms that plaintiff sent the 90 day notice by certified and first class mail to defendants at the mortgaged property. A copy of the notice is annexed to the motion papers, is dated October 23, 2014, and is addressed to defendants at the mortgaged premises. As Ms. Hicks has identified that the business records were personally reviewed and that the notice was sent to defendants, plaintiff presented sufficient proof that it complied with RPAPL 1304. Moreover, defendants do not deny receipt of the notice.
Lastly, defendants' contend that outstanding discovery bars summary judgment. The "mere hope and speculation that additional [*4]discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient" to warrant a denial of summary judgment (see Sasson v Setina Mfg. Co., Inc., 26 AD3d 487 [2d Dept. 2006]). Moreover, defendants do not dispute the existence of the note, mortgage and default thereunder.
The remainder of defense counsel's affirmation is insufficient to raise a question of fact. As defendants have 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]).
Therefore, plaintiff's motion for summary judgment is granted and the affirmative defenses contained in defendants' answer are stricken. Plaintiff's application for the appointment of a referee to compute the amounts due under the subject mortgage is also granted and the caption shall be amended by striking the defendant sued herein as "John Doe".
Order of Reference signed contemporaneously herewith.
Dated: November 9, 2015
______________________________
Decided on November 9, 2015
Supreme Court, Queens County
Wells Fargo Bank, N.A., Plaintiff,
against
Eric Acheampong; GLORIA NIMOH; THE UNITED STATES OF AMERICA ACTING THROUGH THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT; CRIMINAL COURT OF THE CITY OF NEW YORK; CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; CITY OF NEW YORK PARKING VIOLATIONS BUREAU; CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU and "JOHN DOE", said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises., Defendants.
701534/2015
Robert J. McDonald, J.
The following papers numbered 1 to 9 read on this motion by plaintiff for an Order directing the entry of summary judgment in favor of the plaintiff and against defendants ERIC ACHEAMPONG and GLORIA NIMOH (collectively hereinafter defendants); granting default judgment against all other parties in default of answering; directing appointment of a referee to compute; and amending the caption of this action:
Papers
Numbered Notice of Motion-Affidavits-Exhibits..................1 - 5
Affirmation in Opposition-Exhibits....................6 - 7
Affirmation in Reply-Exhibits.........................8 - 9
This is an action to foreclose a mortgage encumbering property located at 194-43 112th Avenue, Saint Albans, New York 11412.
On December 26, 2013, defendants entered into a Modified Mortgage with plaintiff in the principal amount of $368.957.45. The Modified Mortgage modified the mortgage given be defendants to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Ameritrust Mortgage Bankers, Inc. dated September 2, 2009 and the loan modification agreement given by defendants to MERS as nominee for plaintiff dated May 2, 2011. Plaintiff asserts that defendants defaulted on the Modified Mortgage when they failed to make the monthly mortgage payments beginning on March 1, 2014 and continuing thereafter.
Plaintiff alleges that a notice of default and a 90 day pre-foreclosure notice were mailed to defendants. Plaintiff subsequently accelerated the mortgage and commenced this action by filing a lis pendens and summons and complaint on February 18, 2015. Plaintiff submits affidavits of service on all of the named defendants. Defendant The United States of America acting through the Secretary of Housing and Urban Development filed a Notice of Appearance and waived service of this application. Defendant borrowers served an Answer with affirmative defenses and counterclaims. All other defendants are in default.
Pursuant to CPLR 3408, a residential foreclosure settlement conference was held on May 7, 2015, the case was not settled, and plaintiff was permitted to proceed with this action. Referee Toni Cimino noted that "the defendant received an FHA HAMP Partial Claim in 2/2014; thus, he cannot apply for another mod. for 24 months from that time."
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 defendants 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, Alexander Phengsiaroun, Esq.; the affidavit of Renee Hicks, Vice President Loan Documentation [*2]of plaintiff; copies of the note, mortgage, loan modification, and assignments; a copy of the notice of default and 90 day pre-foreclosure notice; a copy of the pleadings; copies of the affidavits of service on all defendants; and a copy of the certificate of merit.
In the affidavit of merit, Renee Hicks states that based upon a personal review of plaintiff's business records, plaintiff is in possession of the note which was indorsed in blank. She states that defendants are in default under the terms and conditions of the note and mortgage because the March 1, 2014 and subsequent payments were not made. Ms. Hicks affirms that a 90 day pre-foreclosure notice was mailed and filed with the superintendent of banks. She also affirms that the mortgage does not require a notice of default, but one was mailed to defendants at their last known address.
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, Modified Mortgage, assignment, and Renee Hicks' affidavit evidencing defendants' failure to make the contractually required loan payments and that plaintiff was the holder of the note prior to commencement of this action.
In opposition, defendants contend that plaintiff lacks standing, plaintiff failed to comply with RPAPL 1304, and summary judgment is premature as discovery has not yet been conducted.
"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 an affidavit from Renee Hicks stating that based upon a personal review of the records plaintiff is in possession of the note, 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 [*3]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]). Here, plaintiff is foreclosing upon the Modified Mortgage dated December 26, 2013 in which plaintiff was the original lender. Accordingly, as 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, any challenge to the assignments is insufficient to demonstrate that plaintiff lacks standing.
Defendants also allege that plaintiff did not proffer sufficient evidence establishing that it complied with RPAPL 1304. RPAPL 1304 provides that at least 90 days before a lender begins an action against a borrower to foreclose on a mortgage, the lender must provide notice to the borrower that the loan is in default and his or her home is at risk (see Aurora Loan Services, LLC v Weisblum, 85 AD3d 95 [2d Dept. 2011]). "[P]roper service of the RPAPL § 1304 notice on the borrower or borrowers is a condition precedent to the commencement of the foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Id. at 107). The presumption of receipt by the addressee "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept. 2001]).
Plaintiff submits Ms. Hicks' affidavit to demonstrate compliance with RPAPL 1304. Ms. Hicks affirms that plaintiff sent the 90 day notice by certified and first class mail to defendants at the mortgaged property. A copy of the notice is annexed to the motion papers, is dated October 23, 2014, and is addressed to defendants at the mortgaged premises. As Ms. Hicks has identified that the business records were personally reviewed and that the notice was sent to defendants, plaintiff presented sufficient proof that it complied with RPAPL 1304. Moreover, defendants do not deny receipt of the notice.
Lastly, defendants' contend that outstanding discovery bars summary judgment. The "mere hope and speculation that additional [*4]discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient" to warrant a denial of summary judgment (see Sasson v Setina Mfg. Co., Inc., 26 AD3d 487 [2d Dept. 2006]). Moreover, defendants do not dispute the existence of the note, mortgage and default thereunder.
The remainder of defense counsel's affirmation is insufficient to raise a question of fact. As defendants have 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]).
Therefore, plaintiff's motion for summary judgment is granted and the affirmative defenses contained in defendants' answer are stricken. Plaintiff's application for the appointment of a referee to compute the amounts due under the subject mortgage is also granted and the caption shall be amended by striking the defendant sued herein as "John Doe".
Order of Reference signed contemporaneously herewith.
Dated: November 9, 2015
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
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