Quicken Loans, Inc. v Holmes

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Quicken Loans, Inc. v Holmes 2016 NY Slip Op 30478(U) February 26, 2016 Supreme Court, Suffolk County Docket Number: 64101/14 Judge: Thomas F. Whelan 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] Ml-MO DECISION & ORDER fNDEX No. 64101114 SUPREME COURT - STATE OF NEW YORK LA.S. PART 33 - SUFFOLK COUNTY PRESE N T : Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE: 12/4/ 15 SUBMIT DATE: 2119/16 Mot. Seq. #001 - MG CDISPY_ N X ---------------------~----------------------------------------)( QUICKEN LOANS, INC .. Plaintiff, FEIN, SUCH & CRANE, LLP Attys. For Plaintiff 1400 Old Country Rd. - Ste. Cl03 Westbury, NY 11590 -againstGREGORY J. HOLMES, SR. a/k/a GREGORY J. IIOLMES, PEOPLE OF THE STATE OF NEW YORK, BROOK.HA VEN MEMORIAL HOSPITAL, "JOHN DOE # 1-5" and "JANE DOE # 1-5", said names being fictitious, it being the intention of plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, DONALD NEIDHARDT, ESQ. Atty. For Defendants 3579 Bayview St. Seaford, NY 11783 Defendants. ----------------~---------------------------------------------)( Upon tbe following papers numbered I to 7 read on this motion for summarv iudgmcnt and order of reference, among other things ; Notice of Motion/Order to Show Cause and supporting papers I - 4 : Notice of Cross Motion and supporting papers _ _ ; Answering papers 5-6 ; Reply papers _7_; Other _ ; (and afte1 he.11 ing counsel iu support and opposed to the 111otio11) it is, ORDERED that those portions of this motion (#00 I) by the plaintiff wherein it seeks accelerated judgments on its complaint, the identification and deletion of certain party defendants and an orderofreference is considered under CPLR 3212, 321 S 1003, 1018 and RP APL§ 1321 and are granted; and it is further LA fl< i• I uC I <'/ [* 2] ()uidc..:n I.o~rns, Inc. v I lolmi:s lmkx No. 64101114 Page 2 or ORDERED that those portions th<: instant motion wherein the plaintiff seeks an order substituting its purported assignee of the note and mortgage is considered under CPU~ 1018 and is di:nied. The plaintiffconuni.!nced this action to fori:dose the lien ofan April I, 2013 mortgage gin:n to it hy defendant I lo Imes to secure a mortgage nolt: in the principal amount of$ I C>'J. 715.00 likewise givi:n on April I. 20U. Thc loan \vent into default in Novembi.!r of 201] and the plaintiff commenced this action on May 29. 20 14 to foreclose the lien or i ls mortgage. or In response to the plaintifrs service its summons and complaint. c.Jcfl.!mlant I lolmes appeared hcrl.!in by an ans\\ er pri.!parcd by his counsel. Therein. defendant I lolmes raised si:wral affirmativi.! defl.!nses, including. thnt tht: plaintiff. who was the original lender. lackcd standing to prosecute its claims !(..>r foreclosure and sale. The remaining known defendants and l\VO persons served with process as unknown defendants. failed lo appc..:ar herein by service or an answer. By thc instant motion (//00 I). the plaintiff moves for summary judgment dismissing the affirmative defenses asserted in the answer of defendant I lo Imes and for summnry judgment on its complaint against such c.ldcndant. Tht: pin inti IT further requests an order idenli tying the true namcs or the two individuals who were served with process as unknown defendants. the deletion or the remaining unknown defendants and a substitution of the plainti ff"s assignee together with a caption amendment to reflect these changes. The plaintiff also seeks an award or de foul t judgments agai nsl the defenc.Jants st:rved with process who failed lo appear herein by answer. Finally. the plaintiff requests the issuance of an order appointing a re force to com put~ amounts due unc.lcr the terms the note and mortgage. or The motion is opposed by an allirmation of counsel for defendant I lo Imes. Therein. defense counsel challenges the quality of the plaintilTs proof and contends that the moving papers foiled lo establish the plaintiffs entitlement LO any the relief requested against defendant I lo Imes. The..: plaintiff replii.!c.I to this opposition by an affirmation of its counsel. or For the reasons stated. the motion (1100 I) by the plaintiff is granted t0 the extent sd forth below. Entitlcmcnl to summary judgment in fovor of the foreclosing plaintiff is established. prima facic. by the plaintiffs proc.Juction of the mortgage and the unpaid nok, and evic.Jcnce of the default in payment (see Wells Fargo Ba11k, N.A . v Erobobo. I 27 J\03d 11 76. 9 NYS'.?.d 312 ['.?.d Dept '.?.O 15 I: Wells Fargo Baul.-, N.A. 11 DeSouza. 116 AD3d 965. 3 YS2d 6 I 9 [2d Dept 20 I 5J: 011eWest Ba11k, FSB v DiPilato, I 24 AD3d 735. 998 NYS2d 668 pd Dept 20151: Well.\· Fargo Bunk, N.A. v A li. 122 AD3d 726. 995 NYS2d 735 [2<l Dept 20 141). Where the plnintilTs standi ng has been placed in issue by the dcfondant's answer. the plaintiff also must establish its standing as part orib prima focie showing (see A urora loan Seri•s., LLC v Taylor. 25 NY3d 355. 12 NY~Dd 6 I21'.?.015 I: [* 3] Quicken I .oans. Inc. v I lolmcs lrn.k x No. 6410 I /14 Page 3 Lo1111care v Fir.'i/Jiug. 130 J\DJd 787, 2015 WL 4256095 12d Dept 2015 J~ HSBC Bank USA, N.A. 1• Baptiste. 128 /\DJd 77, 10 NYS2d 25512d Dept 2015]). /\ fon;closing plaintiff has standing if it is the original lender or is otherwise either the holder nr the assignee ol'the underlying note at the time that the action is commenced (see A urora Loa11 Servs., LLC v Taylor, 25 NY3d 355, supra; loancare v Firs/liug. 130 J\D3d 787, .rnprn: Emigra11t Bank'' Larizza, 129 /\DJd 904, 13 NYS3d 129 12d Dept 2()151). In cases wherein the plaintiff is the original lender and its standing is chalknged by the interposition of a due and timely standing dclcnsc, the plain ti ff need not establish its owners hip or holder status of the note and mortgage via a written assignment or physical delivery to it or to any of its custod ial agents (seL' Wells Fargo Bank, N.A. v A li. 122 AD3d 7'26. suprn). Instead. the plaintiff need only establish lhut it alone. or in conjunction with a predecessor by merger or acquisition or a custodial agent. has maintained possession of the subject note and mortgage since the origination or the loan anti that such possession continued through the commenccmcnt date of the roreclosurc action (see PNC Ba11k, Natl. Ass 'n v Klein. 125 /\D3d 953. 5 NYS3d 439 l2d Dept 2015L Wells Fargo Bank, N.A. v lludso11 . 98 J\D3d 576. 949 NYS2d 703 Pd Dept 20121: Blink <if America, N.A. O'Do1111ell, 47 Misc3d 1210IAl.16 NYS3d 791 jSup. Ct. Suffolk County 20151; S1111trm;I Mtge. luc. 1• A mlriopoulos. 39 Misc3d 12081/\I.971 N YS2d 75 lSup. Ct. Suffolk County 20131: see also Wells Farg0Ba11k,NA l'Ostiguy.117J\03d1375 . 137(>.8NYS3d669.67113d Dcpt2015J). lnad<lition. the plaintif'f's uttachmcnt of a duly in<lorscd mortgage note lo its complaint or to the ccrtilicatc nr merit required by C PI ,R 3012-b, coupled wi th an affidavit in which it alleges that it hat.I possession of the note prior to commencement of the action. has been held to constitute due proof or the plaintiff's stnnding to prosecute its claim for foreclosure and sale (see Natioustar M tge., LLC v Catiwne. 17..7 J\D3d 1 l 51. 9 NYS3d 315 [20151). I kn;, the moving papers of the plaintiff, who was the original lender nf the monies loaned and secured by the subject mortgage. demonstrated, prima facie. the pluintifrs entitlement to the dismissal of th~ aflirmativc defenses asserted in the answer ser ved by defendant, Holmes. including his standing defense, as lacking in merit (see Nationstar Mtge., LLC v Catizo11e. l '27 AD3d I J 51. 9 NYS3d 315 120 151). The mov ing papers further established. prima facic. the plainti!T°'s entitlement to summary judgment on its complaint against this answering defendant (set' CP LR 3212, 3215, 1003 and RP APL§ 1321 : see also Wells Fargo Bank, N.A . v Erobobo. 127 AD3d 1176. su11ru: Wells Fargo Bank, N.A. v DeSouza, 126 AD3d 965 . sHpra~ Citimortgage, 111c. ,, Cho JV Ming T1111g. 126 J\D3d 841. 7 NYS3d 147 !"2<l Dept 20151: OneWest Bm1k, FSB v DiPilato, 124 AD3d 73 5. supra: Wells Fargo Bank, N.A . v A li. 122 J\D3d 726. supra: Central Mtge. Co. v lltfcClellawl. 119 /\D3d 885. 991 NYS2d 87 j2d Dept 20141). The court rejects the defondanrs challenges to the quality of the plaintifrs proof. That a loan servicer may testi fy on behalf or a foreclosing plaintiff is clear (see Deutsclte Blink Natl. Trust Co. PAbda11. 131AD3d 1001. 16 NYS3d 45912d Dept 2015]: Wells F'argo Bank, N.A. 1 Arias. 121 AIJ3d 73, 995 NYS2d l 18 l2d Dept 2014J; HSBC Bank USA, N atl. As~·'11 vSage, 112 J\D3d 1126. 1 [* 4] Quicken l.oans. Inc. Index No. 6410 I II 4 Page 4 v I lolml.O:s 977 NYS2d 446 f3d Dept 20 I~ l;Ar1111es Capital Corp. v Ford, 294 AD2d 134, 740 NYS2d 880 l2d Dept 20021). Moreover. an assignee o!'thc original lender may rely upon the business n:corJs of the original lender to establish it!:> claims for recovery of amounts due from the debtor so lnng as the plaintiff establishes that it relied upon those records in the regular course of its business (see Lmulmark Cupital llm, Inc. "Li-Sit an Wang. 94 /\Dd3d 418. 941 NYS2d 144 r ISI Dept 2012] ). The plain tin~ s al'fidavi t of merit sufficiently cstabl ished the plainti fr s entitlement to the summary judgment requested by it against answering defendant l lolmcs and no genuine questions o !'fact were raised in his opposing papers which would rl!quire a trial of this action. While defense counsd references an attached affidavit from the defendant which '·refutes the allegation made by the plain ti ff in its affidavit", no aflidavit from de fondant Holmes is attached to counsel ·s affirmation nor uploaded in the E-filing system maintained by the Nl!w York State Unified Court Systt:m. The moving papers foiled. however. lo l!Stabl ish the plainti rr s entitlement to a substitution ol"itsel !' as plaintiff by a successor-in-interest under two assignments of the mortgage. It is wdl sellkd that a plaintiff may continue to prosecute an action 1wtwithstanding its transfer by assignment or othl!rwise of its interest in the subject mattcrorthe action as the provisions orCPLR I 018. which govern substitution upon transfer of interests, are permissive rather than mandatory (set' GRP loan, LLC v Taylor. 95 AD3d 1172. 945 NYS2d 336 [2d Dept 2012j; Wells Fargo Bank, N.A. v Wiue. 90 /\lDd 1216, 935 NYS2d 664 [3d Dept 20 11 j; CitiM01·tg age, Jue. v Roseutlral, 88 /\D3d 759. 931 NYS2d 638 !1d Dept 201 ll; Tarr v Def!:>·eu er, 70 AD3d 774, 895 NYS2d 168 !2d Dept 20 I 0 j; Buywise I loldi11g, LLC v I Tarris. 3 I /\D3d 681. 821 NYS2d 213 1'2d Dept 2006 I). When! a note and mortgage '"arc validly assigned to a third party subsequent to the commencement ora foreclosure action·· .. the assignee can continue the action in the name or the original plaintiff even in the ubsencc of'a formal substitution (see Liuco/11 Sav. Bank, FSB v Wynn, 7 AD3d 760. 776 NYS2d 90812d Dept 20041). or it can undertake the steps necessary to obtain its formu l substitution (see Woori A m erica Bank v Global Universal Group ltd.. 134 /\D3d 699. 20 NYS3d 597 l2d Dept 20151: Brig ltton BK, LLC v Kurhatsky, 131 AD3d 1000, 17 NYS3d 137 [2d Dept 2015 J). Whl!n.:. however. there is insufficient proof of lhc transfer of the note and mortgage to the proposed llC\\· plaintiff. the substitution should be denied (see F'/ag~·tar Bank, FSB vA 11derso11 , 129 /\D3d 665. 12 NYS3d I l8 l2d Dept 20151). I lerc. the rccor<l contains insufficient evidence that the mortgage note was dul y assigned or otherwise transl'Crred to the Secretary of I Jo using and Development in November of 2014 and that such S<..:cretary effected a valid transfer of both the 11101igage and underlying debt to the proposc:d new pla intil1: l J.S. Bank National Association as Trustee SW Remic Trust 2014-2. The wrillcn assignments of the subject mortgage. dated November 21 2014 and March 19. 2015. upon which the plainti ff relies to establish the proposed new plaintiffs entitlement to take over the pn>sl!cution of this action, do not include assignments of the note or the indebtedness it represents. The affidavit of the loan servicer foiled to establish the valid transfers of the note as none of the records recited as attached to the affidavit were so attached and no evidence of indorsl:mcnts or the notes to the assignees named in the written mortgage assignments was included in the [* 5] Quicken I.oans. Inc. v J lolmes Index No. 6410 I /14 Page 5 plaintifT''s submi ssions. The substitution of the plaintiff by U.S. Bank Nntional Association as Trustee SW Remic Trust 20 14-2 is thus dcnie<l. Those portions of the instant motion \\herein lh~ plaintiff seeks an order identifying the true na1m:s of the first two unknown defendants as Brenda 1lolmes and Crystal I lol mes and deleting the remaining unknown defendants listed in the capt inn and an amendment ofthe <.:apt ion to reflect same arc granted. The moving papers rurther established the default in answcril\g l)l1 the part of dclCn<lant. Gregory .I. I lo Imes. and the nc,vly identified defendants, none whom served answers to the plainti tr s complaint (see I/SBC Bank USA, N.A. vA/exauder. 124 J\D3d 838. 4 NYS1<l 47 l2d Dept 20 I 5 I: U.S. Bauk, N.A. •·· Rawu, 11 5 A03d 739. 740. 981 NYS2d 571 (2d Dept 2014 j). Accordingly. the defaults of all such defendants arc hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the sole answering defendant and has established a defoult in answering by the remaining defcmlants, th<.: plaintiff is entitled to an order appointing a referee to compute amounts due under the subject nolc and mortgage (see RP /\Pl , § 1321; Bank of East Asia, Ltd. v S111itlt , 20 1/\D2<l52'.?., 607 NYS'.?.d 431 l'.?.d Dept 1994j;Vermout Fed. Rank v Chase. 226 /\D2d I 034. 641NYS2d440 l3d Dept 19961; LaSalle Ba11k, NA v Pace, 31Misc3d627. 919 NYS'.?.d 79..+ ISup. Ct. Suffl>lk County 2011 I, o//"d. I00 !\D3d 970. 955 NYS2d 161 l2d Dept 2012 I). Proposed Order of Reference, as modi lied by the court to reflect the insuram:c und terms or this memo decision and order. hus been marked signed. l)J\'('f:I): u ~J ~r

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