Wells Fargo Bank N.A. v Bunai

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Wells Fargo Bank N.A. v Bunai 2016 NY Slip Op 31825(U) August 11, 2016 Supreme Court, Suffolk County Docket Number: 43763/10 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] MEMO DC:C ISION & ORDER copy INDEX No. 43763/ 10 SUPREME COURT - ST ATE OF EW YORK I.A S. PART 33 - SUFFOLK OUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court ---------------------------------------------------------------X WELLS FARGO BANK NA, successor by merger to Wells Fargo Home Mortgage, Inc., Plaintiff, -againstSTEPHEN BUNAI, CHRISTINE BUNAi, CITIBANK, NA, CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, DISCOVER BANK, NATIONAL CREDIT ADJUSTERS LLC, STEPHEN R. BUNAi, 07/21116 DJ. DATES 07/22/ 16 ot. Seq.# 002 - MOTD IRD CAUSE OF ACTION S VERED -SUBMIT JUDGMENT DISP: NO UDDY & FEDER, LLP ttys. For Plaintiff 4 5 Hamilton Ave. 14111 Floor \: hite Plains NY 10601 ALEEM SIKANDAR, ESQ. ty. For Defs. Bunai 1 6 E. Main St. - Ste. 8 P . Jefferson, NY 11777 Defendants. ---------------------------------------------------------------)( Upon the following papers numbered I to _5_ read on this m tion for default judgment on the third cause of action set fo1th in the p laintiff's comnlaint : Notice of Motion/Order t Show Cause and suppo11ing papers -1...=..L: Notice of Cross Motion and supporting papers _ _ ; Opposing papers: ; Reply papers ; Other _ _ ; (111 1el afte1 lrea1 i11g eotmsel i11 s11ppo1t a11el opposed to tire 111otio11) it is, ORDERED that those portions of this motion (#002) b the plaintiff wherein it seeks a default judgment against defendant, Christine Bunai, on the Third cat se of action set forth in the complaint in which the plaintiff demands a judicial declaration that the laintiff holds an equitable mortgage against said defendant's interest in the premises that are the subject of this action in the amount $150,046.63 is granted to the extent that the court so declare that the plaintiff is the owner of an equitable mortgage and that the lien of such mortgage encumber Christine Bunai 's ownership interest in the premises known as 85 Rose Place, Selden New York; a d it is further ORDERED that the remaining portions of this motion herein the plaintiff seeks relief in the form of a nunc pro tune declaration of the existence of its eq itable mortgage to the date April 23, [* 2] Wells Fargo Bank N.A. v Bunai Index No. 43763/2010 Page 2 2003, which was the date or the execution of the written not and mortgage by defendant, Stephen Bunai, an award of contractual interest from such date and a judgment foreclosing the lien of said equitable mortgage is denied, as is plaintiffs demands for an ward of summary judgment; and it is further ORDERED that the Third cause of action set forth in the complaint for declaratory relief is hereby severed from the First cause of action and the plainti f is hereby granted leave to submit a judgment reflecting the severance of the Third cause ofaction nd the award of a default judgment on said Third cause of action, to the extent granted herein to the p aintiff, and the other material terms of this memo decision and order. The plaintiff commenced this action to foreclose the li of a$ 185,000.00 mortgage executed by defendant, Stephen Bunai, on April 23, 2003 that was recor ed in the office of the Suffolk County Clerk on March 16, 2005. In addition, the plaintiff sought decl ratory relief in two additional separate causes of action against defendant, Christine Bunai, who is or was an owner of the subject premises but was neither an obliger nor mortgagor under the April 23, 20 3 loan documents. The Second cause of action for declaratory relief in the form of a reformation of 1e mortgage to include the defendant, Christine Bunai, as a mortgagor was dismissed by decision and rders of this court dated June 6, 2014. Said orders also awarded the plaintiff default judgments agains all defendants served with process on the plaintiffs First cause of action, in which, foreclosure of Ste hen Bunai's April 23, 2003 mortgage was demanded. With respect to that First cause of action, a eparate order appointing a referee to compute amounts due under the terms of that mortgage also i sued on June 6, 2014. By the instant motion (#002), the plaintiff seeks a def: ult judgment or a summary judgment on its Third cause of action for declaratory relief against defen ant, Christine Bunai, in the form of a judicial declaration that the plaintiff is the owner of an equita le mortgage against said defendant's interest in the subject premises in the amount of$ l 50,046.63. nderlying this pleaded claim for relief on this motion for an accelerated judgment thereon are allegati ns that the $185,000.00, mortgage of April 23, 2003 was part of a larger transaction that included he refinancing of a August 15, 200 l mortgage given by both defendants, Stephen Bunai and Christi Bunai. to American Home Mo11gage and thereafter assigned to Wells Fargo Home Mortgage. Of th monies loaned by Wells Fargo Home Mortgage on August 23, 2003 to Stephen Bunai, alone, $150 046.63 was used to pay off the joint indebtedness ofthe Bunai defendants then existing under the te 1s of their August 15, 2001 mortgage. Due to mistake, inadvertence and/or error, Christine B nai was not a signatory to either the note or the April 23, 2003 mortgage, although it was purporte ly the intention of the parties to that loan transaction that she be a mortgagor. That intention is alle edly evidenced by a joint bankruptcy filing in 2008 in which both Stephen and Christine Bunai listed 1e plaintiff's April 23, 2003 mortgage as a joint debt obligation for which they sought and received a ·scharge. The plaintiff thus claims an entitlement to an equitable mortgage equal to the amount u ed to pay off the August 15, 200 l mortgage, namely. the sum of $150,046.63, and asks that co rt declaration impress said equitable mortgage as a lien against Christine Bunai's interest in the pre1 ises to the extent of the payoff of the 2001 mortgage from the proceeds of the April 23. 2003 mo11gag executed only by defendant Stephen Bunai. [* 3] Wells Fargo Bank N.A. v Bunai Index No. 43763/2010 Page 3 The plaintiff further seeks, on this motion. relief in th form of a nunc pro tune declaration of the existence of the claimed equitable mo1tgage to the date o the execution of the written mortgage by Stephen Bunai on April 23, 2003 and an award of interest n the equitable mortgage at the contract rate. A review of the complaint filed herein reveals that non of these further demands for relief are advanced in the complaint served in this action. For the reasons stated , the motion is granted only to he extent set forth herein. It is well established that a party's right to recover up n a defendant's default in answering is governed by CPLR 3215 and, pursuant thereto, the moving p rty must submit proof of service of the summons and complaint, proof of the facts constituting t e claim, and proof of the defaulting defendant's failure to answer (see CPLR 3215[fJ; U.S. Bank N atl. Ass'11 vA/ba 130 AD3d 715 , 11 NYS2d 864 (2d Dept 2015]; HSBC Bank USA, N.A. v Alex 11der, 124 AD3d 838, 4 NYS2d 4 7 (2d Dept 2015]; Todd v Green, 122 AD3d 831, 997 NYS2d 155 [2d Dept 20 14]; Oak Hollow Nursi11g Ctr. vStumbo, 117 AD3d 698, 985 NYS2d 269 [2d Dept 201 ]; U. S. Bank, Natl. Ass '11 v Rawn, 115 AD3d 739, 981NYS2d571 [2d Dept2014] ; Dela Cruz v Ket Residence, LLC, 115 AD3d 700, 981 NYS2d 607 [2d Dept. 2014]; Kolonkowski v Daily News, L. .. 94 AD3d 704. 941NYS2d663 [2d Dept. 2012); Triangle Prop. #2, LLC v N ara11g, 73 AD3d l 30, 903 NYS2d 424 [2d Dept 201 O]). To satisfy the "facts constituting the claim" element of CL 3215, the plaintiff must advance by affidavit or verified pleadings, facts from which, the co wt may iscern the plaintiffs possession of one or more viable claims for relief against the defaulting defendan together with proof of the amount due, if sufficiently certain (see CPLR 3215[f]; DLJ Mtge. Capital, /11c. v United Ge11. Title Ins. Co. , 128 AD3d 760, 9 NYS3d 335 [2d Dept 2015); Williams v North !tore LIJ Health Sys., 119 AD3d 937, 989 NYS2d 887 [2d Dept 2014); CPS Group, Inc. v Gastro E zter. Corp., 54 AD3d 800, 863 NYS2d 764 [2d Dept 2008]; Resnick v Lebovitz, 28 AD3d 533, 813 YS2d 480 [2d Dept. 2006); Beaton v Transit Fae. C01p. , 14 A03d 637, 789 NYS2d 314 [2d Dept 2005)). Where these elements are established, a motion for th entry of a default judgment should be granted (see Woodson v Me11do11 Leasing Corp., 100 NY2d 2, 760 NYS2d 727 [2003]; Deutsche Bank Natl. Trust Co. v Ku/dip , 136 AD3d969. 25 NYS3d 6 3 [2d Dept 20 16); BAC Home Loans Serv., LP v Reardon, 132 A03d 790, 18 NYS3d 664 [2d Dept 015]; Green Tree Serv., LLC v Cary, 106 AD3d 691, supra) . Where they are not established, them ti on should be denied (see DLJ Jftge. Capital, Inc. v United Gen. Title Ins. Co. , 128 AD3d 760. si ra; U.S. Bank, Natl. Ass 'n v Razon. 115 AD3d 739, supra; Resnick v Lebovitz, 28 AD3d 533, su ra; Beaton v Transit Fae. Corp. , 14 AD3d 637, supra). In contrast. the remedy of summary judgment is availab c only in cases in which issue has been joined by service of an answer by the targeted defendant an where copies of the pleading served accompany the motion (see CPLR3212[a);[b]; Lindbergh vS 0 54, LLC, 128 AD3d642, 9NYS3d I 05 [2d Dept 2015]; Slraibani v Soraya, 71AD3d1121, 898 YS2d 72 [2d Dept 2010]; 115-41 St. A lba1ts Holding Corp. v Harrisson, 71 AD3d 653, 894 NY 2d 896 [2d Dept 2010]; Enriquez v Home Lawn Care lllUI Landscaping, luc., 49 AD3d 496, 854 YS2d 410 [2d Dept 2008]). Here, the plaintiffs demand for summary judgment is denied as issue has not been joined by service of an answer by any defendant served with process, including, Chris ·ne Bunai, the only defendant targeted [* 4] Wells Fargo Bank 1 .A. v Bunai Index No. 43763/2010 Page4 by the relief demanded in the Third cause of action (see CPL 3212[a]; Lilldberglt vSHLO 54,LLC.. 128 AD3d 642, supra; Slwiba11i v Soraya. 71AD3d1121, 1pra). The plaintiffs demands for a nunc pro tune decla ation of the existence of the claimed equitable mortgage to the date of the execution of the written 1ortgage by Stephen Bunai on April 23. 2003 and an award of interest on the equitable mortgage t the contract rate are denied on both procedural and substantive grounds. The granting of sue relief, which was not pleaded in the complaint, is interdicted by the mandate set fo11h in CPLR 21 S(b) which precludes the court from awarding a judgment which will "exceed in amount or di er in type from that demanded in the complaint or stated in the notice served pursuant to subdivi ·on (b) of rule 305". In any event, the moving papers before the court on this motion fai led to establi h that the plaintiff possesses cognizable claims for this relief(see Sprague v Coclzran. 144 NY 104, 13, 38 N .E. 1000 (1894] (cm equitable mortgage lien may be defeated by the claims ofbona.fide pur asers or encumbrancers); CPLR 500 I (prejudgment interest discrelion01y not manda101y on equit . ble claims); Presse v Morel, 2016 WL 1426035 [N.Y.C.A. 2d Cir. 2016)). The plaintiffs demands for a default judgment against efendant, Christine Bunai. on the Third cause of action set forth in the complaint is granted. Th rein, the plaintiff demands a judicial declaration that the plaintiff holds an equitable mortgage ainst said defendant's interest in the premises that are the subject ofthis action in the amount $150, 46.63. The moving papers sufficiently demonstrated the plaintiff's entitlement to such relief includi g its possession of a cognizable claim for the declaration sought under equitable principles that allo for the imposition of an equitable lien where facts sun-ounding a transaction evidence that the par ies intended that a particular piece of property is to be held or transferred to secure an obligation ( e Deutsclze Bank Trust Co. of A m. v Cox. , 110 AD3d 760, 973 NYS2d 662 (2d Dept 2013]; 1.2.3. oldillg Corp. v Exeter Holding, LTD., 72 AD3d I 040, 900 NYS2d 356 (2d Dept 2010)). According y, the court awards a default judgment in favor of the plaintiff against defendant, Christine Bunai, on he plaintiffs Third cause of action and declares that the plaintiff is the owner of an equitable mortgag in the amount of $150.046.63 and that the lien of such mortgage encumbers Christine Bunai's owne ship interest in the premises known as 85 Rose Place, Selden New York. To facilitate the entry of a judgment on the plaintiffs fh ird cause of action, the court directs a severance of said Third cause of action from the First Caus of action which sounds in foreclosure of the April 23. 2003 mortgage lien arising under the written 11ortgage note and mortgage executed by defendant. Stephen Bunai. on that date and the sale of his i terest in said premises. Accordingly, the plaintiff is hereby granted leave to submit a proposed jud ment to the undersigned reflecting the severance of the Third cause of action and the award of a de ault judgment on said Third cause of action, to the extent granted herein to the plaintiff, and the oth r material terms of this memo decision and order. To the extent that the instant motion may be consider of the lien of the equitable mortgage herein declared to exist i denied. Neither the complaint nor the moving papers con cognizable claim for foreclosure of the lien of the subject equi in favor fo the plaintiff is discernable. d to include a demand for foreclosure favor of the plaintiff. such demand is in allegations of fact from which a ble mortgage as herein found to exist [* 5] Wells Fargo Bank N.A. v Bunai Index No. 43763/2010 Page 5 Submit judgment, upon a copy of this order, providin for the severance of the Third cause of action, the default judgment awarded to the plaintiff ther on and the court's declaration of the plaintiff's ownership of the equitable mortgage as found her in. Dated: August [ / 2016 )

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