State of N.Y. Mtge. Agency v Ashford
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State of N.Y. Mtge. Agency v Ashford 2017 NY Slip Op 30579(U) February 8, 2017 Supreme Court, Suffolk County Docket Number: 13-7445 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] col'f SI IORT FORM ORDER INDE No. 13-7445 SUPREME COURT- STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court ---------------------------------------------------------------)( STATE OF NEW YORK MORTGAGE AGENCY: Plaintiff, -against- MOTION D TE: 9/7/ 16 SUBMIT D TE: 1127/17 Mot. Seq.# 03 - MG CDISP: No ! I SHAPIRO, DiCARO & BARAK Attys. For Pfaintiff 175 Mile Crossing Blvd. 1 4~624 Rochester, 1y BLOTTER ~ BLUTTER, ESQS. KENNETH ASHFORD a/k/a KENNETH M . ASHFORD, ANGELA ASHFORD a/k/a ANGELA : D. ASHFORD, 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. Attys. For Defs. Ashford Oy~er Bay Rd. Plainview, NY 11803 497 So. Defendants. ---------------------------------------------------------------)( Upon the following papers numbered I to _8_ read on this motion for surmua1y judgment and appointment of referee among other things : Notice of Motion/Order to Show Cause ~nd supporting papers I - -I ; Notice of Cross Motion and supporting papers ; Answering papers 5-6 : Reply papers._,_ _ _ 7-=-8 Other ; (a11d after l1ea1 ing t:Od11sel in s11ppo1t and opposed to the 111otion) i~ is, ' ORDERED that this motion (#003) wherein the plaintiff seeks lsummary judgment on its complaint against the obligor/mortgagor defendants together with the appointment of a referee to compute amounts due under the subject note and mortgage is granted: alnd it is further ORDERED that the pre-trial conference scheduled to be held od May 3, 2017, at 9:3 0 a.m in the courtroom of the undersigned located in the Annex Building of the Supreme Court at One Court Street, Riverhead. NY 11901 is not necessary and is therefore caih.celled. I [* 2] New York Mortgage Agency v Ashford Index No. 7445/2013 Page2 By lhe instant motion (#003), the plaintiff, for the second time, wi h permission granted by the Court at a conference held on July 21. 2016. seeks an award of s mmary j udgment on its complaint against the Ashford defendants. The plaintiff also seeks an ord r appointing a referee to compute amounts due under the terms of the note and mortgage. In sho , in order to purchase a home, the Ashford defendants, on July 11, 2008, bo1rnwed $3 23,000.00 fro plaintiffs predecessorin-interest and has not made a payment pursuant to the note and mortgag since March l , 2012. By prior Order dated March 16, 2016, th.is Court granted pa tial summary judgment dismissing the affirmative defenses asserted in the answer of the Ashford efendants . Additionally, the Comt made specific judicial findings, pursuant to CPLR 3212(g), tha the plaintiff is possessed of the requisite standing to prosecute its claims for foreclosure and sale 1d declared that the issue of stand ing was resolved in favo r of the plaintiff for all purposes. The Cqurt also held, based upon the documentary evidence submitted, that a trial of this action was necessary but that same shall be limited to the issues of fact framed by the court as follows: whether the plaintiff complied with the ninety-day notice requirements imposed by RP APL § 1304 and whether !he plaintiff can establish the existence and contents of the promissory note executed by the Ashfo ·d defendants on July 11, 2008, the original of which has been lost, so as to entitle the plaintiff to its contractual remedy of foreclosure and sale. Familiarity with this Court's March 16, 20 l6 Orde, is asswned. The motion is opposed by the Ashford defendants in papers cons,.sting of an affim1ation of their counsel. No affidavits are submitted from the Ashford defendants efuting any of the claims or documentary evidence submitted by the plaintiff. For the reasons stated below, the motion is granted in its entirety Two issues must be addressed: 1) whether the plaintiff complied I ith the ninety day notice requirements imposed upon it by RP APL§ 1321; and 2) the existence and execution of the July 11, 2008 promissory note by the defendants and the contents of such note, lthe original of which has allegedly been lost. I The appl icable law concerning entitlement to summary judgrnent,in favor of the foreclosing plaintiff is set forth. in detail, in this Court's Order of March 16, 2016 and need not be repeated here. The Court adheres to its holding that no waiver arises from the Ashford dFfendants' failure to assert the plaintiff's purported non-compliance with the RP APL § J 304 pre~ action. ninety-day notice requirements, since caselaw holds that such a waiver extends only to deffendants who defaulted in appearing by answer and who do not establish grounds for the vacatJr of his or her default on excusable default grounds (see HSBC Ba11k USA v Clayton, _ AD3dl_, 2017 WL 355967 [2d Dept 2017]; cfNlidFirst Ba11k v Aja/a, _ AD3d _ , 2017 WL 189163 ~2d Dept 2017]). However, upon consideration of the record adduced on this mot~on , the court finds that the plaintiff's submissions were sufficient to establish that its predecessor-int interest complied with the notice provisions of RP APL § 1304. Plaintiff has submitted an Affidat it of Mailing of James A. Ranaldi (Ex. C to the motion), who was employed by the original lend r. JPMorgan Chase Bank, [* 3] New York Mortgage Agency v Ashford Index No. 7445/2013 Page 3 N.A. [hereinafter Chase], and who continued as servicer of the mortgage at~e time the notices were sent, on August 24, 2012 and at the time of commencement of the action n March 13 , 2013. The affidavit properly complies with CPLR 4518(a), in that the busine.s s record being reviewed include " .. .my own personal knowledge of bow such records are kept and maint ined." Attached to the Affidavit of Service are the imaged business records, including the RP PL § 1304 pre-action. ninety-day notices, the proof of mailing from the U.S. Postal Service, and,the NYS Department of Financial Services Proof of Filing Statement pursuant to RP APL§ 1306. The Ranaldi affidavit is not challenged by the Ashford defendants, who do not expressly deny recei t of the required notice. The plaintiff claims that Chase continued to service the loan u ti! June 2, 2014 when servicing rights were transferred to M&T Bank (see, 28 of the Affirma · n of plaintiff's counsel attached to the moving papers). In support of these assertions the plainti submits various Powers of Attorney executed by the plaintiff on Februa1y 6, 2003, March 7, 2005 a d May 15, 2013 in favor of Chase. The Court finds the March 7, 2005 Power of Attorney to be co trolling, for purposes of the power and authority to comply with the RP APL § 1304 pre-action, inety-day notices. That document provided authority over all real estate transactions and as such, servicing rights. Moreover, the above described Ranaldi affidavit clearly states that Chase w s the servicer at t11e time of the mailings, which is unchallenged, aside from pure speculation and s~nnise. Additionally, by statute. a servicer is authorised to act on behalf of the owner or holder a note (see RP APL § 1304[1]). If Confusion arose in the first motion before the Court with the submi sion of a March 2, 20 15 affidavit of Dawn M. Bechtold, an employee of M&T Bank, who is now lleged to be the current loan servicer. She states that she has personal knowledge of the facts alleged therein including the mailings of the RP APL§ 1304 notices. The plaintiff further submits a PO\Yer of Attorney executed by the plaintiff on February 15, 2012 in favor of M&T Bank which was acq;epted by M&T Bank on May25, 2012 and recorded in the office of the County Clerk on July 21, 20~2 (see Exhibit I attached to the moving papers). However, in light of the fact that Chase was the ~erv i cer who previously authored and mailed the RP APL § 1304 notices, the Bechtold affidavit fpils, for that purpose, to satisfy the business records exception to the hearsay rule, in that it fails to d¢tail the obvious fact that the records being reviewed were those of Chase. While Bechtold certainly has personal knowledge 1 of the business records of M&T Bank and the payment history of the loan, ~he fails to claim that she has personal knowledge of the record-keeping practices of the Chase busine s records (see Arch Bay Holdings, LLC v Alba11ese, _ AD3 d _, 2017 WL89206 [2d Dept 2017 ; D eutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 37 NYS3d 25 [2d Dept2016]; <;(Citi ank, NA vAbrams, 144 A D3d 1212. 40 NYS3d 653 [I 51 Dept 2016]). furthermore, the Court must acknowledge a misstatement set fort;h in its March 16. 2016 Order, wherein the Comt stated that the Power of Attorney executed by the~laintiff on February 15, 20 12 in favor of M&T Bank "was revoked by the terms of a subsequent Po'{v'er of Attorney executed by the plaintiff on May 15, 2013 in favor of JPMorgan Chase Bank, N .A I" That Chase Power of Attorney clearly states that "The execution of this statutory short form porer of attorney shall not revoke any prior power of attorney'' (see section [g][3] of Ex. D of the moving papers). The same [* 4] New York Mortgage Agency v Ashford Index No. 7445/2013 Page 4 language is set forth in the Power of Attorney executed by the plaintiff on F~brua:ry 15, 2012 in favor of M&T Bank (see section [g][J] of Ex. I of the moving papers). Therefor,, the M&T Bank Power of Attorney was not revoked by the subsequent Chase Power of Attorney. s explained by counsel fo r the plaintiff, this plaintiff ·'has entered into several Powers of Attorney with multiple entities it uses to service its loans .... Plaintiff simply uses multiple services for thei mortgage loans" (see ~ 33 of the Affurnation of plaintiffs counsel attached to the moving papers . Therefore, contrary to this Court's prior finding in its March 16, 2016 Order, there is no reason to offer documentary proof that M&T Bank was re-appointed as ag nt on June 2, 2014 as its power was not revoked by the subsequent Chase Power of Attorney. As a eged by plaintiff. M&T Bank is the cun-ent loan servicer, as shown in its affidavit of merit (the Be htold affidavit) and the affirmation of plaintiffs counsel referenced above. There is thus no long r a question of a fact as to the due and proper service of the RPAPL § 1304 notice issued by Chas , which it filed with the Superintendent of Banking pursuant to RP APL § 1306 in August of 201 . Plaintiff satisfied its prima facie burden on that issue with the Ranaldi affidavit and the Ash rd defendants failed to refute same. The Court will next address the second issue, that is, the existence nd execution of the July 11 , 2008 promissory note by the defendants and the contents of such note, he original of which has allegedly been lost. The Court finds that the plaintiffs new submissions est lishes, prima facie, due proof of the defendants' execution of the lost note and of its contents. As nr,ted in this Court's prior Order, to establish entitl ement to the enforcement of a lost note under tile Uniform Commercial Code, the plaintiff must demonstrate defendants' execution of the note, the circumstances surrounding its custody and its loss and the content of the terms of such ote (see UCC § 3-804; Marrazzo v Piccolo, 163 AD3d 369, 558 NYS2d 103, 104 (2dDept l 990];see also CitiBallk, N.A . v Benedict, 2000 WL322785 [S.D.N. Y. 2000]). Here, the plaintiff alleged in its complaint that the original note as lost. In its moving papers, the plaintiff, through its counsel, alleges that a copy of the note wa found and such copy is submitted, together with an affidavit oflost note executed on September 17, 2012 by an employee of the custodial subsidiary of the original lender, Chase. As noted above, p aintiffs counsel asserts that Chase continued to service the loan following its assignment of the ~ote and mortgage to the plaintiff in 2008 until June 2, 2014 when the servicing rights were transferred to M&T Bank. The affidavit of lost note was thus properly executed on September 17, 2012 y the custodial agent of the original lender who was then serving as the loan servicer. There is no oubt that Chase was the proper attorney-in-fact for the plaintiff at the time the Lost Note Affidavit was executed. ln addition, plaintiff has now supplied this Court with various d cuments, signed by the Ashford defendants. which satisfy its prima facie burden of proving the exi,ence, terms and content of the lost note, including the Truth-In-Lending statement, the Settlen1ent Statement, and the Uniform Residential Loan Application (see Ex. E attached to the movidg papers). Moreover, a signed copy of the note is attached as Ex. A to the moving papers. [* 5] New York Mortgage Agency v Ashford lndex No. 7445/2013 Page 5 Plaintiff also points to the recorded mortgage, duly executed by 1e Ashford defendants, which states, "The note signed by Bonower and ·dated July 11, 2008, will b called the 'Note.' The Note shows that I owe Lender Three Hundred Twenty-Three Thousand. a .d 001100 Dollars (U.S. $323,000.00) plus interest and other amounts that may be payable. I have omised to pay this debt in Periodic Payments and to pay the debt in full by August 1, 2048" (see se tion " [D]" of Mortgage, Ex. A to the moving papers). Contrary to this Court's prior holding in its March 16, 2016 Order, and as noted above, the various Powers of Attorney do not contradict the factual allegations set fo th in the September 17, 2012 affidavit of Lost Note. Plaintiff has establi sh the execution oft e note by the Ashford defendants and the contents of the lost note \Vere duly established: no only by the additional documentation submitted, but by the actual copy of the note, signed byfe Ashford defendants. Plaintiff has satisfied its burden and no questions of fact exist or are raised by the Ashford defendants with respect to the plaintiff's entitlement to the remedy foreclosure and sale. Sufficient proof of the existence and contents of the note has been presen d. As to the two issues discussed above, the plaintiff established its p judgment as a matter of law, and the Ashford defendants failed to raise opposition to that showing. Plaintiff has eliminated the need for a trial framed by this Court for trial. The motion for sun11nary judgment is gr submitted Order will be signed simultaneously with this sh01t form order. DATED: ima faci e entitlement to triable issue of fact in f the issl1es previously ted in its entirety. The
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