U.S. Bank N.A. v Vanderbaan

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U.S. Bank N.A. v Vanderbaan 2017 NY Slip Op 31150(U) May 19, 2017 Supreme Court, Suffolk County Docket Number: 13397/2013 Judge: Howard H. Heckman 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] Shon FonTI Order SUPREME COURT - STATE OF NEW YORK IAS PART 18 - SUFFOLK COUNTY PRESENT: HON. HOWARD H. HECKMAN JR., J.S.C. ----------------------------------------------------------~----){ U.S. BANK N.I\., AS TRUSTEE FOR J.P. MORGAN ALTERNATIVE LOAN TRUST 2006-A3, Plaintiffs, -againstLINDA V ANDERBAAN a/k/a LINJ?A VAN DER BAAN, STEPHEN DECLEMENTE, HEATHER DECLEMENTE, INDEX NO.: 13397/2013 MOTION DATE: 12/01 /2016 MOTION SEQ. NO.: 001 MG PLAINTIFFS' ATTORNEY: PARKER !BRAHM & BERG, LLC .5 PENN PLAZA, STE. 2371 NEW YORK, NY 10001 DEFENDANTS' ATTORNEYS: JAMES F. MISIANO, P .C. 200 MOTOR PKY., STE. Cl 7 HAUPPAUGE, NY 11788 Defendants. ----------------------------------------------------------------)( Upon the following papers numbered I to 46 read on this motion : Notice of Motion/ Order to Show Cause and supporting papcrsl.:11__: Notice of Cross Motion and supporting papers_ ; Answering Affidavits and supporting papers 38-44 Replying Affidavits and supporting papers 45-46 ; Other_ ; (and after hearing counsel in support and opposed to the motion) it is. ORDERED that this motion by plaintiff U.S. Bank, N.A. seeking an order: 1) granting summary judgment striking the answer of defendant Linda Vanderbaan; 2) discontinuing the action against defendants designated as "John Doe" and "Jane Doe"; 3) discontinuing the action against the defendant identified as Jan William Vanderbaan; 4) deeming all appearing and non-appearing defendants in default; 5) amending the caption; and 6) appointing a referee to compute the sums due and owing to the plaintiff in this mortgage foreclosure action is g,ranted; and it is further ORDERE D that plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of the Court; and it is fiuther ORDERED that plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared and not waived further notice pursuant to CPLR 2103(b)(l),(2) or (3) within thirty days of the date of this order and to promptly file the affidavits of service with the Clerk of the Court. Plaintiff's action seeks to foreclose a mortgage in the original sum of $322,500.00 executed by defendant Linda Vanderbaan on April 13, 2005 in favor ofNovastar Mortgage Inc. On the same date defendant Vanderbaan also executed a promissory note promising to re-pay the entire amount of the indebtedness to the mortgage lender. By assignment dated February 13, 2006, Mortgage Electronic Registration Systems, Inc. as nominee for Novastar assigned the mortgage to JPMorgan [* 2] Chase. .1\ Defendant Vanderhaan thcrcalkr executed a consoljdat ion mortgage agreement am! promissory note dated l·chruary 17. 2006 forming a single lien in the sum of $160.000.00 The t:onsolidate<l note an<l mortgage ,,·ere assigned lo plaintiff on February 27. 20D. Plaintiff claims that Vandcrbaan <le faulted under the terms of the mortgage and note by foiling to make timdy monthly mortgage payments beginning September I. 2009. Plaintiffs motion seds an order granti11g summ1.1r:y judgment stri king <lcfondant's answer and for the appointment or a reforee. Jn opposition. defendant Vanderbaan submits an attorney's affirmation and claims that: I) the action is stayed as a result of dekn<lant Jan William Vanderbaan 's death on September 19. 2016 and 110 further proceedings can take place until substitution is made for the decedent: 2) there is insufficient relevant. admissible evidence submitted by the plaintj ff in support or the motion lo grant summary judgment since the mortgage serviccr·s representative's af!idavits arc hearsay and not admissible as evidence: 3) there is insunicient proof to show that the mortgage loan was ovvned by the plaintiff and included in the pooling <rnd servicing agreement: 4) plaintiff lacks standing to maintain this action since th\! allongc was not a nixed to the promissory note; 5) summary judgment must be granted in favor of defendant Yandcrbaan dismissing the complaint; and 6) plaintiffs application fo r an order pursuant to CPLR 3126 must be denied. In reply, the plaintiff submi:s an attorney's al1irmation and argues that no basis exists to den) granting plaintitrs application for an award of summary judgment. Plaintiff claims that the proof submitted in the form or an anidavits from the m011gagc servicer· s employees together with copies of the promissory notes am.I mortgage agreements provide sufficient evidence entitl ing the mortgage lender to f(xeclose the mortgage. Plaintiff contends thc mortgage servicer's representative ·s artidavil dctailing the bank records pertaining to the defendant's notes and mortgages satislies the business records except ion to the hearsay rule and reveals that defendant has defaulted under the tem1s or the mortgage by fai ling to make mortgage payments for nearly the past eight years. Plaintiff claims the evidence shows that U.S. 13ank. N.A. has stand ing to maintain this action as the holder and continuous physical possessor of tbe promissory notes and allonge since March 3. 2006 . Plaintiff also claims that the proof submitted shows that the notes were included in che pooling and servicing agreement and that the allonge has been af'lixccl to the promissory note since March 16, 2006. Pia inti ff also asserts that no basis exists to stay the action based upon the plain ti tr s application to discontinue the action agai nst the decedent and in view of the fact that the dece<lcnt had no ownership interest in the mortgaged premises. The proponent of a summary judgment motion must make a prima focie showing or c.:11title1rn.:nt to judgment as a muller ollaw. tendering sufficient evidence to eliminate any material question of foci from the case. The grant of summary judgment is appropriate only when it is clear that no material and triable issues of foc t have been presented (5· il/man '" 'f'll'e11tieth ( ·e111wy-Fox : Fi/111 <·or/>. • 3 NY2d 395 ( 1957)). The moving party hc.:urs the initial burden or proving entitlement to summary judgment ( IVinegrcul 1·. N}'( I MC!diml ( 'e/1/er. 64 NY2d 851 ( 1985 )). Once such proof' has been prof'll.:rcd. the burden shi Its to the opposing. party who, to <.k!Cut the motion , must offer evidence in admissihll' form. and must set forth l~1cts sunic icnt to rcquin.: n trial or any issue or foct (CPU~ 32 J 2(b): /.11ckemw11 '" ( 'it.1 o(Nell' )'ork. 49 Y2d 557 ( 1980)). Summary judgment shall only be !!ranted \\'hen there arc no issues of material Ii.let and the evidence require!-. the cour1 to direct a judgment in fonlr or the movant as a matter or la'' (l·i·ieml.~· ofA11i111a/s 1·. .·lssociuted Fur \fw111/iwr11rers. 46 NY2d I 065 ( 1979)). -2- [* 3] Entitlement to summary judgment in favor of the foreclosing plaintiff is established. prima focie by the plainli rr s production or the m011gagc and the unpaid note. and evidence or default in payment (see Wells Fargo Bank NA. 1•. Erohoho. 127 i\03d 1176. 9 NYS3d 311 (2 11J Dept.. 2015): ll'e/ls Fargo Bunk. NA. 1·. ,·Iii. 122 !\.D3d 726. 995 YS2d 735 (2"u OepL 2014)). Where the plaintifrs standing is placed in issue by the defendant's ans\\er, the plaintiff must also estahlish its ~landing as part of its prima facic showing (Aurorct l.cHm Serl'ic:e. 1·. Taylor. 15 . Y>d 355. 12 \ NYS3d 612 (2015): Lotmcare r. Firshing. 130 i\D3d 787. 14 NYS3d 410 (2 1<1 Dept.. 2015 ): !!.\'BC Hunk (!,\'A. N.A . 1·. /Japtiste. 128 /\D3d 77. l 0 NYS3d 255 (2"'1 Dept.. 2015)). In a foreclosure action. a plaintiff has standing i r it is either the holder or, or the assignee of, the underlying note at the time that thc action is commenced (Aurora Loan Services 1•. Taylor. supra.: /~1J1i}!.rw1t Bank v. Lari::::a. 129 i\D3d 94. 13 YS3d 119 (2 00 Dept. , 2015 )). Either a written assignment of the note or the physical transfer or the note to the plaintiff prior to commencement of the action is sufficient to transfer the obligation and to provide standi ng (Wells Fargo Bank. NA. 1•. Parker. 125 AD3d 848, 5 YS3d 130 (211J Dept., 2015): U.S. Bank v. Guy. l 25 AD3d 845, 5 NYS3d I 16 (2"u Dept., 2015)). A p l aintin~s attachment of a duly in<lorsed note lo its complaint or tu the certificate or merit required pursuant to CPLR 3012(b). coupled with an atlidavit in which it alleges that it had possession or the note prior to the commencement or the action. has been held to constitute due proof of the plaintiffs standing lo prosecute its claims for foreclosure and sale (JP1\ilorgc111 Chase Bank. N.A. 1·. Weinberger. 142 AD3d 643. 37 NYS3d 286 (2"J Dept.. 2016): FNMA 1·. Yakaput= 11. Inc: .. 141 i\03d 506, 35 NYS3<l 236 (2 11J Dept.. 2016); De11f\·c:he Bank National Trust Co. v. J,eigh. 137 i\D3d 841, 28 NYS3d 86 (2'"1 Dept.. 2016): Nationstar Morl[!.age LLC v. Cati:;one. 127 i\D3d 1151, 9 NYS3d 315 (2"<l Dept., 2015)). 1 !'he plaintiffs proof in suprort of its motion consists of: 1) a copy of the signed adjustable rate promissory note dated /\pril 13, 2005 indorsed in blank and signed by the vice president of the ol'iginal n1Mtgagc lender. Novastar Mortgage. Inc. ; 2) a copy of the signed .. fntcrcstfirsC adjustable rate promissory note dated h.~bruary 17. 2006 in the sum of $33,4 17 .85 with the lender, JPMorgan Chase Bank. N.A.: 3) a copy or the signed .. lntcrestFirst" adjustable rate note dated February 17. 2006 in the sum of S360.000.00 with the lender JPMorgan Chase Bank, N.i\. and an allonge payable to plaintiff. U.S. Bank. 1./\ •• signed by an authorized officer or JPMorgan Chase Bank. N.A.: 4) copies or the three signed mortgage agreements and a copy of the signed consolidation agreement: : 5) a copy of the assignment orthe mortgage dated February 13, 2006 from MERS as nominee for Novastar Mortgage Inc. to JPMorgan Chase Bank, N.A. ; 6) a copy of the assignment of the mortgage dated February 27. 20 13 fi·om JPMorgan Chase Bank, N./\. to U.S. l3ank. N.1\.: 7) a copy of the Pooling and Servicing /\grecmenl dated June I. 2006 naming plaintiff as trustee: and 8) an ani<lavit from the document control officer of Select Portfolio Servicing dated March 3. 2016 (th<.: current mortgage servicer) and an affida vit from an authorized signer or JPMorgan Chase Bank. N./\. dated October 7, 2015 (the former mortgage servicer) testifying about the contents orthe loan (business) records maintained hy the mortgage lenders. /\l issue is '"hclhcr the evidence submitted hy the plaintiff is sufficient to establish it::; right to l()reclosc. The dekndmll docs not argue her failure to make payments due under the terms or the promissory notes and mortgage agreements. Rather. the issues raised by the dct1.:ndan1 concern whether the ;1 ction must he staved: whether plaintiff has standing: and whdh<:r sunicient admissible proof has been subm itted to entitle the bank lo roreclnsc. -J- [* 4] CPLR 4518 provides: Busim·ss records. (a) (kncrall~·. J\ny \vriling or record. whether in Lhe fonrt or an entry in a hook or olh1.:rwise. ma<lc as a rni..:rnoranclum or record or any act. transaction. occurrence or event. shall be admissible in cvi<lc.:nce in proof or that act, transaction. occurrcm:c or even!. ir the judge rinds that it was made in the regular course of any business and that it was the regular course of such business to make it. at the time or the net. transaction. occurrence or event. or within a reasonable time thercancr. The Court or Appeals in People v. ( iuidice. 83 NY2d 630. 635, 612 NYS2d 350 (I 994) explained that ..the csscrn:c of the business records exception to the hearsay rule is that records systematically made for the conduct of business ... arc inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct or the enterprise ... (quoting People v. Kennedy. 68 NY2d 569. 579. 510 NYS2d 853 ( 1986)). It is a unique hearsay exception since it represents hearsay deliberately created and differs from all other hearsay exceptions which assume that declarations which come within them were not made deliberately with litigation in mind. Since a business record keeping system may be designed to meet the hearsay exception. it is important to provide predictability in this area and discretion should not normaJly be exercised to exclude such evidence on grounds not foreseeable at the time the record was made (see 1i·offi v. £stale r?fB11chanan. 272 AD2d 660. 706 NYS2d 534 (3 111 Dept.. 2000)). The three foundational requirements or CPLR 45 I 8(a) arc: I) the record must be made in the regular course of business- reflecting a routine. regularly conducted business activity. needed and relied upon in Lhc performance of bu-;iness functions; 2) it must be the regular course or business Lo make the records- (i.e. the record is made in accordance with established procedures fo r the routin<.:. systematic making of the record): and 3) the record must have been made at the time of the acl. transaction, occurrence or event. or within a reasonable time thereafter. assuring that Lhe recollection is fairly accurati.: and the en tries routinely made (see People 1•. Ke11nec(1 supra (a). pp. 579-580)). The .. mere filing or papers received from other entities. even if such papers arc retainl.!d in the regular course or business. is insunicienL 10 qualify the documents as busim:ss records:· (People 1·. Crat.\ley. 8(> Y2d 81. 90. 619 NYS1d 992 ( 1995)). Thi.: n.:cords will be admissibk .. if the recipient can establish persorwl kmiwlcdge o!' the maker's business practices and procedures, or that the records provided by the 111aker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business:· (,\ 'tote o/Ne1r fork r. 158 Street & Rii·erside /)ril •e I lousing 0/ll/Jlfll_l'. Inc.. 100/\D3d 1193. 1296. 956 YS1<l 196 (20 12): h•m·e denied. 20 'Y3d 858 (20U)). In this regard v. ith respect to mortgage foreclosures. a loan servicer.. s employee nm) testi ty on hchal r nf the mortgage kndcr and a representative of an assignee or Lhe original lender can rely upon business records or the original lender 10 eslahlish its claims for r"Ccovery or amounts due from the borrowers provided the assignedplai nti ff <.:stahlishcs that it rel icd upon those records in the regular course or business (/,um/murk ( 'upitul Im·. Inc:. ,._ U-.<.'. hw1 I Vang. 94 /\ D3d 418. 941 NYS2d 144 (I ..i Dept.. '2012): J>ortfolio Recm •e1:1·. ls.\ociutes. U.C. 1'. l .01/. 127 /\DJd 576. 8 YSJd IOI ( l,;i J)~pl.. 1• 1 ,, 0 ( -4- [* 5] 2015): .\lerrill l.y11c:h B11si11C!.\S Fi11u11cial :';C!rl'ic:es. Inc. 819 YS2d 223 ( l ' 1 Dept.. 1006)). 1·. Tra!aro.\ Co11struc1io11. Inc. . 30 /\DJd 336. /\s n.:crntly stated in the /\pp-.;llate Division. Second Judicial Department decisi011 in 11 1·. A:opelmrit::. C!I ul.. 20 I 7 NY Slip Op 0133 1 (1 J Dept.. '2112117): ··There is 110 requiremem that a plaint1 ll in a foreclosure act ion rdy upon any panicuiar set of husincss records to establish a prima focic case. so long .Ls the plaintiff satisfies the adir1issihility requirements ofCPLR - ~5 I 8(a). and the records themsdvcs actually evirn.:c the facts for which they an: relied upon (citation~ omitted\:· ( 'ifigrollJJ. etc. . The affidavits submitted from the mortgage service providers 9currcnt and forme r) provide the evidentiury foundation for establishing the mortgage lender's right to foreclose. The allidavits sets forth each servicer employee'!-> r..!view of the business records maintained by Chase and U.S Bank: the foct that the books <.md records arc made in the regular 1;oursc of business: that it was the mortgage servicer.. s regular course of business lo maintain such records; that the records wen:: made at or near the time the underlying transaction took place: and that the records were created by individuals with personal knowledge or the underlying transactions. Based upon submission of these affidavits. the plainti If has provided an admissible evidentiary foundat ion which satisfies the business records exception to the hearsay rule with respect to issues raised in its sum mm)' judgment application. With respect to the issue or standing, plaintiff has submitted sufficient evidence in the form or affidavits from both mortgage service rs' representatives to prove the plain ti ff has standing (as the holder of the original promissory notes signed by the defendant. together with the indorscment allixed to the original promissory note and an attached duly indorsed allongc to the subsequent promissory note) which have been in the mortgage lender's possession beginning on March 3. 2006 and was in the mortgage servicer's possession on or before May 17. 2013. which was the dale the action was commenced (Aurora Loan Sen•ices 1·. Taylor: supra.: I Veils Fwxo !Jank. N. ,-1. ''· Parke!/". s111wa.: U..\'. Hank. NA. 1·. l::J7ren(eld 14..+ /\D3d 893. 41NYS3d169 (2nd Dept.. 1016): (ii\JAC Mortgage. I.I.(' 1·. Sidheny. 144 /\DJd 863. 40 YS3d 783 (2"..i Dept.. 2016)). The mo11gage scrvicers· affidavits together with a copy of the pooling and servicing agreement provides sufficient proor that the plninti IT is holder and owner of the defendant· s mortgage loan. Moreover. uny alleged issues surround ing the mortgage assignments have been rendered irrelevant to the issue of stnnding since the plainti IT has established possession of the duly indorsc promissory notes prior to commcncing this action (see FNMA 1·. fokap11t:; II. Inc.. 141 /\D3<.J 506. 35 YS3d ~36 (1nJ Dept.. 2016): ne11t,chC! Hunk Xa1in110/ fr11s1 Co. 1·. l.eigh. 137 /\DJ<l 841. :rn YS3d 86 (1"'1 Dcpl..101(>)). Wi th respect to the death ora party. as a general rule. ira cm1sc of action survives the death or a party. su<.:h death divests the court of jurisdiction until a duly appointed personal representative is substituted for the decedent (C PI .R I 015: ( iirn11x 1·. Dw1lo1> tire ( 'orp .. 16 /\I )Jd I 068. 791 "YS1d 761) (-J 111 Dept.. 2005): (irm:;u/e:: 1·. Ford .\lo/or Compw~\ '. 295 /\D?.d ..+7-l. 7-l..+ YS1<l ..+68 ( 211J Dept... 2002 ): ,\ falfl!r of l:"i11sto.\'. ). '2<> N Y1d 181. 309 N YS1d l 84 ( 1970) ). I lo\\e\'er. \\here a party·s death docs not affrcl the 1111.:rits of an rn.:tion. there is no need for st rict adherence to the n·cp1in:nwnt tl1;11 llw proceeding" hr stayed pending s11hsti tt1tin11 ( Hm•rt ,. Vinc'i.l'.ll<'ff<t. I ~9 f\ D2d 797. 52<> rys2d (171 (3r'1 lkpt.. 1988 ): ,1/aska Sea/ward J>artners /,/d J'artnershi/> r. (irant. 10 \DJd -l."'(l. 799 NYS2d 117 (2 11' 1 Dept.. 2001)). -5- [* 6] In this case. the decedent who was named a party defendant. had no O\\ ncrship interest in the mortgaged premise~ and was ncvt.:r a signatory to the mortgagl.!s or the promissory notes. The dcccdent/c.k lcn<lant was not then.:: I·() re a necessary pai1y to the foreclosure action an<l the only basis to deny plaintitrs motion {and further delay the proceedings) would be in the situation where the plaintiff is seeking a deficiency ju<lgmcnt against the defaulting defendant (see !·iV/llA ''· Con11el(r. 8-l AD2d 805. 444 NYS2d 147 (2"J Dept.. 1981 ): lleidKerd,•. Reis. 135 AD 41-l. 119 . YS21 ( I" Dept.. 1909): Murual U/e Ins. Co. Of 1 \"e\I' York''· Ninety-h/iy Street & Lexi11gton 1h ·e11ue Corf>.. 60 NYS2d 450 (NY Cty. Sup.Cti .. 194(>)). Since. upon his death, the del'endant Jan William Vandcrhaan retained no ownership interest in the premises. and in view of the fact that as part ot'thc mortgagee's application. the bank now seeks to discontinue the action against the decedent and has elected to wuive its right to seek a deficiency. there is no reason to stay this action since the defendant's demise does not aftcct the merits of this foreclosure proceeding (see I !SBC Bank USA r. Ungar Family Realty ( 'orp .. 1 I 1 /\03d 673, 974 NYS2d 583 (2"<1 Dept.. 20 I 3 ): f)LJ J \t/orlgage 11 C·apiwl. Inc. ''· .J.J Brushy Neck f,td . 51 /\D3d 857. 859 NYS2d 221 (2 d Dept., 2008): FNMA v. Connelly. s11prn.: Pa1erno "· (')'(', /,f,C, 46 AD3d 788. 850 NYS2J 13 I (2 11 <1 Dept., 2007); C01111!1ywide lfome Loans. Inc. v. Keys, 27 A03d 247, 81INYS2d362 ( 1st Dept.. 2006); see also Residential C'redit Solutions. Inc. r. La/ii et al.. 39 Misc 3rd l 2 I 8(A). 975 NYS2<l 369 (Qns. Cty. Sup. Ct.. 2013)). With respect to defendant's remaining contentions, none of the issues raised by the defendant create an issue of fact sunicicnt to defeat the plaintiffs summary judgment motion. The evidence submitted by the bank has shown, and the defendant does not factually dispute, that the mortgagor has defaulted under the terms of the mortgages and promissory notes by failing to make timely monthly mortgage payments since September l, 2009. The bank. having proven entitlement to summary judgment, it is incumbent upon the defendant to submit relevant, evidentiary proof su nicientl y substantive to rnise genuine issues of fact concerning why the lender is not entitled to foreclose the nwrtgage. Defendant has wholly failed to do so. Finally, us the defendant has failed to raise any evidence to address her remaining affirmative defenses in opposition to plaintirrs motion. those affirmative defenses must be deemed ubandoncd and arc hereby dismissed (see Kronick v. /,. P. 711eraul1 Co .. Inc .. 70 AD3d 648, 892 NYS2d 85 (2"J l)cpl., 20 I 0): Citihank. NA. '" I 'an Brunt Properties. LLC. 95 AD3d 1158, 945 NYS2d 330 (2"<l Dept.. 20 I 2): !·'lagswr Bank 11• /Jella/iore. 94 I\ l)Jd I 044, 943 NYS2d 55 1 (2 11J Dept.. 2012): Wells Fargo Bank Minnesota. N.A ,.. !'ere~. 41 AD3d 590. 837 NYS2d 877 (211<1 Dept., 2007)). /\ccordingly the plaintiff s motion seeking un order granting summary judgment and for the appointment a referee is granted. The proposed order for the appoi ntment of a rel'ercc has bt.:t.:n signed simultaneously with the execution of thi s order. or Hon. Howard H. Dated: f\ l<.1} 19. 2017 J.S.C. -6- Hc~kman Jr.

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