JPMS Specialty Mtge., LLC v Lucido

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JPMS Specialty Mtge., LLC v Lucido 2017 NY Slip Op 31151(U) May 26, 2017 Supreme Court, Suffolk County Docket Number: 22791/13 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 DECISION & ORDER INDEX No. 22791/13 SUPREME COURT - STATE OF NEW YORK l.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court ---------------------------------------------------------------X JPMS SPECIALTY MORTGAGE, LLC f/k/a WM SPECIALTY MORTGAGE LLC, Plaintiff, -againstSUSAN LUCIDO, ANTHONY LUCIDO, VICTORIA LUCIDO and "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, MOTION DATE: 11114114 SUBMIT DATE: 5112/17 Mot. Seq. #001 - Mot D CDISPY_ N X FEIN, SUCH & CRANE, LLP Attys. For Plaintiff 1400 Old Country Rd. - Ste. C103 Westbury, NY 11590 DONNA M. FIORELLI, PC Attys. For Defendants Lucido 11 Clinton Ave. Rockville, Centre, NY 11570 Defendants. ---------------------------------------------------------------X Upon the following papers numbered 1 to _7_ read on this motion for accelerated judgments and appointment of referee, 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 _ _ _ _ ;Other 7 ; (and afte1 hem ing eounsel i11 suppo1t a1td opposed to t:he 1notion) it is, ORDERED that this motion (#001) by the plaintiff for accelerated judgments against the defendants served with process and the deletion of the remaining unknown defendants together with a caption amendment to reflect these changes and a separate order appointing a referee to compute, is considered under CPLR 3212, 3215, 1024, 1003 and RPAPL § 1321 and is granted only with respect to the plaintiffs pleaded claims for foreclosure and sale; and it is fu1ther [* 2] Jl>MS Specialty Mortgage. LLC v Lucido Index No. 22791/2013 Page 2 ORDI-.:RED that the remainjng portions or this motion (#00 l) wherein in the plaintiff seeks an order directing the Suffolk County Clerk lo reco rd a Oecemher 30. 2009 mortgage loan modification agreement and a Tax Law § 255 Arfidavic purportedly attached to the moving papers. is considered under C PJ,R 32 12 and 3215(1) and is denied. The plaintiff commenced this action in August or2013 to foreclose the lien of' an August 29. 2006 mortgage executed by the th ree Lucido defendants named in the caption set forth above in favor or New Century Mortgage Corporation to secure a $291,650.00 mortgage note executed likewise that same <lay. According to the complaint. to which the loan documents and a certificate or merit in the form required by CPLR 3 102-b were attached at the time of filing, the ob li gor/mortgagor defendants defaulted in thei r payment obligations on January L 20 10. In response to plaintiffs service of the summons, complaint and other initiato1y papers upon the obligor/mortgagor defendants. they appeared herein by counsel and served an answer containing thirteen affirmative defenses. /\II other defendants served with process defaulted in answering the summons anc.I complaint. By the instant motion (11001), the plaintiff moves for sumrnary judgment dismissing th!.! anirmati ve defenses asserted in the answer served by the oblig,or/mo11gagor defendants and for an award or summary judgment on its complaint against said defendants. In addition. the plaintiff moves for defoultjudgments against the remaining defendant served with process, including Elizabeth I ,ucido who was served as Jane Doc ff 1. The identification of the true name o f such de fondant as contemplated by CPLR I 024 and the deletion of the remaining unknown defendants is also requested along with a caption amendment to reflect these party changes. The plaintiff further seeks an order appointing a referee to compute amounts due under the terms of the subject note and mortgage. Finally, the plaintiff seeks summary judgment on its demand for an order directing the Suffolk County Clerk to record a December 30, 2009 mortgage loan modification agreement. which bears only the signatures or defendants, Susan Lucido and Anthony Lucido, together with the recording of a Tax Law ~ 255 Affidavi t purportedly attached to the moving papers. The plainti Ir s motion (1/00 I) is opposed by the defendants in the llnm of an affirmation of their counsel. Therein, de fense counsel asserts as opposition only the pleaded standing defense that was separately stated as the Tenth affirmative defense in the answer served. I lowever. de tense counsel goes on to challenge the quality and nature of the plaintirt's proof and contcsL5 the plaintiffs entitlement lo the rclief demam.led due lo its purported failure to establish compliance with the pre-action. ninety day notice requ irements imposed by RP /\Pl. § 1304. The plainti IT addressed such oppoistion in reply [* 3] .IPMS Specialty Mortgage. LLC' v Lucido Index No. 2279 I /2013 Page 3 papers. For the reasons set forth below, the plaintiffs motion (!IOO I) is granted to the extent set forth below. It is well settled that a fon:closing plain ti ff establishes its prima fade cntitlement lo judgment as a matter or law by producing the mortgage and thc unpaid note, and evidem:c or the dcfoull (see' HSBC Mtge. Servs., Jue. v Royal, 142 AD3d 952, 3 7 NYS3d 32 1 [2d Dept 20161: Wells Fargo Bank, N.A. v Eroboho. 127 J\1)3d l l 76, 9 NYS2d 312 f2d Dept 2015]: Wells Fargo Brmk, N.A . v DeSouza. 126 J\.D3d 965, 3 NYS2cl 619 [2d Dept 2015]; One West Bank, FSB v DiPilato, J 24 J\.D3d 735. 998 NYS2d 66812d Dept 2015]: Wells Fargo Bank, N.A. vA /i, 122 AD3d 726. 995 YS2d 735 l2d Dept 2014 1). Where the plainti fl's standing has been placed in issue by the defendant's answer, the plainti IT also must establish its standing as pati of its prima facie showing (see A urora Loan Servs., LLC v Taylor. 25 NY3d 355, 11NYS3d61212015 I: U.S. Bank N atl. Ass 'n v Cruz, _ AD3d_ , 2017 WL 69057912d Dept 201 Tl; HSBC Bank USA, N.A . v Baptiste, l28 J\.D3d 77, 10 NYSJd 255 l2d Dept 20151). Moreover, where the answer served contains affirmative defenses cmd/or coun!crclai rns, a plaintiff seeking summary judgment should establish that none of the affirmative defenses asserted in the answer have merit (see Bank of New York Mellon v Vytali11ga111, 144 J\.1)3d I 070. 42 NYS3d 274 !2d Dept 20 16 ]; Prompt Mtge. Providers of Nortl1 A m erica, LLC v Singlt , 132 AD3d 833, 18 NYS3cl 668 l2d Dept 10 l Sl; Citinwrtgage, Inc. v Cltmv Ming Tung, 126 AD3d 84 1, 7 NYSJd 147 L2d Dept 2015]; Jessabell Real~l' Coq1. v Gonzales, 11 7 J\.03d 908. 909, 985 NYS2d 897 l2d Dept 20 14]: Fairmont Capital, LLC v Laniado. 116 AD3d 996, 985 NYS3d 254 r1d Dept 20141; Bank of New York v McCall, 116 AD3d 993. 985 NYS2d 255 [2d Dept 2014]). Once the plaintiff makes all necessary showings, it becomes incumbent upon the answering defendant to submit proof sufficient lo raise a genuine question of fact rebutting the plaintirf s prima facie showing or in support of the aflirmative defenses asserted in his/her answer or otherwise available to him/her (see Flag.<ttar Ba11k v Bellafiore, 94 AD3d J 044, 943 NYS2d 551 I2d Dept 20 121: Grogg Assocs. v Soutlt Rd. Assocs. , 74 AD3d 1021, 907 NYS2d 22 12d Dept 20l0J: Wells Fargo Ba11k v Karla, 7 I J\ D3d I 006, 896 NYS2d 681 !2d Dept 20 I 01; Waslt i11gto11 Mut. Ba11k v 0 'Co1111or. 63 J\.D3d 832. 880 NYS2d 696 !2d Dept 2009.]; A ames F1111di11g Corp. v Houston, 44 J\D3d 692, 843 NYS2d 660 12d Dept 2007]). T he failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without efficacy (see New York Commercial Bank l' J. Rea/~11 F Rocka way, Ltd.. I 08 J\ D3d 756. 969 NYS2d 796 !2d Dept 20 I 31: Starkman v Ci~F <~flong Beaclt. 106 AD3d 1076. 965 NYS2d 609 I2d Dept 20131). Moreover. allinnali vc defenses predicated upon legal conclusions that arc not substantiated with allegations of fact are subject to dismissal pursuant to CPLR 3211 and 3212 (see CPLR 3013. 30 181 b ]; Katz v Miller. 120 J\.D3d 768. 991 NYS2d 346 j2d Dt!pl 2014J: Reciter v Feller, 64 AD30 672, 677. 884 NYS2d 83 r2d Dept 20091: Colten Fashion Opt.,]11c. v V & 1 Opt. , Inc. , 5 1 AD3d 6 I9, 858 NYS2d 260 12d Dept 11 '.W081). [* 4] JPMS Specialty Mor1gage. LI,( v Lucido Index No. 22791/2013 Page 4 I lere. the pluintilTs moving papers surliciently demonstrated. prima facie. that none or the anirmative dcknscs asscncd in the answer served by the obligor/mortgagor defendants have merit. Since. as indicated above. the tkfondanls foiled to assert any or their pleaded ddl.:nsc.s cx<.:ept thei r standing ddcnsc. which is separately set l'orth as the Tenth aflirmative defenses in the answer. all other pleaded deknses have been waiv<.:d by abandonment and are thus dismissed pursuant lo CPLR 32 I2(h) (see New York Commercial Bank v J. Realty F Rocka wr~v, Ltd. , I 08 J\D3d 756, s1111ra~ Starkma11 l ' City of Lo11g Beaclt , I 06 J\D3d I 076. supra). The plaintiff is thus entitled to summary judgment dismissing all or the affirmative defenses asserted in the answer. other than the Tenth. as they were not raised in opposition to the plaintirt~s motion. With respect to the issue o f the plaintiff's standing, controlling appellate case authorities have repeatedly held that in determini ng the standing of a forcc.:losing plaintitl~ it is the mortgage note that is the dispositivc instrument. not the mortgage indenture. This rcsuh is mandated by the principal/im:idcnt rule which provides that bt:cause a mortgage is merely the security for the debt, the obi igations of the mortgage puss as an incident to the passage of the note (see A urora Loa11 Sen is., LLC v Taylor. 25 NY3d 355. 12 NYS3d 6 12f20 151: Wells Fargo Bank, N.A . v Clwrlaff. 134 /\D3d 1099. 24 NYS3d 317 l2d Dept 20 151: Emigrant Bank vLarizw. 129 J\03d 904, 13 NYS3d 129 r1d Dept 20151 ). For standing lo ex isl, the plainti IT must be the owner. holder, or assignee of the mortgage note at the time of the commencement or the action (see A urora L o(lll Servs., LL(' v Tay lor. 25 NY3d 355. 361, supra: A urora l oa11s Sc!rvices, L LC" M a11del. __ /\ DJ<l_ , 2017 WL I 068846 j2d Dept 20171: Deutsclte Bank Natl. Trust Co. v Rom ano. 147 J\03d I 021. 48 YS3d 237 12d Dept 20171: U.S. Ba11k Natl. Ass '11 v S(lraw11u111. 146 AD3d I 0 l 0. 45 NYS3d 54 7 I2d Dept 20171: Emigrant Bank v Larizza, 129 AD3<l 904, supra) It is now dear that there are several ways in which a foreclosing plaintiff may establish its standing to prosecute its claim fo r foreclosure and sale and any one will surtice so as to render the others irrelevant and immaterial to the establishment or standing. One such way is where the plaintiff demonstrates that it is the holder of the mortgage note within the contemplation or the Uniform Com1rn:rcial Code and was so at the time or the commencement or the action. I !older status is established wbl.!rc the plaintiff pos-;csses a note that. on its race or by allongc. contains an endorsement in blank or bears a special cndors<.:ment payable to the order of the plaintiff (.,·ee llCC 1- 20 I; J --202: 3 204; llartford Acc. & b u /em. Co. v A m erican E r:press Co.. 74 NY2d 153, I 59 I 19891). Notably. the holder or an instrument. whether or not it is the owner. may enforce payment in his own name (see llCC 3 3011: Wells Fargo Bank, N.A . v Ostig uy. 127 J\D3d 1375. 8 1YS3d 669 l3d Dept 20151). /\··holder" is ··the person in possessionora negotiable instrument that is payable either to bearer or lo an identified person that is the person in possession .. (UCC 1- 20JIb112 I I: see U.S. Bank Natl. A.n·'11 1• Cm :. 147 /\D3d 1101. 1-l7 >IYS3d 45912<l Dept 20171: US Bank, N.A. "Zwisler. 46J\1>3d [* 5] JI>MS Spct:ialty Mortgage, I.LC v Lucido Index o. 2279112013 Page 5 213. 2017 WL 421317 I2<l Dept 20171: Pe1111y1 c Corp. v Clrnvez. 144 /\D3<l I 006, 42 ' YS3<l 239 1w [2d Dept 20161). ···1karer· means ... a person in possession of a ncgotiuhle instrument.. (l J('(' I 2011b1151). an<l where the note is endorsed in blunk. it may be negotiated by del i wry alone (see UCC · 3- 202111. 3 204121) ... /\n endorscm~nl in hlank specifics no particular endorsee and may consist or a 1m:n.: signature" and '"I a In instrument payable to order and endorsed in blunk becomes payable to hearer and may be negotiated by <.klivcry alone until specially endorsed (lJCC 3- 204121)" (JPM organ Clw se Ba11k, Natl. Assn. v Weinberger, 142 /\D3d 643, supra). /\special endorsement. which may appear on the face orthe note or by allongc attached thereto, is consic.kred a written assignment of the note (see De11t\·che Bank Trust Co. Am ericas v Garrison. 46 /\D3d 185. 2017 WL 42474012d Dept 2017j). Under th is statutory framework . it is clear that to establish its standing as the holder or a duly endorsed note in blank M specially endorsed in its favor, a plaintilTis only required to demonstrate that it had physical possession of the note prior to commencement of the action ( \·ee Deutsche Ba11k Natl. Trust Co. v Loga11. l46 /\D3d 86 L 45 IYS3d I 8912d Dept 2017]: J PMorgan Clwse Ba11k, Natl. Ass11. " Wei11herger. J.n AD3d 643 . 645. supra). Where the note is endorsed in blank, it is unnecessary to give factual details of the delivery in order to estnhlish that possession was obtained prior to a particular date because such a note is payable to the bearer thereof. /\ pl ainti IT in possession or a blank endorsed note is thus without obligatio~1 to establish bow it came into possession or the instrument in order to enforce it (see UCC 3- 204[2]: see also Deutsche Bank N atl. Trust Co. v Logan , 146 /\IBd 86, s11pra: Pe11ny mac Corp. v Chavez, 144 /\D3d l 006, supra quoting JPJ\llorga11 Chase Bank, N atl. Assn. v Weinberger, 142 /\D3d 643, 645, s11pra). In addition , because a signature on a negotiable instrument is presumed to be genuine or authorized (see LJCC 3 307l l II h I). the plain ti ff is not required lo submit proor that the person who endorsed the subject note. in blank or especially in ravor of the plaintiff, was authorized to do so (see CitiMortg age, Ju e. v iWcKi1111ey, 144 /\D3d 1073. 42 NYS3d 302 l'2c.I Dept 2016 !). I·:vidence of the plaintiffs holder status prior to the commencement of the action may be dcri vcd from the plainti tr s attachment of a duly indorscd mortgage note to its complaint or to the cerli ficate of merit required hy C Pf .R 3012-b (see Deutsche Bank Tmst Co. A merica~·" Garriso11. 46J\D3d 185. \"lf/JJ"a: U.S. Ban k Natl. Ass '11 ' ' Sarawmau. 146 /\D3d I 0 I0. 45 NYS3d 547 I2d Dept 20171: Deutsche Bauk Natl. Trust Co. v Loga11. 146 AD3d 861 . supra: Nati<Jm ·tar M tge. , LLC '' Wei.·blum . 143 /\D3d \ 866. 39 YS3d 491. 494 l2d Dept 20161: JPMorgan Chase Ba nk, Natl. Ass'11 i• Weinberger, 142 /\D3d 6-U. ·'"J'ru: Deut.\"Che Ba11k Natl. Trust Co. v Leigh . 137 AD3d 841. 28 NYS3d 86 12d Dept 20161 : Natio11star Mtge., LLC v Catiu m e. 127 /\D3d I 151, 9 YS3d 315 12015 I: see also Deutsche Bank Natl. Trust Co. •' Umeh . 145 AD3d 497, 41 NYS3d 882 I I' 1 Dept 20161). Indeed. the cstnhlishmcnt of thl.! plainti rr s actual possession or a duly endorsed note or its constructive possession through an agent prior to the commencement of the action is so conclusivc that it renders. unavailing. [* 6] .I PMS Specialty Mon gage. I.LC' v Lucido Index No. 22791/2013 Page 6 or all claims content defects in allongcs (see U.S. Bank vAske w. 138 /\D3d402. ?.7 NYS3d 85611 " Dl.!pt 2016 j). It furthl.!r renders 1..i1iavail ing. all claims as to the invalidity or mortgage assignments or defects in the chain of several mortgage assignments (see A urora L()(t11 S ervs., LLC v Tay lor, 25 NY3d 355. s11pm: Pen11y mac Corp. v Chavez, 144 AD3d l 006, supra: CitiMortgage, Inc. 11 McKi1111ey. 144 J\DJd 1073. supra: JPM organ Chase Bank, Natl. Ass '11 v Weinberger. 142 /\DJd 643. supm: Deutsche F/agstar Bank, FS B v Mendoza. 139 /\OJd 898. 32 NYSJd 27812d Dept 20161; US Bank Natl. Tru.\·t ,,. Naughton. 117 /\D3d 1199, 28 NYSJd 444 r1<.1Dept 201 GI; Deutsche Bank Natl. Trust v Wltale11 . 107 /\DJd 93 l. 969 NYS2d 82 [2d Dept 2013'1). I Iere. the plaintiff's subm issions established, prima facie. that the plaintiff was the holder of the subject mortgage note on the date of the commencement of this action, as such subm issions included copies of the complaint in which the plaintiff asserted factual allegations regarding its possession of the duly endorsed mortgage note at the time of the commencement of the action. The plaintiff rurthcr established that copies or the notl.! endorsed in blank by allongc were attached to the comp laint when filed with the court as was a certi Jicatc of merit or the type contemplated by CPLR JO 12-b. Due proof of the plaint ifrs standing due toils holder status was thus suflicicmly demonstrated. The defendants· challenges to the affidavit or merit attached to the moving papers arc thus witho ut efficacy. /\ccordingly. the plaintiff is awarded summary judgment disrnissing the Tenth aflirmative defense asserted in the answer of the obligor/mortgagor defondants and summary judgment on its complaint against these answering defi.:ndan ts (see CPLR 32 I 2: Deutsche Bank Trust Co. A mericas v Garrison. 46 /\D3d 185, suprn; /)eutsclte Bank Natl. Trust Co. v Logan . 146 AD3d 86, supra: CitiMortgage, Ille. v McKill11ey. I 44 /\DJd I 073. supra: Pe1111y mac Corp. v Cha vez. I 44 /\D3d I 006. supra: JPMorgan Chase Bank, Nat. A.srn. l ' Weinberger. 142 /\03d 643. 645, supra}. The court further !inds that defense counsel's challenges to both the form and substance or the plainti lrs proofof the issuance and mailing of the RP/\ PL§ I 304 notice arc also unavailing. Contrary lo contentions of defense counsel. the allidavi t or merit submitted by I leather Craft, a Vice President o I' .I PMorgan Chase Nutional Association !'Chase I, the loan servicer of the plaintiff. comports with the rcquireml.!nts or CPLR 4519 and demonstrates the plaintifrs compliance with the ninety day notice requirements imposed by RP/\ PL § 1304. It is well settled law that a business record will be admissible if that record .. was made in the regular course or any business am! ... it was the regular course of such business to make it. at thl.! time of the act. transaction, occurrence or event. or within a reasonable time thereafter" (One Step Up, Ltd v Webster Bus. Credit Corp .. 87 AD3d I, 925 NYS2d 6 I 11 st Dept 20 l 1l: CPLR 45 I 8[ a I). As with other hearsay cxccplions. the business records exception grew out or considerations or necessity and trustworth iness -- the necessity fur alternatives to pennit large and smal l businesses to [* 7] .IPMS Specialty Mortgage. I.LC' v Lucido lnde:-: No. 2!.791 /?.()13 Page 7 prove debts by their records or account and the unusual degree of trustworthiness and rcliahi lily of such records owing to the foct that they were kcpr regularly. systematically. routinely and contemporaneously (People v Ke1111e<fr 68 NY2d 569. 579-580. 510 NYS2d 853 [ l 986 j: citinK 5 Wigmore, Evidence §§ 1421. 1422. 154(> IChadbourn rev 1974 ]: see also, Note. 8usincss Records Ruh:: Repeated Target or I .egal Reform, 36 Brooklyn L R..;v 241 ). The element of unusual reliability is supplied by systematic t:hecking, by regularity and continuity whit:h produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part a wntinuing job or oct:upation (id.. dtinK MtCormick. Evidence ~ 306 rc1eary 3d ed. I). The essence of the husiness records exception to the hearsay rule is that records systematically made for the conduct or a business as a business arc inherently highly trustworthy because they are routine reflections or day-to-day operations and because the entran t's obligation is to have them truthful and accurate for purposes of the conduct of the cnte1vrisc (id., citing Williams v Alexander, 309 Y 283. 286l19551). or These concepts constitute the foundational clements of CPLR 45 I 8(a) as the statute requires that the record he made in the regular course of business -- essent ially. that it rcncct a routine, regularly conducted business activity and that it be needed and relied on in the performance or functions or the business. In addition. it must be the regular course of such business to make the record (u double requirement or regularity) essentially requiring that the record be made pursuant lo established prot:edures frH the routine. habitual. systematic making of such a record and that the record be made at or about the time of the event being recorded so that recollection be fairly accurate and the ha hit or routine of making the entries assured (id., at 580: see also Oue Step Up, Ltd v Webster Bus. Credit Corp., 87 J\03d I, supra). The key to admissibility or a business record )!.; thus that it carries the indicia or rdiability Mdinarily associate<l with husincss records (see People v Cratsley, 86 NY2d 81. 91. 629 NYS2d 992 l l 9951: One Step Up, Ud. v Web.~·ter Bus. Credit Corp .. 87 AD3d 1, sltpra: Corsi v Town ofBedford, 58 A D3d 225. 231 - 232. 868 N YS2d 258 12008), Ii>. denied 12 N Y3d 714. 2009 WL 1770158 I20091 ). While .. the mere filing or papers received from other entities is insufficient to qualif)• the documents as husiness records. such records may be admitted into evidence il'lhe recipienl can establish personal knowledge of the maker's business practices and procedures. or that the records provided by the maker were incorporntcd into the recipient's own records or routinely relied upon by the recipient in its business.. (Deutsdre /Jank Natl. Trust Co. V Mo11ic:a 131 /\D3d 737, 15 N YS3d 863 I3d Dept 20151: q11ofi11g State v 1581/t Street & Riverside Dr. llous. Co., Inc: .. 100 /\D3d 1293. 956 YS2d I% J 3<l Dept 2012) citing People v Cratsley. 86 NY2<l 8 l. 90- 91. Sllpra). That there is no requirement that the afliant have personal knowledge of ever; entry is clear particularly where there is a business relationship between the entities entering and maintaining the records and those incorporating and relying upon them in the regular course of their business (see Citiha11k,NA vAhrams, 144 J\D3<l 1212. 40 NYS3<l 653 13d Dept 2016 J: Deutsche Bauk Natl. Trust Co. v Monica. 131 AD3d 737. 739 ..rnpra~ [* 8] JPMS Specialty Mo11gagc. LLC v Lucido Index No. 22791 /20U Page 8 I/SBC Ba11k USA, N.A. v Sage. 112 /\D3d 1126, 1127. 977 l'\YS2d 446120131: la11tlmark Capital Inv., In c. v Li-Slum Wllng. 94 /\Dd~d 4 18. 941 NYS2d 144 I P 1 Dept 2012 ]). It has thus been held that an employee or the plain ti IT or ils loan servicer may tcsti l)' as to payment defaults. notices thereof, note possession and other matters relevant to a JOrcclosingplainti IT's prima focie case upon th<! affiant · s review of business records (see Pe1111y mac Holt/ings, lLC v Toma11elli. I 39 /\D3d 688, 32 NYS3d 181 1_2d Dept 20 I G]: Deutsclte Bank Natl. Trust Co. v Na ugltton. 13 7 J\03d 1199. suprn; Deutsclte Bank Natl. Trust Co. v A bdan, 131 J\D3d I 00 I, 16 NYS2<l 459 l2d Dept 20151: Well\· Fargo Blink, N.A. vA rias. 12 1 J\.D3d973. 995NYS2<lI18 j2<l Dept 10 141; see also Citibank, NA v Abrams. 144 A03d 1212. 40 NYS3d 653 IJd Dept 20161: Deutsche Blink Natl. Trust Co. ,, Monica, 131 /\D3d 737, supra; HSBC Bank USA, N atl. Ass'11 1• Sage. 112 /\D3d I 126. supra: A a m es Capital Corp. v Ford, 294 J\.D2d l 34. 740 NYS2d 880l1 st Dept 2002)), including materials generated by predecessors-in-interest (see De11tsclte Bank Natl. Trust Co. 1• Mtmica. I 31 /\D3d 737 ..rnpra; Portfolio Recovery Assoc., LLC v Lall, 127 /\DJd 576. 8 1 YS3d I 0 I 11 st Dept 2015 J: landm ark Capital Inv., fo e. v Li-Slla11 Wang. 9-l /\IJ3d 4 I 8, supra; State v I 58tlt St. & Rfrerside Dr. llo11s. Co., Jue., I 00 J\.D3d 1293. supra). Moreover, a transforce or assignee of an original lender or intermediary predecessor may rely upon the business records of the original lender establish its claims for recovery or amounts <lue from the debtor so long as the plainti ff establ ishcs that it received and relied upon those records in the regular course of its business (see landmark Capital luv., Inc. v Li-Sllnu Wang. 94 ADd3d 418. supra: see also De11tsclte Bm1k Natl. Trust Co. 11 Monica , 131 J\.IJ3d 737. supra; Portfolio Recovery Assoc., LLC v Lall. 127 J\.D3d 576. supra). These results an: predicated upon CPLR 45 l 8(a) which docs not require a person to haw personal knowledge of each or thl:! foe ts asserted in the affidavit of merit put before the court as evidence of the plaintitrs standing or its con1pliance with notice requirements and/or the delcndant's del'ault in payment (.\ee Citibauk ' ' A brahms. 144 AD3d I 212. supra; Deutsch e Bank Na tl. Trust Co. v Monica , I 31 /\D3d 737. s11pro). Lo I lcre. the plaintiff's suhmissit>ns established that the Joan servicer. JPMorgan Chase. 1 alional /\ssociation l"'Chasc"J issued and mailed the RP/\PL § l304 notice to cach of the three horrowcrs in accordance withe the dictates or that statute. The artidav it I leather Craft. a Vice President of Chase. includes factual avermcnts as to her familiarity with the record keeping procedures of Chase. its procedure for maintaining such records and its rcliant:c thereon in the ordinary course of its business as u loan servicer. Based upon her review of those business records. with which she is personally familiar. Ms. Cran avers that content compliant RP/\PL § 1304 notices dated February 7. 2013. were sent to each of the three ohligor/mortgagors at the mortgaged premises by first class mail and by certified mail. The court thus linds that the factual avcrmcnls advanced in the affidavit of merit satisfied the requirements of the business records exception to the hearsay rule set forth in CPLR 45 l 9 and demonstrated the plaintiffs com pliance with RP/\PL § 4519. The U:-:;PS tracking records showing [* 9] .I PMS Specialty :vtongagc. I.LC v Lucido Index ·o. 22791 /2013 Pag<.: 9 arrival of the ccrlificd mailings on February 11. 20 I J and delivery on February 15. 20 I J allcr delivery notices were !ell al the mailing addr<.:ss or each notice arc attached to the reply papers suhmittcd hy the plaintiff arl! further evidence of the plaintifrs compliance with the mandates or RPPJ\L 1304. Accordingly. the court rejects the defendants· challenges lo the plaintiffs proof on this issue. * In contrast. the plaintiff's submissions foiled to demonstrate any entitlement to the other relief demanded on this motion. namely, an order directing th<: Suffolk County Clerk to record a December '.iO. 2009 mo1tgage loan modification agreement. which bears only the signatures or de fondants. Susan I.ucido aml Anthony I.ucido. and lo record a Tax Law § 255 Affidavit that is purportedly attached to the moving papers. While these demands for relief arc set forth in the complaint served. they arc not set forth as a separate cause action targeting the signatories to this loan modi lication agreement or those who executed the original loan documents or even the Suffolk County Clerk, who was nm joined as a party defendant to this action. These demands arc thus unsupported by any factual avem1cnls from which tht: court may discern the plaintiffs possession of"a plausible claim for the relief sought and no copy or any proposed Tax Law§ 255 Affidavit is attached to the moving papers. Moreover. this December JO, 2009 loan modification agreement was exe<.;utcd only by de fondants, Susan Lucido an<l /\nlhony Lucido. Jt is thus devoid of any evidence of the plaintiff assent 10 he bound thereby personally or through its servicing agent. Chase. or the assent of the third ohligor/mortgagor under the original loan documents. namely. Victoria Lucido. In addition, the three Lucido signatories to the original loan documents that arc purportedly modified hy the December 30, 2009 writing. defaulted in making the payment due on January 1, 2010. which was the stated effective date or the loan modification agreement, thereby vitiating any effect it might have otherwise had. These cireumslances, coupled with the fact that the plaintiff cites no statutory or other authority fo r the granting of the relief requested. warrants a denia l thereof. Those portions of the plaintilTs motion (11001) wherein it seeks an order identifying the true name or the person served as unknown defendant Jane Doc # I. namely Elizabeth f .ucido. and the deletion or the remaining unknown dclcndants arc granted pursuanl to C PLR I 024 an 1003. The plaintilrs further demand for a caption amendment lo reOcct these changes is also granted. The remaining portions or the plaintilTs motion (11001 ). wherein it seeks a default judgment against Eli1:abeth Lucido. who was served as an unknown defendant at the mortgaged premises me granted pursuant 10 CPLR 3215 and RP /\PL ~ 1321. The moving papers established the default in answering on the part this newly idcnti lied defendant pursuant to CPLR 1024 and the facts constituting viable claims for foreclosure and sale against her (see CPLR 3215l IJ: HSBC Bank USA, NA. ,. Alexander. 124 J\D3d 838. -l NYSJd 47 l2d Dept 20151: U.S. Bank, N.A. v Razon , 115 J\[)3d 739, 740. 981 NYS2<l 571 p d Dept 20141). J\ccordingly. the defaults of all such defendants arc hereby [* 10] JPMS Specially Mortgage. I.I.( \' Lucido Index No. '2279 l/2013 Page 10 lixed and determined. Since the plaintiff has been awarded summary judgment against th1.: answ<.:ring defendants and has established a default in answering by the remaining defendants. the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RP /\Pl. § 1321: Bank of East Asia, Ltd. v S mit/1. 201 AD2d 522. 607 I\" YS2d 431 12<l Dept 19941: Vermont Fed. Bank 1 Clw.w . 216 AD2d I 034. 64 I NYS2d 440 j 3d Dept 19961). 1 Proposed Order or Rt.:lcrencc, as mod ilied by the <.:ourt to rcllccl the issuance and terms of' this memo decision and order has been marked signed. ! 1-DATED: May.)t 20 17 \" 1 I ' ( ~ lllOMAS(1I·. ~,),f .A1 ,J.S.C. ?hlic JJU I. ~. . . 1 1 1 \

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