Wells Fargo Bank, NA v Benitez

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Wells Fargo Bank, NA v Benitez 2017 NY Slip Op 32747(U) December 10, 2017 Supreme Court, Suffolk County Docket Number: 15433/13 Judge: Thomas F. Whelan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] copy MEMO DECISION & ORDER INDEX No. 15433/ 13 SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOT JON DATE 5/5/17 SUBMIT DATE 10/ 19/ 17 Mot. Seq.# 001 - MG CDISP Y _ N _2L_ ---------------------------------------------------------------X WELLS FARGO BANK, NA, Plaintiff, SHAPIRO, DiCARO & BARAK Attys. For Plaintiff 175 Mile Crossing Blvd. Rochester, NY 14624 -againstVERONICA BENITEZ a/k/a VERONICA E. BENITEZ, MARTHA MANClLLI, JORGE CINENECES and HUGO CINECINCES, GUERRERO LAW OFFICES, PC Attys. For Defendant Benitez 1836A Fifth Ave. Bay Shore, NY 11 706 Defendants. ---------------------------------------------------------------)( Upon the following papers numbered I to _7_ read on this motion -..!.>fo::.:. r. .,re""-'n"""'ew:.i. :a:.:. .I_ _ __ _ __ _ __ _ _ __ __ ; Notice of Motion/Order to Show Cause and supporting papers l - 3 ; Notice of Cross Motion and supporting papers: ; Opposing papers: 4-5 · Reply papers _....::6'-'-7'----0ther ; (and 21fte1 hearing eot1nsel itr st1ppo1"t and opposed to the motion) it is, ORDERED that this motion (#002) by the plaintifffor renewal ofits prior motion (#001) and upon renewal, for full summary judgment and the appointment of a referee to compute, is granted in its entirety, and it is further ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith and it is further ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(3). [* 2] Wells Fargo Bank v Benitez Index No. 15413/ 13 Page 2 Familiarity with the granting of partial summary judgment by the I Ion. Oaniel Martin. /\.J .S.C .. 011 December J 4. 2016. is presumed. The matter was reassigned to th ts Part pmsuant lo Administrative Order No. 110-17, dated September 28. 20 I 7 and submitted for dt:cision on October 19. 2017. In essence, the only issues lefl unresolved by the prior order were the compliance with the RP /\PL § 1304 notice and the issue of standing of the eNotc, in particular. the transfer rcgistery/history. The court permitted a motion to renew on those remaining issues. within 120 days of the date or the order. Plaintiff has timely taken advantage of the court's permission for a new motion. The new motion (11002) h<e:i uddresscd the prior conc.;erns or J usticc Martin, as expressed in his prior order. /\s to the issue of RP APL~ 1304, an affidavit of mailing is offered from Jermiah I lcrberg. Vice President I .oan Documentation of Wells fargo 13ank. N.A .. who attests to the mailing of the required notices on October 3, 2012. I le references the 20-digit certified mai I tracking number an<l submits TrackR ight System records that show the U.S. Postal Service delivery attempts and the U.S. Postage Paid fo r the first-class mailing and the certified mailing. 1le relics upon the certified mailing receipt return card. which was signed and dated October 9, 2012. I k explains the Wells Pargo· s practices and procedures and that he has personal knowledge I le describes the plaintiff's regular practice at the time concerning the lirst-dass mailing and the certified mailing. Importantly. he states that he is trained on the use, maintenance an access to these records. or all the relevant documents. Any claim that the RP /\PL§ 1304 notice was not properly mailed is rejected. As noted by the Court of Appeals, ··1 i It is a general rule that the law presumes that a letter properly addressed. stamped and mailed is duly delivered to the addressee·· (Trust & Guar. Co. v Bamltardt, 270 NY 350. 1 NE2d 459 fl 9361: see al.rn Engel v Liclltemum , 95 AD2d 536, 538,467 NYS2d 642 f2d Dept 1983 1l'"filt has long been recognized in the law orevidence that a ktter properly mailed is presumed to have bL:en rcL:cived ..l). l lcre, in light of the submission ol'the arlidavit or Jcrmiah I lerbcrg. an employee of the plaintiff who relied upon the accuracy of'thc business records whid1 demonstrate the proper mailing of the notices, the Court need not address defendants' concerns as lo the qual ity ol'thc allidavit since it satisfied the admissibility requirements of CPLR 45 I 8(a) (see Stewart Title Ills. Co.,, Ba11k of New York Mellon._ /\D3d _ . 61 YS3d 634 f2d Dept 20171; Citigroup v Kopelmvitz. 14 7 /\l)Jd I 0 I-+. 10 IS. 48 N YS3d 223 l 2d Dept 20 I 7]~ see generally. Citimortga~e, Inc. ,, Espi11al, 134 /\D3d 876. 23 NYS3<l 25 1 l2d Dept 20151). Moreover. the affidavit is more detailed than the affidavit subminc<l in the rect..:nt appellate holding of l/SBC Bank USA v Ozcan. _ /\D3d _. 2017 WI , 4657992 (2d Dept 2017). which darilicd the requirements for satisfaction of the business records rule. In any event. a business record will be ad1 nissiblc i r that record "was made in the regular course of any business and ... it was the regular course of such business to make it. at the time of the act. transaction. occurrence or event. or within a reasonable time thereafter'· (One Step Up, ltd. '' Webster Bus. Credit Corp .. 87 /\D3d 1. 925 YS2d 61 11 st Dept 20 I 11: CPLR 45 I8jal}. While [* 3] Wells Fargo Bank v l31!nitez Index Nu. 15433113 Page] ··the mere Ii ling of papers received from other entities is insuflicicnt to qualify the dm.:umenLs as business rceorJs, such records may be admitted into evidence if' the recipient can establish personal md knowledge of the maker's business practices c procedures. or Lhat the records provided by the maker were incorporated into the recipienl's own records or routinely relied upon by the recipient in its business·· (Deutsche Bank Natl. Trust Co. v Monica, 13 l Af)3d 73 7. 15 NYSJ<l 863 I3d Dept 2015); <1110/inx State v I 58tlt St. & Riverside Dr. l/ous. Co., Tue., 100 AD3d 1293. 956 NYS2d 196 13<l Dept 20121. citing People v Cratsley, 86 NY2d 8L 90 91, 629 NYS2d 992 l 1995 ]). /\ppdlutc case authorities have thus held that a loan servicer may testily as to payment defaults and other matters relevant to a foreclosing plaintif'Cs prima facic case on records it maintains in the regular course of its business as servicer of the subject mortgage Joan (see Pe1111ymac Holdings, LLC v To111a11elli. 139 AD3d 688. 32 NYSJd 18 I [2d Dept 20161: Deutsche Bank Natl. Trust Co. vNaugllto11, 137 AD3d 1199, 28NYS3d 444 [2d Dept 2016J; DeutsclteBauk Natl. Trust Co. vAbdan, 131 AD3d 1001, 16 NYS2d 459 [2d Dept 20l 5J; Wells Fargo Bank, N.A. v Arias. 121 AD3d 973. 995 NYS2d 118 l2d Dept 2014]; see also Deutsche Bank Natl. Trust Co. v Monica. 131 AD3d 737. s111wa: llSBC Bank USA, Natl. Ass 111 v Sage, 112 AD3d 1126, 977 NYS2d 446 I3d Dept 2013 I: Aames Capital Corp. v Ford, 294 AD2d l 34. 740 N YS2d 880 11 st Dept 2002 j). It is also established law that an assignee or other transferee of the loan documents may rely upon the business recon.ls of the loan originator or other predecessors in interest to establish such transfcrec·s claims for recovery of amounts due from the debtor so long as it establishes that it relied upon those records in the regular course of its business (see Landmark Capital Inv., Inc. v Li-Slum Wang, 94 AD3d 4 I 8, 941 NYS2d 144 [I st Dept 2012 ]: see also Portfolio Recovery Assoc., LLC v Lall, 127 ADJd 576. 8 NYS3d I 0 I [1st Dept 2015)). Thal there is no requirement that the artiant have personal knowledge of every 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 Citibank. NA ''Abrams, 144 AD3d 1212, 12 16, 40 NYS3d 653 I3d Dept 2016] I" Polk was entitled to rely on the loan records in addressing the issue of possession, as CPLR 4518faJ docs not require a person to have personal knowledge, ... "I: Deutsche Bank Nfltl. Trust Co. v Monicfl, I 3 I AD3d 737. 739. supra: HSBC Bank USA, N.A . v Sage. I 12 AD3d 1126. I 127. supra; landmark Capital fllv., Inc. v Li-Slum Wang. 94 ADd3d 418. supra I"Plaintiff established its entitlement to judgment as a matter of law by relying in part on the original loan file prepared by its assignor. Plaintiff relied on these records in its regular course of its business" I). I lcre. as set forth in the anidavit ofJcrmiah I lcrberg. he is personally familiar with plaintitrs regular husiness practice. he <lcscribcs the practice and S\\'ears that the business records were relied upon on a regular basis in the course of plaintilTs business as custodian. with respect to this loan in dcfoult. Therefore, plaintiff relied upon the records in its regular course or business and such rel iability is key lo its admi ss ibility (see Corsi v Town of Bedford, 58 AD3d al 23 1-232. 868 NYS2d 258 12d Dept 2008]. h•. denied 12 NY3d 714. 883 NYS2d 797 (2009]; MatterofCarotlwrs ,, <IE/CO Indem. Co.. 79 AD3d at 865. 9 14 NYS2d 199 l2d Dept 20lOJ). [* 4] Wells Fargo Hank v Benitez Index No. 15433/ 13 Page -l It is the Court which must determine the threshold requirement for admissi bi I ity (see People v Ke1111e<~v. 68 NY2d at 576, 510 NYS2d 853119861). The Court of Appeals in Bos.rnk v Stei11ber;:, 58 NY2d 916. ')19. 460 NYS2d 509 (1983) held that there was nn need to produce the person who did the adual mailings since '·ltjhc proof of the Sheriffs regular course of business in this regard sufficed:· 111 Hospital for Joint Diseases v Elrac. Jue. . 11 A03d 432. 433. 783 NYS2d 612 (2d Dept 200-l ). the Second Department held that an affidavit based upon records maintained by an insurer in the ordinary course or business did constitute admissible evidence (.. Personal knowledge or such documents, their history, or specific content are not necessarily required of' a document custodian''). Various cases, particularly in the Second Department. have held that such business records arc admissible (see CitiMortgage, Inc. v 1-!,)piual, 134 J\03d 876. supra; Olympus America, Jue. v Beverly Hills Surgical lust., 110 J\D3d I 048. 974 ' YS2d 89 [2d Dept 2013 J: Burrell 11 Barreiro. 83 J\D3d 984, 922 NYS2d 465 [2d Dept 20111: Deleon v Port A11t'1. ofN. Y. & N.J., 306 AD2d 146. 76 I NYS2d 54 11 M Dept 20031: We 're Assoc~-. Co. v Rodin Sportswear ltd., 288 J\D2d 465, 734 NYS2d l 04 l2d Dept 2001 ]: Spa11ge11herg v Clrnloupka. 229 J\D2d 482. 645 NYS2d 514 12d Dept 199(> I). I Jere, Jcrmiah J Jcrberg. as the current recipient of the records. can establish personal knowledge or the maker's business practices and procedures ...and the records them sci vcs actually evince the facts for which they arc rdied upon (citations omitted)"' (Citigroup'' Kopelowitz, 147 A03d I 014, supra). Therefore, this Court holds that the records relied upon, in the aflidavit or Jcrmiah I lcrbcrg, are admissible pursuant to the business records rule. Rejected as unmeritorious is defondants' counsel's c.:laim that the plaintiff's affidavit of mailing is insufficient due to a lack or personal knowledge on the part of the affiant, who is an employee of the plaintiff. Even under the dictates of CitiMortgage, Jue. v Pappas, 147 AIJ3d 900, 47 NYS3d 415 (2d Dept 2017), plaintiff has met its burden. Due proof of the mailing of the RP APL§ I 304 notice can be established by any one of three alternative methods. First, by tbe submission of' an a(faJavit or service (see JPMorgan C/rnse Bank, N.A. v Scl10tt, 130 AD3d 875, 15 NYSJd 359 l2d Dept 20151: Wells F(lrgo v Moza. 129 /\D3d 946, 13 NYS3d 127 f2d Dept 2015)): second, by ..proof of mailing by the post oflic.:e" alternative method of proof of proper mailing set forth in CitiMortgage, Inc. '' Pappas, 147 J\ D3d 900, supro): or the third method, that is. the business record exception alternative of proof of proper mailing set fo11h in CitiMortgage, Jue. v Pappas. 147 AIJ3d 900. suprn (see C'PLR 4518). I kre. plaintiff satisliecl the "proofol'mailing by the post office .. mailing requirements of RPJ\PL 1304 with the submission of an Anidavit of Mailing of Jcrmiah I lcrbcrg. J\s such. the second alternative under CitiMortgage, Inc. v Pappas. 147 /\D3d 900, supra. has been satisfied. * Additionally, based upon the discussion set forth above, the a!Tidavit of Jcrmiah I Jcrberg. satisfies the third alternative under CitiMortgage, Inc. v Pappas, 14 7 /\Old 900. supra: see gmera/(1·. Flagstar Bank, FSB ,, Mendoza , 139 J\03d 898, 32 NYS3d 27812d Dept 20161). The artidavit adequately sets forth th<.: basis of the his knowledge and established the admissibility of the documents appended to the affidavit as business records (see Olympus America, Inc. 11 Beverly I/ ills Surgical lllst .. 1 I 0 /\D3d 1048. supra; DeLeo11 v Port Aut'1. ofN. Y. & N.J., 306 J\ D2d 146, supra). [* 5] Wells Fargo Bank v lknitcz Jndc:-: o. 15433/ 13 Page 5 The reason that entries made in the regular course of business arc admissible as an exception to the hearsay rnk is that since their purpose is to aid in the proper transaction of the business and they arc useless for that purpose unless accurate. the motive for following a routine or accuracy is great and the motive to falsify is nonexistent (see Nimble v Earls M . .lorgen.wm. Co.. 358 Ill. /\pp 3d 400. 414, 294 Ill. Dec. 402, 830 N.E.2d 814120051). Plaintiff has established its standing with the submission or the a1fa.lavits from Katie Paolangcl i, a Vice President of MERSCORP Holdings, Inc. and a second one from Jeremiah I lcrbcrg. These artidavits establish plaintifl~s standing as the controller of the cNott:, since Wells Fargo maintains the single authoritative copy of the eNotc and is entitled to cnforc\.! sume (see 15 USC *7021 [di; §7021111; §7006r5 I; see also New York Cnmn11111ity Bank v McC/e11do11, 138 AD3d 805. 29NYS3d 507 l2d Dept 2016]). The MERS eRcgistry is explained and documents arc attached showing the TransfcrofControl. The terms o[thc eNote fu rther establish plainti ffs standing. These submission address the concerns of Justice Martin. In opposition, defendant only submits an allidavit from counsel. I lowever, the affirmation from an attorney having no personal knowledge of the facts is without evidcntiary value and. thus. is insunicil.!nl to raise a triable issue of fact (see Zuckernum v Ci~)' of New York , 49 NY2d 557. 427 NYS2<l 595 ll 980 I}. Defendant's counscr s new argument, which was not raised before Justice Martin, claiming a lac.:k of signature on the eNote, is specious. The signature satisfies the federal statutes set forth above (see also General Construction Law §46). What is set forth on the note demonstrates an ··intent to execute ... suc.:h instrument." Defendanf s reliance upon Vista Surgical S upplies, /11 c. v Travelen /us. Co. , 50 AD3d 778. 860 NYS2d 532 (2d Dept 2008), is misplaced. That case dealt with a CPLR 2106 anirmation (compare, Martin v Portexit Corp ., 98 AD3d 63. 948 NYS2d 2 I I I' 1 Dept 2012 ]). I !ere, no affidavit is offered from the defendant denying her intent to execute the eNotc. Thercl(xe. the Court grants plaintiffs motion (//002) in its entirety and simultaneously signs the proposed Order, as modi lied.

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