JP Morgan Chase Bank, N.A. v Gwinn

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JP Morgan Chase Bank, N.A. v Gwinn 2017 NY Slip Op 33211(U) July 7, 2017 Supreme Court, New York County Docket Number: 107422/09 Judge: Joan A. Madden 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11 --------------.. ---------------------~------------------~----------------------'}{ ·JP MORGAN CHASE BANK, NA F/K/A JPMORGAN CHASE BANK, INDEXNO. 107422/09 Plaintiff, -againstLOVELYNN GWINN; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIQLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; "JOHN DOES" and "JANE DOES," said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, · a lien against the premises, Defendants. . __ __..:._~----- ·--------------------------------------~--------·--------------'}{ JOAN A. MADDEN, J.: In this mortgage foreclosure action, plaintiff moves to confirm the referee's report and for a judgment of foreclosure and sale. Defendant Gwinn opposes the motion and originally asserted tha~ the amount due should be reduced by not less than $64,371.05. . - On October 20, 2016', this Court issued an Interim Decision and Order agreeing in part. with defendant Gwinn's objections to the amount reported by the Referee, as due and owing. Rather ~ reducing the reported amount, the Court provided plaintiff with an opportunity to submit additional papers addressing three sp~cific issues, and defe~dant Gwinn was given an opportunity to respond. After several extensions of the date for the parties' submissions, the court received the final submission, a Reply Affinnation from plaintiff,. on May 17, 2017. In accordance with ihe Court's Interim Decision and Order, plaintiff has now submitted [* 2] Supplemental Affidavit of Merit ·and Amounts Due from David Nilsen, the Authorized Signatory of Caliber Home Loans, Inc., as attorney in fact for U.S. Bank Trust, N.A. as Trustee fro LSF9 Master Participation Trust, successor in interest to JPMorgan Chase Bank, NA f/k/a/ JPMorgan Chase Banlc, plaintiff herein. Mr. Nilsen supplied the original affidavit of merit on which the · Referee relied. The first issue concerns the amount of interest due and ~wing on the loan. The Court's Interim Decision and Order directed plaintiff to submit an affidavit based on firsthand knowledge explaining why the calculations include interest for the month of July 2008, even though the I· default did not occur until August 1, 2008. In his Supplemental Affidavit, Nilsen explains that defendant Gwillll breached her obligations under the note and mortgage by failing to tender the installment due and payable on August 1, 2008 and by failing to tender subsequent installments. Nilsen further explains that the "amount due for the August 1; 2008 installment consisted of the interest that accrued between ~uly 1, 2008 and July 31, 2008 plus additional sums to be applied to reduce the principal balance due on the mortgage," and "[c]onsequently, defendant's default in paying the August l, 2008 installment left the interest that accrued between July 1, 2008 and·July 31, 2008 unpaid, due and owing." Based on foregoing, plaintiff has sufficiently shown that it is . entitled to interest for the month of July 2008. The second issue relates to the amounts for five specific items (late charges, property inspection, BPO [Brokers Price Opinion], taxes and insurance) that were included in the total .amount reported as due, but were not mentioned in plaintiff's original affidavit of merit. The Interim Decision and Order directed plaintiff to submit "an additional affidavit based on firsthand knowledge addressing each of the .five it~ms, specifically stating .the amounts paid or advanced, 2 [* 3] when those payments or advances were made, and the factual and legal basis for seeking reimbursement as part of the judgment of foreclosure and sale. Plaintiff shall also provide any available documentary support for the items, such as invoices, receipts or cancelled checks.'' Nilsen's Supplemental Affidavit ~ddresses t~e five items. With respect to late charges, Nilsen explains that pursuant to the tenns of the note, a 2% late fee is charged on any payment received more than 15 days after the due ·date, and that the late charges in the total amount of: $1,134.23 w~re "assessed from August 1, 2008 through May 13, 2009, which payments have not bee received." He submits the dat~ and amounts of late charges imposed each month during that period. With respect to interest, Nilsen states·that as of December 14, 2016, a total of $425,026.31 is due and owing, and pro~ides the interest rate and amount of a~crued interest for each month from July 2008 to December 2016. With respect to. property inspection costs, he states that a total of $210.00 is due and owing as of December 14, 2016, and.provides the date. and ~ount of the disbursements for that item. With respect to taxes and assessments,· Nilsen state~ that as of December 14, 2016, the sum of $66~055.63 is due and owing, and provides the date and amount of each disburs~ment from March 2009 through December 2016. With respect to insurance, he states that th~ sum of$11,892.00 was disbursed on September 14, 2016, and that the "$6,709.00. in hazard insurance premiums appears in the account records for this loan as a bulk disbursements, which cannot be correlated to any specific date(s), and consequently the amount is being withdrawn from plaintiffs computations of amount due." Nilsen also states tliat the "amounts for Broker's Price Opinions ( BPO) and/or appraisals appears in the account records for this loan as a bulk disbursement, which cannot be correlated to any specific date(s) and consequently, this amount is being withdrawn from plaintiffs computations of amount due." 3 [* 4] Based on the foregoing statements in Nilsen's Supplemental Affidavit of Merit, plaintiff has established that as of December 14, 2106, the amo~t of $425,026.31 is due and owing for interest; the amount of $1,134.23 is due· and owing for late charges; the amount of $210.00 is due and owning for property inspection; and the amount of $77,94?.63 is due and owing for escrow truces ($66,055.63).and insurance ($11,892.00). T_he third issue concerns the evidentiary basis for plaintiffs original Affidavit of Merit and Amount Due from David Nilsen, on which the Referee relied in reporting the monies due and owing to plaintiff. In the affidavit, Nilsen stated that he was "fully familiar with the facts and circumstances hereafter set forth based upon a review and examination of the records maintained by Caliber Home Loans," and ''[i]t is Caliber Home Loans, Inc.'s regular course of basiness to keep and maintain such records." The Interim Order determined that since "the business ~ecords about which Nilsen attests were made prior to the June 2015 assignment [to Caliber}, they were neith~r made in the regular course of Caliber's business nor within Nilsen's personal knowledge." Quoting the evidentiary standard in Deutsche Bank National Trust Co v. Monica, 131AD3d737, 739 (3'd Dept 2015) ("While the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records, such records are nonetheless admissible if the .recipient can establish personal knowledge of the maket' s business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely . relied upon by the recipient in its business."), the Court directed plaintiff to submit an affidavit laying the proper foundation for any business records provided to Caliber by another entity. 4 [* 5] .. ,. Nilsen's Supplemental Affidavit of Merit satisfies the standard in Deutsche Bank National Tnist Co v. Monica. Nilsen now states that he ,·,is fully familiar with the facts and circumstances hereinafter set forth based upon a review and examination o~ the records made and maintained by Caliber Home Loans, Inc." and "[i]t is Caliber Home"Loans, Inc.'s regular course of business to keep, maintain and rely upon such records." He additionally states that such records include "the.· records of Washington Mutual Bank, F.A. and Chase Home Finance LLC,. the prior servicers of this mortgage loan, relating to this loan, which have been incorporated in Caliber Home Loans, Inc.' s records for this loan and are relied upon in the course of business activity conducted regularly by Caliber Home Lo~s, Inc." Nilsen further state.s that he "personally reviewed" Caliber's records for this loan and is "familiar with how the records.are made and maintained," and that the ''records concerning the subject loan were kept, maintained and relied upon in the r~gular course of business." Thus, based ~n additional stateme~ts ~ Nilsen's Supplemental Affidavit, a proper foundation has been laid for the business records Caliber received froni the prior loan servicers and which have been incorporated into Caliber's own recorcls. The Court has considered's defendant Gwinn's arguments in opposition to plaintiff's supplemental submissions, and finds that they are not persuasive. Finally, the Court notes that plaintiff's reply affirmation repeats its prior argument that defendant Gwinn waived her right to contest the referee's computations. The Court's Interim De~ision and Order expressly rejected that argument.. The Court determined that "[e]ven assuming without deciding that defendant waived her right to a hearing before the referee by not . responding to the foregoing letter and requesting a hearing [the January 19~ 2016 letter from 5 [* 6] .. .. . plaintiffs counsel to defen~ant Gwinn's counsel enclosing the referee's report· and advising that she if she did not notify plaintiff's counsel within I 0 days, "the hearing shatl be deemed w~ived'], this court is not bound by the referee's report, as the referee's findings and recommendation are advisory only and the court remains the ultimate arbiter of the dispute. See Adelman v. Fremd, 234 AD2d 488 (2~d Dept 1996); Stein v. American Banking. Ltd, 216 AD2d 458 (2nd Dept 1995); Shultis v. Woodstock Land Development Assocs, 195 AD2d. 677 (3rc1 Dept 1993)." .· Thus, plaintiff's motion to confinn the referee's report is granted, and the amounts reporte~ as due are confinned to the extent of.confirming.the principle balance due in the amount of $1,593,808.93 and late charges due in the amount of $1,134.23, and based on plaintifrs Supplemental Affidavit of Merit, the Court determines that as of December 14, 2016, the amowit due for interest is $425,026.31, the amount due for prop~rty inspection is $210.00, the amount . due for escrow truces and insurance is $?°7,94.7.63 ($66,055.63 for taxes and $11,892.00 for insurance), making in all the amount of $2,098,127.10 as the total amount due and owing to plaintiff.. Accordingl_y, it is hereby ORDERED that plaintiffs motion to confirm the referee's report is granted and the a~ounts reported as due are confirmed and determined by the Court in accordan~e with this Decision and Order, and the C~urt is signing the proposed judgment annexed to plaintiffs .motion papers. DATED: l:!a-f ,2017 FI LED SEP 25 2017 COUNTY CLERK'S 9FFICE HON. 6 ~::-. }:( 'A. MADDEN J.S.C. .-~

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