JPMorgan Chase Bank, N.A. v Fichter
Annotate this CaseDecided on November 14, 2017
Supreme Court, Suffolk County
JPMorgan Chase Bank, National Association, Plaintiff,
against
William G. Fichter A/K/A WILLIAM FICHTER, SARAH L. FICHTER A/K/A SARAH FICHTER, JPMORGAN CHASE BANK, TARGET NATIONAL BANK, SLOMINS INC., NEWAB U. DIN, LVNV FUNDING LLC, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, CLERK OF THE SUFFOLK COUNTY TRAFFIC AND PARKING VIOLATIONS AGENCY, THE PEOPLE OF THE STATE OF NEW YORK, et al., Defendants.
606954/2015
STIENE & ASSOCIATES, P.C.
Attorneys for Plaintiff
167 Main Street
Northport, NY 11768
DAVID L. SINGER, P.C.
Attorney for Fichter Defendants
269 Lake Avenue
Deer Park NY 11729
Robert F. Quinlan, J.
Upon the following papers electronically filed and read on this motion for an order granting summary judgment and related relief; Notice of Motion dated August 30, 2016 and supporting papers (Doc. # 38 - 40); Affidavit in Opposition of William G. Fichter sworn to October 15, 2016 (Doc. # 42 - 43); Affirmation in Reply of plaintiff's counsel sworn to October 21, 2016 and attached exhibits (Doc. # 44 - 46); it is,
ORDERED that this motion by plaintiff JPMorgan Chase Bank, National Association for summary judgment striking the answer of defendants William G. Fichter a/k/a William Fichter and Sarah L. Fichter a/k/a Sarah Fichter is granted to the extent that plaintiff is granted partial summary judgment dismissing defendants William G. Fichter a/k/a William Fichter and Sarah L. Fichter a/k/a Sarah Fichter First and Fourth Affirmative Defenses; and it is further
ORDERED that pursuant to CPLR 3212 (g) and §2218, the action is set for trial limited to proof of defendants default in payment under the mortgage and note, and proof of mailing of the notices required by RPAPL §1304 and the notice of default required by the mortgage; and it is further
ORDERED that the application to amend the caption to substitute Wilmington Trust, National Association, not in its individual capacity, but solely as trustee for MFRA Trust 2015-1 as plaintiff and to substitute Billy Fichter s/h/a John Doe #1 and discontinue as to defendants "John Doe #2 through #7" is granted and the caption shall now appear as follows:
WILMINGTON TRUST, NATIONAL ASSOCIATION,
NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY
AS TRUSTEE FOR MFRA TRUST 2015-1,
Plaintiff,
against-
WILLIAM G. FICHTER A/K/A WILLIAM FICHTER,
SARAH L. FICHTER A/K/A SARAH FICHTER,
JPMORGAN CHASE BANK, TARGET NATIONAL
BANK, SLOMINS INC., NEWAB U. DIN, LVNV
FUNDING LLC, JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION, CLERK OF THE
SUFFOLK COUNTY DISTRICT COURT, CLERK OF
THE SUFFOLK COUNTY TRAFFIC AND PARKING
VIOLATIONS AGENCY, THE PEOPLE OF THE STATE
OF NEW YORK, BILLY FICHTER
Defendants
;and it is further
ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within thirty (30) days of this order, and all further proceedings are to be under the amended caption; and [*2]it is further
ORDERED that plaintiff's application to appoint a referee pursuant to RPAPL 1321 is denied; and it is further
ORDERED that this action shall be calendared for a certification conference on Tuesday, February 27, 2018 at 9:30 AM in Part 27.
This is an action to foreclose a mortgage on residential real property known as 31 Serene Place, Hauppauge, Suffolk County, New York given by defendants William G. Fichter a/k/a William Fichter and Sarah L. Fichter a/k/a Sarah Fichter ("defendants") to Washington Mutual Bank, FA. to secure a note defendants gave to Washington Mutual Bank, FA on the same date. Plaintiff JPMorgan Chase Bank, National Association ("plaintiff") allegedly possessed the note at the time the action was commenced. Defendants allegedly defaulted in payment under the note and mortgage and plaintiff commenced this action by filing the summons, complaint and notice of pendency with the Suffolk County Clerk on July 2, 2015. Defendants interposed an answer dated August 4, 2015 consisting of general denials and four affirmative defenses including plaintiff's failure to serve the 90-day pre-foreclosure notice pursuant to RPAPL §1304 (Second Affirmative Defense), lack of standing to commence the action (Third Affirmative Defense) and plaintiff's failure to comply with the mailing requirements relevant to the notice of default and acceleration (Fourth Affirmative Defense).
Plaintiff now moves for an order granting summary judgment, striking defendants' answer, entering default against the non-appearing defendants, substituting Wilmington Trust, National Association, not in its individual capacity, but solely as trustee for MFRA Trust 2015-1, ("Wilmington") in place of plaintiff, amending the caption, and for appointment of a referee to compute. Defendant William Fichter's affidavit is submitted in opposition. Plaintiff submits the affirmation of its counsel in reply.
SUMMARY JUDGMENT
Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie, by plaintiff's production of the mortgage, the unpaid note, and evidence of default in payment (see Wells Fargo Bank, N.A. v. DeSouza, 126 AD3d 965 [2d Dept 2015]; Wells Fargo, NA v Erobobo, 127 AD3d 1176 [2d Dept 2015]; Wells Fargo Bank, NA v Morgan, 139 AD3d 1046 [2d Dept 2016]). If established by proof submitted in evidentiary form, plaintiff has demonstrated its entitlement to summary judgment (CPLR 3212; RPAPL § 1321; see Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [2d Dept 1997]). The burden then shifts to defendants to demonstrate the existence of a triable issue of fact as to a bona fide defense (see Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882 [2d Dept 2010], Zanfini v Chandler, 79 AD3d 1031 [2d Dept 2010]; Citibank, NA v Van Brunt Properties, LCC, 95 AD3d 1158 [2d Dept 2012]). Defendants then must produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact (see Washington Mut. Bank v Valencia, 92 AD3d 774 [2d Dept 2012]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Defendants' answer and affirmative defenses alone are insufficient to defeat plaintiff's motion (see, Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]). In deciding the motion the court is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (see Vega v Restani Corp., 18 NY3d 499 [2012]).
Where plaintiff's standing has been placed in issue, as here by defendants' Third Affirmative Defense, plaintiff must also establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355 [2015]; Loancare v. Firshing, 130 AD3d 787 [2d Dept 2015]; HSBC Bank USA, N.A. v. Baptiste, 128 AD3d 773 [2d Dept 2015]; US Bank, NA v Richard, 151 AD3d 1001 [2d Dept 2017]). Where defendants have asserted non-compliance with the notice requirements of RPAPL §1304 as a defense, here defendants' Second Affirmative Defense, plaintiff must also prove that the pre-action foreclosure 90 day notice requirements have been satisfied as part of its prima facie showing (see Zarabi v. Movahedian, 136 AD3d 895 [2d Dept 2016]; Cenlar FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; Citimortgage v Espinal, 134 AD3d 876 [2d Dept 2016]; Bank of New York v Aquino, 131 AD3d 1186 [2d Dept 2015]; PHH Mtge. Corp v Celestin, 130 AD3d 703 [2d Dept 2015]). Where defendants have raised non-compliance with the mortgage agreement requiring a notice of default be sent, here defendants' Fourth Affirmative Defense, plaintiff must prove compliance with the condition precedent to establish its prima facie entitlement to summary judgment (see U.S. Bank, N. A, v Singh, 147 AD3d 1007 [2d Dept 2017]).
PLAINTIFF ESTABLISHED STANDING
Plaintiff has standing if it establishes that it was the holder of the note at the time the action was commenced (see Emigrant Bank v Larizza, 129 AD3d 904 [2d Dept 2015]; M & T Bank v Cliffside Prop. Mgt., LLC, 137 AD3d 876 [2d Dept 2016]). Here plaintiff demonstrated its standing as holder of the note by proving that the note had been assigned to it prior to the commencement of the action by submitting the Affidavit of Note Possession of Renada N. Decatur, an assistant vice president of plaintiff, sworn to August 20, 2015, with a copy of the original note, endorsed in blank, averring that plaintiff came into possession of the original note on August 23, 2009, prior to commencement of the action and remained in its possession until August 4, 2015. Ms. Decatur establishes her ability to testify as to the records of both plaintiff and its subsidiary JPMorgan Chase Custody Services, Inc., pursuant to CPLR 4518(a). A copy of the original four-page note is annexed to the affidavit and the fourth page contains an undated blank endorsement from Washington Mutual Bank, FA. In opposition defendant failed to raise a triable issue of fact as to plaintiff's standing (see HSBC Bank USA, N.A. v Baptiste, supra; JP Morgan Chase Bank, Nat. Ass'n v. Venture, 148 AD3d 1269 [2d Dept 2017]). Defendants' Third Affirmative Defense is dismissed.
DEFAULT NOT ESTABLISHED
Plaintiff has failed to establish defendants' default. The affidavit of Fay Servicing, LLC's employee is insufficient to establish defendants default in payment under the note and mortgage as his affidavit fails to establish his ability to testify to his own employer, Fay's, business records pursuant to the requirements of CPLR 4518(a). Nowhere in his affidavit does he establish that these records were made in the regular course of Fay's business or made at or about the time of the acts or events referred to. All he states is that they were maintained by Fay in the course of its business. As he fails to establish his ability to testify to these records under CPLR 4518(a), they remain inadmissable hearsay, and as such fail to establish defendants' default in payment under the note and mortgage. Therefore plaintiff has failed meet its prima facie burden in establishing defendants' default (CPLR 4518[a]; see Citibank v Cabrera, 130 AD3d 861 [2d Dept 2015]; US Bank, N.A. v Madero, 125 AD3d 757 [2d Dept 2015]).
MAILING OF NOTICES REQUIRED BY THE
MORTGAGE AND RPAPL § 1304 NOT ESTABLISHED
Plaintiff fails to establish the mailing of the notices of default and acceleration required by the mortgage and RPAPL §1304 (Second and Fourth Affirmative Defenses) as a matter of law since the supporting affidavit of the employee of Fay Servicing is insufficient to establish plaintiff's mailing. Due proof of the mailing of these notices is established by submission of an affidavit of service (see JPMorgan Chase Bank, N.A. v Schott, 130 AD3d 875 [2d Dept 2015]; Wells Fargo v Moza, 129 AD3d 946 [2d Dept 2015]) or through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]). In either case, a presumption of receipt arises (see Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp., v Scottsdale Ins. Co., supra). Even under the most recent decision of the Second Department addressing proof of mailing, HSBC v Ozcan, ___ AD3d ___ 2017 NY Slip Op 07242 [2d Dept 2017], plaintiff's affidavit fails to establish mailing, for unlike in Ozcan, the affiant here fails to establish his ability to testify as to his review of Fay's business records pursuant to CPLR 4518(a). Plaintiff has failed to establish that defendants' Second and Fourth Affirmative Defenses should be dismissed.
PLAINTIFF GRANTED PARTIAL SUMMARY JUDGMENT
Plaintiff's motion for summary judgment is granted to the extent that it is granted partial summary judgment, pursuant to CPLR 3212 (g), dismissing defendants' Third Affirmative Defense. The only remaining issues of fact are proof of defendants' default in payment and proof of plaintiff's compliance with the mailing requirements relevant to the notices required by RPAPL § 1304 and the mailing requirements relevant to the contractual condition precedent of the notice of default and acceleration.
The action is set down for trial pursuant to CPLR §2218 which shall be limited to proof of these issues. To facilitate that the court directs:
That all discovery demands be served within 30 days of the date of this order.
All discovery is to be completed within 90 days of the date of this order.
The case will appear for certification conference on Tuesday, February 27, 2018 at 9:30AM at which time the court will direct the filing of the note of issue and set a pre-trial conference to determine a trial date.
Upon completion of discovery, and the filing of a note of issue, the court will entertain a summary judgment motion only from a party who has not already moved for summary judgment. A party who has previously unsuccessfully moved for summary judgment is not entitled to make a further motion for summary judgment unless it establishes a basis under CPLR §2221 (e). In no case will such an initial or renewed summary judgment motion be entertained more than 30 days after the filing of the note of issue.
As plaintiff has established its standing and the transfer of the note and mortgage to Wilmington, its application to amend the caption is granted and Wilmington is substituted as plaintiff.
Plaintiff's application to substitute Billy Fichter s/h/a John Doe #1 and discontinue the action [*3]against defendants "John Doe #2 through #7" and amend the caption is granted. The caption shall now appear as indicated above and all further proceedings shall be under the amended caption.
The default of the non-appearing, non-answering defendants are fixed and set (see U.S. Bank N.A. v Wolherman, 135 AD3d 850 [2d Dept 2016]; HSBC USA, N.A. v Alexander, 124 AD3d 838 [2d Dept 2015]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2d Dept 2014]).
Plaintiff's application for the appointment of a referee pursuant to RPAPL § 1321 is denied, subject to renewal. Plaintiff's proposed order has been marked "not signed."
This constitutes the Order and decision of the Court.
Dated: November 14, 2017
_______________________________________
Hon. Robert F. Quinlan, J.S.C.
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