Bank of N.Y. Mellon v Simpson
Annotate this CaseDecided on November 17, 2017
Supreme Court, Suffolk County
The Bank of New York Mellon FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-27CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-27CB, Plaintiff,
against
Jean S. Simpson, GEORGE SIMPSON, NASSAU EDUCATORS FEDERAL CREDIT UNION, PALISADES ACQUISITION XVILLC HOUSEHOLD GE ORCHARD, MYRNA GOLDEN, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ACTING SOLELY AS A NOMINEE FOR METROPOLITAN NATIONAL BANK MORTGAGE COMPANY, LLC, LEWIS OIL COMPANY INC., AND "JOHN DOE #1 THROUGH "JOHN DOES #10", THE LAST TEN NAMES BEING FICTITIOUS AND UNKNOWN TO THE PLAINTIFF, THE PERSONS OR PARTIES, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE MORTGAGED PREMISES DESCRIBED IN THE COMPLAINT, Defendant(s).
35068-2012
Douglas Tischler, Esq.
FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP
Attorneys for Plaintiff
53 Gibson Street
Bay Shore, New York 11706
Jean Simpson
Defendant Pro Se
18 Netz Place, Flanders, NY 11901
George Simpson
18 Netz Place,
Flanders, NY 11901
Nassau Educators Federal Credit Union
One Commerce Plaza, 99 Washington Avenue
Albany, NY 12231
Palisades Acquisition XVI LLC Household GE Orchard One Commerce Plaza, 99 Washington Avenue
Albany, NY 11231
Feuerstein & Smith LLP
Attorney for Defendant Myrna Golden
Attention: Mark Guglielmi
475 Delaware Avenue, Buffalo, NY 14202-1303
Mortgage Electronic Registration Systems, Inc., acting solely as a nominee for Metropolitan National Bank Mortgage Company, LLC
111 Eighth Avenue, New York, NY 10011
Lewis Oil Company Inc.
175 Sunnyside Blvd, Plainview, NY 11803
Robert F. Quinlan, J.
Upon the following papers read on this application for an order granting summary judgment, default judgment and appointment of a referee; Notice of Motion dated November 29, 2016 and supporting papers; Notice of Cross Motion and supporting papers dated January 7, 2017; Affirmation in Reply and in Opposition to Defendants' Motion dated February 3, 2017; it is,
ORDERED that plaintiff The Bank of New York Mellon FKA The Bank of New York, as Trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust 2006-27CB, Mortgage Pass-Through Certificates, Series 2006-27CB's motion for summary judgment against the answering defendant Jean S. Simpson, striking her answer, is granted to the extent that plaintiff is granted partial summary judgment dismissing defendant Jean S. Simpson's First through Fifth and Seventh Affirmative Defenses; and it is further
ORDEREDthat the that portion of plaintiff's motion seeking the setting and fixing the default of the non-answering defendants, including defendant George Simpson, is granted; and it is further
ORDERED that portion of plaintiff's motion seeking to amend the caption to discontinue as to defendants "John Doe #1" through "John Doe#10" is granted and the caption shall now appear as follows:
X
THE BANK OF NEW YORK MELLON FKA THE BANK OF
NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS
CWALT, INC., ALTERNATIVE LOAN TRUST 2006-27CB,
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-27CB,
Plaintiff,
against -
JEAN S. SIMPSON, GEORGE SIMPSON,
NASSAU EDUCATORS FEDERAL CREDIT UNION,
PALISADES ACQUISITION XVILLC HOUSEHOLD GE
ORCHARD, MYRNA GOLDEN, MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., ACTING SOLELY AS A
NOMINEE FOR METROPOLITAN NATIONAL BANK
MORTGAGE COMPANY, LLC, LEWIS OIL COMPANY INC.,
Defendants.
X
;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 it is further
ORDERED that in all other respects, plaintiff's motion is denied; and it is further
ORDERED that plaintiff's application to appoint a referee pursuant to RPAPL§ 1321 is denied and its proposed order submitted with this motion is marked "Not Signed"; and it is further
ORDERED that defendants George Simpson and Jean S. Simpson's motion for summary judgment dismissing the action, and for sanctions and punitive damages is denied; and it is further
ORDERED that pursuant to CPLR 3212 (g) and §2218, the action is set for trial limited to proof of compliance with mailing of the notice required by RPAPL §1304 and compliance with the filing requirements of RPAPL § 1306 as they relate to defendant Jean S. Simpson; and it is further
ORDERED that plaintiff is to file a note of issue within 60 days of the date of this order and is to attach a copy of this order to the note of issue; and it is further
ORDERED that the action is scheduled for a pre-trial conference on February 27, 2018 at 9:30 AM in Part 27 to select a trial date.
This is an action to foreclose a mortgage on residential property known as18 Netz Place, Flanders, Suffolk County, New York ("the property") given by defendants Jean S. Simpson and George Simpson ("defendant-mortgagors") to Metropolitan National Bank Mortgage Company, LLC ("Metropolitan") to secure a note given by defendant Jean S. Simpson ("defendant") to Metropolitan on the same date. Plaintiff The Bank of New York Mellon FKA The Bank of New York, as Trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust 2006-27CB, Mortgage Pass-Through Certificates, Series 2006-27CB's ("plaintiff") allegedly possessed the note at the time the action was commenced. Defendant-mortgagors 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 November 19, 2012. Defendant interposed an answer dated December 12, 2012 consisting of general denials and seven affirmative defenses including plaintiff's lack of standing to commence the action (First Affirmative Defense) and plaintiff's failure to comply with the notice requirement of RPAPL §1304 (Seventh Affirmative Defense). Though personally served with the summons and complaint on December 1, 2012, defendant George Simpson did not answer or appear in this action and is in default.
PRIOR MOTIONS
Plaintiff now moves for summary judgment for the second time. Plaintiff's prior motion (Seq. #001) was denied by order dated May 9, 2016 (MacKenzie, J.) on grounds that plaintiff [*2]failed to establish standing and failed to comply with the notice provision in CPLR 3215 (g)(1), and further denied the remaining branches of plaintiff's motion.
The court also denied defendant-mortgagors "motion" on a number of procedural grounds, including the fact that their opposing papers lacked a notice of motion, were not served upon a co-defendant Myrna Simpson, and because they failed to pay the required filing fee for a motion, nor provide any evidence that they were exempt from such fees. Further, that order denied defendant-mortgagors' claims for sanctions or monetary damages against plaintiff and/or its predecessor's in interest and or its agents, as being entirely without merit. These determinations are found in paragraph six of the order of May 9, 2016.
Pursuant to Administrative Order #33-16 of Suffolk County District Administrative Judge C. Randall Hinrichs, dated June 23, 2016, the action was transferred to the general inventory of Part 27, where it was conferenced September 7, 2016, November 2, 2016 and December 7, 2016 after which plaintiff filed this second motion for summary judgment (Seq. #002) and defendant-mortgagor's cross-moved for summary judgment (Seq. #003).
SECOND MOTION FOR SUMMARY JUDGMENT APPROPRIATE
Though successive summary judgment motions are generally not entertained, this action, and the entire inventory of foreclosure actions of Justice MacKenzie, was transferred to this dedicated foreclosure part by the District Administrative Judge in accordance with the needs of the court to facilitate the resolution of the those foreclosure actions. Toward that end, and in the interests of judicial economy, plaintiff's second motion for summary judgment was accepted by this court. The issues that need to be resolved, plaintiff's standing to bring the action and the proof of mailing of the notices required by RPAPL § 1304, are simple defects and by allowing the filing of this second summary judgment motion the court hoped to eliminate the burden on judicial resources that would otherwise require a trial (see Rose v Horton Med. Ctr., 29 AD3d 977 [2d Dept 2006]; Landmark Capital Investments, Inc. v Li-Shan Wang, 94 AD3d 418 [2d Dept 2012]). Although multiple summary judgment motions are discouraged without a showing of newly discovered evidence, or other sufficient cause, a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources (see Detko v McDonald's Restaurants of New York, Inc, 198 Ad2d 208 [2d Dept 1993]; Valley National Bank v INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012]; Kolel Damsek Eliezer, Inc. v Schlesinger, 139 AD3d 810 [2d Dept 2016]). The denial of a subsequent dispositive summary judgment motion for the sole reason of the prohibition against second summary judgment motions has been held to be an improvident exercise of the court's discretion (see Burbige v Siben & Ferber, 152 AD3d 641 [2d Dept 2017]).
Defendant-mortgagors submit a motion for summary judgment dismissing the suit, and in opposition to plaintiff's motion; they also seeks sanctions and punitive damages (Seq. #003). The motions by plaintiff (Seq. #002) and defendant-mortgagors (Seq. #003) are consolidated for purposes of this decision.
In determining these motions, the court has considered plaintiff's submissions in support of its motion including affirmations of counsel, an affidavit of an employee of plaintiff's servicer Bank of America, N.A. ("BANA"), and attached exhibits; defendant-mortgagors combined statement sworn to January 7, 2016 before a notary public, and attached exhibits; and plaintiff's [*3]counsel's affirmation in reply to defendant's opposition and in opposition to defendants' motion.
DEFAULTING DEFENDANT'S ARGUMENTS NOT CONSIDERED
Only defendant Jean S. Simpson, who executed both the note and mortgage, filed an answer in this action. Co-defendant-mortgagor George Simpson, who only signed the mortgage, never answered, although service upon him has been established by plaintiff's submissions. He has never moved to vacate his default or to file a late answer in either defendant-mortgagors' abortive prior motion, nor in this motion (Seq. #003). Absent a vacatur of his default, defendant-mortgagor George Simpson is without authority to oppose or otherwise seek affirmative relief of a non-jurisdictional nature (see HSBC Mtge. Corp. V. Morocho, 106 AD3d 875, [2d Dept 2013]). A party may not move for affirmative relief of a non-jurisdictional nature, such as dismissal of a complaint without first moving to vacate his/ her default (see Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011]; Deutsche Bank Trust Co., Am. v. Stathaklis, 90 AD3d 694 [2d Dept 2011];U.S. Bank Natl. Assn. v Gonzalez, 99 AD3d 694 [2d Dept 2012]; Southstar III, LLC v Ettienne, 120 AD3d 1332 [2d Dept 2014]; Chase Home Finance, LLC v Garcia, 140 AD3d 820 [2d Dept 2016]; Nationstar Mortgage, LLC v Avella, 142 AD3d 594 [2d Dept 2016]). Even if the issue is compliance with RPAPL § 1304, which is non-jurisdictional, before a defendant can raise that issue, he/she must first vacate a default in answering (see HSBC Bank, N.A. v Clayton, 146 AD3d 942 [2d Dept 2017]).
Defendant-mortgagor George Simpson was placed on notice of this issue in the decision of May 9, 2016, (see paragraph seven of the order). Therefore, the arguments raised in defendant-mortgagors' cross-motion are only considered as being raised on behalf of the answering defendant, Jean S. Simpson.
As indicated in the order of May 9, 2016, compliance with the requirements of CPLR 3408 were established.
DEFENDANT'S UNSUPPORTED AFFIRMATIVE DEFENSES DISMISSED
In opposition to plaintiff's motion, and in support of her own motion, defendant only supports her claims of plaintiff's lack of standing to prosecute the action (her First Affirmative Defense, and arguably part of her Fifth Affirmative Defense), and the claim of plaintiff's failure to establish the mailing of the notices required by RPAPL § 1304. In addition, as she claimed in her Fourth Affirmative Defense that she did not receive the notice required by RPAPL § 1303 when the action was served, plaintiff must prove its compliance with that statutory condition precedent, although not raised in opposition (see First Natl. Bank of Chicago v Silver, 73 AD3d 162 [2d Dept 2010]; Aurora Loan Services v Weisblum, 85 AD3d 95 [2d Dept 2011]; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909 [2d Dept 2013] ). Defendant's Second, Third, Seventh, and those portions of her Fifth Affirmative Defense not related to standing, are dismissed. The failure to raise and support pleaded affirmative defenses and counterclaims in opposition to a motion for summary judgment renders those defenses abandoned and thus subject to dismissal (see Kuehne & Nagel Inc. v Baiden, 36 NY2d 539 [1975]; Kronick v L. P. Therault Co., Inc., 70 AD3d 648 [2d Dept 2010]; New York Commercial Bank v. J. Realty F. Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]; Starkman v. City of Long Beach, 106 AD3d 1076 [2d Dept 2013]; Katz v Miller, 120 AD3d 768 [2d Dept 2014]).
SUMMARY JUDGMENT
Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima [*4]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 defendant 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]). Defendant must then 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]). Defendant's 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 defendant's First 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 defendant has raised non-compliance with the notice requirements of RPAPL §1303 as a defense, defendant's Fourth Affirmative Defense, plaintiff must prove compliance with the condition precedent to establish its prima facie entitlement to summary judgment (see First National Bank of Chicago v. Silver, supra; Aurora Loan Services v Weisblum, supra; Deutsche Bank Natl. Trust Co. v Spanos, supra). Where defendant has asserted non-compliance with the notice requirements of RPAPL §1304 as a defense, defendants' Sixth 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 PHH Mtge. Corp. v. Celestin, 130 AD3d 703 [2d Dept 2015]; Cenlar FSB v. Weisz, 136 AD3d 855 [2d Dept 2016]; JPMorgan Chase Bank v. Kutch, 142 AD3 536 [2d Dept 2016]; Aurora Loan Svcs, LLC v Baritz, 144 AD3d 618 [2d Dept 2016]; U.S. Bank, N. A, v Singh, 147 AD3d 1007 [2d Dept 2017]).
Further, the Second Department has held where plaintiff in a residential foreclosure action alleges in its complaint that it served notices required by RPAPL § 1304, in support of its motion for summary judgment, and defendant has denied that allegation in her answer, plaintiff must prove its strict compliance with RPAPL § 1304 by tendering sufficient evidence to demonstrate absence of any material issues (see Aurora Loan Svcs v Wesiblum, supra; Bank of NY Mellon v Aquino, 131 AD3d 1186 [2d Dept 2015]; Zarabi v Movahedian, 136 AD3d 895 [2d Dept 2016]; JPMorgan Cvhase Bank, N.A. v Kutch, supra). The same principal must apply to other filing provisions of Article 13 of the RPAPL, such as the filing requirement with the Department of Financial Services ("DFS") required by RPAPL § 1306. Here, defendant's "general denial" places the claim of compliance with RPAPL § 1306 contained in paragraph 3C of the complaint in issue and defendant must establish compliance as part of its prima facie case. [*5]Plaintiff's error in the complaint in referring to the filing as with the Banking Department, which by the time of the action had been replaced by the DFS, is of no moment. Proof of compliance with the filing provisions of RPAPL § 1306 is a condition precedent to the commencement of a foreclosure action governed by the requirements of RPAPL Article 13, such as this (see TD Bank v Leroy, 121 AD3d 1256 [3rd Dept 2014], cited with approval in Hudson City Savings Bank v Seminario, 149 AD3d 706 [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 in Support of Motion for Summary Judgment of Nichole Renee Williams, an assistant vice president of plaintiff's servicer Bank of America, N.A. ("BANA"), sworn to November 8, 2016, with a copy of the original note, endorsed in blank, averring that plaintiff came into possession of the original note on August 23, 2011, prior to commencement of the action. Ms. Williams establishes her ability to testify as to the records of both plaintiff and BANA, pursuant to CPLR 4518(a). An affidavit of plaintiff's representative based upon personal knowledge and review of books and business records maintained by plaintiff in the ordinary course of business that establishes facts of plaintiff's possession of the note and assignment on a date prior to commencement of the action are sufficient to establish plaintiff's standing (see Aurora Loan Services, LLC v Taylor, supra; Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099 [2d Dept 2015]; Wells Fargo Bank, N.A. v Joseph, 137 AD3d 896 [2d Dept 2016]; HSBC Bank, USA v Espinal, 137 AD3d 1079 [2d Dept 2016]; Flagstar Bank v Mendoza, 139 AD3d 898 [2d Dept 2016]; US Bank, NA v Ellis, 154 AD3d 710 [2d Dept 2017]).
In opposition defendants submit a copy of an Assignment of Mortgage from Mortgage Electronic Registration Systems, Inc., acting solely as nominee for Metropolitan, to plaintiff, dated July 13, 2011, to refute plaintiff's standing. Without addressing the admissibility of the assignment, contrary to defendant's assertions it is not necessary to have possession of the mortgage at the time the action is commenced, it is the note, and not the mortgage, that conveys standing to foreclose under New York law (see Aurora Loan Servs., LLC v Taylor, supra). Proof of a written assignment or physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident thereto (see U.S. Bank, NA v Collymore, 68 AD3d 752 [2d Dept 2009]; Bank of NY Mellon v Gales, 116 AD3d 723 [2d Dept 2014]). 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]). As plaintiff has established the note was in its possession at the time the action was commenced defendant's First Affirmative Defense and that remaining portion of her Fifth Affirmative Defense relating to standing are dismissed.
RPAPL § 1303 NOTICE SERVED
As indicated above, strict compliance with service of RPAPL § 1303 notice is a condition precedent which must be established by plaintiff if raised by defendant. Here plaintiff has [*6]established compliance by submission of the affidavits of service of its process server, indicating service on defendant of the RPAPL § 1303 notice, along with the summons and complaint, on December 1, 2012. Defendant's claim is insufficient in face of a proper affidavit of service of the summons and complaint, including the RPAPL § 1303 notice. Just as with service of a summons and complaint, a defendant's bare and unsubstantiated denial of receipt of the purported notice is insufficient to rebut the presumption of service created by the affidavit of service which was provided to the court (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 [2d Dept 2010]; U. S. Bank Natl. v. Tate, 102 AD3d 859 [2d Dept 2013]; Onewest Bank, NA v Mahoney, 154 AD3d 770 [2d Dept 2017]; HSBC Bank USA v Ozcan, 154 AD3d 822 [2d Dept 2017]). Defendant's Fourth Affirmative Defense is dismissed.
RPAPL §§ 1304 AND 1306 COMPLIANCE NOT ESTABLISHED
As defendant-mortgagor George Simpson has defaulted in answering, plaintiff is only required to establish its proof of compliance with RPAPL §§ 1304 and 1306 as to defendant. At first blush the affidavit of the employee of BANA seems sufficient to establish both the certified and first class mailing of the RPAPL § 1304 notice to defendant (see HSBC Bank USA v Ozcan, supra), and the notices themselves, attached as exhibits to her affidavit and the motion, appear to meet the requirements of the statute. But upon a review of the filing with DFS a question of compliance is raised. Although this is not brought forward by defendant, the court is required to review the submissions to determine the establishment of compliance, regardless of the sufficiency of defendants opposition papers (see Hudson City Savings Bank v Seminario, supra).
The affiant avers that the first class mailing of the RPAPL § 1304 notice was made May 23, 2012 and the certified mailing was made May 24, 2012. The notices are dated May 22, 2012. The Proof of Filing Statement from DFS (Plaintiff's Exhibit "E") shows the servicer submitted that both mailings occurred on May22, 2012 ("Mailing Date Step 1: 22-MAY-12 12.00.00.000 AM.") and were filed with DFS on May 23, 2012 ("Filing Date Step 1: 23-MAY-12 12.00.00.000 AM."). Although these entries could possibly be explained as a clerical error either by BANA or DFS, no proof of that is offered. The DFS Proof of Filing Statement contradicts the proof of mailing offered by plaintiff and raises a significant question of fact as to either strict compliance with the filing requirements of RPAPL § 1306 or the mailings/proof of mailings required by RPAPL § 1304 to defendant. In either case, plaintiff has failed to establish prima facie proof of compliance with these conditions precedent and the court is compelled to deny full summary judgment (see PHH Mtge. Corp. v. Celestin, supra; Cenlar FSB v. Weisz,supra; JPMorgan Chase Bank v. Kutch, supra; Aurora Loan Svcs, LLC v Baritz, supra; U.S. Bank, N. A, v Singh, supra; Hudson City Savings Bank v Seminario, supra). Defendant's Sixth Affirmative Defense cannot be dismissed, nor has plaintiff established the prima facie requirement of compliance with RPAPL § 1306.
PLAINTIFF GRANTED PARTIAL SUMMARY JUDGMENT
The balance of plaintiff's submission established the basics of a prima facie case for foreclosure, proof of the mortgage, note and defendant's default in payment. Plaintiff's motion is granted to the extent that it is granted partial summary judgment, pursuant to CPLR 3212 (g), dismissing defendants' First through Fifth and Seventh Affirmative Defenses. The only remaining issue of fact is proof of plaintiff's compliance with the notice required by RPAPL § 1304 and the filing requirement of RPAPL § 1306 as to defendant. The action is set down for [*7]trial pursuant to CPLR §2218 which shall be limited to proof of these issues.
DEFENDANT'S MOTION IS DENIED
Although the motion is styled as made by both defendant-mortgagors, defendant-mortgagor George Simpson is in default in answering and cannot move for any affirmative relief until vacating his default. Therefore, the motion is addressed as only made by defendant. In support of her motion to dismiss the complaint, for damages and penalties, defendant submits the Assignment of Mortgage dated July 13, 2011, an affidavit of Jo Anne Vlaun, Vice President of Metropolitan Commercial Bank, a January 9, 2015 email chain between Jo Anne Vlaun and George Simpson and a 2005 Mortgage Interest Statement from Countrywide Home Loans to defendant.
Treating defendant's motion as one to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, give plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Breytman v Olinville Realty, LLC, 54 AD3d 703 [2d Dept 2008]). Such a motion should be granted only where, viewing the allegations as true, the plaintiff cannot establish a cause of action (see Asgahar v Tringali, 18 AD3d 408 [2d Dept 2005]). Defendant's motion pursuant to CPLR 3211 (a) (7), is unsupported and constitutes nothing more than a rehashing of the defendant's lack of capacity/standing defense, which is dismissed as plaintiff has established its standing. That portion of defendant's motion is denied.
Contrary to the defendant's arguments, the complaint adequately pleads a legally cognizable claim for the foreclosure, as set forth above. The complaint sets forth the existence of the note and mortgage, defendant mortgagors execution and delivery of same and their continuing default in payment thereunder (RPAPL § 1321; Wells Fargo Bank, N.A. v. DeSouza, 126 AD3d 965 [2d Dept 2015]. Defendant's claim that the complaint fails to set forth a cause of action is denied.
Defendant's request for sanctions against plaintiff because the filing of the action in 2012 has had a negative impact on defendant's business and because plaintiff's counsel has submitted "bogus" documents is without merit and denied. The claims that the plaintiff's agents are "robosigners" and that plaintiff has submitted false documentation are based upon nothing more than speculation and innuendo. Furthermore, the documents which defendant refers to were not submitted in support of plaintiff's present motion and claims of assignments of the mortgage were not relied upon by plaintiff to establish standing. The relevancy of the affidavit purportedly from a vice president of Metropolitan Commercial Bank is not shown, as the mortgage that is the subject of this action was given by defendant-mortgagors to Metropolitan National Bank Mortgage Company, LLC. Without an explanation as to the relationship, if any, between the two entities, and the affiant's authority to testify as to either entity, the affidavit is of no evidentiary value. Defendant's complaint's about plaintiff's conduct does not constitute frivolous conduct as that term is defined in 22 NYCRR § 130-1(c), and were likewise determined to be entirely without merit and previously denied by the court in by order dated May 9, 2016. These claims for sanctions are denied.
This constitutes the Order and decision of the Court.
Dated: November 17, 2017
_______________________________________
Hon. Robert F. Quinlan, J.S.C.
FINAL DISPOSITIONXNON-FINAL DISPOSITION
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