Green Tree Servicing LLC v Milani

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Green Tree Servicing LLC v Milani 2018 NY Slip Op 31499(U) June 25, 2018 Supreme Court, Suffolk County Docket Number: 000846/2014 Judge: James Hudson 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] SHORT FORM ORDER c0 py ' INDEX NO. 000846/2014 SUPREME COURT - ST ATE OF NEW YORK IAS PART 40 - SUFFOLK COUNTY PRESENT: HON . .TAM ES HUDSON Acting Supre me Ct>Urt Justice MOTION DATE: 1- 17-17 ADJ. DATE: 2-8-17 '10T. SEQ.# 001 - M G G R EEN TREE SERVI CI NG LLC, Plaintiff, ALDEIUDGE PITE, LLP Attorneys for Plaintiff 40 Marcus Drive, Suite 200 Melville, NY 11747 -againstDONNA MILANI , NATION AL C ITY BAN K, " JOHN DOE# t " through ..JORN DOE # 12," the last twelve names being fi ctitious and unknown to plaintiff, the pe rsons or parties inte nded being the tenants, occupants, pe rsons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, RANA LLI LAW G UO UP Attorn ey for Defendant Donna Milani 742 V e terans Memorial Highway Hauppaugc, NY 11788 De fend a n ts. read on this motion for surnrnarv judgment : Notice of Motion / ; Notice of Cross Motion and supponing papers _ _ _ __ ~ - 5 ; Replying Affidavits and supporting pnpcrs 6- 7 : Other ; (und 11fk 1 liet11ing eot111sel i11 suppent tmd op po~ed to the 111otio11 ) it is, Upon the following papers numbered I Order to Show Cause and supporting papers Answe ring Aflidavits and supporting papers _ _ __ 10 7 I -J ORDER ED that thi s motion (00 I) by the plai nti ff for, inter alia, an order: ( I) pursuant to CPLR 3212, awarding summary judgment in its favor and against the answering defendant Donna Milani, striking her answer and dismissing the affi rmative defenses set forth therein; (2) striking the names ..JOHN DOE # I"' through '"JOHN DOE# 12." and to amend the caption accordingly: (3) pursuant to CPL R 3215, lixing the defaults of the non-answering defendants; and (4) pursuant to RPA PL §1321, appointing a rdcree lo (a) compute m11ounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or mu ltiple pa rcels is granted; and it is further ORDER ED that the plaintiff is directed to serve a copy or thi s order amending the caption upon the Calendar Clerk of this Court: and it is fun her ORDERED that the plaintiff is directed to serve a copy of this order w ith notice of entry upon all parties who have appeared herein and not waived furth er notice pursuant to CPLR 2 103( b)(l), (2) or (3) within thirty (30) days of the date herein, and to promptly fi le the affidavits of service wi th the Clerk of the Court. [* 2] Green Tree Servicing LLC v Milani Index No. 00846/20 I 4 Page2 This is an action to foreclose a mortgage on real properly si tuate in Suffolk County, New York. commenced on January 13, 20 14. On November I 0, 2005 . defendant Donna M ilani executed a note in favor of America's Wholesale Lender ("AWL'') in the amount of $385 ,000.00. To secure said note, on the same date. defendant gave a mortgage on the subject property to Mortgage Electronic Registration Systems, Inc. ("MERS''), as nominee for AWL. On December I, 2011, MERS, as nominee for AWL, executed an Assignment of Mortgage in favor of Bank of America. N.A., successor by merger to BAC Home Loans St:rvicing Ilk/a Countrywide Home Loans Servicing. LP (''BANA''). On June 6, 2013, BANA executed an Assignment or Mortgage in favor of plaintiff. The subject note is indorsed by Countrywide I lo me Loans. lnc. d/b/a AWL in blank, though this indorsement is undated. By its complaint, plaintiff alleges that defendant defau lted on her payments on the note. By her answer. defendant generally denies the material allegations as set forth in the complaint. and she asserts 12 affirmative defenses. including lack of standing. champerty, and failure to comply \·Vith the notice requirements prescribed by Real Property Actions and Proceedings Law (RPAPL) §§ 1303. 1304, and 1306. No other defendants have answered the complaint or otherwise appeared in this action. Plaintiff now moves for summary _judgment. ln support or its motion, plaintiff submits. among other things, copies of the note and mortgage, several duly executed affidavits of service, an affidavit of Kindra Denny. plaintiffs Assistant Vice President, and an affidavit of Karen Keehn. plaintiffs employee. Defendant opposes the motion, arguing. inter alia, that plaintiff failed to comply with RPAPL §§ 1303. 1304. 1306. and that the doctrine of champcrty bars plaintiffs recovery on its cause of action. Further, defendant abandons her rc.:maining affirmative defenses. rn opposition. defendant subm its an affirmation 01· her attorney and her 0\\11 affidavit. Here, as defendant served an answer that included the affirmative defense or standi ng. plaintiff must prove its standing so as to be entitled to relief (see Bank of N. Y. Mellon v Visconti. 136 AD3d 950, 25 NYS3d 630 [2d Dept 2016]; CitiMortgage, In c. v Rose11tltal. 88 AD3d 759. 931 NYS2d 638 [2d Dept 20 l l j; Bank of N. Y. v Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 20 11 ]). Plaintiff establ ished its standing as the holder of the note by attaching the indorsed note to the summons and complaint, demonstrating that the note was in its possession prior to the commencement of the action, and that the subject mortgage passed to plaintiff with the note as an inseparable incident (see Aurora Loan Servs., LLC v Taylor. 25 NY3d 355, 362. 12 NYS3d 612, 614 [2015] : U.S. Bank, N.A. v St1ravanan. 146 AD3d 1010, 45 NYS3d 547 [2d Dept 20171; Nationstar Mtge. , LLCv Catizone, 127 AD3d 11 51, l 152, 9 NYS3d 315 [2d Dept 2015]; U.S. Bank, N.A. v Colly more, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009)). As plaintiff established standing via physical de livery of the note, the validity of the subsequent assignments of the subject mortgage is irrelevant (see A urora Loan Servs., LLC v Taylor, supra; Wells Fargo Bank, N.A. v Cltarlaff, 134 AD3d l 099, 24 NYS3d 317 [2d Dept 2015]; Deutsche Bank Natl. Trust Co. v Wllaleu , 107 AD3d 931. 969 NYS2d 82 r2d Dept 2013]). Plaintirt"s submissions a lso establish its prima fac ie entitlement to s ummary judgment on its mortgage forl!dosure action by producing the indorsed note, the mortgage, and evidence of nonpayment (see Pennymac Holdings, LLC v Tomanelli, 139 J\D3d 688. 32 NYS3d 181 [2d Dept 20 16); Wachovia Bank, N.A. v Carcano, I 06 A03d 724, 965 NYS2d 516 [2d Dept 2013]; Capital 011e, N.A. v Knollwood Props. II, LLC. 98 ADJd 707. 950 NYS2d 482 [2d Dept 2012]). By her aflidavit of merit. [* 3] Green Tree Servicing LLC v Milani Index No. 00846/2014 Page 3 Ms. Denny uttcsts that, based on her review or records kept during the regular course or plaintiffs business, defendant fa iled to make a payment on the note scheduled for February 1, 20 I 0, and that she failed to make subsequent payments to bring the loan current (see CPLR 4518[al: American Airlines Fed. Credit U11io11vMohamed, 117 AD3d 974. 986 NYS2d 53012d IJept 2014]; Bank ofSmithtow11 v 219 Sagg Main, LLC. 107 AD3d 654, 968 NYS2d 95 [2d Dept 2013 J). In addition. plaintiffs submissions, namely a duly executed affidavit or service dated February 4, 2014, constitutes prima facic evidence or proper service of the notice required by RP APL § 1303 (see First Nat. Bank of Chicago v Silver, 73 AD3d 162, 166, 899 NYS2d 256 [2d Dept 20 10]; see afso Deutsche Bank Nat. Trust Co. v Quinones, 11 4 AD3d 719, 98 I NYS2d 107 l2d Dept 20 14]; U.S. Bank, N.A . v Tate. 102 AD3d 859, 958 NYS2d 722 l2d Dept 20 I 3)). Further. plaintiff has supplied the Court with adequate evidentiary proof of its compliance with RP APL § 1304. as Ms. Keehn attests to personally mailing the required notices to defendant on September 9. 2013 via first-class and certified mail by her affidavit of service (see Aurora L oan Servs., LLC " Weisblum, supra. at I 03; cf M&T Bank v Joseph , I 52 AD3d 579. 58 NYS3d 150 (2d Dept 2017); Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 96 l NYS2d 200 [2d Dept 2013]). Moreover, plainti ff's submissions, namely Ms. Denny's affidavit and a copy of a New York State Department of Financial Services proof of filing statement, demonstrate, prima facie, its compliance with RP APL § 1306 (c.f Hudson City Savings Bank v Seminario, 149 AD3d 706, 5 I NYS3d 159 [2d Dept 2017]; TD Bank, N.A 1• Oz Leroy, 121 AD3d 1256, 1260, 995 NYS2d 625, 629 [3d Dept 2014J). As to defendant's affirmative defense of champcrty, this doctrine was developed to "prevent or curtail the commercialization or or trading in litigation" (Bluebird Partners v First Fid. Bank, 94 NY2d 726, 729, 709 NYS2d 865, 867 [2000]). and it forbids the acquisition of a claim or debt for the primary purpose of commencing a lawsuit (see Judiciary Law §489; Trust for Certificate Holders of Merrill lynch Mtge. Jnvs., Jue. Mtge. Pass-Through Certificates, Series 1999-Cl v Love Funding Corp. , 13 NY3d 190, 200, 890 NYS2d 377, 382 [2009); SB Schwartz & Co., Inc. v Levine. 82 AD3d 742, 918 NYS2d 17 1 [2cl Dept 2011)). Jlowever, willingness to resort to litigation will not render a transaction champertous if the primary purpose of the transaction is to enforce a legiti mate claim (see Trust for Certific'1fe Holder~; of Merrill Lyn cit Mtge. bt vs., btc. Mtge. Pass-Through Certificates, Series 1999CJ v Love Funding Corp.. supra. at 201: Fairchild Hiller Corp. v McD01111el/ Douglas Corp. , 28 NY2d 325. 330. 321 NYS2d 857, 860 [ 1971 ]; SB Schwartz & Co., luc. v Levine. supra). A party acquiring a debt instrument for the purpose of enforcing it is not champerty simply because said parry l1errill Lynch Mtge. lnvs., Inc. intends to do so by litigation (see Trust for Certificate Holders of 1 Mtge. Pass-Through Certificates, Series 1999- CJ v Love F111ulb1g Corp., supra, at 200). Here, plaintiff acquired the subject loan for the purpose of enforcing a legitimate claim, namely to obtain a judgment of foreclosure on a defaulted mortgage, and as such, defendant's affirmative defense of champerty is without merit (see CPLR 3211 reJ; Trust for Certificate Holders of M errill Ly nch Mtge. l11vs., Inc. Mtge. Pass-Through Certificates, Series 1999-CJ v love Funding Corp., supra; 71 Clinton St. Apts. LLCv 71 Clinton Inc. , 114 AD3d 583, 982 NYS2d 6 [lst Dept 20 14); cf SB Schwartz & Co., Inc. v Levine, supra). Plaintiff having met its initial burden on the motion, the burden shifted to defendant to assert any defenses which could properly raise a triable issue of fact (see Bank ofSmithtown v 219 Sagg Main, [* 4] Green Tree Servicing LLC v Milani Index No. 00846/20 14 Pagc4 LLC, supra; Valley Natl. Bank v Deutsch, 88 A03d 691. 930 NYS2d 477 I2<l Dept 2011 ]: Wells Fargo Bank v Colten , 80 AD3d 753. 915 NYS2d 569 [2d Dept 2011 ]; Grogg v S outlt Rd. Assoc., L.P.. 74 AD3d 1021. 907 NYS2d 22 [2d Dept 20101) . In opposition, defendant submits an affirmation of her attorney, arguing. among other things, that plaintiff purchased the su~jcct mortgage for the sole purpose of engaging in litigation. in violation of the champerty statute. However, the affirmation from an attorney having no personal knowledge of the facts is without cvidentiary value and , thus, is insufficient to raise a triable issue of fact (see Zuckerman v City of New York , 49 NY2d 557. 427 NYS2d 595 [ I 980]). Ncve11heless. the Court finds this affirmative defense to be without merit (see CPLR 3211 [eJ; Tmstfor Certificate Holders of Merrill Ly n ch Mtge. lnvs., Inc. Mtge. Pass-Through Certificates, Series 1999-Cl v L ove Funding Corp., supra; Fairch ild Hiller Corp. ~·McDonnell Douglas Corp .. supra; 71 Clinton St. Apts. LLC v 71 Clinto11 Inc.. supra). Also in opposilion. defondant submits her own affidavit, alleging. among other things, that plaintiff fai led to strictly comply \Vith RPAPL §§ 1303. 1304, and 1306. and that plaintiff failed to comply vrith her discovery demands. f irst. defendant contends that the title of the RP APL§ 1303 notice served upon her. along with the summons and complaint, was smaller than 20-point type, which does not comport with the statute. However, as defendant does not submit a copy of the notice she actually received, only a copy of a purportedly proper notice, she fails tender evidence. in admissible fonn, that raises a triable issue of fact as to whether plaintiff strictly complied with RP APL § 1303 (see A lvarez v Prospect Hosp .. 68 NY2d 320. 508 NYS2d 923 l I 986 j; Z uckerman v City of New York. supra). Next. defendant attests that she did not receive the RP APL §1304 notice allegedly sent to her, but nevertheless, said notice fai led to strictly comply \vith the statute, as it contained a housing counseling agency located in Jackson Heights, which is not local to her home in St. James. However, a simple denial of receipt is insuffic ient to rebut the presumption of proper mailing (see F/agstar Bank, FSB v 1 \1/emloza, 139 AD3d 898, 32 NYS3d 278 (2d Dept 2016]: Emigrant Mtge. Co., In c. v Persad, 117 AD3d 676. 985 NYS2d 608 [2d Dept 2014]; Grogg v South Rd. Assoc., LP., supra). further, RPAPL § I 304(2) states, in relevant part. that ''the notices required by this section shall contain a current list of at least five housing counseling agencies serving rhe counry where the property is located from the most recent listing available from department of financial services" (emphasis added). Here, defendant proffers no evidence. in admissible form. that the Jackson Heights agency, located in Queens County, does not serve Suffolk County, where the subject property is located, and thus, she fails to raise a triable issue of fact as to whether plaintiff strictly complied with the statute (see Alvarez v Prospect Hosp. , supra; Zuckerman v City of New York, supra). In addition, de fondant alleges that plaintiff not complete the ·'step two" filing within the threeday time period prescribed by RP APL~ 1306. Jn support of her contention. defendant submits copies or the filing statements submitted by plaintiff in support of its motion, which show that plaintiff completed the "step two" mailing on January 13, 2014, and that it comple1ed filing of same on fcbruary 7, 2014. However. the statute mandates that a lender file the RPAPL §1304 notice it sent to a borrower with the Department or Financial Services wi1hin three business days of mailing same, and it is silent as to when the ·•step two .. mailing and filing must be made (see RP APL§ 1306[1 ]). As statutory interpretation begins with the plain language of the statute. and the clearest indicator of legislative intent is the [* 5] Green Tree Servicing LLC v Milani Index No. 00846/2014 Page 5 statutory text, "the starting point in any case of interpretation 1nust always be the language itself, giving effect to the plain meaning thereof· (Majewski v Broadalbin-Perth Cent. School Dist. , 91 NY2d 577, 583, 673 NYS2d 966. [ 1998]; see also Estate of Marin v Bell, 137 AD3d 783 . 27 NYS3d 56 [2d Dept 2016]; Balsam v Fioriglio , 123 AD3d 750, 751, 999 N YS2d 425 , 426 [2d Dept 2014]). Here, the plain language of RP APL§ 1306 is devoid of any instructions as to the "step two" mailing and fi li ng, and the Court declines to apply defendant' s interpretation of the statute (see Majewski v Broadalbin-Perth Ceut. School DiJt. , supra; cf Hudson City Savings Bank v Seminario, supra; TD Bank, N.A v Oz Leroy, supra). Moreover, a mere hope that further discovery may yield evidence sufficient to raise a triable issue of fact is not a basis to deny summary judgment (see Dyer Trust 2012-1 v Global World Realty, ltrc. , 140 AD3d 827, 33 NYS3d 414 [2d Dept 2016]; Jannetti v Wltelan, 131AD3d 1209, 17 NYS3d 455 [2d Dept 2015]; Suero-Sosa v Cardona. 11 2 AD3d 706, 977 NYS2d 6 1 [2d Dept 20 13)). In light of the foregoing, plaintiff's motion for summary judgment is granted, and the proposed order of reference, as modified by the Court, has been signed concurrently herewith. FINAL DISPOSITION X NON-FINAL DISPOSITION

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