Deutsche Bank Natl. Trust Co. v Corteselli

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Deutsche Bank Natl. Trust Co. v Corteselli 2018 NY Slip Op 31936(U) August 3, 2018 Supreme Court, Suffolk County Docket Number: 010128/2010 Judge: C. Randall Hinrichs 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 INDEX NO. OIOI28/20JO SUPREME COURT - STATE OF NEW YORK IAS PART 49 - SUFFOLK COUNTY PRESENT: Hon. C. RANDALL HINRICHS Justice of the Supreme Cour t D ;:;;:-EU;-;-T~S;-;C~HE~B;::-A:-:N:-:K::-:-:N:-:-A=T::-::IO -:-A-L_T_R_U_S_ :-:-N T_C_O_MP_A_N_Yx AS INDENTURE TRUSTEE FOR THE BENEFIT OF , THE NOTEHOLDERS FOR ARGENT MORTGAGE LOAN TRUST 2005-WI ASSET BACKED NOTES SERJES 2005-WI, ' Plaintiff, -againstDA YID CORTESELLI, DIANE CORTESELLI, JP MORGAN CHASE BANK, N.A., AS SUCCESSOR BY MERGER TO WASHINGTON MUTUAL BANK FA ' ' JOHN DOES "l" through " 12" said persons of parties having or claimed to have a right, title or interest in the Mortgaged premises herein their respective names are presently unknown to the plaintiff, Motion Date: 1-4-2017 Motion Sequence: 00 1: MD; 002 MotD LEOPOLD & ASSOCIATES Attorneys for Plaintiff 80 Business Park Drive, Suite J 1O Armonk, NY I 0504 IRWIN POPKIN, ESQ. Attorney for Defendant DfANE CORTESELLl 445 Broad Hollow Road Suite 25 Melville, NY 11747 DAVID CORTESELLI Defendant Pro Se 3 7 Linden Lane Shirley, NY 11967 Defendants. Upon the following papers numbered I to _!Q__ read on this motion for surrunary judgment; Notice of Motion and supporting papers l - 3 · 4 - 6 ; Answering Affidavits and supporting papers -1.::...L; and Replying Affidavits and supporting ; it is, papers 9 - 10 ORDERED that this motion (001) by the plaintiff for, inter alia, an order granting it summary judgment and other reliefis denied, as same is superseded by a subsequent notice of motion, dated December 6, 2016, and supporting papers, and thus, is now moot; and it is further ORDERED that this motion (002) by the pla1ntiff for, inter alia, an order: (1) pursuant to CPLR 3212, awarding summary judgment in its favor and against the answering defendants David Corteselli and Diane Corteselli, striking their answer and dismissing the affirmative defenses set forth therein; (2) striking the names "JOHN DOE #I" through "JOHN DOE# 12," and to amend the caption accordingly; (3) pursuant to CPLR 1018, substituting DEUTSCHE BANK NATJONAL TRUST COMPANY, AS TRUSTEE fOR ARGENT SECURITIES INC. , ASSET-BACKED PASS THROUGH CERTIFJCATES SERJES 2005-W I as plaintiff in the place and stead of DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE FOR THE BENEFIT OF THE NOTEHOLDERS FOR ARGENT MORTGAGE [* 2] LOAN TRUST 2005-Wl ASSET BACKED NOTES, SERIES 2005-Wl, and to amend the caption accordingly; (4) pursuant to CPLR 3215, fixing the defaults of the non-answering defendants; and (5) pursuant to RP APL § 1321 , appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels is granted in part and denied in part; and it is further ORDERED that so much of the plaintiffs motion that seeks an order striking the answering defendants' affirmative defense as to plaintiff's standing, numbered 3, that defense proven to be without merit, numbered 4, and those defenses deemed abandoned by the Court, numbered 1, 2, 7, and 8, respectively, is granted, and the motion for summary judgment and an order of reference is otherwise denied, with leave to renew within 120 days of the date of this order, not to be extended without leave of Court; and it is further ORDERED that so much of the plaintiff's motion that seeks an order striking the names "JOHN DOE #1" through "JOHN DOE# 12," and to amend the caption accordingly, is granted ; and it is further ORDERED that so much of the plaintiff' s motion that seeks an order substituting DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUST EE FOR ARGENT SECURITIES INC., ASSETBACKED PASS THROUGH CERTIFICATES SERIES 2005-Wl as plaintiff in the place and stead of DEUTSCHE BANK NATIONAL TRUST COMP ANY, AS INDENTURE TRUSTEE FOR THE BENEflT OF THE NOTEHOLDERS FOR ARGENT MORTGAGE LOAN TRUST 2005-Wl ASSET BACKED NOTES, SERIES 2005-Wl, and to amend the caption accordingly, is granted; and it is further ORDERED, that the caption of this action shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------------------------------x DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR ARGENT SECURITIES INC., ASSET-BACKED PASS THROUGH CERTIFICATES SERIES 2005-WI, Plainti ff, Index No. I 0128-20 I 0 -againstDA VJD CORTESELLI, DIANE CORTESELLI, JPMORGAN CHASE BANK, N.A., AS SUCCESSOR BY MERGER TO WASHINGTON MUTUAL BANK, FA , Defendants. ------------------------------------------------------------------------x and it is further, -2- [* 3] ORDERED that the plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of this Court; and it is further ORDERED that so much of the plaintiffs motion that seeks an order fixing the defaults of al I nonanswering defendants is granted; and it is further ORDERED that the plaintiff is di.rected to serve a copy of this order with notice of entry upon the answering defendant within thirty (30) days of the date herein, and to promptly file the affidavit of service with the Clerk of the Court. . . This is an action to foreclose a mortgage on real property situate in Suffolk County, New York, commenced March 16, 2010. On February 7, 2005, defendant David Corteselli executed a note in favor of Argent Mortgage.Company, LLC ("Argent") in the amount of$ l 68,000.00. To secure said note, on the same date, defendants David Corteselli and Diane Corteselli gave a mortgage on the subject property to Argent. On January 26, 2010, Argent executed an Assignment of Mortgage in favor of pl~intiff On August 20, 2014, after the commencement of the 'instant action, plaintiff executed an Assignment of Mortgage in favor ofDeutsche Bank National Trust Company, as Trustee for Argent Securities Inc., Asset- · Backed Pass Through Certificates Series 2005-Wl. The subject note was indorsed by Argent to Ameriquest Mortgage Company, LLC ("Ameriquest"), then again by Ameriquest in blank, though these indorsements are undated. By its complaint, plaintiff alleges that Mr. Corteselli defaulted in his payments on the note. By their answer., the Corteselli defendants generally deny the material allegations set forth in the complaint, and they assert 8 affirmative defenses, including lack of standing, and failure to comply with the notice requirements prescribed by Real Property Actions and Proceedings Law (RP APL) §§ 1303 and 1304. No· other defendants have answered the complaint or otherwise appeared ill this action. Plaintiff now moves for summary judgment. In support of its motion, plaintiff submits, among other things, copies of the note and mortgage, several duly executed affidavits of service, a copy of a duly executed Limited Power of Attorney, and an affidavit of Sergio Olmo, Vice President of Ocwen Loan Servicing, LLP ("Ocwen"), plaintiffs loan servicer and attorney-in-fact. Ms. Corteselli opposes the motion, arguing, inter alia, that p]aintiffhas failed to establish its standing to prosecute this action, and that it failed to demonstrate its compliance with the notice requirements prescribed by the subject mortgage, as well as its compliance with RP APL §§ 1303_and 1304. In opposition, Ms. Corteselli submits an affirmation of her attorney and her own affidavit. Mr. Corteselli has not submitted any papers in response to plaintiffs motion. Here, as the Corteselli· defendants served an answer that included the affinnative defense of standing, 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, Inc. v Rosenthal, 88 AD3d 759, 931 NYS2d 638 [2d Dept 2011 ]; Bank ofN. Y. v Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011)). Plaintiff established its standing as the holder of the note by Mr. Olrno 's affidavit, by which he avers that plaintiff was in possession of the note at the commencement of the action, demonstrating that the subject mortgage passed to plaintiff with the note as an inseparable incident (see Aurora Loan Servs., LLCv Taylor, 25 NY3d 355, 362, 12 NYS3d 612, 614 (2015); HSBC Bank USA, N.A. v Spitzer,- 131 -3- [* 4] I I AD3d 1206, 18 NYS3d 67 [2d Dept2015J; Wells Fargo Bank, N.A. vArias, 121AD3d973, 995 NYS2d 118 (2d Dept 2014]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009)). As plaintiff established standing via physical delivery of the note, the validity of the subsequent assignments of the subject mortgage irrelevant (see Aurora Loan Servs., LLC v Taylor, supra; Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099, 24 NYS3d 317 [2d Dept 2015]; Deutsche Bank Natl. Trust Co. v Whalen, l 07 AD3d 931, 969 NYS2d 82 [2d Dept 2013]). Plaintifrs su~missions also establish its prima facie entitlement to summary judgment on its mortgage foreclosure action by producing the indorsed note, the mortgage, and evidence of nonpayment (see Pennymac Holdings, LLC v Tomanelli, 139 AD3d 688, 32 NYS3d 181 [2d Dept 2016]; Wachovia Bank, N.A. v Carcano, 106 AD3d 724, 965 NYS2d.5 l 6 [2d Dept 2013 ); Capital One, N.A. v Knollwood Props. II, LLC, 98 Ap3d 707, 950 NYS2d 482 [2d Dept 2012]). By bis affidavit of merit, Mr. Olmo attests that, based on records kept during the regular .course of Ocwen's business, Mr. Corteselli failed to make a payment on the note scheduled for May 1, 2009, and that he failed to make subsequent payments to bring the loan current (see CPLR 45 l 8(a]; American Airlines Fed. Credit Union v Mohamed, 117 AD3d 974, 986 NYS2d 530 [2d Dept 2014] ; Bank ofSmithtown v 219 Sagg Main, LLC, 107 AD3d 654, 968 NYS2d 95 [2d Dept 2013]). In addition, plaintiff's submissions, namely a duly executed affidavit of service dated March 23, 2010, constitutes prima facie evidence of proper service of the notice required by · RPAPL §1303, and Ms. Corteselli's bare and unsubstantiated denial ofreceipt is insufficient to rebut the presumption of proper service (see Deutsche Bank Nat. Trust Co. v Quinones, 114 AD3d 719, 981 NYS2d 107 [2d Dept 2014]; U.S. Bank, N.A. v Tate, 102 AD3d 859, 958NYS2d 722 (2d Dept 2013]). However, plaintiff has not supplied the Court with adequate evidentiary proof of its compliance withRPAPL §1304 (see Cenlar, FSB v Weisz, 136 AD3d 855, 25 NYS3d 308 [2d Dept 2016]; Ba11k of N.Y.Mellon vAquino, 131AD3d1186, 16NYS3d 770 (2d Dept 2015]; "Jf'ells Fargo Bank, NA v Burke, 125 AD3d 765, 5 NYS3d 107 {2d Dept 2015]; Hudson City Sav. Bank v DePasquale, 113 AD3d 595, 977 NYS2d 895 [2d Dept 2014]). Although ~r. Olmo avers that 90-day pre-foreclosure notices were not required to be sent to the borrowers because they had filed a bankruptcy application prior to the commencement of the instant action (see RP APL § l 304(3 ]), this contention is without merit. The statute provides only that the "ninety-day period shall not apply, or cease to apply" if the borrower has filed for bankruptcy protection, and it does not relieve the lender of the obligation to send the notice before commencing legal action (see RPAPL §1304[3];M & T Bank vRice, 57 Misc 3d 1214(A], 2017 NY Slip Op 51427(U] (Sup Ct, Suffolk County 2017]). Further, although plaintiff submits copies of the notices purportedly sent to the Corteselli defendants with tracking numbers stamped on them, this is insufficient to establish that same was actually mailed to the borrowers in the manner required by RP APL § 1304, as Mr. Olmo failed to proyide proof of a standard office mailing procedure or any independent proofofactual mailing (see Citibank,.N.A. v Wood, 150 AD3d 813, 55 NYS3d 109 (2d Dept 2017]; CitiMortgage, Inc. v Pappas, supra; JPMorgan Chase Bank, N.A. v Kutcll , 142 AD3d 536, 537, 36 NYS3d 235 [2d Dept 2016]; cf HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 64 NYS3d 38 [2d Dept 2017]). As plaintiff has failed to establish its compliance with this condition precedent (see Aurora Loan Servs., LLC v Weisb/um, 85 AD3d 95, 106, 923 NYS2d 609, 616 [2d Dept 2011]), the motion is denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851 , 487 NYS2d 316 [ 1985]). -4- [* 5] Notwithstanding the foregoing, plaintiff's submissions demonstrate that amendment ofthe caption to substitute Deutsche Bank National Trust Company, as Trustee for Argent Securities Inc. , Asset-Backed Pass Through Certificates Series 2005-Wl as plaintiff is warranted (see CPLR 1018; Aurora Loans Services, LLC v Mandel, l 48 AD3d 965, 50 NYS3d I 54 [2d Dept 2017J; Brighton BK, LLC v Kurbatsky, 131AD3d1000, 17 NYS3d 137 [2d Dept 2015];Aurora Loan Serv., LLC v Lopa, 130 AD3d 952, 15 NYS3d 105 [2d Dept 2015]). Moreover, as the failure to raise pleaded affirmative defenses in opposition to a motion for" summary judgment renders those defenses abandoned and thus subject to dismissal (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756, 969 NYS2d 796 [2d Dept 2013]; Starkman v City ofLong Beach, 106 AD3d 1076, 965 NYS2d 609 [2d Dept 2013]), the Court will strike defendants' remaining affirmative defenses from their answer, as the sole defenses raised in opposition to plaintiff's motion were its lack of standing, and its alleged failure to comply with RP APL§§ 1303 and J304. The Court notes that Ms. Corteselli improperly raises plaintiffs alleged failure to provide her with a 30-day notice of default in her opposition to the motion, as same was waived by her failure to interpose this affirmative defense in her answer to the complaint (see'Sig11ature Bank v Epstei11, 95AD3dJ199, 945 NYS2d 347 (2d Dept 2012]). Accordingly, plaintiffs motion for summary judgment is granted in part, and denied in part, with leave to renew within 120 days of the date of this order, and the proposed order of reference has been marked "not signed." Dated: August3 , 2018 FINAL DISPOSITION X -5- NON-FINAL DISPOSITION

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