Wells Fargo Bank, N.A. v McAllister

[*1] Wells Fargo Bank, N.A. v McAllister 2018 NY Slip Op 50344(U) Decided on March 19, 2018 Supreme Court, Suffolk County Quinlan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2018
Supreme Court, Suffolk County

Wells Fargo Bank, N.A., Plaintiff,

against

Shawn McAllister; LINDA MCALLISTER; LAWRENCE W. KAPLAN; LI ANESTHESIOLOGIST PLLC; LVNV FUNDING, LLC APO CITIBANK; METRO PORTFOLIOS, INC.; CLERK OF THE SUFFOLK COUNTY DISTRICT COURT; ENGELMANN ENT, INC.; EQUABLE ASCENT FINANCIAL, LLC; HUNTINGTON HOSPITAL; MIDLAND FUNDING, LLC; TOWN SUPERVISOR TOWN OF HUNTINGTON; TREETOP LANDSCAPING, INC.; WELLS FARGO BANK, N.A.; "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 the premises, Defendant(s).



64950/2014



ROSICKI, ROSICKI AND ASSOCIATES P.C.

Attorneys for Plaintiff

51 E Bethpage Road

Plainview, NY 11803

The Law Offices of David L. Singer, P.C.

Attorney for McAllister Defendants

150 Broadhollow Rd, Suite 122

Melville, NY 11747

(And others, see attached)
Robert F. Quinlan, J.

Upon the following papers numbered read on this motion for an order granting summary judgment and order of reference; Notice of Motion and supporting papers (Doc #32-49); Answering Affidavit and supporting papers (Doc #53-55); Replying Affidavit and supporting papers (Doc #59-60); it is,

ORDERED that this motion by plaintiff for an order striking the answer of defendants Shawn McAllister and Linda McAllister, awarding it summary judgment, appointing a referee to compute, granting default judgment against the non-appearing and non-answering defendants, and amending the caption, is granted in part and denied in part as set forth below; and it is further

ORDERED that plaintiff is granted partial summary judgment as to defendants Shawn McAllister and Linda McAllister answer dismissing their first through third, and sixth affirmative defenses raised therein; and it is further

[*2]ORDERED that upon the proof submitted plaintiff's application to dismiss defendants' fourth and fifth affirmative defenses alleging plaintiff's failure to comply with the notice requirements of the mortgage and RPAPL §1304 is denied as is plaintiff's application to dismiss defendants' answer; and it is further

ORDERED that upon the proof submitted plaintiff's application to amend the complaint to correct scrivener's errors is granted; and it is further

ORDERED that portion of plaintiff's motion seeking to amend the caption to discontinue as to defendants "John Does" and "Jane Does" is granted and the caption shall now appear as follows:

X

WELLS FARGO BANK, N.A.,

Plaintiff,

against

SHAWN MCALLISTER; LINDA MCALLISTER;

LAWRENCE W. KAPLAN; LI

ANESTHESIOLOGIST PLLC; LVNV FUNDING,

LLC APO CITIBANK; METRO PORTFOLIOS,

INC.; CLERK OF THE SUFFOLK COUNTY

DISTRICT COURT; ENGELMANN ENT, INC.;

EQUABLE ASCENT FINANCIAL, LLC;

HUNTINGTON HOSPITAL; MIDLAND

FUNDING, LLC; TOWN SUPERVISOR TOWN

OF HUNTINGTON; TREETOP LANDSCAPING,

INC.; WELLS FARGO BANK, N.A.,

Defendant(s).

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 the default of the non-appearing and non-answering defendants are fixed and set; 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 pursuant to CPLR 3212 (g) and §2218, the action is set for trial limited to proof of compliance with mailing of the notices pursuant to the mortgage and RPAPL §1304, defendant's fourth and fifth affirmative defenses; and it is further

ORDERED that plaintiff is to file a note of issue within 90 days of the date of this order [*3]and is to attach a copy of this order to the note of issue; failure to do so will serve as a basis for dismissal pursuant to CPLR 3216, as the court is not only filing this decision, but is sending plaintiff a copy by certified mail and it is further

ORDERED that the action is scheduled for a pre-trial conference on July 10, 2018 at 9:30 AM in Part 27.

This is an action to foreclose a mortgage on residential real property known as 1 Ridings Gate, Northport, Suffolk County, New York ("the property"). On May 18, 2005 defendant Shawn McAllister executed a mortgage to Option One Mortgage Corporation ("Option One") in the sum of $310,000.00 to secure a note in that amount given on the same date by him to Option One. The mortgage was assigned by Option One to Wells Fargo Bank, N.A. Successor by Merger to Wells Fargo Home Mortgage, Inc. ("Wells Fargo") by an assignment of mortgage dated October 9, 2007. On October 17, 2007 defendant Shawn McAllister executed and delivered to plaintiff Wells Fargo Bank, N.A. ("plaintiff") a note in the amount of $16,617.41, as security defendants Shawn McAllister and Linda McAllasiter ("defendants") executed a mortgage dated October 17, 2007. On the same date defendants executed a Consolidation, Extension and Modification Agreement ("CEMA") creating a single lien of $320,000.00 secured by the prior mortgage given on the property. Defendants defaulted in their payments and plaintiff commenced this action by filing the summons and complaint with the Suffolk County Clerk on June 27, 2014. Defendants interposed an answer dated July 21, 2014 consisting of general denials and six affirmative defenses including inter alia plaintiff's failure to establish its standing to prosecute the action (third affirmative defense), plaintiff's failure to comply with the 90 day notice requirements of RPAPL 1304 (fourth affirmative defense) and failure to comply with the notice provision in the mortgage (fifth affirmative defense).

A foreclosure settlement conference was held May 7, 2015, after which the action was released to an IAS Part, thus there has been compliance with CPLR 3408. Plaintiff now moves for an order granting summary judgment against defendants, striking their answer and affirmative defenses, amending the caption, amending the complaint to correct scrivener's errors, fixing the default as against the non-appearing defendants and for an order of reference appointing a referee to compute pursuant to RPAPL § 1321.

The submissions in support of its motion include its attorney's affirmations, an affidavit in support of summary judgment of plaintiff's Vice President Loan Documentation, the notes, mortgages, assignment, CEMA, pleadings, and affidavits of service of process. In opposition, defendants' counsel only submits an affidavit of defendant Shawn McAllister with attached exhibits. Plaintiff submits an affirmation of counsel and supporting documents in reply.

As defendants' counsel appeared for both defendants, filed an answer and discovery demands on behalf of both defendants (a copy which is attached as an exhibit to defendant Shawn McAllister's affidavit) and defendants' counsel has not provided any indication that he has withdrawn as counsel for defendant Linda McAllister, the court finds that the sole affidavit submitted in opposition is submitted on behalf of both defendants.

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]). 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 by defendants' answer, plaintiff also must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355 [2015]; US Bank,, NA v Richard, 151 AD3d 1001 [2d Dept 2017]; Citimortgage v Rockefeller, 155 AD3d 998 [2d 2017]; US Bank, N. A. v Cohen, 156 AD3d 844 [2d Dept 2017]). Plaintiff establishes its standing by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, supra; Wells Fargo Bank, NA v Rooney, 132 AD3d 980 [2d Dept 2015]). A written assignment or physical delivery 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 addition, where defendant has properly asserted non-compliance with the notice requirements of RPAPL §1304 as a defense, or raised it in opposition to plaintiff's motion, or when plaintiff has pled it in the complaint and defendant has denied the allegation, plaintiff must adduce due proof that the pre-action foreclosure 90 day notice requirements have been satisfied (see PHH Mtge. Corp. v. Celestin, 130 AD3d 703 [2d Dept 2015]; Cenlar v Weisz, 136 AD3d 855 [2d Dept 2016]; Zarabi v. Movahedian, 136 AD3d 895 [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]). Similarly where defendant has properly asserted non-compliance with the condition precedent in the mortgage as a defense plaintiff must adduce due proof that the requirement has been satisfied (see U.S. Bank, N.A. v Singh, 147 AD3d 1007 [2d Dept 2017]).

PLAINTIFF ESTABLISHES 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 establishing that it had been assigned to it prior to the [*5]commencement of the action by attaching a copy of the note to the complaint at the time the action was commenced (see Nationstar Mortg., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Deutsche Bank Natl. Trust v Leigh, 137 AD3d 841 [2d Dept 2016]; Nationstar Mortg., LLC v Weisblum, 143 AD3d 866 [2d Dept 2016]; Deutsche Bank Natl Trust Co. v Carlin, 152 AD3d 491[2d Dept 2017]; Bank of NY Mellon v Burke, 155 AD3d 932 [2d Dept 2017]; Wells Fargo Bank, N.A. v Osias, 156 AD3d 952 [2d Dept 2017]; Bank of America, NA v Wheatley, _AD3d_, 2018 NY Slip Op 01175 [2d Dept 2018]). Plaintiff has established its standing and defendants' third affirmative defense is dismissed.

MAILINGS REQUIRED BY MORTGAGE AND RPAPL §1304 NOT ESTABLISHED

Due proof of the mailing of the RPAPL § 1304 notice 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 Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2d Dept 2006]); Citimortgage v Banks, 155 AD3d 936 [2d Dept 2017]). Unsubstantiated and conclusory statements in the affidavit of plaintiff's representative, along with dated copies of the notice, are insufficient to prove that the notices required by RPAPL § 1304 or the mortgage were properly mailed (see HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2d Dept 2015]; Cenlar, FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; U. S. Bank, N.A. v Carey, 137 AD3d 894 [2d Dept 2016]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]).

Here, although the affidavit of plaintiff's Vice President - Document Control establishes his ability to testify to plaintiff's business records pursuant to CPLR 4518, the affiant fails to establish mailing of the notices required by RPAPL § 1304, as well as those required by the terms of the mortgage. The affiant merely states that a review of the records establishes the RPAPL § 1304 notices were sent to defendants on a certain date "by certified mail and also by first class mail" and that the notice required by the mortgage "was mailed." These statements are unsubstantiated, conclusory and insufficient to establish the mailing (see JPMorgan Chase Bank, N.A. v Kutch, 142 AD3d 536 [2d Dept 2016]; Cenlar FSB v Censor, 139 AD3d 781 [2d Dept 2016]). The affidavit fails to show a familiarity with plaintiff's standard office practice and procedures to ensure proper addressing and mailing (see CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; Wells Fargo Bank, NA v Trupia, 150 AD3d 1049 [2d Dept 2017]; Investors Savings Bank v Salas, 152 AD3d 752 [2d Dept 2017]; US Bank v Henry, 157 AD3d 839 [2d Dept 2018]; Bank of NY Mellon v Zavolunov, 157 AD3d 754 [2d Dept 2018]; Bank of America, NA v Wheatley, _AD3d_, 2018 NY Slip Op 01175 [2d Dept 2018]). Applying this standard plaintiff's affiant fails to establish mailing of both the notices required by RPAPL §1304, as well as the notices required by the mortgage. Defendants' fourth and fifth affirmative defenses cannot be dismissed on

this proof.

REMAINING AFFIRMATIVE DEFENSES DISMISSED

As to defendant's remaining affirmative defenses, the failure to raise and support pleaded [*6]affirmative defenses in opposition to a motion for summary judgment renders them abandoned and 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]).

This Court has considered defendants' remaining contentions and finds them to be without merit.

Plaintiff's proposed order is marked "not signed."

NOTE OF ISSUE TO BE FILED

The court has reviewed defendants' notice for discovery and inspection previously served and attached as an exhibit to defendant Shawn McAllister's affidavit in opposition. All items requested in those nine demands were either attached to the complaint or submitted as part of plaintiff's motion. Those that may relate to defendants' affirmative defense of standing are now irrelevant as the court has dismissed that affirmative defense. There appears to be no outstanding discovery that relates to the issues remaining before the court and which are the subject of the limited issue trial, as the copies of the notices relating to those issues have been supplied to defendants as part of plaintiff's submissions on this motion.

As there is no need for discovery, plaintiff is directed to file a note of issue within 90 days of the date of this order and is to attach a copy of this order to the note of issue.

A pre-trial conference is set for July 10, 2018 at 9:30 AM in Part 27, at which time a trial date will be set.

No further motions will be entertained without permission of the court.

This constitutes the Order and decision of the Court.

Dated: March 19, 2018

____________________________________

Hon. Robert F. Quinlan, J.S.C.