Bank of N.Y. Mellon v Zarza

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[*1] Bank of N.Y. Mellon v Zarza 2018 NY Slip Op 51291(U) Decided on September 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 12, 2018
Supreme Court, Suffolk County

The Bank of New York Mellon FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2004-30CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-30CB, Plaintiff,

against

Gary Zarza, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ACTING SOLEY AS NOMINEE FOR NOVASTAR MORTGAGE, INC., YELLOWBOOK INC. FKA YELLOW BOOK SALES AND DISTRIBUTION COMPANY, INC., AND "JOHN DOE No. 1 THROUGH JOHN DOE #10", 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, Defendants.



61169/2013



FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP

Attorneys for Plaintiff

53 Gibson Street

Bay Shore, NY 11706

Michael A. Kinzer, LLC

Attorney for Defendant Gary Zarza

100 Broadhollow road, Suite 205

Farmingdale, NY 11735

MERS, Inc., acting soley as nominee for NovaStar Mortgage, Inc.

111 Eight Avenue

New York, NY 10011

Smith Carroad Levy & Wan, P.C.

Attorney for Yellowbook Inc. FKA Yellow Book Sales and Distribution Company, Inc.

5036 Jericho Tpk

Commack, NY 11725

Michelle Deriso s/h/a John Doe #1

16 Muncey Road

Bay Shore, NY 11706
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, NYSCEF Docs #19 -43; Answering Affidavits and supporting papers __ ; Replying Affidavits and supporting papers ___; it is



ORDERED that this unopposed motion by plaintiff for an order striking the answer and affirmative defenses of the defendant, Gary Zarza, 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 to the extent that plaintiff's application to amend the caption and to fix and set the default of the non-appearing, non-answering defendant is granted; and it is further

ORDERED that plaintiff is granted partial summary judgment pursuant to CPLR 3212 (e) as to defendant Gary Zarza, dismissing the first, fourth through eighth, tenth and eleventh affirmative defenses raised in his answer, as well as that portion of his ninth affirmative defense claiming failure to comply with RPAPL §§ 1303 and 1320; and it is further



ORDERED that upon the proof submitted plaintiff has failed to establish its' entitlement to dismissal of defendant Gary Zarza's second, third and ninth affirmative defenses; and it is further

ORDERED the caption is amended to substitute Michelle Deriso as party defendant in place and instead of defendant "JOHN DOE #1" and removing defendants "John Doe #2 through John Doe #10" 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

Of CWALT, Inc., Alternative Loan Trust

2004-30cb, Mortgage Pass-through Certificates,

Series 2004-30CB,

Plaintiff,

-against-



Gary Zarza, Mortgage Electronic Registration

Systems, Inc., Acting Soley as Nominee for

Novastar Mortgage, Inc., Yellowbook Inc.

Fka Yellow Book Sales and Distribution

Company, Inc., Michelle Deriso,

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 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 rather than set the issues surrounding defendant Gary Zarza's second, third and ninth affirmative defenses for a trial pursuant to CPLR § 2218, R 3212 (e) and (g), the court grants plaintiff the right to file a successive motion for summary judgment as to those issues within 120 days of the date of this decision and order; and it is further

ORDERED that a conference is scheduled for Wednesday, January 23, 2019 at 9:30 AM in Part 27 to monitor the progress of the action; and it is further

ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the conference at which future compliance will be determined.

This is an action to foreclose a mortgage on residential real property known as16 Muncey Road, Bay Shore, Suffolk County, New York. Plaintiff commenced this action by filing the summons, complaint and notice of pendency with the Suffolk County Clerk on May 31, 2013. Defendant Gary Zarza ("defendant") interposed an answer dated June 20, 2013 consisting of general denials and eleven affirmative defenses including plaintiff's lack of standing to commence the action (second and third affirmative defenses), and failure to comply with the default provision in the mortgage, the notice provisions of RPAPL § 1304, and the filing provisions of § 1306 (ninth affirmative defense). None of the remaining defendants answered or appeared and are in default.

According to court records a foreclosure settlement conference was held February 17, 2016 at which time the action was released to an IAS Part, thus there has been compliance with CPLR 3408.

Plaintiff now moves for an order striking the answer and defenses of defendant, granting summary judgment, amending the caption, fixing the default as against the non-appearing defendants [*2]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, affidavit in support of summary judgment of plaintiff's representative, the note, mortgage, assignment, pleadings, and the affidavits of service of process. Defendant does not oppose the motion.



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 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 by defendant's answer, as here by defendant's second and third affirmative defenses, plaintiff also must 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];US Bank,, NA v Richard, 151 AD3d 1001 [2d Dept 2017]; Nationstar Mtge., LLC v Laporte, 162 AD3d 784 [2d Dept 2018]; Bank of New York Mellon v. Suhku, 163 AD3d 748 [2d Dept 2018]; Wells Fargo Bank, N.A. v Inigo, _AD3d_, 2018 NY Slip Op 05621 [2d Dept 2018]).

Defendant's ninth affirmative defense raised issues regarding plaintiff's failure to comply with the notice of default required by the mortgage as well as plaintiff's failure to comply with the "mailing or service" of the notices required by RPAPL §§ 1303, 1304, 1306 and 1320. The claims that plaintiff failed to comply with the requirements of RPAPL §§ 1303 and 1320 are dismissed, as the affidavit of plaintiff's process server avers that the notice required by RPAPL § 1303 was served with the summons and complaint, and the face of the summons contains the language required by RPAPL § 1320. The remaining claims, as with standing, must be established as part of plaintiff's prima facie showing.

The claim that plaintiff failed to comply with the notice of default requirements contained in the mortgage, once placed in issue by this affirmative defense, must be established. As the moving party, plaintiff has the burden to come forward with evidence in admissible form sufficient to establish that it has complied with this condition precedent to bringing the action (see GE Capital Mtg. Services, Inc. v Mittelman, 238 AD2d 471 [2d Dept 1997]; Norwest Bank Minn. v Sabloff, 297 AD2d 722 [2d Dept 2002]; HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012] U.S. Bank, N. A, v Singh, 147 AD3d 1007 [2d Dept 2017]; US Bank, NA v Sabloff , 153 AD3d 879 [2d Dept 2017]; Wells Fargo Bank, N.A. v Osias, 156 AD3d 942 [2d Dept 2017]). The sufficiency of plaintiff's proof of mailing is discussed in [*3]conjunction with the same mailing requirements relevant to the notices required by RPAPL § 1304.

Where, as here, defendant has properly asserted non-compliance with the notice requirements of RPAPL §1304 as a defense, or plaintiff has plead it in the complaint and defendant has denied it, 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]; 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, supra). Proof of mailing of these notices is concomitant with sufficient proof of compliance with RPAPL § 1306.



AFFIDAVIT OF PLAINTIFF'S REPRESENTATIVE

INSUFFICIENT TO ESTABLISH STANDING

Plaintiff in a residential foreclosure action has standing if it establishes that it was the holder of the note at the time the action was commenced (see Emigrant Bank v Larisa, 129 AD3d 904 [2d Dept 2015]; M & T Bank v Clifflike Prop. Mgt., LLC, 137 AD3d 876 [2d Dept 2016]). Here the affidavit of the service's representative, which failed to establish the affined's personal knowledge of business record keeping practices and procedures of plaintiff, was inadmissable and as such failed to provide proof establishing its possession of the note prior to commencement of the action and therefore its standing (CLR 4518; see Aurora Loan Serve., LLC v Mercies, 138 AD3d 650 [2d Dept 2016]; Aurora Loan Serve v. Komarovsky, 151 AD3d 924 [2d Dept 2017]; Bank of NY Mellon v Alli,156 AD3d 597 [2d Dept 2017]; Bank of New York Mellon v Lopes, 158 AD3d 662 [2d Dept 2018]; One West Bank, FSB vv Berino, 158 AD3d 811 [2d Dept 2018]).

Additionally, plaintiff's attempt to establish standing by submission of the assignment of the note and mortgage from Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for First Magnus Financial Corporation, to plaintiff dated November 8, 2011 also fails since the purported assignment of the note and mortgage from MERS to plaintiff at best transferred only the mortgage, as plaintiff provides no proof of the authority for MERS to assign the note (see Bank of New York v Silverberg, 86 AD3d 274 [2d Dept 2011]), and thus fails to demonstrate that the note was assigned at that time (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2d Dept 2007]; US Bank, N.A. v Faruque, 120 AD3d 575 [2d Dept 2014]; Aurora Loan Serve., LLC v Baritz, 144 AD3d 618 [2d Dept 2016]).

Plaintiff's application to dismiss defendant's second and third affirmative defenses is denied.



MAILING OF DEFAULT AND RPAPL §1304 NOTICES NOT ESTABLISHED

As stated above, where defendant has properly asserted non-compliance with the notice requirements of the notice of default in the mortgage and the notices required by RPAPL § 1304 (collectively referred to as "the notices") as affirmative defenses, plaintiff must adduce proof that the requirements relating to the notices, particularly their mailing, have been satisfied to establish it's prima facie entitlement to summary judgment.

Due proof of the mailing of the notices is established by submission of an affidavit of service (see Emigrant Mortgage Co., Inc. v Persad, 117 AD3d 676 [2d Dept 2014]; Bank of NY Mellon v Aquino, 131 AD3d 1186 [2d Dept 2015]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; Investors Savings Bank v Salas, 152 AD3d 752 [2d Dept 2017]), an affidavit of mailing (see JPMorgan [*4]Chase Bank, NA 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]); Citimortgage v Banks, 155 AD3d 936 [2d Dept 2017]). As stated earlier in regards to standing, the affidavit of the service's representative was inadmissable as it failed to comply with the requirements of the Business Records Rule (CLR 4518), and as such failed to provide proof establishing mailing of the notices based upon affined's review of those business records (see Aurora Loan Serve., LLC v Mercies, 138 AD3d 650 [2d Dept 2016]; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683 [2d Dept 2016]; HSBC Mtg Serve, Inc v Royal, 142 AD3d 952 [2d Dept 2016]; JPMorgan Chase Bank v. Kutch, 142 AD3d 536 [2d Dept 2016]; Aurora Loan Serve., LLC v Bartiz, 144 AD3d 618 [2d Dept 2016]).

Even if it had met the requirements of CLR 4518, her affidavit was still insufficient as it failed to establish her familiarity with office practices and procedures to establish those office practices and procedures necessary to insure proper addressing and mailing (see CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Wells Fargo Bank, NA v Trupia, 150 AD3d 1049 [2d Dept 2017]; Bank of NY Mellon v Zavolunov, 157 AD3d 754 [2d Dept 2018]; J.P. Morgan Mtge. Acquistion Corp v Kagan, 157 AD3d 875 [2d Dept 2018];US Bank, NA v Henderson, 163 AD3d 601[ 2d Dept 2018]).

Further, 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 (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]). Where plaintiff's submissions fail to establish proof of filing of the mailing of the notices required by RPAPL § 1304 with the State Banking Dept./ Dept. Of Financial Services as required by RPAPL § 1306, summary judgment must be denied, regardless of the sufficiency of defendant's opposition papers (see Hudson City Savings Bank v Seminario, supra). As plaintiff failed to establish the mailing of the notices required by RPAPL § 1304 the court declines to address plaintiff's compliance with the filing provisions of RPAPL § 1306. Plaintiff's application to dismiss defendant's ninth affirmative defense is denied, except as granted above.



REMAINING AFFIRMATIVE DEFENSES DEEMED ABANDONED

As to defendant's remaining affirmative defenses, the failure to raise and support pleaded affirmative defenses and 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]). Defendant's first, fourth, fifth, sixth, seventh, eighth, tenth and eleventh affirmative defenses are dismissed as abandoned.



SUCCESSIVE SUMMARY JUDGMENT MOTIONS ALLOWED

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 [*5]1108 [2d Dept 2012]; Kolel Damsek Eliezer, Inc. v Schlesinger, 139 AD3d 810 [2d Dept 2016]). It is clearly appropriate to consider a second summary judgment motion where the court has already granted a party partial summary judgment and limited the issues to a few, or where such a motion would correct a simple defect, eliminating the burden on judicial resources which 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 [1st Dept 2012]). The denial of a subsequent summary judgment motion which could be dispositive 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]). Therefore, the court grants plaintiff the opportunity to file a successive motion for summary judgment on the issues related to defendant's second and third affirmative defenses and remaining issues in his ninth affirmative defense.

Such a motion is to be filed within 120 days of the dated of this decision and order. Failure of plaintiff to avail itself of this opportunity will result in the court directing that a note of issue be filed in the action, as there is no need for discovery.

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

To monitor the progress of this action, a conference is scheduled in this part for Wednesday, January 23, 2019 at 9:30 AM.

This constitutes the Order and decision of the Court.



Dated: September 12, 2018

_______________________________________

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