Trifera, LLC v Kachris

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[*1] Trifera, LLC v Kachris 2018 NY Slip Op 51973(U) Decided on December 18, 2018 Supreme Court, Albany County Weinstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2018
Supreme Court, Albany County

Trifera, LLC, Plaintiff,

against

Thomas A. Kachris A/K/A Thomas Kachris; DeGraf, Foy & Kunz & Devine, LLP; "John Doe" and "Mary Doe", said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons, or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants.



903318-17



Aldridge Pite, LLP

Attorneys for Plaintiff

By: Nicholas Bebirian, Esq.

40 Marcus Drive, Suite 200

Melville, New York 11747

Farer Law Firm, P.C.

Attorneys for Defendant Thomas A. Kachris

By: Steven D. Farer, Esq.

12 Century Hill Drive

Latham, New York 12110
David A. Weinstein, J.

Plaintiff Trifera, LLC ("Trifera"), commenced this foreclosure action by summons and notice, along with a verified complaint, dated May 22, 2017, seeking among other things to foreclose a mortgage entered into on December 7, 2001, covering property at 15 Mare Lane, East Berne, New York, and to have a referee appointed to ascertain and compute the amount owed to plaintiff due to the alleged default on the mortgage. Defendant Thomas A. Kachris appeared and served a verified answer, in which he asserted several affirmative defenses, including that [*2]plaintiff lacks standing, and that the action is barred by the applicable statute of limitations.[FN1]

Trifera has now moved for summary judgment based on the unpaid note, mortgage and evidence of default by the borrower. The motion is supported by the affirmation of attorney Nicholas Bebirian with supporting exhibits, including the note, mortgage, and relevant assignment documentation, among which are assignments: (1) to CitiMortgage, Inc., dated April 27, 2015; (2) to Kondaur Capital Corporation, dated June 12, 2015; and (3) to Trifera on December, 14, 2015 (Bebirian Affirmation ["Bebirian Aff"], Ex A). Trifera also provides a copy of the Promissory Note, signed by Kachris, which contains an Alonge to Note acknowledging the assignment to Trifera (id. ¶¶ 30-31, Ex A).

In addition, Trifera provides an Affidavit of Merit and Amounts Due and Owing from Josh Ross, a portfolio manager with Land Home Financial Services, Inc., the debt servicer and attorney in-fact for Trifera. According to Ross, Trifera was assigned the mortgage on December 14, 2015, and Kachris has failed to comply with the provisions of the note and mortgage in that he has failed to make any payments since July 7, 2010 (Ross Affidavit ["Ross Aff"] ¶ 7). By reason of this default, Trifera elected to declare the unpaid principal sum of the Notice and Mortgage immediately due and payable — $115,986.56, with interest thereon at 9.24% per annum running from June 7, 2010 (id.).

In response to defendant Kachris' statute of limitations defense, which is governed by the six-year statute of limitations contained in CPLR § 213(4), Trifera contends by the affirmation of counsel that the mortgage was not accelerated until May 22, 2017, when it chose to accelerate the debt by filing the summons and verified complaint in this action (Bebirian Aff ¶ 45). Ross also avers that notice of default, per the terms of the mortgage, was provided to Kachris on October 26, 2016 (Ross Aff ¶ 8; Bebirian Aff, Ex D).

Defendant Kachris opposes summary judgment and submits an affirmation from his attorney, as well as his own affidavit.

The affidavit of Kachris' counsel argues that (1) Trifera failed to timely bring the summary judgment motion in accordance with the Court's conference order, which required motions to be made no later than February 27, 2018; (2) Trifera lacks standing to seek foreclosure; and (3) there is a question of fact as to whether the six-year statute of limitations to bring such an action has lapsed.

Kachris supports his statute of limitations argument with his own affidavit, sworn to on August 28, 2018. He notes that Trifera contends that he has been in default since June of 2010, which is approximately 8 years ago (Affidavit of Thomas Kachris ["Kachris Aff"] ¶ 3). He further avers that the notice of default referenced by Ross was not the first he received. [*3]According to Kachris, he received his first default notification from CitiMortgage in a letter dated November 15, 2010 (Kachris Aff ¶ 5, Ex A). In this letter, a copy of which he appends to his motion, CitiMortgage advised him that if his default was not cured by December 16, 2010, CitiMortgage "may require immediate payment in full" (id. Ex A). He claims to have received numerous additional notifications, many of which he cannot now locate, but he is "positive that one or more of them stated that immediate payment in full was required" (id. ¶ 6).

In one such letter, dated April 22, 2014, and appended to Kachris's papers, CitiMortgage stated that "your loan has been accelerated. The accelerated amount now due is $212,714.15" (id. Ex B). This same letter, provided "Recent Account History" indicating that by November 7, 2013, the amount due had already been accelerated [FN2] (id.). This letter also stated that Kachris' loan was in foreclosure and provided contact information for Citimortgage's foreclosure Attorney, Rosicki, Rosicki & Associates, P.C. (id.). Based on the bank correspondence attached to his affidavit, and his recollection of earlier letters, Kachris argues that there is a question of fact as to whether CitiMortgage accelerated the amount due and owing more than six years before this action was commenced, so as to warrant a denial of summary judgment on limitations grounds, and to allow defendant to engage plaintiff, and the prior mortgage holders, in discovery to determine the precise date that acceleration occurred (id. ¶¶ 9-11). Trifera has not submitted a reply to this argument, or any other raised in Kachris' opposition to summary judgment.

Discussion

I. Timeliness

As an initial matter, defendant argues the motion must be denied as untimely. I find this argument to be meritorious.

According to the Court's file, the initial conference order from October 27, 2017 provided for a "conditional release — make motion on or before Nov. 27, 2017 . . . ." On the same day, a second conference order was issued "[a]mending prior order on same date; conditional release — motions not before January 27, 2018 & not after February 27, 2018 . . . ." (Farer Aff ¶¶ 5-7, Ex A). The instant motion, however, is dated August 13, 2018 and was filed the same day — approximately 6 months after the deadline set by the Court. No leave from the Court for such a late filing was sought.

Under CPLR 3212(a), a court has "considerable discretion to fix a deadline for filing summary judgment motions" (Brill v City of New York, 2 NY3d 648, 651 [2004]). Furthermore, "'if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders without impunity'" (Brill, 2NY3d at 652-53, quoting Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). The penalty for failing to bring a timely summary judgment motion is its denial in the absence of good cause shown for the delay (id. at 653-54). Here, Trifera did not seek leave to file a late motion for summary judgment, nor did it present the Court with "good cause" for missing the deadline. Its failure to do so provides a clear ground for the motion's denial.

I will proceed nevertheless to consider the merits of the motion, as they provide an alternative ground for denial, and such consideration in any case elucidates those disputed issues which must be resolved via further proceedings, including trial.

II. The Merits

A foreclosure plaintiff demonstrates its prima facie right to summary judgment "by submitting the mortgage and unpaid note, along with evidence of default in payments" (JPMorgan Chase Bank, Nat. Ass'n v Verderose, 154 AD3d 1198, 1199 [3d Dept 2017] [internal quotations and citations omitted]). On the basis of the evidence set forth in Trifera's papers, it has met its prima facie burden and the burden now shifts to defendant "to demonstrate by competent and admissible proof that a defense exist[s] so as to raise a question of fact" (PHH Mortg. Corp. v Davis, 111 AD3d 1110, 1111 [3d Dept 2013]).

A plaintiff in a foreclosure action has standing "where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced" (JPMorgan Chase Bank, Nat. Ass'n, 154 AD3d at 1200). As evidence that the right to receive payment under the mortgage has transferred, plaintiff need only show "either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action" (id.) [internal quotations and citations omitted]). In support of its motion, Trifera has provided a copy of the recorded assignment to it from the prior note holder, Kondaur Capital Corporation, dated December 14, 2015. In addition, the affidavit of Ross, who averred he had reviewed Trifera's business records, establishes that Trifera is the holder and owner of the Note and Mortgage at issue in this action (Ross Aff ¶ 4). The verified complaint also provides a copy of the unpaid Note, which contains an Allonge to Note, signed by Kondaur, directing that payments are to be made to Trifera (Bebirian Aff at Ex A). Consequently, Trifera established its standing and its prima facie entitlement to summary judgment (JPMorgan Chase Bank, Nat. Ass'n, 154 AD3d at 1200). The conclusory denial of standing in Kachris' opposition papers is insufficient to rebut that showing.

I do not find, however, that plaintiff has met its prima facie burden to rebut defendant's statute of limitations defense. Even were I to find that it did so, defendant has submitted sufficient proof to establish a question of fact on this issue.

In a mortgage foreclosure action, the statute of limitations "'begins to run six years from the due date for each unpaid installment or the time the mortgagee is entitled to demand full payment, or when the mortgage has been accelerated by a demand or an action is brought'" (Pidwell v Duvall, 28 AD3d 829, 831 [3d Dept 2006], quoting Saini v Cinelli Enter., Inc., 289 AD2d 770, 771 [3d Dept 2001] [emphasis supplied]).

Trifera's counsel claims that a notice of default and an opportunity to cure, in accordance with the terms of the mortgage, was first provided to Kachris in an October 26, 2016 letter from Trifera's debt servicer (Bebirian Aff ¶ 44, Ex D). This letter, counsel explains, was not a demand for the entire amount owed (id. ¶ 44). Instead, Trifera waited to exercise its option to accelerate the amount owed by filing the summons and complaint for foreclosure on May 22, 2017 (id. ¶ 45). If this is true, than Trifera commenced the foreclosure action well within the six year statute of limitations.

But such statements in an attorney affirmation cannot prove plaintiff's prima facie case (Zuckerman v City of New York, 49 NY2d 557, 563 [1980] [affirmation of attorney "who demonstrated no personal knowledge . . . is without evidentiary value"]). And plaintiff has not submitted any admissible evidence to support the account given by its counsel. While Ross's [*4]affidavit states that a notice of default was sent to Kachris on October 26, 2016, and that plaintiff "has elected to accelerate the loan," nothing he says supports the statement of counsel that notice of default was first given to Kachris by the 2016 letter (see Ross Aff ¶¶ 7-8 & Ex D).

Even if I were to find this made out a prima facie case, defendant has met its burden to



"to rebut plaintiffs' claims by evidentiary facts and to demonstrate the existence of triable issues of fact" (see Ingber v Pirog, 176 AD2d 1163, 1163 [3d Dept 1991] [citation omitted]. Kachris avers, in contradiction to the chronology set forth in plaintiff's motion, that he first received notice of default on November 15, 2010 in a letter from CitiMortgage, Inc.[FN3] (Kachris Aff ¶ 5). That assertion is supported by a copy of the letter itself, which indicates that acceleration could occur as early as December 16, 2010 (id., Ex A). Moreover Kachris recalls receiving subsequent letters stating that "immediate payment in full was required" (id. ¶ 6). He provides one such letter, dated April 22, 2014, which states that by November 7, 2013, the mortgage had already been accelerated (id. Ex B).

At the very least, this documentation refutes the claim of Trifera's counsel that "the loan was not accelerated until May 22, 2017" (Bebirian Aff ¶ 45). Whether it creates a question of fact as to whether the action was untimely presents a closer question. Nonetheless, I find that the failure of plaintiff to point to the correct date of acceleration, the 2010 notice of default, the letter indicating that the mortgage could be accelerated on December 16, 2010, and Kachris' averment that he received numerous other notifications including those which accelerated payment, are sufficient to find, after drawing all inferences in defendant's favor, that there is a question of fact as to whether the foreclosure action was brought within six years of acceleration.

At very least, this is sufficient to show that summary judgment must be denied as premature. Although Kachris does not cite CPLR 3212(f), his argument that the relevant facts "would be within the knowledge of the initial mortgagee only, and Kachris should be afforded the opportunity to conduct discovery for their production" clearly invoke this Rule. CPLR3212(f) provides, in pertinent part, "that should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion . . . ." Here, it appears that correspondence between CitiMortgage and Kachris exists that may establish when the mortgage was first accelerated, and discovery may help elucidate this issue. Thus the motion is premature (see Schwengber v Hultenius, 160 AD3d 1083, 1085 [3d Dept 2018] [holding that summary judgment was premature when a triable issue of fact existed and further discovery could resolve such issue]; Wesolowski v St. Francis Hosp., 108 AD3d 525 [2d Dept 2013] [denying summary judgment under CPLR 3212[f] when "further discovery was needed in order to resolve the statute of limitations issue"]).

Accordingly, it is hereby ORDERED that plaintiff's motion for summary judgment is denied. A conference call will be conducted on January 7, 2018 at 2 p.m., to be initiated by the Court, to address further proceedings in his case.

This constitutes the Decision & Order of the Court. This Decision & Order is being transmitted to the County Clerk for filing. The signing of this Decision and Order and transmittal to the County Clerk shall not constitute notice of entry under CPLR 5513, and counsel is not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry.



ENTER.

Dated: December 18, 2018

Albany, New York

David A. Weinstein

Acting Supreme Court Justice

Papers Considered:

1. Notice of Motion for Summary Judgment, dated August 13, 2018, and Attorney Affirmation in Support of Motion for Summary Judgment, dated August 13, 2018, with Exhibits A-H annexed thereto, along with an Affidavit of Josh Ross, sworn to on August 9, 2018; and

2. Attorney Affirmation in Opposition, dated September 7, 2018, with Exhibit A attached thereto, supported by the Affidavit of Thomas Kachris, sworn to on August 28, 2018, with Exhibits A-B annexed thereto. Footnotes

Footnote 1:The other affirmative defenses in the verified answer — lack of personal jurisdiction, and an alleged failure to properly notify defendant Kachris of the transfer of mortgage to Trifera — were not raised in opposition to the present motion for summary judgment, and thus they will not be addressed below (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756, 757 [2d Dept 2013] [defendant waives affirmative defense by failing to raise it in opposition to summary judgment]; see also Kuehne & Nagel, Inc. Baiden, 36 NY2d 539, 544 [1975] ["Facts appearing in the movant's papers which opposing party does not controvert, may be deemed admitted"]).

Footnote 2:Specifically, the history stated: "Payment due 11/07/13: Unpaid Accelerated amount of $205,170.68," and then set forth the accelerated amount for various subsequent dates." Below, it further stated: "Your loan has been accelerated under state law and the accelerated amount is now due " (Farer Aff, Ex B).

Footnote 3:According to the April 27, 2015 assignment to CitiMortgage, Inc., this entity is the successor by merger to CitiFinancial Mortgage Company, Inc., formerly known as Associates Home Equity Services, Inc., attorney-in-fact for Optimal Funding, Inc. (the original lender on the Note and Mortgage). This language indicates that, prior to the assignment, CitiMortgage and its predecessor, acted as the attorney-in-fact for Optimal Funding (Bebirian Aff at Ex A).