JP Morgan Chase Bank, N.A. v Biton

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JP Morgan Chase Bank, N.A. v Biton 2019 NY Slip Op 30229(U) January 22, 2019 Supreme Court, Kings County Docket Number: 507739/14 Judge: Leon Ruchelsman 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. [*FILED: 1] KINGS COUNTY CLERK 01/29/2019 INDEX NO. 507739/2014 NYSCEF DOC. NO. 145 RECEIVED NYSCEF: 01/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCV\L 8 ------------------------------------------x JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff, Decision and order against - Index No. 507739/14 ((\.£ t{:b::. ELI BITON, CITY OF NEW YORK PARKING VIOLATIONS BUREAU, CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, 219-23 114TH ROAD, INC., CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, ET AL., Defendants, ------------------------------------------x 5 January 22, 2019 PRESENT: HON. LEON RCCHELSMAN The defendant has moved seeking to vacate a default entered against him. The plaintiff has opposed the motion. submitted by both parties. parties this court now makes Papers were After reviewing the arguments of all th~ following determination. This lawsuit concerns a mortgage foreclosure action regarding property located at 643 Midwood Streec in Kings County. and complaint was served in·August 2014. A summons The plaintiff sought a referee to compute and such motioh was granted on default. The defendant now rr.oves seeking to vacate the default on the grounds there is a reasonable excuse and a rne·ritorious defense and that the interests of justice demand the default is vacated. The plaintiff opposes the motion arguing the defendant has failed to s"atisfy any of the criteria seeking a· default. 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 01/29/2019 INDEX NO. 507739/2014 NYSCEF DOC. NO. 145 RECEIVED NYSCEF: 01/30/2019 tonclusions of Law A default judgement may be vacated when the party demonstrates a reasonable excuse for failure to appear and a meritorious defense {AIU Insurance Company v. Fernandez, 281 AD2d 542, 721 NYS2d 840 [2d Dept., 2001]). Considering the evidence presented a reasonable excuse has been presented. It should be noted that the defendant does not dispute the fact ~hat Rather,· the mortgage payments have not been made per se. other arguments as noted have been presented. Thus, a motion.to vacate will prove unsuccessful if the party does not allege a defense at all (Hala'i v. Gabbav, 223 AD2d 623, 636 NYS2d 838 [2d Dept., 1996], Riverhead Savings Bank v. Garone, 183 AD2d 760, 583 NYS2d 483 [2d Dept., 1992]). The defense need not entitle the party to judgement as a matter of law, rather it must simply raise the possibility that the case can be adequately defended (Bellcourt v. Bellcourt, 169 AD2d 855, 564 NYS2d 580 [3rd Dept., 1991], Parker v. City of New York, 272 AD2d 310, 707 NYS2d 199 [2d Dept., 2000], Hitter v. Rubin, 208 AD2d 480, 617 NYS2d 730 [1 3 ' Dept., 1994], Cotter v. Con. Ed. Of New York, 99 AD2d 738, 472 NYS2d 384 (1 5 ' Dept., 1984], Damselle Ltd. v. 500-12 Seventh Avenue Associates, 184 AD2d 367, 584 NYS2d 846 [l5t Dept., 1992]). where a defense cannot be asserted at all, Thus, for example where the defendant was already convicted of lony charges regarding the events which now comprise the civil action, 2 2 of 4 then vacating the [*FILED: 3] KINGS COUNTY CLERK 01/29/2019 INDEX NO. 507739/2014 NYSCEF DOC. NO. 145 RECEIVED NYSCEF: 01/30/2019 default would be improper NYS2d 18 [ It (Boorman v. Deutsch, 152 AD2d 48, 547 Dept., 1989]). is well settled that a mortgage may not be foreclosed unless the plaintiff maintains a legal or equitable interest in the mortgage (Wells Fargo Bank N.A., NYS2d 615 [2d Dept., 2009]). v. Marchione, 69 AD3d 204, 887 Thus, for a plaintiff to establish standing it must be demonstrated that the plaintiff was both (1) the holder. or assignee of the subject mortgage and (2) the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment p:cior to the commencement of the action with the filing of the complaint (see, U.S. Bank. N.A. v. Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept., 2009]). Further, in order to obtain a judgement the plaintiff must present evidence demonstrating the mortgage, the unpaid note and evidence of default (Archer Capital Fund L.P. v. GEL LLC, 800, 944 NYS2d 179 [2d Dept., 2012]). The 95 AD3d defendant's sole argument opposing the evidence presented rests on the fact the plaintiff has failed to prove the defendant is in default since the plaintiff, the entity that was first involved with the defendant assigned the note and mortgage to Chase Home Finance and that there is a gap of time wherein the plaintiff cannot state with certainty the mortgage was unpaid. There is no merit to such an argument. T'."ie plaintiff and Chase Home Finance merged on May 1, 2011 thus the affidavit of Gary Brunton who stated the defendant is in 3 3 of 4 fault [*FILED: 4] KINGS COUNTY CLERK 01/29/2019 INDEX NO. 507739/2014 NYSCEF DOC. NO. 145 . RECEIVED NYSCEF: 01/30/2019 " and been in continuous default since 2008., is prima facie evidence sufficient ::o entitle a judgement on this matter since it based upon a review of all documents of ::he lender. The defendant has presented conclusory and unsubstantiated allegations concerning the integrity of Mr. Brunton and the evidence relied upon by Mr. Brunton. That is insufficient to raise any issue concerning the judgement. Therefore, the motion seeking to vacate the default is denied. So ordered. ENTER: DATED: January 22, 2019 Brooklyn N.Y. Hon. JSC ~ ""' c:.... > z N "" > ?:( :z G') VI (') ·no -c: ,....z m_. :ii: 0-< w ... 0 ,... 0 xi m ;!'<: 4 4 of 4 I

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