Wells Fargo Bank, N.A. v Montalvo
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Wells Fargo Bank, N.A. v Montalvo 2019 NY Slip Op 33466(U) November 22, 2019 Supreme Court, Suffolk County Docket Number: 15577/2013 Judge: Howard H. Heckman 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 SUPREME COURT-STATE OF NEW YORK IAS PART 18 - S FFOLK COUNTY PRESENT: HON. HOWARD H. HECKMAN JR., J.S.C. -------------------------------------------------------------- -X WELLS FARGO BANK, N.A., INDEX NO.: 15577/2013 MOTION DATE: 11 -22-2019 MOTION SEQ. NO.: #004 MG #005 MD PLAINTIFF'S ATTORNEY: Plaintiff, SHAPIRO DICARO & BARAK, LLC 175 MILE CROSSING BLVD. ROCHESTER, NY I 4624 -against- EDWIN A. MONTALVO, etal., DEFENDANT'S ATTORNEY: Defendants. -------------------------------------------------------------- -X GRAUSSO & FOY, LLP EIGHT WEST MAIN STREET, STE 5 PATCHOGUE, NY 11772 Upon the fo llowing papers numbered I to 36 read on thi motion : Notice of Motion/ Order to Show Cause and supporting papers 1-1 4 (#004 l ; Notice of Cross Motion and suppo ing papers 15-32 (#005) ; Answering Affidavits and supporting papers_ ; Replying Affidavits and supporting papers 3 -36 ; Other_ : {and after hearing counsel in support and opposed to the motion) it is, r ORDERED that this motion by plaintiff W~ lls Fargo Bank, N.A. seeking an order: I) granting summary judgment striking the answer of qefendant Edwin A. Montalvo; 2) deeming all appearing and non-appearing defendants in default; hnd 3) appointing a referee to compute the sums due and owing to the plaintiff in this mortgage fore losure action is granted; and it is further ORDERED that the cross motion by defend nt Edwin A. Montalvo seeking an order pursuant to CPLR 3212 & RPAPL 1304 denying pl intiffs motion and dismissing the complaint is denied; and it is further ORDERED that plaintiff is directed to serv a copy of this order with notice of entry upon all parties who have appeared and not waived furthe notice pursuant to CPLR 2103(b)(l)(2) or (3) within thirty days of the date of this order and to pro ptly file the affidavits of service w ith the Clerk of the Court. Plaintiffs action seeks to foreclose a mortgaf e in the original sum of $318,250.00 executed by defendant Edwin A. Montalvo on May 30, 2007 i favor of Wells Fargo Bank, N.A. On the same · date mortgagor Montalvo executed a promissory not promising to re-pay the entire amount of the indebtedness to the mortgage lender. Plaintiff claim that defendant defaulted under the terms of the mortgage and note by failing to make timely monthJ ~ mortgage payments beginning January 1, 2013 and continuing to date. Plaintiff commenced this ac ion by filing a summons, complaint and notice of pendency in the Suffolk County Clerk's Office on June 14, 2013. Defendant Montalvo served an answer dated July 16, 20 I 3 asserting twenty two affi ative defenses and five counterclaims. By short form Order (Pastoressa, J.) dated September 1, 2016, plaintiff's initial motion for an order granting summary judgment was denied without prej dice based upon court records indicating that this action had been settled. The action had not bee settled. Plaintiff submitted a second motion seeking summary judgment which was opposed by t e defendant Montalvo, who submitted a cross motion seeking dismissal of plaintiff' s complaint. B short form Order (Pastoressa, J.) dated April [* 2] 3, 2018 defendant's cross motion was denied and pl intiff s motion was granted to the extent that all of the numbered affirmative defenses set forth in de endant's answer were stricken. The only issue remaining to be resolved as a result of Justice Pasto essa ·a Order were the defenses identified in the defendant's answer as "First Defense" and "Second efense" which claim that plaintiff failed to comply with RP APL 1304 requirements. Plaintiffs third motion seeks an order gra ting summary judgment against the defendant and for the appointment of a referee. In opposition, defendant submits a second cross motion seeking judgment dismissing plaintiffs complaint fi r failure to prove compliance with RPAPL 1304. Defendant claims that plaintiffs successive s mmary judgment motion should not be permitted since it is a motion seeking renewal and afgues that the complaint must be dismissed based upon the identical grounds the defendant asserted in his prior cross motion. Procedurally, plaintiff served this third moti n seeking summary judgment on September 12, 2018 and made it originally returnable on Septembe 28, 2018 assigned to IAS Part 34. Defendant served his cross motion on October 19, 2018 and fai ed to designate any return date. The cross motion was assigned to IAS Part 34. Both motions emained sub judice without decision until this foreclosure action and the underlying motions were reassigned to this IAS Part 18 on November 12, 20 19 by Administrative Order 85-19 (Hinrichs, J.) dftted November 6, 2019. Upon assemblage of all motion papers both motions were marked submitted on the IAS Part 18 motion calendar on November 22, 2019. With respect to defendant's claim that an ad~"t ional summary judgment motion is not permitted absent some designation by its proponent hat the moving party is seeking renewal, a court has discretion to consider a successive summary jud ment motion when it is substantively valid and the granting of the motion will further the ends of ju~tice and eliminate an unnecessary burden on the resources of the courts" (see Kole! Damsek Eliezer, )nc. v. Schlesinger, 139 AD3d 810, 33 NYS3d 284 (2nd Dept., 2016) quoting Graham v. City ofNew York, 136 AD3d 747, 748, 24 NYS3d 754 (2nd Dept., 2016); Landmark Capital Investments, Inc. v. Li-Shan Wang, 94 AD3d 418, 941 NYS2d 144 (2"d Dept., 2012); Town ofAngelica v. Smith, 89 ADtd 1547, 933 NYS2d 480 (4'h Dept., 2011)). This court deems consideration of this successive m tion as "substantively valid" and in the interests of judicial economy and furthering the ends of justicl . The proponent of a summary judgment motiqn must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material question of fact from the case. The grant of summary judgment is appropriate only when it is clear that no material and triable issues of fact have been presented (Sillman v. Twentieth Centwy-Fox Film Corp., 3 NY2d 395 ( 1957)). The moving party bears the initial burden of proving entitlement to summary judgment (Wine grad v. NYU Medical C~nter, 64 NY2d 851 ( 1985)). Once such proof has been proffered, the burden shifts to the opposing party who, to defeat the motion, must offer evidence in admissible form, and must set forth fact sufficient to require a trial of any issue of fact (CPLR 3212(b); Zuckerman v. City of Nevv York, 49 Y2d 557 (1980)). Summary judgment shall only be granted when there are no issues of material Cact and the evidence requires the court to direct a judgment in favor of the movant as a matter of lawlcFriends o.fAnimals v. Associated Fur Manufacturers. 46 NY2d 1065 (1979)). Entitlement to summary judgment in favor of the foreclosing plaintiff is established, prima -2- [* 3] facie by the plaintiffs production of the mortgage a d the unpaid note, and evidence of default in payment (see Wells Fargo Bank NA. v. Erobobo, 1 7 AD3d 1176, 9 NYS3d 312 (2"d Dept., 2015): Wells Fargo Bank, NA . v. Ali, 122 AD3d 726, 995 YS2d 735 (2"d Dept., 2014)). By short form Order (Pastoressa, J.) dated A ril 3, 2018 plaintiffs motion for an order granting summary judgment was granted as to all is ues except with respect to the issue of service of the pre-foreclosure 90-day notices required pursuan to RPAPL 1304. Justice Pastoressa's Order granted judgment striking all affirmative defenses a d counterclaims and made a specific finding that plaintiff's submissions "establish its prima facie ent tlement to summary judgment on its mortgage foreclosure action by producing the indorsed note, t e mortgage and evidence of nonpayment" which as recited in the short fonn Order was proven by the "affidavit of merit" which established the default date as January 1, 2013. Based upon Justice Pastoressa' s Order, which is the law of this case. all issues have been decided with the sole exception of plaintiffs compliance with RP APL 1304. Proper service of such RP APL 1304 notices n borrower(s) are conditions precedent to the commencement of a foreclosure action, and the plai tiff has the burden of establishing compliance with this condition (Aurora Loan Services, LLC v. eisblum, 85 AD3d 95, 923 NYS2d 609 (2"d Dept., 2011 ); First National Banko/Chicago v. Sil er, 73 AD3d 162, 899 NYS2d 256 (2nd Dept., 2010)). RPAPL 1304(2) provides that notice be senf by registered or certified mail and by first-class mail to the last known address of the borrower(s), aryd if different, to the residence that is the subject of the mortgage. The notice is considered given as ~f the date it is mailed and must be sent in a separate envelope from any other mailing or notice ~nd the notice must be in 14-point type. At issue is whether the evidence submitted by the plaintiff is sufficient to establish plaintiffs compliance with statutory pre-foreclosure notice requirements.. CPLR 4518 provides: Business records. (a) Generally. Any writing or record, whethjr in the fom1 of an entry in a book or otherwise, made as a memorandum or recor of any act, transaction, occurrence or event. shall be admissible in evidence in pro f of that act, transaction, occurrence or event, if the judge finds that it was made the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. ip The Court of Appeals in People v. Guidice, ~3 NY2d 630, 635, 612 NYS2d 350 (1994) explained that "the essence of the business records e~ception to the hearsay ru le is that records systematically made for the conduct of business... are inherently highly trustwo11hy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of tpe enterprise ... (quoting People v. Kennedy. 68 NY2d 569, 579, 510 NYS2d 853 (1986)). It is a uniHue hearsay exception since it represents hearsay deliberately created and differs from all other hcarsaf exceptions which assume that declarations which come within them were not made deliberately with li tigation in mind. Since a business record keeping system may be designed to meet the hearsa exception, it is important to provide predictability in this area and discretion should not normally be exercised to exclude such evidence "' -..)- [* 4] on grounds not foreseeable at the time the record w s made (see Trotri \'. Estate of Buchanan. 272 AD2d 660. 706 NYS2d 534 (3rd Dept.. 2000)). The tlu·ee foundational requirements of CP 45 l 8(a) are: l) the record must be made in the regular course of business- reflecting a routine, reg larly conducted business activity, needed and relied upon in the performance of business function ; 2) it must be the regular course of business to make the records- (i .e. the record is made in accord nee with established procedures for the routine, systematic making of the record); and 3) the record nust have been made at the time of the act, transaction, occurrence or event, or within a reason ble time thereafter, assuring that the recollection is fairly accurate and the entries routinely made (se People v. Kennedy, supra @ pp. 579-580)). The "mere filing of papers received from other entities, ven if such papers are retained in the regular course of business, is insufficient to qualify the doc men ts as business records." (People v. Cratsley. 86 NY2d 81 , 90, 629 NYS2d 992 (1995)). The rec rds will be admissible "if the recipient can establish personal knowledge of the maker's busine s practices and procedures, or that the records provided by the maker were incorporated into the r cipient's own records or routinely relied upon by the recipient in its business." (State of New York v. 58'h Street & Riverside Drive Housing Company, Inc., 100AD3d 1293, 1296, 956 NYS2d 96 (2012); leave denied 20 NY3d 858 (2013); see also Viviane Etienne Medical Care, P.C. v. Country-Wide Insurance Company, 25 NY3d 498, 14 NYS3d 283 (2015); Deutsche Bank National Trust Co. v. Monica, 131 AD3d 737, 15 NYS3d (3rd Dept., 2015); People v. DiSalvo, 284 AD2d 54 7, 72~ NYS2d 146 (2nd Dept., 2001 ); Matter of Carothers v. GEICO, 79 AD3d 864, 914 NYS2d 1919 (2nd Dept., 2010) ). The statute (CPLR 4518) clearly does not require a person to have personal knowledge of each and every entry contained in a business record (see Citibank NA . v. Abrams, 144 AD3d 1212, 40 NYS3d 653 (3rd Dept., 2016); HSBC Bank USA, NA. v. Sage, 112 AD3d l 126, 977 NYS2d 446 (3rd Dept., 2013); Landmark Capital Inv. Inc. v. Ll-f_han Wang, supra.)). As the Appellate Division, Second Department stated in Citigroup v. Kopelowi(z, 147 AD3d 1014, 48 NYS3d 223 (2"d Dept., 2017): "There is no requirement that a plaintiff in a foreclosure action rely on a particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 45 l 8(a) and the records themselves actually evince the facts for which they are relied upon. " Decisions interpreting CPLR 45 l ~are consistent to the extent that the three foundational requirements: l) that the record be ma e in the regular course of business; 2) that it is in the regular course of business to make the record; a d 3) that the record must be made at or near the time the transaction occurred. - if demonstrated, ma)<e the records admissible since such records are considered trustworthy and reliable. Moreover, the l~nguage contained in the statute specifically authorizes the court discretion to determine admissibility by stating ·'ifthejudgefinds .. that the three foundational requirements are satisfied the evidencelshall be admi ssible. The affidavits submitted from two Wells Fa11go vice presidents of loan documentation provide the evidentiary foundation for establishing the mortgage lender' s right to fo reclose. The affidavits sets forth both employees review of the bJsiness records maintained by the mortgagee/loan servicer; the fact that the books and records are made in the regular course of Wells Fargo's business; that it was Wells Fargo's regular course o~business to maintain such records; that the records were made at or near the time the underlyin transactions took place; and that the records were created by an indi vidual with personal knowle ge of the underlying transactions. Based upon the submission of these affidavits, the plaintiff has p ovided an admissible evidentiary foundation which satisfies the business records exception to the hearsay rule with respect to the remaining issue [* 5] raised in this summary judgment application. As to service of the pre-foreclosure RP APL 1304 90-day notices, the proof required to prove strict compliance with the statute (RP APL 1304) c be satisfied: 1) by plaintiffs submission of an affidavit of service of the notices (see Citii\lfortgag , Inc. v. Pappas, 147 AD3d 900, 4 7 NYS3d 415 (2nd Dept., 2017); Bank of New York Mellon v. AqUI o, 131AD3d1186, 16 NYS3d 770 (211d Dept., 2015); Deutsche Bank National Trust Co. v. Spano, 102 AD3d 909, 961NYS2d200 (2"d Dept., 2013)); or 2) by plaintiffs submission of sufficient roof to establish proof of mailing by the post office (see Nationstar Mortgage LLC v. LaPorre, 1 2 AD3d 784, 79 NYS3d 70 (2"d Dept., 2018); HSBC Bank USA, N.A. v. Ozcan, 154 AD3d 822. 6 NYS3d 38 (2"d Dept., 2017): Citi1\1ortgage, Inc. v. Pappas, supra pg. 901; see Wells Fargo Bank, N . v. Trupia, 150 AD3d 1049, 55 NYS3d 134 (2"d Dept., 2017)). Once either method is establish d a presumption ofreceipt arises (see Viviane Etienne Medical Care, P.C. v. Country-Wide Insur nee Co., supra.; Flagstar Bankv. Afendoza, 139 AD3d 898, 32 NYS3d 278 (2"d Dept., 2016); Resid ntial Holding Corp. v. Scottsdale Insurance Co., 286 AD2d 679, 729 NYS2d 766 (2"d Dept., 2001 )). In this case, the record shows that there is s fficient evidence to prove that mailing by certified and first class mail was done by the post o ice proving strict compliance with RP APL 1304 mailing requirements. Plaintiff has submitted proo in the form of an "affidavit of mailing" from the plaintiff/mortgage lender's (Wells Fargo's) vice pre~ident loan documentation dated July 13, 2018 attesting to the facts underlying the mortgage lenden' s compliance with RP APL 1304 statutory requirements. Specifically the Wells Fargo vice president testifies to the fo llowing: fun~tions 5. In the regular performance of my job I have received training and have personal knowledge of Wells Fargo's stand d office practice to prepare, address, mail and store letters used in its mortgage se ·vicing business, and how to retrieve such information. 6. Based on this training and knowledge, I a familiar with Wells Fargo's standard practices and procedures used to create, mai and store data regarding the 90 day pre-foreclosure notice ("90 Day Notice") re uired by New York law that are designed to ensure that these letters are properly addr ssed, mailed and that data reflecting those events is stored in Wells Fargo's business re ords. The plaintiff's representative next testifies about wLs Fargo's standard business practice and procedure for establishing an electronic fi le for eacl serviced loan, the inputting of the borrower's mailing address and property address (if different), the creation of the notice containing a list of five housing agencies serving the county where the premises are located, the creation and addressing, of the envelopes used to mail the notices, and the encl9sing and sealing of those envelopes. The Wells Fargo vice president then testifies to the followin g: 9. I hereby ce1tify and affirm that, in accord nee with Wells Fargo's standard business practice and procedure and in compliance w"th RPAPL 1304, a 90 Day Notice and a current li st of at least five (5) housing couns<?ling agencies serving the county where the property is located from the most recent isting available from the Department of Financial Services were mailed to Edwin A. Montalvo by certified and first class mail. in envelopes separate from any other notice ~o the last known address of the borrower _J [* 6] at 6 Gregory Drive, Lake Ronkonkoma, N 11779-4324, which is the residence that is the subject of the Mortgage. The 90 Day1Notices were mailed on or about December 17,2012. 10. It is Wells Fargo regular practice to en rand retain on file a copy of all 90 Day Notices, created and stored at or near the ti 1e of processing and generation by authorized persons, in the normal course o business. In this matter, copies of the aforementioned 90 Day Notices sent to Ed in A. Maldonado were entered into and retained by the system used by Wells F go on or about December 17, 2012. Copies of said 90 Day Notices are annexed ereto as Exhibit ..A". I 11. In the normal course of business, it is Wells Fargo's regular practice to process, send, and track certain notices via the Trac Right system, and for such notices Wells Fargo relies on the tracking data and other cords from the TrackRight system as proof of (and to establish) compliance with the requirements of such notices, in its day-to-day operations. I 2. Wells Fargo processed, sent, and track d the 90 Day Notices annexed hereto within Exhibit "A" via the TrackRight system, in accordance with its regular practice and in its normal course of business, and Wells Fargo relies on the tracking data and other records from the TrackRight system iy its day-to-day operations to confirm its compliance with the notices' requirements ~~r this loan. Copies of the TrackRight tracking results for the mailings of the 90 D y Notices are annexed hereto as Exhibit "B". 13. Moreover, it is Wells Fargo's regular pfactice to retain on file a copy of all delivery receipts and envelopes returned to Wells Fargo for notices it sent. 14. In that manner, a signed certified mail receipt for the mailing of the 90 Day Notice was returned to Wells Fargo upon delivery to the Mortgaged Premises. A copy of the signed receipt is annexed hereto as Exhibit "C". 15. I hereby certify and affirm that within tr·ee business days of mailing the 90 Day Notice, Wells Fargo electronically filed not~·ce with the Superintendent of Financial Services as req uired by RP APL 1306(2) an confirmation number NYS3 l 3 162 I was issued. A copy of Proof of Filing Statemen issued by the New York State Department of Financial Services 90-Day Pre-Foreclosure Fil ings website is attached to this application as Exhibit "D''. Based upon this testimony, together with the docun entary evidence submitted by the plaintiff referred to above as Ex hibits "A'', "ff', "C" & "D" vhich includes copies of: 1) the 90 Day Notice 1 served upon the ~efaultin~ _mortgg~gor (Exhibit '~Ai'); _2) th~ Trackri~h.t results ~~n~n:;in~ the first class and the certified mailing, delivery, and rece1p ot the signed ma1l111g (Exh1b1t · B ); .)) the signed certified receipt indicating delivery by a US S stamp dated December 21. 2012 (Exhibit ..C") (confirming delivery as reflected in the Exhibit " B,. TrackRight notation); and 4) the RPAPL 1306 filing statement (Exhibit '·D''). Such proof provides sufficient evidence of strict compliance with RP APL 1304 requirements (see also Bank o.fAmerica. N. A. v. Brannon. 156 AD3d I. 63 NYS3d 352 [* 7] (1 si Dept., 2017)). Defendant Montalvo's self-servin and incredible denial of service in the face of the evidence presented in the form of a signed receip of the certified mailing containing the 90 day notice fails to provide any credible evidence sufficie t to raise a genuine issue of fact which would defeat plaintiff's summary judgment motion (see PH Mortgage Cmp .. v. Muricy. 135 AD3d 725, 24 NYS3d 137 (2"d Dept., 2016); HSBC Bankv. Esp1 al, 137 A03d 1079, 28 NYS3d 107 (2"d Dept., 2016)). Accordingly, defendant's cross motion is den ed and plaintiffs motion seeking summary judgment is granted. The proposed order of referenc has been signed simultaneously with execution of this order. HON. HOWARD H. HECKMAN, JR. Dated: November 22, 2019 J.S.C. -7-
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