Bank of N.Y. Mellon v Ozen

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Bank of N.Y. Mellon v Ozen 2019 NY Slip Op 33788(U) December 18, 2019 Supreme Court, Suffolk County Docket Number: 17376/12 Judge: Thomas F. Whelan 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] MEMO DECISlON & ORDER INDEX No. 17376/12 SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 9/14/18 SUBMIT DATE 11127/19 Mot. Seq. # 002 - MG Mot. Seq.# 003 - XMD CDISP Y_ N _x_ ---------------------------------------------------------------X THE BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2007-16CB Mortgage Pass-through Certificates Series 2007-1 6CB, Plaintiff, -against- GREENSPOON MARDER, P.C. Attys. For Plaintiff 590 Madison Ave., Ste. 1800 New York, NY 10022 PIKE, TUCH & COHEN, LLP Attys. For Defendant 1921 Bellmore Avenue Bellmore, NY 11710 HANIFEOZEN "JOHN DOE #1 through JOHN DOE #10", the last 10 names being fictitious and unknown to Plaintiff, the person or parties intended being the person or parties , if any, having or claiming an interest in or lien upon the mortgaged premises described in the Verified Complaint, Defendants. ---------------------------------------------------------------X Upon the following papers numbered l to _ 9_ read on this motion to appoint a referee, among other things and cross motion for summarv judgment ; Notice of Motion/Order to Show Cause and supporting papers I - 4 ; Notice of Cross Motion and supporting papers: 5-7 ; Opposing papers: ~ _ _ _ ; Reply papers ; Other ; (11nd 11fte1 he11ti11g eotmsel in st1pport 11ud opposed to the n1otio11) it is, [* 2] Bank of New York v Ozen Index No. 17376112 Page 2 ORDERED that this motion (#002) by the plaintiff for, among other things, summary judgment, amendment of the caption and the appointment of a referee to compute, is granted in its entirety; and it is further ORDERED that the cross motion (#003) by defendant, Hanife Ozen, for an order to dismiss for failure to demonstrate strict compliance with RPAPL §1306 is denied; and it is further ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further ORDERED that plaintiff is directed to file a notice ofentry within five days of receipt ofthis Order pursuant to 22 NYCRR §202.5-b(h)(2). This is an action to foreclose a mortgage on residential real property situated in West Babylon. In essence, on March 19, 2007, defendant Hanife Ozen borrowed $388,000.00 from plaintiffs predecessor. in interest and executed a note and a mortgage. The defendant ceased making monthly payments as of August 1, 2008. This action was thereafter commenced by filing on June 7, 2012. Defendant interposed an answer containing five affirmative defenses. On May 24, 2018, plaintiff filed the instant motion (#002) seeking an order granting it summary judgment as against the answering defendant, default judgments against all non-appearing defendants, amendment ofthe caption, and the appointment of a referee to compute. The defendant cross moves to dismiss for failure to demonstrate strict compliance with RP APL §1306, as set forth in the cross motion. Although fully briefed as of October 17, 2018, the matter languished within the Court's system until being reassigned to this Part pursuant to Administrative Order No. 86-19, dated November 6, 2019. Remarkably, this case has been pending on the trial calendar since the filing of the note of issue on November 2, 2016. While the matter appeared on the CCP calendar on May 31, 2017, it was remanded back to the IAS Part for trial. No trial has been held. Plaintiff timely made this motion before the IAS Part, pursuant to the Order of June 19, 2018, however, in this pre-E-filing case, the motion was inadvertently mailed to the defendant and not counsel. Thereafter, the parties entered into a stipulation, dated September 6, 2018, prior to the return date of the motion, to extend defendant's time to submit opposition for an additional month, until October 10, 2018. The Court finds that the non-jurisdictional defect of improper initial service has been mitigated by the stipulation and the adjournment and the motions of the parties in addressing the summary judgment motion on the merits. The plaintiff addresses its burden of proof in the moving papers on this summary judgment motion, and refutes the ten affirmative defenses of the answer. On its initial motion, the plaintiff [* 3] Bank of New York v Ozen Index No. 17376/12 Page 3 here submitted the affidavit of Wilma Colon, a Litigation FC Specialist of Shellpoint Mortgage Servicing ("Shellpoint"), plaintiff's loan servicer, sworn to on August 13, 2018. Ms. Colon notes that she has personal knowledge of Shellpoint's record making practices, avers that the records are made at or near the time of the event by persons with knowledge, and are kept in the course of its ordinarily conducted business. Importantly, she states: 5. To the extent that the business records of the Loan in this matter was created by a prior servicer, the prior servicer's records concerning the Loan are now part Shellpoint's business records. Shellpoint maintains quality control and verification procedures as part of the boarding process to ensure the accuracy of the boarded records. It is the regular practice of Shellpoint to integrate prior servicer's records in Shellpoint's business records, and to rely upon the accuracy of those boarded records in providing its loan service functions. As such, Ms. Colon notes that, to the extent any records were created by a previous servicer, those records have been verified for accuracy and incorporated into that of Shellpoint. Finally, she avers that it is the business practice of plaintiff to maintain such records and to rely on such in the ordinary course of its business. Such satisfies the dictates of Bank ofNew York Mellon v Gordon, 171AD3d197, 205, 97 NYS3d 283 (2d Dept 2019) (incorporate and rely upon prior servicer's records; see also JPMorgan Chase Bank, Nat. Assn. v Escobar, _ AD3d _ , 2019 WL 5950745 [2d Dept 2019]). Here, the plaintiffs moving papers demonstrate, by due proof in admissible form, the plaintiff's entitlement to summary judgment. In opposition, defendant only submits an affirmation of counsel. The Court notes that the attorney's affirmation is not based upon personal knowledge of the facts and, as such, the submission is without evidentiary value and is insufficient to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 427NYS2d 595 [1980]; see also Bank o/Neiv York Mellon vAiello, 164 AD3d 632, 83 NYS3d 135 [2d Dept 2018]). As such, the affirmation lacks evidentiary value and is rejected. In any event, of the five affirmative defenses, defendant only raises two in opposition plaintiff's compliance with RPAPL §§1304 and 1306. Therefore, the three other affirmative defenses, which were abandoned, are dismissed (see JPMorgan Chase Bank. Natl. Assn. v Cao, 160 AD3d 821, 76 NYS3d 82 [2d Dept 2018]; New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756, 969 NYS2d 796 [2d Dept 2013]; Starkman v City of Long Beach, 106 AD3d 1076, 965 NYS2d 609 [2d Dept 2013]). As to RP APL § 1306, the only claim raised in the notice of cross motion, the Proof of Filing Statement with the New York State Department of Financial Services satisfies the statute. [* 4] Bank of New York v Ozen Index No. 17376/ 12 Page 4 The defendant's contentions regarding plaintiffs mailing of the notice pursuant to RPAPL § 1304 are also unavailing. Initially, the Court notes that the defendant does not submit an affidavit denying receipt ofthe notice and counsel merely alleges plaintifrs "non compliance" in a conclusory manner (see Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 98 NYS3d 273 [2d Dept 2019]). In fact, the business records demonstrates that the defendant actually received and signedfor the§ 1304 notice, on January 23, 2012, as set forth on the postal return receipt certificate. The Court noted that the legislative intent behind the Home Equity Theft Prevention Act (Real Property Law §265-a, or " HETPA"), through which RP APL § 1304 was enacted, was to provide greater protections to borrowers facing foreclosure (see First Natl. Bank of Chicago v Silver, 73 AD3d 162, 165 [2d Dept 2010], citing Senate Introducer Mem. in Support, Bill Jacket, L. 2006, ch. 308, at 7-9). RPAPL§ 1304 was thereafter enacted "to aid the homeowner in an attempt to avoid litigation, and to facilitate communication between distressed homeowners and lenders and/or servicers" (HSBC Bank USA, Nat. Assn. v Ozcan, 154 AD3d 822, 825, 64 NYS3d 38 [2d Dept 20 17], citing Senate Introducer Mem. in Support, Bill Jacket L. 2008, ch. 472, § 2; Aurora Loan Services, LLC v Weisblum, 85 AD3d 95, supra). Specifically, "(t]he bill sponsored sought ' to bridge that communication gap in order to facilitate a resolution that avoids foreclosure' by providing a pre-foreclosure notice advising the borrower of 'housing counseling services available in the borrower's area' and an 'additional period of time ... to work on a resolution"' (A urora Loan Services, LLC v Weishlum , 85 AD3d at 107-08, supra, citing Senate Introducer Mem. in Support, Bill Jacket, L. 2008, ch. 472, at 10). To achieve this end, the statute requires that the lender/servicer mail a notice containing specific, mandatory language to the borrower at least 90 days prior to commencement of an anticipated foreclosw-e filing (see RP APL§ 1304[1]). The content requirements ofthe notice support the "underlying purpose of HETPA to afford greater protections to homeowners confronted with foreclosure" (Aurora Loan Services, LLC v Weisblum, 85 AD3d 95, 103, supra, citing First Natl. Bank of Chicago v Silver, 73 AD3d 162, 165, 899 NYS2d 256 (2d Dept 201 O]). The statute further provides that the mailing should take place "in a separate envelope from any other mailing or notice" (RP APL§ 1304(2]). If the lender/servicer knows that the borrower has limited English proficiency, the notice "shall be in the borrower's native language (or a language in which the borrower is proficient), provided that the language is one of the six most common non-English languages spoken by individuals with limited English proficiency in the state of New York" (RPAPL §1304[5]). Here, the business records demonstrate that the defendant actually received the§ 1304 notice, that is, proof of actual mailing. With the proof of actual mailing, the legislative purpose of RP APL § 1304 has been satisfied. The statutory opportunity to "bridge the communication gap" between the lender and the borrower has been fulfilled. To argue to the contrary is to read an absurdity into the statute. [* 5] Bank of New York v. Ozen Index No. 1737611 2 Page 5 Nevertheless, the plaintiff here has demonstrated proper mailing of the notice. While an affidavit of service is the preferred demonstration of mailing, " [t]here is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR §4518(a), and the records themselves actually evince the facts for which they are relied upon" (A urora Loan Services, LLC v Vrionedes, 167 AD3d 829, 832, 91 NYS3d 150 (2d Dept 2018), citing Citigroup v Kopelowitz, 147 AD3d 1014, 1015, 48 NYS3d 223; see also HSBC Bank USA, N.A. v Ozcan, (154 AD2d 822, 826, 64 NYS3d 38 [2d Dept 2017]). A foreclosure plaintiff or its servicer can demonstrate mailing by providing proof of actual mailing or a description of the sender's office practice and procedure for mailing (see Citibank, N.A. v Wood, 150 AD3d 813, 55 NYS3d 109 [2d Dept 201 7]). Thus, due proof of the mailing of the notice can be established by submission of an affidavit of service (see Investors Sav. Bank v Salas, 152 AD3d 752, 58 NYS3<l 600 [2d Dept 2017]; Bank ofNY Mellon vAquilw, 131 AD3d 1186, 16 NYS3d 770 [2d Dept 2015]; Emigrant Mtge. Co., Inc. v Persad, 117 AD3d 676, 985 NYS2d 608 [2d Dept 2014]); an affidavit of mailing (see JPMorgan Chase Ba11k, NA v SclzoU, 130 AD3d 875, 15 NYS3d 359 [2d Dept 2015]; Wells Fargo v Moza, 129 AD3d 946, 13 NYS3d 127 [2d Dept 2015)) or through "proof of standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" (Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 21 , 98 NYS3d 273 [2d Dept 2019] [citations omitted]). Here, Ms. Colon annexed copies of the notice that shows the appropriate postal markings as well as the date. Likewise, Ms. Colon previously avers as to the reliability of the mailing of the RP APL § 1304 notices to the defendant in this case was completed in accordance with such regular practices, by certified and regular mail, on January 17, 2012, and attaches the same business records to demonstrate the mailing. Finally, plaintiff submits the Proof of Filing Statement to the New York State Banking Department pursuant to RP APL §1306, which is offered as proof to the state agency that the mailing occurred on January 17, 2012, pursuant to the Step One Filing requirement. Jn accordance with the above, Ms. Colon's affidavit adequately sets forth the basis of her knowledge and establishes the admissibility of the documents appended to the affidavit as business records and satisfies the admissibility requirements of CPLR §4518(a) (see Bank ofN. Y. Mellon v Gordon, 171 AD3d at 197, supra, Nationstar Mtge., LLC v LaPorte, 162 AD3d at 784, supra; HSBC Bank USA v Ozcatt 154 AD2d at 822). In opposition, defendant fails to raise a triable issue of fact. The plaintiff's moving papers have established all of the elements necessary for the fixation of the remaining defendants' defaults in answering and the appointment of a referee to compute amounts due under the subject note and mortgage as contemplated by RP APL § 1321 (see CPLR §3215 ; RPAPL §1321; Todd v Green, 122 AD3d 831 , 832, 997 NYS2d 155 [2d Dept 2014]; US Bank v Razon , 115 AD3d 739, 740, 981NYS2d583 [2d Dept 2014]). The moving papers further established the plaintiff's entitlement to an order amend ing the caption (see CPLR § 1024; Deutsche [* 6] Bank of New York v. Ozen Index No. 17376/1 2 Page 6 Bank Natl. Trust Co. v Islar, 122 AD3d 566, 996 NYS2d 130 [2d Dept 2014]; Flagstar Bank v Bellafiore, 94 AD3d at 1044, 1046, 943 NYS2d 551, [2d Dept 2012]; Neighborhood Hous. Servs. of NY City, Inc. v Meltzer, 67 AD3d 872, 873-874 [2009)). Accordingly, plaintiff's motion (#002) is granted and defendant's cross motion (#003) is denied. The proposed order of reference, as modified by the court, has been signed simultaneously with this memorandum decision and order. DATED: I ~11 &(/ 'f

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