Bank of N.Y. Mellon v Govan
Annotate this CaseDecided on February 5, 2019
Supreme Court, Suffolk County
The Bank of New York Mellon F/K/A THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-37T1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-37T1, Plaintiff, Robert L.
against
Govan, ET AL., A/K/A ROBERT GOVAN, D. EDWARD BULGIN, ANDREW JILES, Defendant(s).
060727-2014
FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP
Attorneys for Plaintiff
53 Gibson Street
Bay Shore, NY 11706
CHARLES WALLSHEIN, ESQ.
Attorney for Defendant Govan
35 Pinelawn Road, Suite 106E
Melville, NY 11747
Robert F. Quinlan, J.
This is an action to foreclose a mortgage on residential real property located at 50 High Street, Southampton, Suffolk County , New York. The prior history of this action is contained in the court's decision on plaintiff Bank of New York Mellon f/k/a/ the Bank of New York As Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-37T1, Mortgage Pass Through Certificates, Series 2005-37T1's ("plaintiff') motion for summary judgment (Mot. Seq. No. 001) set forth on the record after oral argument on January 19, 2017, as well as in the court's decision and order of October 26, 2018. The decision of January 19, 2017, granted plaintiff's application to amend the caption, granted plaintiff partial summary judgment pursuant to CPLR 3212 (g) dismissing all of defendant's affirmative defenses, except his fourth affirmative defense which raised compliance with the default notice requirements of the mortgage and set a limited issue trial pursuant to CPLR § 2218 on that sole issue. At that time the court issued a discovery and scheduling order authorizing a brief period of discovery on that issue, after which a note of issue was to be filed, and the parties were authorized to file successive summary judgment motions within thirty days of the filing of the note of issue. The note of issue was filed on August 3, 2017and the parties filed successive summary judgment motions (Mot. Seq. #s 002, through 004) which ere denied by the order of October 26, 2018, which set the action for trial.
Before proceeding the court notes that although the discovery and scheduling order of January 19, 2017 amended the caption, both parties in submitting Mot. Seq. #s 002 though 004, used the original caption, as did the court in the decision and order of October 26, 2018. The amended caption is as set forth above and shall be used in all future proceedings, as directed by the order of January 19, 2017.
TRIAL
The limited issue trial was held today before the court. Plaintiff presented Zachary Chromiak, who after being duly sworn, testified that he was a Litigation Specialist with Bank of America, N. A. ("BANA"), the servicer for plaintiff at the time that the notice of default required by the mortgage ("the notice") was mailed to defendant. He testified to his familiarity with BANA's business records, practices and procedures, establishing his ability to testify as to BANA's business records pursuant to CPLR 4518. His testimony showed that BANA sent Walz the information on accounts in default that was necessary to "populate" the template for the notice which had been prepared previously by BANA and sent to Walz electronically. He also testified that in his position with BANA he had access to both BANA's and Walz' computer systems used to communicate concerning the notice, and which contained copies of the notice, proof of when it was printed and proof of its mailing, all of which are maintained in both systems. Through his testimony, and with consent of defendant, certain business records of BANA were admitted into evidence including the power of attorney between BANA and plaintiff which established BANA as servicer for plaintiff at the time the notice was mailed, and set forth BANA's duties and responsibilities as servicer, as well as copies of the notice sent by both first class and certified mail to defendant at both the property address and his post office box.
Additionally Mr. Chromiak established his training by both BANA and its mailing agent, Walz, in the Walz Tracking System and procedures used by BANA and Walz to produce and mail the notice. That training, which was given by Walz in 2017, was both as to the system at that time and historically, covering the period when the notice was mailed. He also established through his training, familiarity and use of the Walz system, his familiarity with Walz business records, practices and procedures allowing him to testify to Walz' business records pursuant to CPLR 4518, and also to their mailing practice and procedures relating to the mailing of the notice on behalf of BANA. He showed that the mailing practices and procedures were such that they ensured that the mailings of the notice were properly [*2]addressed and mailed. Through his testimony, and without objection, the Walz' Track Right record was introduced which established the mailing of the notice by certified mail to defendant at both the property and his post office box on June 3, 2013, and by first class mail to defendant at both the property and his post office box on June 4, 2013. He also was able to identify the Walz certified mailing log, admitted into evidence without objection, which tracked the progress of the certified mailings of the notice through the US Postal Service ("USPS") by way of a scan bar which allowed Walz to follow them through every step from mailing to delivery. Finally, he testified to the receipt by Walz, and BANA, of the USPS return receipt for the certified mailings, admitted into evidence without objection, which showed receipt by defendant at both the property and his post office box.
Defendant testified, and although he denied recalling receipt of the copies of the notice mailed by first class mail at either the property or his post office box, he admitted receiving both copies of the notice sent by certified mail and acknowledged his signature on both return receipt USPS forms.
DECISION
As this action was commenced by filing of a summons and complaint on February 5, 2014, in order to comply with the notice of default requirement contained in the mortgage, plaintiff must have sent defendant a notice of default at least 30 days before that date. Even if the court was to find that the mailings by first class mail had not been established, as defendant acknowledged receiving the copies of the notice sent to him by certified mail more than 30 days prior to the filing of the action, plaintiff has established the mailing of the notice of default required by the mortgage. Paragraph 15 of the mortgage signed by defendant considers that notice is given to defendant when mailed by first class mail, but that any other form of notice is determined to be given upon to him upon actual delivery to him at the notice address. The notice address is the property address, or another address given by him. Here defendant acknowledges receipt of the certified mailings of the notice sent to both the property address and another address he gave, therefore plaintiff has establish compliance with the notice of default required by the mortgage.
Additionally, the court finds that the testimony of Mr. Chromiak and the exhibits admitted establish the mailing of the notice to defendant at both the property and his post office box by first class mail, and the mailing of the notice to defendant by certified mail at the property and his post office box, as well as receipt of the certified mailings by defendant. A witness who is employed by plaintiff's servicer must show his familiarity and personal knowledge of the business practices, procedures, record keeping practices and records of another related business entity in order to be able to testify to that entity's business records, practices and procedures (see Arch Bay Holding, LLC v Albanese, 146 AD3d 849 [2d Dept 2017]; Aurora Loan Svcs, LLC v Ang, 150 AD3d 649 [2d Dept 2017]; Wells Fargo Bank. N.A. v Talley, 153 AD3d 583 [2d Dept 2017]; Bank of New York Mellon v Alli, 156 AD3d 957 [2d Dept 2017]; Fulton Holding Group, LLC v Lindoff, 165 AD3d 1045 [2d Dept 2018]; Nationstar HECM Acquisition Trust 2015-2 v Andrews, 167 AD3d 1025 [2d Dept 2018]). Mr. Chroma's testimony has met that burden as to the Walz business records admitted into evidence on consent, and as to his testimony as to their meaning. Even as to defendant's denial of receipt of the first class mailings, actually a failure to recall receipt, Mr. Chroma's testimony is enough to overcome defendant's simple denial of receipt of the notices (see Countrywide Home Loans, Inc. v Brown, 305 AD2d 626 [2d Dept 203], Groog v South Road Associates, LLP, 74 AD3d 1021 [2d Dept 2010]; Emigrant Mtge Co., Inc v Persad, 117 AD3d 676 [2d Dept 2014]; Flagstar Bank, FSB v Mendoza, 139 AD3d 898 [2d Dept 2016]).
Further, his testimony as to the mailing practices and procedures of BANA and Walz on behalf of plaintiff, as well as the business records admitted into evidence, are sufficient detail of a standard office practice or procedure designed to ensure that mailed items are properly addressed and mailed, thereby establishing the mailing of the notices (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]; US Bank, N.A. v Cope, 167AD3d 965 [2d Dept 2018]; Aurora Loan Servs., LLC v Vrionedes, 167 AD3d 829 [2d Dept 2018]; Wells Fargo Bank, N. A. V Heiney, _AD3d_, 2019 NY Slip Op 00636 [2d Dept 2019]).
Therefore, plaintiff having established at trial the mailing of the notice of default required by the mortgage, defendant's fourth affirmative defense is dismissed, defendant's answer is stricken, plaintiff is granted judgment on its complaint, and it's application for the appointment of a referee pursuant to RPAPL § 1321 is granted.
Contemporaneously with this decision the court is signing the proposed order of reference submitted by plaintiff with Mot. Seq. #001, as modified by the court.
This constitutes the Order and decision of the Court.
Dated: February 5, 2019
_______________________________________
Hon. Robert F. Quinlan, J.S.C.
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