U.S. Bank N.A. v Rosario

[*1] U.S. Bank N.A. v Rosario 2019 NY Slip Op 51997(U) Decided on November 13, 2019 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2019
Supreme Court, Kings County

U.S. Bank National Associates, as Successor Trustee to Bank of America, N.A. as Successor by Merger to LaSalle Bank N.A., as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-2, 150 Allegheny Center Mall, Pittsburgh, PA 15212, Plaintiff,

against

Roberto Rosario; Jose Lopez; Capital One Bank Succ Capital One FSB; Kings Supreme Court; LZG Realty LLC; Michael Oberlander d/b/a Babylon Gas Station; Midland Funding NCC-2 Corp., Mortgage Electronic Registration Systems, Inc. as Nominee for First Franklin Financial Corp. an OP. SUB. of MLB & T Co., FSB; New York City Criminal Court; New York City Department of Finance; New York City Environmental Control Board; New York City Parking Violations Bureau; New York City Transit Adjudication Bureau; New York State Department of Taxation and Finance; New York State Worker's Compensation Board; People of the State of New York; Portfolio Recovery Associates LLC; Primus Automotive Financial Svc. Inc.; Unified CCR Partners A/A/O Asta Funding; United States of America Acting Through the IRS; Yellow Book Co., Inc., "JOHN DOE" and "MARY DOE" (said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises), Defendants.



15956/2009



Attorney for Plaintiff

Veronica M. Rundle, Esq.

Ras Boriskin, LLC

900 Merchants Concourse, Suite 310

Westbury, NY 11590
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers submitted on the notice of [*2]motion of plaintiff U.S. Bank National Associates, as Successor Trustee to Bank of America, N.A. as Successor by Merger to Lasalle Bank N.A., as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust,Mortgage Loan Asset-backed Certificates, Series 2007-2 (hereinafter USBNA) for an order discontinuing the instant action to foreclose a mortgage.

Notice of motion

Proposed order

Affirmation of USBNA's counsel

Affirmation of service

BACKGROUND

On June 26, 2009, USBNA commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office (hereinafter KCCO). The complaint alleges in pertinent part, that on March 20, 2007, defendants Jose Lopez and Roberto Rosario (hereinafter the mortgagors) executed a note (the subject note) promising to pay First Franklin Financial Corp, the lender, (hereinafter FFFC) the sum of $627,520.00. On that same date, the mortgagors executed a mortgage (the subject mortgage) in favor of MERS as nominee for FFFC on certain real property known as 210 Marcus Garvey Boulevard, Brooklyn, New York 11211, Block 1792 Lot 43 (hereinafter the subject property) to secure the debt.[FN1]

The movant avers that it owns the subject note and mortgage. The movant also avers that the mortgagors have defaulted on making payments due and owing on the subject note from January 2009 and thereafter. Based on the mortgagors' alleged default and the failure to cure same, the movant has accelerated the subject note and has commenced the instant mortgage foreclosure action.

No defendant has answered the complaint or submitted opposition to the instant motion.

LAW AND APPLICATION

USBNA seeks leave of the Court to discontinue the instant action to foreclose a mortgage. USBNA also seeks to dismiss all counterclaims and cross claims on the basis that the subject loan had been paid off in its entirety.

CPLR 2214 (a) provides that a notice of motion shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (Abizadeh v Abizadeh, 159 AD3d 856, 857 [2nd Dept 2018]). CPLR 2214 (c) provides, in pertinent part:

"Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved. ... Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct."

USBNA did not annex the complaint or the pleadings of any party which presumably [*3]contained the counterclaim or the cross claim which it was seeking to dismiss. By not including any of the pleadings USBNA did not comply with the requirements of CPLR 2214 (c) and the motion may be denied for this reason alone (see Wells Fargo Home Mortg., Inc. v Mercer, 35 AD3d 728 [2nd Dept 2006] citing Alizio v Perpignano, 225 A2d 723, 724—725 [2nd Dept 1996]).

Moreover, although USBNA stated the factual basis for the motion, it did not cite any law in support of the relief requested to meet the requirements of CPLR 2214 (a). Therefore, the motion is denied without prejudice based on the procedural deficiency of the moving papers.

CONCLUSION

USBNA's motion to discontinue the instant foreclosure action is denied without prejudice.

USBNA's motion to discontinue all counterclaims and cross claims asserted against it are also denied without prejudice.

The foregoing constitutes the decision and order of this court.

Dated: November 13, 2019

HONORABLE FRANCOIS A. RIVERA

J.S.C. Footnotes

Footnote 1: USBNA did not annex a copy of the complaint to the instant motion. The Court obtained the information regarding the complaint by reviewing the KCCO minutes. The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v Otto N. Williams, 17 Misc 3d 1127 [A] [NY Sup 2007] citing Matter of Khatibi v Weill, 8 AD3d 485 [2nd Dept 2004]).