BAC Home Loans Servicing, LP v. Uvino

• Decision Date: 02 November 2017
• Citation: 64 N.Y.S.3d 377,155 A.D.3d 1155
• Parties: BAC HOME LOANS SERVICING, LP, formerly known as Countrywide Home Loans Servicing, L.P., Respondent, v. Anthony UVINO et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1155

64 N.Y.S.3d 377

BAC HOME LOANS SERVICING, LP, formerly known as Countrywide Home Loans Servicing, L.P., Respondent,

v.Anthony UVINO et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 2, 2017.

Susan J. Civic, Saratoga Springs, for appellants.

Akerman LLP, New York City (Jordan M. Smith of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, CLARK, MULVEY and RUMSEY, JJ.

McCARTHY, J.P.

Appeals (1) from two orders of the Supreme Court (Bartlett III, J.), entered May 10, 2016 and June 30, 2016 in Schoharie County, which granted plaintiff's motion for, among other things, summary judgment, and (2) from a judgment of said court, entered May 30, 2017 in Schoharie County, which granted plaintiff's motion for a judgment of foreclosure and sale.

In 2001, defendant Anthony Uvino (hereinafter Uvino) executed a note and a mortgage secured by real property, in favor of Countrywide Home Loans, Inc. In 2008, Uvino took out a second loan secured by the same real property. At the same time, he consolidated the two loans, executing a consolidated note and consolidated mortgage in favor of Countrywide Bank FSB. Both the original and consolidated mortgages were assigned various times over the years.

In June 2010, plaintiff initiated the instant foreclosure action alleging that Uvino had been in default on his loan since August 1, 2009. Uvino answered, asserting various defenses and counterclaims, including that plaintiff lacked standing to bring the action and that the mortgage was obtained by fraud. Plaintiff moved for, among other things, summary judgment. Supreme Court found that plaintiff submitted proof of Uvino's default and that plaintiff possessed the note at the time the action was commenced, but Uvino did not raise any triable issues of fact. Accordingly, the court granted plaintiff's motion for summary judgment. By separate order, the court again stated that it was granting summary judgment to plaintiff, and appointeda referee to compute the amount owed. After the referee issued a report, plaintiff moved for a judgment of foreclosure and sale, which the court granted. Uvino and his wife, defendant Ann Uvino (hereinafter collectively referred to as defendants),¹ now appeal from both orders and the judgment.²

Initially, defendants argue that Supreme Court erred in declining to consider their surreply papers. The record does not contain any support for their argument that the parties stipulated that defendants could submit such papers, nor that the court approved of such submissions.³ Surreply papers are not explicitly permitted by the statute that addresses motion papers. That statute provides for a notice of motion and supporting affidavits, answering affidavits and supporting papers, and any reply or responding affidavits (see CPLR 2214[b] ). The statute further states that "[o]nly 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" ( CPLR 2214[c] ). Under the circumstances, where the record does not indicate that defendants ever sought permission from the court to submit surreply papers, we cannot conclude that the court abused its discretion in disregarding defendant's surreply papers when deciding plaintiff's motion (see HSBC Bank USA, N.A. v. Roumiantseva, 130 A.D.3d 983, 985, 15 N.Y.S.3d 117 [2015] ; compare Matter of Kennelly v. Mobius Realty Holdings LLC, 33 A.D.3d 380, 382, 822 N.Y.S.2d 264 [2006] ). In any event, the information contained in the surreply papers was insufficient to raise a triable issue of fact so as to preclude summary judgment in plaintiff's favor (see SEFCU v. Allegra Holdings, LLC, 148 A.D.3d 1241, 1242, 48 N.Y.S.3d 811 [2017] ).

On the merits, plaintiff established its prima facie entitlement to summary judgment in this foreclosure action by submitting evidence of the mortgage, unpaid note and Uvino's default (see Nationstar Mtge., LLC v. Alling, 141 A.D.3d 916, 917, 35 N.Y.S.3d 541 [2016] ; U.S. Bank N.A. v. Carnivale, 138 A.D.3d 1220, 1220, 29 N.Y.S.3d 643 [2016] ). In response, defendants alleged that they made all mortgage payments, so they were not in default. However, when defendants authorized a third party to handle their mortgage payments, they still bore the ultimate responsibility to ensure that those payments were timely and properly made to plaintiff. Defendants produced proof that, at their direction, money was deducted from Uvino's monthly retirement benefits to be paid toward the mortgage. Nevertheless, the record contains no evidence that the retirement benefits administrator properly processed those written requests and forwarded the payments to plaintiff using the correct account numbers, so that plaintiff actually received the required mortgage payments and knew to credit them against Uvino's mortgage loan (see SEFCU v. Allegra Holdings, LLC, 148 A.D.3d at 1242, 48 N.Y.S.3d 811). Thus, defendants failed to raise a triable question of fact regarding default.

Defendants argue that the notes in the record were forged and do not contain Uvino's signature. Initially, the fraud allegations in the answer were not stated with particularity to include forgery of any documents, as required by statute (see CPLR 3016[b] ). Due to Uvino's failure to deny in the answer that the notes contained his signature, the signatures were deemed to be legitimate (see CPLR 3015[d] ; UCC 3–307 [1] ). Indeed, defendant's signatures on the documents presented by plaintiff were presumed to be genuine (see UCC 3–307[1][b] ; CitiMortgage, Inc. v. McKinney, 144 A.D.3d 1073, 1074, 42 N.Y.S.3d 302 [2016] ), especially considering that they were acknowledged by a notary public (see Spilky v. Bernard H. La Lone, Jr., P.C., 227 A.D.2d 741, 743, 641 N.Y.S.2d 916 [1996] ). In any event, even if the notes had been forged, Uvino could be deemed to have adopted any unauthorized signature based on his conduct in retaining the benefits of the transaction (i.e., the mortgage proceeds) and making payments on the consolidated note for more than a year (see UCC 3–404 and Comment; see also Spilky v. Bernard H. La Lone, Jr., P.C., 227 A.D.2d at 743–744, 641 N.Y.S.2d 916 ).

Because defendants challenged plaintiff's standing to maintain this foreclosure action, plaintiff was also required to demonstrate that, at the time the action was commenced, it was the holder or assignee of the mortgage and the underlying note (see Bank of N.Y. Mellon v. Cronin, 151 A.D.3d 1504, 1505–1506, 57 N.Y.S.3d 733 [2017] ). "[T]he note, and not the mortgage, is the dispositive instrument that conveys standing to foreclose under New York law" ( Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ). Therefore, if plaintiff was able to show that it obtained "written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action," it has standing to bring the instant action ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 [2009] ; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Everhome Mtge. Co. v. Pettit, 135 A.D.3d 1054, 1055, 23 N.Y.S.3d 408 [2016] ). A sworn affidavit by plaintiff's custodian, based on a review of business records, is sufficient to show physical delivery or possession (see HSBC Bank USA, N.A. v. Sage, 112 A.D.3d 1126, 1127, 977 N.Y.S.2d 446 [2013], lvs. dismissed 22 N.Y.3d 1172, 985 N.Y.S.2d 472, 8 N.E.3d 849 [2014], 23 N.Y.3d 1015, 992 N.Y.S.2d 774, 16 N.E.3d 1253 [2014] ).

Here, plaintiff submitted the affidavit of a vice-president of a company that had merged with plaintiff and was the former servicer of the mortgage. She averred that she was familiar with the records kept in the ordinary course of business, she reviewed them, the records confirmed that a trust company acting on behalf of plaintiff was the custodian of the original collateral documents and had possession of those documents from 2008 until 2011 and, as part of normal business practice, the original note is included in the collateral file.⁴ A copy of the consolidated note contained in the record shows that it was indorsed in blank, so plaintiff, as the holder of the note, was...